(2) If, in relation to goods exported to Australia, a forward rate of exchange is used, the Minister may, in a conversion of currencies under subsection (1), make use of that rate of exchange.
(3) If:
(a) the comparison referred to in subsection (1) requires the conversion of currencies; and
(b) the rate of exchange between those currencies has undergone a short‑term fluctuation;
the Minister may, for the purpose of that comparison, disregard that fluctuation.
(4) If:
(a) the comparison referred to in subsection (1) requires the conversion of currencies; and
(b) the Minister is satisfied that the rate of exchange between those currencies has undergone a sustained movement;
the Minister may, by notice published on the Anti‑Dumping Commission’s website, declare that this subsection applies with effect from a day specified in the notice and, if the Minister does so, the Minister may use the rate of exchange in force on that day for the purposes of that comparison during the period of 60 days starting on that day.
(5) Nothing in subsection (4) prevents the Minister specifying a day in a notice that is earlier than the day of publication of the notice if the day specified:
(a) is a day after the start of the sustained movement; and
(b) is not a day occurring within 60 days after the day specified in a prior notice.
(6) Nothing in subsection (4) prevents the Minister publishing more than one notice if a sustained movement in the rate of exchange continues for more than 60 days.
(7) The Commissioner may, if he or she considers it desirable so to do for the avoidance of doubt, specify, by notice published on the Anti‑Dumping Commission’s website, a means of establishing a rate that is taken to be, or to have been, the rate of exchange between the Australian currency and another currency or between other currencies:
(a) on a day, or during a period, preceding the day of publication of the notice; or
(b) from and including the day of publication of the notice, or an earlier day specified in the notice, until the revocation of the notice.
(8) The rate of exchange established between currencies in a notice under subsection (7) is, for the purpose of working out the amount of duty or interim duty payable on any goods exported on the day or during the period to which the rate so specified applies, the rate of exchange that applies for the purposes of this section in respect of the currencies specified in the notice.
269TAG Minister may take anti‑dumping measures on own initiative
(1) Nothing in this Part implies that the Minister cannot initiate an investigation into the need to take anti‑dumping measures in respect of goods although no application has been made under section 269TB for the taking of such measures in respect of such goods.
(2) An investigation under subsection (1) must be carried out in accordance with the Minister’s written requirements instead of the requirements set out in this Part.
(3) The Minister may, subject to subsection (4), take anti‑dumping measures as a result of the investigation as if the investigation had been carried out under this Part.
(4) The Minister must not take such anti‑dumping measures unless the Minister:
(a) has determined any matters which the Minister would be required to determine; and
(b) is satisfied of any matters of which the Minister would be required to be satisfied;
in order to take those measures if the investigation had been carried out in accordance with the requirements of the other provisions of this Part.
(5) The Minister must ensure that:
(a) his or her instructions under subsection (2) for the conduct of an investigation referred to in subsection (1); and
(b) his or her actions in taking any anti‑dumping measures as a result of such an investigation;
are consistent with Australia’s international obligations under the World Trade Organization Agreement.
(6) The anti‑dumping measures taken and any matters determined to permit the taking of those measures are to be treated, for all purposes of this Act and the Dumping Duty Act, as measures taken, and matters determined, under the relevant provisions of this Part.
269TAH Minister may delegate functions and powers to Commissioner or Commission staff members
(1) The Minister may, by signed instrument, delegate to the following any of the functions and powers of the Minister under this Part or the Dumping Duty Act:
(a) the Commissioner;
(b) a Commission staff member.
(2) However, subsection (1) does not apply to a function or power under:
(a) subsection 269TG(1) or (2), 269TH(1) or (2), 269TJ(1) or (2) or 269TK(1) or (2) of this Act; or
(b) subsection 8(5), 9(5), 10(3B) or 11(4) of the Dumping Duty Act.
269TA Minister may give directions to Commissioner in relation to powers and duties under this Part
(1) The Minister may, by legislative instrument, give to the Commissioner such directions in connection with carrying out or giving effect to the Commissioner’s powers and duties under this Part as the Minister thinks fit, and the Commissioner shall comply with any directions so given.
