G/ADP/N/1/AUS/2/Suppl.16  
G/SCM/N/1/AUS/2/Suppl.14  
 
8 February 2016  
(16-0823)  Page: 1/7  
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures  Original: English  
 
NOTIFICATION OF LAWS AND REGULATIONS  UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
AUSTRALIA  
Supplement 
The following communication, dated 2 February 2016,  is being circulated at the request of the 
Delegation of Australia.  
_______________ 
 
 Pursuant to Article 18.5 of the WTO Anti-Dum ping Agreement and Article 32.6 of the WTO 
Agreement on Subsidies and Countervailing Measures, please find attached the Customs 
(Preliminary Affirmative Determinations) Directio n 2015 and the Customs (Extensions of Time and 
Non-cooperation) Direction 2015. These non-legislative Ministerial Directions, signed by the 
Minister for Industry, Innovation and Science on 22 October 2015 and 30 October 2015 
respectively, commenced on 2 November 2015.  Both these Directions stem from the Australian Government’s reforms announced on 
15 December 2014. The Customs (Preliminary Affirmative Determinations) Direction 2015 directs 
the Commissioner of the Anti-Dumping Commission that, wherever possible, provisional measures 
be imposed at day 60 of an investigation. Provisional measures can only be imposed once a 
preliminary affirmative determination has been made by the Commissioner and a preliminary 
affirmative determination cannot be made earlier than day 60 of the investigation. When provisional measures are not imposed, the Commissioner will publish a report outlining why a 
preliminary affirmative determination was not able to be made at that time. 
 The Customs (Extensions of Time and Non-cooperat ion) Direction 2015 addresses the timelines in 
an investigation, in particular, the approach to enforcing the deadlines for submissions and 
consideration of requests for extensions of time. This Ministerial Direction also directs the 
Commissioner on the circumstances in which the Minister would be satisfied that certain parties are uncooperative. 
 G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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  Customs (Preliminary Affirmative Determinations) Direction 2015 
 Customs Act 1901  
I, CHRISTOPHER PYNE, Minister for Industry, Innovation and Science, make this direction under 
subsection 269TA(1) of the Customs Act 1901 . 
 
 
Dated 30 October 2015   
 
___________________________________________ CHRISTOPHER PYNE 
Minister for Industry, Innovation and Science  
  
PART 1 - PRELIMINARY  
1. Name of Instrument 
This Direction is the Customs (Preliminary Affirmative Determinations) Direction 2015 . 
2. Authority  
a. This Direction is made under subsection 269TA(1) of the Act. 
b. This Direction has the purpose of directing the Commissioner in relation to the making of 
preliminary affirmative determinatio ns under section 269TD of the Act. 
3. Commencement  
This Direction commences on commencement of Schedule 1 of the Customs Amendment 
(Anti-Dumping Measures) Act (No.1) 2015 .  
4. Application  
This Direction applies to all dumping and countervailing duty investigations initiated on or 
after commencement. 
5. Definitions  
In this Direction: 
Act means the Customs Act 1901 . 
Commissioner  means the Commissioner of th e Anti-Dumping Commission.  
Status Report  means the report to be published by the Commissioner providing the 
reasons why a preliminary determination was not made under section 269TD of the Act on 
the date 60 days after the initiation of an anti-dumping or countervailing duty investigation in relation to the application received under section 269TB of the Act. 
 
PART 2 - DIRECTIONS  
6. Provision of preliminary affirmativ e determination or status report 
a. On the date that is 60 days after the initiation of an anti-dumping or countervailing duty 
investigation under section 269TB of th e Act, the Commissioner must either: 
i. make a preliminary affirmative determination under section 269TD; or  G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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  ii. publish a Status Report providing reasons why a preliminary affirmative 
determination was not made. 
7. Relevant matters – section 269TD(2)(b) 
The Commissioner must consider as a relevant matter, for the purposes of 
paragraph 269TD(2)(b), the desirability of prov iding relief to an injured Australian industry, 
where warranted, as quickly as possible. 
8. Considering late responses – section 269TD(3) 
When the Commissioner is considering whether or not to have regard to a late submission 
for the purposes of subsection 269TD(3), consideration of a preliminary affirmative 
determination should be treated as a priority. 
9. Reconsideration of making a preliminar y affirmative determination – section 
269TDAA 
If the Commissioner has published a Status Report, the Commissioner must reconsider whether or 
not to make a preliminary affirmative determination at least once prior to the publication of the 
Statement of Essential Facts required under section 269TDAA of the Act.  G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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Customs (Extensions of Time and Non-cooperation) Direction 2015 
 Customs Act 1901 
 
