WIPO Lex

Customs Act 1901 (consolidated as of July 1, 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Customs Act 1901

No. 6, 1901

Compilation No. 145

Compilation date: 1 July 2017

Includes amendments up to: Act No. 19, 2017

Registered: 12 July 2017

This compilation is in 4 volumes

Volume 1: sections 1–183U

Volume 2: sections 183UA–269SK

Volume 3: sections 269SM–277A

Schedule

Volume 4: Endnotes

Each volume has its own contents

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About this compilation

This compilation

This is a compilation of the Customs Act 1901 that shows the text of the law as

amended and in force on 1 July 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Contents

Part XVB—Special provisions relating to anti-dumping duties 1 269SM Overview of Part ...............................................................1

Division 1A—Anti-Dumping Commission and Commissioner 3

Subdivision A—Preliminary 3

269SMA What this Division is about ...............................................3

Subdivision B—Anti-Dumping Commission 3

269SMB Establishment ....................................................................3

269SMC Constitution of the Anti-Dumping Commission................3

269SMD Function of the Anti-Dumping Commission .....................4

269SME Anti-Dumping Commission has privileges and

immunities of the Crown ...................................................4

Subdivision C—Commissioner 4

269SMF Establishment ....................................................................4

269SMG Powers of Commissioner...................................................4

269SMH Appointment......................................................................4

269SMI Term of appointment .........................................................4

269SMJ Acting Commissioner........................................................5

269SMK Terms and conditions of appointment ...............................5

269SML Disclosure of interests .......................................................5

269SMM Outside employment..........................................................6

269SMN Resignation........................................................................6

269SMO Termination of appointment ..............................................6

Subdivision D—Staff assisting the Commissioner 7

269SMQ Staff...................................................................................7

Subdivision E—Delegation 7

269SMR Delegation .........................................................................7

Subdivision F—Form and manner of applications 8

269SMS Form and manner of applications ......................................8

Subdivision G—Disclosure of information 8

269SMT Disclosure of information..................................................8

Division 1—Definitions and role of Minister 9

269SN What this Division is about ...............................................9

269T Definitions.........................................................................9

269TAAA Anti-dumping measures not to apply to New

Zealand originating goods ...............................................25

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269TAAB Member countries, developing countries and

special developing countries............................................25

269TAAC Definition—countervailable subsidy...............................26

269TAACA Determination of countervailable subsidy if

non-cooperation by relevant entities................................27

269TAAD Ordinary course of trade..................................................28

269TAA Arms length transactions .................................................29

269TAB Export price.....................................................................32

269TAC Normal value of goods ....................................................33

269TACAA Sampling .........................................................................40

269TACAB Dumping duty notice—export prices and normal

values for different categories of exporters .....................41

269TACA Non-injurious price..........................................................42

269TACB Working out whether dumping has occurred and

levels of dumping ............................................................43

269TACC Working out whether a financial contribution or

income or price support confers a benefit........................46

269TACD Amount of countervailable subsidy .................................47

269TAE Material injury to industry...............................................47

269TAF Currency conversion........................................................54

269TAG Minister may take anti-dumping measures on own

initiative ..........................................................................55

269TAH Minister may delegate functions and powers to

Commissioner or Commission staff members.................56

269TA Minister may give directions to Commissioner in

relation to powers and duties under this Part ...................57

Division 2—Consideration of anti-dumping matters by the

Commissioner 58

269TBA What this Division is about .............................................58

269TB Application for action under Dumping Duty Act ............58

269TC Consideration of application............................................61

269TD Preliminary affirmative determinations ...........................66

269TDAA Statement of essential facts in relation to

investigation of application under section 269TB ...........68

269TDA Termination of investigations..........................................69

269TE Commissioner to have regard to same

considerations as Minister ...............................................80

269TEA Report to Minister concerning publication of

notices under this Part .....................................................81

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269TEB Commissioner recommendations concerning

undertakings offered after preliminary affirmative

determination...................................................................83

Division 3—Consideration of anti-dumping matters by the

Minister 86

269TF What this Division is about .............................................86

269TG Dumping duties ...............................................................86

269TH Third country dumping duties .........................................91

269TJ Countervailing duties ......................................................93

269TJA Concurrent dumping and subsidy ....................................98

269TK Third country countervailing duties...............................100

269TL Minister to give public notice not to impose duty .........102

269TLA Time limit for Minister to make certain decisions.........102

269TM Periods during which certain notices and

undertakings to remain in force .....................................103

269TN Retrospective notices.....................................................105

269TP Power to specify goods..................................................109

269U Inquiries in relation to undertakings ..............................110

Division 4—Dumping duty or countervailing duty assessment 112

269UA What this Division is about ...........................................112

269V Importers may apply for duty assessment in certain

circumstances ................................................................112

269W Manner of making applications for duty

assessment .....................................................................113

269X Consideration of duty assessment applications..............114

269Y Duty assessments...........................................................119

269YA Rejection etc. of application for duty assessment ..........120

Division 5—Review of anti-dumping measures 122

269Z What this Division is about ...........................................122

269ZA Applications and requests for review of

anti-dumping measures..................................................122

269ZB Content and lodgment of applications for review

of anti-dumping measures .............................................125

269ZC Consideration of applications and requests for

review............................................................................126

269ZCA Application to extend a review of anti-dumping

measures to include revocation......................................128

269ZCB Content and lodgment of application to extend a

review of anti-dumping measures to include

revocation......................................................................129

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269ZCC Consideration of applications and requests for

extensions of reviews ....................................................130

269ZD Statement of essential facts in relation to review of

anti-dumping measures..................................................131

269ZDA Report on review of measures .......................................132

269ZDB Powers of the Minister in relation to review of

anti-dumping measures..................................................135

Division 5A—Anti-circumvention inquiries 138

269ZDBA What this Division is about ...........................................138

269ZDBB Circumvention activities................................................138

269ZDBC Applications and requests for conduct of an

anti-circumvention inquiry ............................................141

269ZDBD Content and lodgement of applications for conduct

of an anti-circumvention inquiry ...................................143

269ZDBE Consideration of applications and requests for

conduct of an anti-circumvention inquiry......................144

269ZDBEA Termination of anti-circumvention inquiry ...................146

269ZDBF Statement of essential facts in relation to conduct

of an anti-circumvention inquiry ...................................147

269ZDBG Report on anti-circumvention inquiry ...........................148

269ZDBH Minister’s powers in relation to anti-circumvention

inquiry ...........................................................................150

Division 6—Certain exporters may seek accelerated review of

dumping duty notices or countervailing duty notices 152

269ZDC What this Division is about ...........................................152

269ZE Circumstances in which accelerated review may

be sought .......................................................................152

269ZF Application for accelerated review................................153

269ZG Consideration of application..........................................153

269ZH Effect of accelerated review ..........................................155

Division 6A—Continuation of anti-dumping measures 156

269ZHA What this Division is about ...........................................156

269ZHB Applications for continuation of anti-dumping

measures........................................................................156

269ZHC Content and lodgment of application for

continuation of anti-dumping measures.........................157

269ZHD Consideration of applications for continuation of

anti-dumping measures..................................................158

269ZHE Statement of essential facts in relation to

continuation of anti-dumping measures.........................159

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269ZHF Report on application for continuation of

anti-dumping measures..................................................160

269ZHG Powers of the Minister in relation to continuation

of anti-dumping measures .............................................162

Division 7—Procedural and evidentiary matters 165

269ZHH What this Division is about ...........................................165

269ZHI Minister may extend certain periods of time .................165

269ZI Public notice..................................................................166

269ZJ Commissioner to maintain public record for

certain purposes.............................................................170

Division 8—Review Panel 173

269ZK What this Division is about ...........................................173

269ZL Establishment of Review Panel .....................................173

269ZM Membership of the Review Panel..................................173

269ZN Review Panel’s powers .................................................173

269ZO Protection of members...................................................174

269ZP Appointment of members ..............................................174

269ZQ Period of appointment for members ..............................174

269ZR Terms and conditions of appointment ...........................174

269ZS Disclosure of interests to the Minister ...........................175

269ZT Outside employment......................................................175

269ZTA Resignation....................................................................175

269ZTB Termination of appointment ..........................................175

269ZTC Acting appointments......................................................176

269ZTD Provision of resources to Review Panel ........................176

269ZU Review Panel may supply information..........................176

269ZV False or misleading information ....................................177

Division 9—Review by Review Panel 178

Subdivision A—Preliminary 178

269ZW What this Division is about ...........................................178

269ZX Definitions.....................................................................178

269ZY Form and manner of applications ..................................180

269ZYA Constitution of Review Panel for purposes of

review............................................................................180

269ZYB Member unavailable to complete review.......................180

269ZZ Review Panel to have regard to same

considerations as Minister .............................................181

Subdivision B—Review of Ministerial decisions 182

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269ZZA Reviewable decisions ....................................................182

269ZZB Overview of a review of Minister’s decision.................182

269ZZC Who may seek a review?...............................................184

269ZZD When must an application be made? .............................184

269ZZE How must an application be made? ...............................184

269ZZF Withdrawal of application .............................................185

269ZZG Rejection of application—failure to establish

decision not the correct or preferable decision etc.........186

269ZZH Rejection of application—failure to provide

summary of confidential information ............................187

269ZZHA Review Panel may hold conferences .............................187

269ZZI Public notification of review .........................................188

269ZZJ Submissions in relation to reviewable decision .............189

269ZZK The review.....................................................................189

269ZZL Review Panel may require reinvestigation by

Commissioner before making recommendation to

Minister .........................................................................192

269ZZM Minister’s decision ........................................................192

Subdivision C—Review of Commissioner’s decisions 195

269ZZN Reviewable decisions ....................................................195

269ZZO Who may seek a review.................................................196

269ZZP When must an application be made? .............................197

269ZZQ How must an application be made? ...............................197

269ZZQAA Withdrawal of application .............................................198

269ZZQA Rejection of application—failure to establish

decision not the correct or preferable decision etc.........198

269ZZR Rejection of application for review of termination

decision .........................................................................200

269ZZRA Review Panel may hold conferences .............................200

269ZZRB Review Panel may seek further information from

the Commissioner..........................................................201

269ZZRC Notification of review ...................................................201

269ZZS The review of a negative prima facie decision ..............202

269ZZT The review of a termination decision ............................203

269ZZU The review of a negative preliminary decision..............204

269ZZUA The review of a rejection decision.................................205

269ZZV Effect of Review Panel’s decision.................................206

Subdivision D—Public record in relation to reviews 206

269ZZW Application....................................................................206

269ZZX Public record maintained by Review Panel ...................206

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269ZZY Confidential and sensitive commercial information ......207

Part XVC—International Trade Remedies Forum 208 269ZZYA Simplified outline..........................................................208

269ZZYB Establishment of International Trade Remedies

Forum............................................................................208

269ZZYC Functions of the Forum .................................................208

269ZZYD Membership of the Forum.............................................208

269ZZYE Appointment of Forum members ..................................209

269ZZYF Resignation....................................................................209

269ZZYG Forum meetings.............................................................210

269ZZYH Disclosure of information..............................................210

Part XVI—Regulations and by-laws 212 270 Regulations....................................................................212

271 Comptroller-General of Customs may make

by-laws ..........................................................................213

272 By-laws specifying goods..............................................214

273 Determinations ..............................................................214

273A By-laws and determinations for purposes of

repealed items................................................................215

273B Publication of by-laws and notification of

determinations ...............................................................215

273C Retrospective by-laws and determinations not to

increase duty..................................................................216

273D By-laws and determinations for purposes of

proposals .......................................................................216

273EA Notification of proposals when House of

Representatives is not sitting .........................................216

273F Interpretation .................................................................217

Part XVII—Miscellaneous 218 273G Briefing of Leader of Opposition on certain

matters ...........................................................................218

273GAA Notices ..........................................................................218

273GAB Authorisation to disclose information to an officer .......220

273GA Review of decisions.......................................................220

273H Review of decisions under Customs Tariff Act .............225

273K Statement to accompany notification of decisions.........226

273L Entry and transmission of information by

computer........................................................................226

274 Commissioned ships and aircraft to be reported............226

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275 Commissioned ships and aircraft may be searched .......226

275A Direction not to move a ship or aircraft from a

boarding station .............................................................227

276 Collector’s sales ............................................................228

277 Proceeds of sales ...........................................................229

277A Jurisdiction of courts .....................................................229

Schedule I—The Commonwealth of Australia 230

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Special provisions relating to anti-dumping duties Part XVB

Section 269SM

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Part XVB—Special provisions relating to

anti-dumping duties

269SM Overview of Part

(1) This Part deals with the taking of anti-dumping measures in respect

of goods whose importation into Australia involves a dumping or

countervailable subsidisation of those goods that injures, or

threatens to injure, Australian industry. Those measures might

consist of the publication of a dumping duty notice or a

countervailing duty notice or the acceptance of an undertaking on

conditions that make it unnecessary to publish such a notice.

(2) If a notice is published, that notice creates a liability under the

Dumping Duty Act, in relation to any goods to which the notice

extends, to pay a special duty of customs on their importation into

Australia and, pending assessment of that special duty, to pay

interim duty.

(2A) Division 1A deals with the establishment of the Anti-Dumping

Commission and the Commissioner.

(3) Divisions 1, 2 and 3 deal with the preliminary and procedural

matters leading to a Ministerial decision to publish or not to

publish a dumping duty notice or a countervailing duty notice or to

accept an undertaking instead of publishing such a notice.

(4) Division 4 allows a person who has been required to pay interim

duty to seek an assessment of duty payable under the Dumping

Duty Act and reconciles interim duty paid by that person with duty

as so assessed.

(5) Division 5 deals with the rights of persons, periodically, on the

basis of changed circumstances, to seek review by the Minister of

decisions to publish dumping duty notices or countervailing duty

notices or to accept undertakings.

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(5A) Division 5A deals with the rights of persons to ask the

Commissioner to conduct an anti-circumvention inquiry in relation

to certain dumping duty notices or countervailing duty notices.

(6) Division 6 deals with the rights of new exporters to seek an early

review by the Minister of decisions to publish dumping duty

notices or countervailing duty notices.

(7) Division 6A ensures that interested parties are informed of the

impending expiration of anti-dumping measures and allows them

to seek continuation of those measures.

(8) Division 7 deals with procedural and evidentiary matters that are

relevant both to applications for the taking of anti-dumping

measures and for the various review procedures after such

measures are taken.

(9) Divisions 8 and 9 establish an independent panel, the Review

Panel, and provide for the Panel to review a range of Ministerial

decisions (including decisions to publish or not to publish dumping

duty notices or countervailing duty notices) and also a range of

decisions made by the Commissioner.

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Special provisions relating to anti-dumping duties Part XVB

Anti-Dumping Commission and Commissioner Division 1A

Section 269SMA

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Division 1A—Anti-Dumping Commission and

Commissioner

Subdivision A—Preliminary

269SMA What this Division is about

• This Division establishes the Anti-Dumping Commission

within the Department.

• There is to be a Commissioner of the Anti-Dumping

Commission. The Commissioner has functions and powers

under this Part.

• The Commissioner is to be assisted by APS employees in the

Department.

Subdivision B—Anti-Dumping Commission

269SMB Establishment

(1) The Anti-Dumping Commission that was established by this

section (as in force before the transfer day) continues in existence,

by force of this section, within the Department.

(2) In this section:

transfer day means the day Schedule 1 to the Customs Amendment

(Anti-Dumping Commission Transfer) Act 2013 commenced.

269SMC Constitution of the Anti-Dumping Commission

The Anti-Dumping Commission consists of:

(a) the Commissioner; and

(b) the staff assisting the Commissioner as mentioned in

subsection 269SMQ(1).

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Section 269SMD

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269SMD Function of the Anti-Dumping Commission

The Anti-Dumping Commission’s function is to assist the

Commissioner in the performance of his or her functions or the

exercise of his or her powers.

269SME Anti-Dumping Commission has privileges and immunities

of the Crown

The Anti-Dumping Commission has the privileges and immunities

of the Crown in right of the Commonwealth.

Subdivision C—Commissioner

269SMF Establishment

(1) There is to be a Commissioner of the Anti-Dumping Commission.

(2) The Commissioner has the powers and functions conferred or

imposed on him or her by this Act or any other law.

269SMG Powers of Commissioner

The Commissioner has the power to do all things necessary or

convenient to be done for or in connection with the performance of

his or her functions.

269SMH Appointment

(1) The Commissioner is to be appointed by the Minister by written

instrument.

(2) The Commissioner may be appointed on a full-time or part-time

basis.

269SMI Term of appointment

The Commissioner holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

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Section 269SMJ

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Note: The Commissioner may be reappointed: see section 33AA of the Acts

Interpretation Act 1901.

269SMJ Acting Commissioner

The Minister may appoint an individual to act as the

Commissioner:

(a) during a vacancy in the office of the Commissioner (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the

Commissioner is absent from duty or from Australia, or is,

for any reason, unable to perform the duties of the office.

Note: Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules

that apply to acting appointments.

269SMK Terms and conditions of appointment

(1) The Commissioner holds office on such terms and conditions as

are determined in writing by the Minister.

(2) The office of Commissioner is not a public office for the purposes

of Part II of the Remuneration Tribunal Act 1973.

269SML Disclosure of interests

(1) A disclosure by the Commissioner under section 29 of the Public

Governance, Performance and Accountability Act 2013 (which

deals with the duty to disclose interests) must be made to the

Minister.

(2) Subsection (1) applies in addition to any rules made for the

purposes of that section.

(3) For the purposes of this Act and the Public Governance,

Performance and Accountability Act 2013, the Commissioner is

taken not to have complied with section 29 of that Act if the

Commissioner does not comply with subsection (1) of this section.

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Section 269SMM

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269SMM Outside employment

Full-time Commissioner

(1) If the Commissioner is appointed on a full-time basis, he or she

must not engage in paid employment outside the duties of his or

her office without the Minister’s approval.

Part-time Commissioner

(2) If the Commissioner is appointed on a part-time basis, he or she

must not engage in any paid employment that, in the Minister’s

opinion, conflicts or may conflict with the proper performance of

his or her duties.

269SMN Resignation

(1) The Commissioner may resign his or her appointment by giving

the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

269SMO Termination of appointment

(1) The Minister may terminate the appointment of the Commissioner:

(a) for misbehaviour; or

(b) if the Commissioner is unable to perform the duties of his or

her office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of the Commissioner

if:

(a) the Commissioner:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

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(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Commissioner is absent, except on leave of absence, for

14 consecutive days or for 28 days in any 12 months; or

comply with section 29 of the Public Governance,

Performance and Accountability Act 2013 (which deals with

the duty to disclose interests) or rules made for the purposes

of that section; or

(d) the Commissioner is appointed on a full-time basis and

engages, except with the Minister’s approval, in paid

employment outside the duties of his or her office (see

subsection 269SMM(1)); or

(e) the Commissioner is appointed on a part-time basis and

engages in paid employment that, in the Minister’s opinion,

conflicts or may conflict with the proper performance of his

or her duties (see subsection 269SMM(2)).

Subdivision D—Staff assisting the Commissioner

269SMQ Staff

(1) The staff assisting the Commissioner are to be APS employees in

the Department and made available for the purpose by the

Secretary of the Department.

(2) When performing services for the Commissioner under this

section, a person is subject to the directions of the Commissioner.

Subdivision E—Delegation

269SMR Delegation

(1) The Commissioner may, by writing, delegate any of the

Commissioner’s functions or powers under this Part to a

Commission staff member.

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(2) In performing functions or exercising powers under a delegation,

the delegate must comply with any written directions of the

Commissioner.

Subdivision F—Form and manner of applications

269SMS Form and manner of applications

(1) The Commissioner may, by writing, approve a form for the

purposes of a provision of this Part.

(2) The Commissioner may, by writing, approve the manner of

lodging an application under a provision of this Part.

(3) The Commissioner may, by writing, approve the manner of

withdrawing, under subsection 269TB(3), an application lodged

under subsection 269TB(1) or (2).

Subdivision G—Disclosure of information

269SMT Disclosure of information

(1) The Commissioner, or a Commission staff member, may disclose

information (including personal information) obtained under this

Part or the Dumping Duty Act, or an instrument under this Part or

the Dumping Duty Act, to an officer of Customs for the purposes

of a Customs Act.

Interaction with the Privacy Act 1988

(2) For the purposes of the Privacy Act 1988, the disclosure of

personal information under subsection (1) is taken to be a

disclosure that is authorised by this Act.

Definition

(3) In this section:

personal information has the same meaning as in the Privacy Act

1988.

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Definitions and role of Minister Division 1

Section 269SN

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Division 1—Definitions and role of Minister

269SN What this Division is about

This Division deals with preliminary matters. The Division

principally:

• sets out essential definitions and interpretations;

• provides the basis for determining various factors (such as normal value, export price and non-injurious price) necessary

to decide whether dumping or countervailable subsidisation

has occurred;

• sets out the criteria for the use of those factors in so deciding;

• provides the basis for determining whether dumping or subsidisation is causing material injury to Australian industry;

• identifies circumstances in which the Part does not apply;

• empowers the Minister to direct the Commissioner in relation to the Commissioner’s powers and duties.

269T Definitions

(1) In this Part, unless the contrary intention appears:

affected party, in relation to an application under Division 5 for

review of anti-dumping measures imposed on particular goods,

means:

(a) a person who is directly concerned with the exportation to

Australia of the goods to which the measures relate or who

has been directly concerned with the exportation to Australia

of like goods; or

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(b) a person who is directly concerned with the importation into

Australia of the goods to which the measures relate or who

has been directly concerned with the importation into

Australia of like goods; or

Australian industry producing like goods; or

(d) the Government of a country from which like goods have

been exported to 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.

agricultural operations means:

(a) the cultivation or gathering in of crops; or

(b) the rearing of live-stock; or

and includes:

(d) viticulture, horticulture or apiculture; or

(e) hunting or trapping carried on for the purpose of a business.

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.

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anti-dumping measures, in respect of goods, means:

(a) the publication of a dumping duty notice or a countervailing

duty notice or both; or

(b) the acceptance of an undertaking under section 269TG or

269TJ or of undertakings under both of these sections;

in relation to such goods.

application, in relation to a dumping duty notice or a

countervailing duty notice, means an application for the

publication of such a notice.

circumvention activity has the meaning given by

section 269ZDBB.

Commissioner means the Commissioner of the Anti-Dumping

Commission continued in existence under section 269SMB.

Commission staff member means a member of the staff assisting

the Commissioner as mentioned in subsection 269SMQ(1).

compliance period means a period prescribed in, or worked out in

accordance with, an instrument under subsection (1A).

cooperative exporter, in relation to:

(a) an investigation under this Part in relation to whether a

dumping duty notice should be published; or

(b) a review under Division 5 in relation to the publication of a

dumping duty notice; or

of a dumping duty notice;

means an exporter of goods that are the subject of the investigation,

review or inquiry, or an exporter of like goods, where:

(d) the exporter’s exports were examined as part of the

investigation, review or inquiry; and

(e) the exporter was not an uncooperative exporter in relation to

the investigation, review or inquiry.

countervailable subsidy means a subsidy that is, for the purposes

of section 269TAAC, a countervailable subsidy.

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countervailing duty means duty, other than interim countervailing

duty:

(a) that is payable on goods under section 10 of the Dumping

Duty Act because of a declaration under subsection 269TJ(1)

or (2) of this Act; or

(b) that is payable on goods under section 11 of the Dumping

Duty Act.

countervailing duty notice means a notice published by the

Minister under subsection 269TJ(1) or (2) or 269TK(1) or (2).

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.

determination means a determination in writing.

direction means a direction in writing.

dumped goods means any goods exported to Australia that the

Minister has determined, under section 269TACB, have been

dumped.

dumping duty means duty, other than interim dumping duty, that is

payable on goods under section 8 or 9 of the Dumping Duty Act.

Dumping Duty Act means the Customs Tariff (Anti-Dumping) Act

1975.

dumping duty notice means a notice published by the Minister

under subsection 269TG(1) or (2) or 269TH(1) or (2).

economy in transition has the meaning given by subsection (5C).

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Customs Act 1901 13

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fish means freshwater or salt-water fish, and includes turtles,

dugong, crustacea, molluscs or any other living resources of the sea

or of the sea-bed.

fishing operations means:

(a) the taking, catching or capturing of fish; or

(b) the farming of fish; or

forestry operations means the felling, in a forest or plantation, of

standing timber.

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.

importation period, in relation to goods that have been the subject

of a dumping duty notice or a countervailing duty notice means:

(a) in respect of goods covered by a retrospective notice—the

period beginning on the day of entry for home consumption

of the first consignment of goods to which the retrospective

notice applied and ending immediately before the day of

publication of the notice; and

(b) in respect of goods covered by a prospective notice:

(i) the period of 6 months beginning on the day of

publication of the prospective notice; and

(ii) each successive period of 6 months.

importer, in relation to goods exported to Australia, means:

(a) if paragraph (b) or (d) does not apply—the beneficial owner

of the goods at the time of their arrival within the limits of

the port or airport in Australia at which they have landed; or

(b) if the goods are taken from parts beyond the seas to an

Australian resources installation or if they are goods on board

an overseas resources installation at the time when it is

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attached to the Australian seabed—the beneficial owner of

the goods at the time when they are imported into Australia;

becomes attached to the Australian seabed—the beneficial

owner of the installation at the time when it is imported into

Australia; or

(d) if the goods are taken from parts beyond the seas to an

Australian sea installation or are goods on board an overseas

sea installation at the time when it is installed in an adjacent

area or a coastal area—the beneficial owner of the goods at

the time when they are imported into Australia; or

(e) if the goods are an overseas sea installation that becomes

installed in an adjacent area or in a coastal area—the

beneficial owner of the installation at the time when it is

imported into Australia.

interested party, in relation to:

(a) an application made to the Commissioner under

section 269TB requesting that the Minister publish a

dumping duty notice or a countervailing duty notice in

respect of the goods the subject of the application; or

(b) an application under subsection 269ZA(1), or a request under

subsection 269ZA(3), for review of anti-dumping measures

taken in respect of goods; or

under subsection 269ZDBC(2), for the conduct of an

anti-circumvention inquiry in relation to a notice published

under subsection 269TG(2) or 269TJ(2) in respect of goods;

(d) an application under section 269ZHB for a continuation of

anti-dumping measures taken in respect of goods;

means:

(e) in the case of an application—the applicant; and

(f) a person or body representing, or representing a portion of,

the industry producing, or likely to be established to produce,

like goods; and

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(g) any person who is or is likely to be directly concerned with

the importation or exportation into Australia of the goods the

subject of the application or request or who has been or is

likely to be directly concerned with the importation or

exportation into Australia of like goods; and

(h) 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 request or of like goods that have been, or are

likely to be, exported to Australia; and

(i) 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

request or of like goods, with their importation or exportation

into Australia or with both of those activities; and

(j) the government of the country of export or country of origin:

(i) of goods the subject of the application or request 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; and

(k) a trade union representing one or more persons employed in

the Australian industry producing, or likely to produce, like

goods; and

(l) a person who uses the goods the subject of the application or

request, or like goods, in the production or manufacture of

other goods in Australia.

interim countervailing duty means:

(a) interim countervailing duty imposed under section 10 of the

Dumping Duty Act; or

(b) interim third country countervailing duty imposed under

section 11 of that Act.

interim dumping duty means:

(a) interim dumping duty imposed under section 8 of the

Dumping Duty Act; or

(b) interim third country dumping duty imposed under section 9

of that Act.

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interim duty means interim dumping duty or interim countervailing

duty.

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 Commissioner in a notice under

subsection 269TC(4) to be the investigation period in relation to

the application.

like goods, in relation to goods under consideration, means goods

that are identical in all respects to the goods under consideration or

that, although not alike in all respects to the goods under

consideration, have characteristics closely resembling those of the

goods under consideration.

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.

negative preliminary decision means a decision of the kind

referred to in paragraph 269X(6)(b) or (c).

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 the investigation period in relation to

the application.

positive preliminary decision means a decision of the kind referred

to in paragraph 269X(6)(a).

preliminary affirmative determination means a determination

made under section 269TD.

production cost, in relation to processed agricultural goods, means

the sum of the direct labour costs, the direct material costs and the

factory overhead costs incurred in relation to those goods.

prospective notice means a notice issued under

subsection 269TG(2), 269TH(2), 269TJ(2) or 269TK(2).

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public notice, in relation to a decision, determination or other

matter, means notice of the decision, determination or other matter

published in accordance with section 269ZI.

public record means the public record maintained under

section 269ZJ.

raw agricultural goods means goods directly obtained by the

undertaking of any agricultural operation or any fishing operation.

residual exporter, in relation to:

(a) an investigation under this Part in relation to whether a

dumping duty notice should be published; or

(b) a review under Division 5 in relation to the publication of a

dumping duty notice; or

of a dumping duty notice;

means an exporter of goods that are the subject of the investigation,

review or inquiry, or an exporter of like goods, where:

(d) the exporter’s exports were not examined as part of the

investigation, review or inquiry; and

(e) the exporter was not an uncooperative exporter in relation to

the investigation, review or inquiry.

retrospective notice means a notice issued under

subsection 269TG(1), 269TH(1), 269TJ(1) or 269TK(1).

Review Panel means the Review Panel established under

section 269ZL.

revocation declaration, in relation to particular anti-dumping

measures, means:

(a) to the extent that the measures involved the publication of a

dumping duty notice or a countervailing duty notice—a

declaration by the Minister that the notice is taken to be, or to

have been, revoked either in relation to a particular exporter

or to exporters generally or in relation to a particular kind of

goods; or

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(b) to the extent that the measures involved the acceptance by the

Minister of an undertaking under section 269TG or 269TJ—a

declaration by the Minister that the person who gave the

undertaking is released from it and that the investigation

giving rise to the undertaking is terminated.

revocation recommendation, in relation to particular anti-dumping

measures, means any of the following:

(a) to the extent that the measures involved the publication of a

dumping duty notice or a countervailing duty notice—a

recommendation by the Commissioner in a report under

section 269ZDA that the notice be taken to be, or to have

been, revoked either in relation to a particular exporter or to

exporters generally or in relation to a particular kind of

goods;

(b) to the extent that the measures involved the acceptance by the

Minister of an undertaking under section 269TG or 269TJ—a

recommendation by the Commissioner in a report under

section 269ZDA that the Minister indicate to the person who

gave the undertaking that the person is released from it and

that the investigation giving rise to the undertaking is

terminated.

revocation review notice, in relation to a review of anti-dumping

measures, means any of the following:

(a) a notice relating to the review that is published under

subsection 269ZC(4), (5) or (6) and includes information

under paragraph 269ZC(7)(bb);

(b) a notice relating to the review that is published under

subsection 269ZCC(4) or (7) and includes information under

paragraph 269ZCC(8)(c).

small-medium enterprise means an enterprise of a kind prescribed

in an instrument under subsection (1B).

subsidy, in respect of goods exported to Australia, means:

(a) a financial contribution:

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(i) by a government of the country of export or country of

origin of the goods; or

(ii) by a public body of that country or a public body 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 involves:

(iv) a direct transfer of funds from that government or body;

(v) the acceptance of liabilities, whether actual or potential,

by that government or body; or

(vi) the forgoing, or non-collection, of revenue (other than

an allowable exemption or remission) due to that

government or body; or

(vii) the provision by that government or body of goods or

services otherwise than in the course of providing

normal infrastructure; or

(viii) the purchase by that government or body of goods or

services; or

(b) any form of income or price support as referred to in Article

XVI of the General Agreement on 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 (whether directly or indirectly) in relation to the goods

exported to Australia.

Note 1: See also subsection (2AA).

Note 2: Section 269TACC deals with whether a financial contribution or

income or price support confers a benefit.

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.

uncooperative exporter, in relation to:

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(a) an investigation under this Part in relation to whether a

dumping duty notice should be published; or

(b) a review under Division 5 in relation to the publication of a

dumping duty notice; or

of a dumping duty notice;

means an exporter of goods that are the subject of the investigation,

review or inquiry, or an exporter of like goods, where:

(d) the Commissioner was satisfied that the exporter did not give

the Commissioner information the Commissioner considered

to be relevant to the investigation, review or inquiry within a

period the Commissioner considered to be reasonable; or

(e) the Commissioner was satisfied that the exporter

significantly impeded the investigation, review or inquiry.

World Trade Organization Agreement means the Agreement

Establishing the World Trade Organization done at Marrakesh on

15 April 1994.

(1A) The Minister may make a legislative instrument for the purposes of

the definition of compliance period in subsection (1).

(1B) The Minister may, by legislative instrument, prescribe kinds of

enterprises for the purposes of the definition of small-medium

enterprise in subsection (1).

(2) For the purposes of this Part, goods, other than unmanufactured

raw products, are not to be taken to have been produced in

Australia unless the goods were wholly or partly manufactured in

Australia.

(2A) A reference in this Part to the amount of the export price of goods,

to the amount of the normal value of goods, to the amount of the

subsidy received in respect of goods or to the amount of freight

shall, where that amount is not expressed in Australian currency,

be read as a reference to the equivalent amount in Australian

currency.

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(2AA) Without limiting the definition of subsidy in subsection (1), a

financial contribution or income or price support may confer a

benefit in relation to goods exported to Australia if that

contribution or support is made in relation to goods or services

used in relation to the production, manufacture or export of the

goods exported to Australia.

(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.

(2AE) However, subsection (2AD) does not permit any determination

under this Part that dumping has occurred by reference to goods

exported to Australia before the start of the investigation period.

Note: Section 269TACB requires a determination of whether dumping has

occurred by reference to goods exported to Australia during the

investigation period.

(2B) For the purposes of this Part, where, during the exportation of

goods to Australia, the goods pass in transit from a country through

another country, that other country shall be disregarded in

ascertaining the country of export of the goods.

(3) For the purposes of subsection (2), goods shall not be taken to have

been partly manufactured in Australia unless at least one

substantial process in the manufacture of the goods was carried out

in Australia.

