Chapter 3

Views on the bill

Support for the bill

3.1        A number of stakeholders involved in different ways with Australia's anti‑dumping system gave their general support to the intent of the bill.

Government departments

3.2        The Department of Agriculture, Fisheries and Forestry (DAFF) indicated their support for all of the proposed amendments, stating that they:

...would be concerned if the test formulated in the Siam decision resulted in legitimate, WTO-compliant measures being revoked in situations where they remained warranted and injurious dumping could recommence as a result.[1]

3.3        DAFF also considers that the revocation test outlined in the amendments would provide certainty to Australian agriculture, fisheries and forestry industries.[2] Clarification of the review process would also 'improve procedural fairness and benefit our stakeholders'.[3]

Trade unions

3.4        The Australian Workers' Union (AWU) submitted that they welcome the proposed amendments:

...to the extent they clarify laws governing the process for reviewing anti‑dumping measures. Measures [aimed at preventing dumping, subsidisation and/or injury] should not be removed prematurely...prior to due consideration by the Minister.[4]

3.5        The Construction, Forestry, Mining and Energy Union (CFMEU) considers the bill:

...does provide some added certainty and clarity for Australian manufacturers who would otherwise suffer material injury from dumping if the unfair trade they faced was not currently and continued to be remedied through the levying of anti‐dumping duties on dumped like imports...[5]

3.6        However, both the AWU and the CFMEU submitted that further action needs to be taken to improve Australia's anti-dumping and countervailing system, and highlighted that the private senator's bill currently before the Senate may address some of these concerns.[6]

Industry groups

3.7        The Australian Industry Group welcomed the amendments, stating that the bill would address undesirable outcomes resulting from the Siam decision:

The amendments proposed in this Bill would overcome the incorrect interpretation of the relevant provisions of the [Customs] Act and are welcomed by Australian industry as restoring the balance when considering whether or not measures should be revoked.[7]

3.8        The Australian Food and Grocery Council also indicated its support for clarifying the revocation test 'to ensure Australian industries can take advantage of measures to address what are perceived by many to be unfair trading practices'.[8]

Criticism of the bill

Inconsistency with WTO obligations

3.9        The Explanatory Memorandum for this bill states that the amendments are compliant with the WTO's Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement, or AD Agreement) and the Agreement on Subsidies and Countervailing Measures (SCM Agreement).[9]

3.10      This view was not shared by the Law Council of Australia and the Law Institute of Victoria (LIV), or by JELD-WEN Australia. The concerns expressed in their respective submissions centred on possible non-compliance with Article 11.1 and 11.2 of the AD Agreement.

3.11      The Law Council and the LIV consider that the amendments 'effectively render the revocation of measures in a review conditional upon the publication of a revocation review notice'.[10] The consistency of this arrangement with Article 11 of the AD Agreement, which requires that 'an anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury',[11] was queried by the Law Council/LIV and JELD-WEN.

3.12      The Law Council and LIV submitted that this principle was made clear by the WTO Panel in a 1999 ruling,[12] which found that:

Article 11.1 was a general rule that dumping measures are to remain in force for only as long and to the extent necessary to counteract dumping that is causing injury.[13]

3.13      The Law Council and LIV also discussed Article 11.2 of the AD Agreement, which outlines the basis for reviews of anti-dumping measures by relevant authorities, and WTO rulings related to this clause. The WTO Appellate Body, which considers appeals from reports issued by WTO panels, ruled in 2005 that:

Where the conditions in Article 11.2 have been met, the plain words of the provision make it clear that the agency has no discretion to refuse to complete a review, including consideration of whether the duty should be terminated in the light of the results of the review.[14]

3.14      The Law Council and LIV consider that this ruling means that:

...in a review of measures, the relevant authorities have no discretion in whether or not to consider whether the measures should be revoked. Rather the authorities are obliged to consider whether the measures remain necessary to offset dumping and, if so, to what extent.[15]

3.15      Consequently, the Law Council and LIV submit that to ensure compliance with Australia's WTO obligations, every review of measures should consider whether the measures remain warranted, rather than allowing reviews to be confined to variable factors.[16]

3.16      While JELD-WEN Australia 'does not directly oppose the proposed regime',[17] it also queried the new process, submitting that:

...introducing a bifurcated review process, that is, one for a review of variable factors and another for whether measures should be revoked is inconsistent with Australia’s international legal obligations under Article 11 of the Anti-Dumping Agreement and introduces unnecessary complexity to the review process...once a review has been initiated, consideration must then be given to whether the anti-dumping measures are "necessary to offset dumping or subsidisation, whether the injury would be likely to continue or recur if the measures were removed or varied or both". If the measures are not 'necessary', then they must be revoked.[18]

3.17      JELD-WEN further stated:

...under the proposed rules, it is entirely feasible that measures may continue for longer than necessary, because of the threat of impending dumping, which almost by definition is unable to be demonstrated. Unless it is abundantly clear that dumping "is likely to recur", Australia would be in breach of Article 11.1 of the WTO Anti-Dumping Agreement.[19]

Not all proposed amendments are necessary

3.18      The need for some amendments to address the issues raised by the Siam decision was questioned by some submitters. JELD-WEN considers that, by introducing a specific regime for reviews of whether anti-dumping measures remain warranted, the bill goes:

...significantly further than addressing the specific issue raised by the Siam Polyethylene decision.[20]

3.19      The Law Council and LIV similarly consider that the Siam decision did not create a reason to render the revocation of measures conditional on the publication of a revocation review notice. They claim that the issues raised by the Siam decision can be 'simply addressed' by:

...making explicit the test to be satisfied for the CEO of Customs to recommend the revocation of measures and for the Minister to revoke the measures. This is contained in the proposed subparagraph 269ZDA(1)(1A)(b) set out in Item 13 of schedule 1 to the Anti-Dumping Bill.[21]

Timing of the bill

3.20      Some submissions also queried the timing of the bill and the process in place to consider its amendments, given other legislative developments and policy under consideration.

3.21      As discussed elsewhere in this report, Senator Xenophon's private senator's bill, which addresses a number of aspects of Australia's anti-dumping regime, is currently before the Senate and is subject to a separate inquiry by this committee. The CFMEU suggested that the private senator's bill, the Customs Amendment (Anti‑Dumping) Bill 2011:

...provides a better base for reforming the anti-dumping and countervailing system in the national interest based on the [CFMEU's]...guiding principles compared to this bill.[22]

3.22      The Government is also due to respond to the Productivity Commission's May 2010 report on Australia's anti‑dumping and countervailing system.

3.23      The Law Council and the LIV submitted that:

It would seem appropriate that the two Bills and the Government’s response to the Productivity Commission’s report be considered together and further, that other existing deficiencies in the legislation be addressed.[23]

3.24      On 5 May 2011, however, the Government announced that its response to the Productivity Commission report will be delayed until after the committee completed its separate inquiry into the private senator's bill.[24]

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