 I, CHRISTOPHER PYNE, Minister for Industry, Innovation and Science, make this direction under 
subsection 269TA(1) of the Customs Act 1901 . 
  Dated 30 October 2015 
 
  
 
___________________________________________ CHRISTOPHER PYNE 
Minister for Industry, Innovation and Science 
  PART 1 - PRELIMINARY  
1. Name of instrument  
This Direction is the Customs (Extensions of Time and Non-cooperation) Direction 2015 . 
2. Authority  
a. This Direction is made under subsection 269TA(1) of the Act. 
b. This Direction has the purpose of directing the Commissioner in relation to: 
i. granting extensions of time under section 269SMG, and subsections 269TC(6) and 
269TC(9) of the Act; and 
ii. making determinations about: 
1. uncooperative exporters under subsection 269T(1) of the Act; or  
2. non-cooperation by entities under section 269TAACA of the Act. 
3. Commencement  
This Direction commences on commencement of Schedule 1 of the Customs Amendment 
(Anti-Dumping Measures) Act (No.1) 2015 .  
4. Definitions  
In this Direction: 
Act means the Customs Act 1901. 
case means an investigation, review or  inquiry under Part XVB of the Act.  
Commissioner  means the Commissioner of th e Anti-Dumping Commission.  
entity or entities  have the same meaning as ‘entities’ (in the singular for entity) given 
under subsection 269TAACA(2) of the Act. 
interested party  has the same meaning as ‘interested party’ under subsection 269T(1) of 
the Act. 
key aspect  means the making, by the Commissioner, of a preliminary affirmative 
determination, a statement of essential facts, a report relating to the termination of a 
case, or a report to the Minister. G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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  legislated period  means a timeframe specified, determined or prescribed for submitting 
any kind of response relating to any case, including the period specified in the Commissioner’s notice or other correspondence to an interested party in any case. non-cooperative entity  means an entity that the Commissioner is satisfied has either not 
provided information the Commissioner considers relevant to a case within a period the 
Commissioner considers reasonable, or has significantly impeded the case.  response  means any document or thing provided to the Commissioner in relation to any 
case, including submissions, information or answers to the questions in questionnaires. 
uncooperative exporter  has the same meaning as ‘uncooperative exporter’ under 
section 269T of the Act.  
PART 2 - DIRECTIONS  
5. Extensions of time – sections 269TC and 269SMG 
a. When the Commissioner is: 
i. deciding if a longer period is reasonably required or practicable under subsections 
269TC(6) and 269TC(9); or  
ii. considering whether to allow any interested party a longer period to give any 
response (including under section 269SMG); 
the Commissioner must: 
1. take into account the responsibility to conduct cases in a timely and 
efficient manner;  
2. reject a request for a longer period if the request has not been made 
before the legislated period has ended; and 
3. in considering any reasons provided to support the request by any 
interested party, have regard to the matters specified at 5(b). 
a. When the Commissioner is considering any reasons provided to support the request by 
any interested parties under 5(a)(i)(3) or (ii)(3), the Commissioner must have regard to 
whether: 
i. an interested party has provided reasons why it could not provide its response within 
the whole legislated period and not only the period remaining between the request 
and the end of the legislated period;  
ii. the reasons provided are acceptable, taking into account ordinary business practices 
or ordinary commercial principles; 
iii. the reasons provided are consistent with the Commissioner’s understanding of the 
relevant industry; and 
iv. the reasons provided are consistent with previous correspondence from the party, 
previous dealings with the party, or information provided by other interested parties, 
6. Insufficient responses – section 296SMG 
a. If: 
i. an interested party has provided a response within the legislated period; 
ii. that response has deficiencies that could, in the Commissioner’s view, be quickly and 
easily rectified in a further response; and  G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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  iii. the Commissioner considers a further response may be relevant to the case or 
necessary to the proper conduct of the case,  
then the Commissioner should notify that party of the deficiencies and request that they 
be addressed in a further response within a reasonable timeframe specified by the 
Commissioner. 
 
