FEDERAL COURT OF AUSTRALIA
Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2)
[2009] FCA 838
ADMINISTRATIVE LAW–– anti-dumping duty –– sunset review –– Customs Act 1901 (Cth) Div 6A Pt XVB –– ss 269TAE, 269 ZHF, 269ZHG –– test to be applied by Chief Executive Officer of Customs in preparing statement of essential facts and report to Minister and by Minister in declaring continuation of anti-dumping duty –– CEO had to be satisfied expiration of measures would lead or be likely to lead to continuation or recurrence of material injury existing measure intend to prevent –– whether the CEO and Minister had to consider whether material injury was being caused, or threatened to be caused, by dumping –– whether s 269TAE applied so as to require likelihood of material injury to be foreseeable and imminent –– whether material injury was being caused or threatened by a factor other than dumping of imports
ADMINISTRATIVE LAW –– administrative decision making –– CEO required to form a particular state of satisfaction –– importance of decision maker actively considering a statutory requirement, rather than giving it cursory consideration and putting it to one side
Words and Phrases: “would be likely to lead”, “material injury” and “non-injurious price”
Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss 6, 8
Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 Art 11.3
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 cited
Buck v Bavone (1976) 135 CLR 110 cited
East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007)233 CLR 229 followed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 cited
Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service (2006)156 FCR 94 cited
Swan Portland Cement Ltd v Minister for Small Business and Customs (1991)28 FCR 135 at 144 cited
Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 applied
The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 discussed
United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) discussed
United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4) discussed
NSD 1557 of 2008
RARES J
7 AUGUST 2009
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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general division |
NSD 1557 of 2008 |
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SIAM POLYETHYLENE COMPANY LIMITED Applicant
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AND: |
MINISTER OF STATE FOR HOME AFFAIRS First Respondent
CHIEF EXECUTIVE OFFICER OF CUSTOMS Second Respondent
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JUDGE: |
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DATE OF ORDER: |
12 AUGUST 2009 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. Order 1 made on 7 August 2009 (relating to publication of the Court’s reasons for judgment) cease to have effect forthwith.
2. In so far as they relate to the applicant, the recommendations made to the first respondent by the second respondent in Trade Measures Report 137 on or about 20 August 2008 under section 269ZHF(1) of the Customs Act 1901 (Cth) be set aside.
3. The declaration dated 27 August 2008 made by the first respondent under section 269ZHG(1) of the Customs Act 1901 (Cth) and published by notice dated 3 September 2008 be set aside in so far as they relate to the applicant.
4. The first and second respondents pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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general division |
NSD 1557 of 2008 |
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BETWEEN: |
SIAM POLYETHYLENE COMPANY LIMITED Applicant
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AND: |
MINISTER OF STATE FOR HOME AFFAIRS First Respondent
CHIEF EXECUTIVE OFFICER OF CUSTOMS Second Respondent
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JUDGE: |
RARES J |
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DATE: |
7 AUGUST 2009 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 These proceedings are related to Siam Polyethylene Co Limited v Minister of State for Home Affairs [2009] FCA 837 (the review judgment). However, they have raised a distinct and new legal and factual contest between Siam Polyethylene Co Limited and the respondents under the Customs Act 1901 (Cth). In the review judgment, the issue between the parties related to the Minister’s decision on a review of anti-dumping measures under Div 5 of Pt XVB of the Act. In this judgment I have not repeated my analysis of the facts or legislation but have relied on it, so far as it is relevant and I have used the same expressions and short form descriptions.
2 These proceedings concern a subsequent decision under Div 6A of Pt XVB by the Minister to continue against Siam existing anti-dumping measures in place following the earlier review. The Minister made the relevant decision on 27 August 2008 by signing a public notice pursuant to s 269ZHG(1) of the Act. In the notice the Minister declared that he had decided to take steps to secure the continuation of anti-dumping measures currently applying to the product exported to Australia from Thailand. The Minister also declared that he had considered Trade Measures Report No 137 (Report 137), that had been completed by the CEO on 20 August 2008, and accepted its recommendations and the reasons for the recommendations including all the material findings of fact or law set out in the Report.
