Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

These bills were referred to the Senate Economics Legislation Committee and a number of concerns were raised in evidence that was presented to that committee. In particular, we heard very serious concerns being raised about the initiative the government was taking to abolish the International Trade Remedies Forum despite the fact that this body was established under legislation and is required to meet at least twice a year. It has, in fact, not been meeting, and the government has been in breach of that legislation. Labor, therefore, will be moving an amendment that retains the International Trade Remedies Forum. I understand that the government will be supporting this amendment. I trust that is the case.

I note that a number of other concerns were raised over the course of the inquiry regarding technical elements in the bills. To this end, Labor has called on the government to hold an urgent meeting of the International Trade Remedies Forum so that these issues can be addressed and to ensure that the antidumping system is operating effectively.

It is my understanding that our colleague Senator Xenophon is moving amendments that also seek to address issues raised over the course of the inquiry in relation to the definition of a subsidy and on the issue of the lesser duty rule. Labor acknowledges that stakeholders are concerned about the unintended consequences of the government's proposed changes to these issues, which is why we are working to ensure that the International Trade Remedies Forum remains in place and can investigate these concerns. However, we also understand that Senator Xenophon's amendments will have the effect of keeping Labor's previous regime in place until such time as stakeholders can work through these concerns. For this reason, Labor will be supporting Senator Xenophon's amendments, as they are consistent with the regime that Labor introduced while in government.

I also note that concerns were raised in the Senate inquiry by stakeholders regarding the proposal to introduce a fee for reviews by the Anti-Dumping Review Panel which the government has said that it will introduce via regulation at a later date. Labor will continue to consult with users of the antidumping system and will carefully consider the implications of such a measure when the government seeks to introduce fees for review via its legislative instrument. The opposition opposes part 15 of schedule 1 in the following terms:

(1) Schedule 1, Part 15, page 38 (lines 1 to 4), to be opposed.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

Just in relation to Senator Carr's amendment and comments on the forum, I will indicate that the main function of the forum was to provide advice on the practical implementation of the previous government's reforms, which we have implemented. The government believe that more flexible, targeted and consultative arrangements are a better fit for the emerging challenges faced by today's antidumping system. Unlike those opposite, we do not feel the need to legislate our stakeholder engagement. The government regularly consult with business and other stakeholders on antidumping policy issues, and we will continue to do so. While the government do not support this amendment, we will not be opposing it.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

These are important matters to legislate on because it is well known within this government that, despite their rhetoric, there is a requirement to consult by law and it ought to be implemented. The government has failed to do so under the current legislation, and this gives lie to the claim that the government does not need legislation to do so. If this amendment is carried, we will be calling upon members of the government to call a meeting immediately. This body is important in terms of not just consulting on previous changes to the law but providing advice to government on the current state of play when it comes to measures being taken against Australian industry by foreign competitors. The expert group provides strategic advice about not just past matters but future matters. I would strongly urge the government to call this group together as soon as possible to provide the advice that is so lacking within the department at the moment.

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

I indicate that I strongly support the opposition's amendment. It is important that we keep the International Trade Remedies Forum. In the short and sharp Senate inquiry we had into this bill on Monday last week, it was quite obviously anomalous that this Trade Remedies Forum, which has a valuable role, has not met since mid-2013. Both industry and unions are at one on this. They are on a unity ticket for this forum to be kept. That is why I believe that the government ought to listen to industry, unions and independent commentators who consider this forum plays a valuable role in the context of Australia's antidumping regime. For those reasons and many others, I support this amendment.

The CHAIRMAN: The amendment before the chair is opposition amendment (1) on sheet 7678. The question is that part 15 of schedule 1 stand as printed.

Question negatived.

() (): I have amendments in respect of schedule 1, parts 7 and 11, in terms of the definition of 'subsidy' and notification of subsidies. I oppose schedule 1 in the following terms:

(1) Schedule 1, Part 7, page 20 (lines 1 to 13), to be opposed.

(2) Schedule 1, Part 11, page 25 (lines 1 to 11), to be opposed.

Amendment (1) removes the provisions that change the definition of 'subsidy' under the act. This is in response to concerns that were raised during the Senate inquiry process that this new definition was far too broad. In essence, the new definition in the bill requires proof that a payment made to an entity has provided a benefit to that entity. As the law currently stands, the fact that a payment was made is enough for it to be considered a subsidy. We have already seen the significant difficulties faced by Australian manufacturers seeking to put forward cases for antidumping or countervailing duties when they try to meet the evidence thresholds already in the bill. This proposed change will simply mean one more thing that they have to prove and one more hurdle until duties can be applied. In fact, it will weaken our antidumping regime.

