Federal Register of Legislation - Australian Government

Primary content

Other as made
This instrument specifies fees payable in relation to applications under Division 9 of the Customs Act 1901.
Administered by: Industry, Innovation and Science
Registered 02 Nov 2015
Tabling HistoryDate
Tabled HR09-Nov-2015
Tabled Senate09-Nov-2015
Date of repeal 02 Mar 2016
Repealed by Disallowance in full
This Legislative Instrument has been subject to a Motion to Disallow:
Motion Date:
02-Feb-2016
Expiry Date:
19-Apr-2016
House:
Senate
Details:
Full
Resolution:
Disallowed
Resolution Date:
02-Mar-2016
Resolution Time:
16:20
Provisions:

Explanatory Statement

Customs (Anti-Dumping Review Panel Fee) Instrument 2015

Made by the Minister for Industry, Innovation and Science

 

Authority

The Customs (Anti-Dumping Review Panel Fee) Instrument 2015 (‘the Fee Instrument’) is made under subsections 269ZZE(3) and 269ZZQ(2) of the Customs Act 1901 (the Act).

The Fee Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Background

Australia’s anti-dumping system is established by the Act and other associated legislation and regulations.

 

Division 9 of the Act provides a framework for the review of certain anti-dumping decisions. Reviews are undertaken by the Anti-Dumping Review Panel (the Review Panel) established in Division 8 of the Act. Reviews are conducted following an application made by an interested party in accordance with the manner prescribed in sections 269ZZE and 269ZZQ of the Act.

 

The Customs Amendment (Antidumping Measures) Act (No. 1) 2015 (the Amendment Act) was passed by the Parliament on 13 May 2015. The Amendment Act implements anti‑dumping reforms announced by the Australian Government (the Government) on 15 December 2014.

 

The Amendment Act included amendments to introduce fees for reviews by the Review Panel. The new provisions allow the Minister to prescribe a fee for applications, different fees for different kinds of applications or different kinds of applicants, and provide for refunds or waivers of any fees and related matters.

 

Purpose and operation

The purpose of the Fee Instrument is to prescribe a schedule of fees for making an application for review of a reviewable decision by the Review Panel.

Providing an independent arbiter to review decisions imposes a substantial cost on the Government. This reform reflects the cost of providing a merits review service to businesses and may reduce the number of less-meritorious applications submitted to the Review Panel. It is intended that the fee ensures businesses seriously consider the merits of their appeal before applying and help offset the costs of administering the merits review function.

 

The Fee Instrument prescribes the fee payable under new paragraphs 269ZZE(1)(f) and 269ZZQ(1)(f) of the Act. Applications for review of certain anti-dumping decisions will attract a fee of $10,000 if the review applicant is a foreign government or large business, or $1,000 in other cases (for example, if the applicant is a small-or-medium sized enterprise).

 

A large business is defined as a business which either alone or, if it is a body corporate, together with all other related bodies corporate for the purposes of the Corporations Act 2001, has more than 200 full-time staff.  

 

The Fee Instrument also provides that an application fee may be refunded. A range of circumstances in which the applicant is eligible to receive a refund of the fee are set out.

 

In its current form the Fee Instrument does not provide for a means by which the fee can be waived, however the legislation allows waiver conditions to be set in the future in line with any future government policy.

 

Consultation

The Amendment Act prescribes the Minister’s power to set a fee to make an application for review of a reviewable decision by the Review Panel.

Consultation with key government and industry stakeholders took place in relation to the proposed structure of the fee during consultation for the Amendment Act and the fee instrument. Stakeholder feedback, including that provided to the Senate Economics Legislation Committee’s inquiry into the Amendment Act, has been taken into account in the drafting of Fee Instrument.

 

Detailed explanation of the Fee Instrument

1                    Name of the instrument

This section sets out the name of the Fee Instrument.

2                    Authority

This section sets out that the Fee Instrument is made under subsections 269ZZE(3) and 269ZZQ(2) of the Act.

Section 4 of the Acts Interpretation Act 1901 is relied upon to make the fee instrument prior to the commencement of the enabling provisions of the Act referred to above.

3                    Commencement

This section sets out that the Fee Instrument comes into effect upon commencement of Schedule 1 of the Amendment Act.

4                    Definitions

This clause provides key definitions used in the Fee Instrument.

5                    Fee

The fee payable is prescribed in section 5 of the Fee Instrument.

