International Trade Remedies Forum terms of reference

1. Establishment

The International Trade Remedies Forum (forum) is established pursuant to s269ZZYB of the Customs Act 1901 (the act).

2. Role and purpose

Consistent with the act, the role of the forum is to advise the responsible Minister on the operation of, and improvements to, Australia’s anti-dumping and countervailing legislation (Part XVB of the act and the Customs Tariff (Anti-Dumping) Act 1975 (see appendix A).^[1]

3. Membership

Membership of the forum is set out in s269ZZYD of the act and provides that membership will consist of:

• Anti-Dumping Commissioner as presiding member
• 11 members representing one or more of the following groups:
  • Australian producers
  • Australian manufacturers
  • Australian industry bodies
  • Australian importers
• 4 members representing Australian trade unions
• members to represent the Commonwealth
• any other members the minister thinks fit.

The minister appoints all members^[2] by a written instrument, on a part-time basis and for a maximum of 3 years. Members may resign from the forum by giving the minister a written resignation notice.

4. Sub-committees

When important and/or complex issues of interest are identified by the forum, the presiding member may establish a sub-committee to assist the forum to provide advice to government on those issues. 

The presiding member will provide a sub-committee with a clear objective and timeframe within which to report. Once established, sub-committees will examine relevant issues, collect and analyse evidence and prepare reports that set out conclusions and recommendations for consideration by the forum. Nomination to membership of sub-committees is open to all forum members. Membership and scope of work of sub-committees will be determined by the presiding member in consultation with all forum members, having regard to the nature of the issue/s under consideration, and the functionality of the sub-committee.

5. Roles and responsibilities

5.1 Presiding member: Anti-Dumping Commissioner

The role of the presiding member is to: 

• convene at least 2 meetings of the forum each calendar year including setting the agenda in consultation with the forum
• preside at the meetings at which they are present including leading discussion and decision-making processes
• establish and determine arrangements for sub-committees in consultation with forum members. 

In carrying out their role, the presiding member will be assisted by the forum secretariat (see 5.4).

5.2 Members

The role of members is to: 

• attend forum meetings and sub-committee meetings as appointed
• identify matters for discussion by the forum
• contribute to discussion of issues raised, including through inter-sessional work agreed by the forum
• contribute to the work of sub-committees as nominated
• share their professional expertise and knowledge of the trade remedies system.

In addition to the above, the role of government members also includes updating the forum on:

• the operation of Australia’s trade remedies system
• matters related to the operation of Australia’s trade remedies system.

5.3 Sub-committees

The role of any sub-committee is to:

• facilitate deeper consideration of issues raised in the forum
• report to the forum, including making any recommendations for the forum’s consideration.

5.4 Secretariat

The role of the forum secretariat is to:

• support the presiding member to convene and coordinate forum meetings
• support the presiding member to establish sub-committees
• support cooperation and information exchange among forum members and sub-committees by circulating documents and maintaining records in a timely manner to ensure issues can advance.

The responsibilities of the forum secretariat include, but are not limited to:

• support convening forum meetings
  • providing the date and requesting agenda items and decision or discussion papers
• maintaining a register of members and representatives
  • directing all communications regarding ongoing forum business to representatives.
  • directing all communications regarding forum appointments to members and their current representatives
• preparing and distributing any forms required for the operation of these terms of reference including, but not limited to:
  • forms for the nomination of representatives
  • forms for the nomination of proxy members (see appendix A, section 5, proxy voting)
  • forms to suggest agenda items
• circulating all agendas and decision papers.
• circulating the draft minutes of forum meetings.
• making available hard copy agendas and papers, including discussion papers, at forum meetings.
• maintaining all voting records and compiling voting statements to assist members to prepare any final reports or correspondence.

6. Conduct of meetings

All forum and sub-committee meetings will be conducted in the spirit of co-operation and members will engage in professional, respectful discussions. 

