(a) goods (the circumvention goods) are exported to Australia from a foreign country in respect of which the notice applies;
(b) the exporter exported the circumvention goods under an arrangement with another exporter from that foreign country;
(c) the other exporter is an exporter in respect of which the notice applies;
(d) the circumvention goods would be the subject of the notice if they were exported to Australia by the other exporter;
(e) either:
(i) section 8 or 10 of the Dumping Duty Act, as the case requires, does not apply to the export of the circumvention goods to Australia; or
(ii) section 8 or 10 of the Dumping Duty Act, as the case requires, applies to the export of the circumvention goods to Australia, but the interim duty payable in relation to that export is less than the interim duty that would have been payable if the other exporter had exported the goods to Australia.
Avoidance of intended effect of duty
(5A) Circumvention activity, in relation to the notice, occurs if the following apply:
(a) goods (the circumvention goods) are exported to Australia from a foreign country in respect of which the notice applies;
(b) the exporter is an exporter in respect of which the notice applies;
(c) either or both of sections 8 and 10 of the Dumping Duty Act apply to the export of the circumvention goods to Australia;
(d) the importer of the circumvention goods, whether directly or through an associate or associates, sells those goods in Australia without increasing the price commensurate with the total amount of duty payable on the circumvention goods under the Dumping Duty Act;
(e) the circumstances covered by paragraphs (a) to (d) occur over a reasonable period.
Regulations
(6) Circumvention activity, in relation to the notice, occurs in the circumstances prescribed by the regulations for the purposes of this subsection.
269ZDBC Applications and requests for conduct of an anti‑circumvention inquiry
Applications by Australian industry
(1) If:
(a) a notice (an original notice) has been published under subsection 269TG(2) or 269TJ(2) in respect of goods; and
(b) a person representing, or representing a portion of, the Australian industry producing like goods considers that one or more circumvention activities in relation to the notice have occurred; and
(c) the person considers that it may be appropriate to alter the notice because of the circumvention activities;
the person may, by application lodged with the Commissioner, request that the Commissioner conduct an anti‑circumvention inquiry in relation to the notice.
(1A) If:
(a) a person lodges an application under subsection (1) with the Commissioner; and
(b) the person describes, in the application, circumvention activity, in relation to the original notice, within the meaning of subsection 269ZDBB(5A); and
(c) the Commissioner publishes a notice (the inquiry notice) under subsection 269ZDBE(4) because of the application;
the person must not lodge another application under subsection (1) of this section describing circumvention activity, in relation to the original notice, within the meaning of subsection 269ZDBB(5A), within 12 months after the day the inquiry notice was published.
Requests by Minister
(2) If:
(a) a notice (an original notice) has been published under subsection 269TG(2) or 269TJ(2) in respect of goods; and
(b) the Minister considers that one or more circumvention activities in relation to the notice have occurred; and
(c) the Minister considers that it may be appropriate to alter the notice because of the circumvention activities;
the Minister may, by notice in writing, request that the Commissioner conduct an anti‑circumvention inquiry in relation to the original notice.
269ZDBD Content and lodgement of applications for conduct of an anti‑circumvention inquiry
Content of application
(1) An application under subsection 269ZDBC(1) for the conduct of an anti‑circumvention inquiry in relation to an original notice 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 by the form; and
(e) be lodged in the manner approved under section 269SMS.
Note: For original notice, see section 269ZDBC.
(2) Without limiting subsection (1), the application must include:
(a) a description of the kind of goods that are the subject of the original notice; and
(b) a description of the original notice the subject of the application; and
(c) a description of the circumvention activities in relation to the original notice that the applicant considers have occurred; and
(d) a description of the alterations to the original notice that the applicant considers should be made.
(2A) An application that describes circumvention activity, in relation to the original notice, within the meaning of subsection 269ZDBB(5A), must not describe any other kind of circumvention activity in relation to that notice.
Time of lodgement
(3) The application is taken to have been lodged when the application is first received by a Commission staff member doing duty in relation to applications for the conduct of anti‑circumvention inquiries.
(5) The day on which the application is taken to have been lodged must be recorded on the application.
269ZDBE Consideration of applications and requests for conduct of an anti‑circumvention inquiry
Applications
(1) If an application under subsection 269ZDBC(1) for the conduct of an anti‑circumvention inquiry in relation to an original notice is lodged with the Commissioner, the Commissioner must, within 20 days after receiving the application:
(a) examine the application; and
(b) if the Commissioner is not satisfied, having regard to the application and any other information that the Commissioner considers relevant, of either or both of the matters referred to in subsection (2)—reject the application and inform the applicant, by notice in writing, accordingly.
Note: For original notice, see section 269ZDBC.
