RESTRICTEDWORLD TRADE
ORGANIZATIONG/SG/Q1/AUS/3
27 April 1999
(99-1691)
Committee on Safeguards Original:  English
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER
ARTICLE 12.6 OF THE AGREEMENT
Replies from AUSTRALIA to Questions
Posed by CANADA1 and the UNITED STATES2
The following communication has been received, on 21 April 1999, from the Permanent
Mission of Australia.
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Canada
Q1. What is the status of the notified general sa feguard procedures contained in G/SG/N/1/AUS/2
in Australian law?   What is the status of the WTO Agreement on Safeguards in Australian law?
A.1 The procedures and the WTO Agreement on Safeguards, as such, have no status in themselves
under Australian domestic legislation.
Q2. Are there additional laws, procedures, regulations, and/or practices which govern the use of
safeguards in Australia that have yet to be notified?   If so, please advise when Australia intends tonotify same.
A.2 It is unclear what Canada means by the question.  Clearly conceptually there is a wide range
of legislative instruments and practices that could govern the application of safeguard measures, e.g.
governing fraud in duty collections.   So far as Au stralia is aware no Member has notified such to the
Committee.   In addition clearly there are also, for example, other different provisions and practices
governing the introduction of tariff bills or regulations, including under the Customs Act.
There is no specific safeguard legislation as such that Australia needs to notify under
Article 12.6.
If a decision were taken at some stage to impose a safeguard measure or a provisional
safeguard measure, then it would be necessary to introduce a tariff bill, or a notice thereof, and/or
introduce regulations governing import quota(s), and possibly as well import licensing.   These would
be notified to the Committee.   Such a tariff bill would only apply to the specific measure.Regulations governing import licensing, for example, could be introduced in such a way as to apply
not simply to the measure in question but could apply to any future actions.   By contrast the tariff bill
would only apply to the measure.   (Of course exceptions are always possible, for example a bill
imposing a provisional measure might be extended/amended to impose a safeguard measure.)
                                                     
1 G/SG/Q1/AUS/1
2 G/SG/Q1/AUS/2G/SG/Q1/AUS/3
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Q3. Article 12(1) of the Safeguards Agreement requires Members to make a notification to the
Committee on Safeguards prior to enacting safeguard measures.   Why do the notified procedures in
G/SG/N/1/AUS/2 not contain su ch a notification requirement?
A.3 The procedures relate to instructions to the investigating authority, the Productivity
Commission.   The Commission has no authority to impose measures.   Australia will follow the
notification obligations set out in the Agreement.
Q4. Article 12(3) of the Safeguards Agreement envisages consultations with those Members
having a substantial interest as exporters of the product concerned prior to the extension of a
safeguard measure.   What provisions in the Australian procedures ensure that such consultations takeplace?
A.4 The procedures relate to instructions to the investigating authority, the Productivity
Commission.   The Commission has no role in such consultations.   Australia will follow the
consultative obligations set out in the Agreement.
Q5. The notified procedures in G/SG/N/1/AUS/2 do not appear to provide for consultation with
Members having a substantial interest in supplying the product concerned with respect to the
allocation of quotas.  Please explain this omission.
A.5 See the answer to Q4.
Q6. Do the notified procedures in G/SG/N/1/AUS/2 allow for adequate compensation or
concessions for affected Members as required by Article 8 of the Safeguards Agreement.  If not, does
other Australian legislation permit such compensation or concessions?
A.6 No.   That would not be the responsibility of the Commission.   There is no specific provision
for this in Australian legislation.   The issue of compensation or concessions would have to be
addressed in each case and, if appropriate, the requisite action taken, which might conceptually
involve new legislation.   Our understanding is that the issue of compensation or concessions, apart
from the issue of the size and administration of quota and tariff quotas has been rare for safeguard
action.
Q7. Who besides a government Minister may cause the Productivity Commission to initiate a
safeguard enquiry?   Can the Productivity Commission self-initiate a safeguard enquiry?   If other
parties can request an investigation, does the Minister have to offer his assent to such a request?   Do
non-governmental bodies have to meet standing requirements in order to request an investigation?
A.7 Only the Minister with responsibility for the Productivity Commission can make a reference
to the Commission for a safeguard enquiry.   Under current administrative arrangements this is the
Treasurer.   The Commission cannot self initiate an enquiry under the Procedures.   Any party can
request the Treasurer to initiate an enquiry.   Ho wever, any decision to initiate an enquiry would be
taken by the Government.
Q8. Are there initiation standards or requirements that must be met prior to the initiation of a
safeguards investigation?
A.8 No.
Q9. In view of the Commission's power under Sec tion 12(b) of the Productivity Commission Act,
what provision is there to ensure the appropriate publication of a notice of the measures and theG/SG/Q1/AUS/3
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report containing reasons as provided in Articles 3.1 and 4.2(c) of the WTO Agreement on
Safeguards?
A.9 The Procedures relate to instructions to the investigating authority, the Productivity
Commission, which include making a report to the Treasurer, which will be made public.   This reportwill be published promptly and address these issues (see paragraph 7 of the Procedures).
Q10. How is all evidence submitted during the course of a safeguard enquiry made available to
interested parties for examination and comment?   What procedures are in place to ensure that all
representations made directly to the Productivity Commission during the course of an investigation
are made publicly available?
A.10 Subject to confidentiality requirements, all submissions are placed on the file and available on
request.   The submissions are also listed and available, with transcripts of hearings, from the
Commission's Internet site.
Q11. The Australian notification does not provide any information with regards to timeframes or
deadlines with respect to the various stages of a safeguard investigation.   Does this mean that the
Productivity Commission operates without deadlines or are deadlines established on an ad hoc basis?
