(a) during a vacancy in the office of the member (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the member:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
269ZTD Provision of resources to Review Panel
(1) The Minister must arrange with the Review Panel for sufficient resources (including personnel) to be made available to the Panel to enable the Panel to perform the Panel’s functions effectively.
(2) If a person is performing services for the Review Panel under such an arrangement, the person must perform those services in accordance with the directions of the Panel.
269ZU Review Panel may supply information
(1) Subject to this section, the Review Panel may supply information (including personal information) received by the Review Panel under this Act to a person.
(2) The Review Panel or a person whose services are being made available to the Review Panel under section 269ZTD must not:
(a) except for the purposes of this Act, supply information (other than personal information) to a person if the supplying of the information would constitute a breach of confidence; and
(b) supply personal information to a person unless the information is supplied to the Commissioner, or a Commission staff member designated in writing by the Commissioner, for purposes relating to a reinvestigation conducted under section 269ZZL.
(3) Paragraph (2)(a) does not apply to the supply of information to:
(a) the Minister; or
(b) the Commissioner; or
(c) the Secretary of the Department; or
(d) a Commission staff member designated in writing by the Commissioner; or
(e) a person who is employed in the Department and who is designated in writing by the Secretary of the Department.
269ZV False or misleading information
(1) A person must not give the Review Panel any written information that the person knows to be false or misleading in a material particular.
Penalty: 20 penalty units.
(2) Subsection (1) does not apply to any written information if, at the time when the person gives it to the Review Panel, the person:
(a) informs the Review Panel that it is false or misleading in a material particular; and
(b) specifies in what respect it is, to the person’s knowledge, false or misleading in a material particular.
Division 9—Review by Review Panel
Subdivision A—Preliminary
269ZW What this Division is about
This Division sets out the procedures for review by the Review Panel of certain decisions by the Minister or the Commissioner. It includes:
• provisions dealing with definitions and other preliminary matters (Subdivision A); and
• the mechanism for review of certain Ministerial decisions (Subdivision B); and
• the mechanism for review of certain decisions made by the Commissioner (Subdivision C); and
• the keeping of a public record in relation to certain reviews conducted under this Division (Subdivision D).
This Division does not provide for a right of review of a decision made by the Minister following a review under Division 6 or Subdivision B of this Division.
269ZX Definitions
In this Division:
application means:
(a) in Subdivision B—an application for a review of a decision by the Minister referred to in section 269ZZA; and
(b) in Subdivision C—an application for a review of a decision by the Commissioner referred to in section 269ZZN.
finding, in relation to a reviewable decision under Subdivision B, means a finding on a material question of fact or on a conclusion based on that fact.
interested party, in relation to a reviewable decision, means any one of the following persons:
(a) if there was an application under section 269TB or 269V that led to the making of the reviewable decision—the applicant in relation to that application;
(aa) if there was an application under subsection 269ZA(1) that led to the making of the reviewable decision—the applicant in relation to that application;
(aaa) if there was an application under subsection 269ZDBC(1) that led to the making of the reviewable decision—the applicant in relation to that application;
(ab) if there was an application under section 269ZHB that led to the making of the reviewable decision—the applicant in relation to that application;
(b) a person representing, or representing a portion of, the industry producing, or likely to be established to produce, like goods to the goods the subject of the reviewable decision;
(c) a person who:
(i) is or is likely to be directly concerned with the importation or exportation into Australia of the goods the subject of the reviewable decision; or
(ii) has been or is likely to be directly concerned with the importation or exportation into Australia of like goods, to the goods the subject to the reviewable decision;
(d) a person who is or is likely to be directly concerned with the production or manufacture of:
(i) the goods the subject of the reviewable decision; or
(ii) like goods to those goods that have been, or are likely to be, exported to Australia;
(e) a trade organisation a majority of whose members are, or are likely to be, directly concerned with:
(i) the production or manufacture of the goods the subject of the reviewable decision or of like goods; or
(ii) the importation or exportation into Australia of those goods; or
(iii) both the activities referred to in subparagraphs (i) and (ii);
(f) the government of the country of export or country of origin:
(i) of goods the subject of the reviewable decision that have been, or are likely to be, exported to Australia; or
(ii) of like goods to those goods that have been, or are likely to be, exported to Australia.
reviewable decision means:
(a) in Subdivision B—a decision by the Minister referred to in section 269ZZA; and
(b) in Subdivision C—a decision by the Commissioner referred to in section 269ZZN.
