Footnotes

Chapter 1 - Introduction

[1]        Senator Nick Xenophon, Senate Hansard, 2 March 2011, p. 973.

[2]        The Hon. Brendan O'Connor MP, Minister for Home Affairs, 'Progress Update on Consideration of Anti dumping Laws', Media Release, 5 May 2011, http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/MediaReleases_2011_SecondQuarter_5May2011-Progressupdateonconsiderationofanti dumpinglaws (accessed: 10 May, 2011).

Chapter 2 - Dumping, subsidisation and the international environment

[1]        World Trade Organization, Anti-Dumping: Technical Information on Anti-Dumping, http://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm, (accessed: 18 April 2011).

[2]        World Trade Organization, Annex 1A Multilateral Agreements on Trade of Goods: Anti‑dumping (Article VI of GATT 1994), http://www.wto.org/english/docs_e/legal_e/legal_e.htm#antidump (accessed: 31 March 2011).

[3]        Government of South Australia, Submission 16, p. 5.

[4]        Predatory pricing in the context of dumping is a situation where the foreign firm's lower prices last long enough to drive domestic rivals out of business, at which point the foreign firm will be a monopolist and can drive prices back up again. In this instance the foreign firm predates upon domestic firms and the consumer benefits of low prices are short-lived and more than offset by the subsequent losses from monopoly pricing'. Professor Martin Richardson, Submission 1, pp 2‑3.

[5]        Professor Martin Richardson, Submission 1, p. 3.

[6]        Professor Martin Richardson, Submission 1, p. 3.

[7]        Australian Steel Association, Submission 10, p. 2.

[8]        Dr Silberberg, Senior Corporate Advisor, JELD-WEN, Proof Committee Hansard, 4 May 2011, pp 15–16.

[9]        Chad P. Bown, The WTO and Anti-Dumping in Developing Countries, 2007, p. 2, http://people.brandeis.edu/~cbown/papers/AD_developing.pdf (accessed: 15 May, 2011).

[10]      Chad P. Bown, The WTO and Anti-Dumping in Developing Countries, 2007, p. 2 http://people.brandeis.edu/~cbown/papers/AD_developing.pdf (accessed: 15 May, 2011).

[11]      Productivity Commission, Australia’s Anti-dumping and Countervailing System, Report no. 48, December 2009, p. 1.

[12]      The Productivity Commission report (2009) identifies the following products that had previously received anti-dumping protection as being no longer manufactured in Australia: machinery (including air circuit breakers), chemicals and plastics (and other manufactured products such as air circuit breakers). Source: Productivity Commission, Australia's Anti‑dumping and Countervailing System, Report no. 48, 2009, p. 30.

[13]      Productivity Commission, Australia's Anti-dumping and Countervailing System, Report no. 48, 2009, p. 30.

[14]      Productivity Commission, Australia's Anti-dumping and Countervailing System, Report no. 48, 2009, pp 26-27.

[15]      Mr Joel Fetter, Australian Council of Trade Unions, Proof Committee Hansard, 4 May 2011, p. 32.

[16]      World Trade Organization, Article 3 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/19-adp.pdf  (accessed: 7 June 2011).

[17]      The WTO divides subsidies into 'prohibited' and 'actionable subsidies'. Prohibited subsidies require recipients to meet certain export targets, or to use domestic goods instead of imported goods. They are prohibited because they are specifically designed to distort international trade, and are therefore likely to hurt other countries’ trade. In contrast, in the case of actionable subsidies the complaining country has to show that the subsidy has an adverse effect on its interests. There was originally a third category called 'non-actionable subsidies', which ended in 1999.

[18]      World Trade Organization, 'Understanding the WTO: Settling Disputes—A Unique Contribution', http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm (accessed 12 May 2011).

[19]      Mark Busch, Rafal Raciborksi, and Eric Reinhardt, Does the Rule of Law Matter? The WTO and US Antidumping investigations, Georgetown University, 2008, p. 12, http://www9.georgetown.edu/faculty/mlb66/AD%20Paper%20Final%20Edit%20FINAL.pdf (accessed: 30 May 2011).

[20]      Mark Busch, Rafal Raciborksi, and Eric Reinhardt, Does the Rule of Law Matter? The WTO and US Antidumping investigations, Georgetown University, 2008, p. 12, http://www9.georgetown.edu/faculty/mlb66/AD%20Paper%20Final%20Edit%20FINAL.pdf (accessed: 30 May 2011).

