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Short title
1 Short title
This Act may be cited as the Customs Legislation (Anti-dumping Amendments) Act 1998.
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Direct links to the current provisions in Customs Legislation (Anti-dumping Amendments) Act 1998.
This Act may be cited as the Customs Legislation (Anti-dumping Amendments) Act 1998.
(1) Subject to subsections (2), (3), (4) and (5), this Act commences on the day on which it receives the Royal Assent. (2) Subject to subsection (4), the items of Schedule 1 (other than item 39), the items of Schedules 2 and 4 and the items of Schedule 3 (other than item 11) commence on a day to be fixed by Proclamation. (3) Subject to subsection (5), item 39 of Schedule 1 and item 11 of Schedule 3 commence on a day to be fixed by Proclamation after, but not more than 150 days after, the day fixed for the purposes of subsection (2). (4) If the items to which subsection (2) applies do not commence under subsection (2) within 6 months after the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (5) If the items to which subsection (3) applies do not commence within 150 days after the day on which the items to which subsection (2) applies commence, they commence on the first day after the end of that 150 days.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(1) This Part deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice. (2) If a notice is published, that notice creates a liability under the Dumping Duty Act, in relation to any goods to which the notice extends, to pay a special duty of customs on their importation into Australia and, pending assessment of that special duty, to pay interim duty. (3) Divisions 1, 2 and 3 deal with the preliminary and procedural matters leading to a Ministerial decision to publish or not to publish a dumping duty notice or a countervailing duty notice or to accept an undertaking instead of publishing such a notice. (4) Division 4 allows a person who has been required to pay interim duty to seek an assessment of duty payable under the Dumping Duty Act and reconciles interim duty paid by that person with duty as so assessed. (5) Division 5 deals with the rights of persons, periodically, on the basis of changed circumstances, to seek review by the Minister of decisions to publish dumping duty notices or countervailing duty notices or to accept undertakings. (6) Division 6 deals with the rights of new exporters and exporters not previously investigated to seek an early review by the Minister of decisions to publish dumping duty notices or countervailing duty notices. (7) Division 6A ensures that interested parties are informed of the impending expiration of anti-dumping measures and allows them to seek continuation of those measures. (8) Division 7 deals with procedural and evidentiary matters that are relevant both to applications for the taking of anti-dumping measures and for the various review procedures after such measures are taken. (9) Divisions 8 and 9 establish an independent reviewer, the Trade Measures Review Officer, and provide for the Review Officer to review Ministerial decisions to publish or not to publish dumping duty notices or countervailing duty notices and also a range of decisions made by the CEO.
3 Before section 269T
Insert in Division 1:
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 CEO in relation to the CEO’s powers and duties.
4 Subsection 269T(1) (definition of affected party)
Omit “section 269Z requesting that the Minister review the rate of interim duty”, substitute “Division 5 for review of anti-dumping measures”.
5 Subsection 269T(1) (paragraphs (a) and (b) of the definition of affected party)
Omit “the subject of the application”, substitute “to which the measures relate”.
6 Subsection 269T(1) (definition of Anti‑Dumping Act)
Repeal the definition.
7 Subsection 269T(1) (definition of Authority)
Repeal the definition.
8 Subsection 269T(1) (definition of investigation period)
Omit all the words after “specified by”, substitute “the CEO in a notice under subsection 269TC(4) to be the investigation period in relation to the application”.
9 Subsection 269T(1) (definition of new exporter)
Omit all the words after “any time during”, substitute:
the period:
(a) starting at the start of the investigation period in relation to the application; and
(b) ending immediately before the day the CEO places on the public record the statement of essential facts in relation to the investigation of the application.
10 Subsection 269T(1)
Insert:
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.
11 Subsection 269T(1)
Insert:
Dumping Duty Act means the Customs Tariff (Anti-Dumping) Act 1975.
12 Subsection 269T(1)
Insert:
preliminary affirmative determination means a determination made under section 269TD.
13 Subsection 269T(1)
Insert:
public notice, in relation to a decision, determination or other matter, means notice of the decision, determination or other matter published in accordance with section 269ZI.
