Commonwealth: Customs Legislation (World Trade Organization Amendments) Act 1994 (Cth)

Customs Legislation (World Trade Organization Amendments) Act 1994 No. 150 of 1994 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title 2. Commencement 3. Application PART 2—AMENDMENTS OF THE CUSTOMS ACT 1901 4. Principal Act 5. Right to require security 6. Cancellation of bonds 7. Definitions 8. Insertion of new sections: 269TAAB. Member countries, developing countries and special developing countries 269TAAC. Definition—countervailable subsidy 269TAAD. Ordinary course of trade TABLE OF PROVISIONS—continued Section 9. Export price 10. Normal value of goods 11. Insertion of new sections: 269TACB. Working out whether dumping has occurred and levels of dumping 269TACC. Working out whether benefits have been conferred and amounts of subsidy 12. Material injury to industry 13. Repeal of sections and substitution of new section: 269TAF. Currency conversion 14. Revocation of notices 15. Application for action under Anti-Dumping Act 16. Consideration of application 17. Preliminary findings 18. Insertion of new section: 269TDA. Termination of investigations 19. Reviews by Authority 20. Dumping duties 21. Third country dumping duties 22. Countervailing duties 23. Concurrent dumping and subsidy 24. Third country countervailing duties 25. Minister to give public notice not to impose duty 26. Retrospective notices 27. Manner of making applications for duty assessment 28. Insertion of new Divisions: Division 6—Accelerated review of dumping duty notices or countervailing duty notices for residual exporters 269ZE. Circumstances in which accelerated review may be sought 269ZF. Application for accelerated review 269ZG. Consideration of application 296ZH. Effect of accelerated review Division 7—Procedural and evidentiary matters 269ZI. Public notice 269ZJ. Comptroller to maintain public record for certain purposes 29. Transitional PART 3—AMENDMENTS OF THE ANTI-DUMPING AUTHORITY ACT 1988 30. Principal Act 31. Definitions 32. Functions 33. Authority may make recommendations on publication of dumping duty notices etc. 34. Insertion of new sections: 7A. Review of termination decision under section 269TDA of the Customs Act 1901 7B. Termination of inquiry by Authority 7C. Authority may consider recommending to the Minister whether undertaking should be accepted 35. Authority may make recommendations of continuation of dumping duty notices etc. TABLE OF PROVISIONS—continued Section 36. Authority to have regard to same considerations as Minister in certain circumstances 37. Repeal of section and substitution of new sections: 23. Public notice of inquiries 23A. Authority to maintain public record for certain purposes 38. Transitional Customs Legislation (World Trade Organization Amendments) Act 1994 No. 150 of 1994 An Act to amend the Customs Act 1901 and the Anti-Dumping Authority Act 1988, to enable Australia to accept the Agreement Establishing the World Trade Organization, and for related purposes [Assented to 13 December 1994] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Customs Legislation (World Trade Organization Amendments) Act 1994. Commencement 2.(1) Sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent. (2) Parts 2 and 3 of this Act commence on the day on which the World Trade Organization Agreement enters into force for Australia. (3) For the purposes of subsection (2), the day on which the World Trade Organization Agreement enters into force for Australia is to be taken to be the day declared by the Governor-General, by Proclamation under paragraph 2(5)(b) of the Copyright (World Trade Organization Amendments) Act 1994, to be the day on which the Agreement enters into force for Australia. Application 3. This Act applies in respect of: (a) applications for publication of notices under subsection 269TG(1) or (2), 269TH(1) or (2), 269TJ(1) or (2) or 269TK(1) or (2) of the Customs Act 1901; and (b) applications for review of interim duty under subsection 269Z(1) of that Act, payable as a result of the publication of notices referred to in paragraph (a), whenever published; and (c) applications under subsection 7(3) of the Anti-Dumping Authority Act 1988: (i) for revocation of notices under subsection 8(5), 9(5), 10(3B) or 11(4) of the Customs Tariff (Anti-Dumping) Act 1975, whenever published; and (ii) for revocation or partial revocation of notices referred to in paragraph (a), whenever published; and (iii) for release or partial release from undertakings accepted by the Minister under section 269TG or 269TJ of the Customs Act 1901, whenever accepted; and (d) applications under section 8A of the Anti-Dumping Authority Act 1988 for continuation of notices referred to in paragraph (a), whenever published; that are made on or after the day on which the Agreement Establishing the World Trade Organization enters into force for Australia. PART 2—AMENDMENTS OF THE CUSTOMS ACT 1901 Principal Act 4. In this Part, "Principal Act" means the Customs Act 19011. Right to require security 5. Section 42 of the Principal Act is amended by omitting subsection (1C) and substituting the following subsections: "(1C) If: (a) an undertaking is given and accepted under subsection 269TG(4) or 269TJ(3) in respect of goods; and (b) the undertaking is subsequently breached; the Customs may require and take securities in respect of any interim duty that may be payable under the Customs Tariff (Anti-Dumping) Act 1975 on the goods or on like goods imported into Australia. "(1D) The right of the Customs under subsection (1) to require and take a security includes the right to require and take a security in respect of any interim duty that may be payable under the Customs Tariff (Anti-Dumping) Act 1975 on goods the subject of an application under subsection 269ZE(1) of this Act.". Cancellation of bonds 6. Section 45 of the Principal Act is amended: (a) by omitting "of the security" from subsection (2) and substituting "the security is taken"; (b) by omitting from paragraph (3)(a) "4 months" and substituting "6 months"; (c) by omitting from paragraph (3)(a) "6 months" and substituting "9 months". Definitions 7. Section 269T of the Principal Act is amended: (a) by omitting paragraph (d) of the definition of "interested party" in subsection (1), and substituting the following paragraphs: "(d) any person who is or is likely to be directly concerned with the production or manufacture of the goods the subject of the application or of like goods that have been, or are likely to be, exported to Australia; and (e) a trade organisation a majority of whose members are, or are likely to be, directly concerned with the production or manufacture of the goods the subject of the application or of like goods, with their importation or exportation into Australia, or with both of those activities; and (f) the Government of the country of export or country of origin: (i) of goods the subject of the application that have been, or are likely to be, exported to Australia; or (ii) of like goods that have been, or are likely to be, exported to Australia;"; (b) by inserting in subsection (1) the following definitions: " 'Agreement on Agriculture' means the Agreement by that name: (a) set out in Annex 1A to the World Trade Organization Agreement; and (b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia; 'Agreement on Subsidies and Countervailing Measures' means the Agreement by that name: (a) set out in Annex 1A to the World Trade Organization Agreement; and (b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia; 'allowable exemption or remission', in relation to exported goods, means: (a) the exemption of those goods from duties or taxes borne by like goods destined for domestic consumption; or (b) the remission of such duties or taxes otherwise payable in respect of those goods; in accordance with the provisions of Article XVI of the General Agreement on Tariffs and Trade 1994 and the provisions of Annexes I, II and III of the Agreement on Subsidies and Countervailing Measures; 'application', in relation to a dumping duty notice or a countervailing duty notice, means an application for the publication of such a notice; 'countervailable subsidy' means a subsidy that is, for the purposes of section 269TAAC, a countervailable subsidy; 'country of export', in relation to goods exported to Australia, means a country outside Australia from which those goods are exported to Australia, whether or not it is the country where those goods are produced or manufactured; 'country of origin', in relation to goods exported to Australia, means a country, whether the country of export or not, where those goods are produced or manufactured; 'dumped goods' means any goods exported to Australia that the Minister has determined, under section 269TACB, have been dumped; 'General Agreement on Tariffs and Trade 1994' means the Agreement by that name: (a) whose parts are described in Annex 1A to the World Trade Organization Agreement; and (b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia; 'investigation period', in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods, means a period specified by the Comptroller for the purposes of paragraph 269TC(4)(bf) to be the period over which importations of the goods will be examined in order to determine what sort of preliminary finding to make under section 269TD; 'member country' means a country that is, in its own right, a member of the World Trade Organization established by the World Trade Organization Agreement; 'new exporter', in relation to goods the subject of an application for a dumping duty notice or a countervailing duty notice or like goods, means an exporter who did not export such goods to Australia at any time during either: (a) the inquiry period within the meaning of the Anti-Dumping Authority Act 1988; or (b) the investigation period, within the meaning of this part; that is specified for the purposes of that application; 'residual exporter', in relation to a dumping duty notice or a countervailing duty notice in respect of goods, means an exporter of goods the subject of the application or like goods other than a selected exporter, and includes a new exporter of such goods; 'selected exporter', in relation to a dumping duty notice or a countervailing duty notice in respect of goods, means an exporter of goods the subject of the application or like goods whose exportations were investigated for the purpose of deciding whether or not to publish that notice; 'subsidy', in respect of goods that are exported to Australia, means: (a) a financial contribution: (i) by a government of the country of export or country of origin of those goods; or (ii) by a public body of that country or of which that government is a member; or (iii) by a private body entrusted or directed by that government or public body to carry out a governmental function; that is made in connection with the production, manufacture or export of those goods and that involves: (iv) a direct transfer of funds from that government or body to the enterprise by whom the goods are produced, manufactured or exported; or (v) a direct transfer of funds from that government or body to that enterprise contingent upon particular circumstances occurring; or (vi) the acceptance of liabilities, whether actual or potential, of that enterprise by that government or body; or (vii) the forgoing, or non-collection, of revenue (other than an allowable exemption or remission) due to that government or body by that enterprise; or (viii) the provision by that government or body of goods or services to that enterprise otherwise than in the course of providing normal infrastructure; or (ix) the purchase by that government or body of goods provided by that enterprise; or (b) any form of income or price support as referred to in Article XVI of the General Agreement or Tariffs and Trade 1994 that is received from such a government or body; if that financial contribution or income or price support confers a benefit in relation to those goods; 'third country', in relation to goods that have been or may be exported to Australia means a country other than Australia or the country of export, or the country of origin, of those goods; 'World Trade Organization Agreement' means the Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994."; (c) by omitting from subsection (2A) "the subsidy, bounty, reduction or remission of freight or other financial assistance in relation to goods" and substituting "the subsidy received in respect of goods"; (d) by inserting after subsection (2A) the following subsections: "(2AA) A reference in this Part to a subsidy or a countervailable subsidy received in respect of goods from a government of the country of export or country of origin of the goods includes a reference to a subsidy or countervailable subsidy received in respect of those goods: (a) from a public body of that government or of which that government is a member; or (b) from a private body entrusted or directed by that government or public body to carry out a governmental function. "(2AB) If a subsidy is constituted by a financial contribution provided by a public body of which a country is a member but is delivered, not by the public body but rather by that member country, then, for the purposes of this Part, that subsidy is taken to have been received both from the public body and from the member country. "(2AC) A subsidy is taken to have been received in respect of particular goods: (a) whether the benefit conferred by the subsidy is conferred directly or indirectly in relation to those goods; and (b) whether or not the subsidy involves, or will involve, the payment or grant of any form of financial assistance. "(2AD) The fact that an investigation period is specified to start at a particular time