Richard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Fisheries and Forestry) Share this | Link to this | Hansard source

I rise to make my contribution on the Customs Amendment (Anti-dumping Measures) Bill 2013. This is the fifth instalment of antidumping legislation this government has presented. It has taken a while to get there, but we continue to go through the process. This piece of legislation does a couple of things. Firstly, it removes the minister's mandatory obligation to consider the so-called lesser duty rule. It also provides closer alignment of retrospective duties provisions within the relevant WTO agreements and introduces new anticircumvention provisions that widen the range of options available to government, including to address the practice of sales at a loss and attempts by foreign producers to evade the full payment of duties.

We have seen in recent weeks the concerns that industry players have expressed in relation to their competitiveness—particularly in the Shepparton district of Victoria, where SPC Ardmona has requested emergency assistance and consideration of emergency duties under the WTO provisions. I think that particular action by SPC Ardmona—their concern about their competitiveness and their concern that there may be countries who are dumping product into Australia—demonstrates the importance to this country of having effective antidumping measures.

Although I do accept that the government has made a number of changes—as I said, this is the fifth in a series of changes this government has made over the last couple of years—concerns exist in the broader community that the current regime remains expensive to access. The opposition has for a considerable period of time had an antidumping policy on the table. As with previous incarnations of changes made by the government, they go some way towards meeting the policy we have put in place. So we welcome them and we support this piece of legislation and the measures within it. I do not need to go into the details of the opposition's antidumping proposals. But I, along with a couple of others, was part of the task force that Mrs Mirabella put in place and I was really pleased to play a constructive part in the policy development. It is good to see that the government is slowly moving down the track of putting in place measures that could provide the capacity for protection.

In the case of SPC Ardmona, one of their concerns was that the New Zealand industry have had measures in place to support them against dumping for a period of time. So there has been a lot of discussion about whether or not there might be retaliatory action against Australia or Australian industry if we were to put in place emergency measures or countervailing measures under these emergency provisions and about what those emergency provisions might actually mean. But the rules exist under the WTO for a reason and that is that, if there is a problem there, it can be addressed. We should not be frightened of using the rules if there is a bona fide case. It is pleasing to note that the government has referred the request by SPC Ardmona to the Productivity Commission for review. The review will take about three months, as I understand it—and we did have some questions to the Productivity Commission at estimates a few weeks ago. It is pleasing that the government has taken the action of making that reference but it is disappointing that it has taken about six weeks.

I have had the opportunity to spend a bit of time in Shepparton over the last few weeks. I was there about a month ago talking to some really smart young farmers who had taken the effort to set themselves up and plan for their business. They realised that the industry they were in is not really a long-term one and they had set themselves up to turn over about 10 per cent of their orchard on an annual basis so that they could move with the times. But the SPC decision had completely gazumped their plans. They were bringing in new varieties. They had set up a nursery. They were providing plants and trees to other growers in the region so that they could build a critical mass to develop markets locally and internationally if they were able to get into those markets. But this decision by SPC Ardmona, because of the pressure they are under, particularly from imports, really gazumped them. They were in a situation where, rather than turning over 10 per cent of their orchard on an annual basis, they were going to have to take 50 per cent of it out. And that had made a really big impact on their business plan and how they were operating.

We have had discussions in this place over the last few weeks about the government's farm assistance program, which still is not up and running. I talked to those young farmers about the opportunities that might exist under the low-interest loans the government is proposing but which it still cannot come to an agreement with the states about. The protection and the assistance they might have been looking for could be drastically assisted by a progression of the case SPC Ardmona currently has in front the Productivity Commission. That could put assistance in place, as I understand it, for a period of 200 days, to provide some temporary protection—to give SPC Ardmona breathing space.

This piece of legislation does not specifically deal with those particular issues, but it is part of the broader package providing the protection that Australian industry might need when businesses from other countries might be dumping product on the Australian market. We often hear the term—I think it has even been mentioned in the chamber here today—of 'fair trade'. We like to see, as much as possible, fair trade take place, but we know that, in the broader rough and tumble of the market, businesses often take the opportunity to sell below the cost of production or below market value. It is in those circumstances that we want to give the Australian business community some protection. So where a business is selling below the cost of production in their local market, or below what a reasonable market price might be, it is reasonable for an Australian industry to expect some support. That is the circumstance that exists with SPC Ardmona. They are concerned that there is product coming in from other nations—I have seen the retail prices—which might be selling for $1.60 or $1.80 per can when the SPC Ardmona price is closer to $4 or $5 per can. That is a particular issue. We need to provide the industry the time and the space to transition.

It was interesting that the young farmers I was talking to talked about the process of canning as being something that was not necessarily going to be around the Australian market for long. That says to me that SPC Ardmona need to do some work on their technologies and put some investment into their business. They say that they have invested a lot but they need to be progressive about that. We need to give them the space to do that so that they can put new products into the market and so that they can change their packaging regimes and provide more attractive products to the local market.

