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This is a Bill, not an Act. For current law, see the Acts databases.
Customs Legislation Amendment Bill (No. 2) 2002
First
Reading
$$T
2002
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first
time
Customs Legislation Amendment Bill
(No. 2) 2002
No. , 2002
(Justice and Customs)
A Bill for an Act to amend the Customs Act 1901 and the
Passenger Movement Charge Collection Act 1978, and for related
purposes
Contents
A Bill for an Act to amend the Customs Act 1901 and the
Passenger Movement Charge Collection Act 1978, and for related
purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Customs Legislation Amendment Act (No. 2)
2002.
2 Commencement
(1) Each provision of this Act
specified in column 1 of the table commences, or is taken to have commenced, on
the day or at the time specified in column 2 of the table.
Note: This table relates only to the provisions of this Act as
originally passed by the Parliament and assented to. It will not be expanded to
deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for
additional information that is not part of this Act. This information may be
included in any published version of this Act.
(3) If a provision covered by
item 2 or 4 of the table does not commence within the period of 6 months
beginning on the day on which this Act receives the Royal Assent, it commences
on the first day after the end of that period.
(4) If this Act does not receive
the Royal Assent before the commencement of item 39 of Schedule 3 to
the Customs Legislation Amendment and Repeal (International Trade
Modernisation) Act 2001, the provisions covered by item 8 of the table
do not commence at all.
(5) If this Act does not receive
the Royal Assent before the commencement of item 62 of Schedule 3 to
the Customs Legislation Amendment and Repeal (International Trade
Modernisation) Act 2001, the provisions covered by item 9 of the table
do not commence at all.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as
set out in the applicable items in the Schedule concerned, and any other item in
a Schedule to this Act has effect according to its terms.
Schedule 1Anti-dumping measures
Part 1Economies in transition
Insert:
economy in transition has the meaning given by
subsection (5C).
2 After subsection 269T(5B)
Insert:
(5C) A country has an
economy in transition at a time if:
(a) before the time, the
Government of the country had a monopoly, or a substantial monopoly, of the
trade of that country and determined, or substantially influenced, the domestic
price of goods in that country; and
(b) at the time, that Government
does not:
(i) have a monopoly, or a
substantial monopoly, of the trade of that country; or
(ii) determine, or substantially
influence, the domestic price of goods in that country.
3 Subsections 269TAC(5D) and (5E)
Repeal the subsections, substitute:
(5D) The normal value of goods
(the exported goods) is the amount determined by the Minister,
having regard to all relevant information, if the exported goods are exported to
Australia and the Minister is satisfied that the country of export has an
economy in transition and that at least one of the following paragraphs
applies:
(a) both of the following
conditions exist:
(i) the exporter of the exported
goods sells like goods in the country of export;
(ii) the domestic selling price of
those like goods is significantly affected by a government (at any level) of
that country;
(b) both of the following
conditions exist:
(i) the exporter of the exported
goods does not sell like goods in the country of export but others do;
(ii) the domestic selling price of
those like goods sold by some or all of those others is significantly affected
by a government (at any level) of that country;
(c) the exporter of the exported
goods does not answer questions in a questionnaire given to the exporter by the
CEO under subsection 269TC(8) within the period described in that subsection for
answering questions;
(d) the answers given within the
period mentioned in subsection 269TC(8) by the exporter of the exported goods to
a questionnaire given to the exporter under that subsection do not provide a
reasonable basis for determining that paragraphs (a) and (b) of this
subsection do not apply.
Note: Subsection 269TC(8) deals with the CEO giving an exporter of
goods to Australia a questionnaire about evidence of whether or not
paragraphs (a) and (b) of this subsection apply, with a specified period of
at least 30 days for the exporter to answer the questions.
(5E) To be satisfied that the
conditions in paragraph (5D)(a) or (b) exist, the Minister must have regard
to the matters (if any) prescribed by the regulations. This does not limit the
matters to which the Minister may have regard for that purpose.