(4) For the purposes of this Part, if, in relation to goods of a particular

kind, there is a person or there are persons who produce like goods

in Australia:

(a) there is an Australian industry in respect of those like goods;

and

(b) subject to subsection (4A), the industry consists of that

person or those persons.

(4A) Where, in relation to goods of a particular kind first referred to in

subsection (4), the like goods referred to in that subsection are

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close processed agricultural goods, then, despite subsection (4), the

industry in respect of those close processed agricultural goods

consists not only of the person or persons producing the processed

goods but also of the person or persons producing the raw

agricultural goods from which the processed goods are derived.

(4B) For the purposes of subsection (4A), processed agricultural goods

derived from raw agricultural goods are not to be taken to be close

processed agricultural goods unless the Minister is satisfied that:

(a) the raw agricultural goods are devoted substantially or

completely to the processed agricultural goods; and

(b) the processed agricultural goods are derived substantially or

completely from the raw agricultural goods; and

(i) there is a close relationship between the price of the

processed agricultural goods and the price of the raw

agricultural goods; or

(ii) a significant part of the production cost of the processed

agricultural goods, whether or not there is a market in

Australia for those goods, is, or would be, constituted by

the cost to the producer of those goods of the raw

agricultural goods.

(4C) Where the Minister is satisfied that sufficient information has not

been furnished or is not available to enable the production cost of

processed agricultural goods to be ascertained for the purpose of

subsection (4B), the production cost of those goods is such amount

as is determined by the Minister having regard to all relevant

information.

(4D) In this Act, a reference to variable factors relevant to the

determination of duty payable under the Dumping Duty Act on

particular goods the subject of a dumping duty notice or a

countervailing duty notice is a reference:

(a) if the goods are the subject of a dumping duty notice:

(i) to the normal value of the goods; and

(ii) to the export price of the goods; and

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(iii) to the non-injurious price of the goods; and

(b) if the goods are the subject of a countervailing duty notice:

(i) to the amount of countervailable subsidy received in

respect of the goods; and

(ii) to the export price of the goods; and

(iii) to the non-injurious price of the goods.

(4E) In this Act, a reference to variable factors relevant to the review

under Division 5 of anti-dumping measures, or to the conduct of an

anti-circumvention inquiry in relation to a notice published under

subsection 269TG(2) or 269TJ(2), in respect of goods is a

reference:

(a) if the goods are the subject of a dumping duty notice—to the

normal value, export price and non-injurious price of goods

of that kind as ascertained, or last ascertained, by the

Minister for the purpose of the notice; and

(b) if the goods are the subject of a countervailing duty notice:

(i) to the amount of countervailable subsidy received in

respect of the goods; and

(ia) to the export price of the goods; and

(ii) to the non-injurious price of the goods;

as ascertained, or last ascertained, by the Minister for the

purpose of the notice; and

section 269TG—to the normal value of the goods, and the

non-injurious price of the goods, as indicated by the Minister

to the exporter in negotiations relating to the acceptability of

the undertaking; and

(d) if the goods are the subject of an undertaking accepted under

section 269TJ—to the countervailable subsidy received in

respect of the goods, and the non-injurious price of the

goods, as indicated by the Minister to the exporter or to the

country of export in negotiations relating to the acceptability

of the undertaking.

(5) A reference in this Act to goods the subject of an application under

section 269TB is a reference to goods referred in the application:

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(a) that have been imported into Australia;

(b) that are likely to be so imported; or

paragraph (a) or (b) applies.

(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.

(5C) A country has an economy in transition at a time if:

(a) before the time, the Government of the country had a

monopoly, or a substantial monopoly, of the trade of that

country and determined, or substantially influenced, the

domestic price of goods in that country; and

(b) at the time, that Government does not:

(i) have a monopoly, or a substantial monopoly, of the

trade of that country; or

(ii) determine, or substantially influence, the domestic price

of goods in that country.

1 1 2 2 n n

1 2 n

P Q P Q ... P Q

Q Q ... Q

  

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Customs Act 1901 25

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(6) Sundays and public holidays shall, notwithstanding the definition

of days in section 4 be counted as days for the purpose of

computing a period for the purposes of this Part but nothing in this

subsection shall derogate from the operation of section 36 of the

Acts Interpretation Act 1901.

269TAAA Anti-dumping measures not to apply to New Zealand

originating goods

This Part, so far as it relates to duty that may become payable

under section 8 or 9 of the Dumping Duty Act, does not apply to

goods that are New Zealand originating goods under Division 1E

of Part VIII of this Act.

269TAAB Member countries, developing countries and special

developing countries

(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

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

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Section 269TAAC

26 Customs Act 1901

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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.

269TAAC Definition—countervailable subsidy

(1) For the purposes of this Part, a subsidy is a countervailable

subsidy if it is specific.

(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

solely or as one of several conditions, on export performance;

(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:

(a) eligibility for, and the amount of, the subsidy are established

by objective criteria or conditions set out in primary or

subordinate legislation or other official documents that are

capable of verification; and

(b) eligibility for the subsidy is automatic; and

particular enterprises over others, are economic in nature and

are horizontal in application; and

(d) those criteria or conditions are strictly adhered to in the

administration of the subsidy.

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(4) 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

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.

269TAACA Determination of countervailable subsidy if

non-cooperation by relevant entities

(1) If:

(a) one of the following applies:

(i) there is an investigation under this Part in relation to

whether a countervailing duty notice should be

published;

(ii) there is a review under Division 5 in relation to the

publication of a countervailing duty notice;

(iii) there is an inquiry under Division 6A in relation to the

continuation of a countervailing duty notice; and

(b) the Commissioner is satisfied that an entity covered by

subsection (2):

(i) has not given the Commissioner information the

Commissioner considers to be relevant to the

investigation, review or inquiry within a period the

Commissioner considers to be reasonable; or

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(ii) has significantly impeded the investigation, review or

inquiry;

then, in relation to the investigation, review or inquiry, in

determining whether a countervailable subsidy has been received

in respect of particular goods, or in determining the amount of a

countervailable subsidy in respect of particular goods, the

Commissioner or the Minister:

Commissioner or the Minister (as the case may be); and

(d) may make such assumptions as the Commissioner or the

Minister (as the case may be) considers reasonable.

(2) For the purposes of paragraph (1)(b), the entities are as follows:

(a) any person who is or is likely to be directly concerned with

the importation or exportation into Australia of goods to

which the investigation, review or inquiry relates or who has

been or is likely to be directly concerned with the importation

or exportation into Australia of like goods;

(b) the government of the country of export or country of origin:

(i) of goods to which the investigation, review or inquiry

relates 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.

269TAAD Ordinary course of trade

(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

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(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.

269TAA Arms length transactions

(1) For the purposes of this Part, a purchase or sale of goods shall not

be treated as an arms length transaction if:

(a) there is any consideration payable for or in respect of the

goods other than their price; or

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(b) the price appears to be influenced by a commercial or other

relationship between the buyer, or an associate of the buyer,

and the seller, or an associate of the seller; or

buyer, will, subsequent to the purchase or sale, directly or

indirectly, be reimbursed, be compensated or otherwise

receive a benefit for, or in respect of, the whole or any part of

the price.

(1A) For the purposes of paragraph (1)(c), the Minister must not hold

the opinion referred to in that paragraph because of a

reimbursement in respect of the purchase or sale if the Minister is

of the opinion that the purchase or sale will remain an arms length

transaction in spite of the payment of that reimbursement, having

regard to any or all of the following matters:

(a) any agreement, or established trading practices, in relation to

the seller and the buyer, in respect of the reimbursement;

(b) the period for which such an agreement or practice has been

in force;

quantifiable at the time of the purchase or sale.

(2) Without limiting the generality of subsection (1), where:

(a) goods are exported to Australia otherwise than by the

importer and are purchased by the importer from the exporter

(whether before or after exportation) for a particular price;

and

(b) the Minister is satisfied that the importer, whether directly or

through an associate or associates, sells those goods in

Australia (whether in the condition in which they were

imported or otherwise) at a loss;

the Minister may, for the purposes of paragraph (1)(c), treat the

sale of those goods at a loss as indicating that the importer or an

associate of the importer will, directly or indirectly, be reimbursed,

be compensated or otherwise receive a benefit for, or in respect of,

the whole or a part of the price.

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(3) In determining, for the purposes of subsection (2), whether goods

are sold by an importer at a loss, the Minister shall have regard to:

(a) the amount of the price paid or to be paid for the goods by

the importer; and

(b) such other amounts as the Minister determines to be costs

necessarily incurred in the importation and sale of the goods;

and

and (b) will be able to be recovered within a reasonable time;

and

(d) such other matters as the Minister considers relevant.

(4) For the purposes of this Part, 2 persons shall be deemed to be

associates of each other if, and only if:

(a) both being natural persons:

(i) they are members of the same family; or

(ii) one of them is an officer or director of a body corporate

controlled, directly or indirectly, by the other;

(b) both being bodies corporate:

(i) both of them are controlled, directly or indirectly, by a

third person (whether or not a body corporate); or

(ii) both of them together control, directly or indirectly, a

third body corporate; or

(iii) the same person (whether or not a body corporate) is in

a position to cast, or control the casting of, 5% or more

of the maximum number of votes that might be cast at a

general meeting of each of them; or

controlled by the other (whether or not a body corporate); or

(d) one of them, being a natural person, is an employee, officer

or director of the other (whether or not a body corporate); or

(e) they are members of the same partnership.

Note: In relation to the reference to member of a family in

subparagraph (4)(a)(i), see also section 4AAA.

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Section 269TAB

32 Customs Act 1901

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269TAB Export price

(1) For the purposes of this Part, the export price of any goods

exported to Australia is:

(a) where:

(i) the goods have been exported to Australia otherwise

than by the importer and have been purchased by the

importer from the exporter (whether before or after

exportation); and

(ii) the purchase of the goods by the importer was an arms

length transaction;

the price paid or payable for the goods by the importer, other

than any part of that price that represents a charge in respect

of the transport of the goods after exportation or in respect of

any other matter arising after exportation; or

(b) where:

(i) the goods have been exported to Australia otherwise

than by the importer and have been purchased by the

importer from the exporter (whether before or after

exportation); and

(ii) the purchase of the goods by the importer was not an

arms length transaction; and

(iii) the goods are subsequently sold by the importer, in the

condition in which they were imported, to a person who

is not an associate of the importer;

the price at which the goods were so sold by the importer to

that person less the prescribed deductions; or

having regard to all the circumstances of the exportation.

(1A) For the purposes of paragraph (1)(a), the reference in that

paragraph to the price paid or payable for goods is a reference to

that price after deducting any amount that is determined by the

Minister to be a reimbursement of the kind referred to in

subsection 269TAA(1A) in respect of that transaction.

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(2) A reference in paragraph (1)(b) to prescribed deductions in relation

to a sale of goods that have been exported to Australia shall be read

as a reference to:

(a) any duties of Customs or sales tax paid or payable on the

goods; and

(b) any costs, charges or expenses arising in relation to the goods

after exportation; and

Minister so directs, an amount calculated in accordance with

such rate as the Minister specifies in the direction as the rate

that, for the purposes of paragraph (1)(b), is to be regarded as

the rate of profit on the sale by the importer.

(3) Where the Minister is satisfied that sufficient information has not

been furnished, or is not available, to enable the export price of

goods to be ascertained under the preceding subsections, the export

price of those goods shall be such amount as is determined by the

Minister having regard to all relevant information.

(4) For the purposes of this section, the Minister may disregard any

information that he or she considers to be unreliable.

(5) Paragraphs (1)(a) and (b) apply in relation to a purchase of goods

by an importer from an exporter whether or not the importer and

exporter are associates of each other.

269TAC Normal value of goods

(1) Subject to this section, for the purposes of this Part, the normal

value of any goods exported to Australia is the price paid or

payable for like goods sold in the ordinary course of trade for home

consumption in the country of export in sales that are arms length

transactions by the exporter or, if like goods are not so sold by the

exporter, by other sellers of like goods.

(1A) For the purposes of subsection (1), the reference in that subsection

to the price paid or payable for like goods is a reference to that

price after deducting any amount that is determined by the Minister

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to be a reimbursement of the kind referred to in

subsection 269TAA(1A) in respect of the sales.

(2) Subject to this section, where the Minister:

(a) is satisfied that:

(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);

the normal value of goods exported to Australia cannot be

ascertained under subsection (1); or

(b) is satisfied, in a case where like goods are not sold in the

ordinary course of trade for home consumption in the country

of export in sales that are arms length transactions by the

exporter, that it is not practicable to obtain, within a

reasonable time, information in relation to sales by other

sellers of like goods that would be relevant for the purpose of

determining a price under subsection (1);

the normal value of the goods for the purposes of this Part is:

(i) such amount as the Minister determines to be the cost of

production or manufacture of the goods in the country

of export; and

(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 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 or payable 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

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third country, other than any amount determined by the

Minister to be a reimbursement of the kind referred to in

subsection 269TAA(1A) in respect of any such transactions.

(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.

(3A) The Minister is not required to consider working out the normal

value of goods under paragraph (2)(d) before working out the

normal value of goods under paragraph (2)(c).

(4) Subject to subsections (6) and (8), where the Minister is satisfied

that it is inappropriate to ascertain the normal value of goods in

accordance with the preceding subsections because the

Government of the country of export:

(a) has a monopoly, or substantial monopoly, of the trade of the

country; and

(b) determines or substantially influences the domestic price of

goods in that country;

the normal value of the goods for the purposes of this Part is to be

a value ascertained in accordance with whichever of the following

paragraphs the Minister determines having regard to what is

appropriate and reasonable in the circumstances of the case:

manufactured in a country determined by the Minister and

sold for home consumption in the ordinary course of trade in

that country, being sales that are arms length transactions;

(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) a value equal to the sum of the following amounts

ascertained in respect of like goods produced or

manufactured in a country determined by the Minister and

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sold for home consumption in the ordinary course of trade in

that country:

(i) such amount as the Minister determines to be the cost of

production or manufacture of the like goods in that

country;

(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) a value equal to the price payable for like goods produced or

manufactured in Australia and sold for home consumption in

the ordinary course of trade in Australia, being sales that are

arms length transactions.

(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:

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(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.

(5D) The normal value of goods (the exported goods) is the amount

determined by the Minister, having regard to all relevant

information, if the exported goods are exported to Australia and the

Minister is satisfied that the country of export has an economy in

transition and that at least one of the following paragraphs applies:

(a) both of the following conditions exist:

(i) the exporter of the exported goods sells like goods in the

country of export;

(ii) market conditions do not prevail in that country in

respect of the domestic selling price of those like goods;

(b) both of the following conditions exist:

(i) the exporter of the exported goods does not sell like

goods in the country of export but others do;

(ii) market conditions do not prevail in that country in

respect of the domestic selling price of those like goods;

in a questionnaire given to the exporter by the Commissioner

under subsection 269TC(8) within the period described in

that subsection or subsection 269TC(9) for answering

questions;

(d) the answers given within the period mentioned in

subsection 269TC(8), or the further period mentioned in

subsection 269TC(9), by the exporter of the exported goods

to a questionnaire given to the exporter under

subsection 269TC(8) do not provide a reasonable basis for

determining that paragraphs (a) and (b) of this subsection do

not apply.

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Section 269TAC

38 Customs Act 1901

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Note: Subsection 269TC(8) deals with the Commissioner giving an exporter of goods to Australia a questionnaire about evidence of whether or not paragraphs (a) and (b) of this subsection apply, with a specified period of at least 30 days for the exporter to answer the questions. Under subsection 269TC(9) the Commissioner may allow the exporter a further period for answering the questions.

(5E) To be satisfied that the conditions in paragraph (5D)(a) or (b) exist,

the Minister must have regard to the matters (if any) prescribed by

the regulations.

(5F) Without limiting the generality of subsection (5D), for the purpose

of working out, under that subsection, the amount that is to be the

normal value of goods exported to Australia, the Minister may

determine that amount in a manner that would be open to the

Minister under paragraph (4)(c), (d), (e) or (f) if subsection (4)

were applicable.

(5J) For the purposes of fulfilling Australia’s international obligations

under an international agreement, regulations may be made to

disapply subsection (5D) to a country.

(6) Where the Minister is satisfied that sufficient information has not

been furnished or is not available to enable the normal value of

goods to be ascertained under the preceding subsections (other than

subsection (5D)), the normal value of those goods is such amount

as is determined by the Minister having regard to all relevant

information.

(7) For the purposes of this section, the Minister may disregard any

information that he or she considers to be unreliable.

(7A) The application of subsection (5D) to goods that are exported to

Australia from a particular country does not preclude the

application of other provisions of this section (other than

subsections (4) and (5)) to other goods that are exported to

Australia from that country.

(8) Where the normal value of goods exported to Australia is the price

paid or payable for like goods and that price and the export price of

the goods exported:

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(a) relate to sales occurring at different times; or

(b) are not in respect of identical goods; or

circumstances of the sales to which they relate;

that price paid or payable for like goods is to be taken to be such a

price adjusted in accordance with directions by the Minister so that

those differences would not affect its comparison with that export

price.

(9) Where the normal value of goods exported to Australia is to be

ascertained in accordance with paragraph (2)(c) or (4)(e), the

Minister must make such adjustments, in determining the costs to

be determined under that paragraph, as are necessary to ensure that

the normal value so ascertained is properly comparable with the

export price of those goods.

(10) Where:

(a) the actual country of export of goods exported to Australia is

not the country of origin of the goods; and

(b) the Minister is of the opinion that the normal value of the

goods should be ascertained for the purposes of this Part as if

the country of origin were the country of export;

he or she may direct that the normal value of the goods is to be so

ascertained.

(11) For the purposes of subsection (10), the country of origin of goods

is:

(a) in the case of unmanufactured raw products—the country of

which they are products; or

(b) in any other case—the country in which the last significant

process in the manufacture or production of the goods was

performed.

(14) If:

(a) application is made for a dumping duty notice; and

(b) goods the subject of the application are exported to Australia;

but

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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.

269TACAA Sampling

(1) If:

(a) one of the following applies:

(i) there is an investigation under this Part in relation to

whether a dumping duty notice or countervailing duty

notice should be published;

(ii) there is a review under Division 5 in relation to the

publication of a dumping duty notice or countervailing

duty notice;

(iii) there is an inquiry under Division 6A in relation to the

continuation of a dumping duty notice or countervailing

duty notice; and

(b) the number of exporters from a particular country of export

in relation to the investigation, review or inquiry is so large

that it is not practicable to examine the exports of all of those

exporters;

then the investigation, review or inquiry may be carried out, and

findings may be made, on the basis of information obtained from

an examination of a selected number of those exporters:

(d) who are responsible for the largest volume of exports to

Australia that can reasonably be examined.

(2) If information is submitted by an exporter not initially selected

under subsection (1) for the purposes of an investigation, review or

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inquiry, the investigation, review or inquiry must extend to that

exporter unless to so extend it would prevent its timely completion.

269TACAB Dumping duty notice—export prices and normal values

for different categories of exporters

Uncooperative exporters

(1) If one of the following applies:

(a) there is an investigation under this Part in relation to whether

a dumping duty notice should be published;

(b) there is a review under Division 5 in relation to the

publication of a dumping duty notice;

continuation of a dumping duty notice;

then:

(d) if the export price of goods for an uncooperative exporter is

to be worked out in relation to the investigation, review or

inquiry—that export price is to be worked out under

subsection 269TAB(3); and

(e) if the normal value of goods for an uncooperative exporter is

to be worked out in relation to the investigation, review or

inquiry—that normal value is to be worked out under

subsection 269TAC(6).

Residual exporters

(2) If:

(a) one of the following applies:

(i) there is an investigation under this Part in relation to

whether a dumping duty notice should be published;

(ii) there is a review under Division 5 in relation to the

publication of a dumping duty notice;

(iii) there is an inquiry under Division 6A in relation to the

continuation of a dumping duty notice; and

(b) the investigation, review or inquiry is carried out on the basis

of information obtained from an examination of a selected

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number of exporters as mentioned in

subsection 269TACAA(1);

then:

worked out in relation to the investigation, review or

inquiry—that export price must not be less than the weighted

average of export prices for like goods of cooperative

exporters from the same country of export; and

(d) if the normal value of goods for a residual exporter is to be

worked out in relation to the investigation, review or

inquiry—that normal value must not exceed the weighted

average of normal values for like goods of cooperative

exporters from the same country of export.

(3) To the extent that subsection (2) applies in relation to an

investigation, the weighted average of export prices, and the

weighted average of normal values, of the cooperative exporters

must not include any export price or normal value if, in a

comparison under section 269TACB involving that export price or

normal value, the Minister has determined:

(a) that there is no dumping; or

(b) that the dumping margin, 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%.

269TACA Non-injurious price

The non-injurious price of goods exported to Australia is the

minimum price necessary:

(a) if the goods are the subject of, or of an application for, a

dumping duty notice under subsection 269TG(1) or (2)—to

prevent the injury, or a recurrence of the injury, or to remove

the hindrance, referred to in paragraph 269TG(1)(b) or (2)(b);

(b) if the goods are the subject of, or of an application for, a third

country dumping duty notice under subsection 269TH(1) or

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(2)—to prevent the injury, or a recurrence of the injury,

referred to in paragraph 269TH(1)(b) or (2)(b); or

countervailing duty notice under subsection 269TJ(1) or

(2)—to prevent the injury, or a recurrence of the injury, or to

remove the hindrance, referred to in paragraph 269TJ(1)(b)

or (2)(b); or

(d) if the goods are the subject of, or of an application for, a third

country countervailing duty notice under

subsection 269TK(1) or (2)—to prevent the injury, or a

recurrence of the injury, referred to in

paragraph 269TK(1)(b) or (2)(b).

269TACB Working out whether dumping has occurred and levels of

dumping

(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

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

whole of the investigation period with the weighted average

of corresponding normal values over the whole of that

period; or

(aa) use the method of comparison referred to in paragraph (a) in

respect of parts of the investigation period as if each of these

parts were the whole of the investigation period; or

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(b) compare the export prices determined in respect of individual

transactions over the whole of the investigation period with

the corresponding normal values determined over the whole

of that period; or

(i) the method of comparison referred to in paragraph (a) in

respect of a part or parts of the investigation period as if

the part or each of these parts were the whole of the

investigation period; and

(ii) the method of comparison referred to in paragraph (b) in

respect of another part or other parts of the investigation

period as if that other part or each of these other parts

were the whole of the investigation period.

(2A) If paragraph (2)(aa) or (c) applies:

(a) each part of the investigation period referred to in the

paragraph must not be less than 1 month; and

(b) the parts of the investigation period as referred to in

paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i)

and (ii), must together comprise the whole of the

investigation 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:

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(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 and that period is the difference between those

weighted averages.

(4A) To avoid doubt, a reference to a period in subsection (4) includes a

reference to a part of the investigation period.

(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 and that transaction 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.

(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.

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269TACC Working out whether a financial contribution or income

or price support confers a benefit

(1) Subject to subsections (2) and (3), the question whether a financial

contribution or income or price support confers a benefit is to be

determined by the Minister having regard to all relevant

information.

(2) A direct financial payment received from any of the following is

taken to confer a benefit:

(a) a government of a country;

(b) a public body of a country;

member;

(d) a private body entrusted or directed by a government of a

country or by such a public body to carry out a governmental

function.

Guidelines for financial contributions

(3) 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 a government or body

referred to in subsection (2) 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 a government or body referred to in

subsection (2) does not confer a benefit unless the loan

requires the enterprise receiving the loan to repay a lesser

amount than would be required for a comparable commercial

loan which the enterprise could actually obtain;

in subsection (2) does not confer a benefit unless the

enterprise receiving the guarantee is required to repay on the

loan a lesser amount than would be required for a comparable

commercial loan without that guarantee;

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(d) the provision of goods or services by a government or body

referred to in subsection (2) does not confer a benefit unless

the goods or services are provided for less than adequate

remuneration;

(e) the purchase of goods or services by a government or body

referred to in subsection (2) does not confer a benefit unless

the purchase is made for more than adequate remuneration.

(4) For the purposes of paragraphs (3)(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.

269TACD Amount of countervailable subsidy

(1) If the Minister is satisfied that a countervailable subsidy has been

received in respect of goods, the amount of the subsidy is an

amount determined by the Minister in writing.

(2) After the amount of the countervailable 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.

269TAE Material injury to industry

(1) In determining, for the purposes of section 269TG or 269TJ,

whether material injury to an Australian industry has been or is

being caused or is threatened or would or might have been caused,

or whether the establishment of an Australian industry has been

materially hindered, 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) to (2C), have regard to:

(aa) if the determination is being made for the purposes of

section 269TG—the size of the dumping margin, or of each

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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

(a) the quantity of goods of that kind that, during a particular

period, have been or are likely to be exported to Australia

from the country of export; and

(b) any increase or likely increase, during a particular period, in

the quantity of goods of that kind exported to Australia from

the country of export; and

proportion that:

(i) the quantity of goods of that kind exported to Australia

from the country of export and sold or consumed in

Australia; or

(ii) the quantity of goods of that kind, or like goods,

produced or manufactured in the Australian industry

and sold or consumed in Australia;

bears to the quantity of goods of that kind, or like goods, sold

or consumed in Australia; and

(d) the export price that has been or is likely to be paid by

importers for goods of that kind exported to Australia from

the country of export; and

(e) the difference between:

(i) the price that has been or is likely to be paid for goods

of that kind, or like goods, produced or manufactured in

the Australian industry and sold in Australia; and

(ii) the price that has been or is likely to be paid for goods

of that kind exported to Australia from the country of

export and sold in Australia; and

(f) the effect that the exportation of goods of that kind to

Australia from the country of export in those circumstances

has had or is likely to have on the price paid for goods of that

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kind, or like goods, produced or manufactured in the

Australian industry and sold in Australia; and

(g) any effect that the exportation of goods of that kind to

Australia from the country of export in those circumstances

has had or is likely to have on the relevant economic factors

in relation to the Australian industry; and

(h) if the determination is being made for the purposes of

section 269TJ and the goods are agricultural products—

whether the exportation of goods of that kind to Australia

from the country of export in those circumstances has given

or is likely to give rise to a need for financial or other

support, or an increase in financial or other support, for the

Australian industry from the Commonwealth Government.

(2) In determining, for the purposes of section 269TH or 269TK,

whether material injury to an industry in a third country has been

or is being caused or is threatened or would or might have been

caused 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) to (2C), have regard to:

(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

(a) the quantity of goods of that kind that, during a particular

period, have been or are likely to be exported to Australia

from the country of export; and

(b) any increase or likely increase, during a particular period, in

the quantity of goods of that kind exported to Australia from

the country of export; and

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proportion that:

(i) the quantity of goods of that kind exported to Australia

from the country of export and sold or consumed in

Australia; or

(ii) the quantity of goods of that kind, or like goods,

produced or manufactured in the third country and sold

or consumed in Australia;

bears to the quantity of goods of that kind, or like goods, sold

or consumed in Australia; and

(d) the export price that has been or is likely to be paid by

importers for goods of that kind exported to Australia from

the country of export; and

(e) the difference between:

(i) the price that has been or is likely to be paid for goods

of that kind, or like goods, produced or manufactured in

the third country and sold in Australia; and

(ii) the price that has been or is likely to be paid for goods

of that kind exported to Australia from the country of

export and sold in Australia; and

(f) the effect that the exportation of goods of that kind to

Australia from the country of export in those circumstances

has had or is likely to have on the price paid for goods of that

kind, or like goods, produced or manufactured in the third

country and sold in Australia; and

(g) any effect that the exportation of goods of that kind to

Australia from the country of export in those circumstances

has had or is likely to have on the relevant economic factors

in relation to the producer or manufacturer in the third

country.

(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:

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(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

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.

(2AA) A determination for the purposes of subsection (1) or (2) must be

based on facts and not merely on allegations, conjecture or remote

possibilities.

(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 exportations of goods to Australia from different

countries of export, the Minister should consider the cumulative

effect of those exportations only if the Minister is satisfied that:

(a) each of those exportations is the subject of an investigation;

and

(b) either:

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(i) all the investigations of those exportations resulted from

applications under section 269TB lodged with the

Commissioner on the same day; or

(ii) the investigations of those exportations resulted from

applications under section 269TB lodged with the

Commissioner on different days but the investigation

periods for all the investigations of those exportations

overlap significantly; and

section 269TG or 269TH—the dumping margin worked out

under section 269TACB for the exporter for each of the

exportations is at least 2% of the export price or weighted

average of export prices used to establish that dumping

margin; and

(d) if the determination is being made for the purposes of

section 269TG or 269TH—for each application, the volume

of goods the subject of the application that have been, or may

be, exported to Australia over a reasonable examination

period (as defined in subsection 269TDA(17)) from the

country of export and dumped is not taken to be negligible

for the purposes of subsection 269TDA(3) because of

subsection 269TDA(4); and

(da) if the determination is being made for the purposes of

section 269TJ or 269TK:

(i) the amount of the countervailable subsidy in respect of

the goods the subject of each of the exportations

exceeds the negligible level of countervailable subsidy

worked out under subsection 269TDA(16); and

(ii) the volume of each of those exportations is not

negligible; and

(e) it is appropriate to consider the cumulative effect of those

exportations, having regard to:

(i) the conditions of competition between those goods; and

(ii) the conditions of competition between those goods and

like goods that are domestically produced.

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(3) A reference in subsection (1) or (2) to the relevant economic

factors in relation to an Australian industry, or in relation to an

industry in a third country, in relation to goods of a particular kind

exported to Australia is a reference to:

(a) the quantity of goods of that kind, or like goods, produced or

manufactured in the industry; and

(b) the degree of utilization of the capacity of the industry to

produce or manufacture goods of that kind, or like goods;

and

manufactured in the industry:

(i) for which there are sales or forward orders; or

(ii) which are held as stocks; and

(d) the value of sales of, or forward orders for, goods of that

kind, or like goods, produced or manufactured in the

industry; and

(e) the level of profits earned in the industry, that are attributable

to the production or manufacture of goods of that kind, or

like goods; and

(f) the level of return on investment in the industry; and

(g) cash flow in the industry; and

(h) the number of persons employed, and the level of wages paid

to persons employed, in the industry in relation to the

production or manufacture of goods of that kind, or like

goods; and

(ha) the terms and conditions of employment (including the

number of hours worked) of persons employed in the

industry in relation to the production or manufacture of

goods of that kind, or like goods; and

(j) the share of the market in Australia for goods of that kind, or

like goods, that is held by goods of that kind, or like goods,

produced or manufactured in the industry; and

(k) the ability of persons engaged in the industry, to raise capital

in relation to the production or manufacture of goods of that

kind, or like goods; and

(m) investment in the industry.

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269TAF Currency conversion

(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 on the Anti-Dumping

Commission’s website, 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

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(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 Commissioner may, if he or she considers it desirable so to do

for the avoidance of doubt, specify, by notice published on the

Anti-Dumping Commission’s website, 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.

269TAG Minister may take anti-dumping measures on own

initiative

(1) Nothing in this Part implies that the Minister cannot initiate an

investigation into the need to take anti-dumping measures in

respect of goods although no application has been made under

section 269TB for the taking of such measures in respect of such

goods.

(2) An investigation under subsection (1) must be carried out in

accordance with the Minister’s written requirements instead of the

requirements set out in this Part.

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(3) The Minister may, subject to subsection (4), take anti-dumping

measures as a result of the investigation as if the investigation had

been carried out under this Part.

(4) The Minister must not take such anti-dumping measures unless the

Minister:

(a) has determined any matters which the Minister would be

required to determine; and

(b) is satisfied of any matters of which the Minister would be

required to be satisfied;

in order to take those measures if the investigation had been carried

out in accordance with the requirements of the other provisions of

this Part.

(5) The Minister must ensure that:

(a) his or her instructions under subsection (2) for the conduct of

an investigation referred to in subsection (1); and

(b) his or her actions in taking any anti-dumping measures as a

result of such an investigation;

are consistent with Australia’s international obligations under the

World Trade Organization Agreement.

(6) The anti-dumping measures taken and any matters determined to

permit the taking of those measures are to be treated, for all

purposes of this Act and the Dumping Duty Act, as measures

taken, and matters determined, under the relevant provisions of this

Part.

269TAH Minister may delegate functions and powers to

Commissioner or Commission staff members

(1) The Minister may, by signed instrument, delegate to the following

any of the functions and powers of the Minister under this Part or

the Dumping Duty Act:

(a) the Commissioner;

(b) a Commission staff member.

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(2) However, subsection (1) does not apply to a function or power

under:

(a) subsection 269TG(1) or (2), 269TH(1) or (2), 269TJ(1) or (2)

or 269TK(1) or (2) of this Act; or

(b) subsection 8(5), 9(5), 10(3B) or 11(4) of the Dumping Duty

Act.

269TA Minister may give directions to Commissioner in relation to

powers and duties under this Part

(1) The Minister may, by legislative instrument, give to the

Commissioner such directions in connection with carrying out or

giving effect to the Commissioner’s powers and duties under this

Part as the Minister thinks fit, and the Commissioner shall comply

with any directions so given.

(2) A direction under subsection (1) shall not deal with carrying out or

giving effect to the powers or duties of the Commissioner in

relation to a particular consignment of goods or to like goods to

goods in a particular consignment but shall deal instead with the

general principles for carrying out or giving effect to the

Commissioner’s powers.

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Section 269TBA

58 Customs Act 1901

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Division 2—Consideration of anti-dumping matters by the

Commissioner

269TBA What this Division is about

This Division:

• sets out the requirements for making applications for the publication of dumping duty notices and countervailing duty

notices;

• sets out the procedures to be followed, and the matters to be considered, by the Commissioner in conducting investigations

in relation to goods covered by such applications, for the

purpose of making a report to the Minister;

• empowers the Commonwealth, in certain cases, to take securities in respect of interim duty that may become payable,

in order to prevent injury to Australian industry while such

investigations continue;

• sets out the circumstances in which the Commissioner must terminate such investigations.