These farmers said to me that, if the dollar got down to about 80c, they could not grow enough fruit. So we also know about the general economic conditions that exist. We have talked about this in previous debates. The cost of government applied to industry is a problem but the dollar has also had a significant impact. So how do we make sure that when we get into a circumstance such as the one we have just seen, where the dollar has been well over US$1.00 or US$1.10 for a period of time, those core industry assets survive through that time? It is a really difficult problem to consider because the rest of the community—the non-rural community, or the non-manufacturing community in a lot of senses—get a benefit from that value of the dollar. They receive lower priced product coming in from overseas. How do we maintain those assets into the long term? How do we give producers the capacity—how do we encourage them—to survive through those periods of time so that they can maintain and sustain the industries, and the businesses that supply them, into the longer term?

In the context of this piece of legislation the changes to the lesser duty rule will ease the current restrictions on the minister's ability to choose whether to apply the full margin of duty in order to remedy the impact of a dumping activity. The coalition supports that. Under article 9.3 of the WTO agreement on dumping, antidumping duties may not exceed the dumping margin calculated during an investigation. But under Australia's laws, as they stand, we have been limited by further provisions that force the minister to consider the lesser duty rule in every case. So we support the changes being made in this circumstance.

The changes to the retrospective notice provision essentially gives the minister more scope and discretion in making decisions about the level and timing of duties to be retrospectively applied to companies that have dumped goods in Australia. Again, the opposition supports those measures.

The new anticircumvention provisions are chiefly aimed at more aggressively countering the practice of sales at a loss, where a foreign producer off-loads excess stock in Australia at a loss. They also target various other flaws in existing arrangements relating to circumvention, including by adding scope consideration of the export price as a variable factor in relation to reviews and providing anticircumvention inquiries with new means for calculation of the export price.

The changes give the minister increased scope and discretion in considering the level of duties and the timing of their application and to impose duties on companies found to have dumped in Australia. Importantly, they reduce inconsistencies between the approach in Australian and other jurisdictions.

I have had cause to have discussions with officials in estimates over recent years about Australia's antidumping regime. We have been told, in a number of those conversations, that we were regarded by others outside as having global best practice. There are many in Australia who would interpret that as Australia being a pretty easy touch—that it is pretty easy to get things past us. There is no question in my mind that we need to have legislation that is compliant with our WTO requirements. And we need to be prepared to use the rules that exist for our benefit under those WTO requirements. We ought to do all of those things.

To make our approach more consistent with other countries' jurisdictions, I think is a positive move. In our own policy we have stressed the aim of more closely aligning our rules here in Australia with other jurisdictions and to crack down on those from overseas who do not cooperate with Australia when we are investigating dumping claims. That can be a very difficult part of the process. Trying to get information in another jurisdiction, getting through their local processes and getting into their systems can be extremely difficult. That can be used to string out a claim, it can be used to make it very difficult to investigate, it can be used to delay the process and it can even be used to prevent a proper investigation. If people are going to make it hard for us to genuinely investigate a claim, there should be some way for us to deal with that. I think that is only reasonable.

The coalition will be supporting the legislation. We do note that there are a number of amendments that will be placed in this debate by other members. We certainly acknowledge the work that Senator Xenophon has done on this. We know that it is a concern of his. We appreciate his cooperation with the shadow minister, Mrs Mirabella, and the work that he has done in talking to us in developing his amendments. We do not support all of the amendments that Senator Xenophon is putting up, because we consider that they are largely dealt with through existing laws and that WTO agreements provide the necessary scope and discretion to make the kinds of changes and enforce the kinds of decisions at which governments are aimed. But we do recognise the importance of having a very sound antidumping regime for Australia.

As I have said, we have a circumstance right now where SPC Ardmona feel that they are under fire. In my home town of Devonport, Simplot are looking at their plant—the last place in Australia that snap-freezes vegetables. We will not be able to buy Australian grown snap-frozen vegetables if that plant closes. It would be a crying shame if that happened. That business is, right now, conducting an intensive review of its operations to decide whether it will survive beyond the next three to five years. We need to be doing everything we possibly can, and getting out of their way where we should, to ensure they can survive. It is even worse for that company in Bathurst, where they are looking at perhaps 12 months survival. In Devonport, where I live, $18 million goes into the rural sector from that plant, from peas, beans, broccoli, carrots, cauliflower and brussels sprouts—one of my favourites; I like my brussels sprouts—and even broad beans, which look like they could make a comeback. That would be a bit of a test for some, but I do not mind broad beans either.

