Subdivision APreliminary

Schedule 1—Amendment of the Customs Act 1901 1 Paragraph 42(1B)(a) Omit all the words after “preliminary”, substitute “affirmative determination, within the meaning of Part XVB, in respect of those goods; or”. 2 Before section 269T Insert in Part XVB before Division 1: #### 269SM Overview of Part (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: #### 269SN What this Division is about This Division deals with preliminary matters. The Division principally: • sets out essential definitions and interpretations; • provides the basis for determining various factors (such as normal value, export price and non-injurious price) necessary to decide whether dumping or countervailable subsidisation has occurred; • sets out the criteria for the use of those factors in so deciding; • provides the basis for determining whether dumping or subsidisation is causing material injury to Australian industry; • identifies circumstances in which the Part does not apply; • empowers the Minister to direct the 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: #### 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. 39 Section 269TAJ Repeal the section. 40 Before section 269TB Insert in Division 2 of Part XVB: #### 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 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: #### 269TD Preliminary affirmative determinations (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. #### 269TDAA Statement of essential facts in relation to investigation of application under section 269TB (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: #### 269TE CEO to have regard to same considerations as Minister (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. #### 269TEA Report to Minister concerning publication of notices under this Part (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. #### 269TEB CEO recommendations concerning undertakings offered after preliminary affirmative determination (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: #### 269TF What this Division is about 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: #### 269UA What this Division is about 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: ### Division 5—Review of anti-dumping measures #### 269Z What this Division is about This Division enables affected parties (exporters, industry etc.) to apply for the review of anti-dumping measures. The Division also empowers the Minister to initiate such a review. The Division: • sets out the circumstances in which applications can be brought; • empowers the CEO to recommend, through a Minister’s request, an extension of the ambit of a review where appropriate; • sets out the procedure to be followed by the CEO in dealing with applications or requests and preparing reports for the Minister; • empowers the Minister, after consideration of such reports, to leave the anti-dumping measures unaltered or to modify them as appropriate; • empowers the Minister, if interim duty has been paid under the Dumping Duty Act, to make any necessary adjustment of that interim duty. #### 269ZA Applications and requests for review of anti-dumping measures (1) If: (a) anti-dumping measures have been taken in respect of goods; and (b) an affected party considers that it may be appropriate to review those measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally, because: (i) one or more of the variable factors relevant to the taking of the measures in relation to that exporter or those exporters have changed; or (ii) if those measures had not been taken—the Minister would not be entitled to take any such measures; the affected party may, by application lodged with the CEO, request that the CEO initiate such a review. (2) An application for review of anti-dumping measures must not be made: (a) if the measures involve the publication of a dumping duty notice or a countervailing duty notice—earlier than 12 months after: (i) the publication of the notice; or (ii) the publication of a notice declaring the outcome of the last review of the notice (whether that last review was undertaken at the applicant’s request or not); and (b) if the measures involve the acceptance of an undertaking—earlier than 12 months after: (i) the publication of notice of the acceptance of that undertaking; or (ii) the publication of a notice declaring the outcome of the last review of the undertaking (whether that last review was undertaken at the applicant’s request or not). > Note: Example: If an application under section 269TB resulted in: (a) the publication of the acceptance of an undertaking from exporter A on 1 January 1999; and (b) the publication of a dumping duty notice covering exporters B and C on 1 March 1999; > Note: an affected party could seek review of the undertaking on 2 January 2000 but could not seek review of both the undertaking and the dumping duty notices until 2 March 2000. > Note: However, the Minister could decide to review the notices before 2 March 2000 either on his or her own initiative or on the recommendation of the CEO. See subsection (3). (3) If: (a) anti-dumping measures have been taken in respect of goods; and (b) the Minister considers (either as a result of a recommendation from the CEO under subsection 269ZC(4) or on his or her own initiative) that it may be appropriate to review those measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally, because: (i) one or more of the variable factors relevant to the taking of the measures in relation to that exporter or those exporters may have changed; or (ii) if those measures had not been taken—the Minister would not be entitled to take any such measures; the Minister may, at any time, by notice in writing, request that the CEO initiate a review under this Division. (4) If, as a result of a person’s application under Division 6 for accelerated review of a dumping duty notice or a countervailing duty notice, the Minister has made a declaration under subsection 269ZG(3): (a) that person may not make an application, under subsection (1) of this section, for a review of that notice earlier than 12 months after the making of that declaration; but (b) for the purpose of determining whether subsection (2) permits any other person to apply for a review of the notice, the making of that declaration is not to be treated as a review of the notice. (5) If: (a) a person applies, under Division 9, for a review of the Minister’s decision to publish a dumping duty notice or a countervailing duty notice or not to publish such a notice; and (b) as a result of that review: (i) a dumping duty notice or a countervailing duty notice is published by the Minister despite an earlier decision not to publish such a notice; or (ii) a dumping duty notice or countervailing duty notice originally published by the Minister is varied; or (iii) another dumping duty notice or countervailing duty notice is substituted for the notice originally published by the Minister; then, for the purpose only of determining whether subsection (2) permits a review of the new notice, the notice as varied or the substituted notice, that new notice, notice as varied or substituted notice has affect as if it had been published at the time of the Minister’s decision not to publish a notice, or at the time of publication of the original notice, as the case requires. #### 269ZB Content and lodgment of applications for review of anti‑dumping measures (1) An application under subsection 269ZA(1) for review of anti‑dumping measures must: (a) be in writing; and (b) be in an approved form; and (c) contain such information as the form requires; and (d) be signed in the manner indicated by the form. (2) Without otherwise limiting the matters that can be required by the approved form to be included, the application must include: (a) a description of the kind of goods to which the measures the subject of the application relate; and (b) a description of the measures the subject of the application; and (c) if the application is based on a change in variable factors—a statement of the opinion of the applicant concerning: (i) the variable factors relevant to the taking of the measures taken that have changed; and (ii) the amount by which each such factor has changed; and (iii) the information that establishes that amount; and (d) if the application is based on any other circumstances that in the view of the applicant would prevent the Minister, in the absence of the anti-dumping measures, from taking such measures—a statement of those other circumstances. (3) An application may be lodged with Customs: (a) by leaving it at a place allocated for lodgment of such applications at Customs House in Canberra; or (b) by posting it by prepaid post to a postal address specified in the approved form; or (c) by sending it by electronic facsimile to a facsimile number specified in the approved form; and the application is taken to have been lodged when the application, or a facsimile of the application, is first received by an officer of Customs doing duty in relation to applications for review of anti-dumping measures. (4) The day on which the application is taken to have been lodged must be recorded on the application. #### 269ZC Consideration of applications and requests for review (1) If an application for review of anti-dumping measures is lodged with Customs under section 269ZB, the CEO must, within 20 days after Customs receives the application: (a) examine the application; and (b) if the CEO is not satisfied, having regard to the application and to any other information that the CEO considers relevant, of one or more of the matters referred to in subsection (2); the CEO must reject the application and inform the applicant, by notice in writing, accordingly. (2) For the purposes of subsection (1), the matters to be considered in relation to an application are: (a) whether the application complies with section 269ZB; and (b) whether there appear to be reasonable grounds for asserting either: (i) that the variable factors relevant to the taking of anti‑dumping measures have changed; or (ii) that, if the anti‑dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures. (3) The notice informing the applicant of the rejection of the application must set out the reasons why the CEO was not satisfied of one or more