does not imply that the Minister may not examine periods before that time for the purpose of determining whether material injury has been caused to an Australian industry or to an industry of a third country."; (e) by omitting subparagraph (4D)(b)(i) and substituting the following subparagraph: "(i) to the amount of countervailable subsidy received in respect of the goods; and"; (f) by omitting subparagraph (4E)(b)(i) and substituting the following subparagraph: "(i) to the amount of countervailable subsidy received in respect of the goods; and"; (g) by inserting after subsection (5) the following subsections: "(5A) For the purposes of this Part, the weighted average of prices, values, costs or amounts in relation to goods over a particular period is to be worked out in accordance with the following formula: where: 'P1, P2 … Pn' means the price, value, cost or amount, per unit, in respect of the goods in the respective transactions during the period; 'Q1, Q2 … Qn' means the number of units of the goods involved in each of the respective transactions. "(5B) In working out the number of units of goods involved in a transaction, any units of goods that are, for the purposes of paragraph 269TAB(1)(b) or (c), subsection 269TAB(3), paragraph 269TAC(2)(c) or (4)(e) or subsection 269TAC(6), treated as being involved in a particular transaction are taken to be actually involved in the transaction.". Insertion of new sections 8. After section 269TAAA of the Principal Act, the following sections are inserted: Member countries, developing countries and special developing countries "269TAAB.(1) The Minister may certify that a particular country is, or was, during a specified period or on a specified day: (a) a member country of the World Trade Organization; or (b) a developing country, whether a member country or not; or (c) a special developing country within the meaning of subsection (2). "(2) For the purposes of subsection (1), a country is, or was, during a specified period or on a specified day, a special developing country if: (a) it is or was, during that period or on that day, a developing country; and (b) it is or was, during that period or on that day: (i) a least developed country, whether a member country or not; or (ii) a member country that has eliminated and not restored export subsidies; or (iii) a member country referred to in paragraph (b) of Annex VII of the Agreement on Subsidies and Countervailing Measures having a gross national product of less than $US1,000 per annum per head of population. "(3) For all purposes of this Part and in all proceedings, a certificate under subsection (1) is conclusive evidence of the matters certified, except so far as the contrary is established. Definition—countervailable subsidy "269TAAC.(1) For the purposes of this Part, a subsidy is a countervailable subsidy if: (a) it is specific; and (b) it is not an excluded subsidy. "(2) Without limiting the generality of the circumstances in which a subsidy is specific, a subsidy is specific: (a) if, subject to subsection (3), access to the subsidy is explicitly limited to particular enterprises; or (b) if, subject to subsection (3), access is limited to particular enterprises carrying on business within a designated geographical region that is within the jurisdiction of the subsidising authority; or (c) if the subsidy is contingent, in fact or in law, and whether solely or as one of several conditions, on export performance; or (d) if the subsidy is contingent, whether solely or as one of several conditions, on the use of domestically produced or manufactured goods in preference to imported goods. "(3) Subject to subsection (4), a subsidy is not specific if access to the subsidy: (a) is established by objective criteria or conditions set out in primary or subordinate legislation or other official documents that are capable of verification; and (b) those criteria or conditions do not favour particular enterprises over others and are economic in nature; and (c) those criteria or conditions are strictly adhered to in the administration of the subsidy. "(4) Despite the fact that access to a subsidy is established by objective criteria, the Minister may, having regard to: (a) the fact that the subsidy program benefits a limited number of particular enterprises; or (b) the fact that the subsidy program predominantly benefits particular enterprises; or (c) the fact that particular enterprises have access to disproportionately large amounts of the subsidy; or (d) the manner in which a discretion to grant access to the subsidy has been exercised; determine that the subsidy is specific. "(5) In making a determination under subsection (4), the Minister must take account of: (a) the extent of diversification of economic activities within the jurisdiction of the subsidising authority; and (b) the length of time during which the subsidy program has been in operation. "(6) A subsidy is an excluded subsidy if the Minister is satisfied that: (a) it is specific but described in paragraph (a), (b) or (c) of Article 8.2 of the Agreement on Subsidies and Countervailing Measures; or (b) it is a domestic support measure that meets the criteria or conditions set out in Annex 2 to the Agreement on Agriculture. Ordinary course of trade "269TAAD.(1) If the Minister is satisfied, in relation to goods exported to Australia: (a) that like goods are sold in the country of export in sales that are arms length transactions in substantial quantities during an extended period: (i) for home consumption in the country of export; or (ii) for exportation to a third country; at a price that is less than the cost of such goods; and (b) that it is unlikely that the seller of the goods will be able to recover the cost of such goods within a reasonable period; the price paid for the goods referred to in paragraph (a) is taken not to have been paid in the ordinary course of trade. "(2) For the purposes of this section, sales of goods at a price that is less than the cost of such goods are taken to have occurred in substantial quantities during an extended period if the volume of sales of such goods at a price below the cost of such goods over that period is not less than 20% of the total volume of sales over that period. "(3) Costs of goods are taken to be recoverable within a reasonable period of time if, although the selling price of those goods at the time of their sale is below their cost at that time, the selling price is above the weighted average cost of such goods over the investigation period. "(4) The cost of goods is worked out by adding: (a) the amount determined by the Minister to be the cost of production or manufacture of those goods in the country of export; and (b) the amount determined by the Minister to be the administrative, selling and general costs associated with the sale of those goods. "(5) Amounts determined by the Minister for the purposes of