We need to make sure that the appropriate protections are available for those businesses and industries through our antidumping measures, so the opposition welcome this piece of legislation. We indicate our support for it. There will obviously be further debate through the chamber today. We note that it is the fifth small set of antidumping changes that have been made over the time of this government. We have supported all of those. They bring the government progressively closer to the coalition's policy. We look forward to the further debate and the amendments being put, particularly those being moved by Senator Xenophon. We thank him for his work on those amendments.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens have been supportive of the government's reforms to strengthen antidumping legislation to provide greater protection to Australian manufacturers. However, we believe there are some further key amendments that would assist Australian companies to more readily establish a case of dumping and compete on a level playing field with our trading partners. That is obviously a key issue for all exporters, and even importers, in this country.

The Greens are proposing two amendments to the Customs Amendment (Anti-dumping Measures) Bill 2013 to address gaps in the legislation in relation to determining 'normal value' where a market situation is found in antidumping investigations and making import data more accessible, particularly to companies filing complaints. In the first amendment, we seek to include a new subsection in section 269TAC to provide that, where the minister is satisfied that costs of goods are affected by a particular market situation—that is, that sales in the market are not suitable for use in determining a price under normal circumstances—the minister can determine the normal value of the goods, having regard to all relevant information. Like anything relating to market efficiency and business decisions, information is the key. The need to have access to all relevant information is the main point that we want to stress here. There cannot be anything wrong with providing more information and more transparency to help fix potential problems. 'All relevant information' can include records kept by the exporter reflecting the costs associated with the production and sale of like goods.

The amendment is based on counsel advice provided to the International Trade Remedies Forum. Australia has granted China market economy status for antidumping purposes. The amendment seeks to reduce the advantage of competitor countries that do not consider China a market economy and enhance our ability to remedy dumping from industries in non-market economies.

Another issue that has been raised and which would be familiar to those who have been following this issue for some time, and no doubt everyone in this chamber has been, is the difficulty sometimes faced by people who want to either bring complaints or potentially elevate that to proceedings when they feel they have been a victim of dumping. The amendment moved by the Greens would allow persons to have access to import data. This is essentially the same kind of import data that is already required to be provided. It would assist in the enforcement of the measures contained in this bill. I commend these amendments to the Senate.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

At the outset, I want to make it clear that I support the measures in the Customs Amendment (Anti-dumping Measures) Bill 2013, but I do not believe they go far enough. An analogy, though perhaps a crude one, is to say: it is a bit like a patient who is seriously ill and needs 200 milligrams of an antibiotic to make sure they get better but is only given 50 milligrams. It might help a little but it will not solve the long-term problems. But I do acknowledge the work of Minister Clare, of his office, his staff—Mr Quadrio in particular—and his departmental officers for the time they spent discussing these issues with me. It was a genuinely good consultation.

I have spoken in this place before about the importance of supporting Australian businesses against dumping. I acknowledge that the government has made real improvements to Australia's antidumping and countervailing system, but there is still much more to be done. I note that this bill is time limited, so I will keep my remarks brief. But I want to put this in perspective.

Dumping is effectively where goods are being sent to this country at a cost below their market cost in their home country. In other words, they are literally being dumped—and that costs jobs, costs opportunities and destroys Australian manufacturing. It is completely unfair. And the WTO rules say that dumping is not allowed.

My concern is that we take such a literal interpretation of the WTO rules that no other country does as we do. I was struck by a conversation I had with Michael O'Connor, a national secretary of the CFMEU who, I think, does have a genuine concern about jobs and manufacturing in this country. What Michael O'Connor said to me a year or two ago, which has stuck in my mind, was that he was at a conference in Sweden talking about the timber industry, trade issues and jobs and that when he said he was from Australia, some of the other delegates from Scandinavia laughed at him and said, 'Australia! We regard you as the free trade Taliban, because you take such a literal, literalist, fundamentalist approach to the WTO rules that no other country does.'

I will give you an example. Solar panels were being dumped in the United States and in Europe. The United States and Europe are acting against China in relation to those dumped solar panels. What do we do? We have just about one remaining solar manufacturer in this country, Tindo Solar in Adelaide—I note the Prime Minister was there a few months ago to open up their facility—and they are operating at something like 10 per cent of their capacity because they have to compete with dumped products from overseas. My fear is that, because Europe and the United States are putting up countervailing duties or, rather, duties in relation to dealing with the dumping from China, those dumped panels will end up here in Australia because we seem to have had an approach to date that has been completely unsatisfactory.

Although I do want to acknowledge the work that Minister Clare and the minister before him, Minister O'Connor, have done on this, I think we need to be more flexible and creative in the way we approach these cases—so that we comply with WTO rulings but still put our own industries first. We should have fair trade. We should have free trade. But it should not be free-for-all trade. That free-for-all approach is putting our manufacturers and industries under ever-increasing pressure.

