Australia
Answer ... Australia is famously an enthusiastic adopter of anti-dumping measures. The investigative processes required to be undertaken to impose these measures (as countervailing measures) are governed by the Customs Act 1901 and the Customs (International Obligations) Regulations 2015. These statutes establish the relevant investigating authority – the Anti-dumping Commission – and specify the processes and timelines that anti-dumping, countervailing and anti-circumvention investigations must follow. Due to a quirk of Australian constitutional law, the imposition of anti-dumping and countervailing tariffs must be actioned under separate legislation: the Customs Tariff (Anti-Dumping) Act 1975. Methods for collecting interim dumping duty and countervailing duty are provided for in the Customs Tariff (Anti-Dumping) Regulation 2013.
Ministerial directions issued under the Customs Act 1901 further direct the commissioner on the general principles to be applied when carrying out his or her powers. Currently active directions include:
Safeguard measures are governed separately from other trade remedies. The Procedures for Safeguards Investigations (Gazette S 297 of June 1998), issued under the Productivity Commission Act 1998, govern investigations into whether safeguard measures should be applied. The Customs Act 1901 provides the mechanism for the imposition of safeguard measures through the introduction of quotas or increases to tariffs. Some bilateral or multilateral treaties also contain safeguard clauses. Since the turn of the millennium, there have only been three safeguard investigations, none of which resulted in the imposition of measures.
Australia
Answer ... Anti-dumping and countervailing measures fall under the remit of the Department of Industry, Science and Resources, with formal decisions executed by the minister for industry and science. The substantive conduct of the inquiry and recommendation is handled by the Anti-dumping Commission.
At a high-level, the minister for industry, energy and emissions has the power to impose, alter, revoke and continue anti-dumping and countervailing duties. He will usually, but not always, exercise these powers based on a recommendation by the commissioner.
Safeguards are imposed by the Australian government based on the recommendation of the Productivity Commission – the body responsible for conducting safeguard inquiries. The Productivity Commission has the power to investigate:
- whether safeguard measures would be justified under the World Trade Organization (WTO) Agreement;
- what measures would be necessary to prevent or remedy serious injury; and
- whether, having regard to the government’s requirements for assessing the impact of regulation which affects business, those measures should be implemented.
However, no safeguard inquiries thus far have led to the imposition of safeguard measures.
All on-the-ground enforcement of trade remedies is overseen by the Australian Border Force.
Australia
Answer ... Australia has a high level of anti-dumping and countervailing activity, with 106 cases over the 2019–2021 period alone. The focus has tended towards steel products, with the Australian steel industry a prolific user of the anti-dumping system. With increasing levels of trade protection, the anti-dumping system is seen as a key mechanism for the protection of domestic industry and the rules have been vigorously enforced as such. Draw whatever implication you like from the fact that it is the minister for industry and science who makes anti-dumping decisions.
Safeguard measures, on the other hand, are rare; the last of these was concluded in December 2013. It is difficult to draw a general idea of the process based on these sparse data points.
Australia
Answer ... Generally, a trade remedy action is initiated based on an application by the domestic Australian industry producing like goods. The application must contain information establishing grounds for the requested imposition of dumping or countervailing duties, such as:
- evidence of the alleged dumping or subsidies; and
- evidence of the alleged material injury said to have occurred because of the dumping or subsidies.
The minister for industry and science has a wide degree of discretion and may also initiate an inquiry of his own accord.
Safeguard measures are also initiated by application from Australian industry to the relevant minister overseeing the concerned goods. The applicant must provide positive evidence that unforeseen or unexpected surges in imports are causing serious injury to the industry. Investigations may then be initiated by the treasurer through a reference to the Productivity Commission. Safeguard investigations may also be initiated at the treasurer’s discretion.
Australia
Answer ... The standard statutory timeframe for an anti-dumping or countervailing investigation is 185 days; however, this timeframe can be – and typically is – extended where the investigating authority needs further time to conduct its investigating activities. It is not uncommon for investigations to take over a year and close to the 18 months permitted by the WTO Anti-dumping Agreement.