269TB Application for action under Dumping Duty Act

(1) Where:

(a) a consignment of goods:

(i) has been imported into Australia;

(ii) is likely to be imported into Australia; or

(iii) may be imported into Australia, being like goods to

goods to which subparagraph (i) or (ii) applies;

(b) there is, or may be established, an Australian industry

producing like goods; and

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grounds for the publication of a dumping duty notice or a

countervailing duty notice in respect of the goods in the

consignment;

that person may, by application in writing lodged with the

Commissioner, request that the Minister publish that notice in

respect of the goods in the consignment.

(2) Where:

(a) a consignment of goods produced or manufactured in a

country other than Australia:

(i) has been imported into Australia;

(ii) is likely to be imported into Australia; or

(iii) may be imported into Australia, being like goods to

goods to which subparagraph (i) or (ii) applies; and

(b) there is, in a third country, an industry that produces or

manufactures like goods for export to Australia; and

or may be, reasonable grounds for the publication of a

dumping duty notice or a countervailing duty notice in

respect of the goods in the consignment;

the Government of that third country may, by application in

writing lodged with the Commissioner, request that the Minister

publish that notice in respect of the goods in the consignment.

(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 Commissioner 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

Commissioner must notify:

(a) the government of the country, or of each country, whose

exporters are nominated in the application; and

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Section 269TB

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(b) the government of any other country from which

countervailable subsidies are alleged to have been received.

(2C) A notification by the Commissioner under subsection (2B) must

include an invitation to consult with the Commissioner 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.

(3) An applicant may, at any time before the Minister decides:

(a) to publish a dumping duty notice or a countervailing duty

notice in respect of an exporter to whom the application

extends; or

(b) to accept an undertaking from an exporter to whom the

application extends or from a country to whose exporters the

application extends;

by notice in writing lodged with the Commissioner, withdraw the

application so far as it extends to that exporter, or to exporters

exporting from that country, as the case requires.

(4) An application under subsection (1) or (2) or a notice under

subsection (3) withdrawing such an application must:

(a) be in writing; and

(b) be in a form approved by the Commissioner for the purposes

of this section; and

(d) be signed in the manner indicated in the form; and

(e) in the case of an application under subsection (1)—be

supported by a sufficient part of the Australian industry; and

(f) be lodged in the manner approved under section 269SMS.

(5) The application, or the notice withdrawing an application, is taken

to have been received by the Commissioner when the application

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or notice is first received by a Commission staff member doing

duty in relation to dumping applications.

(6) An application under subsection (1) in relation to a consignment of

goods is taken to be supported by a sufficient part of the Australian

industry if the Commissioner 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.

269TC Consideration of application

(1) The Commissioner shall, within 20 days after receiving an

application under subsection 269TB(1) in respect of goods,

examine the application and, if the Commissioner is not satisfied,

having regard to the matters contained in the application and to any

other information that the Commissioner considers relevant:

(a) that the application complies with subsection 269TB(4); or

(b) that there is, or is likely to be established, an Australian

industry in respect of like goods; or

(i) for the publication of a dumping duty notice or a

countervailing duty notice, as the case requires, in

respect of the goods the subject of the application; or

(ii) for the publication of such a notice upon the importation

into Australia of such goods;

he or she shall reject the application and inform the applicant, by

notice in writing, accordingly.

(2) The Commissioner shall, within 20 days after receiving an

application by the Government of a country under

subsection 269TB(2) in respect of goods, examine the application

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and, if the Commissioner is not satisfied, having regard to the

matters contained in the application and to any other information

that the Commissioner considers relevant:

(a) that the application complies with subsection 269TB(4); or

(b) that there is a producer or manufacturer of like goods in that

country who exports such goods to Australia; or

(i) for the publication of a dumping duty notice or a

countervailing duty notice, as the case requires, in

respect of the goods the subject of the application; or

(ii) for the publication of such a notice upon the importation

into Australia of such goods;

he or she shall reject the application and inform the applicant, by

notice in writing, accordingly.

(2A) If an applicant, after lodging an application under section 269TB,

decides to give the Commissioner further information in support of

that application without having been requested to do so:

(a) the information must be lodged with the Commissioner, in

writing, in the manner in which applications under that

section must be lodged; and

(b) the information is taken to have been received by the

Commissioner when the information is first received by a

Commission staff member doing duty in relation to dumping

applications; and

(i) the application had included that further information;

and

(ii) the application had only been lodged when that further

information was lodged; and

(iii) the application had only been received when that further

information was received.

(3) Where, in accordance with subsection (1) or (2), the Commissioner

rejects an application, the notice informing the applicant of that

rejection:

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(a) shall state the reasons why the Commissioner was not

satisfied of one or more of the matters set out in that

subsection; and

(b) shall inform the applicant of the applicant’s right, within 30

days of the receipt of the notice, to apply for a review of the

Commissioner’s decision by the Review Panel under

Division 9.

(4) If the Commissioner decides not to reject an application under

subsection 269TB(1) or (2) in respect of goods, the Commissioner

must give public notice of the decision:

(a) setting out particulars of goods the subject of the application;

and

(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, 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 a report will be made to the Minister:

(i) within 155 days after the date of initiation of the

investigation; or

(ii) within such longer period as the Minister allows under

section 269ZHI;

on the basis of the examination of exportations to Australia

of goods the subject of the application during a period

specified in the notice as the investigation period in relation

to the application; and

within 37 days after the date of initiation of the investigation,

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submissions concerning the publication of the notice sought

in the application; and

(d) stating that if the Commissioner, in accordance with

section 269TD, makes a preliminary affirmative

determination in relation to the application, he or she may

apply provisional measures, including the taking of securities

under section 42, in respect of interim duty that may become

payable on the importation of the goods the subject of the

application; and

(e) stating that:

(i) within 110 days after the date of initiation of the

investigation; or

(ii) such longer period as the Minister allows under

section 269ZHI;

the Commissioner, in accordance with section 269TDAA,

will place on the public record a statement of the essential

facts on which the Commissioner proposes to base a

recommendation to the Minister; and

(f) inviting interested parties to lodge with the Commissioner,

within 20 days of that statement being placed on the public

record, submissions in response to that statement; and

(g) indicating the address at which, or the manner in which,

submissions under paragraph (c) or (f) can be lodged; and

(h) stating that if the Minister decides to publish or not to publish

a dumping duty notice or a countervailing duty notice after

considering the report referred to in paragraph (bf), certain

persons will have the right to seek review of that decision in

accordance with Division 9.

(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.

(5A) The Commissioner cannot vary the length of the investigation

period.

(6) Despite the fact that a notice under this section specifies a

particular period for interested parties to lodge submissions with

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the Commissioner, if the Commissioner 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 Commissioner 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 Commissioner decides not to reject

an application under section 269TB for a dumping duty notice or a

countervailing duty notice, the Commissioner 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.

(8) If the Commissioner is satisfied that a country whose exporters are

nominated in an application for a dumping duty notice or a

countervailing duty notice has an economy in transition, the

Commissioner must, as soon as practicable after deciding not to

reject the application:

(a) give each nominated exporter from such a country a

questionnaire about evidence of whether or not paragraphs

269TAC(5D)(a) and (b) apply; and

(b) inform each such exporter that the exporter has a specified

period of not less than 30 days for answering questions in the

questionnaire; and

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application will proceed on the basis that

subsection 269TAC(5D) applies to the normal value of the

exporter’s goods that are the subject of the application if:

(i) the exporter does not give the answers to the

Commissioner within the period; or

(ii) the exporter gives the answers to the Commissioner

within the period but they do not provide a reasonable

basis for determining that paragraphs 269TAC(5D)(a)

and (b) do not apply.

Note: Paragraph 269TAC(5D)(a) or (b) applies if a government of the

country of export significantly affects the selling price in that country

of like goods to the goods that are the subject of the application.

(9) Despite the fact that, under subsection (8), the Commissioner has

informed an exporter given a questionnaire that the exporter has a

particular period to answer the questions in the questionnaire, if the

Commissioner is satisfied, by representation in writing by the

exporter:

(a) that a longer period is reasonably required for the exporter to

answer the questions; and

(b) that allowing a longer period will be practicable in the

circumstances;

the Commissioner may notify the exporter, in writing, that a

specified further period will be allowed for the exporter to answer

the questions.

(10) If, during an investigation in respect of goods the subject of an

application under section 269TB, the Commissioner becomes

aware of an issue as to whether a countervailable subsidy (other

than one covered by the application) has been received in respect

of the goods, the Commissioner may examine that issue as part of

the investigation.

269TD Preliminary affirmative determinations

(1) At any time not earlier than 60 days after the date of initiation of an

investigation as to whether there are sufficient grounds for the

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publication of a dumping duty notice, or a countervailing duty

notice, in respect of goods the subject of an application under

section 269TB, the Commissioner may, if he or she is satisfied:

(a) that there appears to be sufficient grounds for the publication

of such a notice; or

(b) that it appears that there will be sufficient grounds for the

publication of such a notice subsequent to the importation

into Australia of such goods;

make a determination (a preliminary affirmative determination) to

that effect.

(2) Subject to subsection (3), in deciding whether to make such a

preliminary affirmative determination, the Commissioner:

(a) must have regard to:

(i) the application concerned; and

(ii) any submissions concerning publication of the notice

that are received by the Commissioner within 37 days

after the date of initiation of the investigation; and

(b) may have regard to any other matters that the Commissioner

considers relevant.

(3) The Commissioner is not obliged to have regard to any submission

that is received by the Commissioner after the end of the period

referred to in subparagraph (2)(a)(ii) if to do so would, in the

Commissioner’s opinion, prevent the timely consideration of the

question whether or not to make a preliminary affirmative

determination.

(4) If the Commissioner makes a preliminary affirmative

determination:

(a) the Commissioner must give public notice of that

determination; and

(b) the Commonwealth may, at the time that determination is

made or at any later time during the investigation, require

and take securities under section 42 in respect of interim duty

that may become payable if the Commissioner is satisfied

that it is necessary to do so to prevent material injury to an

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Australian industry occurring while the investigation

continues.

(5) If the Commonwealth decides to require and take securities under

subsection (4), the Commissioner must give public notice of that

decision.

269TDAA Statement of essential facts in relation to investigation of

application under section 269TB

(1) The Commissioner must, within 110 days after the date of

initiation of an investigation arising from an application under

section 269TB or such longer period as the Minister allows under

section 269ZHI, place on the public record a statement of the facts

(the statement of essential facts) on which the Commissioner

proposes to base a recommendation to the Minister in relation to

that application.

(2) Subject to subsection (3), in formulating the statement of essential

facts, the Commissioner:

(a) must have regard to:

(i) the application concerned; and

(ii) any submissions concerning publication of the notice

that are received by the Commissioner within 37 days

after the date of initiation of the investigation; and

(b) may have regard to any other matters that the Commissioner

considers relevant.

(3) The Commissioner is not obliged to have regard to a submission

received by the Commissioner after the end of the period referred

to in subparagraph (2)(a)(ii) if to do so would, in the

Commissioner’s opinion, prevent the timely placement of the

statement of essential facts on the public record.

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269TDA Termination of investigations

Commissioner must terminate if all dumping margins are

negligible

(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 Commissioner 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 Commissioner must terminate the investigation so far as it

relates to the exporter.

Commissioner 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 Commissioner 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

during the investigation period, exceeded the negligible

level of countervailable subsidy under subsection (16);

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the Commissioner must terminate the investigation so far as it

relates to the exporter.

Commissioner 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

Commissioner 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 Commissioner 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

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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

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.

Commissioner 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

Commissioner is satisfied that the total volume of goods the

subject of the application:

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(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 Commissioner 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 been, or may be, received, if:

(a) the country of export is not a developing country; and

(b) the volume of such goods:

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(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

(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

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(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

(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,

or may be 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

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(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

(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 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 9%.

Negligible countervailable subsidies to count in determining

volume

(12) The fact that the level of countervailable subsidy that has been, or

may be, received in respect of goods that have been, exported, or

may be exported, to Australia from a country of export is a

negligible level under subsection (16) does not prevent exports

from that country 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 in respect of

which a countervailable subsidy has been, or may be,

payable; and

(b) in aggregating, for the purposes of subsection (9), (10) or

(11), volumes of goods that have been, or may be, exported

to Australia from that country and other countries and in

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respect of which a countervailing subsidy has been, or may

be, received.

Commissioner must terminate dumping investigation if export

causes negligible injury etc.

(13) Subject to subsection (13A), if:

(a) application is made for a dumping duty notice; and

(b) in an investigation, for the purposes of the application, of

goods the subject of the application that have been, or may

be, exported to Australia from a particular country of export,

the Commissioner is satisfied that the injury, if any, to an

Australian industry or an industry in a third country, or the

hindrance, if any, to the establishment of an Australian

industry, that has been, or may be, caused by that export is

negligible;

the Commissioner must terminate the investigation so far as it

relates to that country.

(13A) If, in relation to the investigation referred to in subsection (13), the

Commissioner, in accordance with subsection (14B), considers the

cumulative effect of exportations of goods to Australia from 2 or

more countries of export, then the following apply in relation to

those countries:

(a) if the Commissioner is not satisfied that the injury to an

Australian industry or an industry in a third country, or the

hindrance to the establishment of an Australian industry, that

has been, or may be, caused by those exports is negligible—

subsection (13) does not apply in relation to those countries;

(b) if the Commissioner is satisfied that such injury or hindrance

that has been, or may be, caused by those exports is

negligible—the Commissioner must terminate the

investigation so far as it relates to those countries.

Note: If the investigation also covers exports of goods from a country that

was not part of the cumulation consideration because those exports did

not satisfy the criteria in subsection (14B), then the Commissioner

will consider whether subsection (13) applies to that country.

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Commissioner must terminate countervailable subsidy

investigation if export causes negligible injury

(14) Subject to subsection (14A), if:

(a) application is made for a countervailing duty notice; and

(b) in an investigation, for the purpose of the application, of

goods the subject of the application that have been, or may

be, exported to Australia from a particular country of export,

the Commissioner is satisfied that the injury, if any, to an

Australian industry or an industry in a third country that has

been, or may be, caused by that export is negligible;

the Commissioner must terminate the investigation so far as it

relates to that country.

(14A) If, in relation to the investigation referred to in subsection (14), the

Commissioner, in accordance with subsection (14B), considers the

cumulative effect of exportations of goods to Australia from 2 or

more countries of export, then the following apply in relation to

those countries:

(a) if the Commissioner is not satisfied that the injury to an

Australian industry or an industry in a third country that has

been, or may be, caused by those exports is negligible—

subsection (14) does not apply in relation to those countries;

(b) if the Commissioner is satisfied that such injury that has

been, or may be, caused by those exports is negligible—the

Commissioner must terminate the investigation so far as it

relates to those countries.

Note: If the investigation also covers exports of goods from a country that

was not part of the cumulation consideration because those exports did

not satisfy the criteria in subsection (14B), then the Commissioner

will consider whether subsection (14) applies to that country.

Cumulative assessment of injury or hindrance

(14B) For the purpose of subsection (13A) or (14A), the Commissioner

must consider the cumulative effect of exportations of goods to

Australia from 2 or more countries of export if the Commissioner

is satisfied that:

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(a) each of those exportations is the subject of an investigation;

and

(b) either:

(i) all the investigations of those exportations resulted from

applications under section 269TB lodged with the

Commissioner on the same day; or

(ii) the investigations of those exportations resulted from

applications under section 269TB lodged with the

Commissioner on different days but the investigation

periods for all the investigations of those exportations

overlap significantly; and

worked out under section 269TACB for the exporter for each

of the exportations is at least 2% of the export price or

weighted average of export prices used to establish that

dumping margin; and

(d) for the purposes of subsection (13A)—for each application,

the volume of goods the subject of the application that have

been, or may be, exported to Australia over a reasonable

examination period (as defined in subsection 269TDA(17))

from the country of export and dumped is not taken to be

negligible for the purposes of subsection 269TDA(3) because

of subsection 269TDA(4); and

(e) for the purposes of subsection (14A):

(i) the amount of the countervailable subsidy in respect of

the goods the subject of each of the exportations

exceeds the negligible level of countervailable subsidy

worked out under subsection 269TDA(16); and

(ii) the volume of each of those exportations is not

negligible; and

(f) it is appropriate to consider the cumulative effect of those

exportations, having regard to:

(i) the conditions of competition between those goods; and

(ii) the conditions of competition between those goods and

like goods that are domestically produced.

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Customs Act 1901 79

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Commissioner must give public notice of termination decisions

(15) If the Commissioner decides to terminate an investigation so far as

it relates to a particular exporter or country of export, the

Commissioner must:

(a) give public notice of that decision; and

(b) ensure that:

(i) in the case of an exporter, a copy of the notice is sent to

the applicant, the exporter and the government of the

country of export; or

(ii) in the case of a country of export, a copy of the notice is

sent to the applicant and the government of that country;

and

after the first publication of the public notice, to apply for a

review of the Commissioner’s decision by the Review Panel

under Division 9.

Negligible countervailable subsidisation

(16) For the purposes of this section, a countervailable subsidy received

in respect of goods exported to Australia is negligible if:

(a) the country of export is not a developing country and the

subsidy, when expressed as a percentage of the export price

of the goods, is less than 1%; or

(b) the country of export is a developing country but not a

special developing country and the subsidy, when expressed

as a percentage of the export price of the goods, is not more

than 2%; or

subsidy, when expressed as a percentage of the export price

of the goods, is not more than 3%.

Definition—reasonable examination period

(17) In this section:

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80 Customs Act 1901

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reasonable examination period, in relation to an application for a

dumping duty notice or a countervailing duty notice in respect of

goods, means a period comprising:

(a) the whole or a substantial part of the investigation period; or

(b) any period after the end of the investigation period that is

taken into account for the purpose of considering possible

future importations of goods the subject of the application.

total Australian import volume, in relation to a volume of goods

the subject of an application for a dumping duty notice or a

countervailing duty notice that have been, or may be, exported to

Australia from a particular country during a period, means the total

volume of all goods the subject of the application and like goods

that have been, or may be, exported to Australia from all countries

during that period.

269TE Commissioner to have regard to same considerations as

Minister

(1) In this section:

decision means:

(a) a decision of the Commissioner under section 269TC or

269TD; or

(b) a decision contained in a report by the Commissioner under

section 269ZZL.

recommendation means:

(a) a recommendation included in a report prepared by the

Commissioner under section 269TEA, 269ZDA, 269ZDBG,

269ZG or 269ZHF; or

(b) a recommendation by the Commissioner to the Minister

under section 269TEB or 269X.

(2) If the Commissioner is required, in making a recommendation or

decision, to determine any matter ordinarily required to be

determined by the Minister under this Act or the Dumping Duty

Act, the Commissioner must determine the matter:

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Customs Act 1901 81

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(a) in like manner as if he or she were the Minister; and

(b) having regard to the considerations to which the Minister

would be required to have regard if the Minister were

determining the matter.

(3) Subsection (2) applies in respect of goods that have not been

imported into Australia at the time of the Commissioner’s

determination of a matter in respect of those goods as if:

(a) the Commissioner’s determination of the matter were being

made after an importation of those goods into Australia; and

(b) the importation had occurred at the time of the anticipated

importation of those goods into Australia.

(4) Nothing in this section implies that the determination of a matter

by the Commissioner affects the power of the Minister to make a

final determination in respect of that matter for the purposes of the

Dumping Duty Act.

269TEA Report to Minister concerning publication of notices under

this Part

(1) If:

(a) application has been made under section 269TB for

publication of a dumping duty notice or a countervailing duty

notice; and

(b) the Commissioner has initiated an investigation in respect of

the application under section 269TC;

the Commissioner must, after holding such an investigation and

within 155 days after the date of initiation of the investigation or

such longer period as the Minister allows under section 269ZHI,

give the Minister a report in respect of the goods the subject of the

application that:

and the extent of any duties that are, or should be, payable

under the Dumping Duty Act because of that notice; and

(d) recommends, in particular, whether the Minister ought to be

satisfied as to the matters in respect of which the Minister is

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required to be satisfied before such a notice can be published;

and

(e) recommends, where applicable, whether the Minister ought

to give notice to the exporter under subsection 269TG(3D) or

to the government of the country of export or to the exporter

under subsection 269TJ(2A).

(2) The Commissioner’s report must, to the extent that it is practicable

to do so, also extend to any like goods not covered by the

application but imported into Australia during the period starting

on the date of initiation of the investigation and ending 20 days

after the statement of essential facts in respect of the investigation

is placed on the public record.

(3) Subject to subsection (4), in deciding on the recommendations to

be made to the Minister in the Commissioner’s report in relation to

an application under section 269TB for publication of a dumping

duty notice or a countervailing duty notice, the Commissioner:

(a) must have regard to:

(i) the application; and

(ii) any submission concerning the publication of that notice

to which the Commissioner has had regard for the

purpose of formulating the statement of essential facts;

and

(iii) the statement of essential facts; and

(iv) any submission made in response to that statement that

is received by the Commissioner within 20 days after

the placing of that statement on the public record; and

(b) may have regard to any other matters that the Commissioner

considers to be relevant.

(4) The Commissioner is not obliged to have regard to any submission

made in response to the statement of essential facts that is received

by the Commissioner after the end of the period referred to in

subparagraph (3)(a)(iv) if to do so would, in the Commissioner’s

opinion, prevent the timely preparation of the report to the

Minister.

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Customs Act 1901 83

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(5) The report to the Minister must include a statement of the

Commissioner’s reasons for any recommendation contained in the

report that:

(a) sets out the material findings of fact on which that

recommendation is based; and

(b) provides particulars of the evidence relied on to support those

findings.

269TEB Commissioner recommendations concerning undertakings

offered after preliminary affirmative determination

(1) A person who:

(a) if application has been made for publication of a dumping

duty notice in respect of goods—is an exporter of such

goods; or

(b) if application has been made for publication of a

countervailing duty notice in respect of goods—is the

government of the country of export, or is an exporter, of

such goods;

may, at any time after the making of a preliminary affirmative

determination in respect of the application, indicate in writing to

the Commissioner the terms in which the government or exporter

would be prepared to give an undertaking to the Minister.

(2) The Commissioner must consider whether he or she is satisfied that

those terms are adequate to remove the injury, or the threat of

injury, to which the application is addressed so far as the

government or exporter offering the undertaking is concerned and,

by notice in writing:

(a) if the Commissioner is so satisfied—recommend to the

Minister that he or she accept the undertaking; or

(b) if the Commissioner is not so satisfied—indicate to the

government or exporter the reasons why he or she is not so

satisfied.

(3) A government or an exporter may, having regard to those reasons,

indicate to the Commissioner that the government or exporter is

prepared to give an undertaking to the Minister in revised terms.

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(4) If an undertaking in revised terms is proposed to the

Commissioner, the Commissioner must:

(a) if he or she is not satisfied that the undertaking as so revised

is adequate to remove the injury, or the threat of injury, to

which the application is addressed—inform the government

or exporter to that effect; and

(b) if he or she is so satisfied—recommend to the Minister that

the Minister accept the undertaking as revised.

(5) If the Minister accepts the undertaking proposed by a government,

investigation of the application is suspended so far as it relates to

goods exported from that country.

(6) If the Minister accepts the undertaking proposed by an exporter,

investigation of the application is suspended so far as it relates to

goods exported by that exporter.

(7) If:

(a) investigation of an application is suspended:

(i) so far as it relates to goods exported from a particular

country; or

(ii) so far as it relates to goods exported by a particular

exporter;

on the Minister’s acceptance of an undertaking proposed by

the government of that country or by that exporter; and

(b) that government or exporter breaches that undertaking;

the Minister may take such steps as he or she considers necessary

to facilitate the resumption of the investigation in so far as it relates

to goods exported from that country or by that exporter.

(8) Without limiting the generality of subsection (7), the Minister may,

in writing, require the Commissioner to resume the investigation so

far as it relates to goods exported from the country, or by the

exporter, who breached the undertaking subject to such conditions

as to the conduct of the investigation as the Minister considers

appropriate.

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Customs Act 1901 85

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(9) In determining the steps to be taken in order to facilitate the

resumption of an investigation, and, where the Minister requires

that the Commissioner resume the investigation, to determine the

conditions on which the resumed investigation is to be conducted,

the Minister must have regard to:

(a) the procedures that had been completed when the

undertaking was accepted; and

(b) the length of time that has elapsed since the acceptance of the

undertaking.

(10) The Commissioner is not obliged to consider the terms of any

proposed undertaking provided by a government or an exporter if

to do so would prevent the timely making of a recommendation by

the Commissioner to the Minister under section 269TEA.

(11) If the Commissioner does not recommend the acceptance of an

undertaking under this section, the Commissioner may nonetheless

recommend to the Minister that he or she seek an undertaking from

the government or exporter who proposed the undertaking and set

out the terms of the undertaking that he or she recommends the

Minister seek.

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Section 269TF

86 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 3—Consideration of anti-dumping matters by the

Minister

269TF What this Division is about

This Division sets out the role of the Minister in considering an

anti-dumping matter. The Minister will normally be acting after

receipt of a report from the Commissioner. In particular, the

Division:

• empowers the Minister to publish dumping duty notices or countervailing duty notices;

• empowers the Minister to accept undertakings rather than publish such notices;

• outlines the matters of which the Minister must be satisfied before publishing such notices or accepting such

undertakings;

• indicates the period during which such notices or undertakings remain in force;

• sets out the circumstances in which such notices can extend to goods already exported.

269TG Dumping duties

(1) Subject to section 269TN, where the Minister is satisfied, as to any

goods that have been exported to Australia, that:

(a) the amount of the export price of the goods is less than the

amount of the normal value of those goods; and

(b) because of that:

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Customs Act 1901 87

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(i) material injury to an Australian industry producing like

goods has been or is being caused or is threatened, or

the establishment of an Australian industry producing

like goods has been or may be materially hindered; or

(ii) in a case where security has been taken under section 42

in respect of any interim duty that may become payable

on the goods under section 8 of the Dumping Duty

Act—material injury to an Australian industry

producing like goods would or might have been caused

if the security had not been taken;

the Minister may, by public notice, declare that section 8 of that

Act applies:

and

(d) to like goods that were exported to Australia after the

Commissioner made a preliminary affirmative determination

under section 269TD in respect of the goods referred to in

paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind, that:

(a) the amount of the export price of like goods that have already

been exported to Australia is less than the amount of the

normal value of those goods, and the amount of the export

price of like goods that may be exported to Australia in the

future may be less than the normal value of the goods; and

(b) because of that, material injury to an Australian industry

producing like goods has been or is being caused or is

threatened, or the establishment of an Australian industry

producing like goods has been or may be materially

hindered;

the Minister may, by public notice (whether or not he or she has

made, or proposes to make, a declaration under subsection (1) in

respect of like goods that have been exported to Australia), declare

that section 8 of the Dumping Duty Act applies to like goods that

are exported to Australia after the date of publication of the notice

or such later date as is specified in the notice.

(3) Where:

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88 Customs Act 1901

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(a) a notice under subsection (1) declares particular goods to be

goods to which section 8 of the Dumping Duty Act applies;

(b) a notice under subsection (2) declares like goods in relation

to goods of a particular kind to be goods to which that section

applies;

the notice must, subject to subsection (3A), include a statement of

the respective amounts that the Minister ascertained, at the time of

publication of the notice:

declaration relates; and

(d) was or would be the export price of those goods; and

(e) was or would be the non-injurious price of those goods.

(3A) If any person who has provided information to assist the Minister

to ascertain the normal value, export price or non-injurious price of

goods to which a declaration under subsection (1) or (2) relates

claims, in writing, that the information is confidential or that the

inclusion in a notice under that subsection of that value or price

would adversely affect the person’s business or commercial

interests:

(a) in accordance with subsection 269ZI(9) the Minister is not

required to include in the notice a statement of that value or

price; but

(b) upon request the Commissioner may notify that value or

price to persons who, in the Commissioner’s opinion, would

be affected parties in any review of the rate of interim duty

imposed on like goods to the goods to which the declaration

relates.

(3D) If the export of a consignment of goods to Australia by an exporter

has been under consideration by the Minister so as to decide

whether or not to publish a dumping duty notice under this section

in relation to the goods in the consignment or to like goods, the

Minister may give notice, in writing, to the exporter stating that:

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Customs Act 1901 89

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(a) the Minister is of the opinion that it would be appropriate for

the exporter to give an undertaking in accordance with

subsection (4) to the Minister; and

(b) an undertaking, in the terms set out in the notice, would be

satisfactory to the Minister.

(4) Whether or not a notice has been given to an exporter, the Minister

may defer the decision to publish or not to publish a dumping duty

notice covering that exporter, for so long as the Minister considers

appropriate, if the exporter offers, and the Minister accepts, an

undertaking that the exporter will so conduct future trade to

Australia in like goods as to avoid:

(a) causing or threatening material injury to an Australian

industry producing like goods; or

(b) materially hindering the establishment of such an Australian

industry.

(5) In giving a notice, and in considering the terms of any proposed

undertaking, the Minister must have regard to the desirability that

any price increase to which the undertaking relates is limited to an

amount such that the total price of the goods is not more than the

non-injurious price of the goods.

(5A) However, subsection (5) does not require the Minister to have

regard to the matter in that subsection if the Minister is satisfied

that either or both of the following apply in relation to the goods in

the consignment:

(a) the normal value of the goods was not ascertained under

subsection 269TAC(1) because of the operation of

subparagraph 269TAC(2)(a)(ii);

(b) there is an Australian industry in respect of like goods that

consists of at least 2 small-medium enterprises, whether or

not that industry consists of other enterprises.

(6) The Minister:

(a) may give a notice to an exporter under subsection (3D)

whether or not the giving of such a notice has been

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Section 269TG

90 Customs Act 1901

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recommended by the Commissioner in a report under

section 269TEA; and

(b) may accept an undertaking whether or not the acceptance of

such an undertaking has been recommended by the

Commissioner in a recommendation under section 269TEB;

and

or accept an undertaking from an exporter, before a

preliminary affirmative determination, or an equivalent

determination in an investigation conducted under

section 269TAG, has been made that extends to that exporter;

and

(d) must give public notice of any undertaking so accepted.

(7) The acceptance by the Minister of an undertaking may be subject

to conditions that include, but are not limited to, conditions relating

to:

(a) giving the Minister, on an agreed basis, information that is

relevant to the fulfilment of the undertaking; and

(b) providing the Minister with appropriate access to such

information.

(8) The acceptance by the Minister of an undertaking from an exporter

does not prevent the exporter requesting the Minister to determine

whether, had the undertaking not been accepted, the Minister

would have published a dumping duty notice or would have

decided not to publish such a notice.

(9) The Minister must, if an exporter makes such a request, and may,

on his or her own initiative, determine whether he or she would

have published a dumping duty notice or would have decided not

to publish such a notice if the undertaking had not been accepted.

(10) Subsection (9) does not imply that the Minister is required to make

a determination under that subsection before the Minister has

received a report of the Commissioner in relation to the matter.

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Section 269TH

Customs Act 1901 91

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(11) If the Minister determines under subsection (9) that he or she

would have decided not to publish a dumping duty notice, the

undertaking automatically lapses.

269TH Third country dumping duties

(1) Subject to section 269TN, where the Minister is satisfied, as to any

goods produced or manufactured in a particular country that have

been exported to Australia, that:

(a) the amount of the export price of the goods is less than the

amount of the normal value of the goods; and

(b) because of that:

(i) material injury to an industry in a third country engaged

in the production or manufacture of like goods has been

or is being caused or is threatened; or

(ii) in a case where security has been taken under section 42

in respect of any interim duty that may become payable

on the goods under section 9 of the Dumping Duty

Act—material injury to an industry in a third country

engaged in the production or manufacture of like goods

would or might have been caused if the security had not

been taken;

the Minister, if requested by the Government of the third country to

do so, may, by public notice, declare that section 9 of that Act

applies:

and

(d) to like goods that were exported to Australia after the

Commissioner made a preliminary affirmative determination

under section 269TD in respect of the goods referred to in

paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind produced

or manufactured in a particular country that:

(a) the amount of the export price of like goods so produced or

manufactured that have already been exported to Australia is

less than the amount of the normal value of those goods, and

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Section 269TH

92 Customs Act 1901

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the amount of the export price of like goods so produced or

manufactured that may be exported to Australia in the future

may be less than the normal value of the goods; and

(b) because of that, material injury to an industry in a third

country engaged in the production or manufacture of like

goods has been or is being caused or is threatened;

the Minister, if requested by the Government of the third country

so to do, may, by public notice (whether or not he or she has made,

or proposes to make, a declaration under subsection (1) in respect

of like goods so manufactured or produced that have been exported

to Australia), declare that section 9 of the Dumping Duty Act

applies to like goods so produced or manufactured that are

exported to Australia after the date of publication of the notice or

such later date as is specified in the notice.

(3) Where:

(a) a notice under subsection (1) declares particular goods to be

goods to which section 9 of the Dumping Duty Act applies;

(b) a notice under subsection (2) declares like goods in relation

to goods of a particular kind to be goods to which that section

applies;

the notice must, subject to subsection (4), include a statement of

the respective amounts that the Minister ascertained at the time of

publication of the notice:

declaration relates; and

(d) was or would be the export price of those goods; and

(e) was or would be the non-injurious price of those goods.

(4) If any person who has provided information to assist the Minister

to ascertain the normal value, export price or non-injurious price of

goods to which a declaration under subsection (1) or (2) relates

claims, in writing, that the information is confidential or that the

inclusion in a notice under that subsection of that value or price

would adversely affect the person’s business or commercial

interests:

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Customs Act 1901 93

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(a) in accordance with subsection 269ZI(9), the Minister is not

required to include in the notice a statement of that value or

price; but

(b) upon request the Commissioner may notify that value or

price to persons who, in the Commissioner’s opinion, would

be affected parties in any review of the rate of interim duty

imposed on like goods to the goods to which the declaration

relates.

