Commonwealth Consolidated Acts

CUSTOMS ACT 1901 - SECT 269TAAC

             (1)  For the purposes of this Part, a subsidy is a countervailable subsidy if:

                     (a)  it is specific; and

                     (b)  it is not an excluded subsidy.

             (2)  Without limiting the generality of the circumstances in which a subsidy is specific, a subsidy is specific:

                     (a)  if, subject to subsection (3), access to the subsidy is explicitly limited to particular enterprises; or

                     (b)  if, subject to subsection (3), access is limited to particular enterprises carrying on business within a designated geographical region that is within the jurisdiction of the subsidising authority; or

                     (c)  if the subsidy is contingent, in fact or in law, and whether solely or as one of several conditions, on export performance; or

                     (d)  if the subsidy is contingent, whether solely or as one of several conditions, on the use of domestically produced or manufactured goods in preference to imported goods.

             (3)  Subject to subsection (4), a subsidy is not specific if access to the subsidy:

                     (a)  is established by objective criteria or conditions set out in primary or subordinate legislation or other official documents that are capable of verification; and

                     (b)  those criteria or conditions do not favour particular enterprises over others and are economic in nature; and

                     (c)  those criteria or conditions are strictly adhered to in the administration of the subsidy.

             (4)  Despite the fact that access to a subsidy is established by objective criteria, the Minister may, having regard to:

                     (a)  the fact that the subsidy program benefits a limited number of particular enterprises; or

                     (b)  the fact that the subsidy program predominantly benefits particular enterprises; or

                     (c)  the fact that particular enterprises have access to disproportionately large amounts of the subsidy; or

                     (d)  the manner in which a discretion to grant access to the subsidy has been exercised;

determine that the subsidy is specific.

             (5)  In making a determination under subsection (4), the Minister must take account of:

                     (a)  the extent of diversification of economic activities within the jurisdiction of the subsidising authority; and

                     (b)  the length of time during which the subsidy program has been in operation.

             (6)  A subsidy is an excluded subsidy if the Minister is satisfied that:

                     (a)  it is specific but described in paragraph (a), (b) or (c) of Article 8.2 of the Agreement on Subsidies and Countervailing Measures; or

                     (b)  it is a domestic support measure that meets the criteria or conditions set out in Annex 2 to the Agreement on Agriculture.