of the matters set out in subsection (2). (4) If the CEO decides not to reject an application for review of anti‑dumping measures, the CEO must either: (a) publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that it is proposed to review the measures covered by the application; or (b) if the application for review related only to the review of the measures as they affect particular exporters and the CEO is satisfied that there is a reasonable prospect that a review of such measures as they affect other particular exporters, or as they affect exporters generally, may be justified—recommend to the Minister that the review applied for be extended accordingly. (5) If the CEO is requested by the Minister to undertake a review of anti-dumping measures, either as a result of a recommendation made to the Minister under subsection (4) or otherwise, the CEO must, on receipt of that request, publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that it is proposed to review the measures covered by the request. (6) If: (a) the CEO recommends to the Minister under paragraph (4)(b) the extension of a review of anti-dumping measures; but (b) the CEO is informed by the Minister, within 20 days after that recommendation is made, that the Minister does not require the review to be so extended; the CEO must, on being so informed, publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that it is proposed to review the anti-dumping measures under this Division covered by the original application. (7) The notice published by the CEO under subsection (4), (5) or (6) must: (a) describe the kind of goods to which the review relates; and (b) describe the measures to which the review relates; and (c) indicate that a report will be made to the Minister: (i) within 155 days after the date of publication of the notice; 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; and (d) invite interested parties to lodge with the CEO, within a specified period of not more than 40 days after the date of publication of the notice, submissions concerning the review; and (e) state that: (i) within 110 days after the publication of the notice; or (ii) such longer period as the Minister allows under section 269ZHI; the CEO will place on the public record a statement of the essential facts on which the CEO proposes to base a recommendation concerning the measures under review; and (f) invite 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) indicate the address at which, or the manner in which, submissions under paragraph (d) or (f) can be lodged. #### 269ZD Statement of essential facts in relation to review of anti‑dumping measures (1) If the CEO publishes a notice under subsection 269ZC(4), (5) or (6) in relation to the review of anti-dumping measures, he or she must, within the time limit specified for so doing on that notice, 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 the review of those measures. (2) Subject to subsection (3), in formulating the statement of essential facts, the CEO: (a) must have regard to: (i) the application or request; and (ii) any submissions relating generally to the review that are received by Customs within 40 days after the publication of the notice under subsection 269ZC(4), (5) or (6); 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 submissions relating generally to the review that are 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. #### 269ZDA Report on review of measures (1) The CEO must, after conducting a review of anti-dumping measures and before the end of the period referred to in paragraph 269ZC(7)(c) as it applies to those measures, give the Minister a report recommending: (a) to the extent that the measures involved the publication of a dumping duty notice or a countervailing duty notice: (i) that the notice remain unaltered; or (ii) that the notice be revoked in its application to a particular exporter or to a particular kind of goods or revoked generally; or (iii) that the notice have effect in relation to a particular exporter or to exporters generally, as if different variable factors had been ascertained; and (b) to the extent that the measures involved the acceptance by the Minister of an undertaking: (i) that the undertaking remain unaltered; or (ii) that the Minister seek a variation of the terms of the undertaking as indicated in the CEO’s report; or (iii) that the Minister indicate to the person who gave the undertaking that the undertaking is no longer acceptable and that the investigation of the need for a dumping duty notice or a countervailing duty notice, as the case requires, covering that person is to be resumed; or (iv) that the Minister indicate to the person who gave the undertaking that the person is released from the undertaking and that the investigation of the need for a dumping duty notice or countervailing duty notice covering that person is terminated. (2) Nothing in this section is to be taken to imply that the CEO cannot simultaneously make the same recommendation in relation to more than one exporter or person giving an undertaking. (3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the report, the CEO: (a) must have regard to: (i) the application or request for review; and (ii) any submission relating generally to the review to which the CEO has had regard for the purpose of formulating the statement of essential facts in relation to the review; and (iii) that 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 matter that the CEO considers to be relevant to the review. (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. #### 269ZDB Powers of the Minister in relation to review of anti‑dumping measures (1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must declare, by notice published in accordance with subsection (7), that for the purposes of this Act and the Dumping Duty Act: (a) to the extent that the anti-dumping measures concerned involved the publication of a dumping duty notice or a countervailing duty notice: (i) that the notice is to remain unaltered; or (ii) that, with effect from a date specified in the declaration, the notice is taken to be, or to have been, revoked either in relation to a particular exporter or to exporters generally or in relation to a particular kind of goods; or (iii) that, with effect from a date specified in the declaration, the notice is to be taken to have effect or to have had effect, either in relation to a particular exporter or to exporters generally, as if the Minister had fixed different variable factors in respect of that exporter or of exporters generally, relevant to the determination of duty; and (b) to the extent that the anti-dumping measures concerned involved the acceptance by the Minister of an undertaking: (i) that the undertaking is to remain unaltered; or (ii) that if, before a date specified in the declaration, the terms of the undertaking are altered in a manner specified in the declaration, the undertaking as so varied will be acceptable to the Minister; or (iii) that the undertaking is no longer acceptable to the Minister and that the investigation of the need for a dumping duty notice or a countervailing duty notice is to be resumed immediately; or (iv) that, with effect from a date specified in the declaration, the person who gave the undertaking is released from the undertaking and that the investigation giving rise to the undertaking is terminated. (2) If the Minister makes a declaration under subsection (1), that declaration has effect according to its terms. (3) If: (a) the Minister makes a declaration under subsection (1); and (b) under that declaration, new variable factors are taken to have been fixed, in relation to goods exported to Australia by a particular exporter, with effect from a date specified in the declaration; and (c) interim duty paid on such goods on the basis of the variable factors as previously fixed exceeds the interim duty that would be payable on the basis of the new variable factors; the person who paid the interim duty may apply under Division 3 of Part VIII for a refund of the excess. (4) The Minister must, as soon as practicable after the making of a declaration under subsection (1) that affects an exporter or person giving an undertaking, inform that exporter or person of the terms of the declaration. (5) Nothing in this section is to be taken to imply that the Minister cannot simultaneously make the same declaration in relation to more than one exporter or person giving an undertaking. (6) For the purposes of a declaration under subsection (1), the Minister must not fix a date: (a) in a circumstance to which subparagraph (1)(a)(ii) or (iii) applies—that is earlier than the date of publication under section 269ZC of a notice indicating the proposal to undertake the review concerned; and (b) in a circumstance to which subparagraph (1)(b)(ii) or (iv) applies—that is earlier than the date of the declaration. (7) A notice under subsection (1) must be published in: (a) the Gazette; and (b) a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory. 71 Division 6 of Part XVB (heading) Repeal the heading, substitute: ### Division 6—Certain exporters may seek accelerated review of dumping duty notices or countervailing duty notices 72 Before section 269ZE Insert in Division 6 of Part XVB: #### 269ZDC What this Division is about This Division provides for the early review of a dumping duty notice or a countervailing duty notice on the application of certain exporters of goods covered by the notice. The review can be sought when a review of the notice under Division 5 would not be available and is only open to new exporters or exporters whose exportations were not examined when the notice was published. 73 Subsection 269ZG(1) Omit “Comptroller’s”, substitute “CEO’s”. 