A.11 The deadline for the only enquiry to be held to date was established under the specific
reference for the report to be made to the Treasure r.   Within that constraint, the Commission set its
own timetable, which it published in its circulars.
Q12. Is the term "interested party" defined in Australian legislation?  Are representatives of an
exporting country "interested parties" for the purposes of safeguard inquiries?
A.12 No.   Any person, including a government, w ho is interested in making a submission, can do
so.
Q13. Does Australia's notified procedures and legi slation in G/SG/N/1/AUS/2 related to safeguard
measures provide for domestic appeal/review procedures?  If so, please indicate the applicable
article(s) of the relevant laws and regulations.
A.13 The Commission is required to adhere to its Act.
The report is to the Government and will be considered by Ministers but not reviewed in the
sense of being examined by another administrative tribunal.   The imposition of safeguard measures
would be reviewed by Parliament, since a tariff bi ll would need to be enacted and regulations are
disallowable instruments, which have to be tabled in both Houses of Parliament.
Q14. Is the Australian government obligated to  adopt the safeguard recommendations contained in
a report of the Productivity Commission?
A.14 The Government's decision is legally independent of the Commission's report.   However, it
will be consistent with Australia's WTO obligations.
Q15. How are recommendations made by the Productivity Commission which are subsequently
accepted by the Minister adopted by the Australian government?
A.15 The Government would take the decision, following consideration by Cabinet.   The
imposition of measures would be through legislation and/or regulation.G/SG/Q1/AUS/3
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Q16. The Australian procedures do not contain provisions relating to the interval which must
elapse between two safeguard actions.  Can Australia explain this omission?
A.16 The Procedures relate to the enquiry, not the grounds for the initiation of an enquiry.   In
circumstances where Australia was not entitled to impose measures, then measures would not beimposed.   As an aside, conceptually the Commission could in fact take this into account under
paragraph 2 of the Procedures as reflected in the sp ecific reference, but this is something that would
not arise.
Q17. Are there any standards or requirements concerning the period of investigation in a safeguard
enquiry or is the Productivity Commission free to determine such a period on an ad hoc basis?
A.17 There are no such standards or requirements specified to the Commission.
Q18. Could Australia confirm that all safeguard acti ons will take the form of either quotas, tariff
quotas, or tariff level increases.   Is it correct to understand that Australia will not take safeguard
measures of any other type?
A.18 In accordance with the gazetted procedures, the  expectation is that measures requiring cover
under the Safeguards Agreement would take this form.
Q19. What provisions exist to allow for provisional duties collected to be refunded should a
permanent safeguard measure not be implemented?
A.19 That would be provided for under the legislation imposing any additional duty.   Note that if a
tariff bill was not enacted by the time of such a decision, then conceptually the Bill could be allowed
to lapse in which case duties would be refunded.
Q20. Article 7(4) of the Safeguard Agreement requires Members to progressively liberalize all
safeguard measures over one year in duration at regu lar intervals.  What provisions in the Australian
procedures ensure that such liberalization takes place?
A.20 This is not a matter for the Procedures but for the way in which the measures are imposed.
Q21. There appears to be an inconsistency between Section 16 of the Productivity Commission Act
and Article 3.2 of the Agreement on Safeguards, in that a refusal by an interested party to give
permission to the disclosure of a submission is no t a bar to disclosure of that submission?  Please
explain.
A.21 The processes followed by the Productivity Commission in responding to requests to keep
information confidential mean that section 16 of its Act and Article 3.2 of the Safeguards Agreement
do not come into conflict.
The Commission exercises its judgement as to what information should be kept confidential.
It asks people to make public all but the most sensitive commercial-in-confidence or otherwise highly
confidential information (such as profitability or pe rsonal information).   As exemplified in its current
enquiry into safeguard action on pigmeat, the amount  of information designated by the Commission as
confidential is very small and of a nature that should  be kept confidential.   If a participant insists on
confidentiality, despite the Commission's objection, the participant faces the options of having theCommission make the information public or withdraw ing the information.   In the latter case, the
Commission can disregard that information and rely on other appropriate sources.G/SG/Q1/AUS/3
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Q22. Can the Productivity Commission use its powers under Section 48, 49 and 50 of the
Productivity Commission Act for the purposes of a safeguard investigation?
A.22 The Commission has the ability to use its powers under sections 48, 49 and 50 of its Act in
any enquiry in which it is required to hold public hearings.   However, these powers have never beenused.
Q23. How does Australian law ensure that any terms of reference of a matter to the Productivity
Commission or any other form of request by the Mi nister for the Productivity Commission to conduct
a safeguards investigation comply with, and do not contradict, the substantive and procedural
requirements of the Agreement on Safeguards?
A.23 It does not, since in keeping with normal Australian treaty practice, the Safeguards Agreement
itself is not part of Australian domestic law.
United States
Q.1. In its legislation, Australia defines the term "like product".  Does Australia elsewhere define
the term "directly competitive product", and, if so, what is that definition?
A.1 This is left to the investigating authority to determine on a case by case basis.Q.2. Article 7, para. 1 of the Agreement on Safeguards provides that a Member shall apply
safeguard measures only for such period of time as may be necessary to prevent or remedy serious
injury "and to facilitate adjustment".  How does Australia plan to address the "facilitate adjustment"
requirement?  Will petitioning industries be required or encouraged to file adjustment plans?
A.2 This would depend on the circumstances of the case.   The report of the investigating
authority would address the situation of the industry and the adjustment issues would inevitably be
discussed by Government and industry.
Q.3. In the case of safeguard measures of more than three years duration, does Australia intend to
conduct mid-term reviews as required by Article 7, para. 4 of the Agreement on Safeguards?
A.3 If the situation arose, Australia would conduct a mid-term review as required under Article
7.4 of the Safeguards Agreement.
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