269TJ Countervailing duties

(1) Subject to section 269TN, where the Minister is satisfied, as to any

goods that have been exported to Australia, that:

(a) a countervailable subsidy has been received in respect of the

goods; and

(b) because of that:

(i) material injury to an Australian industry producing like

goods has been or is being caused or is threatened or the

establishment of an Australian industry producing like

goods has been or may be materially hindered; or

(ii) in a case where security has been taken under section 42

in respect of any interim duty that may become payable

on the goods under section 10 of the Dumping Duty

Act—material injury to an Australian industry

producing like goods would or might have been caused

if the security had not been taken;

the Minister may, by public notice, declare that section 10 of that

Act applies:

and

(d) to like goods that were exported to Australia after the

Commissioner made a preliminary affirmative determination

under section 269TD in respect of the goods referred to in

paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind that:

(a) a countervailable subsidy:

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(i) has been received in respect of goods the subject of the

application that have already been exported to Australia;

and

(ii) may be received in respect of like goods that may be

exported to Australia in the future; and

(b) because of that, material injury to an Australian industry

producing like goods has been or is being caused or is being

threatened, or the establishment of an Australian industry

producing like goods has been or may be materially

hindered;

the Minister may, by public notice (whether or not he or she has

made, or proposes to make, a declaration under subsection (1) in

respect of like goods that have been exported to Australia), declare

that section 10 of the Dumping Duty Act applies to like goods that

are exported to Australia after the date of publication of the notice

or such later date as is specified in the notice.

(2A) If the export of a consignment of goods to Australia has been under

consideration by the Minister so as to decide whether or not to

publish a countervailing duty notice under this section in relation to

the goods in the consignment or to like goods, the Minister may

give notice, in writing, to the government of the country of export

or to the exporter stating that:

(a) the Minister is of the opinion that it would be appropriate for

the government or the exporter to give an undertaking in

accordance with subsection (3) to the Minister; and

(b) an undertaking, in the terms set out in the notice, would be

satisfactory to the Minister.

(3) Whether or not a notice has been given to a government or to an

exporter in respect of goods in the consignment or like goods, the

Minister may defer the decision to publish or not to publish a

countervailing duty notice covering those goods if the Minister is

given and accepts an undertaking to which subsection (3A) applies.

(3A) This subsection applies:

(a) to an undertaking given by a government—if it is an

undertaking that the government will, in relation to any

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export trade to Australia in like goods, review any

countervailable subsidy delivered by that government and

make any changes found to be necessary to avoid:

(i) causing or threatening material injury to an Australian

industry producing like goods; or

(ii) materially hindering the establishment of such an

Australian industry; and

(b) to an undertaking by an exporter—if it is an undertaking that

the exporter will so conduct future trade to Australia in like

goods as to avoid:

(i) causing or threatening material injury to an Australian

industry producing like goods; or

(ii) materially hindering the establishment of such an

Australian industry.

(3B) In giving a notice, and in considering the terms of any proposed

undertaking, the Minister must have regard to the desirability that

any price increase arising from the undertaking is limited to an

amount such that the total price of the goods is not more than the

non-injurious price of the goods.

(3BA) However, subsection (3B) does not require the Minister to have

regard to the matter in that subsection if the Minister is satisfied

that either or both of the following apply in relation to the goods in

the consignment:

(a) the country of export has not complied with Article 25 of the

Agreement on Subsidies and Countervailing Measures for the

compliance period;

(b) there is an Australian industry in respect of like goods that

consists of at least 2 small-medium enterprises, whether or

not that industry consists of other enterprises.

(3C) The Minister:

(a) may give a notice under subsection (2A) whether or not the

giving of such a notice has been recommended by the

Commissioner in a recommendation under section 269TEA;

and

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(b) may accept an undertaking whether or not the acceptance of

such an undertaking has been recommended by the

Commissioner in a recommendation under section 269TEB;

and

(i) give a notice to a government or exporter under

subsection (2A); or

(ii) accept an undertaking from a government or an

exporter;

in respect of particular goods or like goods unless a

preliminary affirmative determination, or an equivalent

determination in an investigation conducted under

section 269TAG, has been made to the effect that there are

grounds for publication of a countervailing duty notice in

respect of those like goods; and

(d) must not accept an undertaking from an exporter unless the

government of the country of export consents to the giving of

the undertaking; and

(e) must give public notice of any undertaking so accepted.

(3D) The acceptance by the Minister of an undertaking may be subject

to conditions that include, but are not limited to, conditions relating

to:

(a) giving the Minister, on an agreed basis, information that is

relevant to the fulfilment of the undertaking; and

(b) providing the Minister with appropriate access to such

information.

(3E) The acceptance by the Minister of an undertaking from an exporter

does not prevent the exporter requesting the Minister to determine

whether, had the undertaking not been accepted, the Minister

would have published a countervailing duty notice or would have

decided not to publish such a notice.

(3F) The Minister must, if an exporter makes such a request, and may,

on his or her own initiative, determine whether he or she would

have published a countervailing duty notice or would have decided

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not to publish such a notice if the undertaking had not been

accepted.

(3G) Subsection (3F) does not imply that the Minister is required to

make a determination under that subsection before the Minister has

received a report from the Commissioner in relation to the matter.

(3H) If the Minister determines under subsection (3F) that he or she

would have decided not to publish a countervailing duty notice, the

undertaking automatically lapses.

(11) If a notice under subsection (1) or (2) declares particular goods to

be goods to which section 10 of the Dumping Duty Act applies, the

notice must, subject to subsection (12), include a statement setting

out:

(a) the amount of countervailable subsidy that the Minister

ascertained, at the time of publication of the notice, had been

or would be received in respect of the goods to which the

notice relates; and

(b) the amount that the Minister has ascertained, at that time, was

or would be the non-injurious price of the goods.

(12) If any person who has provided information to assist the Minister

to ascertain:

(a) the amount of any countervailable subsidy received in respect

of goods to which a declaration under subsection (1) or (2)

relates; or

(b) the non-injurious price of any goods to which a declaration

under subsection (1) or (2) relates;

claims, in writing, that the information is confidential or that the

inclusion in a notice under that subsection of the amount of that

subsidy or of the amount of that non-injurious price would

adversely affect the person’s business or commercial interests:

required to include a statement of that amount or that price in

the notice; but

(d) upon request the Commissioner may provide a statement of

that amount or that price to persons who, in the

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Commissioner’s opinion, would be affected parties in any

review of the rate of interim duty imposed on like goods to

the goods to which the declaration relates.

269TJA Concurrent dumping and subsidy

(1) Where the Minister is satisfied, as to any goods that have been

exported to Australia:

(a) that the amount of the export price of those goods is less than

the amount of the normal value of those goods; and

(b) that a countervailable subsidy has been received in respect of

the goods; and

between the 2 amounts referred to in paragraph (a) and of the

subsidy referred to in paragraph (b):

(i) material injury to an Australian industry producing like

goods has been or is being caused or is threatened; or

(ii) the establishment of an Australian industry producing

like goods has been or may be materially hindered;

the Minister may publish a notice under subsection 269TG(1), a

notice under subsection 269TJ(1) or notices under both

subsections 269TG(1) and 269TJ(1) at the same time in respect of

the same goods.

(2) Where the Minister is satisfied, as to goods of any kind:

(a) that the amount of the export price of like goods that have

already been exported to Australia is less than the amount of

the normal value of those goods, and the amount of the

export price of like goods that may be exported to Australia

in the future may be less than the normal value of the goods;

and

(b) that a countervailable subsidy:

(i) has been received in respect of goods the subject of the

application that have already been exported to Australia;

and

(ii) may be received in respect of like goods that may be

exported to Australia in the future; and

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to in paragraph (a) and of the subsidy referred to in

paragraph (b):

(i) material injury to an Australian industry producing like

goods has been or is being caused or is being

threatened; or

(ii) the establishment of an Australian industry producing

like goods has been or may be materially hindered;

the Minister may publish a notice under subsection 269TG(2), a

notice under subsection 269TJ(2) or notices under both

subsections 269TG(2) and 269TJ(2) at the same time in respect of

the same goods.

(3) If the Minister has had under consideration the export of a

consignment of goods to Australia with a view to determining

whether or not notices should be published in accordance with

subsection (1) or (2), under both section 269TG and 269TJ in

respect of the same goods, the Minister may defer the decision to

publish or not to publish notices under both of those sections

covering the exporter concerned if he or she is given and accepts:

(a) an undertaking by the exporter under section 269TG, and an

undertaking by the exporter under section 269TJ, in respect

of the same goods; or

(b) an undertaking by the exporter under section 269TG and an

undertaking by the government of the country of origin, or of

the country of export, of the goods in the consignment under

section 269TJ.

(4) If, in respect of the same consignment of goods, the Minister

accepts 2 undertakings from the exporter of the goods or an

undertaking from the exporter of the goods and an undertaking

from the government of the country of origin or country of export

of the goods, the Minister must be satisfied that the combined

effect of the undertakings is not greater than is necessary to prevent

material injury or the recurrence of material injury to an Australian

industry producing like goods or to remove the actual or possible

hindrance to the establishment of such an Australian industry.

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269TK Third country countervailing duties

(1) Subject to section 269TN, where the Minister is satisfied, as to any

goods produced or manufactured in a particular country that have

been exported to Australia, that:

(a) a countervailable subsidy has been received in respect of the

goods; and

(b) because of that:

(i) material injury to an industry in a third country engaged

in the production or manufacture of like goods has been

or is being caused or is being threatened; or

(ii) in a case where security has been taken under section 42

in respect of any interim duty that may become payable

on the goods under this section—material injury to an

industry in a third country engaged in the production or

manufacture of like goods would or might have been

caused if the security had not been taken;

the Minister, if requested by the Government of the third country to

do so, may, by public notice, declare that section 11 of that Act

applies:

and

(d) to like goods that were exported to Australia after the

Commissioner made a preliminary affirmative determination

under section 269TD in respect of the goods referred to in

paragraph (c) but before the publication of that notice.

(2) Where the Minister is satisfied, as to goods of any kind produced

or manufactured in a particular country that:

(a) a countervailable subsidy:

(i) has been received in respect of goods the subject of the

application that have already been exported to Australia;

and

(ii) may be received in respect of like goods that may be

exported to Australia in the future; and

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(b) by reason thereof material injury to an industry in a third

country engaged in the production of like goods has been or

is being caused or is being threatened;

the Minister, if requested by the Government of the third country

so to do, may, by public notice (whether or not he or she has made,

or makes, a declaration under subsection (1) in respect of like

goods that have been exported to Australia), declare that section 11

of the Dumping Duty Act applies to like goods that are exported to

Australia after the date of publication of the notice or such later

date as is specified in the notice.

(3) If the Minister is satisfied that adequate information as to the

amount of countervailable subsidy in relation to goods cannot be

obtained for the purposes of this section, the amount of

countervailable subsidy is to be taken to be such amount as is

determined, in writing, by the Minister.

(4) For the purposes of this section, the benefit accruing to an exporter

from the use of dual or multiple rates of exchange in relation to the

proceeds of export sales is to be taken to be financial assistance

paid to the exporter.

(5) Where a notice under subsection (1) or (2) declares particular

goods to be goods to which section 11 of the Dumping Duty Act

applies, the notice must, subject to subsection (6), include a

statement setting out:

(a) the amount of countervailable subsidy that the Minister

ascertained, at the time of publication of the notice, had been

or would be received in respect of the goods to which the

notice relates; and

(b) the amount that the Minister ascertained, at that time, was or

would be the non-injurious price of the goods.

(6) If any person who has provided information to assist the Minister

to ascertain:

(a) the amount of any countervailable subsidy received in respect

of goods to which a notice under subsection (1) or (2) relates;

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(b) the non-injurious price of such goods;

claims, in writing, that the information is confidential or that the

inclusion in a notice under that subsection of the amount of that

subsidy or of the amount of that non-injurious price would

adversely affect the person’s business or commercial interests:

required to include a statement of that amount or that price in

the notice; but

(d) upon request the Commissioner may provide a statement of

that amount or that price to persons who, in the

Commissioner’s opinion, would be affected parties in any

review of the rate of interim duty imposed on like goods to

the goods to which the declaration relates.

269TL Minister to give public notice not to impose duty

(1) Where the Minister receives a recommendation from the

Commissioner concerning the imposition of dumping duty, third

country dumping duty, countervailing duty or third country

countervailing duty on particular goods or on goods of a like kind

to particular goods and the Minister decides, after having regard to

that recommendation, not to declare those goods to be goods to

which section 8, 9, 10 or 11, as the case requires, of the Dumping

Duty Act applies, the Minister must give public notice to that

effect.

269TLA Time limit for Minister to make certain decisions

(1) This section applies if the Minister receives a recommendation

from the Commissioner concerning the imposition of dumping

duty, third country dumping duty, countervailing duty or third

country countervailing duty on goods.

(2) The Minister must decide whether or not to publish a dumping

duty notice or a countervailing duty notice, or both a dumping duty

notice and a countervailing duty notice, in respect of the goods

within:

(a) 30 days after receiving the recommendation; or

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(b) if the Minister considers there are special circumstances that

prevent the decision being made within that period—such

longer period as the Minister considers appropriate.

(3) If paragraph (2)(b) applies, the Minister must give public notice of

the longer period.

(4) Subsection (2) does not apply if:

(a) the Minister defers the decision under subsection 269TG(4),

269TJ(3) or 269TJA(3); or

(b) subsection 269TN(4A) or (6) applies in relation to the

decision; or

withdrawn before the Minister makes the decision.

269TM Periods during which certain notices and undertakings to

remain in force

(1) Subject to subsection (1A), if a notice is published after section 17

of the Customs Legislation (Tariff Concessions and Anti-Dumping)

Amendment Act 1992 commences under a relevant notification

provision in respect of goods of a particular kind, that notice

expires 5 years after the day on which it is published unless it is

revoked before the end of that period.

(1A) If:

(a) a notice (the original notice) is published under a relevant

notification provision in respect of goods of a particular kind;

and

(b) in relation to the investigation that resulted in the publication

of the original notice, the Minister accepted an undertaking

under subsection 269TEB(5) or (6) that was proposed by a

government of a country of export, or by an exporter, of

goods of that kind; and

(the start day) that the Minister accepted that undertaking:

(i) that government or exporter breaches that undertaking;

and

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(ii) the Minister, under subsection 269TEB(7), takes steps

to facilitate the resumption of the investigation in so far

as it relates to goods of that kind exported from that

country or exported by that exporter; and

(iii) another notice is published under a relevant notification

provision in respect of goods of that kind exported from

that country or exported by that exporter;

then the other notice expires 5 years after the start day unless it is

revoked before the end of that period.

(2) Where an undertaking is entered into after section 17 of the

Customs Legislation (Tariff Concessions and Anti-Dumping)

Amendment Act 1992 commences under a relevant undertaking

provision in respect of goods of a particular kind, that undertaking

expires 5 years after the day on which it was entered into unless

provision is made for its earlier expiration.

(3) If:

(a) a notice was or is published before section 17 of the Customs

Legislation (Tariff Concessions and Anti-Dumping)

Amendment Act 1992 commences; and

(b) the notice is in force immediately before the commencement

of that section;

the notice expires 5 years after the day on which it was published

unless it is sooner revoked.

(3A) If:

(a) an undertaking was or is entered into before section 17 of the

Customs Legislation (Tariff Concessions and Anti-Dumping)

Amendment Act 1992 commences; and

(b) the undertaking is in force immediately before that section

commences;

the Minister must, by notice in writing, give the person who gave

the undertaking the opportunity, before the undertaking expires, to

extend the undertaking so that it expires 5 years after the day on

which it was entered into unless provision is made for its earlier

expiration.

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(3B) If a person who gave an undertaking of the kind referred to in

subsection (3A) refuses or fails to extend its operation in the

manner referred to in subsection (3A) before the undertaking

expires, the Minister may, in substitution for the extension of the

undertaking, publish a dumping duty notice or a countervailing

duty notice that commences on the day after the undertaking

expired and ends 2 years after that day unless it is sooner revoked.

(7) In this section:

relevant notification provision means subsection 269TG(2),

269TH(2), 269TJ(2), (4), (5) or (6) or 269TK(2).

relevant undertaking provision means subsection 269TG(4) or

269TJ(3).

269TN Retrospective notices

(1) Subject to this section, the Minister must not cause a notice to be

published under subsection 269TG(1), 269TH(1), 269TJ(1) or

269TK(1) in respect of goods that have been entered for home

consumption.

(2) Subsection (1) does not prevent the publication of a notice under

subsection 269TG(1), 269TH(1), 269TJ(1) or 269TK(1) in respect

of goods that have been entered for home consumption in relation

to which security has been taken under section 42 in respect of any

interim duty that might become payable under section 8, 9, 10 or

11 of the Dumping Duty Act, as the case may be (not being

security that has been cancelled), by reason of the publication of

such a notice or in relation to which the Commonwealth had the

right to require and take such security (not being security that

would have been cancelled under this Act if it had been taken).

Dumping duties

(3) Subsection (1) does not prevent the publication of a notice under

subsection 269TG(1) in respect of goods that have been entered for

home consumption to which, by virtue of subsection (4) of this

section, this subsection applies, if:

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(a) within 90 days after the entry of the goods for home

consumption, security has been taken under section 42 in

respect of any interim duty that might be payable on goods of

the same kind under section 8 of the Dumping Duty Act or,

within that period, the Commonwealth had the right to

require and take such security; and

(b) the Minister considers that material injury has been caused to

an Australian industry by the export to Australia during a

short period of large quantities of goods of the same kind,

being injury arising by reason of the amount of the export

price of the goods exported being less than the amount of the

normal value of the goods exported, and the Minister

considers that the publication of the notice is necessary to

prevent the serious undermining of the remedial effect of the

dumping duty that will become payable upon publication of

the notice.

(4) Subsection (3) applies to goods:

(a) that have been imported into Australia by an importer who

the Minister considers knew, or ought to have known, that

the amount of the export price of the goods was less than the

normal value of the goods and that by reason thereof material

injury would be caused to an Australian industry; or

(b) that are goods of a kind the exportation of which to Australia

on a number of occasions has caused, or, but for the

publication of a notice under section 269TG in respect of

goods of that kind, would have caused, material injury to an

Australian industry by reason of the amount of the export

price of the goods exported being less than the normal value

of the goods exported.

(4A) Before the Minister decides to publish a dumping duty notice under

subsection 269TG(1) in circumstances referred to in subsection (3)

of this section, in respect of goods that have already been entered

for home consumption, the Minister must:

(a) inform the importer of the goods of the decision he or she

proposes to make; and

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(b) allow a reasonable opportunity for the importer of the goods

to comment on the proposed decision; and

(4B) If:

(a) the Minister is satisfied that an act or omission of an exporter

who has given an undertaking under subsection 269TG(4) is

a violation of that undertaking; and

(b) at the time of, or at any time after, that act or omission,

security has been taken under section 42 in respect of any

interim duty that might be payable under section 8 of the

Dumping Duty Act on goods of the kind to which the

undertaking relates or the Commonwealth had the right to

require and take such security;

subsection (1) of this section does not prevent the publication of a

notice under subsection 269TG(1) in respect of goods that:

(d) are of the kind to which the undertaking relates; and

(e) have been entered for home consumption on a day that:

(i) was not earlier than the day on which that act or

omission occurred; and

(ii) was not more than 90 days before the day on which that

security was taken or there was a right to require and

take such security.

(4C) Despite subsections (3) to (4B), the Minister must not publish a

notice under subsection 269TG(1) in respect of goods that have

been entered for home consumption before the date of initiation of

the investigation concerned.

Countervailing duties

(5) Subsection (1) does not prevent the publication of a notice under

subsection 269TJ(1) in respect of goods that have been entered for

home consumption if:

(a) within 90 days after the entry of the goods for home

consumption, security has been taken under section 42 in

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respect of any interim duty that might be payable on goods of

the same kind under section 10 of the Dumping Duty Act or,

within that period, the Commonwealth had the right to

require and take such security; and

(b) the Minister considers that material injury, which is difficult

to repair, has been caused to an Australian industry by the

export to Australia during a short period of large quantities of

goods of the same kind because a countervailable subsidy has

been received from the country of export or country of origin

of those goods, and the Minister considers that the

publication of the notice is necessary to prevent the

recurrence of the injury.

(6) Before the Minister decides to publish a countervailing duty notice

under subsection 269TJ(1) in circumstances referred to in

subsection (5) of this section, in respect of goods that have already

been entered for home consumption, the Minister must:

(a) inform the importer of the goods of the decision he or she

proposes to make; and

(b) allow a reasonable opportunity for the importer of the goods

to comment on the proposed decision; and

(7) Where:

(a) the Minister is satisfied that an act or omission of the

Government of a country that has given an undertaking in

accordance with subsection 269TJ(3) is a violation of that

undertaking; and

(b) at the time of, or at any time after, that act or omission,

security has been taken under section 42 in respect of any

interim duty that might be payable under section 10 of the

Dumping Duty Act on goods of the kind to which the

undertaking relates or the Commonwealth had the right to

require and take such security;

subsection (1) does not prevent the publication of a notice under

subsection 269TJ(1) in respect of goods that:

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exported from that country, as the case may be; and

(d) are of the kind to which the undertaking relates; and

(e) have been entered for home consumption on a day that:

(i) was not earlier than the day on which that act or

omission occurred; and

(ii) was not more than 90 days before the day on which that

security was taken or there was a right to require and

take such security.

(8) Where:

(a) the Minister is satisfied that an act or omission of an exporter

who has given an undertaking in accordance with

subsection 269TJ(3) is a violation of that undertaking; and

(b) at the time of, or at any time after, that act or omission,

security has been taken under section 42 in respect of any

interim duty that might be payable under section 10 of the

Dumping Duty Act on goods of the kind to which the

undertaking relates or the Commonwealth had the right to

require and take such security;

subsection (1) does not prevent the publication of a notice under

subsection 269TJ(1) in respect of goods that:

(d) are of the kind to which the undertaking relates; and

(e) have been entered for home consumption on a day that:

(i) was not earlier than the day on which that act or

omission occurred; and

(ii) was not more than 90 days before the day on which that

security was taken or there was a right to require and

take such security.

269TP Power to specify goods

A notice under subsection 269TG(2), 269TH(2), 269TJ(2) or

269TK(2) in respect of a kind of goods, may, without limiting the

generality of those provisions be expressed to apply to:

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(a) goods of that kind exported from a particular country; or

(b) goods of that kind exported by a particular exporter.

269U Inquiries in relation to undertakings

(1) Where the Minister is considering, in relation to goods the subject

of an application under section 269TB:

(a) whether to give a notice, in accordance with

subsection 269TG(3D), to the exporter of the goods in the

consignment in relation to an undertaking in relation to an

Australian industry; or

(b) whether to give a notice, in accordance with

subsection 269TJ(2A), to the Government of the country of

origin, or of the country of export, of the goods in the

consignment or to the exporter of the goods in the

consignment in relation to an undertaking in relation to an

Australian industry;

the Commissioner may authorise a Commission staff member in

writing to convene a meeting of representatives of the Australian

industry for the purpose of obtaining information and submissions

from those representatives in relation to the question what terms of

undertaking should be set out in the notice, if it is to be given, as

the terms that may be satisfactory to the Minister.

(2) A Commission staff member authorised under subsection (1) to

convene a meeting of representatives of an Australian industry

shall give notice in writing to such persons as, in his or her

opinion, represent the Australian industry, setting out:

(a) the day, time and place for the convening of the meeting; and

(b) the question to be considered by the meeting.

(3) The Commission staff member convening a meeting in pursuance

of subsection (2):

(a) shall preside at the meeting; and

(b) may adjourn the meeting from time to time.

(4) At a meeting of representatives of an Australian industry convened

in pursuance of subsection (2), the representatives attending the

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meeting may provide information, or make submissions, to the

Commission staff member convening the meeting in relation to the

question being considered by the meeting.

(5) Nothing in subsection (4) shall be taken to prevent a representative

of an Australian industry who attends a meeting convened in

pursuance of subsection (2) from providing information or making

a submission, in relation to the question considered or to be

considered at the meeting, to the Commission staff member

convening the meeting otherwise than at the meeting or to the

Minister.

(6) The Commission staff member convening a meeting in pursuance

of subsection (2) may, subject to subsection (7), put before the

meeting information in relation to the question being considered by

the meeting.

(7) The Commission staff member convening a meeting in pursuance

of subsection (2) shall not put before the meeting any information

provided to him or her by another person that is information of a

confidential nature (whether or not confidentiality was claimed in

respect of the information by the person who provided the

information).

(8) After the close of a meeting convened in pursuance of

subsection (2), the Commission staff member convening the

meeting shall furnish to the Commissioner for submission to the

Minister a report in writing of the information provided and the

submissions made at the meeting.

(9) Nothing in this section shall be taken, for the purposes of

subsection 51(1) of the Competition and Consumer Act 2010, to

authorize any act or thing other than the providing of information

or the making of a submission, at a meeting of representatives of

an Australian industry convened in pursuance of subsection (2), by

a representative of the Australian industry to the Commission staff

member convening the meeting in relation to the question being

considered by the meeting.

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Division 4—Dumping duty or countervailing duty

assessment

269UA What this Division is about

This Division enables a reconciliation of interim duty, and final

duty, payable under the Dumping Duty Act. The Division permits

an importer who has paid interim duty on particular goods to apply,

within specified time limits, for an assessment of duty payable on

those goods. In particular, the Division provides that:

• if the duty is less than the interim duty, the excess is to be refunded;

• if the duty is more than the interim duty, the interim duty is treated as duty and the balance waived;

• if the importer fails, within the time limits available, to seek an assessment of duty, the interim duty paid on the goods is

taken to be duty actually payable.

269V Importers may apply for duty assessment in certain

circumstances

(1) An importer of goods on which, under the Dumping Duty Act, an

interim duty has been paid may, subject to subsection (2), by

application lodged with the Commissioner, request that the

Minister make an assessment of the liability of those goods to duty

under that Act.

(2) An application for an assessment of duty under subsection (1) may

only be lodged if:

(a) the application is lodged not more than 6 months after the

end of the particular importation period in which the goods

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the subject of the application were entered for home

consumption; and

(b) the importer contends that the total amount of duty payable in

respect of those goods under the Dumping Duty Act is less,

by a specified amount, than the total amount of interim duty

that has been paid on those goods under that Act.

269W Manner of making applications for duty assessment

(1) An application for an assessment of duty on goods of a particular

kind entered for home consumption during a particular importation

period must be in writing and contain:

(a) a full description of the goods of that kind in each

consignment imported during the particular importation

period; and

(b) information concerning the amount of interim duty paid on

the goods of that kind in each such consignment; and

of the amounts that, in the opinion of the applicant, are the

normal value and the export price of goods of that kind in

each such consignment; and

(d) if an interim countervailing duty has been imposed—a

statement of the amounts that, in the opinion of the applicant,

are:

(i) the amount of the countervailable subsidy received on

goods of that kind in each such consignment; and

(ii) the amount of the export price of goods of that kind in

each such consignment; and

(e) a statement of the amount by which the applicant contends

that the total interim duty paid on those goods exceeds the

total duty payable under the Dumping Duty Act.

(1A) The application must also contain either:

(a) sufficient evidence to establish that the applicant’s opinion of

the amounts described in whichever of paragraphs (1)(c) and

(d) apply is correct; or

(b) both of the following:

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(i) the evidence the applicant has to establish that the

applicant’s opinion of the amounts described in

whichever of paragraphs (1)(c) and (d) apply is correct;

(ii) a commitment that someone else will give the

Commissioner further evidence within 30 days after

lodgment or such longer period as the Commissioner

allows, so that the Commissioner will then have

sufficient evidence to establish that the applicant’s

opinion of those amounts is correct.

(1B) If the interim duty on the goods covered by the application was

calculated using the export price of the goods worked out (under

paragraph 269TAB(1)(b) or otherwise) as the difference between:

(a) the price at which the importer of the goods sold them, in the

condition in which they were imported, to someone who was

not an associate of the importer; and

(b) the prescribed deductions (as defined in

subsection 269TAB(2)) relating to the goods;

the requirement in subsection (1A) of this section is met only if the

evidence referred to in that subsection includes evidence of the

things described in paragraphs (a) and (b) of this subsection.

(2) An application must be lodged with the Commissioner in the

manner approved under section 269SMS.

(2A) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to final duty assessment applications.

(3) The day on which an application is taken to have been lodged must

be recorded on the application.

269X Consideration of duty assessment applications

(1) The Commissioner must, as soon as practicable after the lodgment

of an application for assessment of duty in respect of goods that

were entered for home consumption during a particular importation

period and within 155 days after the lodgement of that application

or such longer period as the Minister allows under section 269ZHI,

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examine the application and decide what recommendation to make

to the Minister under subsection (6).

Note: The Commissioner may be required to reject the application or be able

to terminate the examination of it without deciding what

recommendation to make to the Minister. See section 269YA.

(2) If the Commissioner considers that any person (including the

applicant) may be able to supply information relevant to the

consideration of the application, the Commissioner may, by notice

in writing, request the supply of that information, in writing:

(a) if the information is sought from a person other than the

applicant—within a period specified in the notice ending not

later than 120 days after the lodgment of the application; and

(b) if the information is sought from the applicant—within a

period specified in the notice ending not later than 155 days

after the lodgment of the application.

(3) Where the Commissioner proposes to take into account any

relevant information that was not supplied to the Commissioner by

the applicant, the Commissioner must:

(a) give the applicant a copy of the information that he or she

proposes to take into account unless, in the opinion of the

Commissioner, the provision of that information would

adversely affect the business or commercial interests of a

person supplying the information; and

(b) invite the applicant, within a specified period ending not later

than 155 days after the lodgment of the application, to make

any further submission the applicant considers appropriate in

relation to that information.

(3A) However, the Commissioner must not give the applicant

information that the exporter of goods covered by the application

supplied to the Commissioner (whether as a result of a request

under subsection (2) or otherwise) that is relevant to working out:

(a) the normal value of the goods; or

(b) the countervailable subsidy relating to the goods; or

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unless the exporter indicates that he or she is willing for the

Commissioner to give the information to the applicant under

paragraph (3)(a).

(4) If a person refuses or fails to supply information or to make a

submission within the period allowed but subsequently supplies

that information or makes that submission, the Commissioner may

disregard that information or submission in considering the

application.

(5) On the basis of the information and evidence contained in the

application, any other information provided under subsection (2) or

(3) that is not disregarded under subsection (4) and any other

information the Commissioner considers relevant, the

Commissioner must:

(a) provisionally ascertain, in relation to each consignment of

goods to which the application relates, each variable factor

relevant to the determination of duty payable on the goods

under the Dumping Duty Act; and

(b) having regard to those variable factors as so provisionally

ascertained and, where appropriate, to the non-injurious price

of goods of that kind—provisionally calculate, in respect of

each such consignment, the amount of duty payable under the

Dumping Duty Act.

(5A) Subsection (5B) of this section applies if the Commissioner

proposes to ascertain provisionally, for the purposes of

paragraph (5)(a) of this section, the export price of goods (under

paragraph 269TAB(1)(b) or otherwise) as the difference between:

(a) the price at which the importer of the goods sold them, in the

condition in which they were imported, to someone who was

not an associate of the importer; and

(b) the prescribed deductions (as defined in

subsection 269TAB(2)) relating to the goods.

(5B) In provisionally ascertaining the export price of goods as described

in subsection (5A), the Commissioner must:

(a) take account of the following in relation to the goods:

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(i) any change in normal value;

(ii) any change in costs incurred between importation and

resale;

(iii) any movement in resale price which is duly reflected in

subsequent selling prices; and

(b) despite paragraph 269TAB(1)(b), not deduct the amount of

interim duty if the Commissioner has conclusive evidence of

the things mentioned in subparagraphs (a)(i), (ii) and (iii) of

this subsection.

An expression used in this subsection and subparagraph 3.3 of

Article 9 of the Agreement on Implementation of Article VI of the

General Agreement on Tariffs and Trade 1994 set out in Annex 1A

to the World Trade Organization Agreement has the same meaning

in this subsection as it has in that subparagraph.

(6) On the basis of the provisional calculation of duty referred to in

paragraph (5)(b), the Commissioner must decide:

(a) if satisfied that the total interim duty paid on the goods the

subject of the application exceeds the total duty payable

under the Dumping Duty Act by at least the amount

contended in the application—to recommend to the Minister:

(i) that the Minister make an assessment of duty by

ascertaining, for each consignment of those goods, the

variable factors as so provisionally ascertained; and

(ii) that the Minister order a repayment of the amount of

interim duty overpaid; or

(b) if satisfied that the total interim duty paid on the goods the

subject of the application exceeds the total duty payable

under the Dumping Duty Act but not to the extent contended

in the application—to recommend to the Minister:

(i) that the Minister make an assessment of duty by

ascertaining, for each consignment of those goods, the

variable factors as so provisionally ascertained; and

(ii) that the Minister order a repayment of the amount of

interim duty overpaid; or

Dumping Duty Act on the goods the subject of the

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application is equal to or exceeds the total of interim duty

that was paid on the goods—to recommend to the Minister:

(i) that the Minister make an assessment of duty by

ascertaining, for each consignment of those goods, the

variable factors as so provisionally ascertained; but

(ii) that the Minister order that any duty in excess of the

interim duty paid on those goods be waived.

(7) As soon as practicable, but not later than 7 days after making a

decision under subsection (6), the Commissioner must:

(a) notify the applicant, in writing, of the decision made; and

(b) if the decision is a negative preliminary decision:

(i) inform the applicant of the reasons why the

Commissioner made the decision; and

(ii) inform the applicant of the applicant’s right, within 30

days of the receipt of the notification, to apply for a

review of the Commissioner’s decision by the Review

Panel under Division 9.