74 After Division 6 of Part XVB Insert: ### Division 6A—Continuation of anti-dumping measures #### 269ZHA What this Division is about This Division provides for the CEO to alert interested parties to the anticipated termination of anti-dumping measures and provide them with an opportunity, before those measures expire, to apply for a continuation of the measures. The Division: • sets out the consequences if no application is made; • outlines the procedure to be followed by the CEO in dealing with an application and preparing a report for the Minister; • empowers the Minister, after consideration of that report, either to decide that the measures will expire or to take steps to ensure the continuation of the measures. #### 269ZHB Applications for continuation of anti-dumping measures (1) Not later than 9 months before particular anti-dumping measures expire, the CEO must publish in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory, a notice: (a) informing persons that the dumping duty notice, countervailing duty notice or undertaking comprising those measures is due to expire on a specified day (the specified expiry day); and (b) inviting interested parties to apply to the CEO, in accordance with section 269ZHC, within 60 days for a continuation of those measures. (2) If the Minister makes a declaration under paragraph 269ZG(3)(b) in relation to an anti-dumping duty notice or countervailing duty notice, the original dumping duty notice or countervailing duty notice and that notice as modified because of that declaration are both to be treated, for the purposes of this Division and despite section 269TM, as if they had been issued at the time of issue of the original notice. (3) If no application for the continuation of the anti-dumping measures is received by the CEO within the period specified in the notice, then, on the specified expiry day: (a) to the extent that the measures comprise a dumping duty notice—that notice expires; and (b) to the extent that the measures comprise a countervailing duty notice—that notice expires; and (c) to the extent that the measures comprise the giving of an undertaking—the person who gave the undertaking is taken to be released from the undertaking and the investigation giving rise to the undertaking is terminated. #### 269ZHC Content and lodgment of application for continuation of anti-dumping measures (1) An application under section 269ZHB must: (a) be in writing; and (b) be in an approved form; and (c) contain such information as the form requires; and (d) be signed in the manner indicated in the form. (2) An application may be lodged with Customs: (a) by leaving it at a place allocated for lodgment of such applications at Customs House in Canberra; or (b) by posting it by prepaid post to a postal address specified in the approved form; or (c) by sending it by electronic facsimile to a facsimile number specified in the approved form; and the application is taken to have been lodged when the application, or a facsimile of the application, is first received by an officer of Customs doing duty in relation to applications for continuation of anti-dumping measures. (3) The day on which the application is taken to have been lodged must be recorded on the application. #### 269ZHD Consideration of applications for continuation of anti‑dumping measures (1) If an application or applications for continuation of anti-dumping measures are lodged with Customs in accordance with section 269ZHC, the CEO must, within 20 days after the end of the 60 days referred to in paragraph 269ZHB(1)(b): (a) examine each such application; and (b) if the CEO is not satisfied in relation to any of the applications, having regard to the application and to any other information that the CEO considers relevant, of one or more of the matters referred to in subsection (2); the CEO must reject each such application and inform the applicant, by notice in writing, accordingly. (2) For the purposes of subsection (1), the matters to be considered in relation to an application are: (a) whether the application complies with section 269ZHC; and (b) whether there appear to be reasonable grounds for asserting that the expiration of the anti‑dumping measures to which the application relates might lead, or might be likely to lead, to a continuation of, or a recurrence of, the material injury that the measures are intended to prevent. (3) A notice informing an applicant of the rejection of an application must set out the reasons why the CEO was not satisfied of one or more of the matters set out in subsection (2). (4) If the CEO decides not to reject an application for continuation of anti‑dumping measures taken in respect of goods as they affect a particular exporter of those goods, the CEO must publish a notice in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory indicating that it is proposed to inquire whether continuation of the measures is justified. (5) The notice published by the CEO must: (a) describe the kind of goods to which the anti-dumping measures apply; and (b) describe the measures to which the application relates; and (c) indicate that a report as to the continuation of these measures will be made to the Minister: (i) within 155 days after the date of publication of the notice; or (ii) if the period of 110 days referred to in paragraph (e) is extended by the Minister—within the period of 155 days as similarly so extended; and (d) invite interested parties to lodge with the CEO, within a specified period of not more than 40 days after the date of publication of the notice, submissions concerning the continuation of the measures; and (e) state that: (i) within 110 days after the publication of the notice; or (ii) such longer period as the Minister allows under section 296ZHI; the CEO will place on the public record a statement of the essential facts on which the CEO proposes to base a recommendation concerning the continuation of the measures; and (f) invite 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) indicate the address at which, or the manner in which, submissions under paragraph (d) or (f) can be lodged. #### 269ZHE Statement of essential facts in relation to continuation of anti-dumping measures (1) If the CEO publishes a notice under subsection 269ZHD(4) concerning the continuation of anti-dumping measures, he or she must, within the time limit specified for so doing in the notice, ensure that there is placed on the public record a statement of the facts (the statement of essential facts) on which the CEO proposes to base his or her recommendation to the Minister concerning the continuation of those measures. (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 relating generally to the inquiry that are received by Customs within 40 days after the publication of the notice under subsection 269ZHD(4); 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 submissions relating generally to the inquiry that are 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. #### 269ZHF Report on application for continuation of anti-dumping measures (1) The CEO must, after conducting an inquiry into the continuation of anti-dumping measures and before the end of the period referred to in paragraph 269ZHD(5)(c) as it applies to those measures, give the Minister a report recommending: (a) that the Minister take steps to secure the continuation of the anti-dumping measures the subject of the application; or (b) that the anti-dumping measures expire on the specified expiry date. (2) The CEO must not recommend that the Minister take steps to secure the continuation of the anti-dumping measures unless the CEO is satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti‑dumping measure is intended to prevent. (3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO’s report, the CEO: (a) must have regard to: (i) the application for continuation of the anti-dumping measures; and (ii) any submission relating generally to the continuation of the measures to which the CEO has had regard for the purpose of formulating the statement of essential facts in relation to the continuation of those measures; and (iii) that 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 matter that the CEO considers to be relevant to the inquiry. (4) The CEO is not obliged to have regard to any submission made in response to the statement of essential facts that is received 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. #### 269ZHG Powers of the Minister in relation to continuation of anti‑dumping measures (1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must, by notice published in accordance with subsection (2), declare whether or not the Minister has decided to take steps to secure the continuation of the anti-dumping measures concerned. (2) A notice under subsection (1) must be published: (a) before the expiry day specified in the notice; and (b) in the Gazette, and a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory. (3) If the Minister declares that he or she has decided not to secure the continuation of the anti-dumping measures, then, on the specified expiry day: (a) to the extent that the measures comprise a dumping duty notice—that notice expires; and (b) to the extent that the measures comprise a countervailing duty notice—that notice expires; or (c) to the extent that the measures comprise the giving of an undertaking—the person who gave the undertaking is taken to be released from the undertaking and the investigation giving rise to the undertaking is terminated; as the case requires. (4) If the Minister declares that he or she has decided to secure the continuation of the anti-dumping measures, the continuation of those measures is so secured: (a) to the extent that the measures comprise the publication of a dumping duty notice—by the Minister determining, in writing, that the notice continues in force after the specified expiry day; and (b) to the extent that the measures comprise the publication of a countervailing duty notice—by the Minister determining, in writing, that the notice continues in force after the specified expiry day; and (c) to the extent that the measures involve the acceptance of an undertaking—by the person who gave the undertaking agreeing to extend the undertaking beyond the specified expiry day or, if the person will not so agree, by the Minister publishing a dumping duty notice or a countervailing duty notice to take effect from the day after the specified expiry day in substitution for the undertaking. (5) If the Minister secures the continuation of anti-dumping measures in accordance with this section, the measures continue in force for 5 years after the specified expiry day unless: (a) in the case of a dumping duty notice or a countervailing duty notice—the notice is revoked before the end of that period; or (b) in the case of an undertaking—provision is made for its earlier expiration. 