Further, it is generally acknowledged that it is incredibly difficult for the commission to access accurate financial information in the course of their investigations. Adding this additional requirement to prove a benefit has occurred is only making matters more difficult. In my view, we should be making it easier for Australian manufacturers to apply for antidumping or countervailing duties, not harder—of course, within the context of our WTO obligations. As such, my proposed amendment will remove this new definition from the bill and allow the current definition to stand.

Chair, can I get some guidance from you. I can speak to the second amendment at this time, or do you wish to deal with them separately?

The CHAIRMAN: I think we should deal with them separately. There are not a lot of amendments.

Yes, so if we could perhaps deal with the first amendment. Senator Carr has carriage of this bill for the opposition, so if he is satisfied with us dealing with the amendments one at a time—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Yes.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

If I could indicate to Senator Xenophon that the current bills change the definition of 'subsidy' because the current definition is not fully aligned with WTO treaties and therefore represents a risk for the integrity of our antidumping system. Greater alignment means fewer challenges in the WTO. While the government does not see the necessity for this amendment, I can indicate that we will not be opposing it.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

These matters relate to concerns that were raised at a Senate inquiry by a number of submitters, including the AWU, the AMWU, the CFMEU and a large number of industry employers, including the Manufacturers' Trade Alliance. It was put to the committee that the proposed changes added an additional layer of complexity and appeared to impose an additional burden on industry and the Anti-Dumping Commission to validate government payments. If these concerns are legitimate, these changes have the potential to weaken the regime, not strengthen it. Labor believes that these concerns should be dealt with by the International Trade Remedies Forum. Senator Xenophon's amendment has the effect of taking these concerns offline so that they can be dealt with under arrangements currently in place. The minister's claim that there were somehow or other changes in the WTO definition does not bear close scrutiny. There was no evidence presented to support that claim. In fact, Minister Macfarlane, in his second reading speech in the House of Representatives, stated:

Australia's current regime for combatting injurious dumping and subsidisation is transparent and complies with our obligations under World Trade Organization agreements.

If they were compliant with the WTO agreements when Labor introduced them, what has changed? I put it to you: nothing.

This is one of those great red herrings we hear from time to time when people want to promote these changes: 'It is inconsistent with the WTO.' Prove it. That is the response that I have to give now: prove it. It is extraordinary how often it is that these statements of grand intent are not demonstrated in fact. The current system is already WTO compliant, and that is why we are supporting these measures. They actually strengthen the regime as a result of the changes that Labor introduced, and they ought to be protected and preserved. The amendment that Senator Xenophon is proposing is consistent with the legislation that Labor introduced.

The Trade Remedies Forum is the appropriate body to look at new practices. I take the view that dumping is like tax avoidance: you always have to look at new scams that people get up to to try to undermine Australian industry. The Trade Remedies Forum is the appropriate body to examine those principles. It is certainly not appropriate to weaken the regime, as is proposed by the government.

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

The minister asserts that it is not compliant with the WTO. Can he please tell us how it is not compliant. Senator Carr makes a very fair point: to what extent is it not compliant? These are just broad assertions that do not bear the scrutiny that Senator Carr says that assertion deserves. Also, why is it that we seem to be so much weaker in the way we deal with WTO obligations? I think that the Europeans, the Americans and other countries have a much tougher approach to these issues, rather than taking a literal, fundamentalist view of WTO rules. There is a reason we are joked about in international forums, as being the free trade Taliban in trade negotiations. It is time we stopped that.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I am advised that the claim is not that it is not compliant but that the amendment provides greater alignment, which would reduce challenges.

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

Could the minister say that again? I did not quite follow it. Is he saying that they are no longer concerned about—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

They've changed their tune!

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

Yes. I am just trying to work out what tune it is. Is the government now supporting this amendment, given the concerns that have been raised?

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

In my previous contribution I indicated that the government would not be opposing your amendment.

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

I was interested in the minister's earlier comments about this being WTO compliant and whether, perhaps, it might be WTO-plus and might relate to a current deal that is being negotiated called the Trans-Pacific Partnership agreement?

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

My advice is that there is not a connection.

The CHAIRMAN: The amendments before the chair are amendments (1) and (2) on sheet 7694, moved by Senator Xenophon. The question is that parts 7 and 11 of schedule 1 stand as printed.