(8) The Commissioner must:

(a) if he or she has made a positive preliminary decision—

recommend to the Minister, not later than 7 days after

making the decision, that the Minister give effect to that

decision; and

(b) if he or she has made a negative preliminary decision and the

applicant has not exercised the right to seek a review of the

decision by the Review Panel—recommend to the Minister,

not later than 7 days after the end of the period available for

seeking review of the decision, that the Minister give effect

to that decision.

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269Y Duty assessments

(1) As soon as practicable, but no later than 30 days, after receiving a

recommendation from the Commissioner or from the Review Panel

under subsection 269ZZU(2) in relation to goods the subject of an

application, the Minister must, having regard to the terms of that

recommendation, by notice in writing:

(a) ascertain, for the purposes of this Act and the Dumping Duty

Act, the variable factors relevant to the determination of duty

payable under the Dumping Duty Act in respect of each

consignment; and

(b) order that the total interim duty overpaid in respect of all

consignments to which the application relates be repaid or

that the total unpaid duty in excess of the interim duty

already paid be waived, as the case requires.

(2) As soon as practicable after issuing a notice under subsection (1)

the Minister must ensure that a copy of that notice is provided to

the applicant.

(3) If the Minister issues a notice under subsection (1) ordering that an

amount of interim duty be repaid to an applicant the

Commonwealth is liable to make a repayment to the applicant

accordingly.

(4) If:

(a) one or more consignments of goods of a particular kind that

are the subject of a dumping duty notice or a countervailing

duty notice are entered for home consumption during an

importation period; and

(b) interim duty is paid on those goods under the Dumping Duty

Act; and

an assessment of duty payable on those goods under the

Dumping Duty Act;

then:

(d) the Minister is taken, for the purposes of this Act and the

Dumping Duty Act, to have ascertained each variable factor

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relevant to the determination of duty on each such

consignment at the level at which that factor was ascertained

or last ascertained by the Minister for the purpose of the

dumping duty notice or countervailing duty notice; and

(e) the interim duty paid on those goods is taken to be the duty

payable.

269YA Rejection etc. of application for duty assessment

(1) This section has effect despite sections 269X and 269Y if an

application under section 269V is lodged with the Commissioner

under section 269W.

(2) The Commissioner must reject the application if the Commissioner

is satisfied within 20 days after it is lodged that it does not contain

everything it must contain under subsections 269W(1) and (1A).

(3) The Commissioner must reject the application if:

(a) the application contains a commitment described in

paragraph 269W(1A)(b); and

(b) within 20 days after the time described in that paragraph, the

Commissioner is satisfied that he or she has not received

from the applicant and one or more other persons sufficient

evidence to establish that the applicant’s opinion of the

amounts described in whichever of paragraphs 269W(1)(c)

and (d) apply is correct.

(4) The Commissioner may terminate examination of the application if

he or she is satisfied after the last of the 20 days mentioned in

subsection (2) or (3) of this section that he or she does not have

enough information to be able to comply with

paragraph 269X(5)(a).

(5) If the Commissioner rejects the application or terminates

examination of it:

(a) the Commissioner must notify the applicant in writing of the

following:

(i) the rejection or termination;

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(ii) the reasons for the rejection or termination;

(iii) the applicant’s right, within 30 days of the receipt of the

notification, to apply for a review by the Review Panel

under Division 9 of the rejection or termination; and

(b) the Commissioner must not:

(i) provisionally ascertain a variable factor or provisionally

calculate an amount under subsection 269X(5) in

connection with the application; or

(ii) decide what recommendation to make to the Minister

under subsection 269X(6) in connection with the

application; and

been lodged under section 269V.

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Division 5 Review of anti-dumping measures

Section 269Z

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Division 5—Review of anti-dumping measures

269Z What this Division is about

This Division enables affected parties (exporters, industry etc.) to

apply for the review of anti-dumping measures. The Division also

empowers the Minister to initiate such a review. The Division:

• sets out the circumstances in which applications can be brought;

• empowers the Commissioner to recommend, through a Minister’s request, an extension of the ambit of a review

where appropriate;

• sets out the procedure to be followed by the Commissioner in dealing with applications or requests and preparing reports for

the Minister;

• empowers the Minister, after consideration of such reports, to leave the anti-dumping measures unaltered or to modify them

as appropriate;

• empowers the Minister, if interim duty has been paid under the Dumping Duty Act, to make any necessary adjustment of

that interim duty.

269ZA Applications and requests for review of anti-dumping

measures

(1) If:

(a) anti-dumping measures have been taken in respect of goods;

and

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(b) an affected party considers that it may be appropriate to

review those measures as they affect a particular exporter of

those goods, or as they affect exporters of those goods

generally, because:

(i) one or more of the variable factors relevant to the taking

of the measures in relation to that exporter or those

exporters have changed; or

(ii) the anti-dumping measures are no longer warranted;

the affected party may, by application lodged with the

Commissioner, request that the Commissioner initiate such a

review.

(2) An application for review of anti-dumping measures must not be

made:

(a) if the measures involve the publication of a dumping duty

notice or a countervailing duty notice—earlier than 12

months after:

(i) the publication of the notice; or

(ii) the publication of a notice declaring the outcome of the

last review of the notice (whether that last review was

undertaken at the applicant’s request or not); and

(b) if the measures involve the acceptance of an undertaking—

earlier than 12 months after:

(i) the publication of notice of the acceptance of that

undertaking; or

(ii) the publication of a notice declaring the outcome of the

last review of the undertaking (whether that last review

was undertaken at the applicant’s request or not).

Example: If an application under section 269TB resulted in:

(a) the publication of the acceptance of an undertaking from exporter A on 1 January 1999; and

(b) the publication of a dumping duty notice covering exporters B and C on 1 March 1999;

an affected party could seek review of the undertaking on 2 January

2000 but could not seek review of both the undertaking and the

dumping duty notices until 2 March 2000.

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Section 269ZA

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However, the Minister could decide to review the notices before

2 March 2000 either on his or her own initiative or on the

recommendation of the Commissioner. See subsection (3).

(3) If:

(a) anti-dumping measures have been taken in respect of goods;

and

(b) the Minister considers (either as a result of a

recommendation from the Commissioner under

subsection 269ZC(4) or on his or her own initiative) that it

may be appropriate to review those measures as they affect a

particular exporter of those goods, or as they affect exporters

of those goods generally, because:

(i) one or more of the variable factors relevant to the taking

of the measures in relation to that exporter or those

exporters may have changed; or

(ii) the anti-dumping measures are no longer warranted;

the Minister may, at any time, by notice in writing, request that the

Commissioner initiate a review under this Division.

(4) If, as a result of a person’s application under Division 6 for

accelerated review of a dumping duty notice or a countervailing

duty notice, the Minister has made a declaration under

subsection 269ZG(3):

(a) that person may not make an application, under

subsection (1) of this section, for a review of that notice

earlier than 12 months after the making of that declaration;

but

(b) for the purpose of determining whether subsection (2)

permits any other person to apply for a review of the notice,

the making of that declaration is not to be treated as a review

of the notice.

(5) If:

(a) a person applies, under Division 9, for a review of the

Minister’s decision to publish a dumping duty notice or a

countervailing duty notice or not to publish such a notice;

and

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(b) as a result of that review:

(i) a dumping duty notice or a countervailing duty notice is

published by the Minister despite an earlier decision not

to publish such a notice; or

(ii) a dumping duty notice or countervailing duty notice

originally published by the Minister is varied; or

(iii) another dumping duty notice or countervailing duty

notice is substituted for the notice originally published

by the Minister;

then, for the purpose only of determining whether subsection (2)

permits a review of the new notice, the notice as varied or the

substituted notice, that new notice, notice as varied or substituted

notice has effect as if it had been published at the time of the

Minister’s decision not to publish a notice, or at the time of

publication of the original notice, as the case requires.

269ZB Content and lodgment of applications for review of

anti-dumping measures

(1) An application under subsection 269ZA(1) for review of

anti-dumping measures must:

(a) be in writing; and

(b) be in a form approved by the Commissioner for the purposes

of this section; and

(d) be signed in the manner indicated by the form; and

(e) be lodged in the manner approved under section 269SMS.

(2) Without otherwise limiting the matters that can be required by the

form to be included, the application must include:

(a) a description of the kind of goods to which the measures the

subject of the application relate; and

(b) a description of the measures the subject of the application;

and

statement of the opinion of the applicant concerning:

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(i) the variable factors relevant to the taking of the

measures taken that have changed; and

(ii) the amount by which each such factor has changed; and

(iii) the information that establishes that amount; and

(d) if the application is based on circumstances that in the

applicant’s view indicate that the anti-dumping measures are

no longer warranted—evidence, in accordance with the form,

of the circumstances.

(3) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to applications for review of anti-dumping measures.

(4) The day on which the application is taken to have been lodged

must be recorded on the application.

269ZC Consideration of applications and requests for review

(1) If an application under subsection 269ZA(1) for review of

anti-dumping measures is lodged with the Commissioner, the

Commissioner must, within 20 days after receiving the application:

(a) examine the application; and

(b) if the Commissioner is not satisfied, having regard to the

application and to any other information that the

Commissioner considers relevant, of one or more of the

matters referred to in subsection (2)—reject the application

and inform the applicant, by notice in writing, accordingly.

(2) For the purposes of subsection (1), the matters to be considered in

relation to an application are:

(a) that the application complies with section 269ZB; and

(b) that there appear to be reasonable grounds for asserting

either, or both, of the following:

(i) that the variable factors relevant to the taking of

anti-dumping measures have changed;

(ii) that the anti-dumping measures are no longer warranted.

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(3) The notice informing the applicant of the rejection of the

application must set out the reasons why the Commissioner was

not satisfied of one or more of the matters set out in subsection (2).

(4) If the Commissioner decides not to reject an application for review

of anti-dumping measures, the Commissioner must either:

(a) publish a notice on the Anti-Dumping Commission’s website

indicating that it is proposed to review the measures covered

by the application; or

(b) if the Commissioner considers that the review applied for

should be extended to include any additional matter—

recommend to the Minister that the review be extended

accordingly.

(5) If the Commissioner is requested by the Minister to undertake a

review of anti-dumping measures, either as a result of a

recommendation made to the Minister under subsection (4) or

otherwise, the Commissioner must, on receipt of that request,

publish a notice on the Anti-Dumping Commission’s website

indicating that it is proposed to review the measures covered by the

request.

(6) If:

(a) the Commissioner recommends to the Minister under

paragraph (4)(b) the extension of a review of anti-dumping

measures; but

(b) the Commissioner is informed by the Minister, within 20

days after that recommendation is made, that the Minister

does not require the review to be so extended;

the Commissioner must, on being so informed, publish a notice on

the Anti-Dumping Commission’s website indicating that it is

proposed to review the anti-dumping measures under this Division

covered by the original application.

(7) The notice published by the Commissioner under subsection (4),

(5) or (6) must:

(a) describe the kind of goods to which the review relates; and

(b) describe the measures to which the review relates; and

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Section 269ZCA

128 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(ba) if the review will examine whether the variable factors

relevant to the taking of the measures have changed—state

that fact; and

(bb) if the review will examine whether the measures are no

longer warranted—state that fact; and

(i) within 155 days after the date of publication of the

notice; or

(ii) within such longer period as the Minister allows under

section 269ZHI; and

(d) invite interested parties to lodge with the Commissioner,

within 37 days after the date of publication of the notice,

submissions concerning the review; and

(e) state that:

(i) within 110 days after the publication of the notice; or

(ii) such longer period as the Minister allows under

section 269ZHI;

the Commissioner will place on the public record a statement

of the essential facts on which the Commissioner proposes to

base a recommendation concerning the measures under

review; and

(f) invite interested parties to lodge with the Commissioner,

within 20 days of that statement being placed on the public

record, submissions in response to that statement; and

(g) indicate the address at which, or the manner in which,

submissions under paragraph (d) or (f) can be lodged.

269ZCA Application to extend a review of anti-dumping measures

to include revocation

If:

(a) a notice was published by the Commissioner under

subsection 269ZC(4), (5) or (6); and

(b) the notice did not state the review will examine whether the

measures are no longer warranted (see

paragraph 269ZC(7)(bb)); and

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Section 269ZCB

Customs Act 1901 129

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may satisfy the Commissioner that there are reasonable

grounds for determining that the anti-dumping measures

described in the notice are no longer warranted;

the affected party may, by application lodged with the

Commissioner, request that the Commissioner consider that

evidence.

269ZCB Content and lodgment of application to extend a review of

anti-dumping measures to include revocation

(1) An application under section 269ZCA must:

(a) be lodged within 37 days of the publication of the relevant

notice under subsection 269ZC(4), (5) or (6); and

(b) be in writing; and

of this section; and

(d) contain such information as the form requires; and

(e) be signed in the manner indicated by the form; and

(f) be lodged in the manner approved under section 269SMS.

(2) Without otherwise limiting the matters that can be required by the

form to be included, the application must include evidence of the

circumstances that in the applicant’s view indicate that the

anti-dumping measures are no longer warranted.

(3) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to applications for review of anti-dumping measures.

(4) The day on which the application is taken to have been lodged

must be recorded on the application.

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Section 269ZCC

130 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZCC Consideration of applications and requests for extensions

of reviews

(1) If an application under section 269ZCA is lodged with the

Commissioner, the Commissioner must, within 20 days after

receiving the application:

(a) examine the application; and

(b) if the Commissioner is not satisfied, having regard to the

application and to any other information that the

Commissioner considers relevant, of one or more of the

matters referred to in subsection (2)—reject the application

and inform the applicant, by notice in writing, accordingly.

(2) For the purposes of subsection (1), the matters to be considered in

relation to an application are:

(a) that the application complies with section 269ZCB; and

(b) that the Commissioner is satisfied that there appear to be

reasonable grounds for recommending that the anti-dumping

measures are no longer warranted.

(3) The notice informing the applicant of the rejection of the

application must set out the reasons why the Commissioner was

not satisfied of one or more of the matters set out in subsection (2).

(4) If the Commissioner decides not to reject an application, the

Commissioner must publish a notice on the Anti-Dumping

Commission’s website in accordance with subsection (8).

(5) If the Commissioner considers (either as a result of an application

under section 269ZCA or on the Commissioner’s own initiative)

that the review applied for should be extended to include any

additional matter, the Commissioner may, within 40 days after the

publication of the notice under subsection 269ZC(4), (5) or (6)

relating to the review, recommend to the Minister that the review

be extended accordingly.

(6) If:

(a) anti-dumping measures have been taken in respect of goods;

and

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Section 269ZD

Customs Act 1901 131

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(b) an application under subsection 269ZA(1) for review of

anti-dumping measures has been made; and

recommendation from the Commissioner under

subsection (5) of this section or on the Minister’s own

initiative) that there appear to be reasonable grounds to

extend the review applied for to include any additional

matter;

the Minister may, within 60 days of the publication of the relevant

notice under subsection 269ZC(4), (5) or (6), by notice in writing,

request that the Commissioner extend the review applied for

accordingly.

(7) If the Commissioner is requested under this section by the Minister

to extend a review of anti-dumping measures, the Commissioner

must, on receipt of that request, publish a notice on the

Anti-Dumping Commission’s website indicating that it is proposed

to so extend the review.

(8) The notice published by the Commissioner under subsection (4) or

(7) must:

(a) describe the kind of goods to which the relevant review of

anti-dumping measures relates; and

(b) describe the measures to which the review relates; and

grounds for the Commissioner making a revocation

recommendation—state that fact; and

(d) invite affected parties to lodge with the Commissioner

submissions concerning the extended review.

269ZD Statement of essential facts in relation to review of

anti-dumping measures

(1) If the Commissioner publishes a notice under

subsection 269ZC(4), (5) or (6) in relation to the review of

anti-dumping measures, he or she must, within 110 days after the

publication of the notice or such longer period as the Minister

allows under section 269ZHI, place on the public record a

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Section 269ZDA

132 Customs Act 1901

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statement of the facts (the statement of essential facts) on which

the Commissioner proposes to base a recommendation to the

Minister in relation to the review of those measures.

(2) Subject to subsection (3), in formulating the statement of essential

facts, the Commissioner:

(a) must have regard to:

(i) the application or request; and

(ii) any submissions relating generally to the review that are

received by the Commissioner within 37 days after the

publication of the notice under subsection 269ZC(4), (5)

or (6); and

(iii) any other submission received by the Commissioner

relating generally to the review if, in the

Commissioner’s opinion, having regard to the

submission would not prevent the timely placement of

the statement of essential facts on the public record; and

(b) may have regard to any other matters that the Commissioner

considers relevant.

(3) The Commissioner is not obliged to have regard to any

submissions relating generally to the review that are received by

the Commissioner after the end of the period referred to in

subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s

opinion, prevent the timely placement of the statement of essential

facts on the public record.

269ZDA Report on review of measures

(1) The Commissioner must, after conducting a review of

anti-dumping measures and within 155 days after the date of

publication of the notice under subsection 269ZC(4), (5) or (6) in

relation to those measures or such longer period as the Minister

allows under section 269ZHI, give the Minister a report

recommending:

(a) to the extent that the measures involved the publication of a

dumping duty notice or a countervailing duty notice:

(i) that the notice remain unaltered; or

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Section 269ZDA

Customs Act 1901 133

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(ii) that the notice be revoked in its application to a

particular exporter or to a particular kind of goods or

revoked generally; or

(iii) that the notice have effect in relation to a particular

exporter or to exporters generally, as if different

variable factors had been ascertained; and

(b) to the extent that the measures involved the acceptance by the

Minister of an undertaking:

(i) that the undertaking remain unaltered; or

(ii) that the Minister seek a variation of the terms of the

undertaking as indicated in the Commissioner’s report;

(iii) that the Minister indicate to the person who gave the

undertaking that the undertaking is no longer acceptable

and that the investigation of the need for a dumping

duty notice or a countervailing duty notice, as the case

requires, covering that person is to be resumed; or

(iv) that the Minister indicate to the person who gave the

undertaking that the person is released from the

undertaking and that the investigation of the need for a

dumping duty notice or countervailing duty notice

covering that person is terminated.

(1A) After conducting a review of anti-dumping measures under this

Division, the Commissioner:

(a) must not make a revocation recommendation in relation to

the measures unless a revocation review notice has been

published in relation to the review; and

(b) otherwise must make a revocation recommendation in

relation to the measures, unless the Commissioner is satisfied

as a result of the review that revoking the measures would

lead, or be likely to lead, to a continuation of, or a recurrence

of, the dumping or subsidisation and the material injury that

the measures are intended to prevent.

(2) Nothing in this section is to be taken to imply that the

Commissioner cannot simultaneously make the same

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Section 269ZDA

134 Customs Act 1901

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recommendation in relation to more than one exporter or person

giving an undertaking.

(3) Subject to subsection (4), in deciding on the recommendations to

be made to the Minister in the report, the Commissioner:

(a) must have regard to:

(i) the application or request for review; and

(ia) any application to extend the review that was not

rejected; and

(ib) any request to extend the review; and

(ii) any submission relating generally to the review to which

the Commissioner has had regard for the purpose of

formulating the statement of essential facts in relation to

the review; and

(iii) that statement of essential facts; and

(iv) any submission made in response to that statement that

is received by the Commissioner within 20 days after

the placing of that statement on the public record; and

(b) may have regard to any other matter that the Commissioner

considers to be relevant to the review.

(4) The Commissioner is not obliged to have regard to any submission

made in response to the statement of essential facts that is received

by the Commissioner after the end of the period referred to in

subparagraph (3)(a)(iv) if to do so would, in the Commissioner’s

opinion, prevent the timely preparation of the report to the

Minister.

(5) The report to the Minister must include a statement of the

Commissioner’s reasons for any recommendation contained in the

report that:

(a) sets out the material findings of fact on which that

recommendation is based; and

(b) provides particulars of the evidence relied on to support those

findings.

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Section 269ZDB

Customs Act 1901 135

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269ZDB Powers of the Minister in relation to review of

anti-dumping measures

(1) After considering the report of the Commissioner and any other

information that the Minister considers relevant, the Minister must

declare, by notice published in accordance with subsection (7), that

for the purposes of this Act and the Dumping Duty Act:

(a) to the extent that the anti-dumping measures concerned

involved the publication of a dumping duty notice or a

countervailing duty notice:

(i) that the notice is to remain unaltered; or

(ii) that, with effect from a date specified in the declaration,

the notice is taken to be, or to have been, revoked either

in relation to a particular exporter or to exporters

generally or in relation to a particular kind of goods; or

(iii) that, with effect from a date specified in the declaration,

the notice is to be taken to have effect or to have had

effect, either in relation to a particular exporter or to

exporters generally, as if the Minister had fixed

different variable factors in respect of that exporter or of

exporters generally, relevant to the determination of

duty; and

(b) to the extent that the anti-dumping measures concerned

involved the acceptance by the Minister of an undertaking:

(i) that the undertaking is to remain unaltered; or

(ii) that if, before a date specified in the declaration, the

terms of the undertaking are altered in a manner

specified in the declaration, the undertaking as so varied

will be acceptable to the Minister; or

(iii) that the undertaking is no longer acceptable to the

Minister and that the investigation of the need for a

dumping duty notice or a countervailing duty notice is

to be resumed immediately; or

(iv) that, with effect from a date specified in the declaration,

the person who gave the undertaking is released from

the undertaking and that the investigation giving rise to

the undertaking is terminated.

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Section 269ZDB

136 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(1AA) The Minister must not make a revocation declaration in relation to

anti-dumping measures unless a revocation review notice has been

published in relation to the relevant review of those measures.

(1A) The Minister must make a declaration under subsection (1) within:

(a) 30 days after receiving the report; or

(b) if the Minister considers there are special circumstances that

prevent the declaration being made within that period—such

longer period as the Minister considers appropriate.

(1B) If paragraph (1A)(b) applies, the Minister must give public notice

of the longer period.

(2) If the Minister makes a declaration under subsection (1), that

declaration has effect according to its terms.

(3) If:

(a) the Minister makes a declaration under subsection (1); and

(b) under that declaration, new variable factors are taken to have

been fixed, in relation to goods exported to Australia by a

particular exporter, with effect from a date specified in the

declaration; and

factors as previously fixed exceeds the interim duty that

would be payable on the basis of the new variable factors;

the person who paid the interim duty may apply under Division 3

of Part VIII for a refund of the excess.

(4) The Minister must, as soon as practicable after the making of a

declaration under subsection (1) that affects an exporter or person

giving an undertaking, inform that exporter or person of the terms

of the declaration.

(5) Nothing in this section is to be taken to imply that the Minister

cannot simultaneously make the same declaration in relation to

more than one exporter or person giving an undertaking.

(6) For the purposes of a declaration under subsection (1), the Minister

must not fix a date:

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Section 269ZDB

Customs Act 1901 137

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(a) in a circumstance to which subparagraph (1)(a)(ii) or (iii)

applies—that is earlier than the date of publication under

section 269ZC of a notice indicating the proposal to

undertake the review concerned; and

(b) in a circumstance to which subparagraph (1)(b)(ii) or (iv)

applies—that is earlier than the date of the declaration.

(7) A notice under subsection (1) must be published on the

Anti-Dumping Commission’s website.

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Part XVB Special provisions relating to anti-dumping duties

Division 5A Anti-circumvention inquiries

Section 269ZDBA

138 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 5A—Anti-circumvention inquiries

269ZDBA What this Division is about

If a notice has been published under subsection 269TG(2) or

269TJ(2) in respect of goods, this Division allows a person

representing, or representing a portion of, the Australian industry

producing like goods to apply for the conduct of an

anti-circumvention inquiry in relation to the notice. This Division

also allows the Minister to request such an inquiry. It:

• sets out when applications may be made; and

• sets out the procedure to be followed by the Commissioner in dealing with applications or requests and preparing reports for

the Minister; and

• empowers the Minister, after consideration of such reports, to leave the notice unaltered or to alter the notice as appropriate.

269ZDBB Circumvention activities

(1) This section sets out when circumvention activity, in relation to a

notice published under subsection 269TG(2) or 269TJ(2), occurs.

Assembly of parts in Australia

(2) Circumvention activity, in relation to the notice, occurs if the

following apply:

(a) goods in the form of individual parts (the circumvention

goods) are exported to Australia;

(b) those parts are manufactured in a foreign country in respect

of which the notice applies;

other parts, to create goods (the assembled goods) that would

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Section 269ZDBB

Customs Act 1901 139

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be the subject of the notice if they were exported to Australia

by an exporter in respect of which the notice applies;

(d) the total value of the parts manufactured in that foreign

country is a significant proportion of the value of the

assembled goods;

(e) section 8 or 10 of the Dumping Duty Act, as the case

requires, does not apply to the export of the circumvention

goods to Australia.

Assembly of parts in third country

(3) Circumvention activity, in relation to the notice, occurs if the

following apply:

(a) goods in the form of individual parts are manufactured in a

foreign country (the original country) in respect of which the

notice applies;

(b) those parts are assembled in a foreign country in respect of

which the notice does not apply, whether or not with other

parts, to create goods (the circumvention goods) that would

be the subject of the notice if they were exported to Australia

by an exporter in respect of which the notice applies;

(d) the total value of the parts manufactured in the original

country is a significant proportion of the customs value

(within the meaning of section 159) of the circumvention

goods;

(e) section 8 or 10 of the Dumping Duty Act, as the case

requires, does not apply to the export of the circumvention

goods to Australia.

Export of goods through one or more third countries

(4) Circumvention activity, in relation to the notice, occurs if the

following apply:

(a) goods (the circumvention goods) are exported to Australia

from a foreign country in respect of which the notice does

not apply;

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Section 269ZDBB

140 Customs Act 1901

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(b) before that export, there were one or more other exports of

the goods from a foreign country to another foreign country;

respect of which the notice applies;

(d) the circumvention goods would be the subject of the notice if

they were exported to Australia by an exporter in respect of

which the notice applies;

(e) section 8 or 10 of the Dumping Duty Act, as the case

requires, does not apply to the export of the circumvention

goods to Australia.

Arrangements between exporters

(5) Circumvention activity, in relation to the notice, occurs if the

following apply:

(a) goods (the circumvention goods) are exported to Australia

from a foreign country in respect of which the notice applies;

(b) the exporter exported the circumvention goods under an

arrangement with another exporter from that foreign country;

notice applies;

(d) the circumvention goods would be the subject of the notice if

they were exported to Australia by the other exporter;

(e) either:

(i) section 8 or 10 of the Dumping Duty Act, as the case

requires, does not apply to the export of the

circumvention goods to Australia; or

(ii) section 8 or 10 of the Dumping Duty Act, as the case

requires, applies to the export of the circumvention

goods to Australia, but the interim duty payable in

relation to that export is less than the interim duty that

would have been payable if the other exporter had

exported the goods to Australia.

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Section 269ZDBC

Customs Act 1901 141

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Avoidance of intended effect of duty

(5A) Circumvention activity, in relation to the notice, occurs if the

following apply:

(a) goods (the circumvention goods) are exported to Australia

from a foreign country in respect of which the notice applies;

(b) the exporter is an exporter in respect of which the notice

applies;

apply to the export of the circumvention goods to Australia;

(d) the importer of the circumvention goods, whether directly or

through an associate or associates, sells those goods in

Australia without increasing the price commensurate with the

total amount of duty payable on the circumvention goods

under the Dumping Duty Act;

(e) the circumstances covered by paragraphs (a) to (d) occur over

a reasonable period.

Regulations

(6) Circumvention activity, in relation to the notice, occurs in the

circumstances prescribed by the regulations for the purposes of this

subsection.

269ZDBC Applications and requests for conduct of an

anti-circumvention inquiry

Applications by Australian industry

(1) If:

(a) a notice (an original notice) has been published under

subsection 269TG(2) or 269TJ(2) in respect of goods; and

(b) a person representing, or representing a portion of, the

Australian industry producing like goods considers that one

or more circumvention activities in relation to the notice have

occurred; and

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Section 269ZDBC

142 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

notice because of the circumvention activities;

the person may, by application lodged with the Commissioner,

request that the Commissioner conduct an anti-circumvention

inquiry in relation to the notice.

(1A) If:

(a) a person lodges an application under subsection (1) with the

Commissioner; and

(b) the person describes, in the application, circumvention

activity, in relation to the original notice, within the meaning

of subsection 269ZDBB(5A); and

under subsection 269ZDBE(4) because of the application;

the person must not lodge another application under subsection (1)

of this section describing circumvention activity, in relation to the

original notice, within the meaning of subsection 269ZDBB(5A),

within 12 months after the day the inquiry notice was published.

Requests by Minister

(2) If:

(a) a notice (an original notice) has been published under

subsection 269TG(2) or 269TJ(2) in respect of goods; and

(b) the Minister considers that one or more circumvention

activities in relation to the notice have occurred; and

notice because of the circumvention activities;

the Minister may, by notice in writing, request that the

Commissioner conduct an anti-circumvention inquiry in relation to

the original notice.

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Section 269ZDBD

Customs Act 1901 143

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269ZDBD Content and lodgement of applications for conduct of an

anti-circumvention inquiry

Content of application

(1) An application under subsection 269ZDBC(1) for the conduct of

an anti-circumvention inquiry in relation to an original notice must:

(a) be in writing; and

(b) be in a form approved by the Commissioner for the purposes

of this section; and

(d) be signed in the manner indicated by the form; and

(e) be lodged in the manner approved under section 269SMS.

Note: For original notice, see section 269ZDBC.

(2) Without limiting subsection (1), the application must include:

(a) a description of the kind of goods that are the subject of the

original notice; and

(b) a description of the original notice the subject of the

application; and

original notice that the applicant considers have occurred;

and

(d) a description of the alterations to the original notice that the

applicant considers should be made.

(2A) An application that describes circumvention activity, in relation to

the original notice, within the meaning of

subsection 269ZDBB(5A), must not describe any other kind of

circumvention activity in relation to that notice.

Time of lodgement

(3) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to applications for the conduct of anti-circumvention

inquiries.

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Section 269ZDBE

144 Customs Act 1901

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(5) The day on which the application is taken to have been lodged

must be recorded on the application.

269ZDBE Consideration of applications and requests for conduct of

an anti-circumvention inquiry

Applications

(1) If an application under subsection 269ZDBC(1) for the conduct of

an anti-circumvention inquiry in relation to an original notice is

lodged with the Commissioner, the Commissioner must, within 20

days after receiving the application:

(a) examine the application; and

(b) if the Commissioner is not satisfied, having regard to the

application and any other information that the Commissioner

considers relevant, of either or both of the matters referred to

in subsection (2)—reject the application and inform the

applicant, by notice in writing, accordingly.

Note: For original notice, see section 269ZDBC.

(2) For the purposes of subsection (1), the matters to be considered in

relation to an application are:

(a) that the application complies with section 269ZDBD; and

(b) that there appear to be reasonable grounds for asserting that

one or more circumvention activities in relation to the

original notice have occurred.

(3) The notice informing the applicant of the rejection of the

application must set out the reasons why the Commissioner was

not satisfied of either or both of the matters referred to in

subsection (2).

(4) If the Commissioner does not reject an application for the conduct

of an anti-circumvention inquiry in relation to the original notice,

the Commissioner must publish a notice on the Anti-Dumping

Commission’s website indicating that such an inquiry is to be

conducted.

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Section 269ZDBE

Customs Act 1901 145

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Requests

(5) If, under subsection 269ZDBC(2), the Minister requests the

Commissioner to conduct an anti-circumvention inquiry in relation

to an original notice, the Commissioner must, on receipt of that

request, publish a notice on the Anti-Dumping Commission’s

website indicating that such an inquiry is to be conducted.

Note: For original notice, see section 269ZDBC.

Content of notice

(6) A notice (the inquiry notice) published by the Commissioner under

subsection (4) or (5) must:

(a) describe the kind of goods to which the inquiry relates; and

(b) describe the original notice the subject of the inquiry; and

activities in relation to the original notice have occurred; and

(d) indicate that a report will be made to the Minister:

(i) unless subparagraph (ii) applies—within 155 days after

the day the inquiry notice is published or such longer

period as the Minister allows under section 269ZHI; or

(ii) if the inquiry relates to whether circumvention activity,

in relation to the original notice, within the meaning of

subsection 269ZDBB(5A), has occurred—within 100

days after the day the inquiry notice is published or such

longer period as the Minister allows under

section 269ZHI; and

(e) invite interested parties to lodge with the Commissioner,

within 37 days after the day of publication of the inquiry

notice, submissions concerning the inquiry; and

(f) if subparagraph (d)(i) applies—state that:

(i) within 110 days after the publication of the inquiry

notice; or

(ii) within such longer period as the Minister allows under

section 269ZHI;

the Commissioner will place on the public record a statement

of the essential facts on which the Commissioner proposes to

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Section 269ZDBEA

146 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

base a recommendation to the Minister in relation to the

original notice; and

(g) if subparagraph (d)(i) applies—invite interested parties to

lodge with the Commissioner, within 20 days of that

statement being placed on the public record, submissions in

response to that statement; and

(h) indicate the address at which, or the manner in which,

submissions under paragraph (e) or (g) may be lodged.

269ZDBEA Termination of anti-circumvention inquiry

General inquiry

(1) If:

(a) the Commissioner publishes a notice under

subsection 269ZDBE(4); and

(b) subparagraph 269ZDBE(6)(d)(i) applies; and

place on the public record a statement referred to in

subsection 269ZDBF(1), the Commissioner becomes

satisfied that no circumvention activity in relation to the

original notice has occurred;

the Commissioner may terminate the anti-circumvention inquiry

concerned.

Note: For original notice, see section 269ZDBC.

Accelerated inquiry

(2) If:

(a) the Commissioner publishes a notice under

subsection 269ZDBE(4); and

(b) subparagraph 269ZDBE(6)(d)(ii) applies; and

in relation to the original notice, within the meaning of

subsection 269ZDBB(5A), has occurred;

the Commissioner may terminate the anti-circumvention inquiry

concerned.

