Chapter 10
Summary
Overall view
10.1
The committee has based this report on the views received in the
response to Customs Amendment (Anti-Dumping) Bill 2011. The committee has also
noted the Productivity Commission’s report on these issues to which the
government has not yet responded. The anti-dumping provisions of the Customs
Act 1901 interrelate to several areas including treaty law, manufacturing
industry policies and trade considerations. The committee has not been able to
consider these wider interrelationships fully during the course of its inquiry.
The committee believes that the government should clarify its views on anti
dumping policy as soon as possible to give certainty to Australian businesses,
their workers and unions.
10.2
The committee recommends that the Senate reject the majority of the
amendments proposed by the bill. Of primary concern is that, if enacted, many
of the proposals:
- could result in an unfair burden being imposed on various parties
which they would be unable to meet;
-
are likely not to meet their stated objectives in practice;
- would be practically difficult for Customs to administer; or
- are likely to be non-compliant with Australia's WTO obligations.
10.3
The committee does, however, support some of the proposals contained in
the bill. Additional recommendations have also been made regarding some issues
that were examined during the course of this inquiry.
Recommendation 12
The committee recommends that the Senate reject clause 4 of
the bill and items 3–24, 26–28, 30–31 and 33–47 in Schedule 1 to the bill.
Subject to the recommendation
above being adopted, the committee recommends that the Senate pass the
remaining provisions of the bill.
10.4
The remainder of this chapter provides a summary of the other findings
and recommendations made in this report.
Key findings and recommendations
Timeframes and resourcing
10.5
The committee is concerned that the existing statutory 155 day timeframe
during which an investigation is to be conducted is insufficient in the current
anti-dumping and countervailing environment, and could potentially limit
the ability to improve both Australia's administrative and legal anti-dumping
and countervailing framework. This is clearly demonstrated by the number of
times Customs has sought, and the Minister has approved, extensions to the
timeframe for specific investigations and reviews.
10.6
The committee is concerned that without substantial improvements to the
resourcing of Customs, the effectiveness of any potential changes to the
administrative and legal framework would be diminished, and could potentially
fail to reduce the burden on users of the system.
Recommendation 1
The committee recommends that the Government re-examine the
statutory timeframes imposed to investigate and review anti-dumping and
countervailing applications, in light of the lengthy and prevalent extensions
to investigative timeframes.
Recommendation 2
The committee recommends that the Government examine the
current resourcing (in monetary terms and in the level and expertise of
staffing) provided to the Australian Customs and Border Protection Service
(Customs) and the Trade Measures Review Officer to investigate and review
anti-dumping and countervailing applications. This examination should recognise
the reduced budget allocation to the Trade Measures Branch of Customs, as well
as the increased workload experienced over the past three financial years.
Evidential burdens
10.7
The significant timeframe (five years) over which measures can be
imposed requires that sufficient evidence be gathered to substantiate an
anti-dumping or countervailing measure. The committee is concerned that the
amendment would not require sufficient data to be collected to allow applicants
to substantiate their case, thereby leaving Customs with no option but to
reject their application for lack of sufficient evidence.
10.8
The committee believes that the proposal to reverse the onus of proof,
requiring importers to substantiate that dumping is not taking place, would
result in an unfair burden being imposed on importers which may not have access
to the information required to substantiate that dumping is not occurring.
10.9
In addition, the rebuttable presumption amendment reduces the information
verification role of Customs, as there would be a lower incentive for Customs
to pursue the veracity of information provided from both the complainant and
opposing parties to an anti-dumping/countervailing application. This would
weaken the evidence-based nature of an investigative process, and limit
Customs' ability to comply with the Act's requirements under section 269TC,
which require reasonable grounds to be established for the publication of a
dumping or countervailing duty notice.
10.10
Further, the rebuttable presumption amendment and the reversal of onus
of proof are likely to not conform with Australia's international obligations
under the AD and SCM Agreements.
Recommendation 4
The
committee recommends the Senate reject items 3, 4 and 7 of the bill.
Recommendation 5
The committee recommends the Senate reject item 8 of the
bill.
Recommendation 3
The committee recommends that
to address the recurring issue of import data restrictions that place a
significant evidentiary burden on complainants in anti-dumping/countervailing
applications, the Government should require the Australian Bureau of Statistics
to improve access to non-confidential import data and to reduce the suppression
of import data on grounds of confidentiality where public records of the data
exist.
Applications and submissions
10.11
The bill includes a proposal to make it easier for applications from
small manufacturers who account for less than 25 per cent of production to be
considered. The committee is concerned that this amendment is not consistent
with other sections of the Act, which undermines the ability of the amendment
to achieve its objective. It is also likely to be inconsistent with Australia's
international obligations. Consequently, the committee does not support the
amendment.
10.12
The bill also amends the definitions of interested and affected parties
to include in the definitions 'a trade union organisation some of whose members
are directly concerned with the production or manufacture of like goods'. Any
adjustments to the definitions of interested and affected parties should ensure
that the system remains balanced, fair, and accessible to those parties most
likely to be affected by potential anti-dumping or countervailing notices.