That has been coupled with an artificially strong Australian dollar—and it is still too strong, compared to what it ought to be, according to many commentators. So our manufacturers are struggling. Look at the level of quantitative easing in the United States; although Mr Bernanke is now backing away from that, it affected the value of their dollar previously. So in the United States there has been a massive stimulus and a quantitative easing package. The yen is lower than it ought to be; it has been artificially manipulated, some would say. And China's currency, the renminbi, is even worse—it is fixed by the government. There is not a level playing field when it comes to issues of currency.

The Prime Minister's Taskforce on Manufacturing released a report in August last year that estimated that 950,000 people were employed in manufacturing and stated that it contributes eight per cent of GDP directly. That does not include the significant amount it contributes indirectly through flow-on effects to businesses. But, as I have also stated, over the last four years 100,000 jobs have disappeared from the sector—and that is a conservative estimate. The report also estimates that another 85,600 jobs, at a minimum, may be lost in the next five years. That is close to 200,000 Australian families that will have lost their jobs in manufacturing. That includes food processing—I saw that Senator Colbeck made reference to that earlier. We are facing a situation where the last remaining frozen food facility in Australia might be closing down in the next three to five years. So, if you are going to buy any frozen vegetables in this country, they will be coming from overseas. How can we allow that to happen in a country that is so abundant in its food production capacity and has one of the world's best reputations for clean, green produce? Yet we are looking at losing that facility.

Between 2008 and 2010, capital expenditure by the manufacturing industry decreased by 20 per cent, or $4.1 billion. There has been a 55 per cent drop in furniture manufacturing, for example, plus a 43 per cent drop in printing and a 10 per cent drop in machinery and equipment manufacturing. Our mining boom has meant that we have taken our eye off the ball when it has come to manufacturing. We have also forgotten that, without a manufacturing industry, we lose something that is incredibly valuable. We lose something as a nation that cannot be replaced. We lose those skills. We lose the ability to make things ourselves. We lose the ability to export to other countries. We lose innovation. That is a key issue and one of the reasons our car manufacturing industry is so important in this country. To the Holden workers who are listening, who worked at Elizabeth in South Australia: I understand, and many others here understand, the importance of your industry.

For each of the major manufacturers that are at risk, there are smaller component manufacturers that depend on them for a living. The multiplier effect, the economic impact and the string of job losses linked to these major manufacturers are huge. It is estimated that if Holden were lost from South Australia that would mean something like 16,000 jobs would be lost. I dread to think what that would do to the northern suburbs of Adelaide. I do not want the northern suburbs of Adelaide to be turned into some sort of industrial wasteland. We must fight against that. We must do everything possible from a sensible policy point of view to make sure that does not happen. But, even further than that, if we lose our manufacturing capability, we lose our independence. That is something I know Senator Madigan has been very passionate about and I have been very privileged to be part of the Australian Manufacturing and Farming Program, which he instigated and leads. We can already see some sectors where skill shortages have led employers to bring in overseas workers on 457 visas, but we do not seem to be doing anything to address why those skills, education and basic training shortages happen in the first place. Protecting Australian industry is about more than protecting the big car manufacturers, which is very important; it is about protecting our skills and our future.

I will be moving a number of amendments to this bill, but this debate is time limited. For those out there listening, I say it is not a good way for the Senate to operate as a genuine house of review to have bill after bill being time limited with the guillotine provision. I agree with what Senator Madigan said previously in this place: if I am ever in a position where my vote as to whether there is a guillotine may count, I can tell people on both sides of the chamber that you can forget about it. If you want to sit here on Saturdays and Sundays, week after week, until we sort out the legislation, so be it. I think Senator Madigan is of the same view—and he is indicating that now.

I will be moving some amendments to this bill and speaking to them. I do need to acknowledge that there is an improvement in the system. We have a situation where, for instance, a company like Tindo Solar, with 18 employees, were quoted $1 million to run an antidumping case. At least now, through the government's initiative, there is a mechanism—a support system or advocate—that they can go to who is very well regarded in the industry. I genuinely commend the government on that because it is an improvement. Those small manufacturers like Tindo Solar would not have had a chance in hell to even look at such a case otherwise, so that is a clear improvement. Minister Clare and his office, and Minister O'Connor before him, deserve to receive credit for.

But this bill does not address some fundamental issues, which is why I will introduce amendments. If I may obtain your guidance, Mr Acting Deputy President, I have amendments to move, but because of the time limits involved Senator Madigan has indicated that he wishes to co-sponsor these amendments with me and I am very pleased for him to be able to do that. But I am not sure whether I should seek leave from the chamber to add Senator Madigan's name to the amendments.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Xenophon, an indication, as you have made, is enough.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is fine, and I am grateful for that and grateful for Senator Madigan's support in co-sponsoring these amendments.