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Section 269ZDBF

Customs Act 1901 147

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Note: For original notice, see section 269ZDBC.

Notice of termination decision

(3) The Commissioner must:

(a) give public notice of a decision under subsection (1) or (2);

and

(b) notify the applicant for the conduct of the anti-circumvention

inquiry of the decision; and

after the applicant is so notified, to apply for a review of the

decision by the Review Panel under Division 9.

269ZDBF Statement of essential facts in relation to conduct of an

anti-circumvention inquiry

(1) If the Commissioner publishes a notice under

subsection 269ZDBE(4) or (5) about the conduct of an

anti-circumvention inquiry in relation to an original notice and

subparagraph 269ZDBE(6)(d)(i) applies, the Commissioner must:

(a) within 110 days after the publication of the notice under

subsection 269ZDBE(4) or (5); or

(b) within such longer period as the Minister allows under

section 269ZHI;

place on the public record a statement of the facts (the statement of

essential facts) on which the Commissioner proposes to base a

recommendation to the Minister in relation to the original notice.

Note: For original notice, see section 269ZDBC.

(2) In formulating the statement of essential facts, the Commissioner:

(a) must have regard to:

(i) the application or request; and

(ii) any submissions concerning the inquiry that are

received by the Commissioner within 37 days after the

publication of the notice under subsection 269ZDBE(4)

or (5); and

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Section 269ZDBG

148 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(b) may have regard to any other matters that the Commissioner

considers relevant.

Late submissions

(3) The Commissioner is not obliged to have regard to a submission

concerning the inquiry that is received by the Commissioner after

the end of the period referred to in subparagraph (2)(a)(ii) if to do

so would, in the Commissioner’s opinion, prevent the timely

placement of the statement of essential facts on the public record.

269ZDBG Report on anti-circumvention inquiry

Commissioner recommendations

(1) The Commissioner must, after conducting an anti-circumvention

inquiry in relation to an original notice and within:

(a) if subparagraph 269ZDBE(6)(d)(i) applies—155 days after

the day the notice under subsection 269ZDBE(4) or (5) about

the inquiry is published or such longer period as the Minister

allows under section 269ZHI; or

(b) if subparagraph 269ZDBE(6)(d)(ii) applies—100 days after

the day the notice under subsection 269ZDBE(4) or (5) about

the inquiry is published or such longer period as the Minister

allows under section 269ZHI;

give the Minister a report recommending:

(d) the following:

(i) the original notice be altered because the Commissioner

is satisfied that circumvention activities in relation to

the original notice have occurred;

(ii) the alterations to be made to the original notice.

Note: For original notice, see section 269ZDBC.

(2) In deciding on the recommendations to be made to the Minister in

the report, the Commissioner:

(a) if paragraph (1)(a) applies—must have regard to:

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Customs Act 1901 149

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(i) the application or request for the inquiry; and

(ii) any submission concerning the inquiry to which the

Commissioner has had regard for the purpose of

formulating the statement of essential facts in relation to

the inquiry; and

(iii) that statement of essential facts; and

(iv) any submission made in response to that statement that

is received by the Commissioner within 20 days after

the placing of that statement on the public record; and

(aa) if paragraph (1)(b) applies—must have regard to:

(i) the application or request for the inquiry; and

(ii) any submission concerning the inquiry that is received

by the Commissioner within 37 days after the

publication of the notice under subsection 269ZDBE(4)

or (5); and

(b) in any case—may have regard to any other matter that the

Commissioner considers to be relevant to the inquiry.

Late submissions

(3) The Commissioner is not obliged to have regard to a submission

made in response to the statement of essential facts that is received

by the Commissioner after the end of the period referred to in

subparagraph (2)(a)(iv) if to do so would, in the Commissioner’s

opinion, prevent the timely preparation of the report to the

Minister.

(3A) The Commissioner is not obliged to have regard to a submission

concerning the inquiry that is received by the Commissioner after

the end of the period referred to in subparagraph (2)(aa)(ii) if to do

so would, in the Commissioner’s opinion, prevent the timely

preparation of the report to the Minister.

Reasons for Commissioner recommendations

(4) The report to the Minister must include a statement of the

Commissioner’s reasons for any recommendation contained in the

report that:

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150 Customs Act 1901

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(a) sets out the material findings of fact on which that

recommendation is based; and

(b) provides particulars of the evidence relied on to support those

findings.

269ZDBH Minister’s powers in relation to anti-circumvention

inquiry

Minister’s decision

(1) After considering the report of the Commissioner and any other

information that the Minister considers relevant, the Minister must

declare, by notice published in accordance with subsection (9), that

for the purposes of this Act and the Dumping Duty Act:

(a) the original notice is to remain unaltered; or

(b) the alterations specified in the declaration are taken to have

been made to the original notice, with effect on and after a

day specified in the declaration.

Note: For original notice, see section 269ZDBC.

(2) Without limiting subsection (1), the alterations may be of the

following kind:

(a) the specification of different goods that are to be the subject

of the original notice;

(b) the specification of different foreign countries that are to be

the subject of the original notice;

subject of the original notice;

(d) in relation to existing exporters that are the subject of the

original notice—the specification of different variable factors

in respect of one or more of those exporters;

(e) in relation to exporters that are to be the subject of the

original notice—the specification of variable factors in

respect of those exporters.

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Section 269ZDBH

Customs Act 1901 151

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Timing of decision

(3) The Minister must make a declaration under subsection (1) within:

(a) 30 days after receiving the report; or

(b) if the Minister considers there are special circumstances that

prevent the declaration being made within that period—such

longer period as the Minister considers appropriate.

(4) If paragraph (3)(b) applies, the Minister must give public notice of

the longer period.

Declaration has effect according to its terms

(5) If the Minister makes a declaration under subsection (1), that

declaration has effect according to its terms.

Notification of declaration

(6) The Minister must, as soon as practicable after the making of a

declaration under subsection (1) that affects an exporter, inform

that exporter of the terms of the declaration.

Declaration may cover more than one exporter

(7) Nothing in this section is taken to imply that the Minister cannot

simultaneously make the same declaration in relation to more than

one exporter.

When declaration takes effect

(8) A day specified in a declaration as mentioned in paragraph (1)(b)

must not be earlier than the day of publication of the notice under

subsection 269ZDBE(4) or (5) about the conduct of an

anti-circumvention inquiry in relation to the original notice.

Manner of publication

(9) A notice under subsection (1) must be published on the

Anti-Dumping Commission’s website.

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Part XVB Special provisions relating to anti-dumping duties

Division 6 Certain exporters may seek accelerated review of dumping duty notices or

countervailing duty notices

Section 269ZDC

152 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 6—Certain exporters may seek accelerated review

of dumping duty notices or countervailing duty

notices

269ZDC What this Division is about

This Division provides for the early review of a dumping duty

notice or a countervailing duty notice on the application of certain

exporters of goods covered by the notice. The review can be sought

when a review of the notice under Division 5 would not be

available and is only open to new exporters.

269ZE Circumstances in which accelerated review may be sought

(1) If a dumping duty notice or a countervailing duty notice has been

published:

(a) in respect of goods exported from a particular country of

export; or

(b) in respect of goods exported by new exporters from a

particular country of export;

a new exporter from that country (other than such an exporter in

respect of whom a declaration has already been made under

paragraph 269ZG(3)(b) in respect of a previous application) may,

by application lodged with the Commissioner, request an

accelerated review of that notice in so far as it affects that exporter.

(2) If the Commissioner is satisfied that:

(a) because that exporter refused to co-operate, in relation to the

application for publication of that notice, the exportations of

that exporter were not investigated; or

(b) the exporter is related to an exporter whose exports were

examined in relation to the application for publication of that

notice;

the Commissioner may reject the application.

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Section 269ZF

Customs Act 1901 153

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(3) If, during the course of an accelerated review, the Commissioner

becomes satisfied that:

(a) the exporter is refusing to co-operate with any aspect of the

review; or

(b) the exporter is related to an exporter whose exports were

examined in relation to the application for publication of that

notice;

the Commissioner may terminate the review.

(4) For the purposes of this section, an exporter is taken to be related

to another exporter if the 2 exporters are associates of each other

under subsection 269TAA(4).

269ZF Application for accelerated review

(1) An application for accelerated review must be in writing, be lodged

in the manner approved under section 269SMS, and contain:

(a) a description of the kind of goods to which the dumping duty

notice or countervailing duty notice relates; and

(b) a statement of the basis on which the exporter considers that

the particular notice is inappropriate so far as the exporter is

concerned.

(2) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to applications for accelerated review.

(3) The day on which an application is taken to be lodged must be

recorded on the application.

269ZG Consideration of application

(1) The Commissioner must, after considering the application and

making such inquiries as the Commissioner thinks appropriate,

give the Minister a report recommending:

(a) that the dumping duty notice or countervailing duty notice

the subject of the application remain unaltered; or

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countervailing duty notices

Section 269ZG

154 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(b) that the dumping duty notice or countervailing duty notice

the subject of the application be altered so as to apply to the

applicant as if different variable factors had been fixed;

and set out the Commissioner’s reasons for so recommending.

(2) A report by the Commissioner under subsection (1) must be

completed as soon as practicable and in any case not later than 100

days after the day the application is lodged.

(3) After considering the recommendation of the Commissioner and

the reasons for the recommendation, the Minister must, by notice

published on the Anti-Dumping Commission’s website:

(a) declare that, for the purposes of this Act and the Dumping

Duty Act, the original dumping duty notice or countervailing

duty notice is to remain unchanged; or

(b) declare that, with effect from the date the application is

lodged, this Act and the Dumping Duty Act have effect as if

the original dumping duty notice or countervailing duty

notice had applied to the applicant but the Minister had fixed

specified different variable factors relevant to the

determination of duty;

and, where the Minister does so, the declaration has effect

according to its terms.

(3A) The Minister must make a declaration under subsection (3) within:

(a) 30 days after receiving the report; or

(b) if the Minister considers there are special circumstances that

prevent the declaration being made within that period—such

longer period as the Minister considers appropriate.

(3B) If paragraph (3A)(b) applies, the Minister must give public notice

of the longer period.

(4) The Minister must, as soon as practicable after the issue of a notice

under subsection (3), notify the applicant of the term of the notice.

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Section 269ZH

Customs Act 1901 155

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZH Effect of accelerated review

If an application for accelerated review of a dumping duty notice

or a countervailing duty notice is lodged:

(a) no interim duty can be collected in respect of consignments

of goods, to which the application relates, entered for home

consumption after the application is lodged and until the

completion of the review; but

(b) the Commonwealth may, on the importation of goods to

which the application relates, require and take securities

under section 42 in respect of interim duty that may be

payable.

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Part XVB Special provisions relating to anti-dumping duties

Division 6A Continuation of anti-dumping measures

Section 269ZHA

156 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 6A—Continuation of anti-dumping measures

269ZHA What this Division is about

This Division provides for the Commissioner to alert interested

parties to the anticipated termination of anti-dumping measures and

provide them with an opportunity, before those measures expire, to

apply for a continuation of the measures. The Division:

• sets out the consequences if no application is made;

• outlines the procedure to be followed by the Commissioner in dealing with an application and preparing a report for the

Minister;

• empowers the Minister, after consideration of that report, either to decide that the measures will expire or to take steps

to ensure the continuation of the measures.

269ZHB Applications for continuation of anti-dumping measures

(1) Not later than 9 months before particular anti-dumping measures

expire, the Commissioner must publish on the Anti-Dumping

Commission’s website a notice:

(a) informing persons that the dumping duty notice,

countervailing duty notice or undertaking comprising those

measures is due to expire on a specified day (the specified

expiry day); and

(b) inviting the following persons to apply within 60 days to the

Commissioner, in accordance with section 269ZHC, for a

continuation of those measures:

(i) the person whose application under section 269TB

resulted in those measures;

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Section 269ZHC

Customs Act 1901 157

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(ii) persons representing the whole or a portion of the

Australian industry producing like goods to the goods

covered by those measures.

(2) If the Minister makes a declaration under paragraph 269ZG(3)(b)

in relation to an anti-dumping duty notice or countervailing duty

notice, the original dumping duty notice or countervailing duty

notice and that notice as modified because of that declaration are

both to be treated, for the purposes of this Division and despite

section 269TM, as if they had been issued at the time of issue of

the original notice.

(3) If no application for the continuation of the anti-dumping measures

is received by the Commissioner within the period specified in the

notice, then, on the specified expiry day:

(a) to the extent that the measures comprise a dumping duty

notice—that notice expires; and

(b) to the extent that the measures comprise a countervailing

duty notice—that notice expires; and

undertaking—the person who gave the undertaking is taken

to be released from the undertaking and the investigation

giving rise to the undertaking is terminated.

269ZHC Content and lodgment of application for continuation of

anti-dumping measures

(1) An application under section 269ZHB must:

(a) be in writing; and

(b) be in a form approved by the Commissioner for the purposes

of this section; and

(d) be signed in the manner indicated in the form; and

(e) be lodged in the manner approved under section 269SMS.

(2) The application is taken to have been lodged when the application

is first received by a Commission staff member doing duty in

relation to applications for continuation of anti-dumping measures.

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Division 6A Continuation of anti-dumping measures

Section 269ZHD

158 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(3) The day on which the application is taken to have been lodged

must be recorded on the application.

269ZHD Consideration of applications for continuation of

anti-dumping measures

(1) If an application or applications for continuation of anti-dumping

measures are lodged with the Commissioner in accordance with

section 269ZHC, the Commissioner must, within 20 days after the

end of the 60 days referred to in paragraph 269ZHB(1)(b):

(a) examine each such application; and

(b) if the Commissioner is not satisfied in relation to any of the

applications, having regard to the application and to any

other information that the Commissioner considers relevant,

of one or more of the matters referred to in subsection (2);

the Commissioner must reject each such application and inform the

applicant, by notice in writing, accordingly.

(2) For the purposes of subsection (1), the matters to be considered in

relation to an application are:

(a) whether the application complies with section 269ZHC; and

(b) whether there appear to be reasonable grounds for asserting

that the expiration of the anti-dumping measures to which the

application relates might lead, or might be likely to lead, to a

continuation of, or a recurrence of, the material injury that

the measures are intended to prevent.

(3) A notice informing an applicant of the rejection of an application

must set out the reasons why the Commissioner was not satisfied

of one or more of the matters set out in subsection (2).

(4) If the Commissioner decides not to reject an application for

continuation of anti-dumping measures taken in respect of goods as

they affect a particular exporter of those goods, the Commissioner

must publish a notice on the Anti-Dumping Commission’s website

indicating that it is proposed to inquire whether continuation of the

measures is justified.

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Section 269ZHE

Customs Act 1901 159

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(5) The notice published by the Commissioner must:

(a) describe the kind of goods to which the anti-dumping

measures apply; and

(b) describe the measures to which the application relates; and

will be made to the Minister:

(i) within 155 days after the date of publication of the

notice; or

(ii) within such longer period as the Minister allows under

section 269ZHI; and

(d) invite interested parties to lodge with the Commissioner,

within 37 days after the date of publication of the notice,

submissions concerning the continuation of the measures;

and

(e) state that:

(i) within 110 days after the publication of the notice; or

(ii) such longer period as the Minister allows under

section 269ZHI;

the Commissioner will place on the public record a statement

of the essential facts on which the Commissioner proposes to

base a recommendation concerning the continuation of the

measures; and

(f) invite interested parties to lodge with the Commissioner,

within 20 days of that statement being placed on the public

record, submissions in response to that statement; and

(g) indicate the address at which, or the manner in which,

submissions under paragraph (d) or (f) can be lodged.

269ZHE Statement of essential facts in relation to continuation of

anti-dumping measures

(1) If the Commissioner publishes a notice under

subsection 269ZHD(4) concerning the continuation of

anti-dumping measures, he or she must, within 110 days after the

publication of the notice or such longer period as the Minister

allows under section 269ZHI, ensure that there is placed on the

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Section 269ZHF

160 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

public record a statement of the facts (the statement of essential

facts) on which the Commissioner proposes to base his or her

recommendation to the Minister concerning the continuation of

those measures.

(2) Subject to subsection (3), in formulating the statement of essential

facts, the Commissioner:

(a) must have regard to:

(i) the application concerned; and

(ii) any submissions relating generally to the inquiry that

are received by the Commissioner within 37 days after

the publication of the notice under

subsection 269ZHD(4); and

(b) may have regard to any other matters that the Commissioner

considers relevant.

(3) The Commissioner is not obliged to have regard to any

submissions relating generally to the inquiry that are received by

the Commissioner after the end of the period referred to in

subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s

opinion, prevent the timely placement of the statement of essential

facts on the public record.

269ZHF Report on application for continuation of anti-dumping

measures

(1) The Commissioner must, after conducting an inquiry into the

continuation of anti-dumping measures and within 155 days after

the date of publication of the notice under subsection 269ZHD(4)

in relation to those measures or such longer period as the Minister

allows under section 269ZHI, give the Minister a report

recommending:

(a) to the extent that the measures involved the publication of a

dumping duty notice or a countervailing duty notice:

(i) that the notice remain unaltered; or

(ii) that the notice cease to apply to a particular exporter or

to a particular kind of goods; or

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Section 269ZHF

Customs Act 1901 161

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(iii) that the notice have effect in relation to a particular

exporter or to exporters generally, as if different

variable factors had been ascertained; or

(iv) that the notice expire on the specified expiry day; and

(b) to the extent that the measures involved the acceptance by the

Minister of an undertaking:

(i) that the undertaking remain unaltered; or

(ii) that the Minister seek a variation of the terms of the

undertaking as indicated in the Commissioner’s report;

(iii) that the undertaking expire on the specified expiry day.

(2) The Commissioner must not recommend that the Minister take

steps to secure the continuation of the anti-dumping measures

unless the Commissioner is satisfied that the expiration of the

measures would lead, or would be likely to lead, to a continuation

of, or a recurrence of, the dumping or subsidisation and the

material injury that the anti-dumping measure is intended to

prevent.

(3) Subject to subsection (4), in deciding on the recommendations to

be made to the Minister in the Commissioner’s report, the

Commissioner:

(a) must have regard to:

(i) the application for continuation of the anti-dumping

measures; and

(ii) any submission relating generally to the continuation of

the measures to which the Commissioner has had regard

for the purpose of formulating the statement of essential

facts in relation to the continuation of those measures;

and

(iii) that statement of essential facts; and

(iv) any submission made in response to that statement that

is received by the Commissioner within 20 days after

the placing of that statement on the public record; and

(b) may have regard to any other matter that the Commissioner

considers to be relevant to the inquiry.

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Division 6A Continuation of anti-dumping measures

Section 269ZHG

162 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(4) The Commissioner is not obliged to have regard to any submission

made in response to the statement of essential facts that is received

after the end of the period referred to in subparagraph (3)(a)(iv) if

to do so would, in the Commissioner’s opinion, prevent the timely

preparation of the report to the Minister.

(5) The report to the Minister must include a statement of the

Commissioner’s reasons for any recommendation contained in the

report that:

(a) sets out the material findings of fact on which that

recommendation is based; and

(b) provides particulars of the evidence relied on to support those

findings.

269ZHG Powers of the Minister in relation to continuation of

anti-dumping measures

(1) After considering the report of the Commissioner and any other

information that the Minister considers relevant, the Minister must

by notice published in accordance with subsection (2):

(a) declare that the Minister has decided not to secure the

continuation of the anti-dumping measures concerned; or

(b) declare that the Minister has decided to secure the

continuation of the anti-dumping measures concerned.

Note: Subsection (3) deals with the end of the anti-dumping measures and

subsection (4) deals with the continuation of the anti-dumping

measures.

(1A) If the Minister receives the report less than 30 days before the

specified expiry day, the Minister must make the declaration before

that day.

(1B) If subsection (1A) does not apply, the Minister must make the

declaration within:

(a) 30 days after receiving the report; or

(b) if the Minister considers there are special circumstances that

prevent the declaration being made within that period—such

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Continuation of anti-dumping measures Division 6A

Section 269ZHG

Customs Act 1901 163

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

longer period, ending before the specified expiry day, as the

Minister considers appropriate.

(1C) If paragraph (1B)(b) applies, the Minister must give public notice

of the longer period.

(2) A notice under subsection (1) must be published:

(a) before the expiry day specified in the notice; and

(b) on the Anti-Dumping Commission’s website.

(3) If the Minister declares that he or she has decided not to secure the

continuation of the anti-dumping measures, then, on the specified

expiry day:

(a) to the extent that the measures comprise a dumping duty

notice—that notice expires; and

(b) to the extent that the measures comprise a countervailing

duty notice—that notice expires; or

undertaking—the person who gave the undertaking is taken

to be released from the undertaking and the investigation

giving rise to the undertaking is terminated;

as the case requires.

(4) If the Minister declares that he or she has decided to secure the

continuation of the anti-dumping measures, the continuation of

those measures is so secured:

(a) to the extent that the measures comprise the publication of a

dumping duty notice or a countervailing duty notice:

(i) by the Minister determining, in writing, that the notice

continues in force after the specified expiry day; or

(ii) by the Minister determining, in writing, that the notice

continues in force after the specified expiry day but that,

after that day, the notice ceases to apply in relation to a

particular exporter or to a particular kind of goods; or

(iii) by the Minister determining, in writing, that the notice

continues in force after the specified expiry day but that,

after that day, the notice has effect, in relation to a

particular exporter or to exporters generally, as if the

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Division 6A Continuation of anti-dumping measures

Section 269ZHG

164 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Minister had fixed different specified variable factors in

relation to that exporter or to exporters generally,

relevant to the determination of duty; and

(b) to the extent that the measures involve the acceptance of an

undertaking:

(i) by the person who gave the undertaking agreeing to

extend it beyond the specified expiry day (without any

variation) or, if the person will not so agree, by the

Minister publishing a dumping duty notice or a

countervailing duty notice to take effect on the day after

the specified expiry day in substitution for the

undertaking; or

(ii) by the person who gave the undertaking agreeing to

extend it beyond the specified expiry day with the

variations sought by the Minister or, if the person will

not so agree, by the Minister publishing a dumping duty

notice or a countervailing duty notice to take effect on

the day after the specified expiry day in substitution for

the undertaking.

(5) If the Minister secures the continuation of anti-dumping measures

in accordance with this section, the measures continue in force for

5 years after the specified expiry day unless:

(a) in the case of a dumping duty notice or a countervailing duty

notice—the notice is revoked before the end of that period; or

(b) in the case of an undertaking—provision is made for its

earlier expiration.

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Procedural and evidentiary matters Division 7

Section 269ZHH

Customs Act 1901 165

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 7—Procedural and evidentiary matters

269ZHH What this Division is about

This Division:

• enables extension of various periods for doing things under this Part if the Minister is satisfied it is necessary;

• provides for the giving of public notice of decisions and determinations under this Part;

• provides for the Commissioner to maintain a public record of investigations, reviews and inquiries conducted by the

Commissioner under this Part.

269ZHI Minister may extend certain periods of time

(1) The Commissioner may give the Minister a written request for one

or more of the following:

(a) an extension of the 110-day period referred to in

subsection 269TDAA(1);

(b) an extension of the 155-day period referred to in

subsection 269TEA(1);

subsection 269X(1);

(d) an extension of the 110-day period referred to in

subsection 269ZD(1);

(e) an extension of the 155-day period referred to in

subsection 269ZDA(1);

(ea) an extension of the 110-day period referred to in

subsection 269ZDBF(1);

(eb) an extension of the 155-day period referred to in

paragraph 269ZDBG(1)(a);

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Section 269ZI

166 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(ec) an extension of the 100-day period referred to in

paragraph 269ZDBG(1)(b);

(f) an extension of the 110-day period referred to in

subsection 269ZHE(1);

(g) an extension of the 155-day period referred to in

subsection 269ZHF(1).

(2) The Commissioner must give reasons for the request.

(3) The Minister may approve a request if the Minister is satisfied that

it is reasonable to do so. The Minister must notify the

Commissioner of the extension period.

(4) If the Minister refuses a request, the Minister must notify the

Commissioner of the refusal.

(5) The Minister may grant more than one extension of a period

referred to in subsection (1).

269ZI Public notice

(1) If a person or body is required or empowered to give public notice

of a decision or determination but the provision requiring or

empowering the giving of that notice does not specify where the

notice is to be given, it is to be published on the Anti-Dumping

Commission’s website.

(2) If a person or body is required or empowered to give public notice

of a decision or determination, whether because of subsection (1)

or otherwise, that person or body must:

(a) set out in the notice particulars of the decision or

determination made; and

(b) set out in the notice, or in a separate report to which the

notice refers, the reasons for the decision or determination

including all material findings of fact or law on which the

decision or determination is based; and

reviewed by another body or referred to another body for

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Section 269ZI

Customs Act 1901 167

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review—set out in the notice full particulars of those rights;

and

(d) if the material findings of fact or law are contained in a

separate report—ensure that copies of the report are freely

available and that the manner of obtaining a copy is set out in

the notice.

(3) A person or body required or empowered to give public notice of a

decision or determination must:

(a) ensure that a copy of the notice and, where appropriate, of a

report to which the notice refers, is provided to each country

whose exporters are affected by the decision or

determination; and

(b) give a copy of the report to each other interested party known

to be affected by the decision or determination.

(4) If the Commissioner gives public notice of a decision under

paragraph 269TD(4)(b) to require securities in respect of interim

duty that may become payable, the particulars of the decision to

require those securities as set out in the notice should include, in

particular:

(a) the names of the exporters of the goods concerned, or, where

this is impracticable, the name of the country or countries of

export concerned; and

(b) a description of the goods either in terms of an item of the

Customs Tariff Act 1995 or otherwise; and

under section 269TG or 269TH:

(i) particulars of dumping margins established in relation to

each of the exporters involved; and

(ii) an explanation of the methods used to compare export

prices and normal values to establish those dumping

margins;

(d) in the case of an application for the publication of a notice

under section 269TJ or 269TK—the amount of subsidy

established in relation to each of the exporters involved; and

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Section 269ZI

168 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(e) the considerations relevant to the determination of material

injury to an industry, or of material hindrance to the

establishment of an industry, for the purposes of the

preliminary affirmative determination.

(5) If the Minister gives public notice:

(a) of a decision under section 269TG or 269TH to publish a

dumping duty notice; or

(b) of a decision under section 269TL not to publish such a

notice;

then, for the purposes of the public notice:

(i) the matters referred to in paragraphs (4)(a), (b) and (c);

and

(ii) particulars of the export price and normal value of the

goods concerned ascertained, or last ascertained, for the

purposes of subsection 269TG(1) or (2) or 269TH(1) or

(2); and

(iii) any considerations relevant to a determination of

material injury to an industry, or of material hindrance

to the establishment of an industry, for the purposes of

the decision; and

(d) if the decision involves any retrospective imposition of

duty—the reasons for the decision should include the basis

for the retrospective imposition of duty.

(6) If the Minister gives public notice:

(a) of a decision under section 269TJ or 269TK to publish a

countervailing duty notice; or

(b) of a decision under section 269TL not to publish such a

notice;

then, for the purposes of the public notice:

(i) the matters referred to in paragraphs (4)(a), (b) and (d);

and

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Section 269ZI

Customs Act 1901 169

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(ii) particulars of the countervailable subsidy received in

respect of the goods concerned ascertained, or last

ascertained, for the purposes of subsection 269TJ(1) or

(2) or 269TK(1) or (2); and

(iii) any considerations relevant to a determination of

material injury, to an industry or of material hindrance

to the establishment of an industry, for the purposes of

the decision; and

(d) if the decision involves any retrospective imposition of

duty—the reasons for the decision should include the basis

for the retrospective imposition of duty.

(7) If the Minister gives public notice under subsection 269TG(6) of a

decision to accept an undertaking by an exporter of goods, the

particulars of the decision to accept that undertaking should

include, in particular:

(a) the name of the exporter of the goods concerned; and

(b) a description of the goods either in terms of an item of the

Customs Tariff Act 1995 or otherwise; and

undertaking, the goods will not be sold for export to

Australia.

(8) If the Minister gives public notice under subsection 269TJ(3C) of a

decision to accept an undertaking given by a government of a

country of export in relation to the export trade to Australia in like

goods, the particulars of the decision to accept that undertaking

should include, in particular:

(a) the name of the government of the country of export; and

(b) a description of the goods either in terms of an item of the

Customs Tariff Act 1995 or otherwise; and

countervailable subsidy provided by that government in

respect of those goods.

(9) If, a person or body is required or empowered to give public notice

of a decision or determination:

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Section 269ZJ

170 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(a) the person or body must ensure that the notice given does not

contain any information that is claimed to be confidential or

to be information whose publication would adversely affect a

person’s business or commercial interests; but

(b) if it is practicable to do so, the person or body should include

in the notice a summary of that information in a form that

allows a reasonable understanding of the information without

breaching that confidentiality or adversely affecting those

interests.

(10) Nothing in this section limits the operation of another provision of

this Part that specifies the matters that must be included in a public

notice.

269ZJ Commissioner to maintain public record for certain purposes

(1) The Commissioner must, in relation to each application received

under section 269TB that leads to an investigation, each

application or request under section 269ZA that leads to a review,

each application or request under section 269ZDBC that leads to an

inquiry and each application under section 269ZHB that leads to an

inquiry:

(a) maintain a public record of the investigation, review or

inquiry conducted for the purposes of the application or

request, containing, subject to subsection (2), a copy of all

submissions from interested parties, the statement of essential

facts compiled in respect of that investigation, review or

inquiry, and a copy of all relevant correspondence between

the Commissioner and other persons; and

(b) draw the attention of all interested parties to the existence of

the public record, and to their entitlement to inspect that

record; and

available to that party for inspection.

(2) To the extent that information given to the Commissioner by a

person is claimed to be confidential or to be information whose

publication would adversely affect a person’s business or

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Section 269ZJ

Customs Act 1901 171

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

commercial interests, the person giving that information must

ensure that a summary of that information:

(a) that contains sufficient detail to allow a reasonable

understanding of the substance of the information; but

(b) that does not breach that confidentiality or adversely affect

those interests;

is given to the Commissioner for inclusion in the public record.

(3) A person is not required to give the Commissioner a summary of

information under subsection (2) for inclusion in the public record

if the person satisfies the Commissioner that there is no way such a

summary can be given to allow a reasonable understanding of the

substance of the information.

(4) If oral information is given to the Commissioner by a person, the

Commissioner must not take that information into account unless it

is subsequently put in writing by the person or by the

Commissioner and thereby becomes available, subject to

considerations of confidentiality and to the need to protect business

and commercial interests, as a part of the public record.

(5) If:

(a) in relation to an application under subsection 269TB(1) or

(2), 269ZA(1) or 269ZDBC(1) or section 269ZHB or to a

request under subsection 269ZA(3) or 269ZDBC(2), a person

claims that information is confidential or would adversely

affect a person’s business or commercial interests; and

(b) the Commissioner indicates to the party that he or she

disagrees with the claim;

but, despite the opinion of the Commissioner, the person making

the claim will not:

(d) prepare a summary of the information for inclusion in that

record;

the Commissioner may disregard the information unless it is

demonstrated that the information is correct.

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Section 269ZJ

172 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(6) If:

(a) in relation to an application under subsection 269TB(1) or

(2), 269ZA(1) or 269ZDBC(1) or section 269ZHB or to a

request under subsection 269ZA(3) or 269ZDBC(2), a person

claims that information is confidential or would adversely

affect a person’s business or commercial interests; and

(b) the Commissioner indicates to the party that he or she agrees

with the claim;

but the person making the claim will not prepare a summary of the

information for inclusion in that record, the Commissioner may

disregard the information unless it is demonstrated that the

information is correct.

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Review Panel Division 8

Section 269ZK

Customs Act 1901 173

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 8—Review Panel

269ZK What this Division is about

This Division establishes the Review Panel. It:

• deals with the appointment of members to the Panel; and

• deals with the terms and conditions for members; and

• provides for the provision of resources to the Panel; and

• regulates the disclosure of information in the Panel’s control.

269ZL Establishment of Review Panel

The Review Panel is established by this section.

269ZM Membership of the Review Panel

The Review Panel consists of the following members:

(a) a Senior Member;

(b) at least 2 other members.

269ZN Review Panel’s powers

The Review Panel has power to do all things necessary or

convenient to be done for or in connection with the performance of

its functions under this Part in relation to the review of certain

decisions made by the Minister or the Commissioner.

Note: Sections 269ZZA and 269ZZN set out these reviewable decisions.

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Section 269ZO

174 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZO Protection of members

A member of the Review Panel has, in the performance of his or

her duties as a member, the same protection and immunity as a

Justice of the High Court.

269ZP Appointment of members

(1) Each member of the Review Panel is to be appointed by the

Minister by written instrument.

(2) A member of the Review Panel holds office on a part-time basis.

(3) The Minister must not appoint an officer of Customs, the

Commissioner or a Commission staff member as a member of the

Review Panel.

(4) A person must not be appointed as a member of the Review Panel

unless the Minister is satisfied that the person has appropriate

qualifications, knowledge or experience.

269ZQ Period of appointment for members

A member of the Review Panel holds office for the period

specified in the instrument of appointment. The period must not

exceed 3 years.

Note: For reappointment, see section 33AA of the Acts Interpretation Act

1901.

269ZR Terms and conditions of appointment

(1) A member of the Review Panel holds office on such terms and

conditions as are determined in writing by the Minister.

(2) An office of Review Panel member is not a public office for the

purposes of Part II of the Remuneration Tribunal Act 1973.

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Review Panel Division 8

Section 269ZS

Customs Act 1901 175

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZS Disclosure of interests to the Minister

A member of the Review Panel must give written notice to the

Minister of any direct or indirect pecuniary interest that the

member has or acquires and that conflicts or could conflict with the

proper performance of the member’s functions.

269ZT Outside employment

A member of the Review Panel must not engage in any paid

employment that, in the Minister’s opinion, conflicts or may

conflict with the proper performance of the member’s duties.