4 Subsections 269TAC(5G) and (5H)
Repeal the subsections.
5 Subsections 269TAC(5J) and (7A)
Omit or (5G).
6 Saving of regulations
(1) Regulations that were in force for the purposes of subsection
269TAC(5J) of the Customs Act 1901 immediately before the commencement of
this Part continue to have effect after that commencement for the purposes of
that subsection, so far as it relates to subsection 269TAC(5D) of that Act after
that commencement.
(2) This item has effect despite the amendments of section 269TAC
of the Customs Act 1901 by this Part.
(3) This item does not prevent the amendment or repeal of regulations
covered by subitem (1).
7 At the end of section 269TC
Add:
(8) If the CEO is satisfied that a
country whose exporters are nominated in an application for a dumping duty
notice or a countervailing duty notice has an economy in transition, the CEO
must, as soon as practicable after deciding not to reject the
application:
(a) give each nominated exporter
from such a country a questionnaire about evidence of whether or not paragraphs
269TAC(5D)(a) and (b) apply; and
(b) inform each such exporter that
the exporter has a specified period of not less than 30 days for answering
questions in the questionnaire; and
(c) inform each such exporter that
the investigation of the application will proceed on the basis that subsection
269TAC(5D) applies to the normal value of the exporters goods that are the
subject of the application if:
(i) the exporter does not give the
answers to the CEO within the period; or
(ii) the exporter gives the
answers to the CEO within the period but they do not provide a reasonable basis
for determining that paragraphs 269TAC(5D)(a) and (b) do not apply.
Note: Paragraph 269TAC(5D)(a) or (b) applies if a government of the
country of export significantly affects the selling price in that country of
like goods to the goods that are the subject of the application.
8 Application
The amendments of the Customs Act 1901 made by this Part apply in
relation to:
(a) applications under
section 269TB of that Act that are made or lodged after the commencement of
this Part; and
(b) things done as a result of
such an application.
Part 2Cumulative
effect of exports to Australia
Repeal the subsection, substitute:
(2C) In determining, for the
purposes referred to in subsection (1) or (2), the effect of the
exportations of goods to Australia from different countries of export, the
Minister should consider the cumulative effect of those exportations only if the
Minister is satisfied that:
(a) each of those exportations is
the subject of an investigation; and
(b) either:
(i) all the investigations of
those exportations resulted from applications under section 269TB lodged
with the Customs on the same day; or
(ii) the investigations of those
exportations resulted from applications under section 269TB lodged with the
Customs on different days but the investigation periods for all the
investigations of those exportations overlap significantly; and
(c) the dumping margin worked out
under section 269TACB for the exporter for each of the exportations is at
least 2% of the export price or weighted average of export prices used to
establish that dumping margin; and
(d) for each application, the
volume of goods the subject of the application that have been, or may be,
exported to Australia over a reasonable examination period (as defined in
subsection 269TDA(17)) from the country of export and dumped is not taken to be
negligible for the purposes of subsection 269TDA(3) because of subsection
269TDA(4); and
(e) it is appropriate to consider
the cumulative effect of those exportations, having regard to:
(i) the conditions of competition
between those goods; and
(ii) the conditions of competition
between those goods and like goods that are domestically produced.
Part 3References
to domestic industry
Omit domestic, substitute Australian.
11 Subsection 269TB(6)
Omit domestic, substitute Australian.
Part 4Assessment
of duty
Omit made (wherever occurring), substitute lodged.
13 Paragraph 269W(1)(c)
Omit and information to establish those amounts.
14 Paragraph 269W(1)(d)
Omit and information to establish those amounts;.
15 After subsection 269W(1)
Insert:
(1A) The application must also
contain either:
(a) sufficient evidence to
establish that the applicants opinion of the amounts described in whichever of
paragraphs (1)(c) and (d) apply is correct; or
(b) both of the
following:
(i) the evidence the applicant has
to establish that the applicants opinion of the amounts described in whichever
of paragraphs (1)(c) and (d) apply is correct;
(ii) a commitment that someone
else will give the CEO further evidence within 30 days after lodgment or such
longer period as the CEO allows, so that the CEO will then have sufficient
evidence to establish that the applicants opinion of those amounts is
correct.