The first lot of amendments are to the second reading motion. For those out there listening intently, the issue is this: an amendment to the second reading motion does not bind the government of the day. It is not part of the legislation itself, but it does send a clear statement from the Senate asking for something to be done. These amendments to the second reading motion, jointly moved with Senator Madigan, call on the government to commission an independent review into several issues regarding the antidumping system.

Firstly, the review should consider the current provisions relating to 'particular market situations'—I put that in quotation marks because that is a specific term of art in the legislation—and whether they are sufficient in outlining the circumstances where our market is not suitable in determining a normal value of a product. A normal value, as defined, is the expected retail value of a product in its domestic market. It forms an integral part of an antidumping case. However, some markets do not operate on the same commercial terms as Australia and that is something we need to consider.

Just last night, there was the Four Corners story about the clothing industry in Bangladesh and the recent disaster and tragedy there, where over 1,120 people were killed and a further 2,500 people were injured when a factory collapsed. We have heard countless terrible stories of child labour, of people paid tiny sums of money to work excessive hours and of workers locked in buildings and subject to unimaginable conditions. We have also heard stories of rainforests being cleared and cheap timber dumped on the Australian market, with huge environmental impacts. I wonder to what extent dumped products were responsible for the over 200 jobs lost at the Kimberly-Clark factory in the south-east of South Australia—they clearly were—and whether any of those paper products were from rainforest timber. The controls and quality safeguards that apply to Australian manufactured products just do not exist in some other countries. Whether it is child labour, rainforest timber or virtual slave labour, these circumstances need to be considered when determining the so-called normal value of a product.

Secondly, the review will consider the application process, including the impacts on small businesses and the burden of proof that applicants carry. I plead with the opposition, given the statements of Sophie Mirabella, the shadow minister with responsibility in this area, to seriously consider that. It is not forcing a change of the law; it is requesting, rather, a review of something as fundamental as this. In jurisdictions such as the European Union, the process is more supportive for applicants, particularly small businesses, with officials providing a higher level of guidance in terms of information required. Thirdly, the review will consider possible amendments to the way the export price is determined, similar to the previous amendment I moved with Senator Madigan.

The terms of reference for this review will be determined by the International Trade Remedies Forum and the review itself will be undertaken by an independent party. This amendment also states that the review should be undertaken within 12 months of the commencement of this bill and the report tabled in both houses of parliament. The issues outlined in this review need urgent consideration.

Changes in this area will make significant changes for Australian businesses and will further improve our antidumping and countervailing systems. This amendment to the second reading motion is about at least getting this process to improve on the existing amendments that are in place—the fifth or sixth tranche of amendments we have seen. This will go that step further to deal with issues that directly impact on small businesses in this nation.

I also have a number of amendments for the committee stage of the bill that I will be moving jointly with my colleague Senator Madigan. Item 1 inserts a new item into section 269TAB(1) which relates to the determination of export prices of goods exported into Australia. Determining the export price plays an important role in determining whether goods have been dumped in Australia. This particular amendment broadens the criteria to include the circumstances when an importer sells goods in Australia on less than profitable terms. This relates to when an importer is selling items at a price, if they were manufactured on a similar basis as like Australian products, that could not be retailing at a profit—for example, if an Australian manufacturer knows that the product usually costs $2 to make in Australia and an average of $1.80 globally but an importer is selling the item in Australia for $1. By reverse-engineering these figures, it is clear that the importer is selling goods below cost or dumping them into Australia. This amendment will give Australian manufacturers more flexibility when they are mounting dumping cases and recognises an issue that is currently not addressed in the act.

The aim of the second amendment is to make more import information available to Australian companies for the purpose of antidumping cases. I note the Australian Greens have a similar amendment, which I support, and I commend them for moving it. But this amendment is much broader and allows for the type of published information to be determined in the regulations. I note the government's concern about the amount of detail specified in the Greens amendment, so I intend this amendment to be a compromise between the two. I am very happy to support the Greens amendments and I understand that Senator Madigan is as well.

The purpose of the third amendment is to undertake a review of the antidumping provisions in the act. The aim of this is to ensure the government's reforms are operating effectively and to highlight any areas in need of further reform. It also states that the minister must table a copy of the report when completed.

The aim of the fourth amendment is to reverse the onus of proof in the act. Currently, Australian manufacturers must bear the onus of proof in dumping cases—that is, they must prove that dumping exists. This amendment places the onus of proof on exporters, so that when a complaint is made against them they must prove the complaint to be false. I believe it emphasises the need for Australia to be more flexible and creative about our approach to the WTO and trade in general—so we are not the free market Taliban, laughed about in other parts of the world.