The presiding member or sub-committee chair/s will seek to ensure a balance of views are presented in all Forum and sub-committee meetings from across the membership. 

The working procedures at appendix 1 will apply to all forum meetings. 

Sub-committees are to agree their own working procedures, including decision making processes based on the issues under consideration and membership represented. Sub-committees can expressly delegate reporting recommendations to the sub-committee chair.

7. Amending the terms of reference

Pursuant to s269ZZYG(4) of the act, the minister, or their delegate, may determine the procedures to be followed at meetings of the forum (forum working procedures). 

These terms of reference are to be considered a forum working procedure (subject to determination by the minister). 

The minister or their delegate may amend forum working procedures.

Where a majority of all members agree to an amendment of forum working procedures, the presiding member will request the minister or their delegate to amend the forum working procedures. The presiding member will seek to convey to the minister the various member views in relation to the proposed amendment. 

Alternatively, the presiding member may themselves, in consultation with members, propose an amendment of the forum working procedures to the minister or their delegate, and will seek to convey to the minister the various member views in relation to the proposed amendment

Appendix A: Forum working procedures

1. Member representatives

1.1. Member entities are appointed by the minister under s269ZZYE of the Customs Act 1901 (the act) (‘member’).

1.2. Following appointment, members are to nominate to the forum secretariat an individual to represent them (‘representative’).

     1.2.1. Representatives are taken to represent their member’s interests, views and positions on issues raised in the conduct of forum business, including any sub-committees and decision making.

     1.2.2. Representatives must be employed or engaged by the member, and represent only one member entity.

     1.2.3. Members may change their representative at any time by written notice to the secretariat.

     1.2.4. Members may have no more than one representative at a time.

1.3. Where a representative is not able to attend a forum or sub-committee meeting, the member may nominate an alternate to attend (‘alternate’).

      1.3.1. Alternates must be employed or engaged by the member, and represent only one member per membership term.

1.4. Non-government members may nominate one observer to attend forum meetings in a non-voting and non-speaking capacity (‘observer’).

      1.4.1. Where appropriate, the presiding member can approve requests for an observer to speak on a particular agenda item.

1.5. Government members may nominate multiple non-voting observers and the presiding member may approve a standing right to speak (e.g., Deputy Commissioners of the Anti-Dumping Commission).

1.6. Representatives, alternates and observers are at all times to conduct themselves in a professional and respectful manner.

2. Convening Meetings

2.1. The forum secretariat will support the convening of a minimum of 2 meetings of the forum per year.

      2.1.1. These meeting will, where possible, provide an opportunity for members to meet in person and will also offer virtual attendance options.

2.2. Additional meetings can be convened by the presiding member, who will consider requests for additional meetings by any member (additional meetings).

2.3. The presiding member may, in consultation with the forum, determine that the notice provisions that normally apply to meetings do not apply to additional meetings if:

1. notice of the issues for discussion or decision were provided in the previous forum meeting; or
2. it is an urgent matter that requires consideration outside of normal notice periods; or
3. all members agree.

3. Conduct of meetings

3.1. Unless previously agreed, all forum meetings will be held under the Chatham House Rule^[3] to promote free and open discussion amongst members.

3.2. A member or members may participate in, and form part of a quorum at forum meetings by telephone or virtually.

4. Quorum

4.1. Quorum shall be met when half the number of non-government members are in attendance.

4.2. Meetings of the forum can proceed without quorum.

4.3. Quorum is required for the forum to reach agreements and make decisions.

5. Proxy voting

5.1. Where a member is not able to attend a forum or sub-committee meeting where a vote is on the agenda, that member (’nominating member‘) may nominate another member (’proxy member’), or the secretariat, to vote on its behalf (’proxy’), using any form provided.

      5.1.1. The nominating member is to advise the secretariat of the matter and the nominating member’s position that the proxy will be voting on their behalf.