[21]      Under the DSB, complainant parties could also include interested third parties, thereby theoretically widening the dispute and potential measures against Australia by other WTO members.

[22]      Bruce Wilson, 'Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date', Journal of International Economic Law, 2007, vol. 10, no. 2, p. 393.

[23]      Bruce Wilson, 'Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date', Journal of International Economic Law, 2007, vol. 10, no. 2, p. 393.

[24]      International Trade Administration, United States Department of Commerce, Foreign Retaliations, 2011, http://www.trade.gov/mas/ian/tradedisputes-enforcement/retaliations/tg_ian_002094.asp, (accessed: 25 May 2011).

[25]      What is also interesting to note is that despite the emphasis that many submissions placed on the more lenient approach adopted by the US in assisting anti-dumping and countervailing applications, Australia's collection of import duties as a proportion of total imports is relatively higher than that of the US.

[26]      Mr David Birrell, Australian Steel Association, Proof Committee Hansard, 4 May 2011, p. 48.

[27]      Benjamin H. Liebman, and Kasaundra M. Tomlin, 'Safeguards and Retaliatory Threats', Journal of Law and Economics, University of Chicago Press, 2008, vol. 51, no. 2, p. 351.

Chapter 3 - Australia's anti-dumping and countervailing framework

[1]        Ms Suzanne Pitman, National Director, Trade and Compliance Division, Australian Customs and Border Protection Service, Proof Committee Hansard, 4 May 2011, p. 4.

[2]        Customs, Australia's Anti-Dumping and Countervailing Administration, 2000, http://www.customs.gov.au/webdata/resources/files/Antidumping_050203.pdf (accessed: 31 March, 2011).

[3]        Customs, Submission 33 to Productivity Commission's inquiry into Australia's anti-dumping and countervailing system, 2009, p. 3,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub033.pdf (accessed: 18 April 2011).

[4]        Subsection 269TC of the Act, reflecting the AD Agreement, includes a threshold test for when an application is supported by a sufficient part of the Australian industry. An application can be considered to have sufficient support if: (1) it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application; and (2) they account for 25 per cent or more of the total production or manufacture of like goods in Australia.

[5]        Customs utilises its own import data system to identify importers and exporters that could be interested parties for the purposes of an anti-dumping or countervailing application.

[6]        This period can be extended by the Minister, upon request from the CEO of Customs.

[7]        The 155 day timeframe for an investigation can be extended by the Minister, upon request from the CEO of Customs.

[8]        Customs, Instructions and Guidelines: Dumping and Subsidy Manual, June 2009, pp 123-127.

[9]        For an administration to be efficient and effective, its size and scope need to be framed around considerations of the users of the system and the markets which they operate under. For example, a study by SICE comparing the anti-dumping systems of Canada and the US noted that: 'Anti-dumping laws will tend to have a greater impact on Canada...even if the laws and regulations are identical and all investigators and decision makers equally enlightened ...[due to] the reality of differences in size of markets. Industry in Canada is probably more vulnerable to dumping related injury than ...[in the US]because of Canada's smaller domestic market. At the same time, because Canadian manufacturers...tend to be more export dependant.., they will be impacted more seriously by the uncertainties created by antidumping investigations of their export activities and by the imposition of antidumping duties'. SICE, A Comparison of the Antidumping Systems of Canada and the USA, 1996, http://ctrc.sice.oas.org/geograph/north/studant1.asp (accessed: 17 May 2011).

[10]      For example, the EU anti-dumping and countervailing framework involves a multitude of countries. Applications for anti-dumping and/or countervailing measures could be individual applicants or EU member countries.

[11]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011) p. 14.

[12]      See, for example, the discussion in Chapter 2 under the section entitled: The WTO agreements: mere guidelines or legally binding agreements?

[13]      Mr Andrew Hudson, former Chair of the International Law Section of the Law Institute of Victoria, and Mr Andrew Percival, Deputy Chair of the International Law Section of the Law Council of Australia, Proof Committee Hansard, 4 May 2011, p. 21.