14 Subsection 269T(1)
Insert:
public record means the public record maintained under section 269ZJ.
15 Subsection 269T(1)
Insert:
Review Officer means the person from time to time holding the office of Trade Measures Review Officer established under Division 8 and includes a person acting in that office.
16 Subsection 269T(2)
Repeal the subsection, substitute:
(2) For the purposes of this Part, goods, other than unmanufactured raw products, are not to be taken to have been produced in Australia unless the goods were wholly or partly manufactured in Australia.
17 Paragraph 269T(4D)(a)
Repeal the paragraph, substitute:
(a) if the goods are the subject of a dumping duty notice:
(i) to the normal value of the goods; and
(ii) to the export price of the goods; and
(iii) to the non‑injurious price of the goods; and
18 Subparagraph 269T(4D)(b)(ii)
Repeal the subparagraph, substitute:
(ii) to the export price of the goods; and
(iii) to the non-injurious price of the goods.
19 Subsection 269T(4E)
Omit “the determination of interim duty payable on goods the subject of a dumping duty notice or a countervailing duty notice”, substitute “the review, under Division 5, of anti-dumping measures taken in respect of goods”.
20 At the end of subsection 269T(4E)
Add:
; and (c) if the goods are the subject of an undertaking accepted under section 269TG—to the normal value of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter in negotiations relating to the acceptability of the undertaking; and
(d) if the goods are the subject of an undertaking accepted under section 269TJ—to the countervailable subsidy received in respect of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter or to the country of export in negotiations relating to the acceptability of the undertaking.
21 Paragraph 269TAA(1)(c)
After “will,”, insert “subsequent to the purchase or sale,”.
22 After subsection 269TAA(1)
Insert:
(1A) For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:
(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;
(b) the period for which such an agreement or practice has been in force;
(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.
23 After subsection 269TAB(1)
Insert:
(1A) For the purposes of paragraph (1)(a), the reference in that paragraph to the price paid or payable for goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of that transaction.
24 Subsection 269TAC(1)
After “paid”, insert “or payable”.
25 After subsection 269TAC(1)
Insert:
(1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales.
26 Paragraph 269TAC(2)(d)
After “paid”, insert “or payable”.
27 At the end of paragraph 269TAC(2)(d)
Add “, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions”.
28 Subsection 269TAC(8)
After “price paid” (first and second occurring), insert “or payable”.
29 Subsection 269TAC(8)
Omit “that price paid” (last occurring), substitute “such a price”.
30 Paragraph 269TACB(2)(a)
Omit all the words after “export prices”, substitute “over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or”.
31 After paragraph 269TACB(2)(a)
Insert:
(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or
32 Paragraph 269TACB(2)(b)
Omit all the words after “individual transactions”, substitute “over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or”.
33 Paragraph 269TACB(2)(c)
Repeal the paragraph, substitute:
(c) use:
(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and
(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.
34 After subsection 269TACB(2)
Insert:
(2A) If paragraph (2)(aa) or (c) applies:
(a) each part of the investigation period referred to in the paragraph must not be less than 2 months; and
(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.
35 Paragraph 269TACB(4)(b)
After “those goods”, insert “and that period”.
36 After subsection 269TACB(4)
Insert:
(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.
37 Paragraph 269TACB(5)(b)
After “those goods”, insert “and that transaction”.
38 After section 269TAF
Insert:
(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.
39 Section 269TAJ
Repeal the section.
40 Before section 269TB
Insert in Division 2 of Part XVB:
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 CEO in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister;
• empowers Customs, 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 CEO must terminate such investigations.
41 Subsection 269TB(3)
Repeal the subsection, substitute:
(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 Customs in accordance with subsection (5), withdraw the application so far as it extends to that exporter, or to exporters exporting from that country, as the case requires.
42 Subsections 269TC(1) and (2)
Omit “25 days, or, if another period is prescribed, within that other period,”, substitute “20 days”.
