Bills Digest No. 82, 2012–13

7 March 2013

Customs Amendment (Anti-Dumping Commission) Bill 2013

Leah Ferris, Law and Bills Digest Section

Eugenia Karanikolas, Economics Section

Date introduced: 6 February 2013

House: House of Representatives

Portfolio: Home Affairs

Commencement: The provisions of this Bill commence on 1 July 2013

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act)[1] to establish the Anti-Dumping Commission. The Bill also amends the Customs Administration Act 1985[2], the Criminal Code Act 1995[3] and the Law Enforcement Integrity Commissioner Act 2006[4] to facilitate the establishment of the Anti-Dumping Commission.

Background

What is dumping?

Dumping occurs when an overseas supplier sells a product at a price lower than the price charged in the supplier’s home country or at a price that is lower than the average cost to produce the product.

Dumping can be predatory or episodic in nature

Predatory dumping occurs when an overseas supplier’s main aim is to obtain market power by driving the local suppliers out of the market and subsequently raising the price of a product. This type of dumping is not common in Australia.

The Productivity Commission Inquiry into anti-dumping noted:

There is no evidence that in recent years dumping has been motivated by the sort of predatory intent that would, in a domestic market context, risk breaching the Trade Practices Act (TPA).[5]

The other form of dumping is more episodic in nature and occurs when an overseas supplier sells surplus stock at heavily reduced prices. This may put pressure on local suppliers to reduce prices or reduce production. It is this sort of ‘dumping’ that Australian businesses sometimes face.

Dumping or price discrimination

Whilst the engagement of episodic dumping is considered to be an undesirable business practice as it can lead to a misuse of market power, the same cannot be said for other pricing strategies often referred to as ‘dumping’ but which are more akin to price discrimination. In effect, price discrimination in international trade means that suppliers can charge different prices for a good in the domestic market than they do in the international market.[6]

Such a pricing strategy is not uncommon. Governments around the world, including Australia’s, advise their exporters to price differentiate. In 2006, Austrade issued the following advice to domestic exporters:

Marginal (or ‘differential’) costing is a technique commonly employed in export and produces a more competitive price to assist market entry … It is particularly useful where a company has excess production capacity and needs to reduce its export prices to be competitive.[7]

WTO and dumping

The World Trade Organization (WTO) is responsible for determining and administering internationally agreed principles and rules for managing dumping issues, as well as for providing a dispute settlement mechanism. Under the WTO rules, an importing country may apply an anti-dumping duty when an overseas supplier is ‘dumping’ goods that cause or threaten to cause, ‘material injury’ to local suppliers.[8]

Two WTO agreements provide the basis for Australia’s anti-dumping system:

·         the Agreement on Implementation of Article VI of the General Tariffs and Trade 1994 (the Anti-Dumping Agreement)[9] prescribes rules for the conduct of anti-dumping investigations and the application of measures to address dumping, including how member countries may: initiate cases, calculate dumping margins, determine injury, enforce remedial measures and review past determinations[10] and

·         the Agreement on Subsidies and Countervailing Measures (the Countervailing Measures Agreement)[11], regulates measures designed to remedy material injury caused by subsidised imports, along similar lines to the Anti-Dumping Agreement.[12]

The Customs Act and the Customs Tariff (Anti-Dumping) Act 1975[13] are the principal Acts implementing the international agreements and domestic policy on anti-dumping.[14]

Timeline of recent reforms

The key milestones associated with the development and implementations of the reforms to Australia’s anti-dumping and countervailing system are outlined below:

·         July 2008: in its 22nd meeting, the Council of Australian Governments (COAG) identified Australia’s anti-dumping system as one of a number of priority areas for competition reform[15]

·         March 2009: the Rudd Government asked the Productivity Commission to conduct an inquiry into the effectiveness and impact of Australia’s anti-dumping system. This came about after renewed calls for industry protection amidst the backdrop of the global economic crisis

·         December 2009: the Productivity Commission released its report, making 20 recommendations, 15 of which were accepted by the Government[16]

·         March 2011: Independent Senator Nick Xenophon introduced a Private Member’s Bill, the Customs Amendment (Anti-Dumping) Bill 2011[17] proposing a number of amendments to the anti-dumping regime

·         June 2011: the Senate Economic Legislation Committee rejected the majority of the proposals made in Senator Xenophon’s Bill.[18] However, the Bill’s proposed amendment to the definition of ‘interested party’ to include trade unions was accepted by the Committee and has been incorporated into the Government’s Customs Amendment (Anti-dumping Improvements) Act 2011[19]

·         June 2011: the Government responded to the Commission’s and other stakeholders’ recommendations by releasing a policy paper Streamlining Australia’s Anti-dumping System[20], which contains the background to the proposed legislative changes.[21] The changes:

–        established an International Trade Remedies Adviser to help businesses prepare applications and submissions to anti-dumping cases

–        increased Customs resources and require the Minister to make a decision within 30 days of receiving a relevant report or recommendation

–        increased funding for the use of experts, including forensic accountants

–        amended the subsidies provisions to align them with those set out by the WTO and expanded the definition of ‘interested party’ to include trade unions and downstream industry and

–        introduced a framework to make it easier for Customs to identify circumvention activities.[22]

·         December 2011: the International Trade Remedies Forum (ITRF) released its recommendations for improving Australia’s provisions for determining market situation[23] and access to the anti-dumping system by Australia’s primary industry producers[24]

·         July 2011–June 2012: the Government introduces its reforms through a number of tranches of legislation:

–        Customs Amendment (Anti-dumping Improvements) Bill 2011[25]

–        Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011[26]

–        Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012[27]

–        Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012[28] and

–        Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012 (which implements the ITRF recommendations).[29]

All five Bills passed both chambers, though with some debate, and have all received Royal Assent. Notwithstanding these changes to the anti-dumping system, industry continued to pressure the Government into making further modifications.[30]

Review into anti-dumping arrangements (the Brumby Review)

On 4 July 2012, the Gillard Government responded to industry concerns and asked the former Premier of Victoria, John Brumby, to examine:

·         the effectiveness of the current arrangements when assessing and investigating anti-dumping matters and

·         assess the viability of setting up a dedicated anti-dumping authority.[31]

On 27 November 2012, the Government announced the release of the Brumby Review.[32]

The report made 13 recommendations, including that:

·         a new anti-dumping agency be established

·         the new agency be primarily located in a major city where there is a high concentration of industry and

·         an increased amount of resources be made available to ensure the establishment of the agency and its ability to perform its duties.[33]

Government response

The Government announced its support for the recommendations on 4 December 2012[34], stating its commitment to introduce legislation to further reform the system to:

·         establish a new Anti-Dumping Commission to investigate complaints

·         boost funding to Customs by $24.4 million over four years so it can deal with cases speedily and fairly – this will almost double the number of investigators

·         make the anti-dumping system easier for small and medium-sized businesses and

·         introduce stricter remedies against overseas producers who deliberately circumvent Australia's anti-dumping rules.[35]

In his second reading speech the Minister for Home Affairs and Justice, Jason Clare, commented that the Bill ’will deliver stronger protection for Australian industry against unfair competition from overseas – and protect Australian jobs from being put at risk by products being dumped into Australia.’[36]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on this Bill.[37]

Parliamentary Joint Committee on Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[38] The Government considers that the Bill is compatible.[39]

The Statement of Compatibility with Human Rights provides:

The Bill does not raise any human rights issues. No new powers, functions or duties will be imposed on the Commission or the Commissioner by this legislation. Instead, existing legislative powers contained in Part XVB of the Customs Act 1901 will be transferred from the CEO to the Commissioner.[40]

The Parliamentary Joint Committee on Human Rights has yet to report on this Bill.

Policy position of non-government parties/independents

The Government’s proposed amendments to establish an Anti-Dumping Commission are supported by both the Coalition and the Greens. Large industry groups, including the Australian Industry Group (AIG) and unions, such as the Australian Council of Trade Unions (ACTU), are also in favour of the proposed change.[41]

Coalition

Whilst the Opposition has said that it would support this Bill, it has criticised the Government by arguing that it is copying Coalition policy and ‘trying to play catch-up’.[42] The Shadow Minister for Industry, Sophie Mirabella, said during the House of Representatives debate that:

we know that the anti-dumping regime in Australia has had significant problems. It has been unworkable with excessive costs and time. There has been difficulty for those wanting to pursue an anti-dumping applications to access the system. These concerns have been voiced to us by industry for a long time. I have been shadow minister in this portfolio for just over three years. It was an important priority for us and we came up with a comprehensive world's-best-practice policy back in 2011. The government has panicked, followed suit and introduced a whole series of bills regarding anti-dumping, trying to play catch-up. We have not opposed those bills, as we will not oppose these ones.[43]

The Australian Greens

On 5 December 2012, the Greens Deputy Leader Adam Bandt said that the Government’s policy was a welcome step towards improving Australia’s anti-dumping measures, and further argued that ‘these measures alone will not address the problems our manufacturers face. Unless we have strong rules on local content, manufacturing will continue to be squeezed’.[44]

Position of major interest groups

Industry and Unions

The CEO of the Australian Industry Group, Inness Willox (who was also a member of the Prime Minister’s Manufacturing Taskforce) welcomed the Government’s proposal and said that:

The measures build on the recommendations of the Prime Minister's Taskforce on Manufacturing and will ensure that Australia's approach to anti-dumping will be balanced and better resourced while remaining fully compliant with World Trade Organisation rules.[45]

Large unions including the ACTU[46], Australian Workers Union (AWU)[47], Construction Forestry Mining and Energy Union (CFMEU)[48] have showed overwhelming support for this Bill, arguing that it will send a strong message to overseas suppliers who are thinking of dumping products and injuring local industry.