paragraphs (4)(a) and (b) must be worked out in such manner, and taking account of such factors, as the regulations provide in respect of those purposes.". Export price 9. Section 269TAB of the Principal Act is amended by omitting from subsection (4) "subsection (3)" and substituting "this section". Normal value of goods 10. Section 269TAC of the Principal Act is amended: (a) by omitting subparagraphs (2)(a)(i) and (ii) and substituting the following subparagraphs: "(i) because of the absence, or low volume, of sales of like goods in the market of the country of export that would be relevant for the purpose of determining a price under subsection (1); or (ii) because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1);"; (b) by omitting from subsection (2) all the words after subparagraph (2)(c)(i) and substituting: "(ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and, subject to subsection (13), the profit on that sale; or (d) if the Minister directs that this paragraph applies—the price determined by the Minister to be the price paid for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country"; (c) by omitting subsection (3) and substituting the following subsection: "(3) The price determined under paragraph (2)(d) is a price that the Minister determines, having regard to the quantity of like goods sold as described in paragraph (2)(d) at that price, is representative of the price paid in such sales."; (d) by omitting paragraph (4)(d) and substituting the following paragraph: "(d) a value equal to the price determined by the Minister to be the price of like goods produced or manufactured in a country determined by the Minister and sold in the ordinary course of trade in arms length transactions for exportation from that country to a third country determined by the Minister to be an appropriate third country;"; (e) by omitting subparagraphs (4)(e)(ii) and (iii) and substituting the following subparagraph: "(ii) such amounts as the Minister determines to be the administrative, selling and general costs associated with the sale of like goods in that country and the profit on that sale;"; (f) by omitting subsection (5) and substituting the following subsections: "(5) The price determined under paragraph (4)(d) is a price that the Minister determines, because of the quantity of like goods sold as described in paragraph (4)(d) at that price, is representative of the price paid in such sales. "(5A) Amounts determined: (a) to be the cost of production or manufacture of goods under subparagraph (2)(c)(i) or (4)(e)(i); and (b) to be the administrative, selling and general costs in relation to goods under subparagraph (2)(c)(ii) or (4)(e)(ii); must be worked out in such manner, and taking account of such factors, as the regulations provide for the respective purposes of paragraphs 269TAAD(4)(a) and (b). "(5B) The amount determined to be the profit on the sale of goods under subparagraph (2)(c)(ii) or (4)(e)(ii), must be worked out in such manner, and taking account of such factors, as the regulations provide for that purpose. "(5C) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2)(d) or (4)(d), the Minister may have regard to the following matters: (a) whether the volume of trade from the country of export referred to in paragraph (2)(d) or the country first-mentioned in paragraph (4)(d) is similar to the volume of trade from the country of export to Australia; and (b) whether the nature of the trade in goods concerned between the country of export referred to in paragraph (2)(d) or the country first-mentioned in paragraph (4)(d) is similar to the nature of trade between the country of export and Australia."; (g) by omitting from subsection (7) "subsection (6)" and substituting "this section"; (h) by omitting subsection (12); (i) by omitting from subsection (13) "subsection (12)" and substituting "section 269TAAD"; (j) by omitting from subsection (13) "sub-subparagraph (2)(c)(ii)(B)" and substituting "subparagraph (2)(c)(ii)"; (k) by adding at the end the following subsection: "(14) If: (a) application is made for a dumping duty notice or a countervailing duty notice; and (b) goods the subject of the application are exported to Australia; but (c) the volume of sales of like goods for home consumption in the country of export by the exporter or another seller of like goods is less than 5% of the volume of goods the subject of the application that are exported to Australia by the exporter; the volume of sales referred to in paragraph (c) is taken, for the purposes of paragraph (2)(a), to be a low volume unless the Minister is satisfied that it is still large enough to permit a proper comparison for the purposes of assessing a dumping margin under section 269TACB.". Insertion of new sections 11. After section 269TACA of the Principal Act the following sections are inserted: Working out whether dumping has occurred and levels of dumping "269TACB.(1) If: (a) application is made for a dumping duty notice; and (b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and (c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC; the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred. "(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3): (a) compare the weighted average of export prices over the investigation period with the weighted average of corresponding normal values over that period; or (b) compare the export prices determined in respect of individual transactions over the investigation period with the corresponding normal values determined over that period; or (c) use the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period and the method of comparison referred to in paragraph (b) in respect of another part or other parts of that period. "(3) If the Minister is satisfied: (a) that the export prices differ significantly among different purchasers, regions or periods; and (b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period; the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the weighted average of corresponding normal values over that period. "(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period: (a) the goods exported to Australia during that period are taken to have been dumped; and (b) the dumping margin for the exporter concerned in respect of those goods is the difference between those weighted averages. "(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value: (a) the goods exported to Australia in that transaction are taken to have been dumped; and (b) the dumping margin for the exporter concerned in respect of those goods is the difference between that export price and that normal value. "(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period: (a) the goods exported to Australia in each such transaction are taken to have been dumped; and (b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values. "(7) Subject to subsection (8), the existence of dumping and the size of a dumping margin will normally be worked out for individual exporters of goods to Australia. "(8) If the number of exporters from a particular country of export who provide information in relation to an application for a dumping duty notice is so large that it is not practicable to determine the existence of dumping and to work out individual dumping margins for each of them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters: (a) who constitute a statistically valid sample of those exporters; or (b) who are responsible for the largest volume of exportations to Australia that can reasonably be investigated; decide whether dumping exists, and, if it does, fix dumping margins for such selected exporters and for exporters who are not so selected. "(9) If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation's timely completion. "(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise. Working out whether benefits have been conferred and amounts of subsidy "269TACC.