43 Paragraph 269TC(3)(b)
Omit all the words after “applicant’s right”, substitute “, within 30 days of the receipt of the notice, to apply for a review of the CEO’s decision by the Review Officer under Division 9”.
44 Paragraph 269TC(4)(a)
Omit “those goods”, substitute “goods the subject of the application”.
45 Paragraph 269TC(4)(bc)
Omit “in the Gazette”.
46 Paragraphs 269TC(4)(bf), (c), (d), (e) and (f)
Repeal the paragraphs, substitute:
(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) if the 110 days referred to in paragraph (e) is extended by the Minister—within the period of 155 days as similarly so extended;
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 CEO, within a specified period of not more than 40 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 CEO, 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 CEO, in accordance with section 269TDAA, will place on the public record a statement of the essential facts on which the CEO proposes to base a recommendation to the Minister; and
(f) inviting interested parties to lodge with the CEO, 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.
47 Section 269TD
Repeal the section, substitute:
(1) At any time not earlier than 60 days after the date of initiation of an investigation as to whether there are sufficient grounds for the publication of a dumping duty notice, or a countervailing duty notice, in respect of goods the subject of an application under section 269TB, the CEO may, if he or she is satisfied:
(a) that there appears to be sufficient grounds for the publication of such a notice; or
(b) that it appears that there will be sufficient grounds for the publication of such a notice subsequent to the importation into Australia of such goods;
make a determination (a preliminary affirmative determination) to that effect. (2) Subject to subsection (3), in deciding whether to make such a preliminary affirmative determination, the CEO:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by Customs within 40 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the CEO considers relevant.
(3) The CEO is not obliged to have regard to any submission that is received by Customs after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the CEO’s opinion, prevent the timely consideration of the question whether or not to make a preliminary affirmative determination. (4) If the CEO makes a preliminary affirmative determination:
(a) the CEO must give public notice of that determination; and
(b) Customs may, at the time of making that determination or at any later time during the investigation, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while the investigation continues.
(5) If Customs decides to require and take securities under subsection (4), the CEO must give public notice of that decision.
(1) The CEO must, within 110 days after the date of initiation of an investigation arising from an application under section 269TB or 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 CEO proposes to base a recommendation to the Minister in relation to that application. (2) Subject to subsection (3), in formulating the statement of essential facts, the CEO:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by Customs within 40 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the CEO considers relevant.
(3) The CEO is not obliged to have regard to a submission received by Customs after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the CEO’s opinion, prevent the timely placement of the statement of essential facts on the public record.
48 At the end of subsection 269TDA(15)
Add:
; and (c) inform the applicant of the applicant’s right, within 30 days after the first publication of the public notice, to apply for a review of the CEO’s decision by the Review Officer under Division 9.
49 Section 269TE
Repeal the section, substitute:
(1) In this section:
decision means:
(a) a decision of the CEO under section 269TC or 269TD; or
(b) a decision contained in a report by the CEO under section 269ZZL.
recommendation means:
(a) a recommendation included in a report prepared by the CEO under section 269TEA, 269ZDA, 269ZG or 269ZHF; or
(b) a recommendation by the CEO to the Minister under section 269TEB or 269X.
(2) If the CEO is required, in making a recommendation or decision, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the CEO must determine the matter:
(a) in like manner as if he or she were the Minister; and
(b) having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter.
(3) Subsection (2) applies in respect of goods that have not been imported into Australia at the time of the CEO’s determination of a matter in respect of those goods as if:
(a) the CEO’s determination of the matter were being made after an importation of those goods into Australia; and
(b) the importation had occurred at the time of the anticipated importation of those goods into Australia.
(4) Nothing in this section implies that the determination of a matter by the CEO affects the power of the Minister to make a final determination in respect of that matter for the purposes of the Dumping Duty Act.
