Australia: Escalation in Australian anti-dumping action

In a recent commentary, the Director-General of the World Trade Organisation, Pascal Lamy, pointed to a "significant decline" in initiations of new anti-dumping investigations from 213 in 2008 down to 153 in 2011.

However, the Australian experience suggests that while the numbers of actions may have reduced internationally, the intensity of those investigations in the Australian environment has increased.

To this effect, it is worth noting the following issues:

  • In our earlier commentaries on anti-dumping reform we have referred to the report of the Productivity Commission, its recommendations and the content of 2 earlier tranches of amending legislation.
  • The Australian Federal Government has now introduced its third tranche of anti-dumping legislation into Federal Parliament. According to the Media Release from the Minister for Home Affairs ("Minister"), the legislation makes the following 4 substantive reforms to the anti-dumping system.
    • Gives the CEO of the Australian Customs and Border Protection Service ("Customs") or the Minister the power to act on the basis of "all facts available" in determining whether a countervailable subsidy has been received or the amount of a countervailing subsidy if adequate information has not been provided to Customs by the country of origin or the company being investigated.
    • Removes the limitation to the inclusion of profit when constructing a "normal value" of a good.
    • Removes the need for a separate review of anti-dumping measures and a continuation inquiry when they occur in close proximity to one another
    • Allows the Minister to utilise additional forms of interim dumping duty beyond the single form that is currently provided for.

At the same time, the Minister released 2 reports from the new International Trade Remedies Forum which made additional recommendations to improve the anti-dumping system. A fourth tranche of anti-dumping legislation is likely to be introduced into the next Parliamentary sittings.

  • Customs has issued a draft revised Dumping and Subsidiary Manual with requests for comments by 11 May 2012. The review of the Manual is intended to incorporate changes to reflect recent changes to legislation and changes to practice.
  • Customs has announced the initiation of an investigation into alleged dumping of polyvinyl chloride homopolymer resin exported from the Republic of Korea.
  • Customs has announced that it has terminated its investigation into alleged dumping of structural timber from Austria, Canada, the Czech Republic, the Republic of Estonia, the Federal Republic of Germany and the Republic of Lithuania, Sweden and the United States.
  • The WTO committee on Anti-Dumping Practices released a report as to concerns by member countries into the conduct of various anti-dumping investigations by other members. This included a complaint by Japan that Australia's anti-dumping duty from Japan had been in place for 20 years and that Japan's share in the Australian market had decreased to 0.5%. While Japan urged a revocation of the measure, Australia invited Japan to bilateral talks on the issue.
  • On 27 April 2012, Customs issued the long-awaited Statement of Essential Facts ("SEF") in relation to its investigation as to imposition of anti-dumping and countervailing duty on aluminium road wheels ("ARW") exported from China. The SEF indicates that Customs intends to recommend to the Minister that certain anti-dumping and countervailing duties be imposed on exports of ARW from China although the quantum of such additional duties on ARW would depend upon the identity of the exporter. Interested parties have until 17 May 2012 to make comments on the SEF to Customs before it makes its final recommendation to the Minister regarding the imposition of duties. As many would be aware, the investigation as to ARW follows the imposition of duties in the European Community and similar investigations into alleged dumping and subsidies in relation to aluminium extrusions exported from China.
  • The Minister met with the International Trade Remedies Forum on 1 May 2012 to discuss the fourth tranche of legislation.

All things considered, the Trade Remedies Division of Customs will require all the additional resources promised by the Federal Government. These anti-dumping actions also have a significant political consequence. For example, there is tension between the proposal to impose anti-dumping and countervailing duties on ARW imported into Australia by Australian manufacturers of new vehicles while, at the same time, those manufacturers are suffering significant economic challenges and receiving other economic support from the Federal Government.

As always, we will keep you informed of developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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