• The Commissioner is to be assisted by APS employees in the Department.
Subdivision B—Anti‑Dumping Commission
269SMB Establishment
(1) The Anti‑Dumping Commission that was established by this section (as in force before the transfer day) continues in existence, by force of this section, within the Department.
(2) In this section:
transfer day means the day Schedule 1 to the Customs Amendment (Anti‑Dumping Commission Transfer) Act 2013 commenced.
269SMC Constitution of the Anti‑Dumping Commission
The Anti‑Dumping Commission consists of:
(a) the Commissioner; and
(b) the staff assisting the Commissioner as mentioned in subsection 269SMQ(1).
269SMD Function of the Anti‑Dumping Commission
The Anti‑Dumping Commission’s function is to assist the Commissioner in the performance of his or her functions or the exercise of his or her powers.
269SME Anti‑Dumping Commission has privileges and immunities of the Crown
The Anti‑Dumping Commission has the privileges and immunities of the Crown in right of the Commonwealth.
Subdivision C—Commissioner
269SMF Establishment
(1) There is to be a Commissioner of the Anti‑Dumping Commission.
(2) The Commissioner has the powers and functions conferred or imposed on him or her by this Act or any other law.
269SMG Powers of Commissioner
The Commissioner has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
269SMH Appointment
(1) The Commissioner is to be appointed by the Minister by written instrument.
(2) The Commissioner may be appointed on a full‑time or part‑time basis.
269SMI Term of appointment
The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
269SMJ Acting Commissioner
The Minister may appoint an individual to act as the Commissioner:
(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules that apply to acting appointments.
(1) The Commissioner holds office on such terms and conditions as are determined in writing by the Minister.
(2) The office of Commissioner is not a public office for the purposes of Part II of the Remuneration Tribunal Act 1973.
269SML Disclosure of interests
(1) A disclosure by the Commissioner under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.
(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the Commissioner is taken not to have complied with section 29 of that Act if the Commissioner does not comply with subsection (1) of this section.
269SMM Outside employment
Full‑time Commissioner
(1) If the Commissioner is appointed on a full‑time basis, he or she must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
Part‑time Commissioner
(2) If the Commissioner is appointed on a part‑time basis, he or she must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.
269SMN Resignation
(1) The Commissioner may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
269SMO Termination of appointment
(1) The Minister may terminate the appointment of the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; or
(d) the Commissioner is appointed on a full‑time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see subsection 269SMM(1)); or
(e) the Commissioner is appointed on a part‑time basis and engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 269SMM(2)).
Subdivision D—Staff assisting the Commissioner
269SMQ Staff
(1) The staff assisting the Commissioner are to be APS employees in the Department and made available for the purpose by the Secretary of the Department.
(2) When performing services for the Commissioner under this section, a person is subject to the directions of the Commissioner.
Subdivision E—Delegation
269SMR Delegation
(1) The Commissioner may, by writing, delegate any of the Commissioner’s functions or powers under this Part to a Commission staff member.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any written directions of the Commissioner.
Subdivision F—Form and manner of applications
269SMS Form and manner of applications
(1) The Commissioner may, by writing, approve a form for the purposes of a provision of this Part.
(2) The Commissioner may, by writing, approve the manner of lodging an application under a provision of this Part.
(3) The Commissioner may, by writing, approve the manner of withdrawing, under subsection 269TB(3), an application lodged under subsection 269TB(1) or (2).
Subdivision G—Disclosure of information
269SMT Disclosure of information
(1) The Commissioner, or a Commission staff member, may disclose information (including personal information) obtained under this Part or the Dumping Duty Act, or an instrument under this Part or the Dumping Duty Act, to an officer of Customs for the purposes of a Customs Act.
Interaction with the Privacy Act 1988
(2) For the purposes of the Privacy Act 1988, the disclosure of personal information under subsection (1) is taken to be a disclosure that is authorised by this Act.
Definition
(3) In this section:
personal information has the same meaning as in the Privacy Act 1988.