(1) If:
(a) application has been made under section 269TB for publication of a dumping duty notice or a countervailing duty notice; and
(b) the CEO has initiated an investigation in respect of the application under section 269TC;
the CEO must, after holding such an investigation and before the end of the period for reporting to the Minister that is referred to in paragraph 269TC(4)(bf), give the Minister a report in respect of the goods the subject of the application that:
(c) recommends whether any such notice should be published and the extent of any duties that are, or should be, payable under the Dumping Duty Act because of that notice; and
(d) recommends, in particular, whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and
(e) recommends, where applicable, whether the Minister ought to give notice to the exporter under subsection 269TG(3D) or to the government of the country of export or to the exporter under subsection 269TJ(2A).
(2) The CEO’s report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record. (3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO’s report in relation to an application under section 269TB for publication of a dumping duty notice or a countervailing duty notice, the CEO:
(a) must have regard to:
(i) the application; and
(ii) any submission concerning the publication of that notice to which the CEO has had regard for the purpose of formulating the statement of essential facts; and
(iii) the statement of essential facts; and
(iv) any submission made in response to that statement that is received by Customs within 20 days after the placing of that statement on the public record; and
(b) may have regard to any other matters that the CEO considers to be relevant.
(4) The CEO is not obliged to have regard to any submission made in response to the statement of essential facts that is received by Customs after the end of the period referred to in subparagraph (3)(a)(iv) if to do so would, in the CEO’s opinion, prevent the timely preparation of the report to the Minister. (5) The report to the Minister must include a statement of the CEO’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.
(1) A person who:
(a) if application has been made for publication of a dumping duty notice in respect of goods—is an exporter of such goods; or
(b) if application has been made for publication of a countervailing duty notice in respect of goods—is the government of the country of export, or is an exporter, of such goods;
may, at any time after the making of a preliminary affirmative determination in respect of the application, indicate in writing to the CEO the terms in which the government or exporter would be prepared to give an undertaking to the Minister. (2) The CEO must consider whether he or she is satisfied that those terms are adequate to remove the injury, or the threat of injury, to which the application is addressed so far as the government or exporter offering the undertaking is concerned and, by notice in writing:
(a) if the CEO is so satisfied—recommend to the Minister that he or she accept the undertaking; or
(b) if the CEO is not so satisfied—indicate to the government or exporter the reasons why he or she is not so satisfied.
(3) A government or an exporter may, having regard to those reasons, indicate to the CEO that the government or exporter is prepared to give an undertaking to the Minister in revised terms. (4) If an undertaking in revised terms is proposed to the CEO, the CEO must:
(a) if he or she is not satisfied that the undertaking as so revised is adequate to remove the injury, or the threat of injury, to which the application is addressed—inform the government or exporter to that effect; and
(b) if he or she is so satisfied—recommend to the Minister that the Minister accept the undertaking as revised.
(5) If the Minister accepts the undertaking proposed by a government, investigation of the application is suspended so far as it relates to goods exported from that country. (6) If the Minister accepts the undertaking proposed by an exporter, investigation of the application is suspended so far as it relates to goods exported by that exporter. (7) If:
(a) investigation of an application is suspended:
(i) so far as it relates to goods exported from a particular country; or
(ii) so far as it relates to goods exported by a particular exporter;
on the Minister’s acceptance of an undertaking proposed by the government of that country or by that exporter; and
(b) that government or exporter breaches that undertaking;
the Minister may take such steps as he or she considers necessary to facilitate the resumption of the investigation in so far as it relates to goods exported from that country or by that exporter. (8) Without limiting the generality of subsection (7), the Minister may, in writing, require the CEO to resume the investigation so far as it relates to goods exported from the country, or by the exporter, who breached the undertaking subject to such conditions as to the conduct of the investigation as the Minister considers appropriate. (9) In determining the steps to be taken in order to facilitate the resumption of an investigation, and, where the Minister requires that the CEO resume the investigation, to determine the conditions on which the resumed investigation is to be conducted, the Minister must have regard to:
(a) the procedures that had been completed when the undertaking was accepted; and
(b) the length of time that has elapsed since the acceptance of the undertaking.
(10) The CEO is not obliged to consider the terms of any proposed undertaking provided by a government or an exporter if to do so would prevent the timely making of a recommendation by the CEO to the Minister under section 269TEA. (11) If the CEO does not recommend the acceptance of an undertaking under this section, the CEO may nonetheless recommend to the Minister that he or she seek an undertaking from the government or exporter who proposed the undertaking and set out the terms of the undertaking that he or she recommends the Minister seek.