3 Siam complained that the decision of the CEO to make the recommendations and decision of the Minister to accept them were not authorised by the Act because:
(1) the respondents had misconstrued Div 6A of Pt XVB of the Act by applying the wrong test for the purposes of ss 269ZHF and 269ZHG. Siam argued that the respondents needed to ask whether they were satisfied that it would be more probable than not that the expiration of anti-dumping measures on 3 December 2008 (when the existing measures would expire by force of s 269TM(1)) would lead, or would be likely to lead, to a continuation of or a recurrence of the dumping and the material injury that the existing anti-dumping measures were intended to prevent (see s 269ZHF(2)) unless the measures were continued after that time;
(2) the respondents had erred in failing to construe the expression “material injury” in s 269ZHF(2) in the sense of an injury that was foreseeable and imminent as required by s 269TAE(2)(b);
(3) the respondents had failed to consider whether, in accordance with s 269TAE(2)(a), the relevant material injury to the Australian industry was being caused or threatened by a factor other than the exportation of the product from Thailand.
Statutory Scheme
4 I have already set out much of the statutory scheme in the review proceedings. However, Div 6A of Pt XVB provides a further part of the scheme and deals with consideration of whether existing anti-dumping measures ought be continued. The scheme of Div 6A of Pt XVB of the Act requires the CEO and the Minister to consider the operation and extension of a notice previously published pursuant to the power s 269TG(2). In the event that that earlier notice has been varied pursuant to a review under Div 5 of Pt XVB, it is the notice as varied that is the subject of consideration for a continuation under Div 6A.
5 The CEO must publish a notice in certain newspapers not later than nine months before a particular anti-dumping measure is due to expire at the end of its then current 5 year term. The notice must inform persons that, relevantly, an existing dumping duty notice (such as that in the present case) is due to expire on a specified day and invite interested parties to apply to the CEO in accordance with s 269ZHC within 60 days for a continuation of those measures (s 269ZHB(1)). If no application for a continuation is received by the CEO within that time period, then on the specified expiry date, any dumping duty notice issued under s 269TG(2) expires (s 269ZHB(3)(a)).
6 Next, s 269ZHC sets out for the formal requirements of an application to continue anti-dumping measures. Once such an application has been lodged with Customs, the CEO must examine each such application within 20 days after the end of the 60 day period referred to in s 269ZHB(1)(b) (see s 269ZHD(1)). The CEO then must publish in a newspaper a notice indicating that it is proposed to inquire whether the continuation of measures is justified if certain conditions are met (see s 269ZHD(1), (2) and (4)). These are that the CEO is satisfied, having regard to the application and any other information that the CEO considers relevant, that the application complies with the formal requirements in s 269ZHC and there appear to be reasonable grounds for asserting that the expiration of the anti-dumping measures to which the application relates “… might lead, or might be likely to lead, to a continuation of, or a recurrence of, the material injury that the measures are intended to prevent”.
7 The words that I have just emphasised indicate the threshold prescribed by s 269ZHD(2)(b) for the satisfaction of the CEO to advertise the proposed inquiry. The CEO must prepare a report within no more than 155 days after publication of such a notice (s 269ZHD(5)(c); s 269ZHF(1)). Interested parties must be invited in the advertisement to lodge submissions concerning the continuation of the measures within 40 days (s 269ZHD(5)(d)). The CEO then publishes a statement of essential facts within 110 days after publication of the notice (s 269ZHD(5)(e); s 269ZHE). In formulating the statement of essential facts the CEO must have regard to the application concerned and submissions relating generally to the inquiry received by Customs within 40 days after the publication of the initial notice and any other matters that the CEO considers relevant (s 269ZHE(2)). Within 20 days of the statement being placed on the public record interested parties must be invited to lodge with the CEO submissions in response to that statement (s 269ZHD(5)(f)).