[14]      Article 5.10 of the WTO Anti-Dumping Agreement (and similarly, Article 11.11 of SCM Agreement) provides that: 'Investigations shall, except in special circumstances, be concluded within one year, and in no case more than 18 months, after their initiation'. Source: World Trade Organization, Article 5 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/19-adp pdf  (accessed: 7 June 2011); and World Trade Organization, Article 11 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/24-scm.pdf (accessed: 7 June 2011).

[15]      Customs, Submission 33 to Productivity Commission's inquiry into Australia's anti-dumping and countervailing system, 2009, p. 3,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub033.pdf (accessed: 18 April 2011).

[16]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 4.

[17]      Customs, Submission 33 to Productivity Commission's inquiry into Australia's anti-dumping and countervailing system, 2009, p. 8,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub033.pdf (accessed: 18 May 2011)

[18]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 22.

[19]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 22.

[20]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), pp 6‑7.

[21]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 13.

[22]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 13.

[23]      Australian Paper, Submission 2, p. 2.

[24]      Australian Plantation Products and Paper Industry Council, Submission 13, p. 4.

[25]      Customs, Practice Statement: Administration of Australia's Anti-dumping and Countervailing System, PS2009/25, 2009, p. 8, http://www.customs.gov.au/webdata/resources/files/Practice_Statement_-_Admin_of_system_FINAL.pdf (accessed: 18 May, 2011).

[26]      Canadian International Trade Tribunal,  Guideline: Designation, Protection, Use and Transmission of Confidential Information, 2007, http://www.citt.gc.ca/publicat/ConfInfo_e.asp  (accessed: 18 May 2011).

[27]      United States International Trade Commission, Antidumping and Countervailing Handbook: The Investigative Process, Publication 4056, 13^th edition, December 2008, p. II-25.

[28]      United States International Trade Commission, Antidumping and Countervailing Handbook: The Investigative Process, Publication 4056, 13^th edition, December 2008, pp II-25–II-29.

[29]      Australian Workers' Union, Submission 3, p. 11.

[30]      This practice has resulted in a number of anti-dumping measures imposed by the US being brought to the attention of the DSB, with the practice deemed in a number of cases to be inconsistent with its WTO obligations. Examples include DS402 US — Zeroing (Korea) and DS311 Softwood Lumber.  The EU was also found to be acting inconsistently with WTO rules by using zeroing in DS141 EC — Bed Linen. For details of these cases, and other disputes, see: http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm#disputes.

[31]      Normal value is the price for the like product when destined for consumption in the exporting country. The normal value is compared to the export price of the exporting country to determine whether dumping is occurring.

[32]      On 24 October 2003, Australia and China signed the Trade and Economic Framework between Australia and China, which provided that a joint decision by the two parties to negotiate a Free Trade Agreement (FTA) will only follow Australia's formal recognition of China’s full market economy status. Following the joint decision by Australia and China in 2005 to negotiate an FTA, the Australian Government amended its regulations (through the Customs Amendment Regulations 2005 (No.2)) to add China to the list of countries that are not subject to the additional anti-dumping provisions that apply to countries that have an economy in transition.  This amendment gave effect to Australia’s decision to recognise China’s full market economy status, and resulted in changes to Customs' treatment of China in its administration of Australia's anti-dumping and countervailing system.

[33]      Mr Michael Priestley, Parliamentary Library, Parliament of Australia, 'Anti-dumping rules and the Australia-China Free Trade Agreement', Research Note no. 38, 14 March 2005, p. 3.

[34]      Thinam Jakob, Lesser Duty Rule and Community Interest in Anti-dumping Proceedings: The Community System in Perspective, Intereconomics, vol. 36, no. 4, p. 192.

Chapter 4 - The Kimberly‑Clark decision and other criticisms of Australia's anti-dumping and countervailing system

[1]        JELD-WEN, Submission 7, p. 2.

[2]        Mr David Birrell, Chief Executive Officer, Australian Steel Association, Proof Committee Hansard, 4 May 2011, p. 48.

[3]        Australian Workers' Union, Submission 3, p. 16.

[4]        Mr Brad Crofts, National Economist, Australian Workers' Union, Proof Committee Hansard, 4 May 2011, pp 26-27.

[5]        Construction, Forestry, Mining and Energy Union, Submission 8, p. 1.

[6]        Mr Keith Wilson, Institute for International Trade, The University of Adelaide, Submission 5, p. 2.

[7]        Australian Steel Association, Submission 10, p. 6.

