Customs Act 1901

PART XVB - SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES

History

Pt XVB amended by No 32 of 2013, s 3 and Sch 1 items 10 - 14, effective 1 July 2013. For transitional provisions see note under the title of this Act.

[ CCH Note: Sch 4 of No 79 of 1998 provides for the following application, transitional and saving provisions which commenced on 24 July 1998.

Application, transitional and saving provisions

Definitions for the purposes of application, transitional and saving provisions generally
1
In this Schedule:
ADA Act
means the Anti-Dumping Authority Act 1988 .

affected party
has the same meaning as in Part XVB of the Customs Act.

Authority
means the Anti-Dumping Authority established by section 4 of the ADA Act.

CEO
has the same meaning as in the Customs Act.

Customs Act
means the Customs Act 1901 .

Dumping Duty Act
means the Customs Tariff (Anti-Dumping) Act 1975 .

importer
has the same meaning as in Part XVB of the Customs Act.

interim duty
has the same meaning as in Part XVB of the Customs Act.

negative preliminary decision
has the same meaning as in Part XVB of the Customs Act.

negative preliminary finding
, in relation to goods the subject of an application under section 269TB of the Customs Act, means a preliminary finding, under that Act, to the effect that:

(a) there are not sufficient grounds for publication of a dumping duty notice or a countervailing duty notice in respect of such goods; or

(b) there will not be sufficient grounds for such publication after the importation into Australia of such goods.

positive preliminary finding
, in relation to goods the subject of an application under section 269TB of the Customs Act, means a preliminary finding, under that Act, to the effect that:

(a) there are sufficient grounds for publication of a dumping duty notice or a countervailing duty notice in respect of such goods; or

(b) there will be sufficient grounds for such publication after the importation into Australia of such goods.

public record
has the same meaning as in Part XVB of the Customs Act.

reviewable decision
has the same meaning as in Division 9 of Part XVB of the Customs Act.

Review Officer
has the same meaning as in Part XVB of the Customs Act.

transfer day
means the day on which the items in Schedule 1 (other than item 39) commence.
Application provision
2(1)
The Customs Act, as amended by this Act, applies in relation to:

(a) all applications under section 269TB of that Act as so amended for publication of dumping duty notices or countervailing duty notices; and

(b) all applications under Division 4 of Part XVB of the Customs Act as so amended for assessment of the duty payable under the Dumping Duty Act on goods on which an interim duty has been or is paid, whether that interim duty was paid before, or is paid on or after, the transfer day; and

(c) all applications, under Division 5 of Part XVB of the Customs Act as so amended, for review of anti-dumping measures, whether those measures were imposed before, or are imposed on or after, the transfer day; and

(d) all applications, under Division 6 of Part XVB of the Customs Act as so amended, for the accelerated review of dumping duty notices or countervailing duty notices, whether those notices were published before, or are published on or after, the transfer day; and

(e) all applications, under Division 6A of Part XVB of the Customs Act as so amended, for continuation of anti-dumping measures, whether those measures were imposed before, or are imposed on or after, the transfer day; and

(f) all applications, under Division 9 of Part XVB of the Customs Act as so amended, for the review of reviewable decisions within the meaning of that Division made on or after the transfer day.

2(2)
Nothing in subitem (1) implies that the Customs Act as amended by this Act does not apply in any additional circumstance where it is expressed to apply because of the operation of item 3, 4, 5, 6, or 7.
Transitional provisions - decisions concerning rejection of applications under section 269TB of the Customs Act
3(1)
If, before the transfer day:

(a) an application is made under section 269TB of the Customs Act as then in force; but

(b) the CEO has neither made a decision to reject, nor made a decision not to reject, that application;
then:

(c) the application is to be treated, for all purposes, on and after that day, as if it were an application made under the Customs Act as amended by this Act; and

(d) the ADA Act does not apply in respect of that application.

3(2)
If, before the transfer day

(a) an application is made under section 269TB of the Customs Act as then in force; and

(b) the CEO decides to reject that application; and

(c) the applicant refers the decision to the Authority for review; but

(d) that review is not completed;
then:

(e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8 of the ADA Act; and

(f) if the Authority confirms the decision - the application lapses; and

(g) if the Authority revokes the decision - an investigation in respect of the application is to be initiated under the Customs Act as amended by this Act as if:

(i) the Customs Act as so amended had been in force when the application was made; and

(ii) the CEO had decided not to reject the application.