b. If: 
i. an interested party has provided a response within the legislated period; 
ii. that response has deficiencies that could not, in the Commissioner’s view, be 
rectified quickly and easily in a further response; and  
iii. the Commissioner considers a further response is relevant to the case or necessary 
to the proper conduct of the case,  
then the Commissioner will notify the party of this view as soon as practicable. 
 
Note: In these circumstances the Commissioner is  not, required to provide the interested 
party with any further extension of time and is  not precluded from being satisfied that the 
party has significantly impeded an investigation for the purposes of subsection 269T(1) or 
section 269TAACA.  
7. Considering late responses 
a. If a response has been received by the Commissioner outside the legislated period, the 
Commissioner must, when determining whether to have regard to that response, consider if taking the response into account would delay a key aspect of the case. 
b. If taking the response into account would delay a key aspect of the case, the 
Commissioner must consider: 
i. the time remaining before the deadline for the next key aspect of the case – 
including making a preliminary affirmative determination or publishing a statement 
of essential facts; 
ii. if data is provided in the submission, the quality and quantity of that data and the 
level of resources required to adequately consider it; 
iii. if assertions or proposals are provided in the submission, the seriousness, nature and 
timing of those assertions in relation to the case and the resources required to adequately address or substantiate them; and 
iv. any reasons provided by the party to explain why the submission is late, taking into 
account the above directions in relation to granting extensions. 
8. Relevant information – section 269T 
a. When determining if an exporter is an uncooperative exporter, the Commissioner must 
consider the legislated period for providing a response to be a reasonable period 
b. The Commissioner must determine an exporter to be an uncooperative exporter, on the 
basis that no relevant information was provided in a reasonable period, if that exporter: 
i. fails, within the legislated period, to:  
a. provide a response; or  
b. request a longer period to provide a response; or G/ADP/N/1/AUS/2/Suppl.16 • G/SCM/N/1/AUS/2/Suppl.14 
 
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  ii. provides a response within the legislated period that the Commissioner considers did 
not provide information relevant to the case. 
9. Relevant information – section 269TAACA 
a. When determining if an entity is a non-cooperative entity for the purposes of section 
269TAACA, the Commissioner must consider the legislated period for providing a response to be a reasonable period. 
b. The Commissioner must determine an entity to be a non-cooperative entity for the 
purposes of section 269TAACA, on the basis that no relevant information was provided in a reasonable period, if that entity: 
i. Fails, within the legislated period, to: 
a. provide a response; or 
b.  request a longer period to provide a response; or 
ii. provides a response within the legislated period that the Commissioner considers did 
not provide information relevant to the case. 
10. Significantly impeded – sections 269T and 269TAACA 
In determining whether or not an exporter or  entity has significantly impeded a case, the 
Commissioner must take into account: 
 a. any response provided by the exporter or en tity to the Commissioner, the timing of the 
response and any information omitted from the response; 
b. the actions or omissions of the exporter or entity during the conduct of this case and the 
reasonable or likely impacts of those actions or omissions, regardless of intention; and 
c. any evidence which reasonably demonstrates an intention on the part of the exporter or 
entity to significantly obstruct or delay the case. 
11. General powers – section 269SMG 
In undertaking any assessment or consideration of the actions, omissions, or responses of 
any interested parties in relation to a case, before making any determination, the Commissioner must take into account: 
 
a. ordinary business practices;  
b. ordinary commercial principles; and 
c. the relevant industry and the way it operates. 
 
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