[8]        Customs, Report to the Minister Rep 158: Reinvestigation of findings in Report to the Minister Rep 138—Certain Toilet Paper Exported From The People’s Republic Of China and the Republic Of Indonesia, December 2009, http://www.customs.gov.au/webdata/resources/files/MicrosoftWord-0912REP158-Reinvestigationtoiletpaper_public_.pdf (accessed 1 May 2011).

[9]        Kimberly-Clark Australia Pty Ltd v Minister for Home Affairs [2011] FCA 225.

[10]      Australian Plantation Products & Paper Industry Council (A3P), Submission 13, pp 3-4.

[11]      Mr Innes Willox, Director of International and Government Relations, Australian Industry Group, Proof Committee Hansard, 4 May 2011, p. 43.

[12]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 10.

[13]      Customs' response to a question on notice received on 7 June 2011 indicated that this information encompassed the year ending 30 June 2011. As the 2010-11 financial year had not ended at the time of this information being provided to the committee or the presentation of this report, the figures may be subject to change.

[14]      While not strictly comparable due to lags between initiations and subsequent measures, the figure nonetheless gives a broad indication of overall anti-dumping activity and the discrepancy between initiations and measures. This global trend corresponds with the US and the EU (both with 65 per cent) figures. Source: World Trade Organization, Statistics on Anti-Dumping, 2011, http://www.wto.org/english/tratop_e/adp_e/adp_e.htm, (accessed: 18 May 2011).

[15]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 11.

[16]      World Trade Organization, Article 3 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/19-adp pdf  (accessed: 7 June 2011).

[17]      World Trade Organization, Article 3 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/19-adp pdf  (accessed: 7 June 2011).

[18]      CSR Limited, Submission 6, p. 2.

[19]      Dr Ronald Silberberg, Senior Corporate Advisor, JELD-WEN, Proof Committee Hansard, 4 May 2011, p. 13.

[20]      Bruce A. Blonigen and Thomas J. Pruja, The Cost of Anti-Dumping: The Devil is in the Details, Journal of Policy Reform, 2003, vol. 6, no. 4, p. 238. 

[21]      Dr Garry Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, pp 37, 39.

[22]      See for example: Senate Standing Committee on Industry, Science and Technology, Inquiry into Australia's Anti-Dumping and Countervailing Legislation, 1991, pp 47‑51; Productivity Commission, Australia's Anti-dumping and Countervailing System, Report no. 48, December 2009, pp 157‑159.

[23]      Dr. Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 37.

[24]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 23.

[25]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 23.

[26]      Australian Paper, Submission 2, p. 4.

[27]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 18.

[28]      Customs, Submission to Productivity Commission's into Australia's anti-dumping and countervailing system, 2009, p. 12,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub033.pdf (accessed: 18 May 2011).

[29]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), pp 17-21.

[30]      Department of Innovation, Industry, Science and Research, Submission 16, p. 3.

[31]      For example, the amendments which would require Customs to consult industry experts and allow for new and updated information to be submitted over the course of an investigation or review.

[32]      International Institute for Trade, Submission 5, pp 4-5.

[33]      Customs Act 1901, s. 269ZT(1).

[34]      Australian Workers' Union, Submission 3, p. 13; Australian Council of Trade Unions, Submission 14, p. 2.

[35]      Ms Suzanne Pitman, National Director, Trade and Compliance Division, Australian Customs and Border Protection Service, Proof Committee Hansard, 4 May 2011, p. 10.

[36]      Australian Workers' Union, Submission 3, p. 14.

[37]      Australian Workers' Union, Submission 3, p. 14.

[38]      Australian Paper, Submission 2, p. 4.

[39]      Customs, Answers to questions on notice 4 May 2011 (received 7 June 2011), p. 3.

[40]      Australian Workers' Union, Submission 3, p. 14;

[41]      CSR Limited, Submission 6, p. 2.

[42]      This figure excludes reinvestigations, duty assessments and accelerated reviews. Source: Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 5.

[43]      See, for example: Ms Suzanne Pitman, National Director, Trade and Compliance Division, Customs, Proof Committee Hansard, 4 May 2011, p. 10;  Mr Innes Willox, Director, International and Government Relations, Australian Industry Group, Proof Committee Hansard, p. 42.

[44]      Mr Joel Fetter, Policy and Industrial Director, Australian Council of Trade Unions, Proof Committee Hansard, 4 May 2011, p. 33.

