1. This Act may be cited as the Customs Legislation (Anti-Dumping Amendments) Act 1992.

Commencement

2.(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

3. In this Part, “Principal Act” means the Customs Act 1901¹.

4. Section 269T of the Principal Act is amended:

(a) by omitting the definitions of “countervailing duty” and “anti-dumping duty” from subsection (1) and substituting the following definitions:

“ ‘countervailing duty’ means duty, other than interim countervailing duty:

(a) that is payable on goods under section 10 of the Anti-Dumping Act because of a declaration under subsection 269TJ(1) or (2) of this Act; or

(b) that is payable on goods under section 11 of the Anti-Dumping Act;

‘dumping duty’ means duty, other than interim dumping duty, that is payable on goods under section 8 or 9 of the Anti-Dumping Act;”;

(b) by inserting in subsection (1) the following definitions:

“ ‘affected party’, in relation to an application under section 269Z requesting that the Minister review the rate of interim duty imposed on particular goods, means:

‘importation period’, in relation to goods that have been the subject of a dumping duty notice or a countervailing duty notice means:

(i) the period of 6 months beginning on the day of publication of the prospective notice; and

(ii) each successive period of 6 months;

‘interim countervailing duty’ means duty imposed under subsection 10(3B) or 11(4) of the Anti-Dumping Act;

‘interim dumping duty’ means duty imposed under subsection 8(5) and, where applicable, paragraph 8(4)(b) of the Anti-Dumping Act or under subsection 9(5) and, where applicable, paragraph 9(4)(b) of that Act;

‘interim duty’ means interim dumping duty or interim countervailing duty;

‘negative preliminary decision’ means a decision of the kind referred to in paragraph 269X(6)(b) or (c);

‘positive preliminary decision’ means a decision of the kind referred to in paragraph 269X(6)(a);

‘prospective notice’ means a notice issued under subsection 269TG(2), 269TH(2), 269TJ(2) or 269TK(2);

‘retrospective notice’ means a notice issued under subsection 269TG(1), 269TH(1), 269TJ(1) or 269TK(1).”;

(c) by inserting after subsection (4C) the following subsections:

“(4D) In this Act, a reference to variable factors relevant to the determination of duty payable under the Anti-Dumping Act on particular goods the subject of a dumping duty notice or a countervailing duty notice is a reference:

(a) if the goods are the subject of a dumping duty notice—to the normal value and export price of the goods; and

(b) if the goods are the subject of a countervailing duty notice:

(i) to the amount of subsidy, bounty, reduction or remission of freight or other financial assistance paid or granted on the production, manufacture, carriage or export of the goods; and

(ii) to the export price of the goods.

“(4E) In this Act, a reference to variable factors relevant to the determination of interim duty payable on goods the subject of a dumping duty notice or a countervailing duty notice is a reference:

(i) to the amount of subsidy, bounty, reduction or remission of freight or other financial assistance paid or granted on the production, manufacture, carriage or export of the goods; and

(ii) to the non-injurious price of the goods;

as ascertained, or last ascertained, by the Minister for the purpose of the notice.”.

5. After section 269TAC the following section is inserted:

Non-injurious price

“269TACA. The non-injurious price of goods exported to Australia is the minimum price necessary:

6. Section 269TAD of the Principal Act is repealed.

7. Section 269TAH of the Principal Act is amended by inserting in subsection (3) “or interim duty” after “duty”.

8. Section 269TC of the Principal Act is amended:

9. Section 269TD of the Principal Act is amended by omitting from paragraph (2)(c) “any dumping duty or countervailing” and substituting “interim”.

10. Section 269TE of the Principal Act is amended by omitting from paragraph (1)(d) “subsection 8(5A), 8(5AA), 9(5A), 10(5A), 10(5AA) or 11(5A)” and substituting “subsection 8(5A), 8(5B), 9(5A), 10(3C), 10(3D) or 11(5)”.

11. Section 269TG of the Principal Act is amended:

(a) by omitting from subsection (3) all the words after paragraph (b) and substituting the following:

“the notice must, subject to subsection (3A), include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice:

(b) by inserting after subsection (3) the following subsection:

“(3A) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non-injurious price of goods to which a declaration under subsection (1) or (2) relates claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of that value or price would adversely affect the person’s business or commercial interests:

duty imposed on like goods to the goods to which the declaration relates.”.