(2) For the purposes of subsection (1), the matters to be considered in relation to an application are:
(a) that the application complies with section 269ZDBD; and
(b) that there appear to be reasonable grounds for asserting that one or more circumvention activities in relation to the original notice have occurred.
(3) The notice informing the applicant of the rejection of the application must set out the reasons why the Commissioner was not satisfied of either or both of the matters referred to in subsection (2).
(4) If the Commissioner does not reject an application for the conduct of an anti‑circumvention inquiry in relation to the original notice, the Commissioner must publish a notice on the Anti‑Dumping Commission’s website indicating that such an inquiry is to be conducted.
Requests
(5) If, under subsection 269ZDBC(2), the Minister requests the Commissioner to conduct an anti‑circumvention inquiry in relation to an original notice, the Commissioner must, on receipt of that request, publish a notice on the Anti‑Dumping Commission’s website indicating that such an inquiry is to be conducted.
Note: For original notice, see section 269ZDBC.
Content of notice
(6) A notice (the inquiry notice) published by the Commissioner under subsection (4) or (5) must:
(a) describe the kind of goods to which the inquiry relates; and
(b) describe the original notice the subject of the inquiry; and
(c) state that the inquiry will examine whether circumvention activities in relation to the original notice have occurred; and
(d) indicate that a report will be made to the Minister:
(i) unless subparagraph (ii) applies—within 155 days after the day the inquiry notice is published or such longer period as the Minister allows under section 269ZHI; or
(ii) if the inquiry relates to whether circumvention activity, in relation to the original notice, within the meaning of subsection 269ZDBB(5A), has occurred—within 100 days after the day the inquiry notice is published or such longer period as the Minister allows under section 269ZHI; and
(e) invite interested parties to lodge with the Commissioner, within 37 days after the day of publication of the inquiry notice, submissions concerning the inquiry; and
(f) if subparagraph (d)(i) applies—state that:
(i) within 110 days after the publication of the inquiry notice; or
(ii) within such longer period as the Minister allows under section 269ZHI;
the Commissioner will place on the public record a statement of the essential facts on which the Commissioner proposes to base a recommendation to the Minister in relation to the original notice; and
(g) if subparagraph (d)(i) applies—invite 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
(h) indicate the address at which, or the manner in which, submissions under paragraph (e) or (g) may be lodged.
269ZDBEA Termination of anti‑circumvention inquiry
General inquiry
(1) If:
(a) the Commissioner publishes a notice under subsection 269ZDBE(4); and
(b) subparagraph 269ZDBE(6)(d)(i) applies; and
(c) before the Commissioner would otherwise be required to place on the public record a statement referred to in subsection 269ZDBF(1), the Commissioner becomes satisfied that no circumvention activity in relation to the original notice has occurred;
the Commissioner may terminate the anti‑circumvention inquiry concerned.
Note: For original notice, see section 269ZDBC.
Accelerated inquiry
(2) If:
(a) the Commissioner publishes a notice under subsection 269ZDBE(4); and
(b) subparagraph 269ZDBE(6)(d)(ii) applies; and
(c) the Commissioner is satisfied that no circumvention activity, in relation to the original notice, within the meaning of subsection 269ZDBB(5A), has occurred;
the Commissioner may terminate the anti‑circumvention inquiry concerned.
Note: For original notice, see section 269ZDBC.
Notice of termination decision
(3) The Commissioner must:
(a) give public notice of a decision under subsection (1) or (2); and
(b) notify the applicant for the conduct of the anti‑circumvention inquiry of the decision; and
(c) inform the applicant of the applicant’s right, within 30 days after the applicant is so notified, to apply for a review of the decision by the Review Panel under Division 9.
269ZDBF Statement of essential facts in relation to conduct of an anti‑circumvention inquiry
(1) If the Commissioner publishes a notice under subsection 269ZDBE(4) or (5) about the conduct of an anti‑circumvention inquiry in relation to an original notice and subparagraph 269ZDBE(6)(d)(i) applies, the Commissioner must:
(a) within 110 days after the publication of the notice under subsection 269ZDBE(4) or (5); or
(b) within such longer period as the Minister allows under section 269ZHI;
place on the public record a statement of the facts (the statement of essential facts) on which the Commissioner proposes to base a recommendation to the Minister in relation to the original notice.
Note: For original notice, see section 269ZDBC.
(2) In formulating the statement of essential facts, the Commissioner:
(a) must have regard to:
(i) the application or request; and
(ii) any submissions concerning the inquiry that are received by the Commissioner within 37 days after the publication of the notice under subsection 269ZDBE(4) or (5); and
(b) may have regard to any other matters that the Commissioner considers relevant.