[45]      Dr Garry Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 40.

[46]      Law Council of Australia and Law Institute of Victoria, Submission 11, p 6.

[47]      This table summarises the views of a number of submitters related to the conformity of amendments to the WTO agreements. These include: Institute for International Trade, Submission 5, pp 5-6;  JELD-WEN, Submission 7, pp 1-14; Australian Steel Association, Submission 10, pp 6-8; Law Council of Australia and Law Institute of Victoria, Submission 11, pp 1-8; Moulis Legal, Submission 12, pp 1-10; and Department of Foreign Affairs and Trade, Submission 20, pp 1-14.

[48]      Australian Industry Group, Submission 9, pp 2-4.

[49]      Mr Travis Wacey, Policy Research Officer, Construction, Forestry, Mining and Energy Union, Proof Committee Hansard, 4 May 2011, p. 30.

[50]      Dr Garry Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 38.

[51]      Australian Workers' Union, Submission 3, p. 10.

[52]      Department of Foreign Affairs and Trade, Submission 22 to Productivity Commission's inquiry into Australia's Anti-dumping and Countervailing System, 2009, p. 4,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub022.pdf (accessed: 18 May 2011).

[53]      Productivity Commission, Australia's Anti-dumping and Countervailing System, Report no. 48, December 2009, p. 92.

[54]      See Chapter 2 for further discussion.

[55]      For example, subsection 269TAG(5) of the Act requires the Minister, when taking anti‑dumping measures based on his/her own initiative, to ensure that the conduct of his or her investigation is 'consistent with Australia's international obligations under the World Trade Organization Agreement'.

Chapter 5 - Importer to bear the onus of proof

[1]        See, for example, Senate Standing Committee on Industry, Science and Technology, Inquiry into Australia's Anti-Dumping and Countervailing Legislation, 1991, pp 63‑76.

[2]        Australian Paper, Submission 2, p. 3; Australian Workers' Union, Submission 3, p. 22; CSR Limited, Submission 6, p. 3.

[3]        Construction, Forestry, Mining and Energy Union, Submission 8, p. 4.

[4]        Australian Industry Group, Submission 9, p. 2.

[5]        CSR Limited, Submission 6, p. 3.

[6]        The ACTU discussed a number of articles of the AD and SCM Agreements in their submission. Australian Council of Trade Unions, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 4.

[7]        Australian Council of Trade Unions, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 4.

[8]        Australian Council of Trade Unions, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 4.

[9]        Moulis Legal, Submission 12, p. 10.

[10]      Department of Foreign Affairs and Trade, Submission 20, p. 8.

[11]      Article 3.1 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; citied in Department of Foreign Affairs and Trade, Submission 20, p. 3, emphasis omitted.

[12]      Article 6.8 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; citied in Department of Foreign Affairs and Trade, Submission 20, p. 8.

[13]      Customs, Submission 15, p. 7.

[14]      Australian Steel Association, Submission 10, p. 6.

[15]      Australian Steel Association, Submission 10, p. 3.

[16]      International Institute for Trade, Submission 5, p. 3.

[17]      Law Council of Australia and Law Institute of Victoria, Submission 11, p. 3.

[18]      Customs, Answers to question on notice, 4 May 2011 (received 7 June 2011), p. 22.

[19]      Customs, Answers to question on notice, 4 May 2011 (received 7 June 2011), p. 22.

[20]      Customs, Answers to question on notice, 4 May 2011 (received 7 June 2011), p. 22.

[21]      Customs Act 1901, s. 269ZV(1).

[22]      JELD-WEN, Submission 7, p. 2.

Chapter 6 - Rebuttable presumption of dumping

[1]        Dr Garry Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 40.

[2]        Mr Brad Crofts, National Economist, Australian Workers' Union, Proof Committee Hansard, 4 May 2011, p. 46.

[3]        CSR Limited, Submission 6, p. 1.

[4]        CSR Limited, Submission 6, p. 3.

[5]        Customs, Submission 15, p. 4.

[6]        World Trade Organization, Article 7 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994,  http://www.wto.org/english/docs_e/legal_e/19-adp.pdf  (accessed: 26 May 2011).

[7]        CSR Limited, Submission 6, p. 3.

[8]        Department of Foreign Affairs and Trade, Submission 20, pp 2-4 (emphasis omitted).