      5.1.2. Proxies are to be communicated to and accepted by a proxy member no later than one hour prior to commencement of a forum meeting, and copied to the Secretariat.

      5.1.3. Proxies will be communicated to all members at the relevant meeting.

      5.1.4. For the avoidance of doubt, a proxy member is not a representative for the purposes of section 1, appendix A and their role in relation to a nominating member is limited to voting on their behalf.

5.2. Where a member does not attend a forum meeting and does not nominate a proxy it will be taken as having abstained on any vote.

6. Agreement and decision-making

6.1. No individual member or sub-committee may make representations on behalf of the forum without its agreement.

      6.1.1. Agreement by the forum requires a bare majority (half the number of non-government members, plus one) of all members in attendance to vote in support (including proxies).

      6.1.2. Where agreement is sought inter-sessionally, it requires a bare majority of all members responding by the due date to vote in support.

      6.1.3. The secretariat must keep a record identifying which members voted in support, which voted against, and which members abstained (‘voting record’).

6.2. Any member, sub-committee, or the secretariat can bring an issue to the forum for consideration of matters including, but not limited to, proposed establishment or conclusion of a sub-committee, proposed correspondence and/or recommendations to the minister, or proposed topics for discussion.

6.3. Matters for discussion by the forum should be identified on the relevant meeting agenda, or raised in ‘other business’.

      6.3.1. Matters for discussion should be supported by a paper outlining the issue and any questions for members (‘discussion paper’).

      6.3.2. Discussion papers must be provided to the secretariat no later than 21 working days prior to the relevant scheduled forum meeting.

      6.3.3. Votes cannot be sought on matters for discussion or discussion papers.

      6.3.4. ‘Other business’ will be a standing item in all meeting agendas.

            6.3.4.1. ‘Other business’ items can be proposed to the presiding member, who will in consultation with the ITRF members, determine if it is appropriate to add the item to the agenda given the normal notice requirements for discussion and decision items will not apply.

6.4. Matters seeking decision by the forum must be identified on the relevant meeting agenda.

      6.4.1. Matters seeking decision must be accompanied by a paper outlining the issue and decision/s sought (‘decision paper’).

      6.4.2. Decision papers must be provided to the secretariat no later than 21 working days prior to the relevant scheduled meeting.

6.5. When voting on a decision paper, a record must be kept identifying which members voted in support, which against, and which in abstention (‘voting record’).

6.6. Any members voting in support, voting against, or abstaining will be given an opportunity, within a reasonable period of time, to provide a statement supporting their position (‘voting statements’).

6.7. Any correspondence or reports on the matter must include the voting record and voting statements to ensure all perspectives of forum members are captured.

6.8. For the avoidance of doubt, membership of the ITRF does not prevent any member, in their individual capacity, making representations on anti-dumping matters or the anti-dumping system to government ministers, departments or their agencies.

7. Presenting advice

7.1. The forum may agree to request the presiding member present a report, advice and recommendations of the forum to the minister for consideration (see appendix A, section 6, agreement and decision making).

      7.1.1. This will be facilitated by way of ministerial submission, which will include any voting record and voting statements.

      7.1.2. Where possible and practicable, any submission will reflect where there are alternative views to the majority.

7.2. Any matters presented for ministerial consideration will be the subject of standing updates by the secretariat in future forum meetings.

8. Circulation of materials

8.1. The forum secretariat will provide the date and request agenda items and decision or discussion papers no later than 30 working days prior to a meeting. 

8.2. Where forum agreement is sought, all relevant materials are to be circulated by the forum secretariat to members at least 20 working days in advance of a forum meeting.

      8.2.1. Members are to share decision papers with the forum secretariat at least 21 working days in advance of a forum meeting.

8.3. Where forum discussion is sought, all relevant materials are to be circulated by the forum secretariat to members at least 20 working days in advance of a forum meeting.

      8.3.1. Members are to share discussion papers with the forum secretariat at least 21 working days in advance of a forum meeting.