8 Relevantly, s 269ZHF provides:
“(1) The CEO must, after conducting an inquiry into the continuation of anti‑dumping measures and before the end of the period referred to in paragraph 269ZHD(5)(c) as it applies to those measures, give the Minister a report recommending:
(a) that the Minister take steps to secure the continuation of the anti‑dumping measures the subject of the application; or
(b) that the anti‑dumping measures expire on the specified expiry date.
(2) The CEO must not recommend that the Minister take steps to secure the continuation of the anti‑dumping measures unless the CEO is satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti‑dumping measure is intended to prevent.
(3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO’s report, the CEO:
(a) must have regard to:
(i) the application for continuation of the anti‑dumping measures; and
(ii) any submission relating generally to the continuation of the measures to which the CEO has had regard for the purpose of formulating the statement of essential facts in relation to the continuation of those measures; and
(iii) that statement of essential facts; and
(iv) any submission made in response to that statement that is received by Customs within 20 days after the placing of that statement on the public record; and
(b) may have regard to any other matter that the CEO considers to be relevant to the inquiry.” (emphasis added)
9 The test in s 269ZHF(2) is expressed differently to the threshold for holding the inquiry under s 269ZHD(2)(b). The report to the Minister must include a statement of the CEO’s reasons for any recommendation contained in the report, set out the material findings of fact on which that recommendation is based and provide particulars of the evidence relied on to support those findings: s 269ZHF(5).
10 Critically, the Minister must then make a decision in accordance with s 269ZHG(1) which provides as follows:
“(1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must, by notice published in accordance with subsection (2), declare whether or not the Minister has decided to take steps to secure the continuation of the anti‑dumping measures concerned.”
11 Any notice under s 269ZHG(1) must be published before the expiry day specified in the existing s 269TG notice (s 269ZHG(2). If the Minister declares that he or she has decided not to secure continuation of the anti-dumping measures then, on the specified day, the existing notice expires by force of s 269ZHG(3)(a). On the other hand, s 269ZHG(4)(a) provides:
“(4) If the Minister declares that he or she has decided to secure the continuation of the anti‑dumping measures, the continuation of those measures is so secured:
(a) to the extent that the measures comprise the publication of a dumping duty notice—by the Minister determining, in writing, that the notice continues in force after the specified expiry day;”
12 Where the Minister decides to continue anti-dumping measures they will remain in force pursuant to s 269ZHG(5) for five more years after the specified expiry date (fixed under s 269TM(1)), unless revoked before the end of the period. The continued notice then becomes reviewable under Div 5 of Pt XVB.
The continuation inquiry
13 In December 2007 Customs published a notice in newspapers inviting persons specified in s 269ZHB(1)(b) to apply to the CEO for continuation of the anti-dumping measures on the product exported from Korea and Thailand. On 18 February 2008 Qenos applied for that continuation and a month later Customs commenced the continuation inquiry. On 7 July 2008 Customs placed a statement of essential facts on the public record and invited interested parties to provide submissions in response to it within three weeks. The CEO prepared and provided the Minister with a final report, Report 137, on 20 August 2008.
14 The period of inquiry for Report 137 was the calendar year 2007. In preparing Report 137 Customs stated that it had had regard to information it had obtained in the course of preparing, and the conclusions reached in, Report 134 the subject of the review judgment. The CEO concluded that it was not necessary to continue anti-dumping measures against the exports of the product from Korea, but was satisfied that the measures should be continued against exports of the product from Thailand, including exports by Siam. Report 137 found that the Australian market had grown from around 160,000 metric tonnes per annum in the period between 2004 and 2006 to approximately 220,000 metric tonnes in 2007. Qenos had attributed this increase to water restrictions and government incentive schemes that had promoted high demand in Australia for rotational moulding linear low density polyethylene for use in the manufacture of water tanks. However, Customs found that Siam did not export that type of polyethelene.