Financial implications

According to the Explanatory Memorandum, the proposed amendments will have no financial impact.[49]

However, the Prime Minister has announced the Government will provide additional funding to Customs for the purpose of strengthening Australia’s anti-dumping system.[50] The Government has committed to providing an additional $24.4 million over four years.

Key issues

Members of Parliament

The majority of members who spoke about this Bill in the House of Representatives were strongly in favour of stopping dumping from occurring in Australia. Liberal Member for Murray, Dr Sharman Stone, commented that:

This antidumping legislation, the Customs Amendment (Anti-Dumping Commission) Bill, is a very important part of the process of making a fairer and better place for our own home-grown enterprise.[51]

However, it may be interesting to note that despite the recent political debate on anti-dumping focusing on being ‘tough’ on overseas suppliers that ‘cheat’, Liberal member Craig Kelly, whilst supporting the Bill, highlighted that there is another side to the story of anti-dumping worth examining. Mr Kelly argued that when discussing the issue, policy makers should be considering the potential adverse effects a zealously applied anti-dumping regime may have in terms of trade retaliation and increased cost for local producers. In addition, Mr Kelly reminded Parliament that some Australian exporting businesses may indeed adopt practices that could be considered dumping. In particular, Mr Kelly said that:

We need to be careful that this legislation does not set off trade disputes with other countries. There is hardly an exporter in Australia also selling their goods on the local market that does not go in with a slightly sharper pencil when competing in more competitive overseas markets. Under World Trade Organization rules, that could be deemed as dumping.

When it is all boiled down, dumping is merely geographic price discrimination on an international basis—selling the same good in different markets, segmenting those markets by international boundaries and charging different prices.[52]

Large industry groups

Despite the Government’s attempts to make the anti-dumping system more accessible to all businesses regardless of their size[53], it appears that larger companies still benefit the most from such a system and therefore it can be inferred that they have the most to gain.

A highly published case in point is one concerning Australia’s largest steel manufacturer[54], BlueScope. BlueScope, which controls over 40 per cent of Australia steel market, has been successful in promptly utilising the new anti-dumping regime and becoming the first Australian company to test the Government’s recent changes to the system. As a result of this action, hot rolled coil steel[55] coming from Malaysia, Japan, Korea and Taiwan will attract up to 15.4 per cent duty.[56]

Speaking about the case, the Chief Executive of the company said that ‘BlueScope Steel supports free and fair trade and is concerned at the level of “unfair competition” in the Australian steel market.’ He went on to say that the ability to take anti-dumping measures is a ‘right countries have under WTO rules, and is not considered an exception to these rules nor a form of protectionism’.[57]

However, in recommending that BlueScope’s application for an investigation into anti-dumping practices be dismissed, the Australian Steel Association has noted that BlueScope’s worsening financial position may be more due to external factors, such as the strong Australian dollar and the decline in manufacturing activity, than to ‘unfair competition’.[58] The Productivity Commission has also commented on the link between weak economic conditions and the increase in Australia’s anti-dumping activity.[59]

Local businesses

On the other side of the dumping debate are Australian businesses engaged in construction and manufacturing activities which rely on cheaper overseas imports to remain competitive. A number of business groups including Master Builders Australia, the Australian Services Roundtable and the Australian Tourism Export Council have raised concerns about the ‘propping-up’ of inefficient industries at the expense of more competitive sectors in the economy. [60]

This sentiment was also expressed in the media, with The Australian Financial Review arguing that with the introduction of the new anti-dumping regime, ‘Australia again risked treading the “dead end” of industry protection’.[61]

Consumers

The Australian consumer is of course another group that may be adversely affected by the zealous application of the new anti-dumping legislation. Whilst the effect on consumers is usually regarded as less crucial than the impact on industry employment, nevertheless, the increasing popularity of online shopping for an ever extending range of consumer goods may require some adjustment in domestic business practices.