75 Before section 269ZI Insert in Division 7 of Part XVB: #### 269ZHH What this Division is about This Division: • enables extension of the period for placing statements of essential facts on the public record if the Minister is satisfied it is necessary; • provides for the giving of public notice of decisions and determinations under this Part; • provides for the CEO to maintain a public record of investigations, reviews and inquiries conducted by the CEO under this Part. #### 269ZHI Minister may extend time for statements of essential facts (1) If the CEO becomes satisfied within 110 days after: (a) the date of initiation of an investigation as specified in a notice published under section 269TC; or (b) the date of publication, under section 269ZC, of a notice of a review of anti-dumping measures; or (c) the date of publication, under section 269ZHD, of a notice of an inquiry into the continuation of anti-dumping measures; that that period is likely to be insufficient for the CEO to place on the public record a statement of essential facts in relation to that investigation, review or inquiry, the CEO may, before the end of that period, give the Minister a written request to extend the period. (2) If the CEO makes such a request, he or she must supply reasons why the period is likely to be insufficient. (3) The Minister may, having regard to the request and to the reasons: (a) if he or she is satisfied that it is reasonable to do so—determine the period by which the 110 days is to be extended and notify the CEO accordingly; and (b) if he or she is not so satisfied—inform the CEO that the statement must be prepared within the 110 days. 76 Subsection 269ZI(1) Omit “finding or decision”, substitute “decision or determination”. 77 Subsection 269ZI(1) Omit all the words after “is to be”, substitute: published: (a) in a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory; and (b) if it is a decision under Division 3—in the Gazette. 78 Subsection 269ZI(2) Omit “finding or decision” (wherever occurring), substitute “decision or determination”. 79 Subsection 269ZI(4) Omit “269TD(2)(c)”, substitute “269TD(4)(b)”. 80 Paragraph 269ZI(4)(e) Omit “preliminary finding”, substitute “preliminary affirmative determination”. 81 Subsections 269ZI(3) and (9) Omit “finding or decision” (wherever occurring), substitute “decision or determination”. 82 At the end of section 269ZI Add: (10) Nothing in this section limits the operation of another provision of this Part that specifies the matters that must be included in a public notice. 83 Subsection 269ZJ(1) Omit all the words before paragraph (a), substitute: (1) The CEO must, in relation to each application received under section 269TB that leads to an investigation, each application or request under section 269ZA that leads to a review and each application under section 269ZHB that leads to an inquiry: 84 Paragraph 269ZJ(1)(a) Omit “or review”, substitute “, review or inquiry”. 85 Paragraph 269ZJ(1)(a) Omit “and all relevant correspondence between the Comptroller”, substitute “, the statement of essential facts compiled in respect of that investigation, review or inquiry, and a copy of all relevant correspondence between the CEO”. 86 At the end of Part XVB Add: ### Division 8—Trade Measures Review Officer #### 269ZK What this Division is about This Division provides for the establishment of the office of Trade Measures Review Officer. As well as establishing the office, the Division: • sets out the terms and conditions of appointment to the office; • sets out the functions and powers of the Review Officer and related matters; • provides for the appointment of an acting Review Officer; • provides for the provision of resources to the Review Officer; • regulates disclosure of information in the control of the Review Officer. #### 269ZL Trade Measures Review Officer (1) There is to be a Trade Measures Review Officer, who is to be appointed by the Minister. (2) A person may be appointed as a Trade Measures Review Officer on a full-time basis or on a part-time basis. (3) The Minister must not appoint an officer of Customs as the Trade Measures Review Officer. (4) A person must not be appointed as the Trade Measures Review Officer unless the Minister is satisfied that the person has appropriate qualifications, knowledge or experience. #### 269ZM Review Officer’s powers The Review Officer has the powers to do all things necessary or convenient to be done for or in connection with performance of the Review Officer’s functions under this Part in relation to the review of certain decisions made by the Minister or the CEO. > Note: Sections 269ZZA and 269ZZN set out these reviewable decisions. #### 269ZN Protection of Review Officer The Review Officer has, in the performance of his or her duties as the Review Officer, the same protection and immunity as a Justice of the High Court. #### 269ZO Terms and conditions of appointment (1) Subject to this section, the Review Officer holds office for a period not exceeding 3 years as is specified in the instrument of appointment. (2) The Review Officer is eligible for re-appointment. (3) The Review Officer holds office on such terms and conditions as are determined in writing by the Minister. #### 269ZOA Disclosure of interests The Review Officer must give written notice to the Minister of all direct and indirect pecuniary interests that the Review Officer has or acquires in: (a) any business in Australia or elsewhere; or (b) any body corporate carrying on such a business. #### 269ZP Outside employment The Review Officer must not, except with the Minister’s approval: (a) if appointed on a full-time basis—engage in paid employment outside the duties of the office of Review Officer; or (b) if appointed on a part-time basis—engage in paid employment that, in the Minister’s opinion, conflicts with the proper performance of the Review Officer’s functions. #### 269ZQ Resignation The Review Officer may resign by giving the Minister a signed notice of resignation. #### 269ZR Termination of appointment (1) The Minister may terminate the appointment of the Review Officer: (a) if the Review Officer, being appointed on a full-time basis, is absent from duty (except on leave of absence) for 14 consecutive days or for 28 days in any period of 12 months; or (b) because of: (i) misbehaviour of the Review Officer; or (ii) a disability of the Review Officer which renders him or her incapable of performing the functions of the office of Review Officer. (2) The Minister must terminate the appointment of the Review Officer if the Review Officer: (a) becomes bankrupt, applies to take the benefit of any laws for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (b) being appointed on a full-time basis, engages in any paid employment outside the duties of the office of Review Officer; or (c) being appointed on a part-time basis, engages in any paid employment that, in the Minister’s opinion, conflicts with the proper performance of the Review Officer’s functions. #### 269ZS Acting Review Officer (1) The Minister may appoint a person to act as Review Officer: (a) during a vacancy in the office of Review Officer (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Review Officer is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of Review Officer. (2) A person appointed to act as the Review Officer during a vacancy under paragraph (1)(a) must not be appointed for a term that is more than 6 months, but the person is eligible for re-appointment. (3) Anything done by or in relation to a person purporting to act under this section is not invalid because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased. #### 269ZT Provision of resources to Review Officer (1) The Minister must arrange with the Review Officer for sufficient resources (including personnel) to be made available to the Review Officer to enable the Review Officer to perform the Review Officer’s functions effectively. (2) If a person is performing services for the Review Officer under such an arrangement, the person must perform those services in accordance with the directions of the Review Officer. #### 269ZU Review Officer may supply information (1) Subject to this section, the Review Officer may supply information (including personal information) received by the Review Officer under this Act to a person. (2) The Review Officer or a person whose services are being made available to the Review Officer under section 269ZT 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 CEO, or an officer of Customs designated in writing by the CEO, 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 CEO; or (c) the Secretary to the Department; or (d) an officer of Customs designated in writing by the CEO; or (e) a person who is employed in the Department and who is designated in writing by the Secretary to the Department. #### 269ZV False or misleading information (1) A person must not give the Review Officer 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 Officer, the person: (a) informs the Review Officer 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 Officer #### Subdivision A—Preliminary #### 269ZW What this Division is about This Division sets out the procedures for review by the Review Officer of certain decisions by the Minister or the CEO. It includes: • provisions dealing with definitions and other preliminary matters (Subdivision A); • the mechanism for review of certain Ministerial decisions (Subdivision B); • the mechanism for review of certain decisions made by the CEO (Subdivision C); • the keeping of a public record in relation to certain reviews conducted under this Division (Subdivision D). The right to seek review by the Review Officer of Ministerial decisions is conferred only in respect of original Ministerial decisions and not in respect of subsequent Ministerial decisions arising out of reviews of original decisions under Subdivision B or Division 5 or 6. #### 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 CEO referred to in section 269ZZN. > approved form means an approved form within the meaning of section 269ZXA. > 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 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 CEO referred to in section 269ZZN. #### 269ZXA Approved form (1) In this