15 Report 137 noted that Qenos had had to source imported material to supplement its own production. The Report found that the total import volumes of the product from all countries declined between 2003 and 2006 before doubling in 2007. In 2007 imports supplied approximately 50% of the Australian market, an increase from around 40% in previous years. Report 137 found that Qenos’ market share increased in each year up to 2006 but fell in 2007 with the sharp increase in import volumes. The Report found following the imposition in December 2003 of anti-dumping measures on all Thai exporters import volumes from Thailand had declined in 2004 but imports had since gradually increased to levels where they were currently similar to those before the measures were imposed. Report 137 stated that it had used and verified the information Customs had obtained from Siam in the course of its inquiry in preparing Report 134.
16 Report 137 noted that Qenos’ application claimed that it had continued to experience price related injury from exports of the product to Australia at dumped prices from Korea and Thailand. Qenos provided the CEO with information based on a prediction in an industry consulting service report suggesting that prior to 2011 manufacturing capacity, particularly in the Asia-Pacific and Middle East regions, would increase by approximately 6.7 million metric tonnes out of a total world increase in capacity of 7.5 million metric tonnes. Customs analysed the Australian market in confidential appendices to Report 137. That analysis revealed that between 2003 and 2007 Qenos’ total production and domestic sales had increased, as had its profitability, although there were signs of slowing demand and reduced profit in the December 2007 quarter.
17 Qenos informed the CEO that costs and prices had been increasing in the market since 2003 and that the anti-dumping measures had had limited impact, because even when reviewed, the variable factors continually lagged behind the contemporary prices in the market. In response to Dow’s claims about the strong industry performance referred to in the statement of essential facts for Report 134, Qenos argued that its performance had deteriorated more recently and reductions in its margins could be attributed to increases in dumped imports.
18 During the course of the inquiry for Report 137, Dow agreed with Qenos that in recent years the anti-dumping measures had not reflected the increased regional and domestic pricing for the product, but it argued that Qenos had performed strongly in the periods when the measures were ineffective. Dow claimed that this supported its view that the imports from its supplier, Siam, had not caused injury to Qenos. Dow also agreed with Qenos that regional pricing was starting to soften in the market. But Dow argued that this softening and any foreshadowed increase in manufacturing capacity in coming years did not pose a threat of increased dumping and material injury to the Australian industry. Dow argued that any softening in prices in Australia would probably be accompanied by a general decline in pricing throughout Asia and the Middle East, resulting in reduced normal values and no great a risk of dumping. Dow also argued that Siam had a history of exports of its product to Australia at prices that did not cause injury to the Australian industry.
19 Report 137 found that imports from Thailand were at dumped prices. It noted that no other country had in place, or was currently investigating, any anti-dumping measures against exports of the product from Thailand and that manufacturers in Thailand who exported to Australia were operating at close to full capacity. The Report found that on the information available to Customs, supply was expected to exceed demand in Asia in the coming years, although it had no information on the global demand/supply balance. The Report found that the information indicated there would be significant increases in capacity to supply the product in Asia and the Middle East in coming years and that this, when it came on line, could be expected to ease the tight supply to the market for the product in the region. Customs found that it was difficult to predict the timing and impact of the expansions in manufacturing capacity.
20 The Report then examined the pricing of imports in the Australian market and the substitutability between varieties of the product here. The Report compared selling prices to Australian domestic customers common to both Qenos and Siam. It observed that there had been some price undercutting for some common customers. The analysis was in confidential appendix 7. I think it is possible to describe this material without divulging information that might be confidential.
