CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011

i Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Review of operation of Part XVB of Customs Act as

amended ............................................................................................. 2

Schedule 1--Amendment of the Customs Act 1901

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 1

A Bill for an Act to amend the Customs Act 1901 in

relation to anti-dumping duties, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Customs Amendment (Anti-Dumping)

Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in Column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Review of operation of Part XVB of Customs Act as amended

(1) The Minister must cause an independent review to be undertaken

of the first 2 years of the operation of Part XVB of the Customs Act

1901 as amended by this Act.

(2) The persons undertaking the review must give the Minister a

written report of the review within 6 months after the end of the

2-year period.

(3) The review must include an opportunity for interested parties and

members of the public to make written submissions on the

operation of Part XVB as amended by this Act.

(4) The Chief Executive Officer of Customs and officers of Customs

must, if requested to do so by the persons undertaking the review,

assist them in:

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 3

(a) conducting the review; and

(b) preparing the written report.

(5) The Minister must cause a copy of the report of the review to be

tabled in each House of the Parliament within 15 sitting days of

that House after he or she receives the report.

(6) In this section:

independent review means a review undertaken by at least 3

persons who:

(a) in the Minister's opinion possess appropriate qualifications to

undertake the review; and

(b) do not include any currently serving officers of Customs; and

knowledge in international trade and foreign affairs or

economics.

Schedule 1 Amendment of the Customs Act 1901

4 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

Schedule 1--Amendment of the Customs Act

1901

1 Subsection 269T(1) (after paragraph (c) of the definition of

affected party)

Insert:

(ca) a trade union organisation some of whose members are

directly concerned with the production or manufacture of like

goods;

2 Subsection 269T(1) (after paragraph (e) of the definition of

interested party)

Insert:

(ea) a trade union organisation some of whose members are

directly concerned with the production or manufacture of like

goods; and

3 At the end of section 269TACB

Add:

(11) If the Minister determines under this section that goods exported to

Australia have been dumped, there is a rebuttable presumption that

this dumping results in material injury to industry for the purposes

of section 269TAE.

4 Subsection 269TAE(2A)

Repeal the subsection, substitute:

(2A) If the Minister determines under section 269TACB or 269TAG

that goods exported to Australia have been dumped, there is a

rebuttable presumption that this dumping results in material injury

to industry for the purposes of this section.

5 Paragraph 269TAE(3)(h)

After "the number of persons employed,", insert "including the impact

on jobs,".

6 At the end of paragraph 269TAE(3)(m)

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 5

Add ", including impact on capital investment in the industry".

7 At the end of section 269TAG

Add:

(7) If the Minister determines under this section that goods exported to

Australia have been dumped, there is a rebuttable presumption that

this dumping results in material injury to industry for the purposes

of section 269TAE.

8 After subsection 269TB(1)

Insert:

(1A) An application under subsection (1) must:

(a) be in the form prescribed by the regulations and contain the

information required by the form; and

(b) require supporting data relating to no more than the last 90

days; and

prescribed by the regulations.

9 Subsection 269TB(6)

Repeal the subsection, substitute:

(6) An application under subsection (1) in relation to a consignment of

goods is taken to be supported by a sufficient part of the Australian

industry if the CEO is satisfied that:

(a) the contents of the application identify that persons

(including the applicant) who produce or manufacture like

goods in Australia and who support the application:

(i) account for more than 50% of the total production or

manufacture of like goods produced or manufactured by

that portion of the Australian industry that has expressed

either support for, or opposition to, the application; and

(ii) account for not less than 25% of the total production or

manufacture of like goods in Australia; or

(b) if supporting applications have been lodged in respect of the

application under paragraph 269TC(4)(baa)--the persons

lodging those supporting applications together with the

Schedule 1 Amendment of the Customs Act 1901

6 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

applicant account for not less than 25% of the total

production or manufacture of like goods in Australia.

10 After paragraph 269TC(4)(b)

Insert:

(baa) if the application was not made on behalf of persons (including the

applicant) who account for more than 25% of the total production

or manufacture of like goods in Australia--stating that other

persons who produce or manufacture like goods in Australia may,

in writing, lodge supporting applications with the CEO; and

11 After subsection 269TC(4)

Insert:

(4A) A supporting application under paragraph (4)(baa) must:

(a) be in the form prescribed by the regulations and contain the

information required by the form; and

(b) require supporting data relating to no more than the last 90

days; and

prescribed by the regulations.