(1B) If the interim duty on the
goods covered by the application was calculated using the export price of the
goods worked out (under paragraph 269TAB(1)(b) or otherwise) as the difference
between:
(a) the price at which the
importer of the goods sold them, in the condition in which they were imported,
to someone who was not an associate of the importer; and
(b) the prescribed deductions (as
defined in subsection 269TAB(2)) relating to the goods;
the requirement in subsection (1A) of this section is met only if the
evidence referred to in that subsection includes evidence of the things
described in paragraphs (a) and (b) of this subsection.
16 At the end of subsection 269X(1)
Add:
Note: The CEO may be required to reject the application or be able to
terminate the examination of it without deciding what recommendation to make to
the Minister. See section 269YA.
17 After subsection 269X(3)
Insert:
(3A) However, the CEO must not
give the applicant information that the exporter of goods covered by the
application supplied to the CEO (whether as a result of a request under
subsection (2) or otherwise) that is relevant to working out:
(a) the normal value of the goods;
or
(b) the countervailable subsidy
relating to the goods; or
(c) the export price of the
goods;
unless the exporter indicates that he or she is willing for the CEO to give
the information to the applicant under paragraph (3)(a).
18 Subsection 269X(5)
After the information, insert and evidence.
19 After subsection 269X(5)
Insert:
(5A) Subsection (5B) of this
section applies if the CEO proposes to ascertain provisionally, for the purposes
of paragraph (5)(a) of this section, the export price of goods (under
paragraph 269TAB(1)(b) or otherwise) as the difference between:
(a) the price at which the
importer of the goods sold them, in the condition in which they were imported,
to someone who was not an associate of the importer; and
(b) the prescribed deductions (as
defined in subsection 269TAB(2)) relating to the goods.
(5B) In provisionally ascertaining
the export price of goods as described in subsection (5A), the CEO
must:
(a) take account of the following
in relation to the goods:
(i) any change in normal
value;
(ii) any change in costs incurred
between importation and resale;
(iii) any movement in resale price
which is duly reflected in subsequent selling prices; and
(b) despite paragraph
269TAB(1)(b), not deduct the amount of interim duty if the CEO has conclusive
evidence of the things mentioned in subparagraphs (a)(i), (ii) and (iii) of
this subsection.
An expression used in this subsection and subparagraph 3.3 of Article 9 of
the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 set out in Annex 1A to the World Trade Organization
Agreement has the same meaning in this subsection as it has in that
subparagraph.
20 Paragraph 269Y(4)(c)
Omit made, substitute lodged.
21 At the end of Division 4 of Part XVB
Add:
269YA Rejection etc. of application for duty assessment
(1) This section has effect
despite sections 269X and 269Y if an application under section 269V is
lodged with the Customs under section 269W.
(2) The CEO must reject the
application if the CEO is satisfied within 20 days after it is lodged that it
does not contain everything it must contain under subsections 269W(1) and
(1A).
(3) The CEO must reject the
application if:
(a) the application contains a
commitment described in paragraph 269W(1A)(b); and
(b) within 20 days after the time
described in that paragraph, the CEO is satisfied that he or she has not
received from the applicant and one or more other persons sufficient evidence to
establish that the applicants opinion of the amounts described in whichever of
paragraphs 269W(1)(c) and (d) apply is correct.
(4) The CEO may terminate
examination of the application if he or she is satisfied after the last of the
20 days mentioned in subsection (2) or (3) of this section that he or she
does not have enough information to be able to comply with paragraph
269X(5)(a).