21 The sales’ values and volumes recorded for each of the five quarters to December 2007 in confidential appendix 7 reveal minor instances where Dow’s prices were less than Qenos’. However, their sales by value and volume for their largest common customers far exceeded the balance for the other customers. These recorded Dow’s prices (for Siam’s product) as always higher on those large volumes at a time when, as Report 134 later showed, no measures had any relation to the operation of the market. In the cases of some common customers, the value and volume of sales for one of either Dow or Qenos were radically different to those from the other, so that the differences begged an explanation that was not explored beyond the Report observing the mere price difference. In other instances, Qenos’ prices for particular customers appeared well above its average prices, whereas Dow’s appeared reasonably consistent with its average prices. And, in one case, despite Qenos’ having higher prices in the only two quarters in which both it and Dow sold to the customer, Qenos appeared to be gaining significant sales at Dow’s expense.
22 Overall, confidential appendix 7 showed that Siam’s average unit prices per kilogram appeared relatively consistent, but with minor variations in respect of each customer, while there were significant variations between customers in Qenos’ average unit prices.
23 The material in confidential appendix 7 suggested that there were factors particular to the individual customers, and quarters, that affected both the volumes and pricing of each of Qenos and Siam’s products. A mere comparison of price did not self-evidently explain any of the recorded differences as being attributable to dumping. Indeed, the sheer size and value of the sales to the first two listed customers and for all customers (not limited to the common customers) suggested that Qenos was able to compete on price at large volumes without Dow undercutting it.
24 Report 137 in its public section, found that the selling prices of imported product from Thailand were at times lower, higher and similar to Qenos’ prices. It found that:
“… on average, quarterly Thai [product] prices were above Qenos’s quarterly average film grade prices but that a gap between Thai and Qenos [product] average prices was closing and at the end of 2007, the average price of Thai imports was only slightly higher than Australian industry prices”. (emphasis added)
The Report found that imports from Thailand actively competed on price with the product manufactured by Qenos. The CEO expected that the removal on 1 January 2008 of Customs duty on product imported from Thailand would have made the prices of any dumped goods from Thailand “more competitive in the Australian market”. It noted that the majority of the product imported from Thailand was C8 (grade) which, under normal market conditions, typically commanded a higher price than grades C6 or C4.
25 The Report observed that Report 134 had found Thai export prices to be below its findings of the non-injurious prices. Report 137 noted that Dow had claimed that those non-injurious prices had been calculated at an artificially high level and reflected a level of profitability unlikely to be generally available to any other industry participant or to end-users. The CEO responded by saying:
“Customs considers that the [non-injurious prices] applying following the review were calculated in accordance with its normal hierarchy of methodology and Customs understanding of the [product] market in Australia.”
It described the “price undercutting analysis” as being contained in confidential appendix 7. However, beyond displaying the comparative data, there was no analysis of or any reason given why, such relatively small undercutting by Dow as was recorded had occurred.
26 Report 137 found that there were different technical properties that meant that grades C8 and C6 of the product were not perfectly substitutable but considered that some end-users might substitute C8 for C6 “… if the relative pricing made it economically feasible” and continued:
“For example, Amcor submitted that Dow, an importer of [the product] from Thailand, had a range of [product] resins that are substitutable for Qenos grades. Customs remains of the view that imports of [the product] from Thailand, if dumped, have the potential to cause injury to the Australian industry producing like goods.” (emphasis added)
27 The Report’s conclusion on the likelihood of material injury noted that there had been an increase in volumes of the product imported from Thailand in recent years and that Report 134 had shown that the imports were at dumped prices. Report 137 found that although users had preferences for certain material, there was competition on prices between the product manufactured by Qenos and imports from Thailand. The Report found that average pricing in the Australian market for the Thai product at the end of 2007:
“… was converging with [Qenos] pricing. Customs observed undercutting to some common customers and Qenos provided reports of price competition between its product and Thai imports.
Customs notes that most imports of [the product] from Thailand are C8 which are normally higher priced than C6 … and that, as of 1 January 2008, imports of [the product] from Thailand no longer attract Customs duty.
