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John Brumby, former Premier of Victoria, has been
appointed by the Minister for Home Affairs, the Honourable Jason
Clare MP, to undertake an inquiry into the feasibility of a
stand-alone anti-dumping agency.
Anti-dumping and subsidy investigations currently are undertaken
by the International Trade Remedies Branch in Australian Customs
and Border Protection Service (Customs).
However, according to the Minister, anti-dumping is such a
specialised area that "there may be real benefits in
establishing a specialist agency". To this end, the
Minister has asked Mr Brumby to investigate the benefits and costs
of retaining this function within Customs versus establishing an
agency to conduct anti-dumping assessments and investigations.
Does establishment of the Brumby inquiry suggest Customs are not
up to the "specialised task" of conducting dumping and
subsidy investigations notwithstanding decades of experience?
Indeed, Customs has been criticised for not having the necessary
expertise to investigate across the wide range of industries and
products involved in dumping and subsidy investigations.
However this criticism was apparently addressed in the
Government's response to the Productivity Commission's
inquiry into Australia's anti-dumping system. In
'Streamlining Australia's anti-dumping system' (June
2011), the Government announced a 45% increase in staff in the
International Trade Remedies Branch. It also committed to
additional funding and greater use of experts, including forensic
accountants and industry experts, to improve decision-making.
What would a stand-alone anti-dumping agency provide that the
current arrangements do not? Arguably, the actual conduct of
dumping and subsidy investigations, duty assessments and reviews
would not alter. After all, the way investigations are carried out
is tightly guided at an international level by GATT rules.
Would a stand-alone dumping agency lead to more anti-dumping and
subsidy investigations and result in the imposition of measures
more frequently? Again, this is unlikely. To be in a position to
impose more measures would potentially require Australia to deviate
from its current WTO-compliant procedures and change a number of
requirements in investigations.
Doing this could risk Australia's anti-dumping system
becoming non-compliant with WTO rules. It could also be contrary to
Australia's pledge, along with a number of other WTO members,
to not implement measures that are inconsistent with WTO rules.
Perhaps the idea of a stand-alone anti-dumping agency has been
raised to overcome a problem that could flow from recent proposed
amendments to the review process in dumping and subsidy
investigations?
Currently, if the Minister decides to impose or not impose
anti-dumping or countervailing measures, it is open to interested
parties to apply to the Trade Measures Review Officer for a review
of the findings on which that decision was based. The Trade
Measures Review Officer can recommend to the Minister that he/she
affirm the decision or direct Customs to re-investigate one or more
of the findings.
The term "re-investigate" is something of a misnomer
given that Customs can only have regard to the information that was
before it when it first report to the Minister. Review would be a
better description of the process. It almost invariably leads to
Customs recommending to the Minister that the original decision be
affirmed.
In recent proposed amendments to this process the Trade Measures
Review Officer will be replaced by a Review Panel consisting of
three members. More importantly, the Review Panel, after conducting
its review, must recommend to the Minister either that the decision
in question be affirmed or that it be revoked and a new decision be
substituted.
This new review process potentially creates an awkward situation
for the Minister. Take the possible scenario where Customs
recommends to the Minister that measures be imposed and the
Minister does so. Then the Review Panel subsequently reviews the
findings on which that decision to impose measures was based and
recommends the measures be revoked. The Minister would then be in
the unfortunate and politically insidious position of having to
choose between two arms of the executive Government with
diametrically opposed recommendations.
Perhaps the solution is to create a stand-alone anti-dumping
agency reporting directly to the Minister and abolish the Review
Panel as interested parties would still have the right of appeal to
the Federal Court. Time will tell!
Mr Brumby is to report to the Government by 30 November
2012.
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