(5) If the CEO rejects the
application or terminates examination of it:
(a) the CEO must notify the
applicant in writing of the following:
(i) the rejection or
termination;
(ii) the reasons for the rejection
or termination;
(iii) the applicants right, within
30 days of the receipt of the notification, to apply for a review by the Review
Officer under Division 9 of the rejection or termination; and
(b) the CEO must not:
(i) provisionally ascertain a
variable factor or provisionally calculate an amount under subsection 269X(5) in
connection with the application; or
(ii) decide what recommendation to
make to the Minister under subsection 269X(6) in connection with the
application; and
(c) subsection 269Y(4) has effect
as if the application had not been lodged under section 269V.
22 Section 269ZX (paragraph (a) of the definition of
interested party)
After section 269TB, insert or 269V.
23 At the end of section 269ZZN
Add:
; (d) a decision (a
rejection decision):
(i) by the CEO that the CEO is
satisfied as described in subsection 269YA(2) or (3); or
(ii) by the CEO to terminate under
subsection 269YA(4) examination of an application.
24 Section 269ZZO (at the end of the table)
Add:
|
A rejection decision |
The applicant under section 269V for an assessment of duty whose
application was affected by the decision |
25 After section 269ZZU
Insert:
269ZZUA The review of a rejection decision
(1) The Review Officer must make a
decision on an application for the review of a rejection decision by:
(a) affirming the rejection
decision; or
(b) revoking the rejection
decision.
(2) If the Review Officer revokes
a rejection decision relating to an application under section 269V,
subsection 269YA(5) ceases to apply in relation to the application.
(3) If the Review Officer revokes
a rejection decision relating to rejection under subsection 269YA(2) or (3) of
an application under section 269V:
(a) the CEO must resume the
examination of the application with a view to complying with subsections 269X(5)
and (6) within 110 days after being informed of the revocation; and
(b) the revocation does not
prevent the CEO from terminating the examination under subsection
269YA(4).
(4) If the Review Officer revokes
a rejection decision relating to termination under subsection 269YA(4) of the
examination of an application under section 269V, the CEO must comply with
subsections 269X(5) and (6) within 110 days after being informed of the
revocation.
(5) In making a decision under
this section, the Review Officer must have regard only to information that was
before the CEO when the CEO made the rejection decision.
(6) The Review Officers decision
must be made within 60 days after the receipt of the application for the review
or such longer period allowed by the Minister in writing because of special
circumstances.
26 Application
The amendments of the Customs Act 1901 made by this Part apply in
relation to:
(a) the lodgment of applications
under section 269V of that Act after the commencement of this Part;
and
(b) things done because of the
lodgment of such an application after the commencement of this Part.
Part 5Accelerated
review for new exporters only
Omit and exporters not previously investigated.
28 Subsection 269T(1) (definition of residual
exporter)
Repeal the definition, substitute:
residual exporter, in relation to a dumping duty notice or a
countervailing duty notice in respect of goods, means an exporter of goods the
subject of the application or like goods, other than:
(a) a selected exporter;
and
(b) a new exporter of such
goods.
29 Section 269ZDC
Omit or exporters whose exportations were not examined when the notice was
published.
30 Paragraph 269ZE(1)(b)
Omit residual exporters, substitute new exporters.
31 Subsection 269ZE(1)
Omit residual exporter, substitute new exporter.
32 Application
The amendments of the Customs Act 1901 made by this Part apply in
relation to:
(a) applications under
section 269TB lodged after the commencement of this Part; and
(b) applications under
section 269ZE lodged after the commencement of this Part; and
(c) things done because of an
application described in paragraph (a) or (b) of this item.
Part 6Applying
to continue anti-dumping measures
Repeal the paragraph, substitute:
(b) inviting the following persons
to apply within 60 days to the CEO, in accordance with section 269ZHC, for
a continuation of those measures:
(i) the person whose application
under section 269TB resulted in those measures;
(ii) persons representing the
whole or a portion of the Australian industry producing like goods to the goods
covered by those measures.