50 Section 269TF
Repeal the section.
51 Before section 269TG
Insert in Division 3 of Part XVB:
This Division sets out the role of the Minister in considering an anti‑dumping matter. The Minister will normally be acting after receipt of a report from the CEO. In particular, the Division:
• empowers the Minister to publish dumping duty notices or countervailing duty notices;
• empowers the Minister to accept undertakings rather than publish such notices;
• outlines the matters of which the Minister must be satisfied before publishing such notices or accepting such undertakings;
• indicates the period during which such notices or undertakings remain in force;
• sets out the circumstances in which such notices can extend to goods already exported.
52 Subsection 269TG(6)
Repeal the subsection, substitute:
(6) The Minister:
(a) may give a notice to an exporter under subsection (3D) whether or not the giving of such a notice has been recommended by the CEO in a report under section 269TEA; and
(b) may accept an undertaking whether or not the acceptance of such an undertaking has been recommended by the CEO in a recommendation under section 269TEB; and
(c) must not give a notice to an exporter under subsection (3D), or accept an undertaking from an exporter, before a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG, has been made that extends to that exporter; and
(d) must give public notice of any undertaking so accepted.
53 Subsection 269TG(10)
Omit “Authority”, substitute “CEO”.
54 Paragraphs 269TJ(3C)(a) and (b)
Repeal the paragraphs, substitute:
(a) may give a notice under subsection (2A) whether or not the giving of such a notice has been recommended by the CEO in a recommendation under section 269TEA; and
(b) may accept an undertaking whether or not the acceptance of such an undertaking has been recommended by the CEO in a recommendation under section 269TEB; and
55 Paragraph 269TJ(3C)(c)
Omit “a preliminary finding has been made”, substitute “a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG, has been made to the effect”.
56 Subsection 269TJ(3G)
Omit “of the Authority”, substitute “from the CEO”.
57 Subsections 269TJ(4), (5), (6), (7), (8), (9) and (10)
Repeal the subsections.
58 Subsection 269TL(1)
Omit “Anti-Dumping Authority”, substitute “ CEO”.
59 Subsection 269TL(2)
Repeal the subsection.
60 Paragraph 269U(1)(a)
Omit “paragraph 269TG(4)(a)”, substitute “subsection 269TG(3D)”.
61 Paragraph 269U(1)(b)
Omit “paragraph 269TJ(3)(a)”, substitute “subsection 269TJ(2A)”.
62 Before section 269V
Insert in Division 4 of Part XVB:
This Division enables a reconciliation of interim duty, and final duty, payable under the Dumping Duty Act. The Division permits an importer who has paid interim duty on particular goods to apply, within specified time limits, for an assessment of duty payable on those goods. In particular, the Division provides that:
• if the duty is less than the interim duty, the excess is to be refunded;
• if the duty is more than the interim duty, the interim duty is treated as duty and the balance waived;
• if the importer fails, within the time limits available, to seek an assessment of duty, the interim duty paid on the goods is taken to be duty actually payable.
63 Subsection 269X(1)
Omit “180”, substitute “155”.
64 Paragraph 269X(2)(a)
Omit “150”, substitute “120”.
65 Paragraph 269X(2)(b)
Omit “180”, substitute “155”.
66 Paragraph 269X(3)(b)
Omit “180”, substitute “155”.
67 Subparagraph 269X(7)(b)(ii)
Omit all the words after “applicant’s right,”, substitute “within 30 days of the receipt of the notification, to apply for a review of the CEO’s decision by the Review Officer under Division 9”.
68 Paragraph 269X(8)(b)
Omit “Authority”, substitute “Review Officer”.
69 Subsection 269Y(1)
Omit “or from the Authority”, substitute “or from the Review Officer under subsection 269ZZT(2)”.
70 Division 5 of Part XVB
Repeal the Division, substitute:
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Customs Legislation (Anti-dumping Amendments) Act 1998.