[9]        Mr Andrew Percival, solicitor representing JELD-WEN, Proof Committee Hansard, 4 May 2011, p. 14.

Chapter 7 - Amendments affecting the application process and the preliminary stages of an investigation or review

[1]        Customs noted that the Explanatory Memorandum of the Customs Act explains that instruments made under Part XVB of the Act are specifically declared not to be legislative instruments under the same regulations 'in order to avoid the possibility of non compliance with the [WTO Anti-Dumping] Agreement'. Source: Customs, Submission 15, p. 4.

[2]        Customs, Submission 15, p. 4.

[3]        Customs, Submission 15, p. 4.

[4]        JELD-WEN, Submission 7, pp 3-4.

[5]        Law Council of Australia and Law Institute of Victoria, Submission 11, p  2.

[6]        World Trade Organization, Anti-Dumping Agreement: B. Interpretation and Application of Article 2: 1(a)(i): Recommendation by the Committee on Anti-Dumping Practices; cited in Department of Foreign Affairs and Trade, Submission 20, p. 5.

[7]        Explanatory Memorandum, Customs Amendment (Anti-Dumping) Bill 2011, p. 6.

[8]        Construction, Forestry, Mining and Energy Union, Submission 8, p. 2.

[9]        Customs, Submission 15, p. 5.

[10]      Moulis Legal, Submission 12, p. 7.

[11]      Provided the applicant meets certain threshold requirements, including that an application is supported by a sufficient part of the Australian industry. An application can be considered to have sufficient support if: (1) it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application; and (2) they account for 25 per cent or more of the total production or manufacture of like goods in Australia.

[12]      Explanatory Memorandum, Customs Amendment (Anti-Dumping) Bill 2011, p. 2.

[13]      Customs, Submission 15, p. 1.

[14]      Customs, Submission 15, p. 1.

[15]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 12.

[16]      Article 6.11 of the AD Agreement and Article 12.9 of the SCM Agreement. See:  World Trade Organization, Article 6 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/19-adp.pdf  (accessed: 18 May 2011), and Article 12 of Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, http://www.wto.org/english/docs_e/legal_e/24-scm.pdf (accessed: 7 June 2011).

[17]      International Institute for Trade, Submission 5, p. 4.

[18]      JELD-WEN, Submission 7, p. 2.

[19]      Australian Steel Association, Submission 10, p. 8.

[20]      Australian Paper Association, Submission 2, p. 2.         

[21]      Australian Paper, Submission 2, p. 3.

[22]      Customs, Submission 15, p. 8.

[23]      Article 7 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, cited in Department of Foreign Affairs and Trade, Submission 20, p. 8.

[24]      JELD-WEN, Submission 7, p. 5.

[25]      CSR Limited, Submission 6, p. 3.

[26]      Law Council of Australia and Law Institute of Victoria, Submission 11, p. 5.

Chapter 8 - Amendments affecting the conduct of an investigation or review

[1]        This section refers to amendments made under items: 11, 16, 17, 18, 25, 26, 29, 30, 31, 33, 35, 38, 41, 42, 43, 44 and 45 of Schedule 1 of the bill.

[2]        Australian Manufacturing Workers Union, Submission 4, p. 3.

[3]        Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 13.

[4]        Australian Paper Association, Submission 2, p. 3.

[5]        JELD-WEN, Submission 7, p. 10.

[6]        Customs, Submission 15, p. 6.

[7]        Moulis Legal, Submission 12, p. 10.

[8]        Customs, Submission No. 33 to Productivity Commission Inquiry: Australia's Anti-dumping and Countervailing System, 2009, p. 3,  http://www.pc.gov.au/__data/assets/pdf_file/0007/90448/sub033.pdf (accessed: 18 April 2011)

[9]        Department of Foreign Affairs and Trade, Submission 20, p. 11.

[10]      Department of Foreign Affairs and Trade, Submission 20, p. 12.

[11]      This section refers to amendments made under items: 11, 14, 15, 16, 17, 18, 24, 25, 26, 28, 29, 30, 31, 33, 35, 38, 41, 42, 43, 44, and 45 of the bill.

[12]      Australian Workers' Union, Submission 3, p. 28.

[13]      Mr Innes Willox, Director of International and Government Relations, Australian Industry Group, Proof Committee Hansard, 4 May 2011, p. 43.