34 Application
The amendment of subsection 269ZHB(1) of the Customs Act 1901 by
this Part applies to notices published under that subsection after the
commencement of this Part.
Part 7Reinvestigation
by CEO
35 Subparagraph 269ZZL(2)(a)(i)
After findings, insert , having regard only to the information and
conclusions to which the Review Officer was permitted to have regard.
36 Paragraph 269ZZL(4)(a)
Omit Review Officer, substitute CEO.
37 Application
The amendments of the Customs Act 1901 made by this Part apply in
relation to things done as a result of recommendations made by the Review
Officer before, on or after the commencement of this Part.
Schedule 2Air security officers
Passenger Movement Charge Collection Act
1978
Add:
; or (m) is a protective service
officer (as defined in the Australian Protective Service Act 1987) on an
aircraft for the purpose of enhancing the security of the aircraft.
Schedule 3Technical amendments relating to trade
modernisation
Part 1Amendments commencing on Royal Assent
Insert:
monitoring powers has the meaning given by
section 214AB.
2 After paragraph 203(3)(e)
Insert:
(ea) whether action might be taken
under Division 5 of Part XIII in connection with any such
offence;
3 Application
Paragraph 203(3)(ea) of the Customs Act 1901 applies in relation
to:
(a) applications for a warrant
made after the commencement of this Part; and
(b) applications for a warrant
that were made before the commencement of this Part but are being considered by
a judicial officer after that commencement.
Part 2Amendments
commencing on Royal Assent or not at all
Omit , or action taken under section 243T,.
Note: If this Act does not receive the Royal Assent before the
commencement of item 39 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(4) of this Act.
5 Saving
The amendment of paragraph 71H(2)(a) of the Customs Act 1901 by this
Part does not prevent action from being taken under section 243T of that
Act (as that section continues to apply, despite its repeal by item 5 of
Schedule 2 to the Customs Legislation Amendment and Repeal
(International Trade Modernisation) Act 2001, because of item 5A of
that Schedule) in relation to an import entry that:
(a) was made before that repeal;
and
(b) was withdrawn (whether before
or after that repeal).
Note: If this Act does not receive the Royal Assent before the
commencement of item 39 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(4) of this Act.
6 After subsection 71H(2)
Insert:
(2A) Despite the withdrawal of an
import entry, action may be taken under Division 5 of Part XIII in
respect of the entry as if it had not been withdrawn.
Note: If this Act does not receive the Royal Assent before the
commencement of item 39 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(4) of this Act.
7 Application
Subsection 71H(2A) of the Customs Act 1901 applies to an entry made
after the commencement of this item.
Note: If this Act does not receive the Royal Assent before the
commencement of item 39 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(4) of this Act.
8 After subsection 119B(2)
Insert:
(2A) Despite the withdrawal of an
entry, submanifest or manifest, action may be taken under Division 5 of
Part XIII in respect of the entry, submanifest or manifest as if it had not
been withdrawn.
Note: If this Act does not receive the Royal Assent before the
commencement of item 62 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(5) of this Act.
9 Application
The amendment of section 119B of the Customs Act 1901 made by
this Part applies to an entry, submanifest or manifest communicated to Customs
after the commencement of the amendment.
Note: If this Act does not receive the Royal Assent before the
commencement of item 62 of Schedule 3 to the Customs Legislation
Amendment and Repeal (International Trade Modernisation) Act 2001, this item
does not commence at all. See subsection 2(5) of this Act.
Part 3Amendment
commencing on 1 July 2003
Repeal the paragraph.
Part 4Amendment
commencing after Trade Modernisation Act amendment
Insert:
(2A) Despite the withdrawal of an
entry, submanifest or manifest, action may be taken under Division 5 of
Part XIII in respect of the entry, submanifest or manifest as if it had not
been withdrawn.
12 Application
The amendment of section 119B of the Customs Act 1901 made by
this Part applies to an entry, submanifest or manifest communicated to Customs
after the commencement of the amendment.
$$A