A typical inquiry involves an application lodged by the Australian industry; the investigating authority then has 20 days to assess the investigation. Exporters must complete a questionnaire response by Day 37 from initiation, with verification of the response taking place thereafter. The authority will consider whether to impose securities and issue a preliminary affirmative determination; thereafter, it will issue its preliminary findings. Interested parties can lodge submissions throughout the investigation – in particular, 20 days after the preliminary findings are issued. Finally, the investigating authority will provide its recommendation and final report to the minister for consideration, with the decision to be made and published 30 days thereafter.
Considering previous safeguard investigations, safeguard actions typically take six to seven months from initiation of investigation to termination or action.
Australia
Answer ... Interested parties generally have a high level of oversight of anti-dumping and countervailing actions due to the electronic public register covering all active inquiries. Interested parties must provide non-confidential versions of materials to be included on the public record, allowing for a transparent and robust exchange of ideas regarding the key issues in the investigation.
To best take advantage of that, an interested party should understand the complexity of the investigation and the underlying legislative scheme. Whether an exporter is dumping is not based on a black-and-white consideration of data; it is based on nuanced legal concepts and procedures, whose differing application can lead to drastically different outcomes. Without understanding this context, an interested party cannot make decisions strategically, which may hamper its ability to defend against a trade remedy action.
Australia
Answer ... Decisions relating to anti-dumping or countervailing measures can generally be challenged via application to the Anti-dumping Review Panel (ADRP) and the Federal Court of Australia.
The ADRP is a merits review body, tasked with assessing whether certain anti-dumping/countervailing duty decisions were correct or preferable. This is done based on the papers, although ad hoc conferences may be held and the ADRP may request that the Anti-dumping Commission reinvestigate certain findings.
An application for an ADRP review must be made within 30 days of the decision being announced. The default timeline for a review is 60 days from initiation. However, this can (and generally will) be extended. Roughly, an ADRP review may take between six and 12 months.
Following the review, the ADRP will make a recommendation to the minister. The minister will issue a decision 30 days thereafter.
The minister’s decision may be subjected to judicial review before the Federal Court. Judicial review focuses on whether the decision was legally correct, so an applicant must establish that there was a legal error underlying the decision, such as a denial of procedural fairness or failure to apply the terms of the underlying legislation. The timeline for completion varies depending on the complexity of the case and the caseload of the judge whose docket it ends up on. Recent cases suggest a timeline of nine to 18 months from filing to judgment. There is also the prospect that a proceeding may be settled prior to hearing.
Australia
Answer ... If the goods are covered by the measures, interim duty will be payable at the time of import. The Australian Border Force (ABF) generally does not release goods for home consumption unless the duty liability is discharged. There could be compliance issues around the classification of the goods – for example, in some instances an importer may claim a duty exemption on the basis that the goods fall outside the scope of the measures. However, it will want to ensure that it is on good footing to do so – either through legal advice or through a ruling from the ABF – because a number of customs penalties/offences may arise from incorrectly entering import details.
In a broader sense, the ADC can undertake ‘circumvention inquiries’ in relation to specific activities, including:
- the assembly of parts in Australia or a third country;
- arrangements between exporters;
- transshipment through third countries; and
- slight modification of goods.
These are tailored to address instances where the intent of the measures is being flouted. Where a circumvention activity is found to have occurred, the minister has broad powers to alter the measures to redress it.
In terms of living with the measures, importers can apply for duty assessments to secure a refund of the interim duty they have paid. Refunds will be granted if it is established that the relevant consignments were not dumped or were dumped to a lesser margin than that at which the interim duty was assessed. Affected parties may also request variable factor reviews 12 months after the measures were imposed, which can result in a lower import duty at the border.
Lastly, affected parties may seek an exemption from a trade remedy decision on a number of bases, including the following:
- Like or directly competitive goods are not offered for sale to all purchasers on equal terms; or
- There is a tariff concession order in respect of the goods.
This can be done either during an ongoing investigation or after measures have been instituted. There is no prescribed application form to seek an exemption, but the application must be in writing and contain details of, among other things:
- the details of the applicant and other interested parties;
- the grounds on which the exemption is being sought; and
- a detailed statement setting out the reasons for seeking the exemption.