Division, a reference to an approved form is a reference to a form that is approved, by instrument in writing, by the Review Officer. (2) The instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. #### 269ZY Lodgment of application For the purposes of this Division, an application for a review under Subdivision B or C is lodged with the Review Officer if: (a) it is left at a place designated by the Review Officer for the purposes of this paragraph; or (b) it is posted by prepaid post to a postal address specified by the Review Officer in the approved form for the application; or (c) it is sent by electronic facsimile to a facsimile number specified by the Review Officer in the approved form for the application. #### 269ZZ Review Officer to have regard to same considerations as Minister (1) If the Review Officer 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 Officer must determine the matter: (a) in like manner as if he or she 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 Officer’s determination in a matter in respect of those goods as if: (a) the Review Officer’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 Officer 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. (2) A reference to a decision by the Minister in paragraph (1)(a) or (b) does not include a reference to such a decision made by the Minister following a review under Division 5 or 6 or this Subdivision. > Note: The Review Officer 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 Officer may not revoke the Minister’s decision or substitute another decision. #### 269ZZB Overview of a review of a ministerial decision The following diagram outlines and summarises the basic procedures in relation to a review under this Subdivision.  #### 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 public notice of the reviewable decision was first published in a newspaper under section 269ZI. #### 269ZZE How must an application be made? (1) An application must: (a) be in writing; and (b) be in an approved form; and (c) contain such information as the form requires; and (d) be signed in the manner indicated in the form. (2) Without limiting paragraph (1)(c), an application must: (a) contain a full description of the goods to which the application relates; and (b) particularise the ground or grounds that, in the applicant’s view, would warrant the reinvestigation of a finding or findings that formed the basis of the reviewable decision; and (c) specify the finding or findings. > 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. (3) An application is made when it is received by the Review Officer after it has been lodged with the Review Officer in accordance with section 269ZY. #### 269ZZF Applicant’s obligations An applicant seeking a review under this Subdivision must establish, to the satisfaction of the Review Officer, that, on the basis of the particulars contained in the application, there are reasonable grounds to warrant the reinvestigation of the finding or findings specified in the application. #### 269ZZG Rejection of application—failure to provide sufficient particulars (1) The Review Officer must reject an application if the Review Officer is satisfied that the applicant fails to provide sufficient particulars in relation to the application, including particulars concerning the finding or findings to which the application relates, within the 30 day period referred to in section 269ZZD. (2) Nothing in subsection (1) prevents the Review Officer from seeking further particulars from an applicant within that period. (3) A reference in subsection (1) to sufficient particulars in relation to an application includes a reference to: (a) the matters required to be included in the approved form for the application referred to in paragraph 269ZZE(1)(c); and (b) particulars concerning the application that are sought by the Review Officer from the applicant. #### 269ZZH Rejection of application—failure to provide summary of confidential information The Review Officer 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 Officer in accordance with section 269ZZY. #### 269ZZI Public notification of review (1) Before the Review Officer begins to conduct a review, the Review Officer must publish a notice in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory, indicating that the Review Officer 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 ground for seeking the review (including the particular finding or findings the reinvestigation of which is sought by the applicant); and (c) invite interested parties to lodge with the Review Officer, within 30 days starting from the date of publication of the public notice, submissions concerning the application; and (d) indicate the address at which, or the manner in which, such submissions can be lodged. #### 269ZZJ Submissions by interested parties Interested parties in relation to a reviewable decision may, within 30 days after the publication of the notice under section 269ZZI in relation to a review of that decision, make submissions to the Review Officer in accordance with that notice. > Note: Sections 269ZZX and 269ZZY set out requirements concerning confidential or sensitive commercial information that might be contained in a submission, including the need to accompany the submission with a summary of such information. #### 269ZZK The review (1) If an application is not rejected under section 269ZZG or 269ZZH, the Review Officer must make a report to the Minister on the application by: (a) recommending that the Minister affirm the reviewable decision; or (b) recommending that the Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision, being the finding or any of the findings specified in the application. (2) In a report under subsection (1), the Review Officer must: (a) if the Review Officer is of the view that the finding or findings specified in the application should be affirmed—recommend that the Minister affirm the reviewable decision; and (b) if the Review Officer recommends that a finding or findings be reinvestigated—set out the finding or findings; and (c) set out the reasons for the Review Officer’s recommendations. (3) The report must be made: (a) at least 30 days after the public notification of the review under section 269ZZI; but (b) not more than 60 days after that notification, or such longer period allowed by the Minister in writing because of special circumstances. (4) In making the recommendation, the Review Officer: (a) must not have regard to any information other than the relevant information; and (b) subject to subsection (5), must only have regard to the relevant information and any conclusions based on the relevant information that are contained in the application for the review or in any submissions received from interested parties within 30 days as mentioned in section 269ZZJ. (5) The Review Officer must not have regard to a submission under subsection (4) if: (a) the person giving the submission 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 person fails to give a summary of that information to the Review Officer in accordance with section 269ZZY. (6) In this section: > relevant information means: (a) if the reviewable decision was made pursuant to an application under section 269TB—the information to which the CEO had had regard or was, under paragraph 269TEA(3)(a), required to have regard, when making the findings set out in the report under section 269TEA to the Minister in relation to the making of the reviewable decision; and (b) if the reviewable decision was made pursuant to an investigation initiated by the Minister as mentioned in section 269TAG—the information: (i) that was collected for the purposes of that investigation in accordance with the Minister’s requirements; and (ii) that was before the Minister when the Minister made the reviewable decision. #### 269ZZL What happens after the Minister receives a recommendation? (1) If: (a) the Minister receives a recommendation by the Review Officer to affirm a reviewable decision; or (b) the Minister does not accept a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision; the Minister must, by public notice, affirm the reviewable decision. (2) If the Minister accepts a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, the Minister must: (a) in writing, require the CEO to: (i) make further investigation of the finding or findings; and (ii) report the result of the further investigation to the Minister within a specified period; and (b) by public notice indicate the acceptance of that recommendation (including particulars of the requirements made of the CEO). (3) The CEO must conduct an investigation in accordance with the Minister’s requirements under subsection (2) and give the Minister a report of the investigation concerning the finding or findings within the specified period. (4) In a report under subsection (3), the CEO must: (a) if the Review Officer is of the view that the finding or any of the findings the subject of reinvestigation should be affirmed—affirm the finding or findings; and (b) set out any new finding or findings that the CEO made as a result of the reinvestigation; and (c) set out the evidence or other material on which the new finding or findings are based; and (d) set out the reasons for the CEO’s decision. #### 269ZZM What happens after a reinvestigation? (1) After receiving a report by the CEO in respect of a reinvestigation under subsection 269ZZL(3), the Minister must: (a) affirm the reviewable decision concerned; or (b) revoke that decision and substitute a new decision. (2) The Minister’s decision under subsection (1) takes effect from the time specified by the Minister. (3) Without limiting subsection (1), the Minister may, under that subsection: (a) publish a dumping duty notice or countervailing duty notice; or (b) vary a dumping duty notice or countervailing duty notice; or (c) revoke a dumping duty notice or countervailing duty notice and substitute another dumping duty notice or countervailing duty notice (as the case requires). (4) The Minister must give public notice of his or her decision. (5) In spite of section 269TM, any new dumping duty notice or countervailing duty notice published in the exercise of a power conferred on the Minister under subsection (3) or any such notice as varied or