I note that the opposition previously stated that they would support a reverse onus of proof. I refer to an opinion piece that shadow minister Sophie Mirabella wrote on 14 November 2011 in TheAustralian. She said the coalition policy would:

… also provide Australian authorities with a greater opportunity make use of preliminary affirmative determinations. For two months into an investigation, these PADs create a shift on the balance of an investigation, requiring the foreign producer (rather than the Australian company that believes it has been damaged by the dumping) to prove its conduct hasn't hurt the Australian industry.

I am asking the coalition to support my fifth amendment, which is directly modelled on what the coalition has said. My plea to this chamber is that we need to do more for Australian manufacturing. This is not about protectionism; it is about fairness. It is about Australia not being treated as mugs by the rest of the world when we are dealing with dumping cases. That is why these reforms are essential.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I am afraid that the time allotted for the consideration of these bills has expired. Senator Xenophon, before I put the question, can I confirm that you were seeking to add Senator Madigan's name to the second reading and committee stage amendments?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is correct.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that the second reading amendments on sheet 7425 revised, circulated in the names of Senators Xenophon and Madigan, be agreed to:

At the end of the motion, add "and the Senate:

(a) calls on the Government to commission an independent review of:

  (i) the definition of a 'particular market situation' under section 269TAC(2)(ii) of the Customs Act 1901 in order to better define the circumstances under which the situation in the market of the country of export is such that the market is not suitable for use in determining a 'normal value' under subsection 269TAC(1), and the related operation of sub-regulation 1802(b)(ii) of the Customs Regulations 1926;

  (ii) the application process and the current approved form for Application for Dumping and/or countervailing Duties (Form B108) under the Customs Act 1901, with specific reference to:

     (A) the current approach by the European Union,

     (B) the impact on small manufacturers, and

     (C) the burden of proof and establishing 'material harm', and

  (iii) a possible amendment to subsection 269TAB(1)(b) of the Customs Act 1901 to allow a further circumstance in which an export price may be determined by deductive means, where sales by an importer into the Australian market are on unprofitable terms;

(b) calls on the Government to refer these matters to the International Trade Remedies Forum to determine terms of reference for an independent review within 12 months of the commencement of the provisions in the Customs Amendment (Anti-dumping Measures) Bill 2013; and

(c) is of the view that:

  (i) such a review must have regard to matters including:

     (A) breaches of International Labour Organisation rules and/or conditions (such as those relating to underage labour); and

     (B) environmental issues (such as deforestation); and

  (ii) the report should be delivered to the Minister within 6 months of the commencement of the review, to be tabled in both houses by the Minister within 5 sitting days of receipt".

The Senate divided. [20:14]

(The Acting Deputy President—Senator Ludlam)

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that these bills be now read a second time.

Question agreed to.

Bills read a second time.

In respect of theee Customs Amendment (Anti-dumping Measures) Bill 2013, the question is that amendments (1) and (2) on sheet 7411 revised, circulated by the Australian Greens, be agreed to:

(1) Schedule 1, page 4 (after line 14), after item 6, insert:

6A Subsection 269TAC(2A)

  After subsection (2), add:

  (2A) Where the Minister is satisfied that because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1), regardless of subsection (5D), the normal value of goods is the amount determined by the Minister having regard to all relevant information, including by reference to costs of production calculated on the basis of records kept by the exporter or producer, provided that:

  (a) such records are in accordance with generally accepted accounting principles of the exporting country;

  (b) such records reasonably reflect the costs associated with the production and sale of the like goods under consideration; and

  (c) the costs incurred are not affected by the particular market situation.

(2) Schedule 1, page 4 (after line 14), after item 6, insert:

6B At the end of Division 1 of Part XVB

  Add:

269TBAA Access to import data

(1) For the purposes of subsection 16(2) of the Customs Administration Act 1985, a person is authorised to make a record of, and to disclose to any person, protected information (within the meaning of that section) that is import data.

(2) Despite section 12 of the Census and Statistics Act 1905 and any determination made under section 13 of that Act, the Statistician (within the meaning of that Act) must publish all import data.

(3) For the purposes of this section, import datameans the following information about individual shipments of goods exported to Australia:

  (a) country of origin;

  (b) the type of goods;

  (c) the volume of the shipment;

  (d) the value of the shipment;

  (e) any other details about the shipment of the goods specified by the Minister by legislative instrument.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 7418, circulated in the names of Senator Xenophon and Senator Madigan, be agreed to:

(1) Schedule 1, page 4 (after line 14), after item 6, insert:

6A At the end of Division 1 of Part XVB

  Add:

269TBAB Reporting information about imports into Australia

(1) The Commissioner must:

  (a) establish a publicly available free website; and

  (b) publish on the website, and keep updated, such information as prescribed by the regulation made for the purpose of this subsection.