[14]      Law Council of Australia and Law Institute of Victoria, Submission 11, p. 3.

[15]      Customs, Submission 15, p. 6.

[16]      Customs, Submission 15, p. 6.

[17]      Customs, Submission 15, p. 9.

[18]      Law Council of Australia and Law Institute of Victoria, Submission 11, p. 4.

[19]      Department of Foreign Affairs and Trade, Submission 20, p. 10.

[20]      Customs, Submission 15, p. 2.

[21]      Customs, Submission 15, pp 2‑3.

[22]      Dr Ronald Silberberg, Senior Corporate Advisor, JELD-WEN, Proof Committee Hansard, 4 May 2011, p. 16.

[23]      Customs, Answers to questions on notice, 4 May 2011 (received 7 June 2011), p. 12.

[24]      Department of Foreign Affairs and Trade, Submission 20, p. 10.

[25]      Ar  ticle 4 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, cited in Department of Foreign Affairs and Trade, Submission 20, p. 10.

[26]      This section discusses items 19, 20, 21 and 22 of the bill.

[27]      Similar provisions exist under paragraphs: 269TH(4), 269TJ(12) and 269TK(6) of the Act.

[28]      Customs Act 1901, s. 269TG(3A).

[29]      International Institute for Trade, Submission 5, p. 5.

[30]      Customs, Submission 15, p. 9.

[31]      Law Council of Australia and Law Institute of Victoria, Submission 11, p. 4.

[32]      Articles 6.5 and 12.4 of the AD and SCM Agreements, respectively.

[33]      Department of Foreign Affairs and Trade, Submission 20, p. 14.

[34]      Customs Act 1901, para. 269X(3)(a).

[35]      JELD-WEN, Submission 7, p. 7; Law Council of Australia and the Law Institute of Victoria, Submission 11, p. 5.

[36]      Department of Foreign Affairs and Trade, Submission 20, p. 14.

[37]      Customs, Submission 15, p. 9.

[38]      Construction, Forestry, Mining and Energy Union, Submission 8, p. 4.

[39]      Dr Ronald Silberberg, Senior Corporate Advisor, JELD-WEN, Proof Committee Hansard, 4 May 2011, p. 16.

Chapter 9 - Other issues

[1]        Moulis Legal, Submission 12, p. 11.

[2]        Law Council of Australia and Law Institute of Victoria, Submission 11, pp 5-6.

[3]        Australian Industry Group, Submission 9, p. 3.

[4]        CSR Limited, Submission 6, p. 4.

[5]        JELD-WEN, Submission 7, p. 14.

[6]        Explanatory Memorandum, Customs Amendment (Anti-Dumping) Bill 2011, p. 2.     

[7]        CSR Limited, Submission 6, p. 3.

Minority Report of Senator Cameron and Senator Pratt

[1]        Professor Martin Richardson, Submission 1, p. 2.

[2]        Productivity Commission, Australia's Anti-dumping and Countervailing System, No. 48,
18 December 2009, p. xii.

[3]        Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade
http://www.wto.org/english/docs_e/legal_e/19-adp_01_e.htm (accessed 18 May 2011).

[4]        Productivity Commission, op cit xxviii.

[5]        Article VI: Anti-dumping and Countervailing Duties,  General Agreement on Tariffs and Trade 1947, http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm, (accessed 18 May 2011)

[6]        Agreement on Subsidies and Countervailing Measures http://www.wto.org/english/docs_e/legal_e/24-scm_01_e.htm (accessed 18 May 2011).

[7]        Don't Dump on Australia, Anti-Dumping Roundtable Issues Paper, 20 April 2011, p. 3. http://www.awu.net.au/anti_dumping_rt_issues_paper.pdf  (viewed 18th June 2011).

[8]        Lenore Taylor, 'Industry dumps on China free trade deal', Australian Financial Review, 6 December 2004, p.1

[9]        Senator Nick Xenophon, Senate Hansard, 2 March 2011, p. 972.

[10]      Ms Judith Zeilke, DIISR, Proof Committee Hansard, 4^th May 2011, p.8

[11]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 41.

[12]      Mr Ronald Silberberg, JELD-WEN, Proof Committee Hansard, 4 May, 2011, p. 13.

[13]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 43.

[14]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 43.

[15]      Australian Industry Group, Answer to questions on notice, 4 May 2011 (received 6 June 2011).