(1) Subject to subsections (2), (3), (4) and (5), this Act commences on the day on which it receives the Royal Assent. (2) Subject to subsection (4), the items of Schedule 1 (other than item 39), the items of Schedules 2 and 4 and the items of Schedule 3 (other than item 11) commence on a day to be fixed by Proclamation. (3) Subject to subsection (5), item 39 of Schedule 1 and item 11 of Schedule 3 commence on a day to be fixed by Proclamation after, but not more than 150 days after, the day fixed for the purposes of subsection (2). (4) If the items to which subsection (2) applies do not commence under subsection (2) within 6 months after the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (5) If the items to which subsection (3) applies do not commence within 150 days after the day on which the items to which subsection (2) applies commence, they commence on the first day after the end of that 150 days.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(1) This Part deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice. (2) If a notice is published, that notice creates a liability under the Dumping Duty Act, in relation to any goods to which the notice extends, to pay a special duty of customs on their importation into Australia and, pending assessment of that special duty, to pay interim duty. (3) Divisions 1, 2 and 3 deal with the preliminary and procedural matters leading to a Ministerial decision to publish or not to publish a dumping duty notice or a countervailing duty notice or to accept an undertaking instead of publishing such a notice. (4) Division 4 allows a person who has been required to pay interim duty to seek an assessment of duty payable under the Dumping Duty Act and reconciles interim duty paid by that person with duty as so assessed. (5) Division 5 deals with the rights of persons, periodically, on the basis of changed circumstances, to seek review by the Minister of decisions to publish dumping duty notices or countervailing duty notices or to accept undertakings. (6) Division 6 deals with the rights of new exporters and exporters not previously investigated to seek an early review by the Minister of decisions to publish dumping duty notices or countervailing duty notices. (7) Division 6A ensures that interested parties are informed of the impending expiration of anti-dumping measures and allows them to seek continuation of those measures. (8) Division 7 deals with procedural and evidentiary matters that are relevant both to applications for the taking of anti-dumping measures and for the various review procedures after such measures are taken. (9) Divisions 8 and 9 establish an independent reviewer, the Trade Measures Review Officer, and provide for the Review Officer to review Ministerial decisions to publish or not to publish dumping duty notices or countervailing duty notices and also a range of decisions made by the CEO.
3 Before section 269T
Insert in Division 1:
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 CEO in relation to the CEO’s powers and duties.
4 Subsection 269T(1) (definition of affected party)
Omit “section 269Z requesting that the Minister review the rate of interim duty”, substitute “Division 5 for review of anti-dumping measures”.
5 Subsection 269T(1) (paragraphs (a) and (b) of the definition of affected party)
Omit “the subject of the application”, substitute “to which the measures relate”.
6 Subsection 269T(1) (definition of Anti‑Dumping Act)
Repeal the definition.
7 Subsection 269T(1) (definition of Authority)
Repeal the definition.
8 Subsection 269T(1) (definition of investigation period)
Omit all the words after “specified by”, substitute “the CEO in a notice under subsection 269TC(4) to be the investigation period in relation to the application”.
9 Subsection 269T(1) (definition of new exporter)
Omit all the words after “any time during”, substitute:
the period:
(a) starting at the start of the investigation period in relation to the application; and
(b) ending immediately before the day the CEO places on the public record the statement of essential facts in relation to the investigation of the application.
10 Subsection 269T(1)
Insert:
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.
11 Subsection 269T(1)
Insert:
Dumping Duty Act means the Customs Tariff (Anti-Dumping) Act 1975.
12 Subsection 269T(1)
Insert:
preliminary affirmative determination means a determination made under section 269TD.
13 Subsection 269T(1)
Insert:
public notice, in relation to a decision, determination or other matter, means notice of the decision, determination or other matter published in accordance with section 269ZI.
14 Subsection 269T(1)
Insert:
public record means the public record maintained under section 269ZJ.
15 Subsection 269T(1)
Insert:
Review Officer means the person from time to time holding the office of Trade Measures Review Officer established under Division 8 and includes a person acting in that office.