The fee must be paid by the person who makes an application for review of a reviewable decision, at the time the application for review is made with the Review Panel.

Each applicant must pay the fee, including if other applicants make an application for review of the same reviewable decision.

6                    Refunds

An applicant may be entitled to a full or partial refund of the fee paid, in the circumstances prescribed in this section.

A person is entitled to a refund equivalent to the fee paid if:

a.       the application for review is withdrawn in accordance with sections 269ZZF or 269ZZQAA of the Act; and

b.      the application is withdrawn within the period referred to under section 269ZZD or 269ZZP of the Act.

A person is entitled to a refund equivalent to 85% of the fee paid if:

a.       the application for review is withdrawn in accordance with sections 269ZZF or 269ZZQAA of the Act;

b.      the application has not been withdrawn within the application period referred to under section 269ZZD or 269ZZP of the Act; and

c.       the application is withdrawn before the Review Panel begins to conduct the review.

For the purposes of section 6, the Review Panel begins to conduct the review when the Review Panel publishes a notice required under section 269ZZI or section 269ZZRC.

A person is entitled to a refund equivalent to the fee paid if they are not a person entitled to apply for review of a reviewable decision by the Review Panel.

A person is entitled to a refund equivalent to the fee paid if the decision to which the application relates is not a reviewable decision that may be subject to review by the Review Panel.

If a person paid a fee prescribed by the instrument and that person was liable to pay a lower fee, they are entitled to a refund of the difference between the fee paid and the lower fee.

If a person paid a fee prescribed by the instrument in relation to an application for review that was not made during the application period referred to under section 269ZZD or 269ZZP of the Act, they are entitled to a refund of the fee paid.


 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

customs (anti-dumping review panel fee) Instrument 2015

 

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Instrument

 

Subsections 269ZZE(3), 269ZZE(5), 269ZZQ(2) and 269ZZQ(4) of the Act provide that the Minister may, by way of legislative instrument, prescribe a fee. This fee is payable by applicants seeking a review of anti-dumping decisions by the Anti-Dumping Review Panel (the Review Panel). The Fee Instrument prescribes such a fee and provides for the refund of the fee in certain circumstances.

 

Human rights implications

 

The Fee Instrument engages the human right to review (effective remedy) in accordance with Australia’s obligations under the International Covenant on Civil and Political Rights. In particular, the Fee Instrument may limit some individuals’ and organisations’ ability to exercise their right to review by prescribing a fee, a financial barrier, for reviews of anti‑dumping decisions. However, the risk that this fee may inhibit some individuals and organisations from accessing their right to review is justified and significantly mitigated. 

 

Justification - legitimate objective

 

The current review system provides parties with a fee-free avenue for review. As a result of this (and other factors) unsatisfied interested parties to anti-dumping decisions almost always apply for a review, regardless of the merits of their application. The absence of a fee has resulted in a system that is resource intensive and costly to government.

 

Fees are a standard feature of other government review systems in Australia (for example, the Administrative Appeals Tribunal and Federal Court). Imposing a fee for review of anti‑dumping decisions reflects the cost of providing a merits review service to businesses and may restrict the number of less-meritorious applications submitted to the Review Panel. Although the Fee Instrument would impact on the right to review (effective remedy) this is reasonable and proportionate to achieve the Government’s objective.

 

Mitigation    

 

The Fee Instrument significantly mitigates the risk that some individuals and organisations may not be able to access their right to review by prescribing different fee amounts for different types of review applicants. Foreign governments or large businesses are required to pay a $10,000 fee. Other parties eligible to make a review application, including small-to-medium sized businesses are required to pay a discounted fee of $1,000. The fee amounts prescribed for different classes of applicants are not inordinate, especially in light of the significant costs involved in conducting a review.

 

The Fee Instrument does not restrict the ability of parties involved in anti-dumping matters to seek judicial review of anti-dumping matters by the Federal Court. Parties involved in anti‑dumping matters retain recourse to judicial review under the Administrative Decisions (Judicial Review) Act 1977. Judicial review is also provided under section 75 of the Constitution, which grants the High Court jurisdiction in any case in which the Commonwealth is a party.

 

Conclusion

 

Whilst the Fee Instrument engages and may limit individuals’ and organisations’ right to review (effective remedy), the risk is justified in the circumstances and significantly mitigated. 

 

The Minister for Industry, Innovation and Science, the Honourable Christopher Pyne MP