In his second reading speech, Mr Craig Kelly highlighted the potential adverse of a strict anti-dumping regime:

The example I would like to give is bedroom furniture, and the dumping regulations that were applied in the USA from Chinese bedroom furniture manufacturers. Since 2004 the US Department of Commerce imposed strict anti-dumping penalties on wooden bedroom furniture that was imported from China, deeming that those products had been dumped into the US market for less than their fair value. These products had an additional tariff on them from one per cent to more than 200 per cent of the import value. But this did not save the US furniture manufacturing sector. Despite these dumping duties the US have seen a massive decline in jobs in the furniture industry, a massive decline in the number of local sales and imports take up to 80 per cent of the market—a complete reversal. So we need to be very careful and not overplay these anti-dumping regulations, because sometimes they can be used against our industries. Also, there are many Australian companies that rely on components in their production chain, that produce those goods here in Australia. We have to be careful that, as these anti-dumping regulations come in, they are not adversely affected and there are not delays or additional costs put on those companies.[62]

The need for a new anti-dumping body

At this stage, it appears that the new Anti-Dumping Commission will act as more of a symbolic gesture on the part of the Government, as opposed to providing any real changes to Australia’s current anti-dumping arrangements. These new amendments seem to be aimed at responding to allegations made by the Coalition and industry with regards to the Government’s position on preventing dumping from occurring. The proposed amendments appear to merely transfer the powers currently vested with the CEO of Customs to the Commissioner of the new anti-dumping authority.

Andrew Percival, special counsel at Corrs Chambers Westgarth, has commented that:

The Commission will still operate under and be restrained by WTO anti-dumping rules or, at least, Australian legislation based on those rules. It is simply a different body administering the same set of dumping rules - the equivalent of shuffling deck chairs on the Titanic.[63]

Main provisions

The main amendments to the Customs Act are set out in Part 1 of Schedule 1 to the Bill. Item 8 of Part 1 inserts Division 1A into Part XVB of the Customs Act, to provide for the establishment of the Anti-Dumping Commission and the Commissioner.[64] Part XVB of the Customs Act contains special provisions relating to anti-dumping duties.

In particular, proposed section 269SMA states that Division 1A of Part XVB will:

·         establish the Anti-Dumping Commission within Customs (proposed section 269SMB)

·         provide for the office of the Anti-Dumping Commissioner (proposed section 269SMF) and

·         allow for the Commissioner to be assisted by Customs staff (proposed section 269SM).

Establishment of the Anti-Dumping Commission

The purpose of the Commission is to assist the Commissioner in the performance of his or her functions or the exercise of his or her powers (proposed section 269SMD). Unlike the previous anti-dumping authority[65], there is no clear description of the Commission’s functions or a clear statement about how the Commission will operate with respect to the current system. Instead, items 10-14 of the Bill replace all references to the CEO of Customs with references to the Commissioner. The Commissioner will therefore be responsible to perform the current role of the CEO in relation to Part XVB of the Customs Act.

It is to be inferred by the transfer of the CEO’s power to the Commissioner, that the Commissioner will replace the CEO in determining whether or not an anti-dumping investigation should proceed. It can also be inferred from the Minister’s second reading speech that the Commission will then have the responsibility of actually conducting the investigation and making recommendations to the Minister.[66] With respect to the existing appeals processes, these will remain the same with decisions made by the CEO now being decisions made by the Commissioner. While the Brumby Review examined how the new body would interact with the existing appeals processes, he only looked at the current situation where a Trade Measures Review Officer (Review Officer) is responsible. As a result of recent amendments to the Customs Act[67], the Review Officer will now be replaced by a Review Panel, which will follow different procedures to that of the Review Officer. It has been suggested that the new authority has been introduced to overcome issues raised with the new Review Panel.[68] This theory may have some weight as the Minister has recently stated that there will be further changes to the existing appeals processes[69], with the introduction of a new review mechanism which is aimed at reducing the complexities of the existing review processes and making them more effective.[70]

Proposed section 269SME provides that the new Anti-Dumping Commission will have the same privileges and immunities of the Crown in right of the Commonwealth. As the new Commission ‘will be legally and financially a part of the Commonwealth’[71], it will possess the same immunities and privileges currently conferred on Customs.

Establishment of the Anti-Dumping Commissioner

Proposed Subdivision C of proposed Division 1A of Part XVB of the Customs Act provides for the role of Commissioner of the Anti-Dumping Commission. Under proposed subsection 269SMF(2), the Commissioner has the powers and functions conferred or imposed on him or her by the Customs Act or any other law.[72] Proposed section 269SMG further provides that the Commissioner has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

As has been discussed above, while it is not expressly stated what the functions of the Commissioner will be, the Bill provides that the Commissioner will replace the CEO of Customs with respect to their role in anti-dumping investigations. Under proposed section 269SMP, the Commissioner has the power, via writing, to delegate any of his or her functions or powers to an officer of Customs.[73]