(1) If: (a) a financial contribution referred to in paragraph (a) of the definition of 'subsidy' in subsection 269T(1); or (b) income or price support referred to in paragraph (b) of that definition; is received in respect of goods, the question whether that financial contribution or income or price support confers a benefit, and, if so, the amount of subsidy attributable to that benefit, are to be worked out according to this section. "(2) If a financial contribution in respect of goods is a direct financial payment received from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function, a benefit is taken to be conferred because of that payment. "(3) If: (a) there is no financial contribution of the kind referred to in subsection (2) received in respect of goods; but (b) a financial contribution of another kind, or income or price support, is received in respect of those goods from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function; the question whether that financial contribution or income or price support confers a benefit is to be determined by the Minister. "(4) In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines: (a) the provision of equity capital from the government or body referred to in subsection (3) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned; (b) the making of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless the loan requires repayment of a lesser amount than would be required for a comparable commercial loan; (c) the guarantee of a loan by the government or a body referred to in subsection (3) does not confer a benefit unless, without the guarantee, the enterprise receiving the loan would have to repay a greater amount; (d) the provision of goods or services by the government or body referred to in subsection (3) does not confer a benefit unless the goods or services are provided for less than adequate remuneration; (e) the purchase of goods by the government or body referred to in subsection (3) does not confer a benefit if the purchase is made for more than adequate remuneration. "(5) For the purposes of paragraphs (4)(d) and (e), the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased. "(6) If a benefit is conferred: (a) by a financial contribution in the form referred to in subsection (2)—the total amount of subsidy attributable to the benefit is an amount equal to the payment; or (b) by the making of a loan by the government or a body referred to in subsection (3)—the total amount of subsidy attributable to the benefit is an amount equal to the difference between the amount required to be repaid on that loan and the amount that would be required to be repaid on a comparable commercial loan; or (c) by the guarantee of a loan by the government or a body referred to in subsection (3)—the total amount of subsidy attributable to the benefit is an amount equal to the difference between the amount required to be repaid upon the loan so guaranteed and the amount that would be required to be repaid upon a commercial loan, without that guarantee, adjusted for any difference in fees; or (d) by any other financial contribution, or income or price support as referred to in subsection (3)—the total amount of subsidy attributable to the benefit is an amount determined by the Minister, in writing, in accordance with the regulations made for the purposes of this section. "(7) If the Minister is satisfied, in respect of a particular financial contribution or form of income or price support: (a) that subsections (2), (3), (4) and (5) are inappropriate for determining whether a benefit has been conferred; or (b) that, if a benefit has been conferred, subsection (6) is inappropriate for determining the total amount of subsidy attributable to the benefit; the Minister may determine, in writing, that he or she is so satisfied and determine an alternative basis for deciding whether a benefit has been conferred or for working out the amount of subsidy attributable to the benefit. "(8) If the number of exporters from a particular country of export who provide information in relation to an application for a countervailing duty notice is so large that it is not practicable to work out whether a benefit has been conferred and the amount of subsidy received by them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters: (a) who constitute a statistically valid sample of those exporters; or (b) who are responsible for the largest volume of exportations to Australia that can reasonably be investigated; decide whether a benefit is conferred and, if it is, the amount of subsidy attributable to that benefit for such selected exporters and for exporters who are not so selected. "(9) If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation's timely completion. "(10) After the total amount of the subsidy received in respect of goods has been worked out, the Minister must, if that subsidy is not quantified by reference to a unit of those goods determined by weight, volume or otherwise, work out how much of that amount is properly attributable to each such unit.". Material injury to industry 12. Section 269TAE of the Principal Act is amended: (a) by omitting from subsection (1) "by reason of any circumstances in relation to the exportation of goods to Australia from another country (in this subsection called the 'country of export'), the Minister may, without limiting the generality of that section" and substituting "because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A), (2B) and (2C)"; (b) by inserting in subsection (1), before paragraph (a), the following paragraphs: "(aa) if the determination is being made for the purposes of section 269TG—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and (ab) if the determination is being made for the purposes of section 269TJ—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and"; (c) by omitting from paragraph (1)(h) "in a