[16]      Mr Travis Wacey, Australian Manufacturing Workers' Union; Mr Joel Fetter, Australian Council of Trade Unions, Proof Committee Hansard, 4 May 2011, p. 29.

[17]      Mr Andrew Hudson, Law Institute of Victoria; Mr Andrew Percival, Law Council of Australia, Proof Committee Hansard, 4 May 2011, p. 23.

[18]      Mr. Brad Crofts, Australian Workers' Union, Proof Committee Hansard, 4 May 2011,
pp 29-30.

[19]      Mr. Brad Crofts, Australian Workers' Union; Mr. Travis Wacey, Australian Manufacturing Workers' Union, Proof Committee Hansard, 4 May 2011, p. 33.

[20]      Department of Industry, Innovation, Science and Research; Answers to questions on notice, 4 May 2011 (received on 6 June 2011).

[21]      Dr Garry Jones, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 36.

[22]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 43.

[23]      Australian Council of Trade Unions, Answers to questions on notice, 4 May 2011 (received 6 June 2011), p. 3.

[24]      Ibid p. 4.

[25]      Mr Andrew Percival, Law Council of Australia, Proof Committee Hansard, 4 May 2011, p. 20.

[26]      Mr Andrew Percival, Law Council of Australia, Proof Committee Hansard, 4 May 2011, p. 21.

[27]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 43.

[28]      Mr Ronald Silberberg, Proof Committee Hansard, 4 May, 2011, p.16.

[29]      Mr Andrew Hudson, Law Institute of Victoria, Proof Committee Hansard, 4 May 2011, p.19.

[30]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, pp. 41-42

[31]      Mr Innes Willox, Ai Group, Proof Committee Hansard, 4 May 2011, p. 45.

Dissenting Report from Independent Senator Nick Xenophon

[1]        Explanatory Memorandum, Customs Amendment (Anti-Dumping) Bill 2011.

[2]        CSR Limited, Submission 6, p. 1; Australian Workers' Union, Submission 3, p. 27.

[3]        Mr Brad Crofts, Australian Workers' Union, Proof Committee Hansard, 4 May 2011, p.26.

[4]        Proof Committee Hansard, 4 May 2011, p. 43.

[5]        Australian Workers' Union, 'Don’t Dump on Australia – an AWU campaign defending good jobs', Media Release, http://www.awu.net.au/628783_5.html

[6]        CFMEU, Submission 8, p. 1.

[7]        Proof Committee Hansard, 4 May 2011, p. 29.

[8]        Mr Innes Willox, Australian Industry Group, Proof Committee Hansard, 4 May 2011, p. 41.

[9]        Application for Dumping and/or Countervailing Duties, http://www.customs.gov.au/site/page5718.asp

[10]      Dr Garry Jones, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 39.

[11]      Australian Industry Group, Submission 9, p. 2.

[12]      Answers to questions on notice, 4 May 2011 (received 6 June 2011).

[13]      Mr Geoff Gleeson, Director, Trade Measures Branch, Customs, Proof Committee Hansard, 4 May 2011, p. 10.

[14]      Mr Innes Willox, Australian Industry Group, Proof Committee Hansard, 4 May 2011, p. 43.

[15]      Mr Brad Crofts, Australian Workers' Union, Proof Committee Hansard, 4 May 2011, p. 26.

[16]      Mr Andrew Percival, Law Council of Australia; Mr Andrew Hudson, Law Institute of Victoria Proof Committee Hansard, 4 May 2011, p. 23.

[17]      Ms Judith Zielke, Department of Innovation, Industry, Science and Research, Proof Committee Hansard, 4 May 2011, p. 8.

[18]      Ms Sue Pitman, National Director, Trade and Compliance, Customs, Proof Committee Hansard, 4 May 2011, p. 9.

[19]      Mr Innes Willox, Australian Industry Group, Proof Committee Hansard, 4 May 2011, p. 41.

[20]      Australian Workers' Union, Submission 3, p. 28.

[21]      Dr Ronald Silberberg, JELD-WEN, Proof Committee Hansard, 4 May, 2011, p. 16.

[22]      Mr Andrew Hudson, Law Institute of Victoria, Proof Committee Hansard, 4 May 2011, p. 19.

[23]      Australian Manufacturing Workers Union, Submission 4, p. 3.