Proposed section 269SMH provides that the Commissioner is to be appointed, in writing, by the Minister and may be appointed on a full-time or part-time basis. There are no restrictions or conditions on who can be appointed, such as minimum standards of qualifications, knowledge or experience. Proposed subsection 269SMK(1) states that the Minister is responsible for determining the terms and conditions of appointment of the Commissioner. The Commissioner is not considered to be a public official for the purpose of the Remuneration Tribunal Act 1973, which means that the Tribunal does not have a role in monitoring the Commissioner’s remuneration or conditions of employment.[74]

The Explanatory Memorandum states:

While the Commissioner’s actual terms and conditions (including remuneration) will be set by the Minister of Home Affairs, the Minister will seek the Remuneration Tribunal’s advice to ensure that they are commensurate with those received by statutory office holders occupying similar positions.[75]

While this may be the intent of the Government, there is no provision in the Bill which requires the Minister to seek the advice of the Remuneration Tribunal when determining the Commissioner’s salary.

Under proposed section 269SMI, the Commissioner holds office for the period specified in the instrument of appointment. Although that period must not exceed five years, the proposed provision does not limit the Minister’s power of reappointment.[76] Proposed section 269SML requires the Commissioner to give written notice to the Minister disclosing any interests he or she has that could conflict with his or her role as Commissioner. Further, proposed subsection 269SMM(1) states that where the Commissioner is employed on a full-time basis, he or she must not engage in paid employment without the Minister’s approval. However, where the Commissioner is employed on a part-time basis he or she does not require the Minister’s approval to engage in any paid employment, but that employment must not conflict with the performance of their duties.[77]

Proposed section 269SMN allows the Commissioner to resign his or her appointment by giving written notice to the Minister. The Minister may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.[78] In addition, the Minister may terminate the appointment of the Commissioner in prescribed circumstances, including but not limited to, the bankruptcy of the Commissioner, where the Commissioner engages in paid employment that conflicts with the proper performance of the Commissioner’s duties, or where the Commissioner fails without a reasonable excuse to disclose a direct or indirect pecuniary interest that conflicts or could conflict with the proper performance of his or her functions.[79] Under proposed section 269SMJ, the Minister may appoint someone to act as Commissioner where a vacancy exists in the role or where the current Commissioner is out of the country, absent, or unable to perform the his or her role as Commissioner.

These new provisions relating to the establishment of the new Anti-Dumping Commission and Commissioner are consistent with similar regulatory appointments and therefore not controversial.

Staff assisting the Commissioner

Subdivision D of proposed Division 1A of Part XVB of the Customs Act provides that the Commissioner will be assisted by staff made available to the Commissioner by the CEO of Customs.[80] Proposed subsection 269SMQ(1) of the Bill specifies that the staff will be persons engaged under the Public Service Act 1999.[81] Proposed subsection 269SMQ(2) clarifies that when a staff member is performing services for the Commissioner under this section, they will be subject to the directions of the Commissioner.

Other Provisions

Items 15-19 amend the Customs Administration Act 1985 to make a number of consequential amendments to reflect the introduction of the Commission, and in particular, the establishment of the role of the Commissioner.

Part 2 of Schedule 1 to the Bill amends the Criminal Code Act 1995 and the Law Enforcement Integrity Commissioner Act 2006 to include a reference to the Commissioner.[82] These amendments ensure that the Commissioner will be treated consistently with the CEO and other Customs officers.

Part 3 of Schedule 1 to the Bill introduces a number of provisions necessary in transitioning the powers and functions in Part XVB of the Customs Act currently exercised by the CEO to the Commissioner.

Concluding comments

The purpose of the Bill is to establish an Anti-Dumping Commission. While the Commission will be incorporated into Custom’s organisational structure and will share its resources, it will report directly to the Minister. The existing powers of the CEO of Customs with respect to anti-dumping arrangements will be transferred to the new Commissioner, but no new powers or duties will be conferred on the Commissioner.

These new amendments have received support from the Opposition and industry. The Greens are also in support of the Bill but are urging the Government to further increase its support for local industry by imposing local content requirements.

Opposition to this Bill has come predominantly from Australian business groups who rely on cheap imports to remain competitive. They have argued that the Government is shielding uncompetitive industries that cannot compete at the expense of focusing on industries that have the potential to grow and be competitive.

While the Bill, on its own, may be viewed as a symbolic gesture aimed at gathering goodwill in an election year, further amendments to the anti-dumping system have been highlighted by the Minister. It appears that the Government intends to continue with its current approach to anti-dumping, where dumping is considered to be cheating, and introduce more substantive legislative changes in the near future.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2430 or (02) 6277 2463.

