We have previously reported on the Productivity Commission's
review of Australia's Anti-Dumping and Counterveiling
On 10 September 2009, the Productivity Commission issue its
draft Inquiry Report ("Report"). The Report is a
substantial piece of work and reflects a large number of
submissions with some divergent views and interests.
The Report contains a number of recommendations which are open
for further submission including two public hearings. Taken
directly from the Report, the "Key Points" of the
Productivity Commission are as follows:
The Australian anti-dumping system, which is based on WTO
agreed rules and procedures, benefits a small number of import
competing firms, but imposes greater costs on the rest of the
However, this net economic cost is small. And the scope for
Australian industries, like most other countries, to fall back on
the system to address what are perceived by many to be
'unfair' trading practices, may have lessened resistance to
more significant tariff reforms.
The 'political economy' argument for retaining the
system would be strengthened by reforms to address a number of
deficiencies in the current arrangements which can add to the costs
for the community. In particular:
there is no consideration of the wider economic and other
impacts of anti-dumping measures;
measures can too easily become akin to long-term protection, or
outdated in the face of changing market circumstances;
decision-making and its outcomes are not sufficiently
Introduction of a 'bounded' public interest test,
drawing on similar tests overseas, would be a practical means to
take account of wider impacts and prevent the imposition of
measures that would be disproportionately costly.
The test would embody a starting presumption in favour of
measures where there has been injurious dumping or
But it would also detail specific circumstances where measures
would, prima facie, not be in the public interest –
namely, where they would be damaging to competition or ineffectual
in removing injury; or would impose large costs on downstream users
relative to the benefits for the applicant industry.
Assessments against the test would be completed within 30
Some other changes to the current arrangements should be made
to achieve a better balance between benefits and costs, including
allow only one three-year extension of measures beyond the
initial five-year term;
require annual adjustments to the magnitude of measures;
eliminate over-collection of duties at the time of
align Australia's list of actionable subsidies with the WTO
increase the robustness of the appeals process;
impose a time limit on decisions by the Minister; and
enhance public reporting of the basis for decisions and their
outcomes, and improve monitoring of the impacts of measures.
To provide the parties with time to adjust, there should be a
two-year delay before the public interest test and changed
continuation and reapplication requirements take effect. The new
arrangements should be independently and publicly reviewed five
years after that.
There has been significant immediate response. The Australian
Industry Group has announced that it will actively lobby against
the adoption of any 'public interest' test, which it
perceives will work against the interests of Australian industries,
and would add to the complexity of the current system, including
additional time, cost and uncertainty.
It needs to be kept in mind that the Report is only a draft and
there will doubtlessly be significant additional submissions.
Further, whatever is contained in the final Report, it still
remains to the Government to determine whether to accept the final
recommendations, in an environment where the Government is taking
other steps to address the interests of Australian industry, for
example in its attempt to limit the availability of the EPBS and
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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