(2) The regulation made for the purpose of paragraph (1)(a) must:

  (a) include details of the kind of information that the Commissioner must publish, and keep updated, on the website; and

  (b) include a requirement that the following information about individual shipments of goods exported to Australia be published on the website:

     (i) the country of origin of the shipment;

     (ii) the type of goods in the shipment;

     (iii) the volume of the shipment;

     (iv) the value of the shipment.

(3) Before recommending that the Governor-General make a regulation for the purpose of this section, the Minister must consult with the Commissioner about the kind of information that should be published on the website.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that amendments (1) to (7) on sheet 7428 circulated by Senators Xenophon and Madigan be agreed to:

(1) Schedule 1, page 13 (after line 19), at the end of the bill, add:

1 After paragraph 269TAB(1)(a)

  Insert:

  (b) in circumstances where the sale by the importer of the goods into the Australian market is on less than profitable terms.

(2) Schedule 1, page 13 (after line 19), at the end of the bill, add:

2 At the end of Division 1 of Part XVB

  Add:

269TBAB Reporting information about imports into Australia

(1) The Commissioner must:

  (a) establish a publicly available free website; and

  (b) publish on the website, and keep updated, such information as prescribed by the regulation made for the purpose of this subsection.

(2) The regulation made for the purpose of paragraph (1)(a) must:

  (a) include details of the kind of information that the Commissioner must publish, and keep updated, on the website; and

  (b) include a requirement that the following information about individual shipments of goods exported to Australia be published on the website:

     (i) the country of origin of the shipment;

     (ii) the type of goods in the shipment;

     (iii) the volume of the shipment;

     (iv) the value of the shipment.

(3) Before recommending that the Governor-General make a regulation for the purpose of this section, the Minister must consult with the Commissioner about the kind of information that should be published on the website.

(3) Schedule 1, page 13 (after line 19), at the end of the bill, add:

3 At the end of Part XVC

  Add:

269ZZYH Review of operation of Part XVB

(1) The Minister:

  (a) must cause the Forum to undertake a review (the first review) of the first 2 years of the operation of Part XVB as amended by the Customs Amendment (Anti-dumping Improvements) Act (No. 2) 2011; and

  (b) may cause the Forum to undertake a review (a subsequent review) of the operation of Part XVB during other specified periods.

(2) The Forum must give the Minister a written report of a review under this section:

  (a) in the case of the first review—within 6 months after the end of the 2 year period; and

  (b) in the case of a subsequent review—within 6 months after the end of the specified period to which the review relates.

(3) A review under this section must include an opportunity for interested parties and members of the public to make written submissions on the operation of Part XVB.

(4) Officers of Customs must, if requested to do so by the Forum, assist the Forum in:

  (a) conducting a review; and

  (b) preparing the written report of a review.

(5) The Minister must cause a copy of a report of a review under this section to be tabled in each House of the Parliament within 15 sitting days of that House after he or she receives the report.

(4) Schedule 1, page 13 (after line 19), at the end of the bill, add:

4 After section 269TDAA

  Insert:

269TDAAB Onus of proof if application not rejected

(1) If the CEO decides not to reject an application under subsection 269TB(1), the importer of the imported goods the subject of the application bears the onus of proving that the imported goods have not been:

  (a) dumped into Australia; or

  (b) subsidised for export into Australia.

(2) Any material lack of cooperation for the purposes of subsection (1) by the importer of the imported goods the subject of the application must give rise to the rebuttable presumption of dumping and/or subsidised export into Australia by the importer.

(5) Schedule 1, page 13 (after line 19), at the end of the bill, add:

5 After section 269TDAA

  Insert:

269TDAAB Onus of proof if preliminary affirmative determination made

(1) If the CEO makes a preliminary affirmative determination in respect of an application under subsection 269TD(1), the importer of the imported goods that is the subject of the application bears the onus of proving that the imported goods have not been:

  (a) dumped into Australia; or

  (b) subsidised for export into Australia.

(2) Any material lack of cooperation for the purposes of subsection (1) by the importer of the imported goods the subject of the application must give rise to the rebuttable presumption of dumping and/or subsidised export into Australia by the importer.

(6) Schedule 1, page 13 (after line 19), at the end of the bill, add:

6 Subsection 269T(1)

  Insert:

  International Trade Remedies Forum means the Forum established under Part XVC.

7 After subsection 269TC(4)

  Insert:

  (4A) If the CEO decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the CEO:

  (a) must have regard to any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

  (b) must consult the International Trade Remedies Forum and other persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations;

for the purposes of considering the application and making a recommendation to the Minister.

8 Subsection 269TD(1)

  Omit "60 days after".

9 At the end of paragraph 269TD(2)(a)

  Add:

     (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

10 At the end of paragraph 269TDAA(2)(a)

  Add:

     (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

11 After subsection 269TE(2)

  Insert:

  (2A) Subsection (2) does not preclude consideration by the CEO of:

  (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

  (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b).