(2) A direction under subsection (1) shall not deal with carrying out or giving effect to the powers or duties of the Commissioner in relation to a particular consignment of goods or to like goods to goods in a particular consignment but shall deal instead with the general principles for carrying out or giving effect to the Commissioner’s powers.
Division 2—Consideration of anti‑dumping matters by the Commissioner
269TBA What this Division is about
This Division:
• sets out the requirements for making applications for the publication of dumping duty notices and countervailing duty notices;
• sets out the procedures to be followed, and the matters to be considered, by the Commissioner in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister;
• empowers the Commonwealth, in certain cases, to take securities in respect of interim duty that may become payable, in order to prevent injury to Australian industry while such investigations continue;
• sets out the circumstances in which the Commissioner must terminate such investigations.
269TB Application for action under Dumping Duty Act
(1) Where:
(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;
(b) there is, or may be established, an Australian industry producing like goods; and
(c) a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
that person may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.
(2) Where:
(a) a consignment of goods produced or manufactured in a country other than Australia:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies; and
(b) there is, in a third country, an industry that produces or manufactures like goods for export to Australia; and
(c) the Government of that third country believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
the Government of that third country may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.
(2A) During the period after receiving an application for a dumping duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Commissioner must notify the government of the country, or of each country, whose exporters are nominated in the application.
(2B) During the period after receiving an application for a countervailing duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Commissioner must notify:
(a) the government of the country, or of each country, whose exporters are nominated in the application; and
(b) the government of any other country from which countervailable subsidies are alleged to have been received.
(2C) A notification by the Commissioner under subsection (2B) must include an invitation to consult with the Commissioner in relation to whether:
(a) any countervailable subsidies exist; and
(b) any such subsidies, if found to exist, are causing or are likely to cause material injury of a kind referred to in paragraph 269TJ(1)(b) or 269TK(1)(b);
with the aim of arriving at a mutually agreed solution.
(3) An applicant may, at any time before the Minister decides:
(a) to publish a dumping duty notice or a countervailing duty notice in respect of an exporter to whom the application extends; or
(b) to accept an undertaking from an exporter to whom the application extends or from a country to whose exporters the application extends;
by notice in writing lodged with the Commissioner, withdraw the application so far as it extends to that exporter, or to exporters exporting from that country, as the case requires.
(4) An application under subsection (1) or (2) or a notice under subsection (3) withdrawing such an application must:
(a) be in writing; and
(b) be in a form approved by the Commissioner for the purposes of this section; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form; and
(e) in the case of an application under subsection (1)—be supported by a sufficient part of the Australian industry; and
(f) be lodged in the manner approved under section 269SMS.
(5) The application, or the notice withdrawing an application, is taken to have been received by the Commissioner when the application or notice is first received by a Commission staff member doing duty in relation to dumping applications.
(6) An application under subsection (1) in relation to a consignment of goods is taken to be supported by a sufficient part of the Australian industry if the Commissioner is satisfied that persons (including the applicant) who produce or manufacture like goods in Australia and who support the application:
(a) account for more than 50% of the total production or manufacture of like goods produced or manufactured by that portion of the Australian industry that has expressed either support for, or opposition to, the application; and
(b) account for not less than 25% of the total production or manufacture of like goods in Australia.
269TC Consideration of application
(1) The Commissioner shall, within 20 days after receiving an application under subsection 269TB(1) in respect of goods, examine the application and, if the Commissioner is not satisfied, having regard to the matters contained in the application and to any other information that the Commissioner considers relevant:
(a) that the application complies with subsection 269TB(4); or
(b) that there is, or is likely to be established, an Australian industry in respect of like goods; or
(c) that there appear to be reasonable grounds:
(i) for the publication of a dumping duty notice or a countervailing duty notice, as the case requires, in respect of the goods the subject of the application; or
(ii) for the publication of such a notice upon the importation into Australia of such goods;
he or she shall reject the application and inform the applicant, by notice in writing, accordingly.