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ISSN 1328-8091

[1].              The text of the Customs Act can be viewed at: http://www.comlaw.gov.au/Details/C2013C00064/Html/Volume_3#_Toc346887028

[2].              The text of the Customs Administration Act 1985 can be viewed at:

              http://www.comlaw.gov.au/Details/C2012C00297

[3].              The text of the Criminal Code Act 1995 can be viewed at:

              http://www.comlaw.gov.au/Details/C2013C00006

[4].              The text of the Law Enforcement Integrity Commissioner Act 2006 can be viewed at: http://www.comlaw.gov.au/Details/C2012C00886

[5].              Productivity Commission, Australia’s anti-dumping and countervailing system, Inquiry report no. 48, Commonwealth of Australia, 18 December 2009, p. 40, viewed 10 February 2013, http://www.pc.gov.au/projects/inquiry/antidumping/report

[6].              Price discrimination also happens within a country’s borders by domestic suppliers. This practice is not prohibited under the Competition and Consumer Act 2010 (Cth). The argument is that non-predatory price discrimination may positively impact competition.

[7].              Productivity Commission, Australia’s anti-dumping and countervailing system, op. cit., p. 40.

[8].              Article VI of the General Agreement on Tariffs and Trade 1994, which deals with anti-dumping and countervailing duties, ‘explicitly authorizes the imposition of a specific anti-dumping duty on imports from a particular source, in excess of bound rates, in cases where dumping causes or threatens injury to a domestic industry, or materially retards the establishment of a domestic industry’: World Trade Organization (WTO), ‘General Agreement on Tariffs and Trade 1994’, WTO website, viewed 27 February 2013, http://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm

[9].              This agreement entered into force generally and also for Australia on 1 January 1995.

[10].              The text of the Anti-Dumping Agreement can be viewed at: http://www.worldtradelaw.net/uragreements/adagreement.pdf

[11].              The Countervailing Measures Agreement was entered into by Australia on the same date as the Anti-Dumping Agreement (that is 1 January 1995).

[12].              The text of the Countervailing Measures Agreement can be viewed at: http://www.wto.org/english/tratop_e/scm_e/subs_e.htm

[13].              The text of the Customs Tariff (Anti-Dumping) Act 1975 can be viewed at: http://www.comlaw.gov.au/Details/C2008C00417

[14].              Productivity Commission, Australia’s anti-dumping and countervailing system, op. cit., p. 8.

[15].              More information can be found in L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, Bills Digest, no. 145, 2011–12, Parliamentary Library, Canberra, 2012, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1695783%22

[16].              Productivity Commission, Australia’s anti-dumping and countervailing system, op. cit., pp. xxviii-xxxv.

[17].              Customs Amendment (Anti-Dumping) Bill 2011, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs821%22

[18].              Senate Economics Legislation Committee, Customs Amendment (Anti-Dumping) Bill 2011, report, 22 June 2011, viewed 14 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=economics_ctte/completed_inquiries/2010-13/customs_amendment_2011/report/index.htm

[19].              The Customs Amendment (Anti-dumping Improvements) Bill 2011 was enacted and received Royal Assent on
17 October 2011, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4615%22. The Act is available at: http://www.comlaw.gov.au/Details/C2011A00123

[20].              Australian Customs and Border Protection Service (ACBPS), Streamlining Australia’s anti-dumping system: an effective anti-dumping and countervailing system for Australia, Canberra, June 2011, viewed 14 February 2013, http://www.customs.gov.au/webdata/resources/files/ACBPSADSPolicyStatement2011.pdf

[21].              B O’Connor (former Minister for Home Affairs and Justice) and C Emerson (Minister for Trade), Government combats dumping and helps support local jobs, media release, Canberra, 22 June 2011, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F865936%22

[22].              Minter Ellison Lawyers, ‘Changes to Australia’s anti-dumping/countervailing regime: overview of key amendments’, Minter Ellison Lawyers website, 29 November 2011, viewed 14 February 2013, http://www.minterellison.com/Pub/A/20111129_antiDumping/

[23].              Market Situation: when assessing whether dumping has occurred, Customs needs to determine what the ‘normal value’ of the good under investigation is. In doing this, Customs has to consider whether the economy of the exporting country accused of dumping is a market economy or an economy whose industry receives significant government assistance which may artificially lower the price of the good.

[24].              Australian Customs and Border Protection Service (ACBPS), ‘International trade remedies forum’, ACBPS website,
26 June 2012, viewed 13 February 2013, http://www.customs.gov.au/site/InternationalTradeRemediesForum.asp

[25].              M Priestly, Customs Amendment (Anti-dumping Improvements) Bill 2011, Bills Digest, no. 47, 2011–12, Parliamentary Library, Canberra, 2011, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1078758%22

[26].              L Ferris, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, Bills Digest, no. 149, 2011–12, Parliamentary Library, Canberra, 2012, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1713277%22

[27].              L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, op. cit.

[28].              Ibid.