12 At the end of paragraph 269TEA(3)(a)

  Add:

     (v) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

     (vi) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

13 After subsection 269TEB(4)

  Insert:

  (4A) If the CEO is considering the terms of an undertaking under subsection (2) or the revised terms of an undertaking under subsection (4), the CEO must have regard to:

  (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

  (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b);

for the purpose of that consideration.

14 Before subsection 269ZC(1)

  Insert:

  (1A) If an application for review of anti-dumping measures is lodged with Customs in accordance with section 269ZB, the CEO must, within 20 days after Customs receives the application, consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries.

15 Paragraph 269ZC(1)(b)

  Repeal the paragraph, substitute:

  (b) if the CEO is not satisfied in relation to the application, having regard to:

     (i) the application; and

     (ii) any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

     (iii) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

     (iv) any other information that the CEO considers relevant;

     of one or more of the matters referred to in subsection (2);

16 At the end of paragraph 269ZD(2)(a)

  Add:

     (iv) any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

     (v) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian as a consequence of consultations under subsection 269ZC(1A); and

17 Paragraph 269ZHD(1)(b)

  Repeal the paragraph, substitute:

  (b) if the CEO is not satisfied in relation to any of the applications, having regard to:

     (i) the application; and

     (ii) any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

     (iii) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

     (iv) any other information that the CEO considers relevant;

     of one or more of the matters referred to in subsection (2);

18 Before subsection 269ZHD(2)

  Insert:

  (1A) If an application for continuation of anti-dumping measures is lodged with Customs in accordance with section 269ZHC, the CEO must, within the 60 days referred to in paragraph 269ZHB(1)(b), consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries.

19 At the end of paragraph 269ZHE(2)(a)

  Add:

     (iii) any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

     (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

20 At the end of paragraph 269ZHF(3)(a)

  Add:

     (v) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

     (vi) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

21 After subsection 269ZZ(1)

  Insert:

  (1A) Subsection (1) does not preclude consideration by the Review Panel of:

  (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

  (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA or 269ZZQB.

22 After subsection 269ZZE(2)

  Insert:

  (2A) An applicant may, in an application for a review, provide new or updated information to the Review Panel that reasonably could not have been provided earlier.

23 After section 269ZZE

  Insert:

269ZZEA Consultation with International Trade Remedies Forum etc.

     In conducting a review under this Subdivision, the Review Panel must consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations.

24 Subsection 269ZZG(2)

  Omit "information", substitute ", including new or updated information that reasonably could not have been provided earlier,".

25 Subsection 269ZZK(6) (at the end of the definition of relevant information )

  Add:

     ; and (iii) that is new or updated information provided by an interested party that reasonably could not have been provided earlier; and

(e) any new or updated information for the purposes of the information to which paragraphs (a) to (d) relates that reasonably could not have been provided earlier; and

  (f) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA.

26 After paragraph 269ZZL(1)(a)

  Insert:

  (ab) in reinvestigating a finding or findings, have regard to any new or updated information that subsequently is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

27 After subsection 269ZZQ(1A)

  Insert:

  (1B) An applicant may, in an application for a review, provide new or updated information to the Review Panel that reasonably could not have been provided earlier.

28 After section 269ZZQA

  Insert:

269ZZQB Consultation with International Trade Remedies Forum etc.

     In conducting a review under this Subdivision, the Review Panel must consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations.

29 Subsection 269ZZS(3)

  Repeal the subsection, substitute:

(3) In making a decision under this section, the Review Panel may have regard to:

  (a) information that was before the CEO when the CEO made the reviewable decision; and

  (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

  (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

30 Subsection 269ZZT(4)

  Repeal the subsection, substitute:

(4) In making a decision under this section, the Review Panel may have regard to:

  (a) information that was before the CEO when the CEO made the reviewable decision; and

  (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

  (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

31 Subsection 269ZZU(3)

  Repeal the subsection, substitute:

(3) In making a decision under this section, the Review Panel may have regard to:

  (a) information of the kinds referred to in subsection 269X(5) that was before the CEO when the CEO made the reviewable decision; and

  (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

  (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

32 Subsection 269ZZUA(5)

  Repeal the subsection, substitute:

(5) In making a decision under this section, the Review Panel may have regard to:

  (a) information that was before the CEO when the CEO made the rejection decision; and

  (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

  (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

33 At the end of section 269ZZYC:

  Add:

  ; (c) to advise and provide information to the CEO in respect of applications under Part XVB or the terms of any undertakings to be made under that Part;

  (d) to advise and provide information to the Review Panel in respect of reviews undertaken by the Review Panel under Part XVB;

  (e) to undertake reviews under section 269ZZYH.

(7) Schedule 1, page 13 (after line 19), at the end of the bill, add:

Schedule 2—Further amendments

Customs Act 1901