Question negatived.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

Mr Chairman, are there not some consequential amendments that flow from the vote that has just been had and may be contained on sheet 7701?

The CHAIRMAN: I understand, and think my advice to you, Senator Carr, is that that is in relation to the Customs Tariff (Anti-Dumping) Amendment Bill 2015.

But I understand that they are required.

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

Mr Chairman, this may assist the committee, and I apologise for any mix-up: I seek leave to move the second part of that amendment. This is in relation to part 11. It is a consequential amendment, because this amendment seeks to remove the proposed changes that would clarify the application of the lesser duty rule when subsidies are not reported. I seek your guidance as to whether I can move that amendment now. It is an issue that is distinct from the previous issue but, in a sense, it could be argued that the two are interrelated.

The CHAIRMAN: Senator Xenophon, I have put the question on your amendments (1) and (2). I do not have any further amendments in front of me. If there are other amendments, we will need to track them down and work out what we need to do with them.

Perhaps I am mistaken, but my understanding was that I moved the first amendment—item 1—and that I was to move item 2. The idea was to deal with them separately, because there are two distinct issues. The second amendment—item 2—which I seek leave to move, relates to the application of the lesser duty rule. Perhaps that is the basis of the confusion.

The CHAIRMAN: I see where the confusion is. I thought you were asking me whether I wanted to deal with your amendments (1) and (2) on sheet 7694 and then, separately, your amendment (1) on sheet 7697, but what you were actually seeking to do was to do amendments (1) and (2) on sheet 7694 separately.

That is right. I apologise for the confusion. It is the excitement of budget day for all of us.

The CHAIRMAN: I know—we are all excited. But you did actually seek leave to move them together, so in fact we have done them.

I did not even get a chance to give my explanation on the record!

The CHAIRMAN: I am happy for you to have another crack at talking about those amendments before you go on to move amendment (1) on sheet 7697.

Just so there is no confusion, the amendment that has been passed will clarify the application of the lesser duty rule when subsidies are not reported, that the lesser duty rule requires the minister to have consideration for the least amount of duty that can be applied and that this disadvantages Australian manufacturers, that this amendment dealt with those issues and would remove those provisions from the bill, and that the amendments to the bill on sheet 7701 are consequential to this. I hope that helps to clarify that on the record.

The CHAIRMAN: While the committee determined that the bills would be taken together, my advice is that we are going to be voting on each bill separately, and these amendments you are now referring to do in fact relate to the second bill.

Yes.

The CHAIRMAN: I think at the moment we are trying to bite off far too much, so let us deal with one bill at a time. We will work through it that way and we will ensure that all amendments are dealt with. Senator Xenophon, perhaps you would be so kind as to move your amendment (1) on sheet 7697, and that will deal with all the amendments to the Customs Amendment (Anti-dumping Measures) Bill (No. 1), and then we will move to the second bill and deal with your amendments on sheet 7701.

Thank you, Chair, and I am also grateful to Senator Leyonhjelm, who has not been actively involved in this bill but seems to know what is going on. I am grateful to Senator Leyonhjelm for his helpful advice. I move amendment (1) on sheet 7697:

(1) Schedule 1, page 38 (after line 4), at the end of the Schedule, add:

Part 16—Review of Anti -Dumping Commission

Customs Act 1901

129 At the end of Part XVB

  Add:

Division 10—Anti -Dumping Commission reporting obligations

269ZZYAA Annual report

(1) The Commissioner must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the Anti-Dumping Commission's operations during the financial year.

(2) A report under subsection (1) must include the following:

  (a) the number of preliminary affirmative determinations in the financial year in which public notice was given, under section 269TD, 60 days after the date of initiation of an investigation;

  (b) the number of days (averaged over the financial year) taken to give public notice, under section 269TD, of the making of a preliminary affirmative determination;

  (c) the number of instances in the financial year in which the Commissioner has relied upon submissions lodged by interested parties under Division 6A without verification of the contents of such submissions;

  (d) the number of days (averaged over the financial year) taken for a nominated exporter of goods to Australia to answer questions in a questionnaire given to the exporter by the Commissioner under subsection 269TC(8);

(e) the total amount of interim duties collected during the financial year;

  (f) the total amount of final dumping duties collected during the financial year.