Although Qenos’s [product] business has performed strongly in recent years, interested parties have submitted to Customs that the regional and Australian markets have begun to slow. This is likely to create an environment where the Australian industry is more susceptible to injury caused by dumping. The Australian industry’s performance showed some signs of deterioration towards the end of the period examined.
Customs considers that it is likely that dumped imports from Thailand would cause material injury to the Australian industry if the measures expired.” (emphasis added)
On this basis, the CEO recommended that the anti-dumping measures on the product exported from Thailand be continued pursuant to s 269ZHF(1) of the Act.
28 Report 137 recorded in section 8 the CEO’s consideration and conclusions on the central questions of the likelihood of dumping and injury recurring. It found that the information provided to it by Siam, the other Thai exporter and a Korean exporter showed that the three manufacturers were operating at close to full capacity. It found this was supported by information supplied by Qenos that showed high capacity utilisation rates in both countries. The Report continued:
“Customs agrees that it is difficult to predict the timing and impact of capacity expansions. However, in Customs view, the significant capacity expansions foreshadowed could cause oversupply and encourage producers to increase sales to export markets in an effort to keep plant utilisation high. Customs satisfaction about the likelihood of dumping from Thailand is principally based on its findings in the recent review of measures. The probability of increased supply in the region in coming years, including in Thailand, only serves to reinforce this satisfaction in respect to imports from Thailand.” (emphasis added: The “recent review of measures” was a reference to Report 134.)
Submissions: Issue 1
Did the respondents misconstrue the test for continuing anti-dumping measures?
29 Siam argued that the reasoning in Report 137 recording the CEO’s satisfaction as to the matters set out in s 269ZHF(2) was the product of hypothesising about the impact of unknown and undefined future events that bore no causal relationship to the expiry of the measures. Siam contended that, the conclusions in Report 137 that the expiration of the measures would lead or be likely to lead to the occurrence or recurrence of both dumping and material injury, and particularly the likelihood of dumping causing or threatening material injury, were not sufficiently causally connected in a reasoning process in the Report to justify the decision to continue the measures against Siam. Siam argued that the respondents had used speculation rather than a rigorous examination of a kind envisaged by the WTO Appellate Body in United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) at [111].
30 The respondents argued that the terms of s 269ZHF(2) were materially similar to Art 11.3 of the implementation agreement. They argued that the considerations identified by Report 137, provided a reasoning process that was open to, and sufficient for, the CEO and the Minister. They referred to the finding in the Report that Siam had continued to dump the product in Australia even while the existing measures were in force, as leaving it open to the CEO and the Minister to conclude that it was likely that such activity would continue if the measures did not remain in place. The respondents accepted that the CEO was not empowered to make a recommendation under s 269ZHF(2) on the mere possibility of dumping or on no more than speculation, but contended that the CEO had had a more solid foundation for the recommendation and had correctly applied the relevant test.
31 The respondents contended that the CEO’s conclusion that imports from Thailand actively competed on price with the product produced in Australia was open on the other findings in the Report notwithstanding that Siam’s product was of a higher grade than Qenos’. They pointed to the findings that the average price of Thai imports at the end of 2007 was only slightly higher than Qenos’ prices, despite Siam’s being of a higher quality, and that the removal of duty from 1 January 2008 would only have improved the competitive position of Siam’s products, if measures were not in place. They referred to the fact that Report 134 had ascertained a non-injurious price for Siam’s products. They also relied on the Report’s finding that Siam’s product had a degree of substitutability that could cause injury to the Australian industry.
32 The respondents contended that it was open to the CEO to make the finding in Report 137 that in that context it was likely that there would be price convergence between Siam’s imports and Qenos’ product. They argued that the test of causation of material injury was “essentially a practical exercise that had the purpose of achieving an objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from dumping”, relying on what Lockhart J had said in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991)28 FCR 135 at 144; and Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service (2006)156 FCR 94 at 115-116 [147]-[149] per Jacobson J.
Issue Two
Did the respondents misconstrue the application of s 269TAE(2B)?
