In a recent update we provided commentary on the new Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Bill 2013 ("Bill"). The Bill has also been one subject of my presentations at the CBFCA State Conventions and CPD sessions. This Bill which will also form the basis of my forthcoming presentation to the CBFCA New South Wales Trade Symposium.
In another recent update we referred to the Government proposal to introduce another (sixth) tranche of amendments to the Customs Act 1901 regarding anti-dumping and countervailing law and practice.
There have been movements on both aspects together with other developments which are summarised below.
Customs and AusCheck Legislation Amendment (Organised Crime and Other Measures) Act 2013
The Bill has now been passed by both Houses of Parliament and has received Royal Assent on 28 May 2013 meaning it is now an Act. While a number of the provisions will only commence on Proclamation, (which may be up to 6 months after the Act receives Royal Assent), a number of important provisions in Part 3 in Schedule 1 to the Act commenced on 29 May 2013. Those provisions introduce new offences for using and disclosing information held on a Customs computer to commit an offence against the laws of the Commonwealth, a State or a Territory. The relevant provisions (included in a new section 233BABAF) penalise both using "Restricted Information" to commit such an offence or disclosing such Restricted Information to another person. In both cases, the penalties are significant including imprisonment for 2 years or 120 penalty units (at $170 per penalty unit) or both. In the case of a person using information to commit an offence, the prosecution need not prove that the offender knew that the offence was an offence against a law of the Commonwealth, State or Territory.
Clearly, these are significant new provisions and those with access to "Restricted Information" (defined to be information held in a computer owned, leased or operated by Customs and to which access is restricted by an access control system associated with the function of the computer such as the ICS), will need to ensure that appropriate policies are in place so that those with access to the information are even more aware of the need to only use it for appropriate purposes.
The Australian Customs and Border Protection Service ("Customs") has issued notice number 2013/25 which gives some details of the amendments and which includes a link to part of the Customs website summarising the effect of the Act. Importantly, Customs has also provided Industry Guidelines as to the application of the Act and expectations from Customs as to the limitations on disclosure of information by various people in the supply chain. Having briefly reviewed the Guidelines, it appears that they are only an early version as they do not necessarily cover the position of all parties in the supply chain in a comprehensive and useful manner. However, for the time being, they represent the Guidelines which have been provided by Customs and need to be reviewed by those using Customs' systems and those receiving information from Customs' systems as a matter of urgency, so that appropriate policies are adopted to manage associated risks.
New Anti-Dumping bill introduced
In our recent update following the announcement of the Federal Government Budget, we also referred to commentary from the Federal Government that it was about to introduce a new anti-dumping amendment bill.
As of 29 May 2013 (ie yesterday) the Government has introduced a new (sixth) tranche of anti-dumping legislation into Parliament.
According to the Media Release issued by the Minister and as set out in the relevant Explanatory Memorandum, the intent of the Bills is to amend the Customs Act 1901 and the Customs Tariff (Anti-Dumping) Act 1975 to implement 3 reforms to the anti-dumping system. The commentary summarised the effect of the Bills as follows:
- The first reform removes, in certain cases, the Minister's mandatory consideration of the "lesser duty" rule. This will allow the Minister, in certain circumstances, to apply a full margin of duty to remedy the injurious effect of dumping and subsidisation. The legislation sets out the 3 circumstances where the Minister is not required to (but may) consider the desirability of fixing a lesser amount of duty.
- The second reform makes a number of amendments to the retrospective duties provisions of the anti-dumping system ostensibly to align them more closely with the WTO Agreement and at the same time to make it clear that the Minister is the decision-maker for certain findings. Other changes restructure the legislation so that it is clearer and introduces consultation provisions to facilitate transparency and due process.
- The third reform introduces a new type of "circumvention" activity to address sales at a loss and other practices that undermine the effect of anti-dumping duties already imposed. This new type of anti-circumvention enquiry will be conducted within a shorter timeframe than other anti-circumvention inquiries. This reform also introduces a termination provision that applies to all types of anti-circumvention inquiries. This is of specific interest as it seems to go to commercial practices which may not contravene anti-dumping legislation are otherwise perceived as undermining the effect of those measures.
Interestingly, the Minister states that in developing the reforms the government has consulted closely with members of the International Trade Remedies Forum. However, it should be noted that the membership of the Forum is by invitation only and is effectively limited to Government agencies and some Australian manufacturers and producers and is not open to the wider trading community including importers and those otherwise affected by proposed reforms. Certainly, there has been no wider transparency on the introduction or intent of these provisions with others whose interests are directly affected.
Again, these provisions will be the subject of detailed discussion in the forthcoming member legal forums I am conducting in conjunction with the CBFCA.
Announcement of members of the Anti-Dumping Review Panel
As part of the wider reform of anti-dumping law and practice, readers would be aware that legislative change will remove review by the Trade Measures Review Officer and replace it with a new Anti-Dumping Review Panel. By way of Australian Customs Dumping Notice No. 2013/41, the Government has announced the membership of that Panel to include a former Federal Court judge, a former Presidential Member of the Administrative Appeals Tribunal and a lawyer specialising in anti-dumping cases. The notice also refers to a new website to start regarding the operation of the Panel.
New Aviation Transport Security Act
This Act also received Royal Assent and is to commence on the 28th day after receiving Royal Assent on 28 May 2013. The Act will allow the relevant Minister to prohibit the carriage of certain cargo into Australian territory on an aircraft through the use of a Disallowable Instrument which, according to the Explanatory Memorandum, is a more "robust and transparent mechanism to prohibit carriage of inbound air cargo in the longer term should the need arise". There will also be an associated offence for contravention of the prohibition to be a strict liability offence. Those handling such cargo will now need to be more alert as to what goods are affected by the prohibition as Disallowable Instruments are not as obvious as amending Acts or Regulations.
Further discussion on these developments
While we have discussed the content of the Customs Amendment Act at various CBFCA State Conventions, in the CBFCA CPD program and it has been the subject of earlier Hunt & Hunt releases, we will be discussing the commencement of the relevant legislation during the legal member forums to be conducted in conjunction with the CBFCA in June. An application for CPD points for these provisions and sessions has been submitted to Customs and we hope that Customs sees the value in those sessions.