EXPLANATORY STATEMENT
Issued by the authority of the Minister for Home Affairs
Customs Amendment (Anti-dumping Measures) Act 2011
Proclamation
Item 2 of subsection 2(1) of the Customs Amendment (Anti-dumping Measures) Act 2011 (the Act) provides for Schedule 1 to the Act to commence on a single day to be fixed by Proclamation.
Item 2 also provides that if the provisions in Schedule 1 do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period.
The purpose of the Proclamation is to fix 24 October 2011 as the day on which Schedule 1 to the Act commences.
Schedule 1 to the Act amends the Customs Act 1901 (the Customs Act) to insert a legislative test outlining when the Chief Executive Officer of Customs (the CEO) may recommend that the Minister revoke anti-dumping measures. Schedule 1 also amends the Act to introduce procedural requirements to allow the CEO to recommend, and for the Minister for Home Affairs to declare, that anti-dumping measures be revoked at the conclusion of a review.
These amendments are designed to clarify the test applying to the revocation of anti-dumping measures and respond to the decision of the Full Federal Court in Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003..
Authority: Subsection 2(1) of the Customs Amendment
(Anti-dumping Measures) Act 2011
Overview
The Customs Amendment (Anti-dumping Measures) Act 2011 was enacted to address a gap in the existing legislative framework concerning the revocation of anti-dumping measures. This Act, proclaimed by the Minister for Home Affairs, was introduced in response to the need for greater clarity and procedural safeguards in the revocation process. Specifically, the Act aims to establish a legislative test that the Chief Executive Officer of Customs can apply when recommending the revocation of anti-dumping measures, and to introduce procedural requirements that allow for the recommendation and subsequent ministerial declaration of revocation. These amendments were necessitated by the Full Federal Court's decision in Minister of State for Home Affairs v Siam Polyethylene Co Ltd, which highlighted the need for clearer guidelines and processes in this area. The Proclamation, which sets 24 October 2011 as the commencement date for these changes, is a legislative instrument under the Legislative Instruments Act 2003.
Scope and Application
The Customs Amendment (Anti-dumping Measures) Act 2011 applies to entities and individuals involved in international trade, particularly those subject to anti-dumping measures. The Act amends the Customs Act 1901 to refine the conditions under which the Chief Executive Officer of Customs may recommend the revocation of anti-dumping measures, and to establish procedures for the review and potential revocation of these measures by the Minister for Home Affairs. This legislative adjustment aims to provide clarity and legal certainty in the application of anti-dumping duties, reflecting the Federal Court’s decision in Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86. The geographic scope of the Act is national, as it pertains to federal customs laws and practices in Australia. The Act does not specify exclusions or thresholds but operates within the framework of existing trade laws. The commencement of the Act's provisions is subject to a proclamation, which in this instance, has been set for 24 October 2011, ensuring that the legislative changes are implemented within six months of Royal Assent unless otherwise specified.
Key Provisions
The Customs Amendment (Anti-dumping Measures) Act 2011 introduces specific provisions to refine the conditions under which the Chief Executive Officer (CEO) of Customs may recommend the revocation of anti-dumping measures, as outlined in Section 1(1) of Schedule 1. This legislative change aims to provide a clear legal test for the CEO to follow when considering the recommendation for revocation, addressing the need for clarity as identified in the decision of the Full Federal Court in Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86. Additionally, Section 1(2) to Section 1(4) of Schedule 1 introduces procedural requirements that allow the CEO to recommend and for the Minister for Home Affairs to declare the revocation of anti-dumping measures at the conclusion of a review. These sections ensure that the process for revoking anti-dumping measures is both transparent and legally sound.
The Act imposes certain obligations on the CEO and the Minister for Home Affairs to adhere to the legislative test and procedural requirements. The CEO must follow the outlined test when considering whether to recommend the revocation of anti-dumping measures. This includes assessing whether the dumping of goods has ceased or is likely to cease, and whether the revocation would be in the public interest. The Minister for Home Affairs, upon receiving the CEO's recommendation, must then follow the prescribed procedures to make a declaration regarding the revocation. These obligations ensure that the decision-making process is rigorous and based on clear legal criteria.
Breaching the obligations and requirements set forth in the Act may have significant consequences. While the Act does not explicitly detail specific offences or penalties for non-compliance, the inherent legal framework under which the Act operates implies that failure to adhere to the prescribed procedures and tests could lead to legal challenges or judicial review. The seriousness of these consequences underscores the importance of strict compliance with the Act's provisions. It is essential that the CEO and the Minister for Home Affairs meticulously follow the outlined steps to avoid any potential legal repercussions.