[29].              L Ferris and E Karanikolas, Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012, Bills Digest, no. 19, 2012–13, Parliamentary Library, Canberra, 2012, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1923068%22

[30].              J Brumby, Review into anti-dumping arrangements, report, Commonwealth of Australia, November 2012, viewed 14 February 2013, http://antidumpingreview.gov.au/files/2012/11/Brumby-Anti-Dumping-Review-Final-Report.pdf

[31].              J Clare (Minister for Home Affairs), John Brumby to report on a Commonwealth Anti-Dumping agency, media release, 4 July 2012, viewed 17 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1756100%22

[32].              J Clare (Minister for Home Affairs), Minister releases Brumby report, media release, Canberra, 27 November 2012, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2073906%22

[33].              J Brumby, Review into anti-dumping arrangements, op. cit.

[34].              J Gillard (Prime Minister), G Combet (Minister for Industry and Innovation), J Clare (Minister for Home Affairs), Anti-dumping reforms to support Australian industry, media release, Melbourne, 4 December 2012, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2086959%22

[35].              Ibid.

[36].              J Clare, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, House of Representatives, Debates, 6 February 2013, p. 3, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F27c8c7aa-70e7-442b-8ceb-93bd0691de92%2F0013%22

[37].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2013, 27 February 2013, p. 15, viewed 28 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2013/index.htm

[38].              Explanatory Memorandum, Customs Amendment (Anti-Dumping Commission) Bill 2013, p. 3, viewed 7 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4951_ems_ebf278f8-9621-4566-b5b4-fb0c305cd9c2%22

[39].              Ibid.

[40].              Ibid.

[41].              Manufacturers’ Monthly, Unions, Ai Group applaud Anti-Dumping Commission announcement, media release, 4 December 2012, viewed 18 February 2013, http://www.manmonthly.com.au/news/unions-ai-group-applaud-anti-dumping-commission-an; Australian Council of Trade Unions (ACTU), Anti-dumping laws will protect Australian manufacturing, media release, 4 December 2013, viewed 18 February 2013, http://www.actu.org.au/Media/Mediareleases/AntidumpinglawswillprotectAustralianmanufacturing.aspx

[42].              S Mirabella, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, House of Representatives, Debates, 13 February 2013, p. 72, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fe1b9741b-6117-42e6-bb54-219d93714fe7%2F0163%22

[43].              Ibid.

[44].              The Greens, Anti-dumping good start, but government must act on local content, media release, 5 December 2012, viewed 14 February 2013, http://greens.org.au/content/anti-dumping-good-start-gov-must-act-local-content-bandt

[45].              Manufacturers’ Monthly, Unions, Ai Group applaud Anti-Dumping Commission announcement, op. cit.

[46].              Australian Council of Trade Unions (ACTU), Anti-dumping laws will protect Australian manufacturing, op. cit.

[47].              The Australian Workers’ Union, Anti-dumping agency, media release, 27 November 2012, viewed 18 February 2013, http://www.awu.net.au/news/anti-dumping-agency

[48].              Construction Forestry Mining and Energy Union (CFMEU), Anti-Dumping Commission a welcome step to levelling the playing field for Australian jobs, media release, 15 February 2013, viewed 18 February 2013, http://www.cfmeu.asn.au/branch/news/anti-dumping-commission-a-welcome-step-to-levelling-the-playing-field-for-australian-job

[49].              Explanatory Memorandum, Customs Amendment (Anti-Dumping Commission) Bill 2013, op. cit., p. 2.

[50].              J Gillard (Prime Minister), G Combet (Minister for Industry and Innovation), J Clare (Minister for Home Affairs), Anti-dumping reforms to support Australian industry, op. cit.

[51].              S Stone, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, House of Representatives, Debates, 13 February 2013, p. 79, viewed 18 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fe1b9741b-6117-42e6-bb54-219d93714fe7%2F0167%22

[52].              C Kelly, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, House of Representatives, Debates, 13 February 2013, p. 83, viewed 18 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fe1b9741b-6117-42e6-bb54-219d93714fe7%2F0169%22

[53].              To assist small and medium enterprises (SMEs), in 2012 the Government set up an International Trade Remedies Advisory Service, which operates within the Australian Industry Group. Australian Industry Group (Ai), ‘International trade remedies advisory service for SMEs’,
Ai Group website, 2013, viewed 28 February 2013, http://www.aigroup.com.au/traderemedies

[54].              BlueScope’s current market share in Australia is over 41 per cent: IBIS World, Iron and steel manufacturing in Australia, December 2012.

