Second Reading Speech – Customs Amendment (Anti-Dumping Measures) Bill 2013



This is the sixth tranche of anti-dumping legislation introduced by this government into the Parliament in the past two years.

Tranche one, which passed the Parliament in November 2011:

  • Imposed a time limit on ministerial decision making in anti-dumping and countervailing cases;
  • Clarified that all appropriate and relevant factors which may indicate material injury to an Australian industry are specifically listed as factors to which the Minister may have regard; and
  • Clarified that parties with a clear interest in anti-dumping matters are expressly given an opportunity to participate in anti-dumping investigations.

Tranche two, which passed the Parliament in February last year:

  • Established a new appeals process – the Review Officer Panel – to replace the existing appeals mechanism established in the legislation; and
  • Established the International Trade Remedies Forum in legislation.

Tranche three made several changes, including:

  • Removing a limitation to the inclusion of profit when constructing a ‘normal value’ of a good; and
  • Removing the need for a separate review of anti-dumping measures and a continuation inquiry when they occur in close proximity to one another.

Tranche four:

  • Better aligned the anti-dumping and countervailing system with the systems of our WTO counterparts;
  • Introduced provisions designed to address the circumvention of trade measures; and
  • Strengthened the ability of the anti-dumping system to address parties’ non-cooperation during the investigation process.

And tranche five – which passed the parliament in March – established the Australian Anti-Dumping Commission.

Tranche one is now operational. Tranches two, three and four will come into effect next month. This includes the Anti-Dumping Review Panel – to provide timely and appropriate merits review of anti-dumping decisions.

Today I can the three individuals who have been appointed to the panel. They are:

  • The Honourable Michael Moore, former Federal Court judge;
  • Ms Joan Fitzhenry, a lawyer specialising in anti-dumping cases; and
  • Mr Graham McDonald, former Presidential Member of the Federal Administrative Appeals Tribunal.

I would like to take this opportunity to thank Stephen Skehill, the outgoing Trade Measures Review Officer, for his dedication to this role over the past two years.

He has set the precedent for thorough and reasoned review that is inherent in a truly independent review process – and I expect the panel to follow his good work with their own.

Tranche five established the Australian Anti-Dumping Commission – it will start work on 1 July.

I expect to be in a position to announce the appointment of the Anti-Dumping Commissioner shortly.

The new Anti-Dumping Commission will start work with significantly more funding.

In December the Prime Minister, the Minister for Industry and Innovation and I announced an additional $24.4 million for the administration of our anti-dumping system.

That money was included in the budget delivered two weeks ago.

These bills, the Customs Amendment (Anti Dumping Measures) Bill 2013 and the Customs Tariff (Anti Dumping) Amendment Bill 2013, represent the next step in the government’s anti-dumping reforms.

Together these Bills do three key things:

  • They remove, in certain circumstances, the need for the Minister to consider the lesser duty rule;
  • They clarify the application of existing retrospective duties provisions; and
  • They introduce a new type of anti-circumvention inquiry to address ‘sales at a loss’ cases.

I will now step through each of these in detail.

Removal of the mandatory consideration of the lesser duty rule

These Bills will remove, in certain circumstances, the Minister’s mandatory consideration of the lesser duty rule.

This means that the Minister will have discretion to consider the desirability of fixing a lesser duty, in certain circumstances.

These circumstances are where:

  • In dumping cases, there is a finding of a particular market situation for the goods in the country of export;
  • In subsidy cases, the country of export has not complied with obligations to notify subsidies, as established under the World Trade Organization; and
  • In any type of case, the Australian industry producing like goods consists of at least two small-medium enterprises – whether or not that industry consists of other enterprises.

In these complex cases, where injurious dumping or subsidisation has been found, the Minister will be given the discretion to impose the maximum permitted duties.

Clarification of the application of retrospective duties

Secondly, the Bill makes changes to the retrospective duties provisions to align the legislation more closely to the relevant World Trade Organization agreements.

The amendments also make it clear that the relevant Minister is the ‘decision maker’ for certain elements required to be established in the process of applying retrospective duties.

The Bill will also make a number of amendments to existing retrospective duties provisions to improve their structure and consistency.

The retrospective duties provisions are currently very difficult to understand, indeed, they have never been used.

We are making these reforms to improve the accessibility of the retrospective duties provisions – and clarify their application.

We are also revising the guidelines on the application of these provisions – to make their operation clearer.

Introduction of a new type of anti-circumvention inquiry to address ‘sales at a loss’ cases

Thirdly, this Bill introduces a new type of anti-circumvention inquiry to address ‘sales at a loss’ cases.

Last year we passed legislation to introduce an anti circumvention framework into Australia’s anti dumping system.

The reforms in this bill will take that framework one-step further by addressing situations where anti dumping measures have been ineffective.

A new type of anti circumvention inquiry will be able to be conducted faster than other anti-circumvention inquiries, taking only 100 days, instead of 155 days.

This type of inquiry can be initiated following an application from Australian industry where there is evidence that prices of the imported goods have not increased in line with the imposition of the duties.

The Minister will also have the power to commence this type of inquiry.

The Bill will also make a complementary change to the present provisions of the legislation that will allow more rigorous treatment of transactions where evidence suggests that the price is influenced by a commercial or other relationship between the parties.

This will allow ‘sales at a loss’ situations to be addressed at the outset, in both establishing the existence of dumping, and in setting an appropriate level of measures.



In developing these reforms, the Government has consulted closely with members of the International Trade Remedies Forum.

This Forum has played a substantial role in providing advice to the Government on the operation of Australia’s anti-dumping system – and on options for reform.

I would like to take this opportunity to thank all members of the Forum members for their input to date, much of which has found its way into these tranches of legislation.

I will continue to work closely with the Forum and I expect it will continue its vigorous discussion and input into policy development.

This Bill is not the last word on anti-dumping reform.

There is more work to be done – and I look forward to working with members of the International Trade Remedies Forum, and others, on this important task.

I commend this Bill to the House.