Late submissions
(3) The Commissioner is not obliged to have regard to a submission concerning the inquiry that is received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely placement of the statement of essential facts on the public record.
269ZDBG Report on anti‑circumvention inquiry
Commissioner recommendations
(1) The Commissioner must, after conducting an anti‑circumvention inquiry in relation to an original notice and within:
(a) if subparagraph 269ZDBE(6)(d)(i) applies—155 days after the day the notice under subsection 269ZDBE(4) or (5) about the inquiry is published or such longer period as the Minister allows under section 269ZHI; or
(b) if subparagraph 269ZDBE(6)(d)(ii) applies—100 days after the day the notice under subsection 269ZDBE(4) or (5) about the inquiry is published or such longer period as the Minister allows under section 269ZHI;
give the Minister a report recommending:
(c) the original notice remain unaltered; or
(d) the following:
(i) the original notice be altered because the Commissioner is satisfied that circumvention activities in relation to the original notice have occurred;
(ii) the alterations to be made to the original notice.
Note: For original notice, see section 269ZDBC.
(2) In deciding on the recommendations to be made to the Minister in the report, the Commissioner:
(a) if paragraph (1)(a) applies—must have regard to:
(i) the application or request for the inquiry; and
(ii) any submission concerning the inquiry to which the Commissioner has had regard for the purpose of formulating the statement of essential facts in relation to the inquiry; and
(iii) that statement of essential facts; and
(iv) any submission made in response to that statement that is received by the Commissioner within 20 days after the placing of that statement on the public record; and
(aa) if paragraph (1)(b) applies—must have regard to:
(i) the application or request for the inquiry; and
(ii) any submission concerning the inquiry that is received by the Commissioner within 37 days after the publication of the notice under subsection 269ZDBE(4) or (5); and
(b) in any case—may have regard to any other matter that the Commissioner considers to be relevant to the inquiry.
Late submissions
(3) The Commissioner is not obliged to have regard to a submission made in response to the statement of essential facts that is received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(iv) if to do so would, in the Commissioner’s opinion, prevent the timely preparation of the report to the Minister.
(3A) The Commissioner is not obliged to have regard to a submission concerning the inquiry that is received by the Commissioner after the end of the period referred to in subparagraph (2)(aa)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely preparation of the report to the Minister.
Reasons for Commissioner recommendations
(4) The report to the Minister must include a statement of the Commissioner’s reasons for any recommendation contained in the report that:
(a) sets out the material findings of fact on which that recommendation is based; and
(b) provides particulars of the evidence relied on to support those findings.
269ZDBH Minister’s powers in relation to anti‑circumvention inquiry
Minister’s decision
(1) After considering the report of the Commissioner and any other information that the Minister considers relevant, the Minister must declare, by notice published in accordance with subsection (9), that for the purposes of this Act and the Dumping Duty Act:
(a) the original notice is to remain unaltered; or
(b) the alterations specified in the declaration are taken to have been made to the original notice, with effect on and after a day specified in the declaration.
Note: For original notice, see section 269ZDBC.
(2) Without limiting subsection (1), the alterations may be of the following kind:
(a) the specification of different goods that are to be the subject of the original notice;
(b) the specification of different foreign countries that are to be the subject of the original notice;
(c) the specification of different exporters that are to be the subject of the original notice;
(d) in relation to existing exporters that are the subject of the original notice—the specification of different variable factors in respect of one or more of those exporters;
(e) in relation to exporters that are to be the subject of the original notice—the specification of variable factors in respect of those exporters.
Timing of decision
(3) The Minister must make a declaration under subsection (1) within:
(a) 30 days after receiving the report; or
(b) if the Minister considers there are special circumstances that prevent the declaration being made within that period—such longer period as the Minister considers appropriate.
(4) If paragraph (3)(b) applies, the Minister must give public notice of the longer period.
Declaration has effect according to its terms
(5) If the Minister makes a declaration under subsection (1), that declaration has effect according to its terms.
Notification of declaration
(6) The Minister must, as soon as practicable after the making of a declaration under subsection (1) that affects an exporter, inform that exporter of the terms of the declaration.
Declaration may cover more than one exporter
(7) Nothing in this section is taken to imply that the Minister cannot simultaneously make the same declaration in relation to more than one exporter.
When declaration takes effect
(8) A day specified in a declaration as mentioned in paragraph (1)(b) must not be earlier than the day of publication of the notice under subsection 269ZDBE(4) or (5) about the conduct of an anti‑circumvention inquiry in relation to the original notice.
Manner of publication
(9) A notice under subsection (1) must be published on the Anti‑Dumping Commission’s website.
Division 6—Certain exporters may seek accelerated review of dumping duty notices or countervailing duty notices