33 Siam argued that Report 137 did not address the central question in s 269ZHF(2), because it did not identify the requisite degree of likelihood of the threat of dumping and material injury that the anti-dumping measure was intended to prevent. It contended that the final criterion in s 269ZHF(2) required the CEO and the Minister to address whether the injury or threat was foreseeable and imminent within the meaning of s 269TAE(2B). Siam argued that Report 137 had not found that any injury had been caused to Qenos in the past and none had been found that would be caused more probably than not in the future by the factors it considered. So, Siam argued, the exercise of the power to continue the measures, consistently with s 269ZHF(2), required the CEO and the Minister to identify a threat of material injury that met or had regard to the test in s 269TG(2) for the initial imposition of anti-dumping measures. In support of this construction it relied on comments in the Explanatory Memorandum for the 1998 amendments that introduced s 269ZHF(2). Siam argued that in performing this task the Minister could take account only of such changes in circumstances, within the meaning of s 269TAE(2B) “as would make that injury foreseeable and imminent unless dumping … measures were imposed”.
34 The respondents argued that s 269TAE(2B) had a limited role, and operated only in the situation in which there were no measures in place. They argued that s 269TAE(2B) had no relevance to an assessment of dumping, as opposed to material injury. The respondents contended that s 269ZHF(2) stated its own test for the purposes of a review under Div 6A of Pt XVB, and it was not constrained by, and applied in a different situation to, the test for imposing the measures originally under s 269TG(2), using s 269TAE(2B). In addition, the respondents argued that they had considered the changes in market conditions, including that the market had continued to slow, in assessing that injury was likely, not merely threatened. They argued that there was also evidence of current pricing that would cause injury but for the measures and that sales at dumped prices would be below the non-injurious price. They relied on the decision of the WTO appellate body in United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4) at [271]-[285] as supporting the approach that they had taken.
Issue Three
Should the respondents have excluded any factor other than Siam’s exportation to Australia in considering whether any injury to Qenos was threatened?
35 Siam argued that the CEO made no findings in Report 137 about Siam or its relationship to any material, or other, injury to Qenos from dumping. Rather, Siam complained that the Report merely asserted, without any analysis or reasoning, that Customs had not attributed any potential injury from other factors as increasing any potential injury from dumping. It contended that s 269TAE(2A) required the respondents, first, to consider whether any other factors were causing or threatening to cause material injury to the Australian industry and, secondly, not to attribute that injury to any such factor.
36 The respondents responded that Report 137 had analysed whether material injury to Qenos was being caused or threatened in a practical manner as contemplated in Swan Portland 28 FCR at 144 and Schaefer 156 FCR at 115-116 [147]-[149]. They argued that the terms of s 269TAE(1) directed the Minister’s enquiry to the exportation of goods from “the country of export”, not to an individual exporter located there and that nothing in s 269TAE(2A) affected this construction. The respondents argued that Report 137 had considered Thai exports as a whole and their impact on the Australian industry in accordance with the requirements of Div 6A of Pt XVB. They contended that they had applied the right test and had used the non-injurious price analysis in Report 134 to arrive at their findings.
37 Siam replied that the respondents’ submissions had ignored the actual analysis, or rather lack of it, in Report 137 with respect to Siam.
Consideration: Issue one
38 The scheme of Div 6A of Pt XVB of the Act requires the CEO, and ultimately the Minister, to consider the need to retain anti-dumping measures after a period of five years since they were first imposed or most recently imposed. The imposition of the measures and their continuation is authorised under Pt XVB so as to protect Australian industry from material injury that has been, or is being caused, or that is threatened to be caused by the dumping of goods. This purpose is emphasised in the terms of s 269ZHF(2). That requires that before recommending to the Minister to take steps to secure the continuation of anti-dumping measures currently in place, the CEO must be satisfied that their expiration would lead or be likely to lead to a continuation of or a recurrence of the dumping and the material injury that the measures were intended to prevent.