Division 1—Definitions and role of Minister
269SN What this Division is about
This Division deals with preliminary matters. The Division principally:
• sets out essential definitions and interpretations;
• provides the basis for determining various factors (such as normal value, export price and non‑injurious price) necessary to decide whether dumping or countervailable subsidisation has occurred;
• sets out the criteria for the use of those factors in so deciding;
• provides the basis for determining whether dumping or subsidisation is causing material injury to Australian industry;
• identifies circumstances in which the Part does not apply;
• empowers the Minister to direct the Commissioner in relation to the Commissioner’s powers and duties.
269T Definitions
(1) In this Part, unless the contrary intention appears:
affected party, in relation to an application under Division 5 for review of anti‑dumping measures imposed on particular goods, means:
(a) a person who is directly concerned with the exportation to Australia of the goods to which the measures relate or who has been directly concerned with the exportation to Australia of like goods; or
(b) a person who is directly concerned with the importation into Australia of the goods to which the measures relate or who has been directly concerned with the importation into Australia of like goods; or
(c) a person representing, or representing a portion of, the Australian industry producing like goods; or
(d) the Government of a country from which like goods have been exported to Australia.
Agreement on Subsidies and Countervailing Measures means the Agreement by that name:
(a) set out in Annex 1A to the World Trade Organization Agreement; and
(b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia.
agricultural operations means:
(a) the cultivation or gathering in of crops; or
(b) the rearing of live‑stock; or
(c) the conduct of forestry operations;
and includes:
(d) viticulture, horticulture or apiculture; or
(e) hunting or trapping carried on for the purpose of a business.
allowable exemption or remission, in relation to exported goods, means:
(a) the exemption of those goods from duties or taxes borne by like goods destined for domestic consumption; or
(b) the remission of such duties or taxes otherwise payable in respect of those goods;
in accordance with the provisions of Article XVI of the General Agreement on Tariffs and Trade 1994 and the provisions of Annexes I, II and III of the Agreement on Subsidies and Countervailing Measures.
anti‑dumping measures, in respect of goods, means:
(a) the publication of a dumping duty notice or a countervailing duty notice or both; or
(b) the acceptance of an undertaking under section 269TG or 269TJ or of undertakings under both of these sections;
in relation to such goods.
application, in relation to a dumping duty notice or a countervailing duty notice, means an application for the publication of such a notice.
circumvention activity has the meaning given by section 269ZDBB.
Commissioner means the Commissioner of the Anti‑Dumping Commission continued in existence under section 269SMB.
Commission staff member means a member of the staff assisting the Commissioner as mentioned in subsection 269SMQ(1).
compliance period means a period prescribed in, or worked out in accordance with, an instrument under subsection (1A).
cooperative exporter, in relation to:
(a) an investigation under this Part in relation to whether a dumping duty notice should be published; or
(b) a review under Division 5 in relation to the publication of a dumping duty notice; or
(c) an inquiry under Division 6A in relation to the continuation of a dumping duty notice;
means an exporter of goods that are the subject of the investigation, review or inquiry, or an exporter of like goods, where:
(d) the exporter’s exports were examined as part of the investigation, review or inquiry; and
(e) the exporter was not an uncooperative exporter in relation to the investigation, review or inquiry.
countervailable subsidy means a subsidy that is, for the purposes of section 269TAAC, a countervailable subsidy.
countervailing duty means duty, other than interim countervailing duty:
(a) that is payable on goods under section 10 of the Dumping Duty Act because of a declaration under subsection 269TJ(1) or (2) of this Act; or
(b) that is payable on goods under section 11 of the Dumping Duty Act.
countervailing duty notice means a notice published by the Minister under subsection 269TJ(1) or (2) or 269TK(1) or (2).
country of export, in relation to goods exported to Australia, means a country outside Australia from which those goods are exported to Australia, whether or not it is the country where those goods are produced or manufactured.
country of origin, in relation to goods exported to Australia, means a country, whether the country of export or not, where those goods are produced or manufactured.
determination means a determination in writing.
direction means a direction in writing.
dumped goods means any goods exported to Australia that the Minister has determined, under section 269TACB, have been dumped.
dumping duty means duty, other than interim dumping duty, that is payable on goods under section 8 or 9 of the Dumping Duty Act.