substituted in the exercise of that power, expires: (a) in the case of a notice published after a reinvestigation of a decision not to publish such a notice—5 years after the publication of the decision not to publish such a notice; or (b) in the case of a varied or substituted notice—5 years after the publication of the original notice. > Note: Example: If the reviewable decision relates to a dumping duty notice that was published on 1 July 1998, and if the Minister, following a review under this Division, revokes that notice and substitutes a new dumping duty notice on 1 January 1999, the substituted notice will expire on 1 July 2003. (6) If: (a) the Minister makes a decision under subsection (1) to revoke or vary a dumping duty notice or countervailing duty notice (the original notice), or to revoke the original notice and substitute another notice, with effect from a date before the Minister’s decision; and (b) an amount of interim duty has been paid on goods the subject of the original notice in excess of the amount of interim duty that would have been payable on those goods as a result of the Minister’s decision; the person who paid the interim duty may apply for a refund of the excess under Division 3 of Part VIII. #### Subdivision C—Review of CEO’s decisions #### 269ZZN Reviewable decisions This Subdivision deals with the review of the following decisions: (a) a decision by the CEO under subsection 269TC(1) or (2) to reject an application under subsection 269TB(1) or (2), as the case requires (a negative prima facie decision); (b) a decision by the CEO to terminate an investigation under subsection 269TDA(1), (2), (3), (7), (13) or (14) (a termination decision); (c) a decision by the CEO to make recommendations to the Minister under paragraph 269X(6)(b) or (c) (a negative preliminary decision). #### 269ZZO Who may seek a review The following table sets out who may make an application for a review under this Subdivision. ```html <table cellspacing="0" cellpadding="0" style="margin-left:56.7pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:286.85pt; border-top:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table" style="page-break-after:avoid"><span style="font-weight:bold">Persons who may apply for review</span></p></td></tr><tr><td style="width:31.75pt; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table" style="page-break-after:avoid"><span style="font-weight:bold">Item</span></p></td><td style="width:116.75pt; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table" style="page-break-after:avoid"><span style="font-weight:bold">Reviewable decision</span></p></td><td style="width:116.75pt; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table" style="page-break-after:avoid"><span style="font-weight:bold">Applicant</span></p></td></tr></thead><tbody><tr><td style="width:31.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>1</span></p></td><td style="width:116.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>A negative prima facie decision under subsection 269TC(1) rejecting an application made under subsection 269TB(1)</span></p></td><td style="width:116.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>The person who made the application under subsection 269TB(1)</span></p></td></tr><tr><td style="width:31.75pt; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>2</span></p></td><td style="width:116.75pt; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>A negative prima facie decision under subsection 269TC(2) rejecting an application under subsection 269TB(2)</span></p></td><td style="width:116.75pt; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>The person who made the application under subsection 269TB(2)</span></p></td></tr><tr><td style="width:31.75pt; border-top:0.75pt dotted #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>3</span></p></td><td style="width:116.75pt; border-top:0.75pt dotted #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>A termination decision under subsection 269TDA(1), (2), (3), (7), (13) or (14)</span></p></td><td style="width:116.75pt; border-top:0.75pt dotted #000000; border-bottom:0.75pt dotted #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>The person who made the application referred to in paragraph (a) of subsection 269TDA(1), (2), (3), (7), (13) or (14) (as the case may be)</span></p></td></tr><tr><td style="width:31.75pt; border-top:0.75pt dotted #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>4</span></p></td><td style="width:116.75pt; border-top:0.75pt dotted #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>A negative preliminary decision under paragraph 269X(6)(b) or (c)</span></p></td><td style="width:116.75pt; border-top:0.75pt dotted #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Table"><span>The person who made the application for an assessment of duty under section 269V that relates to the decision</span></p></td></tr></tbody></table> ``` #### 269ZZP When must an application be made? An application for a review must be made within 30 days after the applicant was notified of the reviewable decision concerned by the CEO. #### 269ZZQ How must an application be made? (1) An application must: (a) be in writing; and (b) be in an approved form; and (c) contain such information as the form requires; and (d) be signed in the manner indicated in the form. > Note: Sections 269ZZX and 269ZZY set out requirements concerning confidential or sensitive commercial information that might be contained in an application for a review of a termination decision, including the need to accompany the application with a summary of such information. (2) An application is made when it is received by the Review Officer after it has been lodged with the Review Officer in accordance with section 269ZY. > Note: Section 269ZY sets out the manner by which an application may be lodged with the Review Officer. #### 269ZZR Rejection of application for review of termination decision The Review Officer must reject an application for a review of a termination decision 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 Officer in accordance with section 269ZZY. #### 269ZZS The review of a negative prima facie decision (1) The Review Officer must make a decision on an application for the review of a negative prima facie decision by: (a) affirming the reviewable decision; or (b) revoking the reviewable decision and substituting a new decision accepting the application under subsection 269TB(1) or (2) (as the case requires). (2) As soon as practicable after a new decision is substituted under subsection (1), the CEO must publish a notice under subsection 269TC(4) in respect of the application referred to in paragraph (1)(b). (3) In making a decision under this section, the Review Officer must have regard only to information that was before the CEO when the CEO made the reviewable decision. (4) The Review Officer’s decision must be made within 60 days after the receipt of the application for the review or such longer period allowed by the Minister in writing because of special circumstances. #### 269ZZT The review of a termination decision (1) If an application for the review of a termination decision is not rejected under section 269ZZR, the Review Officer must make a decision on the application by: (a) affirming the reviewable decision; or (b) revoking the reviewable decision. (2) As soon as practicable after the Review Officer has revoked a reviewable decision under subsection (1), the CEO must publish a statement of essential facts under section 269TDAA in relation to the application for a dumping duty notice or countervailing duty notice that is related to the review. (3) Following the publication of the statement of essential facts under subsection (2), the investigation of the application concerned resumes under this Part. (4) In making a decision under this section, the Review Officer must have regard only to information that was before the CEO when the CEO made the reviewable decision. (5) The Review Officer’s decision must be made within 60 days after the receipt of the application for the review or such longer period allowed by the Minister in writing because of special circumstances. (6) The Review Officer must publish his or her decision under this section in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory. #### 269ZZU The review of a negative preliminary decision (1) The Review Officer must make a decision on an application for the review of a negative preliminary decision by: (a) affirming the reviewable decision; or (b) revoking the reviewable decision and substituting a new decision under subsection 269X(6). (2) If the Review Officer revokes a reviewable decision and substitutes a new decision under subsection 269X(6), the Review Officer must, within 7 days after making the new decision, recommend that the Minister give effect to that decision. (3) In making a decision under this section, the Review Officer must have regard only to information of the kinds referred to in subsection 269X(5) that was before the CEO when the CEO made the reviewable decision. (4) The Review Officer’s decision must be made within 60 days after the receipt of the application for the review or such longer period allowed by the Minister in writing because of special circumstances. #### 269ZZV Effect of the Review Officer’s decision The Review Officer’s decision on a review: (a) has effect as if it were a decision made by the CEO; and (b) takes effect from the time the Review Officer makes the decision. #### Subdivision D—Public record in relation to reviews #### 269ZZW Application This Subdivision applies only to: (a) an application for a review of a reviewable decision under Subdivision B; and (b) an application for a review of a termination decision under Subdivision C. #### 269ZZX Public record maintained by Review Officer (1) The Review Officer must, in relation to each application for a review: (a) maintain a public record containing: (i) a copy of the application; and (ii) if the Review Officer seeks further information from the applicant—any such information given to the Review Officer by the applicant; and (iii) if the application is an application for a review under Subdivision B—any submissions from interested parties concerning the application that were received by the Review Officer under section 269ZZI; and (b) at the request of an interested party in respect of the reviewable decision concerned, make that record available to that party for inspection. (2) The public record must not contain any information in respect of which a summary is given to the Review Officer under subsection 269ZZY(1). #### 269ZZY Confidential and sensitive commercial information (1) To the extent that information provided to the Review Officer by a person is claimed by the person to be: (a) confidential; or (b) information whose publication would adversely affect a person’s business or commercial interest; the person giving that information must, at the time the information is given to the Review Officer, also give a summary of that information to the Review Officer for inclusion in the public record maintained under section 269ZZX. (2) The summary must: (a) contain sufficient detail to allow a reasonable understanding of the substance of the information; but (b) does not breach the confidentiality or adversely affect the interests concerned. > Note: For the consequences of failing to comply with subsection (1), see sections 269ZZG and 269ZZQ and subsection 269ZZJ(5). Schedule 2—Minor or consequential amendments of the Customs Act 1901 1 Paragraphs 269F(4)(b) and (c), 269SB(3)(b) and (c), 269TB(5)(b) and (c), 269W(2)(b) and (c) and 269ZF(2)(b) and (c) Omit “by Customs” (wherever occurring). 