Consequently, the committee believes that the amendments should be expanded to
include Australian downstream users in the definition of 'interested' and
'affected' parties.
Recommendation 6
The committee recommends that
items 1, 2 and 32 in Schedule 1 of the bill which expand the definitions of
'interested' and 'affected party' to include trade union organisations be
adopted, and that the definitions be further extended to include Australian
industries that use like goods as inputs to manufacture.
10.13
The bill would require the CEO and the TMRO to have regard 'to any new
or updated information that is provided...by an interested party that
reasonably could not have been provided earlier'.
10.14
The committee is concerned about the ultimate workability of this
amendment as drafted. The changed role of the TMRO under the amendments also
makes the boundaries between investigation and review unclear, and introduces
business uncertainty.
Recommendation 7
The committee recommends that the
Senate reject the amendments proposed by the bill to allow new or updated
information to be considered during various stages of an investigation or
review.
The committee recommends that Part XVB of the Customs Act
1901 be amended to require that, when the CEO of Customs is formulating the
statement of essential facts as part of an investigation under Division 2, review
under Division 5 or continuation investigation under Division 6A, he or
she must have regard to any other submission received by Customs relating
generally to the investigation or review if, in the CEO’s opinion, having
regard to the submission would not prevent the timely placement of the
statement of essential facts on the public record.
Consultation with industry experts
10.15
The specific nature of many of the goods subject to anti-dumping and
countervailing measure investigations often requires industry expertise to
assist in determining the variable factors that Customs needs to establish
before it can make a determination of whether material injury is being caused
by dumping or subsidisation. Consequently, the committee supports greater
utilisation of industry experts during an investigation period.
10.16
A legislative requirement, however, for Customs to consult with experts
as part of all investigations and reviews could result in unnecessary costs. It
is possible that there may be situations where the information available to
Customs is sufficient for it to not consult with an expert, but Customs would
still be required to do so as a result of this provision. The committee
considers the decision whether to engage an expert as part of a particular
investigation or review should be left to Customs' discretion.
Recommendation 8
Pursuant to recommendations 1 and 2, the committee
recommends that the Government examine the underlying reasons for the low level
of consultation with industry experts, and how this affects the outcome of
investigations of the Australian Customs and Border Protection Service.
Consideration of economic factors
10.17
The bill makes a number of changes to Part XVB of the Act related to the
matters the CEO considers at various stages of an anti-dumping and
countervailing investigation, and the economic factors the Minister may have
regard to when determining material injury.
10.18
The committee believes that in their current form, the amendments do not
adequately define the new factors that the CEO must consider during an
investigation. This could create further confusion during the conduct of an
investigation and in subsequent reviews.
10.19
Customs has indicated that it considers all economic factors where
possible. The key, therefore, is for Customs to be transparent about the
methodology it has used during its investigation. This extends to which factors
were considered and the reasons for a determination that these factors do not
show that material injury has occurred.
Recommendation 9
The committee recommends that the Government require
Australian Customs and Border Protection Service (Customs) to:
- detail what economic factors were considered in its
determinations during its anti-dumping and countervailing investigations and
any subsequent review of its determinations;
- provide an explanation as to why it was unable to consider any
of these economic factors as part of its investigation; and
- provide reasons for its determination where economic factors
do not show material injury or threat of material injury where dumping has been
proved. These provisions will enhance the transparency of Customs' decisions,
as well as allow interested parties the opportunity to better tailor and
substantiate their applications and in any subsequent reviews of Customs'
decisions.
Treatment of confidential
information
10.20
The committee is concerned the proposed amendment is problematic from an
administrative point of view. Requiring Customs to summarise third party information
increases the risk of information that a party considers was
commercial-in-confidence being published inadvertently.
10.21
However, there are legitimate reasons for ensuring that third-party
information be accessible where it is crucial to the investigation while still
protecting the confidentiality of the information.
Recommendation 10
The committee recommends that the Government consider
introducing a framework for certain professions to be able to access
information supplied to Customs and the Minister on a commercial-in-confidence
basis, provided they enter into a legally enforceable confidentiality
undertaking.
Appeals and requirement for an
independent review
10.22
The bill would allow a decision of the CEO, the Minister or the Review
Officer to be appealed to the Administrative Appeals Tribunal for review. The
committee believes that introducing a further layer of review would prolong the
period of uncertainty and increase the costs to all users of the system,
including domestic producers, importers and exporters. The Administrative
Appeals Tribunal would also not necessarily have the same level of expertise
and understanding of the issues which face the domestic industries and the
global factors that give rise to dumping/countervailing investigations, which
may lengthen the process of review even further.
10.23
The bill also would require the Minister to initiate an independent
review of the operation of the first two years of the amended anti-dumping
system after the amendments have implemented. The committee notes it does not
support the majority of amendments proposed by this bill. If the committee's
recommendations regarding the provisions of the bill are supported by the
Senate, the need for a legislative requirement that an independent review of
the amended Part of the Act be conducted is less apparent.
