Customs Act Part XVB anti-dumping and anti-circumvention system

Part XVB framework and the Anti-Dumping Commission

Part XVB of the Customs Act 1901 establishes Australia’s anti-dumping and countervailing regime, operating with the Customs Tariff (Anti-Dumping) Act 1975. This framework allows for the imposition of measures designed to protect Australian industries. Sanctions compliance: DFAT framework

The Anti-Dumping Commission, headed by the Commissioner, holds the investigatory and decision-making powers within Part XVB. Anti-dumping measures are applied to goods exported to Australia at less than normal value, where this causes material injury to an Australian industry. Countervailing measures are applied to foreign government subsidies that injure Australian industry, as outlined in sections 269TJ and 269TK.

When measures are imposed, the Minister publishes a dumping duty notice under section 269TG.

Investigations and securities

Anti-dumping investigations commence when a representative of the Australian industry producing like goods files an application under section 269TB. Following the initiation of an investigation, the Commission is required to make a preliminary affirmative determination (PAD) no earlier than day 60, as outlined in section 269TD.

To mitigate potential injury to the Australian industry during the investigation period, provisional measures may be implemented after a PAD. These measures can include the imposition of securities. The investigation process generally concludes within 155 days, although this timeframe can be extended by the Minister. Carbon Border Adjustment Mechanism (CBAM) Australia considerations may also be relevant.

Prior to the Commissioner’s final recommendation to the Minister, a statement of essential facts (SEF) is published, detailing the findings of the investigation.

Calculating dumping and countervailing duties

The calculation of dumping duty involves determining the difference between the export price and the normal value of the goods. Normal value is typically established as the price at which like goods are sold for consumption within the country of export, occurring in the ordinary course of trade. The Minister ascertains both the export price and the normal value in this process.

A key constraint on the dumping duty is the non-injurious price (NIP). The duty imposed cannot exceed the amount necessary to eliminate injury to the Australian industry, as determined by the lesser duty rule. This ensures that the duty does not impose a greater burden than is required to address the injury caused by the dumping.

Countervailing duties are calculated differently; they equal the amount of any countervailable subsidy received by the exporter. Both dumping and countervailing duties take effect prospectively, applying from the date detailed in the Minister’s notice, published under either section 269TG or section 269TJ.

Anti-circumvention and reviews

Division 5A of Part XVB addresses anti-circumvention. An Australian industry representative may apply for an inquiry to investigate circumvention activities. These activities can take various forms, including minor alterations to goods, assembly within Australia, assembly in a third country, or export by parties not previously subject to the original measures. Defence Trade Controls (AUKUS amendment) may be relevant in certain circumstances.

If circumvention is established through an inquiry, the Commissioner has the authority to recommend amendments to the original dumping duty notice. This ensures that the intended protection for the Australian industry is maintained despite attempts to avoid the existing measures.

Division 5 provides a mechanism for reviews of existing measures and continuation inquiries. These processes allow for assessment of whether the measures remain necessary. Measures generally expire five years after their publication unless a continuation inquiry determines that they should remain in place.