269ZTA Resignation

(1) A member of the Review Panel may resign his or her appointment

by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

269ZTB Termination of appointment

(1) The Minister may terminate the appointment of a member of the

Review Panel for misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of a member of the

Review Panel if:

(a) the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

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Section 269ZTC

176 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(b) the member engages in paid employment that, in the

Minister’s opinion, conflicts or may conflict with the proper

performance of the member’s duties (see section 269ZT); or

section 269ZS; or

(d) the member is absent from duty, except on leave of absence,

for 14 consecutive days or for 28 days in any 12 months.

269ZTC Acting appointments

The Minister may, by written instrument, appoint a person to act as

a member of the Review Panel:

(a) during a vacancy in the office of the member (whether or not

an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the member:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note: For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

269ZTD Provision of resources to Review Panel

(1) The Minister must arrange with the Review Panel for sufficient

resources (including personnel) to be made available to the Panel

to enable the Panel to perform the Panel’s functions effectively.

(2) If a person is performing services for the Review Panel under such

an arrangement, the person must perform those services in

accordance with the directions of the Panel.

269ZU Review Panel may supply information

(1) Subject to this section, the Review Panel may supply information

(including personal information) received by the Review Panel

under this Act to a person.

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Section 269ZV

Customs Act 1901 177

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(2) The Review Panel or a person whose services are being made

available to the Review Panel under section 269ZTD must not:

(a) except for the purposes of this Act, supply information (other

than personal information) to a person if the supplying of the

information would constitute a breach of confidence; and

(b) supply personal information to a person unless the

information is supplied to the Commissioner, or a

Commission staff member designated in writing by the

Commissioner, for purposes relating to a reinvestigation

conducted under section 269ZZL.

(3) Paragraph (2)(a) does not apply to the supply of information to:

(a) the Minister; or

(b) the Commissioner; or

(d) a Commission staff member designated in writing by the

Commissioner; or

(e) a person who is employed in the Department and who is

designated in writing by the Secretary of the Department.

269ZV False or misleading information

(1) A person must not give the Review Panel any written information

that the person knows to be false or misleading in a material

particular.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply to any written information if, at the

time when the person gives it to the Review Panel, the person:

(a) informs the Review Panel that it is false or misleading in a

material particular; and

(b) specifies in what respect it is, to the person’s knowledge,

false or misleading in a material particular.

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Division 9 Review by Review Panel

Section 269ZW

178 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Division 9—Review by Review Panel

Subdivision A—Preliminary

269ZW What this Division is about

This Division sets out the procedures for review by the Review

Panel of certain decisions by the Minister or the Commissioner. It

includes:

• provisions dealing with definitions and other preliminary matters (Subdivision A); and

• the mechanism for review of certain Ministerial decisions (Subdivision B); and

• the mechanism for review of certain decisions made by the Commissioner (Subdivision C); and

• the keeping of a public record in relation to certain reviews conducted under this Division (Subdivision D).

This Division does not provide for a right of review of a decision

made by the Minister following a review under Division 6 or

Subdivision B of this Division.

269ZX Definitions

In this Division:

application means:

(a) in Subdivision B—an application for a review of a decision

by the Minister referred to in section 269ZZA; and

(b) in Subdivision C—an application for a review of a decision

by the Commissioner referred to in section 269ZZN.

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Section 269ZX

Customs Act 1901 179

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

finding, in relation to a reviewable decision under Subdivision B,

means a finding on a material question of fact or on a conclusion

based on that fact.

interested party, in relation to a reviewable decision, means any

one of the following persons:

(a) if there was an application under section 269TB or 269V that

led to the making of the reviewable decision—the applicant

in relation to that application;

(aa) if there was an application under subsection 269ZA(1) that

led to the making of the reviewable decision—the applicant

in relation to that application;

(aaa) if there was an application under subsection 269ZDBC(1)

that led to the making of the reviewable decision—the

applicant in relation to that application;

(ab) if there was an application under section 269ZHB that led to

the making of the reviewable decision—the applicant in

relation to that application;

(b) a person representing, or representing a portion of, the

industry producing, or likely to be established to produce,

like goods to the goods the subject of the reviewable

decision;

(i) is or is likely to be directly concerned with the

importation or exportation into Australia of the goods

the subject of the reviewable decision; or

(ii) has been or is likely to be directly concerned with the

importation or exportation into Australia of like goods,

to the goods the subject to the reviewable decision;

(d) a person who is or is likely to be directly concerned with the

production or manufacture of:

(i) the goods the subject of the reviewable decision; or

(ii) like goods to those goods that have been, or are likely to

be, exported to Australia;

(e) a trade organisation a majority of whose members are, or are

likely to be, directly concerned with:

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Section 269ZY

180 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(i) the production or manufacture of the goods the subject

of the reviewable decision or of like goods; or

(ii) the importation or exportation into Australia of those

goods; or

(iii) both the activities referred to in subparagraphs (i) and

(ii);

(f) the government of the country of export or country of origin:

(i) of goods the subject of the reviewable decision that

have been, or are likely to be, exported to Australia; or

(ii) of like goods to those goods that have been, or are likely

to be, exported to Australia.

reviewable decision means:

(a) in Subdivision B—a decision by the Minister referred to in

section 269ZZA; and

(b) in Subdivision C—a decision by the Commissioner referred

to in section 269ZZN.

269ZY Form and manner of applications

The Senior Member of the Review Panel must, by writing:

(a) approve a form for applications for a review under

Subdivision B or C; and

(b) approve the manner of making those applications.

269ZYA Constitution of Review Panel for purposes of review

For the purposes of a particular review under Subdivision B or C,

the Review Panel is to be constituted by a single member of the

Panel specified in a written direction given by the Senior Member

of the Panel.

269ZYB Member unavailable to complete review

(1) This section applies if:

(a) the Review Panel is undertaking a review under Subdivision

B or C; and

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Customs Act 1901 181

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(b) before the review has been completed, the member who

constitutes the Panel for the purposes of the review has:

(i) ceased to be a member; or

(ii) ceased to be available for the purposes of the review.

(2) The Senior Member of the Review Panel must give a written

direction reconstituting the Panel for the purposes of the review.

(3) The Review Panel, as so reconstituted, must complete the review

and may, for that purpose, have regard to any record of the

proceedings of the review made by the Panel as previously

constituted.

269ZZ Review Panel to have regard to same considerations as

Minister

(1) If the Review Panel is required, in conducting a review under

Subdivision B or C, to determine any matter ordinarily required to

be determined by the Minister under this Act or the Dumping Duty

Act, the Review Panel must determine the matter:

(a) in like manner as if it were the Minister; and

(b) having regard to the consideration to which the Minister

would be required to have regard if the Minister were

determining the matter.

(2) Subsection (1) applies in respect of goods that have not been

imported into Australia at the time of the Review Panel’s

determination in a matter in respect of those goods as if:

(a) the Review Panel’s determination of the matter were being

made after an importation of those goods into Australia; and

(b) the importation occurred at the time of the anticipated

importation of those goods into Australia.

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Section 269ZZA

182 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Subdivision B—Review of Ministerial decisions

269ZZA Reviewable decisions

(1) This Subdivision deals with the review by the Review Panel of the

following decisions:

(a) a decision by the Minister to publish a dumping duty notice

under subsection 269TG(1) or (2) or 269TH(1) or (2), or a

countervailing duty notice under subsection 269TJ(1) or (2)

or 269TK(1) or (2);

(b) a decision by the Minister under subsection 269TL(1) not to

publish such a notice;

(ca) a decision by the Minister under subsection 269ZDBH(1);

(d) a decision by the Minister under subsection 269ZHG(1).

(2) A reference to a decision by the Minister in subsection (1) does not

include a reference to such a decision made by the Minister

following a review under Division 6 or this Subdivision.

Note: The Review Panel only has the power to make certain

recommendations to the Minister following a review of a decision

under this Subdivision (see section 269ZZK). The Review Panel may

not revoke the Minister’s decision or substitute another decision.

269ZZB Overview of a review of Minister’s decision

The following diagram gives an overview of a review under this

Subdivision of a reviewable decision.

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Section 269ZZB

Customs Act 1901 183

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Application for review of reviewable decision made

within 30 days of notification of decision

Review Panel to publish notice of the review

Submissions made to Review Panel

Review Panel to

conduct review

Review Panel may require

Commissioner to undertake

further investigation

Commissioner to give report

on further investigation

to Review Panel

Review Panel to make recommendation to Minister

Minister to consider Review Panel’s recommendation

and to make a decision

Reviewable decision

affirmed

Reviewable decision

revoked and new

decision substituted

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Section 269ZZC

184 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZZC Who may seek a review?

A person who is an interested party in relation to a reviewable

decision may apply for a review of that decision under this

Subdivision.

269ZZD When must an application be made?

An application for a review must be made within 30 days after:

(a) for a decision referred to in paragraph 269ZZA(1)(a) or (b)—

a public notice of the decision is first published on the

Anti-Dumping Commission’s website under section 269ZI;

(b) for a decision referred to in paragraph 269ZZA(1)(c)—a

notice of the decision is first published on the Anti-Dumping

Commission’s website under subsection 269ZDB(1); or

(ba) for a decision referred to in paragraph 269ZZA(1)(ca)—a

notice of the decision is first published on the Anti-Dumping

Commission’s website under subsection 269ZDBH(1); or

notice of the decision is first published on the Anti-Dumping

Commission’s website under subsection 269ZHG(1).

269ZZE How must an application be made?

(1) An application must:

(a) be in writing; and

(b) be in accordance with a form approved under section 269ZY;

and

(d) be signed in the manner indicated in the form; and

(e) be made in the manner approved under section 269ZY; and

(f) be accompanied by the fee prescribed in an instrument under

subsection (3).

(2) Without limiting paragraph (1)(c), an application must:

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Section 269ZZF

Customs Act 1901 185

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(a) contain a full description of the goods to which the

application relates; and

(b) contain a statement setting out the grounds on which the

applicant believes the reviewable decision is not the correct

or preferable decision; and

decision) that the applicant considers the Minister should

have made; and

(d) contain a statement setting out how the grounds mentioned in

paragraph (b) support the making of the proposed decision;

and

(e) for a decision referred to in paragraph 269ZZA(1)(a), (c),

(ca) or (d)—contain a statement setting out how the proposed

decision is materially different from the reviewable decision.

Note: Sections 269ZZX and 269ZZY set out requirements concerning

confidential or sensitive commercial information that might be

contained in an application, including the need to accompany the

application with a summary of such information.

Fee

(3) The Minister may, by legislative instrument, prescribe a fee for the

purposes of paragraph (1)(f).

(4) The instrument may prescribe different fees for different kinds of

applications or different kinds of applicants.

(5) The instrument may make provision for, and in relation to, the

refund or waiver of any fee.

269ZZF Withdrawal of application

(1) An applicant may withdraw an application for a review.

(2) The withdrawal must:

(a) be in writing; and

(b) be made in the manner approved under section 269ZY for

making applications for a review.

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Section 269ZZG

186 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZZG Rejection of application—failure to establish decision not

the correct or preferable decision etc.

(1) If one or more of the following apply:

(a) the Review Panel is not satisfied that an application sets out

reasonable grounds for the reviewable decision not being the

correct or preferable decision;

(b) the Review Panel is not satisfied that the grounds mentioned

in paragraph 269ZZE(2)(b) support the making of the

proposed decision (see paragraph 269ZZE(2)(c));

(ca) or (d)—the Review Panel is not satisfied that the

proposed decision (see paragraph 269ZZE(2)(c)) is

materially different from the reviewable decision;

the Review Panel may, by notice given to the applicant, request the

applicant to give the Review Panel, within the period specified in

the notice, further information in relation to those matters.

(2) The Review Panel may reject an application if at any time after the

end of the 30-day period referred to in section 269ZZD:

(a) the Review Panel is not satisfied that the applicant has given

the Review Panel information setting out reasonable grounds

for the reviewable decision not being the correct or preferable

decision; or

(b) the Review Panel is not satisfied that the grounds mentioned

in paragraph 269ZZE(2)(b) support the making of the

proposed decision (see paragraph 269ZZE(2)(c)); or

(ca) or (d)—the Review Panel is not satisfied that the

proposed decision (see paragraph 269ZZE(2)(c)) is

materially different from the reviewable decision.

(3) Subsection (2) applies whether or not a notice is given under

subsection (1).

(4) Nothing in subsection (1) prevents the Review Panel from seeking

further information from an applicant within the period specified in

a notice under subsection (1).

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Section 269ZZH

Customs Act 1901 187

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(5) If:

(a) the Review Panel does not, under this Subdivision, reject an

application; and

(b) in relation to information given by the applicant setting out

the grounds for the reviewable decision not being the correct

or preferable decision:

(i) the Review Panel is satisfied that one or more of those

grounds (the reviewable grounds) are reasonable

grounds for the reviewable decision not being the

correct or preferable decision; and

(ii) the Review Panel is satisfied that one or more of those

grounds (the non-reviewable grounds) are not

reasonable grounds for the reviewable decision not

being the correct or preferable decision;

then:

must conduct the review in relation to those grounds and no

other grounds; and

(d) the Review Panel must reject the non-reviewable grounds.

269ZZH Rejection of application—failure to provide summary of

confidential information

The Review Panel must reject an application if:

(a) the applicant in respect of the application claims that

information included in it is confidential or is information

whose publication would adversely affect a person’s business

or commercial interest; and

(b) the applicant fails to give a summary of that information to

the Review Panel in accordance with section 269ZZY.

269ZZHA Review Panel may hold conferences

(1) The Review Panel may, at any time after receiving an application

for a review, hold a conference of such persons or bodies as it

considers appropriate for the purpose of obtaining further

information in relation to the application or review.

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Section 269ZZI

188 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(2) In making a recommendation under subsection 269ZZK(1), the

Review Panel may also have regard to:

(a) that further information to the extent that it relates to the

relevant information (within the meaning of

subsection 269ZZK(6)); and

(b) any conclusions reached at the conference based on that

relevant information.

(3) If the Review Panel decides to hold a conference at any time after

receiving an application for a review and before beginning to

conduct the review:

(a) the Review Panel must invite the applicant to attend the

conference; and

(b) if the applicant fails to attend the conference and the Review

Panel is not satisfied that the applicant has a reasonable

excuse for the failure—the Review Panel may reject the

application.

269ZZI Public notification of review

(1) Before the Review Panel begins to conduct a review, the Review

Panel must publish a notice on the Review Panel’s website

indicating that the Review Panel proposes to conduct that review.

(2) Without limiting the matters that must be dealt with in a notice

under subsection (1), it must:

(a) describe the goods to which the application relates; and

(b) set out the decision that is sought to be reviewed and the

grounds in relation to which the review is to be conducted;

and

within 30 days starting from the date of publication of the

notice, submissions concerning the application; and

(d) indicate the address at which, or the manner in which, such

submissions can be lodged.

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Section 269ZZJ

Customs Act 1901 189

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZZJ Submissions in relation to reviewable decision

Within 30 days after the publication of a notice under

section 269ZZI in relation to a review of a reviewable decision, the

following may make submissions to the Review Panel in

accordance with that notice:

(a) interested parties in relation to the reviewable decision;

(aa) the Commissioner;

(b) a trade union representing one or more persons employed in

the Australian industry producing, or likely to produce, like

goods to the goods the subject of the reviewable decision;

decision, or like goods, in the production or manufacture of

other goods in Australia.

Note: Sections 269ZZX and 269ZZY set out requirements concerning

confidential or sensitive commercial information that might be

contained in a submission, including the need to accompany the

submission with a summary of such information.

269ZZK The review

(1) If an application is not rejected under section 269ZZG, 269ZZH or

269ZZHA, the Review Panel must make a report to the Minister on

the application by:

(a) recommending that the Minister affirm the reviewable

decision; or

(b) recommending that the Minister revoke the reviewable

decision and substitute a specified new decision.

(1A) For a reviewable decision referred to in paragraph 269ZZA(1)(a),

(c), (ca) or (d), the Review Panel may make a recommendation

referred to in paragraph (1)(b) of this section only if the new

decision is materially different from the reviewable decision.

(2) A report under subsection (1) must set out the reasons for the

Review Panel’s recommendation.

(3) A report under subsection (1) must be made:

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Section 269ZZK

190 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(a) at least 30 days after the public notification of the review

under section 269ZZI; but

(b) before the end of:

(i) unless subparagraph (ii) applies—the period of 60 days

beginning on the day of that notification, or such longer

period allowed by the Minister in writing because of

special circumstances; or

(ii) if the Review Panel gives the Commissioner a notice

under subsection 269ZZL(1)—the period of 30 days

beginning on the day the Commissioner gives the Panel

the report under subsection 269ZZL(2).

(4) Subject to subsections (4A) and (5) and subsection 269ZZHA(2),

in making the recommendation, the Review Panel:

(a) must not have regard to any information other than the

relevant information; and

(b) must only have regard to the relevant information and any

conclusions based on the relevant information that are

contained in the application for the review or in any

submissions received under section 269ZZJ within the period

of 30 days referred to in that section.

(4A) If the Review Panel gives the Commissioner a notice under

subsection 269ZZL(1), then, in making the recommendation, the

Review Panel must have regard to the report the Commissioner

gives the Panel under subsection 269ZZL(2).

(5) The Review Panel must not have regard to a submission under

subsection (4) if:

(a) the person giving the submission claims that information

included in it is confidential or is information whose

publication would adversely affect a person’s business or

commercial interest; and

(b) the person fails to give a summary of that information to the

Review Panel in accordance with section 269ZZY.

(6) In this section:

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Section 269ZZK

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relevant information means:

(a) if the reviewable decision was made pursuant to an

application under section 269TB—the information to which

the Commissioner had had regard or was, under

paragraph 269TEA(3)(a), required to have regard, when

making the findings set out in the report under

section 269TEA to the Minister in relation to the making of

the reviewable decision; and

(b) if the reviewable decision was made pursuant to an

investigation initiated by the Minister as mentioned in

section 269TAG—the information:

(i) that was collected for the purposes of that investigation

in accordance with the Minister’s requirements; and

(ii) that was before the Minister when the Minister made the

reviewable decision; and

application under subsection 269ZA(1) or a request under

subsection 269ZA(3)—the information the Commissioner

had regard to, or was, under paragraph 269ZDA(3)(a),

required to have regard to, when making the findings set out

in the report under section 269ZDA to the Minister in

relation to the making of the reviewable decision; and

(ca) if the reviewable decision was made because of an

application under subsection 269ZDBC(1) or a request under

subsection 269ZDBC(2)—the information the Commissioner

had regard to, or was, under paragraph 269ZDBG(2)(a) or

(aa), required to have regard to, when making the findings set

out in the report under section 269ZDBG to the Minister in

relation to the making of the reviewable decision; and

(d) if the reviewable decision was made because of an

application under section 269ZHB—the information the

Commissioner had regard to, or was, under

paragraph 269ZHF(3)(a), required to have regard to, when

making the findings set out in the report under

section 269ZHF to the Minister in relation to the making of

the reviewable decision.

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Section 269ZZL

192 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

269ZZL Review Panel may require reinvestigation by

Commissioner before making recommendation to

Minister

(1) Before making a recommendation under subsection 269ZZK(1)

and before the end of the period of 60 days beginning on the day of

the public notification of the review under section 269ZZI, the

Review Panel may, by written notice, require the Commissioner to:

(a) reinvestigate a specific finding or findings that formed the

basis of the reviewable decision; and

(b) report the result of the reinvestigation to the Panel within a

specified period.

(2) The Commissioner must conduct a reinvestigation in accordance

with the Review Panel’s requirements under subsection (1) and

give the Panel a report of the reinvestigation concerning the finding

or findings within the specified period.

(3) In a report under subsection (2), the Commissioner must:

(a) if the Commissioner is of the view that the finding or any of

the findings the subject of reinvestigation should be

affirmed—affirm the finding or findings; and

(b) set out any new finding or findings that the Commissioner

made as a result of the reinvestigation; and

finding or findings are based; and

(d) set out the reasons for the Commissioner’s decision.

269ZZM Minister’s decision

(1) After receiving a report by the Review Panel under

subsection 269ZZK(1), the Minister must:

(a) affirm the reviewable decision concerned; or

(b) revoke that decision and substitute a new decision.

(1A) The Minister must make a decision under subsection (1) within:

(a) 30 days after receiving the report; or

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(b) if the Minister considers there are special circumstances that

prevent the decision being made within that period—such

longer period as the Minister considers appropriate.

(1B) If paragraph (1A)(b) applies, the Minister must give notice of the

longer period on the Review Panel’s website.

(2) The Minister’s decision under subsection (1) takes effect from the

time specified by the Minister.

(3) Without limiting subsection (1), the Minister may, under that

subsection:

(a) publish a dumping duty notice or countervailing duty notice;

(b) vary or revoke a dumping duty notice or countervailing duty

notice; or

and substitute another dumping duty notice or countervailing

duty notice (as the case requires); or

(d) if the following apply:

(i) the reviewable decision is a decision by the Minister

under subsection 269ZHG(1) not to secure the

continuation of anti-dumping measures;

(ii) those measures comprised a dumping duty notice or a

countervailing duty notice;

(iii) the notice expired under subsection 269ZHG(3) on a

day;

declare that the notice, as in force immediately before its

expiry, is reinstated; or

(e) if the following apply:

(i) the reviewable decision is a decision by the Minister

under subsection 269ZHG(1) not to secure the

continuation of anti-dumping measures;

(ii) those measures comprised the giving of an undertaking

by a person;

(iii) the person was released from the undertaking under

subsection 269ZHG(3);

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Section 269ZZM

194 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(iv) the person, by notice in writing given to the Minister,

agrees to the undertaking being reinstated;

declare that the undertaking, as in force immediately before

the person was released from the undertaking, is reinstated.

(4) The Minister must give notice of his or her decision on the Review

Panel’s website.

(5) In spite of section 269TM, any new dumping duty notice or

countervailing duty notice published in the exercise of a power

conferred on the Minister under subsection (3) or any such notice

as varied or substituted in the exercise of that power, expires:

(a) in the case of a notice published after a review of a decision

not to publish such a notice—5 years after the publication of

the decision not to publish such a notice; or

(aa) in the case of a notice published where the following applies:

(i) the reviewable decision is a decision by the Minister

under subsection 269ZHG(1) not to secure the

continuation of anti-dumping measures;

(ii) those measures comprised the giving of an undertaking

by a person;

(iii) the person was released from the undertaking under

subsection 269ZHG(3);

(iv) the person does not agree to the undertaking being

reinstated;

5 years after the day the decision to publish the notice takes

effect; or

(b) in the case of a varied or substituted notice—5 years after the

publication of the original notice.

Example: If the reviewable decision relates to a dumping duty notice that was

published on 1 July 1998, and if the Minister, following a review

under this Division, revokes that notice and substitutes a new dumping

duty notice on 1 January 1999, the substituted notice will expire on

1 July 2003.

(5A) A notice that is reinstated under subsection (1), as mentioned in

paragraph (3)(d), expires 5 years after the day the decision to

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Section 269ZZN

Customs Act 1901 195

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

reinstate the notice takes effect, unless the reinstated notice is

revoked before the end of that period.

(5B) An undertaking that is reinstated under subsection (1), as

mentioned in paragraph (3)(e), expires 5 years after the day the

decision to reinstate the undertaking takes effect, unless provision

is made for its earlier expiration.

(6) If:

(a) the Minister makes a decision under subsection (1) to revoke

or vary a dumping duty notice or countervailing duty notice

(the original notice), or to revoke the original notice and

substitute another notice, with effect from a date before the

Minister’s decision; and

(b) an amount of interim duty has been paid on goods the subject

of the original notice in excess of the amount of interim duty

that would have been payable on those goods as a result of

the Minister’s decision;

the person who paid the interim duty may apply for a refund of the

excess under Division 3 of Part VIII.

Subdivision C—Review of Commissioner’s decisions

269ZZN Reviewable decisions

This Subdivision deals with the review of the following decisions:

(a) a decision by the Commissioner under subsection 269TC(1)

or (2) to reject an application under subsection 269TB(1) or

(2), as the case requires (a negative prima facie decision);

(b) a decision by the Commissioner to terminate an investigation

under subsection 269TDA(1), (2), (3), (7), (13), (13A), (14)

or (14A) (a termination decision);

the Minister under paragraph 269X(6)(b) or (c) (a negative

preliminary decision);

(d) a decision (a rejection decision):

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Section 269ZZO

196 Customs Act 1901

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(i) by the Commissioner that the Commissioner is satisfied

as described in subsection 269YA(2) or (3); or

(ii) by the Commissioner to terminate under

subsection 269YA(4) examination of an application;

(e) a decision by the Commissioner to terminate an

anti-circumvention inquiry under subsection 269ZDBEA(1)

or (2) (also a termination decision).

269ZZO Who may seek a review

The following table sets out who may make an application for a

review under this Subdivision.

Persons who may apply for review

Item Reviewable decision Applicant

1 A negative prima facie

decision under

subsection 269TC(1)

rejecting an application

made under

subsection 269TB(1)

The person who made the

application under

subsection 269TB(1)

2 A negative prima facie

decision under

subsection 269TC(2)

rejecting an application

under subsection 269TB(2)

The person who made the

application under

subsection 269TB(2)

3 A termination decision

under

subsection 269TDA(1), (2),

(3), (7), (13), (13A), (14) or

(14A)

The person who made the

application for the dumping

duty notice or countervailing

duty notice

4 A negative preliminary

decision under

paragraph 269X(6)(b) or (c)

The person who made the

application for an

assessment of duty under

section 269V that relates to

the decision

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Section 269ZZP

Customs Act 1901 197

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Persons who may apply for review

Item Reviewable decision Applicant

5 A rejection decision The applicant under

section 269V for an

assessment of duty whose

application was affected by

the decision

6 A termination decision

under

subsection 269ZDBEA(1) or

(2)

The applicant under

subsection 269ZDBC(1) for

the conduct of the

anti-circumvention inquiry

269ZZP When must an application be made?

An application for a review must be made within 30 days after the

applicant was notified of the reviewable decision concerned by the

Commissioner.

269ZZQ How must an application be made?

(1) An application must:

(a) be in writing; and

(b) be in accordance with a form approved under section 269ZY;

and

(d) be signed in the manner indicated in the form; and

(e) be made in the manner approved under section 269ZY; and

(f) be accompanied by the fee prescribed in an instrument under

subsection (2).

Note: Sections 269ZZX and 269ZZY set out requirements concerning

confidential or sensitive commercial information that might be

contained in an application for a review of a termination decision,

including the need to accompany the application with a summary of

such information.

(1A) Without limiting paragraph (1)(c), an application must:

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198 Customs Act 1901

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(a) contain a statement setting out the grounds on which the

applicant believes the reviewable decision is not the correct

or preferable decision; and

(b) contain a statement setting out the decision (the proposed

decision) that the applicant considers the Commissioner

should have made; and

paragraph (a) support the making of the proposed decision;

and

(d) for a decision referred to in paragraph 269ZZN(c)—contain a

statement setting out how the proposed decision is materially

different from the reviewable decision.

Fee

(2) The Minister may, by legislative instrument, prescribe a fee for the

purposes of paragraph (1)(f).

(3) The instrument may prescribe different fees for different kinds of

applications or different kinds of applicants.

(4) The instrument may make provision for, and in relation to, the

refund or waiver of any fee.

269ZZQAA Withdrawal of application

(1) An applicant may withdraw an application for a review.

(2) The withdrawal must:

(a) be in writing; and

(b) be made in the manner approved under section 269ZY for

making applications for a review.

269ZZQA Rejection of application—failure to establish decision not

the correct or preferable decision etc.

(1) If one or more of the following apply:

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(a) the Review Panel is not satisfied that an application sets out

reasonable grounds for the reviewable decision not being the

correct or preferable decision;

(b) the Review Panel is not satisfied that the grounds mentioned

in paragraph 269ZZQ(1A)(a) support the making of the

proposed decision (see paragraph 269ZZQ(1A)(b));

Review Panel is not satisfied that the proposed decision (see

paragraph 269ZZQ(1A)(b)) is materially different from the

reviewable decision;

the Review Panel may, by notice given to the applicant, request the

applicant to give the Review Panel, within the period specified in

the notice, further information in relation to those matters.

(2) The Review Panel may reject an application if at any time after the

end of the 30-day period referred to in section 269ZZP:

(a) the Review Panel is not satisfied that the applicant has given

the Review Panel information setting out reasonable grounds

for the reviewable decision not being the correct or preferable

decision; or

(b) the Review Panel is not satisfied that the grounds mentioned

in paragraph 269ZZQ(1A)(a) support the making of the

proposed decision (see paragraph 269ZZQ(1A)(b)); or

Review Panel is not satisfied that the proposed decision (see

paragraph 269ZZQ(1A)(b)) is materially different from the

reviewable decision.

(3) Subsection (2) applies whether or not a notice is given under

subsection (1).

(4) Nothing in subsection (1) prevents the Review Panel from seeking

further information from an applicant within the period specified in

a notice under subsection (1).

(5) If:

(a) the Review Panel does not, under this Subdivision, reject an

application; and

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(b) in relation to information given by the applicant setting out

the grounds for the reviewable decision not being the correct

or preferable decision:

(i) the Review Panel is satisfied that one or more of those

grounds (the reviewable grounds) are reasonable

grounds for the reviewable decision not being the

correct or preferable decision; and

(ii) the Review Panel is satisfied that one or more of those

grounds (the non-reviewable grounds) are not

reasonable grounds for the reviewable decision not

being the correct or preferable decision;

then:

must conduct the review in relation to those grounds and no

other grounds; and

(d) the Review Panel must reject the non-reviewable grounds.

269ZZR Rejection of application for review of termination decision

The Review Panel must reject an application for a review of a

termination decision if:

(a) the applicant in respect of the application claims that

information included in it is confidential or is information

whose publication would adversely affect a person’s business

or commercial interest; and

(b) the applicant fails to give a summary of that information to

the Review Panel in accordance with section 269ZZY.

269ZZRA Review Panel may hold conferences

(1) The Review Panel may, at any time after receiving an application

for a review, hold a conference of such persons or bodies as it

considers appropriate for the purpose of obtaining further

information in relation to the application or review.

(2) In making a decision on the review, the Review Panel may also

have regard to:

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(a) that further information to the extent that it relates to the

information that was before the Commissioner when the

Commissioner made the reviewable decision; and

(b) any conclusions reached at the conference based on the

information that was before the Commissioner when the

Commissioner made the reviewable decision.

(3) If the Review Panel decides to hold a conference at any time after

receiving an application for a review and before beginning to

conduct the review:

(a) the Review Panel must invite the applicant to attend the

conference; and

(b) if the applicant fails to attend the conference and the Review

Panel is not satisfied that the applicant has a reasonable

excuse for the failure—the Review Panel may reject the

application.

269ZZRB Review Panel may seek further information from the

Commissioner

(1) In reviewing a reviewable decision under this Subdivision, the

Review Panel may seek further information from the

Commissioner in relation to information that was before the

Commissioner when the Commissioner made the reviewable

decision.

(2) In making a decision on the review, the Review Panel may also

have regard to that further information.

269ZZRC Notification of review

Negative prima facie decisions, negative preliminary decisions and

rejection decisions

(1) Before the Review Panel begins to conduct a review of a negative

prima facie decision, a negative preliminary decision or a rejection

decision, the Review Panel must give a notice to the applicant and

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the Commissioner indicating that the Review Panel proposes to

conduct that review.

(2) A notice under subsection (1) must:

(a) describe the goods to which the application relates; and

(b) set out the decision that is sought to be reviewed and the

grounds in relation to which the review is to be conducted.

Termination decision

(3) Before the Review Panel begins to conduct a review of a

termination decision, the Review Panel must publish a notice on

the Review Panel’s website indicating that the Review Panel

proposes to conduct that review.

(4) A notice under subsection (3) must:

(a) describe the goods to which the application relates; and

(b) set out the decision that is sought to be reviewed and the

grounds in relation to which the review is to be conducted.

269ZZS The review of a negative prima facie decision

(1) If an application for the review of a negative prima facie decision

is not rejected under section 269ZZQA or 269ZZRA, the Review

Panel must make a decision on the application by:

(a) affirming the reviewable decision; or

(b) revoking the reviewable decision and substituting a new

decision accepting the application under

subsection 269TB(1) or (2) (as the case requires).

(2) As soon as practicable after a new decision is substituted under

subsection (1), the Commissioner must publish a notice under

subsection 269TC(4) in respect of the application referred to in

paragraph (1)(b).

(3) Subject to subsections 269ZZRA(2) and 269ZZRB(2), in making a

decision under this section, the Review Panel must have regard

only to information that was before the Commissioner when the

Commissioner made the reviewable decision.

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(4) The Review Panel’s decision must be made within 60 days after

the giving of the notice under subsection 269ZZRC(1) to the

applicant or such longer period allowed by the Minister in writing

because of special circumstances.

269ZZT The review of a termination decision

(1) If an application for the review of a termination decision is not

rejected under section 269ZZQA, 269ZZR or 269ZZRA, the

Review Panel must make a decision on the application by:

(a) affirming the reviewable decision; or

(b) revoking the reviewable decision.

(2) If the Review Panel revokes a reviewable decision (other than a

decision under subsection 269ZDBEA(2)):

(a) unless paragraph (b) applies:

(i) as soon as practicable after the revocation, the

Commissioner must publish a statement of essential

facts under section 269TDAA in relation to the

application for a dumping duty notice or countervailing

duty notice that is related to the review; and

(ii) after that publication, the investigation of the

application resumes under this Part; or

(b) if the reviewable decision was a decision under

subsection 269ZDBEA(1):

(i) as soon as practicable after the revocation, the

Commissioner must publish a statement of essential

facts under section 269ZDBF in relation to the

anti-circumvention inquiry concerned; and

(ii) after that publication, the conduct of the

anti-circumvention inquiry concerned resumes under

this Part.

