Janelle Saffin (Page, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Customs Amendment (Anti-dumping Measures) Bill 2011 and, in so doing, I want to outline, firstly, just what the bill means and why it is necessary. The bill contains amendments to the Customs Act 1901 and obviously concerns antidumping measures. On the face of it, it seems like a simple measure but it is not that simple when you actually read the number of amendments that are required. The amendments will actually clarify circumstances in which the Minister for Justice may revoke antidumping measures as a consequence of review.

Currently, there is no legislated revocation test. The existing legislation does not set out the grounds upon which the minister should revoke measures following a review. The bill responds to a decision of the Federal Court in the Minister of State for Home Affairs and Siam Polyethylene case. In the absence of an express revocation test, the full Federal Court imported the same test that applies before measures can be imposed following an initial investigation. That caused lack of certainty and a lack of clarity. With any legislative framework, particularly when you are dealing with customs and antidumping, you cannot have that lack of clarity and lack of certainty. Everybody needs to know exactly what is going on and what will happen, particularly when you are dealing with procedural matters.

The upshot of the Federal Court's decision was that the minister must be satisfied that if measures have not been taken there would now be grounds to impose them. In a sense, the finding creates a problem because if measures are in place and effective there may not be current dumping or subsidisation causing injury. The outcome could mean that it would be inconsistent with the objects of the antidumping system. That is really the upshot of the Federal Court decision, because there was what they construed to be an absence of this legislative test and the court said that that needed to be fixed.

These amendments will clearly clarify that. The minister, in his second reading speech, addressed the problem. He said that the amendments will cement the existing practice of Customs, which would treat revocation reviews as different in kind from reviews adjusting or updating the level of the measures. In essence, that is what the Federal Court decision changed.

It will require an affected party to provide evidence that there are reasonable grounds for asserting that measures are no longer warranted. The amendments clarify that if affected parties want the minister to revoke measures they must actually apply and must do so at the outset of a review process or within 40 days of a review commencing. It would not be something that could be imposed as a right without them applying for it. They could end up with it being applied when they do not really want it and they have not requested it.

As the minister said, the Siam decision is problematic for two reasons. Firstly, the case highlighted that lack of clarity in the review process that I referred to and, secondly, a new test was formulated through the court's decision. It was not that the court actually formulated a new test, but the upshot of the decision was that a new test was put in place. The minister also referred in the second reading speech to the established practice for the Customs and Border Protection Service. He said that, prior to the Siam decision to conduct reviews consistent with the nature of the review request, if there was no request for measures to be revoked Customs would not consider whether measures ought to be revoked. I covered that in the beginning, and that is the thing that creates the uncertainty and the lack of clarity, and that is what this amendment actually sets out to fix and correct. That formulation is a problematic one, and it is necessary to have this amendment so that is all put beyond doubt. It will be a clearer test and it will revert any unnecessary revocation happening.

There are some other issues that have arisen. Some people have said, 'Is this related to the Productivity Commission?'—they are being asked to review the antidumping system—but it is not. It is a separate thing. It was a problem that was thrown up, arising out of a Federal Court decision. This amendment will correct that and put that beyond doubt. I note that the opposition announced a coalition task force looking at antidumping policy but, again, I do not see that related to this either. This is just a pretty straightforward measure to correct the uncertainty that has been thrown up.

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