2 Subsection 269T(1) (paragraph (b) of the definition of subsidy) Omit “Agreement or”, substitute “Agreement on”. 3 Paragraph 269TAC(14)(a) Omit “or a countervailing duty notice”. 4 Subsection 269TDA(9) Omit “has, or may be, been received”, substitute “has been, or may be, received”. 5 Subparagraph 269TDA(10)(d)(ii) After “has been”, insert “, or may be”. 6 Paragraph 269TJ(3A)(b) Omit “a exporter”, substitute “an exporter”. 7 Subsections 269TK(3) Omit “subsidy, bounty, reduction or remission of freight or other financial assistance” (wherever occurring), substitute “countervailable subsidy”. 8 Amendment of several provisions to remove references to “Comptroller” The provisions set out below are amended by omitting “Comptroller” (wherever occurring) and substituting “CEO”: | Subsection 269TAF(7) | | ------------------------------------------- | | Section 269TB | | Subsections 269TC(6) and (7) | | Section 269TDA | | Subsection 269X(3) | | Section 269ZE | | Section 269ZG | | Paragraph 269ZH(b) | | Subsection 269ZI(4) | | Subsections 269ZJ(2), (3), (4), (5) and (6) | Note 1: The headings to subsections 269TDA(1), 269TDA(2), 269TDA(3), 269TDA(7), 269TDA(3), 269TDA(14) and 269TDA(15) are altered by omitting “Comptroller” and substituting “CEO”. Note 2: The heading to section 269ZJ is altered by omitting “Comptroller” and substituting “CEO”. 9 Amendment of several provisions to remove references to “Anti-Dumping Act” The provisions set out below are amended by omitting “Anti-Dumping Act” (wherever occurring) and substituting “Dumping Duty Act”: | Subsection 269T(1) (definition of countervailing duty) | | -------------------------------------------------------------- | | Subsection 269T(1) (definition of dumping duty) | | Subsection 269T(1) (definition of interim countervailing duty) | | Subsection 269T(1) (definition of interim dumping duty) | | Subsection 269T(4D) | | Subsection 269TAAA(1) | | Subsections 269TAJ(6) and (7) | | Subsections 269TG(1), (2) and (3) | | Subsections 269TH(1), (2) and (3) | | Subsections 269TJ(1), (2) and (11) | | Subsections 269TK(1), (2) and (5) | | Subsection 269TL(1) | | Subsections 269TN(2), (3), (5), (6), (7) and (8) | | Subsections 269V(1) and (2) | | Subsection 269W(1) | | Subsections 269X(5) and (6) | | Subsections 269Y(1) and (4) | | Subsection 269ZG(3) | Note: The heading to section 269TB is altered by omitting “Anti-Dumping Act” and substituting “Dumping Duty Act”. Schedule 3—Amendment and subsequent repeal of the Anti-Dumping Authority Act 1988 1 Subsection 3(1) (definition of Anti-Dumping Act) Repeal the definition. 2 Subsection 3(1) Insert: > Dumping Duty Act means the Customs Tariff (Anti-Dumping) Act 1975. 3 Subsection 3(1) Insert: > transfer day means the day on which the items in Schedule 1 to the Customs Legislation (Anti-dumping Amendments) Act 1998 (other than item 39) commence. 4 After paragraph 7(4)(a) Insert: (aa) be made before the transfer day; and 5 Subsection 8A(1) After “the Authority must”, insert “, subject to subsections (1A) and (1B),”. 6 After subsection 8A(1A) Insert: (1B) Subsection (1) does not apply in relation to an anti-dumping measure due to expire more than 8 months after the transfer day. 7 Paragraph 8B(1)(c) After “applicant”, insert “, before the transfer day,”. 8 Subsection 9(1) After “delivered to the Authority”, insert “before the transfer day”. 9 At the end of section 9 Add: (3) For the purposes of subsection (2), the Authority must not: (a) commence to consider an anti-dumping matter on or after the transfer day; and (b) report to the Minister later than 120 days after commencing its consideration of that matter. 10 Amendment of several provisions to remove references to “Anti-Dumping Act” The provisions set out below are amended by omitting “Anti-Dumping Act” (wherever occurring) and substituting “Dumping Duty Act”: | Subsection 3(1) (definition of anti-dumping matter) | | --------------------------------------------------- | | Subsection 3A(1) | | Subsections 7(1), (3), (4) and (4A) | | Section 10 | | Subsection 11(3) | 11 The whole of the Act Repeal the Act. Schedule 4—Application, transitional and saving provisions 1 Definitions for the purposes of application, transitional and saving provisions generally In this Schedule: > ADA Act means the Anti-Dumping Authority Act 1988. > affected party has the same meaning as in Part XVB of the Customs Act. > Authority means the Anti-Dumping Authority established by section 4 of the ADA Act. > CEO has the same meaning as in the Customs Act. > Customs Act means the Customs Act 1901. > Dumping Duty Act means the Customs Tariff (Anti-Dumping) Act 1975. > importer has the same meaning as in Part XVB of the Customs Act. > interim duty has the same meaning as in Part XVB of the Customs Act. > negative preliminary decision has the same meaning as in Part XVB of the Customs Act. > negative preliminary finding, in relation to goods the subject of an application under section 269TB of the Customs Act, means a preliminary finding, under that Act, to the effect that: (a) there are not sufficient grounds for publication of a dumping duty notice or a countervailing duty notice in respect of such goods; or (b) there will not be sufficient grounds for such publication after the importation into Australia of such goods. > positive preliminary finding, in relation to goods the subject of an application under section 269TB of the Customs Act, means a preliminary finding, under that Act, to the effect that: (a) there are sufficient grounds for publication of a dumping duty notice or a countervailing duty notice in respect of such goods; or (b) there will be sufficient grounds for such publication after the importation into Australia of such goods. > public record has the same meaning as in Part XVB of the Customs Act. > reviewable decision has the same meaning as in Division 9 of Part XVB of the Customs Act. > Review Officer has the same meaning as in Part XVB of the Customs Act. > transfer day means the day on which the items in Schedule 1 (other than item 39) commence. 2 Application provision (1) The Customs Act, as amended by this Act, applies in relation to: (a) all applications under section 269TB of that Act as so amended for publication of dumping duty notices or countervailing duty notices; and (b) all applications under Division 4 of Part XVB of the Customs Act as so amended for assessment of the duty payable under the Dumping Duty Act on goods on which an interim duty has been or is paid, whether that interim duty was paid before, or is paid on or after, the transfer day; and (c) all applications, under Division 5 of Part XVB of the Customs Act as so amended, for review of anti-dumping measures, whether those measures were imposed before, or are imposed on or after, the transfer day; and (d) all applications, under Division 6 of Part XVB of the Customs Act as so amended, for the accelerated review of dumping duty notices or countervailing duty notices, whether those notices were published before, or are published on or after, the transfer day; and (e) all applications, under Division 6A of Part XVB of the Customs Act as so amended, for continuation of anti‑dumping measures, whether those measures were imposed before, or are imposed on or after, the transfer day; and (f) all applications, under Division 9 of Part XVB of the Customs Act as so amended, for the review of reviewable decisions within the meaning of that Division made on or after the transfer day. (2) Nothing in subitem (1) implies that the Customs Act as amended by this Act does not apply in any additional circumstance where it is expressed to apply because of the operation of item 3, 4, 5, 6 or 7. 3 Transitional provisions—decisions concerning rejection of applications under section 269TB of the Customs Act (1) If, before the transfer day: (a) an application is made under section 269TB of the Customs Act as then in force; but (b) the CEO has neither made a decision to reject, nor made a decision not to reject, that application; then: (c) the application is to be treated, for all purposes, on and after that day, as if it were an application made under the Customs Act as amended by this Act; and (d) the ADA Act does not apply in respect of that application. (2) If, before the transfer day (a) an application is made under section 269TB of the Customs Act as then in force; and (b) the CEO decides to reject that application; and (c) the applicant refers the decision to the Authority for review; but (d) that review is not completed; then: (e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8 of the ADA Act; and (f) if the Authority confirms the decision—the application lapses; and (g) if the Authority revokes the decision—an investigation in respect of the application is to be initiated under the Customs Act as amended by this Act as if: (i) the Customs Act as so amended had been in force when the application was made; and (ii) the CEO had decided not to reject the application. (3) If, before the transfer day: (a) an application is made under section 269TB of the Customs Act as then in force; and (b) the CEO decides to reject that application; and (c) the applicant does not refer the decision to the Authority for review; then: (d) the application is to be dealt with, on and after that day, for all purposes (including working out time limits for a possible review of that decision by the Review Officer) as if the Customs Act as amended by this Act had been in force when the application was made; and (e) the ADA Act does not apply in respect of the application. 