12. Section 269TH of the Principal Act is amended:

(a) by omitting from subsection (3) all the words after paragraph (b) and substituting the following:

“the notice must, subject to subsection (4), include a statement of the respective amounts that the Minister ascertained at the time of publication of the notice:

(b) by adding at the end the following subsection:

“(4) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non-injurious price of goods to which a declaration under subsection (1) or (2) relates claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of that value or price would adversely affect the person’s business or commercial interests:

13. Section 269TJ of the Principal Act is amended by adding at the end the following subsections:

“(11) If a notice under subsection (1) or (2) declares particular goods to be goods to which section 10 of the Anti-Dumping Act applies, the notice must, subject to subsection (12), include a statement setting out:

(a) the amount of subsidy, bounty, reduction or remission of freight or other financial assistance that the Minister ascertained, at the time of publication of the notice, had been or would be paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of the goods to which the notice relates; and

(b) the amount that the Minister has ascertained, at that time, was or would be the non-injurious price of the goods.

“(12) If any person who has provided information to assist the Minister to ascertain:

claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of the amount of that subsidy, bounty, reduction or remission of freight or other financial assistance or of the amount of that non-injurious price would adversely affect the person’s business or commercial interests:

14. Section 269TK of the Principal Act is amended by adding at the end the following subsections:

“(5) Where a notice under subsection (1) or (2) declares particular goods to be goods to which section 11 of the Anti-Dumping Act applies, the notice must, subject to subsection (6), include a statement setting out:

“(6) If any person who has provided information to assist the Minister to ascertain:

(a) the amount of any subsidy, bounty, reduction or remission of freight or other financial assistance paid or granted upon the production, manufacture, carriage or export of goods to which a declaration under subsection (1) or (2) relates; or

(b) the non-injurious price of such goods;

claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of the amount of that subsidy, bounty, reduction or remission of freight or other financial assistance or of the amount of that non-injurious price would adversely affect the person’s business or commercial interests:

15. After Division 3 of Part XVB of the Principal Act the following Divisions are inserted:

“Division 4—Dumping duty or countervailing duty assessment

Importers may apply for duty assessment in certain circumstances

“269V.(1) An importer of goods on which, under the Anti-Dumping Act, an interim duty has been paid may, subject to subsection (2), by application lodged with the Comptroller, request that the Minister make an assessment of the liability of those goods to duty under that Act.

“(2) An application for an assessment of duty under subsection (1) may only be made if:

Manner of making application for duty assessment

“269W.(1) An application for an assessment of duty on goods of a particular kind entered for home consumption during a particular importation period must be in writing and contain:

(i) the amount of the subsidy, bounty, reduction or remission of freight or other financial assistance paid or granted on the goods of that kind in each such consignment; and

(ii) the amount of the export price of goods of that kind in each such consignment;

and information to establish those amounts; and

(e) a statement of the amount by which the applicant contends that the total interim duty paid on those goods exceeds the total duty payable under the Anti-Dumping Act.

“(2) An application must be lodged with the Comptroller:

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 final duty assessment applications.

“(3) The day on which an application is taken to have been lodged must be recorded on the application.

Consideration of duty assessment applications

“269X.(1) The Comptroller must, as soon as practicable after the lodgment of an application for assessment of duty in respect of goods that were entered for home consumption during a particular importation period but not more than 180 days after the lodgment of that application, examine the application and decide what recommendation to make to the Minister under subsection (6).

“(2) If the Comptroller considers that any person (including the applicant) may be able to supply information relevant to the consideration of the application, the Comptroller may, by notice in writing, request the supply of that information, in writing:

(a) if the information is sought from a person other than the applicant—within a period specified in the notice ending not later than 150 days after the lodgment of the application; and

(b) if the information is sought from the applicant—within a period specified in the notice ending not later than 180 days after the lodgment of the application.