(3) A report under subsection (1) may be included in the annual report of the Department.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

I had an opportunity to meet with Minister Macfarlane and his very capable staff earlier today, along with members of the Anti-Dumping Commission. The aim of this amendment is to ensure certain information regarding the Anti-Dumping Commission's activities is reported to parliament annually. This will help to ensure the transparency and oversight of the commission and of the antidumping system as a whole. This information does not include any specifics about a particular case but instead covers broad statistics that will provide a guide to the operation of the commission. This amendment will ensure that this information snapshot is publicly available and easily accessible by requiring the minister to table it in parliament. I believe that this is an important oversight mechanism that will not create a burden on the commission or the department.

That was my view until I met with the minister's office earlier today and their view is that it would be quite resource intensive. These are matters that can be obtained as questions on notice, or particularly through the Senate estimates process, and I understand the government is opposing the amendment on that basis, because of the diversion of resources rather than being involved in actual cases. I still move the amendment but I will be guided by my colleagues in the opposition and on the crossbenches. I understand the concerns of the department and of the government in respect of this amendment.

If it is not supported I will seek to obtain this information through the estimates process and through questions on notice, for instance, and if that does not prove to be a satisfactory basis for obtaining information then it will need to be revisited. I am looking for an undertaking from the minister that these are matters that the government and the department will provide in the course of, say, Senate estimates or questions on notice. It will not be the same as an annual report but, to me, it would be a fair compromise that would achieve the same outcome. I am sorry I have not had a chance to speak to my crossbench colleagues, and especially Senator Carr, about this beforehand.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I do understand that Senator Xenophon has had some good discussions with the minister and the minister's office. I can indicate that the information being requested in this amendment is information that can already be made available, and that the government is happy to provide this sort of information when requested but does not believe it needs to be legislated for. The Anti-Dumping Commissioner obviously appears before estimates three times a year and can provide this sort of information in that forum. The Minister for Industry and Science has advised me that he can provide an assurance to Senator Xenophon that he will provide this type of information when it is requested.

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

I am satisfied with the minister's explanation. Again, I thank Minister Macfarlane and his office for that undertaking. I wonder whether the simplest thing to do, given that undertaking, is to simply seek leave to withdraw amendment (1) on sheet 7697.

Leave granted.

I withdraw the amendment.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I thank Senator Xenophon for his goodwill and courtesy in this matter.

The CHAIRMAN: We will now deal with the amendments to the Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015.

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

by leave—I oppose schedule 1 in the following terms:

(1) Schedule 1, item 1, page 3 (lines 4 to 11), to be opposed.

(2) Schedule 1, items 8 and 9, page 4 (lines 8 to 21), to be opposed.

(3) Schedule 1, item 13, page 5 (lines 3 to 9), to be opposed.

I also move:

(4) Schedule 1, item 18, page 5 (line 26), omit "items 1, 2, 5, 8, 9, 10, 13 and 14", substitute "items 2, 5, 10 and 14".

To clarify any confusion that occurred earlier, this amendment is consequential to the amendments in respect of item 2, which relates to the lesser duty rule. The government's proposal would see the lesser duty rule applied if a country has made a report once in every four years, but the current WTO practice is every two years, and I know that the opposition has had a particular concern about this, has have the Australian Greens. I want to acknowledge Senator Whish-Wilson in respect of his longstanding concerns about these issues of dumping, as well as Senator Madigan, who has been a champion on these issues as well. So it is a consequential amendment to the amendment that was previously moved and accepted, which was amendment (2) on sheet 7694, which related to part 11 of schedule 1 of the Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015.

All four amendments relate to notification of subsidies, which are consequential to the previous amendments that have just been passed on sheet 7694 in respect of the other bill.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition will be supporting the amendments.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

The advice that I have been given is that the lesser duty rule provisions effectively give Australian industry an advantage in cases where a foreign country fails to properly notify the WTO of all its current subsidy programs. In summary, that provision is only triggered when the foreign country has not notified the WTO in the four years preceding the investigation. The amendments, I understand, seek to redraft the provision to make this clearer. May I indicate that the government will not be opposing the amendment.

The CHAIRMAN: There are two questions that I need to put with respect to these four amendments. The first question is that items (1), (8), (9) and (13) of schedule 1 stand as printed.

Question negatived.

The CHAIRMAN: The next question is that amendment (4) on sheet 7701 be agreed to.

Question agreed to.

The CHAIRMAN: That deals with the consequential amendments. The question now is that these bills, as amended, be agreed to.

Bills, as amended, agreed to.

Bills reported with amendments; report adopted.