(4B) If the CEO decides not to reject an application under subsection

269TB(1) or (2) in respect of goods, the CEO:

(a) must have regard to any new or updated information that is

provided to him or her by an interested party that reasonably

could not have been provided earlier; and

(b) must consult persons with expertise in the relevant Australian

industry and related Australian industries and must have

regard to any information and analysis provided by those

persons as a consequence of those consultations;

for the purposes of considering the application and making a

recommendation to the Minister.

12 After section 269TC

Insert:

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 7

269TCA Onus of proof if application not rejected

(1) If the CEO decides not to reject an application under subsection

269TB(1), the importer of the imported goods the subject of the

application bears the onus of proving that the imported goods have

not been:

(a) dumped into Australia; or

(b) subsidised for export into Australia.

(2) Any material lack of cooperation for the purposes of subsection (1)

by the importer of the imported goods the subject of the application

must give rise to the rebuttable presumption of dumping and/or

subsidised export into Australia by the importer.

13 Subsection 269TD(1)

Omit "60 days after".

14 At the end of paragraph 269TD(2)(a)

Add:

(iii) any potential impacts forecast by the CEO in relation to

the economic condition of the relevant Australian

industry and related Australian industries, including but

not limited to employment (including the multiplier

effect), capital investment and market operation; and

(iv) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under paragraph 269TC(4A)(b); and

15 At the end of paragraph 269TDAA(2)(a)

Add:

(iii) any potential impacts forecast by the CEO in relation to

the economic condition of the relevant Australian

industry and related Australian industries, including but

not limited to employment (including the multiplier

effect), capital investment and market operation; and

(iv) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under paragraph 269TC(4A)(b); and

Schedule 1 Amendment of the Customs Act 1901

8 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

16 After subsection 269TE(2)

Insert:

(2A) Subsection (2) does not preclude consideration by the CEO of:

(a) any new or updated information that is provided to him or her

by an interested party that reasonably could not have been

provided earlier; and

(b) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

paragraph 269TC(4A)(b).

17 At the end of paragraph 269TEA(3)(a)

Add:

(v) any new or updated information that is provided to him

or her by an interested party that reasonably could not

have been provided earlier; and

(vi) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under paragraph 269TC(4A)(b); and

18 After subsection 269TEB(4)

Insert:

(4A) If the CEO is considering the terms of an undertaking under

subsection (2) or the revised terms of an undertaking under

subsection (4), the CEO must have regard to:

(a) any new or updated information that is provided to him or her

by an interested party that reasonably could not have been

provided earlier; and

(b) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

paragraph 269TC(4A)(b);

for the purpose of that consideration.

19 Paragraphs 269TG(3A)(a) and (b)

Repeal the paragraphs, substitute:

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 9

(a) in accordance with subsection 269ZI(9) the Minister is not

required to include in the notice a statement of that value or

price; and

(b) that value or price must not be published in any other way.

20 Paragraphs 269TH(4)(a) and (b)

Repeal the paragraphs, substitute:

(a) in accordance with subsection 269ZI(9), the Minister is not

required to include in the notice a statement of that value or

price; and

(b) that value or price must not be published in any other way.

21 Paragraphs 269TJ(12)(c) and (d)

Repeal the paragraphs, substitute:

required to include a statement of that amount or that price in

the notice; and

(d) that amount or that price must not be published in any other

way.

22 Paragraphs 269TK(6)(c) and (d)

Repeal the paragraphs, substitute:

required to include a statement of that amount or that price in

the notice; but

(d) that amount or that price must not be published in any other

way.

23 Paragraph 269X(3)(a)

Repeal the paragraph, substitute:

(a) give the applicant a copy of the information that he or she

proposes to take into account, unless the person supplying the

information has claimed that the information is confidential

or that the provision of that information to any other person

would adversely affect the business or commercial interests

of the person supplying the information; or

(aa) if paragraph (a) applies--give the applicant a summary of

that information in a form that allows a reasonable

Schedule 1 Amendment of the Customs Act 1901

10 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

understanding of the information without breaching that

confidentiality or adversely affecting those interests; and

24 Before subsection 269ZC(1)

Insert:

(1A) 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, consult persons with

expertise in the relevant Australian industry and related Australian

industries.