“(3) Where the Comptroller proposes to take into account any relevant information that was not supplied to the Comptroller by the applicant, the Comptroller must:

“(4) If a person refuses or fails to supply information or to make a submission within the period allowed but subsequently supplies that information or makes that submission, the Comptroller may disregard that information or submission in considering the application.

“(5) On the basis of the information contained in the application, any other information provided under subsection (2) or (3) that is not disregarded under subsection (4) and any other information the Comptroller considers relevant, the Comptroller must:

“(6) On the basis of the provisional calculation of duty referred to in paragraph (5)(b), the Comptroller must decide:

(a) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Anti-Dumping Act by at least the amount contended in the application—to recommend to the Minister:

(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and

(ii) that the Minister order a repayment of the amount of interim duty overpaid; or

(b) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Anti-Dumping Act but not to the extent contended in the application—to recommend to the Minister:

(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and

(ii) that the Minister order a repayment of the amount of interim duty overpaid; or

(c) if satisfied that the total amount of duty payable under the Anti-Dumping Act on the goods the subject of the application is equal to or exceeds the total of interim duty that was paid on the goods—to recommend to the Minister:

(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; but

(ii) that the Minister order that any duty in excess of the interim duty paid on those goods be waived.

“(7) As soon as practicable, but not later than 7 days after making a decision under subsection (6), the Comptroller must:

(i) inform the applicant of the reasons why the Comptroller made the decision; and

(ii) inform the applicant of the applicant’s right, within 28 days of the day of notification of the decision, to refer the decision to the Authority for review.

“(8) The Comptroller must:

Duty assessments

“269Y.(1) As soon as practicable after receiving a recommendation from the Comptroller or from the Authority in relation to goods the subject of an application, the Minister must, having regard to the terms of that recommendation, by notice in writing:

(a) ascertain, for the purposes of this Act and the Anti-Dumping

Act, the variable factors relevant to the determination of duty payable under the Anti-Dumping Act in respect of each consignment; and

(b) order that the total interim duty overpaid in respect of all consignments to which the application relates be repaid or that the total unpaid duty in excess of the interim duty already paid be waived, as the case requires.

“(2) As soon as practicable after issuing a notice under subsection (1) the Minister must ensure that a copy of that notice is provided to the applicant.

“(3) If the Minister issues a notice under subsection (1) ordering that an amount of interim duty be repaid to an applicant the Commonwealth is liable to make a repayment to the applicant accordingly.

“(4) If:

then:

“Division 5—Review of interim duty

Circumstances in which review may be sought

“269Z.(1) If:

the affected party may, by application lodged with the Comptroller, request a review of the rate of interim duty.

“(2) If:

the Minister may, at any time, by notice in writing, request the Comptroller to review the rate of interim duty.

“(3) An application under subsection (1) must not be made earlier than 12 months after:

Application for review of interim duty by affected party

“269ZA.(1) An application under subsection 269Z(1) for review of interim duty must be in writing and contain:

“(2) An application may be lodged with Customs:

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 interim duty.

“(3) The day on which an application is taken to have been lodged must be recorded on the application.

Consideration of the application or request for review

“269ZB.(1) As soon as practicable after:

but not later than 25 days after the lodgment of the application or receipt of the request, the Comptroller must publish a notice in the Gazette and in a newspaper circulating in all States and internal Territories stating that it is proposed to review the rate of interim duty attaching to the goods the subject of the application or request.

“(2) The notice must invite interested parties to make submissions within a period of 40 days after the day of publication of the notice.

“(3) The Comptroller may disregard any submission received after the end of that period.

“(4) The Comptroller must, not later than 100 days after the day of publication of the notice, after considering the application for review any submissions made and any other material he or she considers relevant, give the Minister a report recommending:

and setting out the Comptroller’s reasons for so recommending.

Minister to consider recommendations

“269ZC.(1) After considering the recommendation of the Comptroller and the reasons for that recommendation, the Minister must, subject to subsection (2) by notice in writing published in the Gazette:

and where the Minister does so, he or she must notify the applicant accordingly.