16 Subsection 269T(2)
Repeal the subsection, substitute:
(2) For the purposes of this Part, goods, other than unmanufactured raw products, are not to be taken to have been produced in Australia unless the goods were wholly or partly manufactured in Australia.
17 Paragraph 269T(4D)(a)
Repeal the paragraph, substitute:
(a) if the goods are the subject of a dumping duty notice:
(i) to the normal value of the goods; and
(ii) to the export price of the goods; and
(iii) to the non‑injurious price of the goods; and
18 Subparagraph 269T(4D)(b)(ii)
Repeal the subparagraph, substitute:
(ii) to the export price of the goods; and
(iii) to the non-injurious price of the goods.
19 Subsection 269T(4E)
Omit “the determination of interim duty payable on goods the subject of a dumping duty notice or a countervailing duty notice”, substitute “the review, under Division 5, of anti-dumping measures taken in respect of goods”.
20 At the end of subsection 269T(4E)
Add:
; and (c) if the goods are the subject of an undertaking accepted under section 269TG—to the normal value of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter in negotiations relating to the acceptability of the undertaking; and
(d) if the goods are the subject of an undertaking accepted under section 269TJ—to the countervailable subsidy received in respect of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter or to the country of export in negotiations relating to the acceptability of the undertaking.
21 Paragraph 269TAA(1)(c)
After “will,”, insert “subsequent to the purchase or sale,”.
22 After subsection 269TAA(1)
Insert:
(1A) For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:
(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;
(b) the period for which such an agreement or practice has been in force;
(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.
23 After subsection 269TAB(1)
Insert:
(1A) For the purposes of paragraph (1)(a), the reference in that paragraph to the price paid or payable for goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of that transaction.
24 Subsection 269TAC(1)
After “paid”, insert “or payable”.
25 After subsection 269TAC(1)
Insert:
(1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales.
26 Paragraph 269TAC(2)(d)
After “paid”, insert “or payable”.
27 At the end of paragraph 269TAC(2)(d)
Add “, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions”.
28 Subsection 269TAC(8)
After “price paid” (first and second occurring), insert “or payable”.
29 Subsection 269TAC(8)
Omit “that price paid” (last occurring), substitute “such a price”.
30 Paragraph 269TACB(2)(a)
Omit all the words after “export prices”, substitute “over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or”.
31 After paragraph 269TACB(2)(a)
Insert:
(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or
32 Paragraph 269TACB(2)(b)
Omit all the words after “individual transactions”, substitute “over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or”.
33 Paragraph 269TACB(2)(c)
Repeal the paragraph, substitute:
(c) use:
(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and
(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.
34 After subsection 269TACB(2)
Insert:
(2A) If paragraph (2)(aa) or (c) applies:
(a) each part of the investigation period referred to in the paragraph must not be less than 2 months; and
(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.
35 Paragraph 269TACB(4)(b)
After “those goods”, insert “and that period”.
36 After subsection 269TACB(4)
Insert:
(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.
37 Paragraph 269TACB(5)(b)
After “those goods”, insert “and that transaction”.
38 After section 269TAF
Insert:
(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.
39 Section 269TAJ
Repeal the section.
40 Before section 269TB
Insert in Division 2 of Part XVB:
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 CEO in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister;
• empowers Customs, 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 CEO must terminate such investigations.
41 Subsection 269TB(3)
Repeal the subsection, substitute:
(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 Customs in accordance with subsection (5), withdraw the application so far as it extends to that exporter, or to exporters exporting from that country, as the case requires.
42 Subsections 269TC(1) and (2)
Omit “25 days, or, if another period is prescribed, within that other period,”, substitute “20 days”.
43 Paragraph 269TC(3)(b)
Omit all the words after “applicant’s right”, substitute “, within 30 days of the receipt of the notice, to apply for a review of the CEO’s decision by the Review Officer under Division 9”.
44 Paragraph 269TC(4)(a)
Omit “those goods”, substitute “goods the subject of the applicatio
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