25 Paragraph 269ZC(1)(b)

Repeal the paragraph, substitute:

(b) if the CEO is not satisfied in relation to the application,

having regard to:

(i) the application; and

(ii) any new or updated information that subsequently is

provided to him or her by an interested party that

reasonably could not have been provided earlier; and

(iii) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries during consultations under

subsection (1A); and

(iv) any other information that the CEO considers relevant;

of one or more of the matters referred to in subsection (2);

26 At the end of paragraph 269ZD(2)(a)

Add:

(iii) any new or updated information that is provided to the

CEO by an interested party that reasonably could not

have been provided earlier; and

(iv) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under subsection 269ZC(1A); and

27 After subsection 269ZHC(1)

Insert:

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 11

(1A) An application under subsection (1) must:

(a) be in the form prescribed by the regulations; and

(b) be accompanied by any other information or documents

prescribed by the regulations.

28 Before subsection 269ZHD(1)

Insert:

(1A) If an application for continuation of anti-dumping measures is

lodged with Customs in accordance with section 269ZHC, the

CEO must, within the 60 days referred to in paragraph

269ZHB(1)(b), consult persons with expertise in the relevant

Australian industry and related Australian industries.

29 Paragraph 269ZHD(1)(b)

Repeal the paragraph, substitute:

(b) if the CEO is not satisfied in relation to any of the

applications, having regard to:

(i) the application; and

(ii) any new or updated information that subsequently is

provided to him or her by an interested party that

reasonably could not have been provided earlier; and

(iii) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries during consultations under

subsection (1A); and

(iv) any other information that the CEO considers relevant;

of one or more of the matters referred to in subsection (2);

30 At the end of paragraph 269ZHE(2)(a)

Add:

(iii) any new or updated information that is provided to the

CEO by an interested party that reasonably could not

have been provided earlier; and

(iv) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under subsection 269ZHD(1A); and

Schedule 1 Amendment of the Customs Act 1901

12 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

31 At the end of paragraph 269ZHF(3)(a)

Add:

(v) any new or updated information that is provided to him

or her by an interested party that reasonably could not

have been provided earlier; and

(vi) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations

under subsection 269ZHD(1A); and

32 Section 269ZX (after paragraph (e) of the definition of

interested party)

Insert:

(ea) a trade union organisation some of whose members are

directly concerned with the production or manufacture of like

goods;

33 After subsection 269ZZ(1)

Insert:

(1A) Subsection (1) does not preclude consideration by the Review

Officer of:

(a) any new or updated information that is provided to him or her

by an interested party that reasonably could not have been

provided earlier; and

(b) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZEA or 269ZZQA.

34 After subsection 269ZZE(2)

Insert:

(2A) An applicant may, in an application for a review, provide new or

updated information to the Review Officer that reasonably could

not have been provided earlier.

35 After section 269ZZE

Insert:

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 13

269ZZEA Consultation with persons with expertise in the relevant

Australian industry and related Australian industries

In conducting a review under this Subdivision, the Review Officer

must consult persons with expertise in the relevant Australian

industry and related Australian industries and must have regard to

any information and analysis provided by those persons as a

consequence of those consultations.

36 After section 269ZZF

Insert:

269ZZFA Review Officer ministerial decision affirmative

determination

(1)

If:

(a) an applicant makes an application for a review of a

reviewable decision provided for in paragraph

269ZZA(1)(b); and

(b) the Review Officer is satisfied, under section 269ZZF, that

there are reasonable grounds to warrant the reinvestigation of

the finding or findings specified in the application;

the Review Officer may make a determination (a Review Officer

ministerial decision affirmative determination) to that effect.

(2) If the Review Officer makes a Review Officer ministerial decision

affirmative determination:

(a) the Review Officer 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 review, 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:

(i) the review continues under this Subdivision; and

(ii) if the Review Officer recommends under paragraph

269ZZK(1)(b) that a finding or findings be

reinvestigated--the reinvestigation continues under

Division 2 until the Minister makes a decision under

subsection 269ZZM(1).