Dumping Duty Act means the Customs Tariff (Anti‑Dumping) Act 1975.
dumping duty notice means a notice published by the Minister under subsection 269TG(1) or (2) or 269TH(1) or (2).
economy in transition has the meaning given by subsection (5C).
fish means freshwater or salt‑water fish, and includes turtles, dugong, crustacea, molluscs or any other living resources of the sea or of the sea‑bed.
fishing operations means:
(a) the taking, catching or capturing of fish; or
(b) the farming of fish; or
(c) pearling operations.
forestry operations means the felling, in a forest or plantation, of standing timber.
General Agreement on Tariffs and Trade 1994 means the Agreement by that name:
(a) whose parts are described in Annex 1A to the World Trade Organization Agreement; and
(b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia.
importation period, in relation to goods that have been the subject of a dumping duty notice or a countervailing duty notice means:
(a) in respect of goods covered by a retrospective notice—the period beginning on the day of entry for home consumption of the first consignment of goods to which the retrospective notice applied and ending immediately before the day of publication of the notice; and
(b) in respect of goods covered by a prospective notice:
(i) the period of 6 months beginning on the day of publication of the prospective notice; and
(ii) each successive period of 6 months.
importer, in relation to goods exported to Australia, means:
(a) if paragraph (b), (d) or (f) does not apply—the beneficial owner of the goods at the time of their arrival within the limits of the port or airport in Australia at which they have landed; or
(b) if the goods are taken from parts beyond the seas to an Australian resources installation or if they are goods on board an overseas resources installation at the time when it is attached to the Australian seabed—the beneficial owner of the goods at the time when they are imported into Australia; or
(c) if the goods are an overseas resources installation that becomes attached to the Australian seabed—the beneficial owner of the installation at the time when it is imported into Australia; or
(d) if the goods are taken from parts beyond the seas to an Australian sea installation or are goods on board an overseas sea installation at the time when it is installed in an adjacent area or a coastal area—the beneficial owner of the goods at the time when they are imported into Australia; or
(e) if the goods are an overseas sea installation that becomes installed in an adjacent area or in a coastal area—the beneficial owner of the installation at the time when it is imported into Australia; or
(f) if the goods are taken from parts beyond the seas to an Australian offshore electricity installation or are goods on board an overseas offshore electricity installation at the time when it is installed in the Commonwealth offshore area—the beneficial owner of the goods at the time when they are imported into Australia; or
(g) if the goods are an overseas offshore electricity installation that becomes installed in the Commonwealth offshore area—the beneficial owner of the installation at the time when it is imported into Australia.
interested party, in relation to:
(a) an application made to the Commissioner under section 269TB requesting that the Minister publish a dumping duty notice or a countervailing duty notice in respect of the goods the subject of the application; or
(b) an application under subsection 269ZA(1), or a request under subsection 269ZA(3), for review of anti‑dumping measures taken in respect of goods; or
(c) an application under subsection 269ZDBC(1), or a request under subsection 269ZDBC(2), for the conduct of an anti‑circumvention inquiry in relation to a notice published under subsection 269TG(2) or 269TJ(2) in respect of goods; or
(d) an application under section 269ZHB for a continuation of anti‑dumping measures taken in respect of goods;
means:
(e) in the case of an application—the applicant; and
(f) a person or body representing, or representing a portion of, the industry producing, or likely to be established to produce, like goods; and
(g) any person who is or is likely to be directly concerned with the importation or exportation into Australia of the goods the subject of the application or request or who has been or is likely to be directly concerned with the importation or exportation into Australia of like goods; and
(h) any person who is or is likely to be directly concerned with the production or manufacture of the goods the subject of the application or request or of like goods that have been, or are likely to be, exported to Australia; and
(i) a trade organisation a majority of whose members are, or are likely to be, directly concerned with the production or manufacture of the goods the subject of the application or request or of like goods, with their importation or exportation into Australia or with both of those activities; and
(j) the government of the country of export or country of origin:
(i) of goods the subject of the application or request that have been, or are likely to be, exported to Australia; or
(ii) of like goods that have been, or are likely to be, exported to Australia; and