(2) The Commissioner shall, within 20 days after receiving an application by the Government of a country under subsection 269TB(2) in respect of goods, examine the application and, if the Commissioner is not satisfied, having regard to the matters contained in the application and to any other information that the Commissioner considers relevant:
(a) that the application complies with subsection 269TB(4); or
(b) that there is a producer or manufacturer of like goods in that country who exports such goods to Australia; or
(c) that there appear to be reasonable grounds:
(i) for the publication of a dumping duty notice or a countervailing duty notice, as the case requires, in respect of the goods the subject of the application; or
(ii) for the publication of such a notice upon the importation into Australia of such goods;
he or she shall reject the application and inform the applicant, by notice in writing, accordingly.
(2A) If an applicant, after lodging an application under section 269TB, decides to give the Commissioner further information in support of that application without having been requested to do so:
(a) the information must be lodged with the Commissioner, in writing, in the manner in which applications under that section must be lodged; and
(b) the information is taken to have been received by the Commissioner when the information is first received by a Commission staff member doing duty in relation to dumping applications; and
(c) this Part has effect as if:
(i) the application had included that further information; and
(ii) the application had only been lodged when that further information was lodged; and
(iii) the application had only been received when that further information was received.
(3) Where, in accordance with subsection (1) or (2), the Commissioner rejects an application, the notice informing the applicant of that rejection:
(a) shall state the reasons why the Commissioner was not satisfied of one or more of the matters set out in that subsection; and
(b) shall inform the applicant of the applicant’s right, within 30 days of the receipt of the notice, to apply for a review of the Commissioner’s decision by the Review Panel under Division 9.
(4) If the Commissioner decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the Commissioner must give public notice of the decision:
(a) setting out particulars of goods the subject of the application; and
(b) setting out the identity of the applicant; and
(ba) setting out the countries of export known to be involved; and
(bb) if the application is for a countervailing duty notice—also setting out the countries from which countervailable subsidisation is alleged to have been received; and
(bc) setting a date, which should be the date or estimated date of publication of the notice, as the date of initiation of the investigation; and
(bd) indicating the basis on which dumping or countervailable subsidisation is alleged to have occurred; and
(be) summarising the factors on which the allegation of injury or hindrance to the establishment of an industry is based; and
(bf) indicating that a report will be made to the Minister:
(i) within 155 days after the date of initiation of the investigation; or
(ii) within such longer period as the Minister allows under section 269ZHI;
on the basis of the examination of exportations to Australia of goods the subject of the application during a period specified in the notice as the investigation period in relation to the application; and
(c) inviting interested parties to lodge with the Commissioner, within 37 days after the date of initiation of the investigation, submissions concerning the publication of the notice sought in the application; and
(d) stating that if the Commissioner, in accordance with section 269TD, makes a preliminary affirmative determination in relation to the application, he or she may apply provisional measures, including the taking of securities under section 42, in respect of interim duty that may become payable on the importation of the goods the subject of the application; and
(e) stating that:
(i) within 110 days after the date of initiation of the investigation; or
(ii) such longer period as the Minister allows under section 269ZHI;
the Commissioner, in accordance with section 269TDAA, will place on the public record a statement of the essential facts on which the Commissioner proposes to base a recommendation to the Minister; and
(f) inviting interested parties to lodge with the Commissioner, within 20 days of that statement being placed on the public record, submissions in response to that statement; and
(g) indicating the address at which, or the manner in which, submissions under paragraph (c) or (f) can be lodged; and
(h) stating that if the Minister decides to publish or not to publish a dumping duty notice or a countervailing duty notice after considering the report referred to in paragraph (bf), certain persons will have the right to seek review of that decision in accordance with Division 9.
(5) Information required to be included in the notice under subsection (4) may be included in a separate report to which the notice makes reference.
(5A) The Commissioner cannot vary the length of the investigation period.
(6) Despite the fact that a notice under this section specifies a particular period for interested parties to lodge submissions with the Commissioner, if the Commissioner is satisfied, by representation in writing by an interested party:
(a) that a longer period is reasonably required for the party to make a submission; and
(b) that allowing a longer period will be practicable in the circumstances;
the Commissioner may notify the party, in writing, that a specified further period will be allowed for the party to lodge a submission.