[55].              ‘Hot rolled coil is produced as a feedstock for cold rolled coil and coated coil, but also for direct use in a variety of industrial applications including steel tubes used in transport, construction, shipbuilding, gas containers, pressure vessels and energy pipelines. Hot rolled sheet with an anti-slip surface and a diamond or teardrop pattern is typically used for stairs, industrial floors and tailboards for goods vehicles.’ Mecitco, ‘Hot Rolled Coil (HRC)’, Mecito website, 2010, viewed 18 February 2013, http://www.mecitco.com/products/flat/hot-rolled-coil-hrc.html

[56].              Australian Customs Border Protection Service (ACBPS), Australian Customs Dumping Notice No. 2012/66,
30 December 2012, viewed 18 February 2013, http://www.customs.gov.au/webdata/resources/files/103-ACDN2012-66-Findinginrelationtoaninvestigationintodumping.pdf

[57].              L Lamont, ‘Dumping cost local steel makers $50m’, The Sydney Morning Herald, 16 June 2012, p. 5, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1715089%22

[58].              Australian Steel Association, Submission to Hot Rolled Coil exported from the republic of Korea, Taiwan, Japan and Malaysia, 25 July 2012, viewed 18 February 2013, http://www.customs.gov.au/webdata/resources/files/015-Submission-IndustryAssocation-AustralianSteelAssociation.PDF

[59].              Productivity Commission, Australia’s anti-dumping and countervailing system, op. cit., p. 27.

[60].              G Daley, J Heath and M Dunckley, ‘BlueScope protection slammed’, The Australian Financial Review, 5 October 2012, p. 1, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1956441%22

[61].              M Stevens, ‘EC steels BlueScope tariff claim’, The Australian Financial Review, 17 January 2013, p. 28, viewed 14 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F2168087%22

[62].              C Kelly, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, op. cit., p. 83.

[63].              A Percival, ‘Australia’s new Anti-Dumping Commission – shuffling deckchairs on the Titanic?’, Corrs Chambers Westgarth website, 21 February 2013, viewed 22 February 2013, http://www.corrs.com.au/thinking/insights/australias-new-anti-dumping-commission-shuffling-deckchairs-on-the-titanic/

[64].              Item 1, repeals the current definition of Commissioner in the Customs Act (which refers to the Commissioner of Taxation) and replaces it with a reference to the Commissioner of the Anti-Dumping Commission. Items 4 and 6 are consequential to item 1.

[65].              The Anti-Dumping Authority was established in 1988 by the Anti-Dumping Authority Act 1988. The former Anti-Dumping authority formed part of a two-tier administrative system, with Customs conducting investigations and taking cases to a preliminary finding stage, with a specialist tribunal and the Anti-Dumping Authority reviewing the preliminary findings and making final recommendations to the Minister. The Anti-Dumping Authority was abolished in 1998.

[66].              J Clare, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, op. cit., p. 1.

[67].              L Ferris, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit.

[68].              A Percival, ‘Anti-Dumping – Brumby inquiry into a stand-along agency’, Corrs Chambers Westgarth website, 13 July 2012, viewed 11 February 2013, http://www.corrs.com.au/thinking/insights/anti-dumping-brumby-inquiry-into-a-stand-alone-agency/

[69].              J Clare, ‘Second reading speech: Customs Amendment (Anti-Dumping Commission) Bill 2013’, op. cit., p. 3.

[70].              Ibid.

[71].              Explanatory Memorandum, Customs Amendment (Anti-Dumping Commission) Bill 2013, op. cit., p. 6.

[72].              Items 2 and 3 of the Bill amend section 9 of the Customs Act to allow the Minister to delegate to the Commissioner all or any of the functions of the Minister under Part XVB of the Customs Act.

[73].              Where such functions or powers have been delegated, the delegate is required to comply with any written directions given by the Commissioner: proposed subsection 269SMP(2).

[74].              Proposed subsection 269SMK(2).

[75].              Explanatory Memorandum, Customs Amendment (Anti-Dumping Commission) Bill 2013, op. cit., p. 7.

[76].              The Commissioner may be reappointed: section 33AA of the Acts Interpretation Act 1901.

[77].              Proposed subsection 269SMM(2).

[78].              Proposed subsection 269SMO(1).

[79].              Proposed subsection 269SMO(2).

[80].              Explanatory Memorandum, Customs Amendment (Anti-Dumping Commission) Bill 2013, op. cit., p. 8.

[81].              Subsection 15(1) of the Customs Administrative Act 1985 provides that ‘the staff required for the purposes of this Act shall be persons engaged under the Public Service Act 1999’.

[82].              In particular, item 20 of the Bill amends section 146.1 of the Criminal Code 1995 to include a reference to the Commissioner under the definition of Commonwealth law enforcement officer. Item 21 amends the definition of Customs staff members, set out at subsection 10(2A) of the Law Enforcement Integrity Commissioner Act 2006, to include a reference to the Commissioner.