269ZY Form and manner of applications
The Senior Member of the Review Panel must, by writing:
(a) approve a form for applications for a review under Subdivision B or C; and
(b) approve the manner of making those applications.
269ZYA Constitution of Review Panel for purposes of review
For the purposes of a particular review under Subdivision B or C, the Review Panel is to be constituted by a single member of the Panel specified in a written direction given by the Senior Member of the Panel.
269ZYB Member unavailable to complete review
(1) This section applies if:
(a) the Review Panel is undertaking a review under Subdivision B or C; and
(b) before the review has been completed, the member who constitutes the Panel for the purposes of the review has:
(i) ceased to be a member; or
(ii) ceased to be available for the purposes of the review.
(2) The Senior Member of the Review Panel must give a written direction reconstituting the Panel for the purposes of the review.
(3) The Review Panel, as so reconstituted, must complete the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Panel as previously constituted.
269ZZ Review Panel to have regard to same considerations as Minister
(1) If the Review Panel is required, in conducting a review under Subdivision B or C, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the Review Panel must determine the matter:
(a) in like manner as if it were the Minister; and
(b) having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter.
(2) Subsection (1) applies in respect of goods that have not been imported into Australia at the time of the Review Panel’s determination in a matter in respect of those goods as if:
(a) the Review Panel’s determination of the matter were being made after an importation of those goods into Australia; and
(b) the importation occurred at the time of the anticipated importation of those goods into Australia.
Subdivision B—Review of Ministerial decisions
269ZZA Reviewable decisions
(1) This Subdivision deals with the review by the Review Panel of the following decisions:
(a) a decision by the Minister to publish a dumping duty notice under subsection 269TG(1) or (2) or 269TH(1) or (2), or a countervailing duty notice under subsection 269TJ(1) or (2) or 269TK(1) or (2);
(b) a decision by the Minister under subsection 269TL(1) not to publish such a notice;
(c) a decision by the Minister under subsection 269ZDB(1);
(ca) a decision by the Minister under subsection 269ZDBH(1);
(d) a decision by the Minister under subsection 269ZHG(1).
(2) A reference to a decision by the Minister in subsection (1) does not include a reference to such a decision made by the Minister following a review under Division 6 or this Subdivision.
Note: The Review Panel only has the power to make certain recommendations to the Minister following a review of a decision under this Subdivision (see section 269ZZK). The Review Panel may not revoke the Minister’s decision or substitute another decision.
269ZZB Overview of a review of Minister’s decision
The following diagram gives an overview of a review under this Subdivision of a reviewable decision.
A flowchart showing an overview of a review under this Subdivision of a reviewable decision.
269ZZC Who may seek a review?
A person who is an interested party in relation to a reviewable decision may apply for a review of that decision under this Subdivision.
269ZZD When must an application be made?
An application for a review must be made within 30 days after:
(a) for a decision referred to in paragraph 269ZZA(1)(a) or (b)—a public notice of the decision is first published on the Anti‑Dumping Commission’s website under section 269ZI; or
(b) for a decision referred to in paragraph 269ZZA(1)(c)—a notice of the decision is first published on the Anti‑Dumping Commission’s website under subsection 269ZDB(1); or
(ba) for a decision referred to in paragraph 269ZZA(1)(ca)—a notice of the decision is first published on the Anti‑Dumping Commission’s website under subsection 269ZDBH(1); or
(c) for a decision referred to in paragraph 269ZZA(1)(d)—a notice of the decision is first published on the Anti‑Dumping Commission’s website under subsection 269ZHG(1).
269ZZE How must an application be made?
(1) An application must:
(a) be in writing; and
(b) be in accordance with a form approved under section 269ZY; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form; and
(e) be made in the manner approved under section 269ZY; and
(f) be accompanied by the fee prescribed in an instrument under subsection (3).
(2) Without limiting paragraph (1)(c), an application must:
(a) contain a full description of the goods to which the application relates; and
(b) contain a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision; and
(c) contain a statement setting out the decision (the proposed decision) that the applicant considers the Minister should have made; and
(d) contain a statement setting out how the grounds mentioned in paragraph (b) support the making of the proposed decision; and
(e) for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—contain a statement setting out how the proposed decision is materially different from the reviewable decision.
Note: Sections 269ZZX and 269ZZY set out requirements concerning confidential or sensitive commercial information that might be contained in an application, including the need to accompany the application with a summary of such information.
