Commonwealth Consolidated Acts

CUSTOMS ACT 1901 - SECT 269TACC

             (1)  If:

                     (a)  a financial contribution referred to in paragraph (a) of the definition of subsidy in subsection 269T(1); or

                     (b)  income or price support referred to in paragraph (b) of that definition;

is received in respect of goods, the question whether that financial contribution or income or price support confers a benefit, and, if so, the amount of subsidy attributable to that benefit, are to be worked out according to this section.

             (2)  If a financial contribution in respect of goods is a direct financial payment received from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function, a benefit is taken to be conferred because of that payment.

             (3)  If:

                     (a)  there is no financial contribution of the kind referred to in subsection (2) received in respect of goods; but

                     (b)  a financial contribution of another kind, or income or price support, is received in respect of those goods from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function;

the question whether that financial contribution or income or price support confers a benefit is to be determined by the Minister.

             (4)  In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines:

                     (a)  the provision of equity capital from the government or body referred to in subsection (3) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned;

                     (b)  the making of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless the loan requires repayment of a lesser amount than would be required for a comparable commercial loan;

                     (c)  the guarantee of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless, without the guarantee, the enterprise receiving the loan would have to repay a greater amount;

                     (d)  the provision of goods or services by the government or body referred to in subsection (3) does not confer a benefit unless the goods or services are provided for less than adequate remuneration;

                     (e)  the purchase of goods by the government or body referred to in subsection (3) does not confer a benefit if the purchase is made for more than adequate remuneration.

             (5)  For the purposes of paragraphs (4)(d) and (e), the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased.

             (6)  If a benefit is conferred:

                     (a)  by a financial contribution in the form referred to in subsection (2)--the total amount of subsidy attributable to the benefit is an amount equal to the payment; or

                     (b)  by the making of a loan by the government or a body referred to in subsection (3)--the total amount of subsidy attributable to the benefit is an amount equal to the difference between the amount required to be repaid on that loan and the amount that would be required to be repaid on a comparable commercial loan; or

                     (c)  by the guarantee of a loan by the government or a body referred to in subsection (3)--the total amount of subsidy attributable to the benefit is an amount equal to the difference between the amount required to be repaid upon the loan so guaranteed and the amount that would be required to be repaid upon a commercial loan, without that guarantee, adjusted for any difference in fees; or

                     (d)  by any other financial contribution, or income or price support as referred to in subsection (3)--the total amount of subsidy attributable to the benefit is an amount determined by the Minister, in writing, in accordance with the regulations made for the purposes of this section.

             (7)  If the Minister is satisfied, in respect of a particular financial contribution or form of income or price support:

                     (a)  that subsections (2), (3), (4) and (5) are inappropriate for determining whether a benefit has been conferred; or

                     (b)  that, if a benefit has been conferred, subsection (6) is inappropriate for determining the total amount of subsidy attributable to the benefit;

the Minister may determine, in writing, that he or she is so satisfied and determine an alternative basis for deciding whether a benefit has been conferred or for working out the amount of subsidy attributable to the benefit.

             (8)  If the number of exporters from a particular country of export who provide information in relation to an application for a countervailing duty notice is so large that it is not practicable to work out whether a benefit has been conferred and the amount of subsidy received by them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters:

                     (a)  who constitute a statistically valid sample of those exporters; or

                     (b)  who are responsible for the largest volume of exportations to Australia that can reasonably be investigated;

decide whether a benefit is conferred and, if it is, the amount of subsidy attributable to that benefit for such selected exporters and for exporters who are not so selected.

             (9)  If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation's timely completion.

           (10)  After the total amount of the subsidy received in respect of goods has been worked out, the Minister must, if that subsidy is not quantified by reference to a unit of those goods determined by weight, volume or otherwise, work out how much of that amount is properly attributable to each such unit.