EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 176
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulation 2012 (No. 6)
Subsection 270(1) of the Customs Act 1901 (the Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.
The purpose of the Regulation is to amend the Customs Regulations 1926 (the Principal Regulations) to add Cape Verde, Montenegro, Samoa, Saudi Arabia, Tonga and Ukraine to Schedule 1B of the Principal Regulations. This is consistent with Australia’s obligations under the Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement).
Under Part XVB of the Act, anti-dumping measures may be taken in respect of goods whose exportation to Australia involves a dumping of those goods that injures, or threatens to injure, Australian industry.
Section 269TAC of the Act provides various methods for assessing the ‘normal value of goods’ exported to Australia. The purpose of assessing the normal value of goods is to compare it with the ‘export price’ in order to determine whether the goods are being sold in Australia at less than their normal value (that is, ‘dumped’). A determination that goods exported to Australia are being dumped can ultimately lead to the imposition of dumping duty on the goods under the Customs Tariff (Anti-Dumping) Act 1975.
Subsection 269TAC(1) sets out a primary method for assessing the normal value of goods and subsequent subsections set out a range of alternative methods that may be used in particular circumstances.
Subsection 269TAC(1) provides for the normal value of goods to be set at the price paid for like goods sold in the ordinary course of trade for home consumption in arms length transactions in the country of export. This is the standard method used for assessing the normal value of goods in relation to countries that have market economies.
Subsection 269TAC(5D) sets out the basis for determining the normal value of goods where the country of export has an economy in transition, that is, a formerly
centrally-planned economy moving towards a market economy. The standard method of calculating the normal value of goods cannot be used in an economy in transition because the government, as opposed to market forces, influence the domestic price of goods. An example would be, raw material inputs to the goods being supplied by a government owned enterprise at prices that do not substantially reflect free market conditions.
Subsection 269TAC(5J) enables regulations to be made which remove the method provided by subsection 269TAC(5D) as an option for assessing the normal value of goods exported from a specified country. The effect of this is that a country specified in the regulations can no longer be treated as having an economy in transition and the normal value of goods can instead be assessed using the standard method.
Importantly, subsection 269TAC(5J) provides that regulations may only be made under that subsection for the purposes of fulfilling Australia’s international obligations under an international agreement.
Australia is a signatory to the Anti-Dumping Agreement. Under this agreement Australia is obliged to disapply the ‘economies in transition’ provisions in the Act to World Trade Organisation (WTO) members unless otherwise provided in a country’s accession protocol. Cape Verde, Montenegro, Samoa, Saudi Arabia, Tonga and Ukraine have recently become members of the WTO and there is nothing in their accession protocols which would allow Australia to depart from its obligations under the Anti-Dumping Agreement.
Regulation 182 of the Principal Regulations provides that subsection 269TAC(5D) does not apply to a country mentioned in Schedule 1B to the Principal Regulations.
The Regulation adds Cape Verde, Montenegro, Samoa, Saudi Arabia, Tonga and Ukraine to Schedule 1B to the Principal Regulations to ensure that the 'economies in transition' provisions in subsection 269TAC(5D) of the Act do not apply to those countries, and subsequently the normal value of goods for these countries will be determined using the standard method in determining whether goods are being dumped.
The Regulation implements an international obligation under and international agreement. No consultation with industry was conducted in respect of the changes made by the Regulation.
The Regulation commences on the day after it is registered.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs Amendment Regulation 2012 (No. 6)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
This Regulation amends the Customs Regulations 1926 (the Principal Regulations) add Cape Verde, Montenegro, Samoa, Saudi Arabia, Tonga and Ukraine to Schedule 1B of the Principal Regulations.
The effect of this is to disapply the ‘economies in transition’ provisions in assessing the normal value of goods when making a determination whether goods have been dumped. Where it is determined that goods have been dumped, dumping duty may be imposed on the goods under the Customs Tariff (Anti-Dumping) Act 1975.
Treating these countries in this way is consistent with Australia’s obligations under the Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement).
The Regulation commences on the day after registration.
Human Rights implications
This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
This legislative instrument does not raise any human rights issues.
Minister for Home Affairs