“(2) If the applicant or any other person who has provided information for the purpose of a review under this Division claims, in writing, that the information is confidential or that the inclusion in a notice under subsection (1) of a particular variable factor relevant to the determination of interim duty would adversely affect the person’s business or commercial interests:

“(3) If the Minister publishes a declaration under paragraph (1)(a), this Act has effect, with effect from the day of publication of the declaration, as if each of the variable factors relevant to the determination of interim duty as so fixed under that paragraph had been ascertained for the purpose of the dumping duty notice or the countervailing duty notice.

Effect of review of interim duty on entitlement to seek duty assessment

“269ZD. If, as a result of the review of a rate of interim duty, that rate is altered with effect from a particular day, that does not affect in any way the entitlement of an importer to apply under section 269V for a final assessment of the duty payable on goods imported into Australia on or after that day.”.

16. The Principal Act is further amended as set out in the Schedule.

17. Despite the amendments of the Principal Act made by this Act, the provisions of the Principal Act as in force immediately before the day of commencement of the provisions referred to in subsection 2(3) of this Act continue to apply:

(a) in relation to dumping duty notices or countervailing duty notices:

(i) that are published by the Minister before that day; or

(ii) that are published by the Minister on or after that day but that apply to goods entered for home consumption before that day; and

(b) in relation to all securities taken, and duty imposed, as a result of, or of applications for, those notices;

as if those amendments had not been made.

18. In this Part, “Principal Act” means the Anti-Dumping Authority Act 1988².

19. After section 8A of the Principal Act the following section is inserted:

Review of negative preliminary decision under section 269X

“8B.(1) If:

the Authority must, after reviewing the decision and within 90 days after the decision is referred to it:

and must, by notice in writing, inform the applicant and the Comptroller accordingly.

“(2) In conducting a review, the Authority must only have regard to that information to which the Comptroller had regard in making the negative preliminary decision in respect of which the review is sought.

“(3) The Authority must, as soon as practicable but not later than 7 days after deciding whether to confirm the recommendation of the Comptroller or to revoke the recommendation and substitute another recommendation, recommend to the Minister that the Minister give effect to the recommendation as so confirmed or as so substituted.”.

20. Despite the amendments of the Principal Act made by this Act, the provisions of the Principal Act as in force immediately before the day of commencement of the provisions referred to in subsection 2(3) of this Act continue to apply in relation to dumping duty notices or countervailing duty notices:

as if those amendments had not been made.

SCHEDULE Section 16

CONSEQUENTIAL, MINOR AND TECHNICAL AMENDMENTS OF THE CUSTOMS ACT 1901

Subsection 9(4):

Omit “10(5) or 11(5)”, substitute “10(3B), 10(5) or 11(4)”.

Subsection 42(1B):

Insert “interim” before “duty that may be payable”.

Subsection 42(1C):

Insert “interim” before “duty that may be payable”.

Subsection 45(2):

Insert “interim” before “duty that may become payable”.

Subsection 45(3):

Insert “interim” before “duty that may be payable”.

Subsection 45(4):

Insert “interim” before “duty that may be payable”.

Paragraph 269TC(4)(d):

Omit “dumping duty or countervailing”, insert “interim”.

Subparagraph 269TG(1)(b)(ii):

Insert “interim” before “duty that may become payable”.

Subparagraph 269TH(1)(b)(ii):

Insert “interim” before “duty that may become payable”.

Subparagraph 269TJ(1)(b)(ii):

Insert “interim” before “duty that may become payable”.

Subparagraph 269TK(1)(b)(ii):

Insert “interim” before “duty that may become payable”.

Subsections 269TM(4) and (5):

Omit the subsections.

Subsection 269TN(2):

Insert “interim” before “duty that might become payable”.

SCHEDULE—continued

Paragraph 269TN(3)(a):

Insert “interim” before “duty that might be payable”.

Paragraph 269TN(5)(a):

Insert “interim” before “duty that might be payable”.

Paragraph 269TN(6)(b):

Insert “interim” before “duty that might be payable”.

Paragraph 269TN(7)(b):

Insert “interim” before “duty that might be payable”.

Paragraph 269TN(8)(b):

Insert “interim” before “duty that might be payable”.

NOTES

[Minister’s second reading speech made in—

House of Representatives on 4 November 1992

Senate on 12 November 1992]