case where" and substituting "if"; (d) by omitting from subsection (2) "a producer or manufacturer" and substituting "an industry"; (e) by omitting from subsection (2) "by reason of any circumstances in relation to the exportation of goods to Australia from another country (in this subsection called the 'country of export'), the Minister may, without limiting the generality of that section" and substituting "because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A), (2B) and (2C)"; (f) by inserting in subsection (2), before paragraph (a), the following paragraphs: "(aa) if the determination is being made for the purposes of section 269TH—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and (ab) if the determination is being made for the purposes of section 269TK—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and"; (g) by omitting from subsection (2) "by the producer or manufacturer" (wherever occurring); (h) by inserting after subsection (2) the following subsections: "(2A) In making a determination in relation to the exportation of goods to Australia for the purposes referred to in subsection (1) or (2), the Minister must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods such as: (a) the volume and prices of imported like goods that are not dumped; or (b) the volume and prices of importations of like goods that are not subsidised; or (c) contractions in demand or changes in patterns of consumption; or (d) restrictive trade practices of, and competition between, foreign and Australian producers of like goods; or (e) developments in technology; or (f) the export performance and productivity of the Australian industry; and any such injury or hindrance must not be attributed to the exportation of those goods. "(2B) In determining: (a) for the purposes of subsection (1), whether or not material injury is threatened to an Australian industry; or (b) for the purposes of subsection (2), whether or not material injury is threatened to an industry in a third country; because of the exportation of goods into the Australian market, the Minister must take account only of such changes in circumstances, including changes of a kind determined by the Minister, as would make that injury foreseeable and imminent unless dumping or countervailing measures were imposed. "(2C) In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportation of like goods to Australia by different exporters from the same country of export or from different countries of export, the Minister should consider the cumulative effect of those exportations only if, having regard to: (a) the conditions of competition between those goods; and (b) the conditions of competition between those goods and like goods that are domestically produced; the Minister is satisfied that it is appropriate to do so."; (i) by omitting from subsection (3) "in relation to a producer or manufacturer" and substituting "in relation to an industry"; (j) by omitting from subsection (3) "or by the producer or manufacturer" (wherever occurring); (k) by omitting from subsection (3) "or in the business of the producer or manufacturer" (wherever occurring); (l) by omitting from paragraph (3)(b) ", producer or manufacturer"; (m) by omitting from paragraph (3)(k) ", or of the producer or manufacturer,". Repeal of sections and substitution of new section 13. Sections 269TAF, 269TAG and 269TAH of the Principal Act are repealed and the following section is substituted: Currency conversion "269TAF.(1) If, for the purposes of this Part, comparison of the export prices of goods exported to Australia and corresponding normal values of like goods requires a conversion of currencies, that conversion, subject to subsection (2), is to be made using the rate of exchange on the date of the transaction or agreement that, in the opinion of the Minister, best establishes the material terms of the sale of the exported goods. "(2) If, in relation to goods exported to Australia, a forward rate of exchange is used, the Minister may, in a conversion of currencies under subsection (1), make use of that rate of exchange. "(3) If: (a) the comparison referred to in subsection (1) requires the conversion of currencies; and (b) the rate of exchange between those currencies has undergone a short-term fluctuation; the Minister may, for the purpose of that comparison, disregard that fluctuation. "(4) If: (a) the comparison referred to in subsection (1) requires the conversion of currencies; and (b) the Minister is satisfied that the rate of exchange between those currencies has undergone a sustained movement; the Minister may, by notice published in the Gazette, declare that this subsection applies with effect from a day specified in the notice and, if the Minister does so, the Minister may use the rate of exchange in force on that day for the purposes of that comparison during the period of 60 days starting on that day. "(5) Nothing in subsection (4) prevents the Minister specifying a day in a notice that is earlier than the day of publication of the notice if the day specified: (a) is a day after the start of the sustained movement; and (b) is not a day occurring within 60 days after the day specified in a prior notice. "(6) Nothing in subsection (4) prevents the Minister publishing more than one notice if a sustained movement in the rate of exchange continues for more than 60 days. "(7) The Comptroller may, if he or she considers it desirable so to do for the avoidance of doubt, specify, by notice published in the Gazette, a means of establishing a rate that is taken to be, or to have been, the rate of exchange between the Australian currency and another currency or between other currencies: (a) on a day, or during a period, preceding the day of publication of the notice; or (b) from and including the day of publication of the notice, or an earlier day specified in the notice, until the revocation of the notice. "(8) The rate of exchange established between currencies in a notice under subsection (7) is, for the purpose of working out the amount of duty or interim duty payable on any goods exported on the day or during the period to which the rate so specified applies, the rate of exchange that applies for the purposes of this section in respect of the currencies specified in the notice.". Revocation of notices 14. Section 269TAJ of the Principal Act is amended: (a) by omitting from subsection (1) "notice published in the Gazette" and substituting "public notice"; (b) by omitting from subsection (2) "notice published in the Gazette" and substituting "public notice"; (c) by omitting from subsection (3) "by notice in writing" and substituting "by public notice"; (d) by omitting from subsection (5) "on which the notice was signed by the Minister" and substituting "of publication of the notice in the Gazette". Application for action under Anti-Dumping Act 15. Section 269TB of the Principal Act is