EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 354
Issued by the Authority of the Minister for Home Affairs
Customs Act 1901
Customs Amendment Regulations 2009 (No. 8)
Section 270 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.
The purpose of the amending Regulations is to add Vietnam to the list of countries that are not subject to the additional anti-dumping provisions that apply to countries that have an economy in transition. This amendment gives effect to Australia's decision to recognise Vietnam's full market economy status as part of the Agreement establishing the Association of Southeast Asian Nations (ASEAN)-Australia-New Zealand Free Trade Area, done at Thailand on 27 February 2009 (the Agreement). The Agreement will be implemented in Australia by the Customs (ASEAN-Australia-New Zealand Free Trade Agreement Implementation) Act 2009.
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. Goods are taken to have been dumped if the export price of those goods is less than the normal value of those goods.
Section 269TAC of the Act sets out how the normal value of goods exported to Australia is to be calculated. Where the country of export has an economy in transition, that is, a formerly centrally-planned economy moving towards a market economy, subsection 269TAC(5D) sets out a different basis for determining the normal value of goods.
Subsection 269TAC(5J) provides that the regulations may disapply subsection 269TAC(5D) to a country for the purposes of fulfilling Australia's international obligation under an international agreement.
Regulation 182 of the Customs Regulations 1926 (the Principal Regulations) provides that subsection 269TAC(5D) does not apply to a country mentioned in Schedule 1B to the Principal Regulations.
The amending Regulations add Vietnam 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 Vietnam.
Australian industry representative bodies were consulted in April 2008 regarding the proposed implementation of a market economy status for Vietnam. No further consultation was undertaken as the amending Regulations are consequential to the implementation of Australia's international obligations under the Agreement.
The amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
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Overview
The Customs Amendment Regulations 2009 (No. 8) were introduced to amend the Customs Act 1901, reflecting Australia's recognition of Vietnam's full market economy status. Enacted by the Minister for Home Affairs, these regulations were issued under section 270 of the Act, which empowers the Governor-General to create regulations to ensure the Act's provisions are effectively implemented. The primary objective of these amendments is to align with the Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area, executed on 27 February 2009. By adding Vietnam to the list of countries exempt from additional anti-dumping provisions applicable to economies in transition, the regulations facilitate smoother trade relations and comply with Australia's international trade obligations. This amendment ensures that the provisions concerning the calculation of normal values for goods exported from Vietnam are in line with market economy principles, rather than those applicable to transitioning economies.
Scope and Application
The Customs Amendment Regulations 2009 (No. 8) pertain to the Customs Act 1901, focusing specifically on the adjustments to anti-dumping measures applicable to countries with economies in transition. This legislative instrument seeks to incorporate Vietnam into the list of nations exempt from the additional anti-dumping provisions typically enforced against countries with transitioning economies. This change aligns with Australia's recognition of Vietnam's full market economy status, as formalised in the Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area. This recognition is integral to the effective implementation of the Customs (ASEAN-Australia-New Zealand Free Trade Agreement Implementation) Act 2009. By amending Regulation 182 of the Customs Regulations 1926, Vietnam is added to Schedule 1B, thereby ensuring that the special provisions for economies in transition do not apply to it. The regulations, which follow from the international obligations set out in the aforementioned Agreement, commenced on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Customs Amendment Regulations 2009 (No. 8) amend the Customs Regulations 1926 by adding Vietnam to Schedule 1B (Regulation 182). This amendment is significant as it ensures that Vietnam is no longer subject to the additional anti-dumping provisions that apply to countries with economies in transition. This change aligns with Australia’s decision to recognise Vietnam's full market economy status, reflecting its commitment under the Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area.
The obligations imposed by these Regulations primarily concern the application of anti-dumping measures. Under Section 270 of the Customs Act 1901, the Governor-General can make regulations necessary to give effect to the Act. The Regulations ensure that when Vietnam exports goods to Australia, the standard provisions for determining the normal value of those goods apply, rather than the special provisions for countries with economies in transition. This alignment with market economy standards is crucial for maintaining fair trade practices and avoiding undue disadvantages for Australian industries.
Failure to comply with the provisions of the Customs Act 1901 and the Customs Regulations 1926 can result in significant consequences. Section 286 of the Act outlines various offences, including the making of false statements or providing false information, which can attract penalties of up to $22,000 for individuals and $110,000 for corporations. Additionally, Section 287 imposes penalties for contravening the Act, including imprisonment for up to two years for individuals and fines of up to $22,000 for corporations. The Regulations themselves do not specify penalties but ensure that the legal framework supports the enforcement of these penalties.
In summary, the Customs Amendment Regulations 2009 (No. 8) serve to integrate Vietnam's market economy status into Australia's customs regulations, thereby streamlining the application of anti-dumping measures. The Regulations impose clear obligations on entities involved in importing goods from Vietnam, ensuring compliance with fair trade principles. Non-compliance can lead to serious civil and criminal penalties, underscoring the importance of adhering to the amended regulations.