Schedule 1 Amendment of the Customs Act 1901

14 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

37 Subsection 269ZZG(2)

After "particulars", insert ", including new or updated information that

reasonably could not have been provided earlier,".

38 Subsection 269ZZK(6) (at the end of the definition of

relevant information)

Add:

; and (iii) that is new or updated information provided by an

interested party that reasonably could not have been

provided earlier; and

information to which paragraph (a) or (b) relates that

reasonably could not have been provided earlier; and

(d) any information and analysis provided by persons with

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZEA.

39 Subparagraph 269ZZL(2)(a)(i)

Repeal the subparagraph, substitute:

(i) make further investigation of the finding or findings,

having regard to the information and conclusions to

which the Review Officer had regard and to any new or

updated information that subsequently is provided to the

CEO by an interested party that reasonably could not

have been provided earlier; and

40 After subsection 269ZZQ(1)

Insert:

(1A) An applicant may, in an application for a review, provide new or

updated information to the Review Officer that reasonably could

not have been provided earlier.

41 After section 269ZZQ

Insert:

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 15

269ZZQA Consultation with persons with expertise in the relevant

Australian industry and related Australian industries

In conducting a review under this Subdivision, the Review Officer

must consult persons with expertise in the relevant Australian

industry and related Australian industries and must have regard to

any information and analysis provided by those persons as a

consequence of those consultations.

42 Subsection 269ZZS(3)

Repeal the subsection, substitute:

(3) In making a decision under this section, the Review Officer may

have regard to:

(a) information that was before the CEO when the CEO made

the reviewable decision; and

(b) any new or updated information that subsequently is

provided to the Review Officer by an interested party that

reasonably could not have been provided earlier; and

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZQA.

43 Subsection 269ZZT(4)

Repeal the subsection, substitute:

(4) In making a decision under this section, the Review Officer may

have regard to:

(a) information that was before the CEO when the CEO made

the reviewable decision; and

(b) any new or updated information that subsequently is

provided to the Review Officer by an interested party that

reasonably could not have been provided earlier; and

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZQA.

44 Subsection 269ZZU(3)

Schedule 1 Amendment of the Customs Act 1901

16 Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011

Repeal the subsection, substitute:

(3) In making a decision under this section, the Review Officer may

have regard to:

(a) information of the kinds referred to in subsection 269X(5)

that was before the CEO when the CEO made the reviewable

decision; and

(b) any new or updated information that subsequently is

provided to the Review Officer by an interested party that

reasonably could not have been provided earlier; and

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZQA.

45 Subsection 269ZZUA(5)

Repeal the subsection, substitute:

(5) In making a decision under this section, the Review Officer may

have regard to:

(a) information that was before the CEO when the CEO made

the rejection decision; and

(b) any new or updated information that subsequently is

provided to the Review Officer by an interested party that

reasonably could not have been provided earlier; and

expertise in the relevant Australian industry and related

Australian industries as a consequence of consultations under

section 269ZZQA.

46 After section 269ZZUA

Insert:

269ZZUB Review Officer CEO decision affirmative determination

(1)

If:

(a) an applicant makes an application for a review of a negative

prima facie decision or a termination decision; and

(b) the Review Officer is considering the application under

section 269ZZS or 269ZZT, as the case requires;

Amendment of the Customs Act 1901 Schedule 1

Customs Amendment (Anti-Dumping) Bill 2011 No. , 2011 17

the Review Officer may make a determination (a Review Officer

CEO decision affirmative determination) to that effect.

(2) If the Review Officer makes a Review Officer CEO decision

affirmative determination:

(a) the Review Officer 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 review, 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:

(i) the review continues under this Subdivision; and

(ii) if the Review Officer makes a decision under paragraph

269ZZS(1)(b) or 269ZZT(1)(b),as the case may be--the

investigation continues under Division 2 until the

Minister makes a decision under Division 3.

47 At the end of subsection 273GA(1)

Add:

(t) a decision of the CEO, the Minister or the Review Officer for

the purposes of Part XVB.

Commonwealth of Australia Bills

CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011