amended: (a) by omitting paragraph (2)(b) and substituting the following word and paragraph: "; and (b) there is, in a third country, an industry that produces or manufactures like goods for export to Australia; and"; (b) by inserting after subsection (2) the following subsections: "(2A) During the period after receiving an application for a dumping duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Comptroller must notify the government of the country, or of each country, whose exporters are nominated in the application. "(2B) During the period after receiving an application for a countervailing duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Comptroller must notify: (a) the government of the country, or of each country, whose exporters are nominated in the application; and (b) the government of any other country from which countervailable subsidies are alleged to have been received. "(2C) A notification by the Comptroller under subsection (2B) must include an invitation to consult with the Comptroller in relation to whether: (a) any countervailable subsidies exist; and (b) any such subsidies, if found to exist, are causing or are likely to cause material injury of a kind referred to in paragraph 269TJ(1)(b) or 269TK(1)(b); with the aim of arriving at a mutually agreed solution."; (c) by adding after paragraph (4)(d) the following word and paragraph: "; and (e) in the case of an application under subsection (1)—be supported by a sufficient part of the domestic industry."; (d) by adding at the end the following subsection: "(6) An application under subsection (1) in relation to a consignment of goods is taken to be supported by a sufficient part of the domestic industry if the Comptroller is satisfied that persons (including the applicant) who produce or manufacture like goods in Australia and who support the application: (a) account for more than 50% of the total production or manufacture of like goods produced or manufactured by that portion of the Australian industry that has expressed either support for, or opposition to, the application; and (b) account for not less than 25% of the total production or manufacture of like goods in Australia.". Consideration of application 16. Section 269TC of the Principal Act is amended: (a) by omitting from subsection (4) all the words preceding paragraph (a) and substituting the following: "(4) If the Comptroller decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the Comptroller must give public notice of the decision:"; (b) by inserting at the end of paragraph (4)(a) "and"; (c) by omitting paragraph (4)(b) and substituting the following paragraphs: "(b) setting out the identity of the applicant; and (ba) setting out the countries of export known to be involved; and (bb) if the application is for a countervailing duty notice—also setting out the countries from which countervailable subsidisation is alleged to have been received; and (bc) setting a date, which should be the date or estimated date of publication of the notice in the Gazette, as the date of initiation of the investigation; and (bd) indicating the basis on which dumping or countervailable subsidisation is alleged to have occurred; and (be) summarising the factors on which the allegation of injury or hindrance to the establishment of an industry is based; and (bf) indicating that the preliminary finding will be made on the basis of the examination of exportations to Australia of goods the subject of the application during a period identified in the notice; and"; (d) by omitting from paragraph (4)(c) "after the publication of the notice" and substituting "after the date of initiation of the investigation"; (e) by inserting at the end of paragraph (4)(c) "and"; (f) by omitting from subsection (4) all the words after paragraph (d) and substituting the following paragraphs: "(e) inviting interested parties to lodge with the Comptroller, within a specified period of not more than 40 days after the date of initiation of the investigation, submissions concerning the publication of the notice sought by the applicant; and (f) indicating the address at which, or the manner in which, such submissions can be lodged"; (g) by adding at the end the following subsections: "(5) Information required to be included in the notice under subsection (4) may be included in a separate report to which the notice makes reference. "(6) Despite the fact that a notice under this section specifies a particular period for interested parties to lodge submissions with the Comptroller, if the Comptroller is satisfied, by representation in writing by an interested party: (a) that a longer period is reasonably required for the party to make a submission; and (b) that allowing a longer period will be practicable in the circumstances; the Comptroller may notify the party, in writing, that a specified further period will be allowed for the party to lodge a submission. "(7) As soon as practicable after the Comptroller decides not to reject an application under section 269TB for a dumping duty notice or a countervailing duty notice, the Comptroller must ensure that a copy of the application, or of so much of the application as is not claimed to be confidential or to constitute information whose publication would adversely affect a person's business or commercial interests, is made available: (a) unless paragraph (b) applies—to all persons known to be exporters of goods the subject of the application and to the government of each country of export; or (b) if the number of persons known to be exporters of goods the subject of the application is so large that it is not practicable to provide a copy of the application, or of so much of the application as is not the subject of such a claim, to each of them—to the government of each country of export and to each relevant trade association.". Preliminary findings 17. Section 269TD of the Principal Act is amended: (a) by omitting paragraph (2)(a) and substituting the following paragraph: "(a) the Comptroller must give public notice of that finding; and"; (b) by inserting after subsection (2) the following subsection: "(2A) If the Comptroller decides to require securities under paragraph (2)(c), the Comptroller must give public notice of the decision."; (c) by omitting all the words in subsection (3) after "importation into Australia of such goods," and substituting "the Comptroller must give public notice of that finding"; (d) by omitting subsection (4). Insertion of new section 18. After section 269TD of the Principal Act the following section is inserted: Termination of investigations Comptroller must terminate if all dumping margins are negligible "269TDA.