(3) If the Review Panel revokes a reviewable decision under

subsection 269ZDBEA(2), the conduct of the anti-circumvention

inquiry concerned resumes under this Part.

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(4) Subject to subsections 269ZZRA(2) and 269ZZRB(2), in making a

decision under this section, the Review Panel must have regard

only to information that was before the Commissioner when the

Commissioner made the reviewable decision.

(5) The Review Panel’s decision must be made within 60 days after

the publication of the notice under subsection 269ZZRC(3) or such

longer period allowed by the Minister in writing because of special

circumstances.

(6) The Review Panel must publish its decision under this section on

its website.

269ZZU The review of a negative preliminary decision

(1) If an application for the review of a negative preliminary decision

is not rejected under section 269ZZQA or 269ZZRA, the Review

Panel must make a decision on the application by:

(a) affirming the reviewable decision; or

(b) revoking the reviewable decision and substituting a new

decision under subsection 269X(6).

(1A) The Review Panel may revoke a reviewable decision and substitute

a new decision under subsection 269X(6) only if the new decision

is materially different from the reviewable decision.

(2) If the Review Panel revokes a reviewable decision and substitutes a

new decision under subsection 269X(6), the Review Panel must,

within 7 days after making the new decision, recommend that the

Minister give effect to that decision.

(3) Subject to subsections 269ZZRA(2) and 269ZZRB(2), in making a

decision under this section, the Review Panel must have regard

only to information of the kinds referred to in subsection 269X(5)

that was before the Commissioner when the Commissioner made

the reviewable decision.

(4) The Review Panel’s decision must be made within 60 days after

the giving of the notice under subsection 269ZZRC(1) to the

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applicant or such longer period allowed by the Minister in writing

because of special circumstances.

269ZZUA The review of a rejection decision

(1) If an application for the review of a rejection decision is not

rejected under section 269ZZQA or 269ZZRA, the Review Panel

must make a decision on the application by:

(a) affirming the rejection decision; or

(b) revoking the rejection decision.

(2) If the Review Panel revokes a rejection decision relating to an

application under section 269V, subsection 269YA(5) ceases to

apply in relation to the application.

(3) If the Review Panel revokes a rejection decision relating to

rejection under subsection 269YA(2) or (3) of an application under

section 269V:

(a) the Commissioner must resume the examination of the

application with a view to complying with

subsections 269X(5) and (6) within 110 days after being

informed of the revocation; and

(b) the revocation does not prevent the Commissioner from

terminating the examination under subsection 269YA(4).

(4) If the Review Panel revokes a rejection decision relating to

termination under subsection 269YA(4) of the examination of an

application under section 269V, the Commissioner must comply

with subsections 269X(5) and (6) within 110 days after being

informed of the revocation.

(5) Subject to subsections 269ZZRA(2) and 269ZZRB(2), in making a

decision under this section, the Review Panel must have regard

only to information that was before the Commissioner when the

Commissioner made the rejection decision.

(6) The Review Panel’s decision must be made within 60 days after

the giving of the notice under subsection 269ZZRC(1) to the

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Section 269ZZV

206 Customs Act 1901

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applicant or such longer period allowed by the Minister in writing

because of special circumstances.

269ZZV Effect of Review Panel’s decision

The Review Panel’s decision on a review:

(a) has effect as if it were a decision made by the Commissioner;

and

(b) takes effect from the time the Review Panel makes the

decision.

Subdivision D—Public record in relation to reviews

269ZZW Application

This Subdivision applies only to:

(a) an application for a review of a reviewable decision under

Subdivision B; and

(b) an application for a review of a termination decision under

Subdivision C.

269ZZX Public record maintained by Review Panel

(1) The Review Panel must, in relation to each application for a

review:

(a) maintain a public record containing:

(i) a copy of the application; and

(ii) if the Review Panel seeks further information from the

applicant—any such information given to the Review

Panel by the applicant; and

(iii) if the application is an application for a review under

Subdivision B—any submissions received under

section 269ZZJ within the period of 30 days referred to

in that section; and

(iv) a summary of further information obtained at a

conference mentioned in section 269ZZHA or

269ZZRA; and

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(b) at the request of an interested party in respect of the

reviewable decision concerned, make that record available to

that party for inspection.

(2) The public record must not contain any information in respect of

which a summary is given to the Review Panel under

subsection 269ZZY(1).

269ZZY Confidential and sensitive commercial information

(1) To the extent that information provided to the Review Panel by a

person is claimed by the person to be:

(a) confidential; or

(b) information whose publication would adversely affect a

person’s business or commercial interest;

the person giving that information must, at the time the information

is given to the Review Panel, also give a summary of that

information to the Review Panel for inclusion in the public record

maintained under section 269ZZX.

(2) The summary must:

(a) contain sufficient detail to allow a reasonable understanding

of the substance of the information; but

(b) does not breach the confidentiality or adversely affect the

interests concerned.

Note: For the consequences of failing to comply with subsection (1), see

sections 269ZZH and 269ZZR and subsection 269ZZK(5).

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Part XVC International Trade Remedies Forum

Section 269ZZYA

208 Customs Act 1901

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Part XVC—International Trade Remedies Forum

269ZZYA Simplified outline

The following is a simplified outline of this Part:

• This Part establishes the International Trade Remedies Forum.

• The Forum is to advise the Minister on the anti-dumping

provisions in Part XVB and in the Customs Tariff

(Anti-Dumping) Act 1975.

269ZZYB Establishment of International Trade Remedies Forum

The International Trade Remedies Forum is established by this

section.

269ZZYC Functions of the Forum

The Forum has the following functions:

(a) to advise the Minister on the operation of Part XVB and of

the Customs Tariff (Anti-Dumping) Act 1975;

(b) to advise the Minister on improvements that could be made

to that Part or Act.

269ZZYD Membership of the Forum

(1) The Forum consists of the following members:

(a) the Commissioner (within the meaning of Part XVB);

(b) 11 members, each of whom represents one or more of the

following groups:

(i) Australian producers;

(ii) Australian manufacturers;

(iii) Australian industry bodies;

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(iv) Australian importers;

(d) such number of members to represent the Commonwealth as

the Minister thinks fit;

(e) such other members (if any) as the Minister thinks fit.

(2) Each of the groups mentioned in paragraph (1)(b) must be

represented by at least one of the 11 members referred to in that

paragraph.

269ZZYE Appointment of Forum members

(1) Each member of the Forum (except the Commissioner (within the

meaning of Part XVB)) is to be appointed by the Minister by

written instrument.

(2) Each member of the Forum (except the Commissioner (within the

meaning of Part XVB)) holds office on a part-time basis.

(3) Each member of the Forum (except the Commissioner (within the

meaning of Part XVB)) holds office for the period specified in the

instrument of appointment. The period must not exceed 3 years.

Note: For reappointment, see section 33AA of the Acts Interpretation Act

1901.

(4) An appointment under this section is not a public office for the

purposes of Part II of the Remuneration Tribunal Act 1973.

269ZZYF Resignation

(1) A member of the Forum (except the Commissioner (within the

meaning of Part XVB)) may resign his or her appointment by

giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

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Section 269ZZYG

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269ZZYG Forum meetings

Number of meetings

(1) The Forum must meet at least twice each calendar year.

Commissioner to convene meetings

(2) The Commissioner (within the meaning of Part XVB) may

convene a meeting at any time.

Presiding member

(3) The Commissioner (within the meaning of Part XVB) presides at

all meetings at which he or she is present. The Commissioner may

nominate a person to attend a meeting in his or her place and, if the

Commissioner does so, that person presides.

Conduct of meetings

(4) The Minister may, by writing, determine the procedures to be

followed at meetings of the Forum, including the number of

members who are to constitute a quorum.

(5) A determination made under subsection (4) is not a legislative

instrument.

(6) The Minister may, by signed instrument, delegate to the following

the power of the Minister under subsection (4):

(a) the Commissioner (within the meaning of Part XVB);

(b) a Commission staff member (within the meaning of that

Part).

269ZZYH Disclosure of information

(1) The Commissioner (within the meaning of Part XVB), or a

Commission staff member (within the meaning of that Part), may

disclose information (including personal information) obtained

under this Part to an officer of Customs for the purposes of a

Customs Act.

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Customs Act 1901 211

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Interaction with the Privacy Act 1988

(2) For the purposes of the Privacy Act 1988, the disclosure of

personal information under subsection (1) is taken to be a

disclosure that is authorised by this Act.

Definition

(3) In this section:

personal information has the same meaning as in the Privacy Act

1988.

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Part XVI Regulations and by-laws

Section 270

212 Customs Act 1901

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Part XVI—Regulations and by-laws

270 Regulations

(1) The Governor-General may make regulations not inconsistent with

this Act prescribing all matters which by this Act are required or

permitted to be prescribed or as may be necessary or convenient to

be prescribed for giving effect to this Act, and in particular for

prescribing:

(a) the nature, size, and material of the packages in which

imported goods or goods for export, or goods for conveyance

coastwise from any State to any other State, are to be packed,

or the coverings in which they are to be wrapped;

(b) the maximum or minimum weight or quantity of imported

goods, or goods for export, or goods for conveyance

coastwise from any State to any other State which may be

contained in any one package;

(d) the conditions as to purity, soundness, and freedom from

disease to be conformed to by goods for export; and

(e) the conditions of carriage of goods subject to customs

control, and the obligations of persons accepting such goods

for carriage.

(1A) The regulations may make provision for and in relation to the

following:

(a) the charging and recovery of fees in respect of any matter

under this Act or the regulations;

(b) the way, including the currency, in which fees are to be paid;

Commonwealth;

(d) the remission, refund or waiver of fees of a kind referred to in

paragraph (a) or the exempting of persons from the payment

of such fees.

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Section 271

Customs Act 1901 213

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(2) The regulations may prescribe penalties not exceeding $1,000 in

respect of any contravention of any of the regulations.

(3) The power to make regulations for the purposes of the definition of

airport shop goods in subsection 4(1) extends to making

regulations that:

(a) declare local use goods to be airport shop goods for the

purposes of section 96B; or

(b) declare a class of local use goods, or a class of goods that

includes local use goods, to be a class of airport shop goods

for the purposes of that section.

(3A) Where, in any regulations made for the purposes of this Act,

reference is made to the document known as the Australian

Harmonized Export Commodity Classification published by the

Australian Bureau of Statistics, that reference shall, unless the

contrary intention appears in those regulations, be read as a

reference to that document as so published and as in force from

time to time.

(4) The power to make regulations for the purposes of

paragraph 96B(3)(b) or (c) extends to making regulations that

prescribe quantities in relation to airport shop goods that are local

use goods.

(5) In subsections (3) and (4), local use goods means goods:

(a) that have not been, and are not proposed to be, imported into

Australia; and

(b) that have not been, and are not proposed to be, exported from

Australia.

(6) Regulations for the purposes of Subdivision B of Division 1 of

Part XII must not prescribe an Act unless the Act deals with a

subject matter in relation to which UNCLOS gives Australia

jurisdiction.

271 Comptroller-General of Customs may make by-laws

Where:

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Section 272

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(a) an item of a Customs Tariff, or a proposed item of a Customs

Tariff, is expressed to apply to goods, or to a class or kind of

goods, as prescribed by by-law; or

(b) under an item of a Customs Tariff, or a proposed item of a

Customs Tariff, any matter or thing is expressed to be, or is

to be determined, as prescribed or defined by by-law;

the Comptroller-General of Customs may, subject to the

succeeding sections of this Part, make by-laws for the purposes of

that item or proposed item.

272 By-laws specifying goods

The Comptroller-General of Customs may specify in a by-law

made for the purposes of an item, or a proposed item, of a Customs

Tariff that is expressed to apply to goods, or to a class or kind of

goods, as prescribed by by-law:

(a) the goods, or the class or kind of goods, to which that item or

proposed item applies;

(b) the conditions, if any, subject to which that item or proposed

item applies to those goods or to goods included in that class

or kind of goods; and

which that item or proposed item applies.

273 Determinations

(1) The Comptroller-General of Customs may determine, by

instrument in writing, that, subject to the conditions, if any,

specified in the determination, an item, or a proposed item, of a

Customs Tariff that is expressed to apply to goods, or to a class or

kind of goods, as prescribed by by-laws shall apply, or shall be

deemed to have applied, to the particular goods specified in the

determination.

(2) The Comptroller-General of Customs may make a determination

under the last preceding subsection for the purposes of an item, or

a proposed item, of a Customs Tariff whether or not he or she has

made a by-law for the purposes of that item or proposed item.

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Section 273A

Customs Act 1901 215

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(3) Where, under this section, the Comptroller-General of Customs

determines that an item, or a proposed item, of a Customs Tariff

shall apply, or shall be deemed to have applied, to goods, that item

or proposed item shall, subject to this Part and to the conditions, if

any, specified in the determination, apply, or be deemed to have

applied, to those goods as if those goods were specified in a by-law

made for the purposes of that item or proposed item and in force on

the day on which those goods are or were entered for home

consumption.

273A By-laws and determinations for purposes of repealed items

The Comptroller-General of Customs may make a by-law or

determination for the purposes of an item of a Customs Tariff

notwithstanding that the item has been repealed before the making

of the by-law or determination, but the by-law shall not apply to,

and the determination shall not be made in respect of, goods

entered for home consumption after the repeal of that item.

273B Publication of by-laws and notification of determinations

(1) A by-law made under this Part:

(a) shall be published in the Gazette, and has no force until so

published;

(b) shall, subject to this Part:

(i) take effect, or be deemed to have taken effect, from the

date of publication, or from a date (whether before or

after the date of publication) specified by or under the

by-law; or

(ii) have effect or be deemed to have had effect, for such

period (whether before or after the date of publication)

as is specified by or under the by-law.

(2) Notice of the making of a determination under this Part shall be

published in the Gazette as soon as practicable after the making of

the determination and the notice shall specify:

(a) the kind of goods to which the determination applies;

(b) the conditions, if any, specified in the determination; and

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Section 273C

216 Customs Act 1901

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determination was made.

273C Retrospective by-laws and determinations not to increase duty

This Part does not authorize the making of a by-law or

determination which has the effect of imposing duty, in relation to

goods entered for home consumption before the date on which the

by-law is published in the Gazette or the determination is made, as

the case may be, at a rate higher than the rate of duty payable in

respect of those goods on the day on which those goods were

entered for home consumption.

273D By-laws and determinations for purposes of proposals

Where:

(a) a by-law or determination is made for the purposes of a

Customs Tariff proposed in the Parliament or of a Customs

Tariff as proposed to be altered by a Customs Tariff

alteration proposed in the Parliament; and

(b) the proposed Customs Tariff becomes a Customs Tariff or

the proposed alteration is made, as the case may be;

the by-law or determination shall have effect for the purposes of

that Customs Tariff or of that Customs Tariff as so altered, as the

case may be, as if the by-law or determination had been made for

those purposes and the proposed Customs Tariff or the Customs

Tariff as proposed to be altered, as the case may be, had been in

force on the day on which the by-law or the determination was

made.

273EA Notification of proposals when House of Representatives is

not sitting

(1) The Minister may, at any time when the Parliament is prorogued or

the House of Representatives has expired by effluxion of time, has

been dissolved or is adjourned otherwise than for a period not

exceeding 7 days, publish in the Gazette a notice that it is intended,

within 7 sitting days of the House of Representatives after the date

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Section 273F

Customs Act 1901 217

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of the publication of the notice, to propose in the Parliament a

Customs Tariff or Customs Tariff alteration in accordance with

particulars specified in the notice and operating as from such time

as is specified in the notice, not being:

(a) in the case of a Customs Tariff or Customs Tariff alteration

that could have the effect of making the duty payable by any

person importing goods greater than the duty that would, but

for that Customs Tariff or Customs Tariff alteration, be

payable—a time earlier than the time of publication of the

notice; or

(b) in any other case—a time earlier than 6 months before the

time of publication of the notice.

(2) Where notice of intention to propose a Customs Tariff or a

Customs Tariff alteration has been published in accordance with

this section, the Customs Tariff or Customs Tariff alteration shall,

for the purposes of this Act (other than section 226) and any other

Act, be deemed to be a Customs Tariff or Customs Tariff

alteration, as the case may be, proposed in the Parliament.

273F Interpretation

(1) In this Part:

proposed item of a Customs Tariff means:

(a) an item of a Customs Tariff proposed in the Parliament; or

(b) an item of a Customs Tariff as proposed to be altered by a

Customs Tariff alteration proposed in the Parliament.

(2) Unless the contrary intention appears, a reference in this Part to an

item of a Customs Tariff includes a reference to a heading and a

subheading in Schedule 3 to the Customs Tariff Act 1995.

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Section 273G

218 Customs Act 1901

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Part XVII—Miscellaneous

273G Briefing of Leader of Opposition on certain matters

The Minister shall, from time to time, and not less frequently than

once each year, arrange for the Leader of the Opposition in the

House of Representatives to be briefed on matters relating to

contraventions of this Act in respect of narcotic substances.

273GAA Notices

(1) Where a person makes a decision to which subsection (2) applies

in relation to a warehouse licence or a broker’s licence, the person

shall cause to be served, either personally or by post, on the

applicant or the holder of the licence, as the case requires, a notice

in writing setting out the decision.

(2) For the purposes of subsection (1), the following decisions are

decisions to which this subsection applies:

(a) a decision under Part V refusing to grant a warehouse

licence;

(b) a decision under subsection 82(5) refusing to vary the

conditions specified in a warehouse licence;

warehouse licence;

(d) a decision under Division 3 of Part XI refusing to grant a

broker’s licence;

(e) a decision under subsection 183CF(1) or (2) refusing to vary

the endorsements on a broker’s licence;

(f) a decision under subsection 183CG(7) refusing to vary the

conditions specified in a broker’s licence.

(3) Where a Collector makes:

(a) a decision under section 95 refusing to cancel a valuation of

warehoused goods and to revalue the goods; or

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(b) a decision under subsection 97(1) refusing to grant

permission to the owner of warehoused goods;

the Collector shall cause to be served, either personally or by post,

on the owner of the goods, a notice in writing setting out the

decision.

(4) Where the Comptroller-General of Customs makes a decision

under section 118 not to grant a Certificate of Clearance, he or she

shall cause to be served, either personally or by post, on the

applicant for the Certificate, a notice in writing setting out the

decision.

(5) Where a Collector makes a decision under section 126 refusing to

allow the export of goods by a person, he or she shall cause to be

served, either personally or by post, a notice in writing setting out

the decision on the person.

(7) A notice in accordance with section 86 to the holder of a

warehouse licence shall state the ground or grounds on which the

notice is given.

(8) A notice under subsection 87(2) of the cancellation by the

Comptroller-General of Customs of a warehouse licence shall set

out the findings of the Comptroller-General of Customs on

material questions of fact, refer to the evidence or other material on

which those findings were based and give the reasons for the

cancellation.

(9) A notice under subsection 183CS(1) shall set out the ground or

grounds of the decision of the Comptroller-General of Customs to

which the notice relates.

(10) A reference in this section to a notice in writing setting out the

decision of a person is a reference to a notice in writing setting out

the decision and the person’s findings on material questions of fact,

referring to the evidence or other material on which those findings

were based and giving the reasons for the decision.

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Section 273GAB

220 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

273GAB Authorisation to disclose information to an officer

(1) A person may disclose to an officer information about any matter

relating to actual or proposed travel:

(a) of any person or goods on the way (directly or indirectly) to

Australia; or

(b) involving the departure from Australia of any person or

goods;

even if the information is personal information (as defined in the

Privacy Act 1988).

Note: An officer is obliged to handle personal information in accordance

with the Privacy Act 1988. Part 6 of the Australian Border Force Act

2015 also limits the recording and disclosure of information disclosed

to the officer under this section.

(2) To avoid doubt, this section does not:

(a) require anyone to disclose information to an officer; or

(b) affect a requirement of or under another provision of this Act

for a person to disclose information to an officer (whether by

answering a question, by providing a document or by other

means).

273GA Review of decisions

(1) Subject to this section, applications may be made to the

Administrative Appeals Tribunal for review of the following:

(aa) a determination by the Comptroller-General of Customs for

the purposes of subsection 28(2);

(ab) a determination by the Comptroller-General of Customs for

the purposes of subsection 28(3);

(a) a decision of a Collector under section 35A making a

demand;

(aaa) a decision by the Comptroller-General of Customs for the

purposes of paragraph 58A(6)(c) refusing to authorise a

journey;

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(aaac) a decision by the Comptroller-General of Customs under

section 67ED to refuse to register a person as a special

reporter;

(aaad) a decision by the Comptroller-General of Customs under

section 67EK to refuse to renew a person’s registration as a

special reporter;

(aaae) a decision by the Comptroller-General of Customs under

section 67EM to cancel the registration of a special reporter

generally or in relation to low value cargo of a particular

kind;

(aaaf) a decision by the Comptroller-General of Customs under

section 67G to refuse to register a person or a partnership as a

re-mail reporter;

(aaag) a decision by the Comptroller-General of Customs under

section 67G or 67J to impose a condition on a re-mail

reporter’s registration;

(aaah) a decision by the Comptroller-General of Customs under

section 67J to vary a condition of a re-mail reporter’s

registration;

(aaai) a decision by the Comptroller-General of Customs under

section 67K to cancel a re-mail reporter’s registration;

(aab) a decision by an officer under section 69 to refuse to grant a

permission under that section;

(aaba) a decision by an officer under section 69 to impose a

condition on a permission given under that section;

(aac) a decision by an officer under section 69 to revoke a

permission granted under that section;

(aad) a decision by an officer under section 70 to refuse to grant a

permission under that section;

(aae) a decision by an officer under section 70 to revoke a

permission granted under that section;

(aaf) a decision by an officer under section 71 to refuse to

authorise the delivery of goods into home consumption;

(aafa) a decision by an officer under section 71AAAC or 71AAAM

to suspend an authority to deliver goods into home

consumption;

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(aafb) a decision by an officer under section 71AAAN to cancel an

authority to deliver goods into home consumption;

(aag) a decision by an officer under section 71C or 71DJ to cancel

or suspend an authority to deal with goods;

(aah) a decision by an officer under section 71E to refuse an

application of a permission to move goods;

(aaq) a decision by the Comptroller-General of Customs under

section 77G not to grant a depot licence;

(aar) a decision by the Comptroller-General of Customs under

section 77J not to extend the period within which further

information concerning a depot licence application is to be

supplied;

(aara) a decision by the Comptroller-General of Customs under

subsection 77LA(1) not to vary a depot licence;

(aarb) a decision by the Comptroller-General of Customs under

subsection 77LA(3) not to allow a further period;

(aas) a decision by the Comptroller-General of Customs under

section 77P not to grant an extension of time;

(aat) a decision by the Comptroller-General of Customs under

section 77Q to impose conditions on a depot licence or to

vary the conditions of a depot licence;

(aau) a decision by the Comptroller-General of Customs under

section 77V to suspend a depot licence;

(aav) a decision by the Comptroller-General of Customs under

section 77VC to cancel a depot licence;

(b) a decision of the Comptroller-General of Customs or a

Collector for the purposes of Part V;

(baaa) a decision of the Comptroller-General of Customs under

section 102F to give a direction;

(baa) a decision of the Comptroller-General of Customs giving an

approval, or refusing to give an approval, under

paragraph 105(2)(a);

(ba) a decision by the Comptroller-General of Customs under

section 114B to refuse to grant a person confirming exporter

status;

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(bb) a decision by the Comptroller-General of Customs under

section 114B to cancel or modify a person’s status as a

confirming exporter;

(bc) a decision by an officer under section 114C to cancel or

suspend an authority to deal with goods;

section 118 not to grant a Certificate of Clearance;

(d) a decision by a Collector under section 126 refusing to allow

the export of goods;

(e) a decision of the Comptroller-General of Customs under

section 132B making a quota order;

(f) a decision of the Comptroller-General of Customs under

section 132C varying a quota order;

(h) a decision of the Comptroller-General of Customs under

subsection 161J(2) specifying a rate of exchange;

(haaa) a decision of a Collector under section 163 in relation to an

application for a refund, rebate or remission of duty;

(j) a decision of the Comptroller-General of Customs under

section 164B;

(ja) a decision of the Comptroller-General of Customs under

subsection 165(3) to make a demand for payment of an

amount of drawback, refund or rebate of duty that was

overpaid;

(jb) a decision of a Collector under section 168 in relation to an

application for a drawback of duty;

(jc) a decision of the Comptroller-General of Customs to refuse

to enter into a trusted trader agreement under

subsection 176A(1);

(je) a decision of the Comptroller-General of Customs to vary,

suspend or terminate a trusted trader agreement under

subsection 178A(1);

(k) a decision of the Minister, the Comptroller-General of

Customs, or a Collector for the purposes of Part XI;

(m) a decision under subsection 269H(1) to reject an application

for a TCO;

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Section 273GA

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(maa) a decision under subsection 269L(4) to the effect that the

Comptroller-General of Customs is not satisfied that a

proposed amendment of a description of goods to be covered

by a TCO does not contravene subsection 269L(3):

(ma) a decision of the Comptroller-General of Customs under

section 269HA rejecting a TCO application;

(n) a decision of the Comptroller-General of Customs under

section 269SH on a reconsideration of a decision of the

Comptroller-General of Customs under subsection 269P(1);

(o) a decision of the Comptroller-General of Customs under

section 269SH on a reconsideration of a decision of the

Comptroller-General of Customs under subsection 269Q(1);

(p) a decision of the Comptroller-General of Customs under

subsection 269SA(1) or (2);

(q) a decision of the Comptroller-General of Customs under

section 269SH on a reconsideration of a decision of the

Comptroller-General of Customs under subsection 269SC(1);

(r) a decision of the Comptroller-General of Customs under

section 269SH on a reconsideration of a decision of the

Comptroller-General of Customs under subsection 269SC(4);

(s) a decision by the Comptroller-General of Customs under

subsection 269SD(1AB), (1), (1A), (2), (2A) or (5).

(2) Where a dispute referred to in subsection 167(1) has arisen and the

owner of the goods has, in accordance with that subsection, paid

under protest the sum demanded by the Collector, an application

may be made to the Tribunal for review of the decision to make

that demand and of any other decision forming part of the process

of making, or leading up to the making of, that first-mentioned

decision.

(3) Subsection 119(3) does not apply where a Certificate of Clearance

is granted to the ship or aircraft referred to in that subsection as a

result of a review by the Tribunal.

(5) An application may not be made to the Tribunal under

subsection (2) unless the application is made within the time

specified in paragraph 167(4)(a) or (b), whichever is appropriate.

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Section 273H

Customs Act 1901 225

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

(6) Where the owner of goods has made an application to the Tribunal

under subsection (2), he or she is not entitled to bring an action

under subsection 167(2).

(6A) An application may not be made to the Tribunal in respect of a

decision under section 269SH on a reconsideration of a decision of

the Comptroller-General of Customs under subsection 269P(1),

269Q(1) or 269SC(1) or (4) unless the person who makes the

application to the Tribunal is:

(a) an affected person within the meaning of section 269SH; and

(b) is adversely affected by the decision on the reconsideration.

(7) Where, on an application made under subsection (2), the Tribunal

has made a decision reviewing a demand made by the Collector,

the proper duty payable in respect of the goods concerned shall be

deemed to be:

(a) the sum determined to be the proper duty by, or ascertained

to be the proper duty in accordance with:

(i) the decision of the Tribunal; or

(ii) an order of a court on appeal from that decision; or

(b) the sum paid under protest;

whichever is the less.

(8) In this section, decision has the same meaning as in the

Administrative Appeals Tribunal Act 1975.

273H Review of decisions under Customs Tariff Act

(1) Applications may be made to the Administrative Appeals Tribunal

for review of a decision of the Comptroller-General of Customs

under section 9 of the Customs Tariff Act 1995.

(2) In subsection (1), decision has the same meaning as in the

Administrative Appeals Tribunal Act 1975.

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Part XVII Miscellaneous

Section 273K

226 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

273K Statement to accompany notification of decisions

(1) Where notice in writing of the making of a decision of a kind

referred to in subsection 273GA(1) or (2) or section 273H is given

to a person whose interests are affected by the decision, that notice

shall include a statement to the effect that, subject to the

Administrative Appeals Tribunal Act 1975, application may be

made to the Administrative Appeals Tribunal for review of the

decision to which the notice relates by or on behalf of the person or

persons whose interests are affected by the decision.

(2) Any failure to comply with the requirements of subsection (1) in

relation to a decision does not affect the validity of the decision.

273L Entry and transmission of information by computer

If this Act requires or permits information (including information

in the form of particular words) to be entered or transmitted by

computer, the information may be entered or transmitted by

computer in an encoded form chosen by the Comptroller-General

of Customs.

274 Commissioned ships and aircraft to be reported

The person in command of any ship or aircraft holding commission

from His Majesty or from any foreign State having on board any

goods other than ship’s or aircraft’s stores laden in a place outside

Australia or in Australia shall when called upon by the

Comptroller-General of Customs or an authorised officer so to do:

(a) deliver an account in writing of the quantity of such goods,

the marks and numbers thereof, and names of the shippers

and consignees, and declare to the truth thereof;

(b) answer questions relating to such goods.

275 Commissioned ships and aircraft may be searched

Ships or aircraft under commission from His Majesty or any

foreign State having on board any goods other than ship’s or

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Section 275A

Customs Act 1901 227

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aircraft’s stores laden in a place outside Australia or in Australia

may be boarded and searched by the Comptroller-General of

Customs or an authorised officer in the same manner as other ships

or aircraft, and the Comptroller-General of Customs or the

authorised officer may secure any such goods and for that purpose

bring them ashore.

275A Direction not to move a ship or aircraft from a boarding

station

(1) Where a Collector considers that it is desirable, for the purposes of

this Act, to hold a ship or aircraft at a boarding station, the

Collector may, by notice in writing delivered to the master of the

ship or the pilot of the aircraft before it leaves the boarding station,

direct the master or pilot not to move the ship or aircraft from the

boarding station until the master or pilot receives permission, in

writing, from a Collector to do so.

(2) A person shall not disobey a direction given to him or her, and in

force, under this section.

Penalty: 100 penalty units.

(2A) Subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Where a direction not to move a ship or aircraft from a boarding

station has been given under subsection (1):

(a) the direction ceases to have any force or effect at the

expiration of a period of 3 days after the day on which the

direction is given; and

(b) no further direction in respect of the ship or aircraft shall be

given while the ship or aircraft remains at the boarding

station.

(4) If a Collector (not being the Comptroller-General of Customs)

gives a direction under subsection (1) not to move a ship or aircraft

from a boarding station, the Collector must as soon as practicable

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Section 276

228 Customs Act 1901

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notify the Comptroller-General of Customs of the giving of the

direction.

(5) Where:

(a) a ship or aircraft is held at a boarding station by virtue of a

direction given under subsection (1); and

(b) the Comptroller-General of Customs is satisfied that no

purpose of this Act is served by holding the ship or aircraft at

the boarding station;

he or she shall forthwith revoke the direction.

(6) In proceedings for an offence under this section with respect to a

direction, a certificate by a person referred to in the last preceding

subsection that he or she is satisfied that, up to the time the offence

is alleged to have been committed:

(a) the permission referred to in the direction had not been given;

and

(b) the direction had not been revoked;

is prima facie evidence of the matters as to which the person has

certified that he or she is satisfied.

276 Collector’s sales

As to sales by the Collector:

(a) The goods shall be sold by auction or by tender and after

such public notice as may be prescribed, and where not

prescribed after reasonable public notice.

(b) The goods may be sold either subject to duty and charges or

at a price that includes duty and charges and the price shall

be paid in cash on the acceptance of the bidding or tender.

goods may be re-offered until sold at a price satisfactory to

the Collector.

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Section 277

Customs Act 1901 229

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277 Proceeds of sales

(1) The proceeds of any goods sold by the Collector shall be applied as

follows:

Firstly, in the payment of the expenses of the sale.

Secondly, where the price for the goods includes duty, in payment

of the duty.

Thirdly, in payment of the warehouse rent and charges.

Fourthly, in payment of the harbour and wharfage dues and freight

if any due upon the goods if written notice of such harbour and

wharfage dues and freight shall have been given to the Collector.

And the balance if any shall be paid to the Finance Minister on

account of the person entitled thereto.

(2) For the purposes of section 132, goods to which subsection (1) of

this section applies on which duty has not been paid shall be taken

to have been entered for home consumption on the day on which

the goods are sold by the Collector.

277A Jurisdiction of courts

(1) A provision of the Judiciary Act 1903 by which a court of a State is

invested with federal jurisdiction has effect, in relation to matters

arising under this Act, as if that jurisdiction were so invested

without limitation as to locality other than the limitation imposed

by section 80 of the Constitution.

(2) Subject to the Constitution, jurisdiction is conferred on the several

courts of the Territories, within the limits of their several

jurisdictions, other than limits as to locality, with respect to matters

arising under this Act.

(3) The trial of an offence against a provision of this Act not

committed within a State may be held by a court of competent

jurisdiction at any place where the court may sit.

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Schedule I The Commonwealth of Australia

230 Customs Act 1901

Compilation No. 145 Compilation date: 1/7/17 Registered: 12/7/17

Schedule I—The Commonwealth of Australia

Security to the Commonwealth

By this Security the subscribers are, pursuant to the Customs Act 1901, bound to

the Commonwealth of Australia in the sum of—[here insert amount or mode of

ascertaining amount intended to be paid in default of compliance with

condition]—subject only to this condition that if—[here insert the condition of

the security]—then this security shall be thereby discharged.*

Dated the day of 19 .

Names and descriptions Signatures of Signatures of

of subscribers subscribers witnesses

*NOTE—If liability is not intended to be joint and several and for the full amount, here state what

is intended as, for example, thus—“The liability of the subscribers is joint only,” or

“the liability of (mentioning subscriber) is limited to (here state amount of limit of

liability or mode of ascertaining limit).”

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澳大利亚

AU446

Customs Act 1901 (consolidated as of July 1, 2017)