3(3)
If, before the transfer day:

(a) an application is made under section 269TB of the Customs Act as then in force; and

(b) the CEO decides to reject that application; and

(c) the applicant does not refer the decision to the Authority for review;
then:

(d) the application is to be dealt with, on or after that day, for all purposes (including working out time limits for a possible review of that decision by the Review Officer) as if the Customs Act as amended by this Act had been in force when the application was made; and

(e) the ADA Act does not apply in respect of the application.
Transitional provisions - Customs investigations that have not resulted in a preliminary finding before transfer day
4(1)
If:

(a) an application is made under section 269TB of the Customs Act as in force before the transfer day; and

(b) the CEO has initiated an investigation in respect of that application but has not, before that day, made a preliminary finding; and

(c) not more than 100 days have passed since the initiation of the investigation;
the investigation is to be treated, on and after that day, for all purposes, as if it had, at all times, been an investigation, under the Customs Act as amended by this Act, in respect of an application made under the Customs Act as so amended.

4(2)
For the purposes of so treating the investigation, and without limiting the generality of subitem (1):

(a) the time limits for the making of a preliminary affirmative determination, the placing of a statement of essential facts on the public record, and the making of a report in respect of the investigation to the Minister, under the Customs Act as amended by this Act, are to be worked out from the date of the actual initiation of the investigation under the Customs Act as in force before the transfer day; and

(b) if a preliminary affirmative determination is so made, securities may be imposed in accordance with subsection 269TD(3) of the Customs Act as so amended.
Transitional provisions - Customs investigations terminated before transfer day
5(1)
If:

(a) an application is made under section 269TB of the Customs Act as in force before the transfer day; and

(b) the CEO has initiated an investigation in respect of that application but decides, before that day, to terminate that investigation under section 269TDA of that Act as so in force; and

(c) not more than 100 days have passed between the initiation of the investigation and the making of that decision; and

(d) the applicant, before that day, refers the decision to the Authority for review under section 7A of the ADA Act but that review is not completed before that day;
then:

(e) the review is to continue to be dealt with by the Authority, on and after that day, under the ADA Act; and

(f) if the Authority confirms the decision - the investigation lapses; and

(g) if the Authority rejects the decision - the investigation is to be remitted to the CEO to be dealt with in accordance with subitem (2).

5(2)
If an investigation is remitted to the CEO in the circumstances set out in subitem (1):

(a) subject to paragraphs (b) and (c), the investigation is to be dealt with in the same manner as if it were an investigation in respect of an application made under section 269TB of the Customs Act as amended by this Act; and

(b) if, when the investigation is remitted, more than 110 days have passed since the date of initiation of the investigation - the CEO must place the statement of essential facts relating to the investigation on the public record as soon as practicable after the investigation is remitted; and

(c) the report on the investigation that is required to be made to the Minister is, in circumstances to which paragraph (b) applies, required to be so made within 45 days after the placing of the statement of essential facts on the public record.
Transitional provisions - positive preliminary finding made by CEO before transfer day
6(1)
If, before the transfer day:

(a) an application is made under section 269TB of the Customs Act as then in force; and

(b) the CEO makes a positive preliminary finding in respect of the application;
the CEO must, if he or she has not already done so;

(c) give public notice of that finding; and

(d) refer the question whether the publication of the notice sought in the application is justified to the Authority for determination under the ADA Act.

6(2)
If public notice of the finding is given on or after the transfer day, it is required to be given in accordance with section 269ZI of the Customs Act as in force immediately before that day.

6(3)
For the purposes of the operation of the ADA Act in respect of the referral of the question referred to in paragraph (1)(d), that referral is treated as having taken place under subsection 269TD(2) of the Customs Act as in force immediately before the transfer day, whether it took place before, or takes place on or after, that day.
Note:

The determination of a question referred to the Authority under subsection 7(1) of the ADA Act may involve the exercise of termination powers under section 7B of that Act or the acceptance of an undertaking under section 7C of that Act.

Transitional provisions - negative preliminary findings made by CEO before transfer day
7(1)
If, before the transfer day:

(a) an application is made under section 269TB of the Customs Act as then in force; and

(b) the CEO makes a negative preliminary finding in respect of the application; and

(c) the applicant refers the finding to the Authority for review; but

(d) that review is not completed;
then:

(e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8 of the ADA Act; and

(f) if the Authority confirms the finding - the investigation lapses; and

(g) if the Authority rejects the finding - the investigation is, despite the terms of subsection 8(2) of the ADA Act, to be remitted to the CEO.

7(2)
If, before the transfer day:

(a) an application is made under section 269TB of the Customs Act as then in force; and

(b) the CEO makes a negative preliminary finding in respect of the application; and

(c) the applicant does not refer the finding to the Authority for review; but

(d) the period for so referring the finding has not expired;
then:

(e) the applicant may refer the finding to the Authority as if the amendments of the Customs Act made by this Act had not been made; and

(f) if the applicant does so, the review is to be dealt with by the Authority, under section 8 of the ADA Act; and

(g) if the Authority confirms the finding - the investigation lapses; and

(h) if the Authority rejects the finding - the investigation is, despite the terms of subsection 8(2) of the ADA Act, to be remitted to the CEO.