(1) If: (a) application is made for a dumping duty notice; and (b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Comptroller is satisfied that: (i) there has been no dumping by the exporter of any of those goods; or (ii) there has been dumping by the exporter of some or all of those goods, but the dumping margin for the exporter, or each such dumping margin, worked out under section 269TACB, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%; the Comptroller must terminate the investigation so far as it relates to the exporter. Comptroller must terminate if countervailable subsidisation is negligible "(2) If: (a) application is made for a countervailing duty notice; and (b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Comptroller is satisfied that: (i) no countervailable subsidy has been received in respect of any of those goods; or (ii) a countervailable subsidy has been received in respect of some or all of those goods but it never, at any time after the start of the investigation period, exceeded the negligible level of countervailable subsidy under subsection (16); the Comptroller must terminate the investigation so far as it relates to the exporter. Comptroller must terminate if negligible volumes of dumping are found "(3) If: (a) application is made for a dumping duty notice; and (b) in an investigation for the purposes of the application the Comptroller is satisfied that the total volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over a reasonable examination period from a particular country of export; and (ii) that have been, or may be, dumped; is negligible; the Comptroller must terminate the investigation so far as it relates to that country. What is a negligible volume of dumped goods? "(4) For the purpose of subsection (3), the total volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped is taken to be a negligible volume if: (a) when expressed as a percentage of the total Australian import volume, it is less than 3%; and (b) subsection (5) does not apply in relation to those first-mentioned goods. Aggregation of volumes of dumped goods "(5) For the purposes of subsection (4), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped if: (a) the volume of such goods that have been, or may be, so exported from that country and dumped, when expressed as a percentage of the total Australian import volume, is less than 3%; and (b) the volume of goods the subject of the application that have been, or may be, exported to Australia over that period from another country of export and dumped, when expressed as a percentage of the total Australian import volume, is also less than 3%; and (c) the total volume of goods the subject of the application that have been, or may be, exported to Australia over that period from the country to which paragraph (a) applies, and from all countries to which paragraph (b) applies, and dumped, when expressed as a percentage of the total Australian import volume, is more than 7%. Negligible dumping margins to count in determining volume "(6) The fact that the dumping margin, or each of the dumping margins, in relation to a particular exporter, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%, does not prevent exports by that exporter being taken into account: (a) in working out the total volume of goods that have been, or may be, exported from a country of export and dumped; and (b) in aggregating, for the purposes of subsection (5), the volumes of goods that have been, or may be, exported from that country of export and other countries of export and dumped. Comptroller must terminate if negligible volumes of countervailable subsidisation are found "(7) If: (a) application is made for a countervailing duty notice; and (b) in an investigation for the purposes of the application, the Comptroller is satisfied that the total volume of goods the subject of the application: (i) that have been, or may be, exported to Australia from a particular country of export during a reasonable examination period; and (ii) in respect of which a countervailable subsidy has been, or may be, received; is negligible; the Comptroller must terminate the investigation so far as it relates to that country. What is a negligible volume of subsidised goods? "(8) For the purposes of subsection (7), the total volume of goods the subject of the application for a countervailing duty notice that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been received is taken to be a negligible volume if: (a) that country of export is not a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 3%; or (b) that country of export is a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 4%; and subsections (9), (10) and (11) do not apply in relation to those first-mentioned goods. Aggregation of volumes of subsidised goods from countries other than developing countries "(9) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has, or may be, been received, if: (a) the country of export is not a developing country; and (b) the volume of such goods: (i) that have been, or may be, exported to Australia over that period from that country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is less than 3%; and (c) the volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over that period from another country that is not a developing country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is also less than 3%; and (d) the total volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is more than 7%. Aggregation of volumes of subsidised goods from developing countries "(10) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if: (a) the country of export is a developing country; and (b) the volume of such goods: (i) that have been, or may be, exported to Australia over that period from that country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is less than 4%; and (c) the volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over that period from another country that is a developing country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is also less than 4%; and (d) the total volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and (ii) in respect of which a countervailable subsidy has been received; when expressed as a percentage of the total Australian import volume, is more than 9%. Aggregation of volumes of subsidised goods from member countries that are developing countries "(11) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if: (a) the country of export is a member country and a developing country; and (b) the volume of such goods; (i) that have been, or may be exported to Australia over that period from that country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is less than 4%; and (c) the volume of goods the subject of the application: (i) that have been, or may be, exported to Australia over that period from another member country that is a developing country; and (ii) in respect of which a countervailable subsidy has been, or may be, received; when expressed as a percentage of the total Australian import volume, is less than 4%; and (d) the volume of goods the subject of the applica