Fee
(3) The Minister may, by legislative instrument, prescribe a fee for the purposes of paragraph (1)(f).
(4) The instrument may prescribe different fees for different kinds of applications or different kinds of applicants.
(5) The instrument may make provision for, and in relation to, the refund or waiver of any fee.
269ZZF Withdrawal of application
(1) An applicant may withdraw an application for a review.
(2) The withdrawal must:
(a) be in writing; and
(b) be made in the manner approved under section 269ZY for making applications for a review.
269ZZG Rejection of application—failure to establish decision not the correct or preferable decision etc.
(1) If one or more of the following apply:
(a) the Review Panel is not satisfied that an application sets out reasonable grounds for the reviewable decision not being the correct or preferable decision;
(b) the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZE(2)(b) support the making of the proposed decision (see paragraph 269ZZE(2)(c));
(c) for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—the Review Panel is not satisfied that the proposed decision (see paragraph 269ZZE(2)(c)) is materially different from the reviewable decision;
the Review Panel may, by notice given to the applicant, request the applicant to give the Review Panel, within the period specified in the notice, further information in relation to those matters.
(2) The Review Panel may reject an application if at any time after the end of the 30‑day period referred to in section 269ZZD:
(a) the Review Panel is not satisfied that the applicant has given the Review Panel information setting out reasonable grounds for the reviewable decision not being the correct or preferable decision; or
(b) the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZE(2)(b) support the making of the proposed decision (see paragraph 269ZZE(2)(c)); or
(c) for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—the Review Panel is not satisfied that the proposed decision (see paragraph 269ZZE(2)(c)) is materially different from the reviewable decision.
(3) Subsection (2) applies whether or not a notice is given under subsection (1).
(4) Nothing in subsection (1) prevents the Review Panel from seeking further information from an applicant within the period specified in a notice under subsection (1).
(5) If:
(a) the Review Panel does not, under this Subdivision, reject an application; and
(b) in relation to information given by the applicant setting out the grounds for the reviewable decision not being the correct or preferable decision:
(i) the Review Panel is satisfied that one or more of those grounds (the reviewable grounds) are reasonable grounds for the reviewable decision not being the correct or preferable decision; and
(ii) the Review Panel is satisfied that one or more of those grounds (the non‑reviewable grounds) are not reasonable grounds for the reviewable decision not being the correct or preferable decision;
then:
(c) the Review Panel must accept the reviewable grounds and must conduct the review in relation to those grounds and no other grounds; and
(d) the Review Panel must reject the non‑reviewable grounds.
269ZZH Rejection of application—failure to provide summary of confidential information
The Review Panel must reject an application if:
(a) the applicant in respect of the application claims that information included in it is confidential or is information whose publication would adversely affect a person’s business or commercial interest; and
(b) the applicant fails to give a summary of that information to the Review Panel in accordance with section 269ZZY.
269ZZHA Review Panel may hold conferences
(1) The Review Panel may, at any time after receiving an application for a review, hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.
(2) In making a recommendation under subsection 269ZZK(1), the Review Panel may also have regard to:
(a) that further information to the extent that it relates to the relevant information (within the meaning of subsection 269ZZK(6)); and
(b) any conclusions reached at the conference based on that relevant information.
(3) If the Review Panel decides to hold a conference at any time after receiving an application for a review and before beginning to conduct the review:
(a) the Review Panel must invite the applicant to attend the conference; and
(b) if the applicant fails to attend the conference and the Review Panel is not satisfied that the applicant has a reasonable excuse for the failure—the Review Panel may reject the application.
269ZZI Public notification of review
(1) Before the Review Panel begins to conduct a review, the Review Panel must publish a notice on the Review Panel’s website indicating that the Review Panel proposes to conduct that review.
(2) Without limiting the matters that must be dealt with in a notice under subsection (1), it must:
(a) describe the goods to which the application relates; and
(b) set out the decision that is sought to be reviewed and the grounds in relation to which the review is to be conducted; and
(c) invite interested parties to lodge with the Review Panel, within 30 days starting from the date of publication of the notice, submissions concerning the application; and
(d) indicate the address at which, or the manner in which, such submissions can be lodged.
269ZZJ Submissions in relation to reviewable decision
Within 30 days after the publication of a notice under section 269ZZI in relation to a review of a reviewable decision, the following may make submissions to the Review Panel in accordance with that notice:
(a) interested parties in relation to the reviewable decision;