Recommendation 11
The committee recommends that the Senate reject item 47 and
clause 4.
Table 10.1: Summary of the
committee's view on the compliance of the items in Schedule 1 of the bill
with Australia's WTO obligations
|
Item(s) of the Bill
|
Summary of Amendment
|
Inconsistency with WTO obligations
|
Committee's view
|
|
Improve
accessibility to the system and strengthen avenues for appeal
|
|
1,
2, 32
|
Trade
union organisations
to be included in definitions of 'affected parties' and 'interested parties'
in applications and reviews.
|
No apparent
inconsistencies
|
Support the
amendments, with modifications.
|
|
9,
10
|
Small
manufacturers representing
less than 25% of production of goods to be allowed standing in applications
and reviews of measures, and in reviews of continuations of measures.
|
Potentially inconsistent
with:
AD Articles 5.1 and 5.4; and
SCM Articles 11.1 and 11.4.
|
Reject the
amendments.
|
|
47
|
Administrative
Appeals Tribunal
-enable decisions to be referred to the Tribunal for appeal.
|
Potentially inconsistent with:
AD Article 5.10 and SCM Article 1.11.
|
Reject the amendments.
|
|
Reduce the
burden of proof on Australian manufacturers
|
|
12
|
Importer to
bear onus of proof
to demonstrate that the goods have not been dumped or subsidised.
|
Potentially inconsistent
with:
AD Articles 2.1, 2.4, 6.6, 6.9 and 6.10; and SCM Articles 12.5 and
12.8.
|
Reject the
amendments, make alternative recommendation
|
|
3,4,7
|
Rebuttable
presumption of dumping - where dumping and material injury have been
proven, the material injury is the result of the dumping.
|
Potentially inconsistent with:
AD Articles 3.1, 3.2, 3.4 and 5.2; and SCM Articles: 11.2, 15.1, 15.2 and
15.4.
|
Reject the amendments.
|
|
Allow for
earlier implementation of anti-dumping/countervailing duties
|
|
13,
36, 46
|
Preliminary
Affirmative Determination to be implemented once an
investigation is started; and allow for interim duties to be collected once
the TMRO makes an affirmative decision during his/her review.
|
Potentially inconsistent
with:
AD Articles 7.1 and 7.3; and SCM Articles 17.1 and 17.3.
|
Reject the
amendments.
|
|
Change the
breadth and scope of information considered by CEO , the Minister and the
TMRO
|
|
8, 11
|
Reduce
information requirements for applicants – allow that information
supporting applications be based on evidence compiled in the previous
90 days.
|
Potentially inconsistent with AD
Article 5.2; and SCM Article 11.2.
|
Reject the amendments.
|
|
11, 14-18, 25-26,
29-31, 33- 35, 37-45
|
New or updated
information
by interested parties to be accepted and considered as part of
investigations, reviews, and appeals.
|
Potentially inconsistent with:
AD Articles 6.2, 6.4, 6.6, 6.9 and 11.4; and SCM Articles 12.2, 12.3, 12.5
12.8 and 21.4.
|
Reject the amendments, make
alternative recommendation.
|
|
11, 14-18, 24-26,
28-31, 33, 35, 38, 41-45
|
Consultation
with industry experts to be required as part of investigations and
reviews.
|
Potentially inconsistent with:
AD Articles 6.2, 6.4, 6.6, 6.9 and 11.4; and SCM Articles 12.2, 12.3, 12.5
12.8 and 21.4.
|
Reject the amendments, make
alternative recommendation.
|
|
5, 6, 14, 15
|
Expand
economic factors considered by the Minister; and require CEO to
forecast and consider potential impacts on the relevant and related
Australian industries during decision on preliminary affirmative
determination and in the statement of essential facts.
|
Potentially inconsistent with:
AD Article 4.1; and SCM Article 16.1.
|
Reject the amendments, make
alternative recommendation.
|
|
Restricts the
publication of Commercial-in-confidence information by the Minister and the
CEO
|
|
19-22
|
Prohibit the
Minister from
publishing information provided to ascertain export price and normal value
where information is commercial-in-confidence
|
Potentially inconsistent with:
AD Article 6.4 and 6.5; and SCM Article 12.3 and 12.4.
|
Reject the amendments, make
alternative recommendation.
|
|
23
|
CEO must give
applicant a summary of information provided by a third party in a way
that does not breach the confidentiality of the information.
|
Potentially inconsistent
with:
AD Article 6.4 and 6.5; and SCM Article 12.3 and 12.4.
|
Reject the
amendments, make alternative recommendation.
|
|
Forms related
to anti-dumping and countervailing applications to be made legislative
instruments
|
|
8,11, 27
|
Makes the
application form for imposition and continuation of anti
dumping/countervailing measures a legislative instrument.
|
No apparent inconsistencies
|
Reject the amendments.
|
Senator Annette
Hurley
Chair
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