7(3)
If an investigation is remitted to the CEO in the circumstances set out in subitem (1) or (2):

(a) subject to paragraphs (b) and (c), the investigation is to be dealt with in the same manner as if it were an investigation of an application made under section 269TB of the Customs Act as amended by this Act; and

(b) if, when the investigation is remitted, more than 110 days have passed since the date of initiation of the investigation - the CEO must place the statement of essential facts relating to the investigation on the public record as soon as practicable after the investigation is remitted; and

(c) the report on the investigation that is required to be made to the Minister is, in circumstances to which paragraph (b) applies, required to be so made within 45 days after the placing of the statement of essential facts on the public record.
Transitional provisions - applications for assessment of duty
8(1)
If, before the transfer day:

(a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and

(b) the CEO has not made a decision under subsection 269X(6) in relation to that application;
then, for the purpose of the CEO ' s dealing with that application on an after that day, Division 4 of the Customs Act as in force before that day continues to apply in relation to the CEO ' s consideration of the application as if the amendments of the Customs Act made by items 63, 64, 65 and 66 of Schedule 1 to this Act had not been made.

8(2)
If, before the transfer day:

(a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and

(b) the CEO has made a negative preliminary decision in relation to that application; and

(c) the applicant refers the negative preliminary decision to the Authority for review; but

(d) the review is not completed;
then

(e) the review is to continue to be dealt with by the Authority, on and after that day, under section 8B of the ADA Act; and

(f) section 269Y of the Customs Act has effect, on and after that day, in relation to any recommendation received by the Minister from the Authority, as if the amendment of that section made by item 69 of Schedule 1 to this Act had not been made.

8(3)
If, before the transfer day:

(a) an application is made under section 269V of the Customs Act as then in force requesting an assessment of duty on goods entered for home consumption during a particular importation period; and

(b) the CEO has made a negative preliminary decision in relation to that application; and

(c) the applicant does not refer the decision to the Authority for review; but

(d) the period for so referring the decision has not expired;
then:

(e) with effect from the transfer day, the applicant ' s right to refer the decision to the Authority for review is terminated but the applicant may instead, within the time limit that would have applied for so referring the decision, apply instead to the Review Officer to review the decision; and

(f) if the applicant does so, the review is to be dealt with by the Review Officer under Division 9 of the Customs Act as amended by this Act as if it were a review, sought in accordance with the requirements of that Division, of a decision made under the Customs Act as amended by this Act.
Saving provision - review of interim duty
9
If, before the transfer day:

(a) interim duty has been paid under the Dumping Duty Act on goods entered for home consumption under the Customs Act as in force before that day; and

(b) the CEO has received an application from an affected party, or a notice from the Minister, under Division 5 of Part XVB of the Customs Act as so in force, requesting a review of the rate of interim duty imposed on those goods;
that Division of the Customs Act as so in force continues to apply, on and after that day, in respect of that review as if the amendments of the Customs Act made by this Act had not been made.

Amending Act No 173 of 1989, s 9 provides:

(1)
Any act or thing done, including, but without limiting the generality of the foregoing, any determination made, any notice given or published, or any undertaking given or accepted, under a provision of the Customs Tariff (Anti-Dumping) Act 1975 that is repealed and re-enacted in similar form in a provision (in this subsection called the ' corresponding provision ' ) inserted in Part XVB of the Customs Act 1901 has effect, on and after the day this section commences, for all purposes, as if it were an act or thing done under the corresponding provision.

(2)
Any delegation under section 19 of the Customs Tariff (Anti-Dumping) Act 1975 of a power or function conferred on the Minister under a provision of that Act that is repealed and re-enacted in similar form in a provision (in this subsection called the ' corresponding provision ' ) inserted in Part XVB of the Customs Act 1901 , being a delegation that is in force immediately before the day this section commences, continues to have effect, on and after that day, for all purposes, as if it were a delegation under section 9 of the Customs Act 1901 of that power or function as conferred on the Minister by the corresponding provision.]

Division 1 - Definitions and role of Minister

View history reference

View history note

SECTION 269TAA ARMS LENGTH TRANSACTIONS

View history reference

269TAA(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

(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

View history reference

(c) in the opinion of the Minister the buyer, or an associate of the 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.

View history note

269TAA(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;

(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.

View history note

269TAA(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.

269TAA(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

(c) the likelihood that the amounts referred to in paragraphs (a) and (b) will be able to be recovered within a reasonable time; and

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

269TAA(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;

View history reference

(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

(c) one of them, being a body corporate, is, directly or indirectly, 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.

View history note

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