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 269TAAC DEFINITION - COUNTERVAILABLE SUBSIDY

View history reference

269TAAC(1)

View history reference

For the purposes of this Part, a subsidy is a countervailable subsidy if it is specific.

View history note

269TAAC(2) [Subsidy is specific]

Without limiting the generality of the circumstances in which a subsidy is specific, a subsidy is specific:

(a) if, subject to subsection (3), access to the subsidy is explicitly limited to particular enterprises; or

(b) if, subject to subsection (3), access is limited to particular enterprises carrying on business within a designated geographical region that is within the jurisdiction of the subsidising authority; or

(c) if the subsidy is contingent, in fact or in law, and whether solely or as one of several conditions, on export performance; or

(d) if the subsidy is contingent, whether solely or as one of several conditions, on the use of domestically produced or manufactured goods in preference to imported goods.

269TAAC(3) [Subsidy is not specific]

View history reference

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

(c) those criteria or conditions are neutral, do not favour 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.

View history note

269TAAC(4) [Minister ' s determination]

View history reference

The Minister may, having regard to:

(a) the fact that the subsidy program benefits a limited number of particular enterprises; or

(b) the fact that the subsidy program predominantly benefits particular enterprises; or

(c) the fact that particular enterprises have access to disproportionately large amounts of the subsidy; or

(d) the manner in which a discretion to grant access to the subsidy has been exercised;

determine that the subsidy is specific.

View history note

269TAAC(5) [Factors to consider]

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.

269TAAC(6)
(Repealed by No 123 of 2011)

View history note

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.