4 Transitional provisions—Customs investigations that have not resulted in a preliminary finding before transfer day (1) If: (a) an application is made under section 269TB of the Customs Act as in force before the transfer day; and (b) the CEO has initiated an investigation in respect of that application but has not, before that day, made a preliminary finding; and (c) not more than 100 days have passed since the initiation of the investigation; the investigation is to be treated, on and after that day, for all purposes, as if it had, at all times, been an investigation, under the Customs Act as amended by this Act, in respect of an application made under the Customs Act as so amended. (2) For the purposes of so treating the investigation, and without limiting the generality of subitem (1): (a) the time limits for the making of a preliminary affirmative determination, the placing of a statement of essential facts on the public record, and the making of a report in respect of the investigation to the Minister, under the Customs Act as amended by this Act, are to be worked out from the date of the actual initiation of the investigation under the Customs Act as in force before the transfer day; and (b) if a preliminary affirmative determination is so made, securities may be imposed in accordance with subsection 269TD(3) of the Customs Act as so amended. 5 Transitional provisions—Customs investigations terminated before transfer day (1) If: (a) an application is made under section 269TB of the Customs Act as in force before the transfer day; and (b) the CEO has initiated an investigation in respect of that application but decides, before that day, to terminate that investigation under section 269TDA of that Act as so in force; and (c) not more than 100 days have passed between the initiation of the investigation and the making of that decision; and (d) the applicant, before that day, refers the decision to the Authority for review under section 7A of the ADA Act but that review is not completed before that day; then: (e) the review is to continue to be dealt with by the Authority, on and after that day, under the ADA Act; and (f) if the Authority confirms the decision—the investigation lapses; and (g) if the Authority rejects the decision—the investigation is to be remitted to the CEO to be dealt with in accordance with subitem (2). (2) If an investigation is remitted to the CEO in the circumstances set out in subitem (1): (a) subject to paragraphs (b) and (c), the investigation is to be dealt with in the same manner as if it were an investigation in respect of an application made under section 269TB of the Customs Act as amended by this Act; and (b) if, when the investigation is remitted, more than 110 days have passed since the date of initiation of the investigation—the CEO must place the statement of essential facts relating to the investigation on the public record as soon as practicable after the investigation is remitted; and (c) the report on the investigation that is required to be made to the Minister is, in circumstances to which paragraph (b) applies, required to be so made within 45 days after the placing of the statement of essential facts on the public record. 6 Transitional provisions—positive preliminary finding made by CEO before transfer day (1) If, before the transfer day: (a) an application is made under section 269TB of the Customs Act as then in force; and (b) the CEO makes a positive preliminary finding in respect of the application; the CEO must, if he or she has not already done so; (c) give public notice of that finding; and (d) refer the question whether the publication of the notice sought in the application is justified to the Authority for determination under the ADA Act. (2) If public notice of the finding is given on or after the transfer day, it is required to be given in accordance with section 269ZI of the Customs Act as in force immediately before that day. (3) For the purposes of the operation of the ADA Act in respect of the referral of the question referred to in paragraph (1)(d), that referral is treated as having taken place under subsection 269TD(2) of the Customs Act as in force immediately before the transfer day, whether it took place before, or takes place on or after, that day. Note: The determination of a question referred to the Authority under subsection 7(1) of the ADA Act may involve the exercise of termination powers under section 7B of that Act or the acceptance of an undertaking under section 7C of that Act. 7 Transitional provisions—negative preliminary findings made by CEO before transfer day (1) If, before the transfer day: (a) an application is made under section 269TB of the Customs Act as then in force; and (b) the CEO makes a negative preliminary finding in respect of the application; and (c) the applicant refers the finding to the Authority for review; but (d) that review is not completed; then: (e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8 of the ADA Act; and (f) if the Authority confirms the finding—the investigation lapses; and (g) if the Authority rejects the finding—the investigation is, despite the terms of subsection 8(2) of the ADA Act, to be remitted to the CEO. (2) If, before the transfer day: (a) an application is made under section 269TB of the Customs Act as then in force; and (b) the CEO makes a negative preliminary finding in respect of the application; and (c) the applicant does not refer the finding to the Authority for review; but (d) the period for so referring the finding has not expired; then: (e) the applicant may refer the finding to the Authority as if the amendments of the Customs Act made by this Act had not been made; and (f) if the applicant does so, the review is to be dealt with by the Authority, under section 8 of the ADA Act; and (g) if the Authority confirms the finding—the investigation lapses; and (h) if the Authority rejects the finding—the investigation is, despite the terms of subsection 8(2) of the ADA Act, to be remitted to the CEO. (3) If an investigation is remitted to the CEO in the circumstances set out in subitem (1) or (2): (a) subject to paragraphs (b) and (c), the investigation is to be dealt with in the same manner as if it were an investigation of an application made under section 269TB of the Customs Act as amended by this Act; and (b) if, when the investigation is remitted, more than 110 days have passed since the date of initiation of the investigation—the CEO must place the statement of essential facts relating to the investigation on the public record as soon as practicable after the investigation is remitted; and (c) the report on the investigation that is required to be made to the Minister is, in circumstances to which paragraph (b) applies, required to be so made within 45 days after the placing of the statement of essential facts on the public record. 8 Transitional provisions—applications for assessment of duty (1) If, before the transfer day: (a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and (b) the CEO has not made a decision under subsection 269X(6) in relation to that application; then, for the purpose of the CEO’s dealing with that application on and after that day, Division 4 of the Customs Act as in force before that day continues to apply in relation to the CEO’s consideration of the application as if the amendments of the Customs Act made by items 63, 64, 65 and 66 of Schedule 1 to this Act had not been made. (2) If, before the transfer day: (a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and (b) the CEO has made a negative preliminary decision in relation to that application; and (c) the applicant refers the negative preliminary decision to the Authority for review; but (d) the review is not completed; then: (e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8B of the ADA Act; and (f) section 269Y of the Customs Act has effect, on and after that day, in relation to any recommendation received by the Minister from the Authority, as if the amendment of that section made by item 69 of Schedule 1 to this Act had not been made. (3) If, before the transfer day: (a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and (b) the CEO has made a negative preliminary decision in relation to that application; and (c) the applicant does not refer the decision to the Authority for review; but (d) the period for so referring the decision has not expired; then: (e) with effect from the transfer day, the applicant’s right to refer the decision to the Authority for review is terminated but the applicant may instead, within the time limit that would have applied for so referring the decision, apply instead to the Review Officer to review the decision; and (f) if the applicant does so, the review is to be dealt with by the Review Officer under Division 9 of the Customs Act as amended by this Act as if it were a review, sought in accordance with the requirements of that Division, of a decision made under the Customs Act as amended by this Act. 9 Saving provision—review of interim duty If, before the transfer day: (a) interim duty has been paid under the Dumping Duty Act on goods entered for home consumption under the Customs Act as in force before that day; and (b) the CEO has received an application from an affected party, or a notice from the Minister, under Division 5 of Part XVB of the Customs Act as so in force, requesting a review of the rate of interim duty imposed on those goods; that Division of the Customs Act as so in force continues to apply, on and after that day, in respect of that review as if the amendments of the Customs Act made by this Act had not been made.