8.4. Late materials may be circulated as matters for other business, for consideration if time permits as described in appendix A, section 6, agreement and decision making.

8.5. The forum can agree to hold over consideration of a matter to a later meeting or to progress it inter-sessionally.

8.6. Draft minutes of forum meetings will be circulated within 10 business days after a meeting

9. Sub-committee reporting

9.1. The forum must consider timely advice, reports or recommendations from a sub-committee at the next scheduled meeting.

9.2. The forum can agree to return advice, reports or recommendations from a sub-committee for further examination.

9.3. To conclude the work of sub-committees the forum should be presented with a concluding report from a sub-committee. Where possible and practicable, any report should reflect where there are alternative views to the majority.

9.4. The forum can request a sub-committee to present a concluding report at the next scheduled meeting if it considers the issues exhausted.

Appendix B: Establishing legislation

Customs Act 1901 (Cth) Part XVC—International Trade Remedies Forum 

Section 269ZZYA: Simplified outline 

The following is a simplified outline of this part:

• This part establishes the International Trade Remedies Forum
• The forum is to advise the minister on the anti-dumping provisions in part XVB and in the Customs Tariff (Anti Dumping) Act 1975.

Section 269ZZYB: Establishment of International Trade Remedies Forum 

The International Trade Remedies Forum is established by this section. 

Section 269ZZYC: Functions of the forum 

The forum has the following functions:

1. to advise the minister on the operation of part XVB and of the Customs Tariff (Anti-Dumping) Act 1975
2. to advise the minister on improvements that could be made to that part or act.

Section 269ZZYD: Membership of the forum 

1. The forum consists of the following members: 
   
   1. the commissioner (within the meaning of part XVB);
   2. 11 members, each of whom represents one or more of the following groups:
      
      1. Australian producers
      2. Australian manufacturers
      3. Australian industry bodies
      4. Australian importers
   3. 4 members who represent Australian trade unions
   4. such number of members to represent the Commonwealth as the minister thinks fit
   5. such other members (if any) as the Minister thinks fit.
2. Each of the groups mentioned in paragraph (1)(b) must be represented by at least one of the 11 members referred to in that paragraph.

Section 269ZZYE: Appointment of forum members

1. Each member of the forum (except the commissioner (within the meaning of part XVB)) is to be appointed by the minister by written instrument.
2. Each member of the forum (except the commissioner (within the meaning of part XVB)) holds office on a part time basis.
3. Each member of the forum (except the commissioner (within the meaning of part XVB)) holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.
4. An appointment under this section is not a public office for the purposes of part II of the Remuneration Tribunal Act 1973.

Section 269ZZYF: Resignation

1. A member of the forum (except the commissioner (within the meaning of part XVB)) may resign his or her appointment by giving the minister a written resignation.
2. The resignation takes effect on the day it is received by the minister or, if a later day is specified in the resignation, on that later day.

Section 269ZZYG: Forum meetings 

Number of meetings 

1. The forum must meet at least twice each calendar year. 

Commissioner to convene meetings

2. The commissioner (within the meaning of part XVB) may convene a meeting at any time. 

Presiding member

3. The commissioner (within the meaning of part XVB) presides at all meetings at which he or she is present. The commissioner may nominate a person to attend a meeting in his or her place and, if the commissioner does so, that person presides. 

Conduct of meetings 

4. The minister may, by writing, determine the procedures to be followed at meetings of the forum, including the number of members who are to constitute a quorum.
5. A determination made under subsection (4) is not a legislative instrument.
6. The minister may, by signed instrument, delegate to the following the power of the minister under subsection (4):
   
   1. the commissioner (within the meaning of part XVB);
   2. a commission staff member (within the meaning of that part)

Footnote

1. Customs Act, see sections 269ZZYA to 269ZZYH 

2. Excluding the Presiding Member

3. When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.