39 Thus, the formation of the requisite state of satisfaction by the CEO under s 269ZHF(2) is an essential precondition to the Minister being able to exercise his or her power under s 269ZHG(1) to decide whether or not to secure the continuation of the anti-dumping measures. And, the CEO’s report under s 269ZHF, including the CEO’s satisfaction, findings of fact, particulars of the evidence relied on and reasons to support the recommendations in accordance with s 269ZHF(2) and (5), must be considered by the Minister in arriving at a decision under s 269ZHG(1), together with any other information he or she considers relevant. The discretion of the Minister in s 269ZHG(1) is expressed in wide terms. Nonetheless, it must be exercised within proper limits as Stephen, Mason, Murphy, Aickin and Wilson JJ explained in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 where they said that:
“Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view", to use the words of Dixon J in Browning ((1977) 74 CLR at p 505). In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at p 758)), "on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power".”
40 Here, the limits of the discretion, are to be found in the subject matter, scope and purpose of Pt XVB of the Act and, in particular, in the requirement of s 269ZHG(1) itself, that the Minister must consider the report of the CEO. In that consideration, the Minister must also consider, as a fundamental matter in exercising his or her discretion, the central finding of the report that, in accordance with s 269ZHF(2), the CEO was satisfied that the expiration of the measures would lead or be likely to lead to a continuation or recurrence of both the dumping and the material injury that the anti-dumping measure is intended to prevent.
41 Thus, a review under Div 6A of Pt XVB is not intended as a complete replication of the process under Div 3 involved in the initial imposition of anti-dumping measures. But, the continuation review under Div 6A is still directed to the purpose of preventing material injury or the threat of such an injury caused by dumping. So, in exercising his or her discretion under s 269ZHG(1), I am of opinion that the Minister must consider whether the existing measures are appropriate and adapted to achieve the purpose served by the measures identified in s 269ZHF(2) if they are to be continued.
42 The purpose of the measure under consideration by the CEO and the Minister in s 269ZHF(2), relevantly here, is to impose an anti-dumping duty that will equate to the sum provided in s 8(6) of the Dumping Duty Act. That requires that the dumping duty payable on goods “the subject of a notice under subsection 269TG …. (2)” of the Customs Act relevantly to be the difference between the amounts that the Minister ascertains to be the export price and the normal value of those particular goods. In evaluating what the duty must be, the Minister (and the CEO in making any recommendation) must evaluate the consequences of an expiration of the measures. Thus, s 269ZHF(2) addresses a number of possible scenarios including whether that expiration actually would lead, or alternatively would be likely to lead, to a continuation or recurrence of both the dumping and the material injury that the measures were intended to prevent.
43 Although, s 269ZHF(2) uses the words “a continuation of, or a recurrence” in relation to two existing facts, namely dumping and material injury, no party submitted that the CEO could not make a recommendation under s 269ZHF(2), or the Minister a decision to continue measures under s 269ZHG(1), where the original measures had been imposed only to meet a threatened material injury. While neither s 269ZHD(2)(b) nor s 269ZHF(2), expressly refers to a threat of material injury, Div 6A is concerned with the consequence of the expiration of existing measures, including those that are intended to prevent material injury being caused for the first time by dumping that would be threatened if there were no measures in place. The threat of material injury from dumping is a justification for the Minister giving a notice under s 269TG(2). It would be incongruous for Pt 6A of Div XVB to be construed in such a way that if that threat persisted after 5 years of effective measures that had counteracted it, Pt 6A did not allow the Minister to continue the measures.
44 I do not consider that I should adopt a narrow construction of the scope of a continuation or sunset review under Pt 6A that would prevent the Minister continuing measures that that had been effective in meeting a threat. There is no indication in Pt XVB that such a narrow construction would achieve a purpose of the Parliament. Nor, if the construction were open, does Pt XVB prevent a new application for anti-dumping measures being made and granted under Divs 2 and 3 of Pt XVB.
45 For the reasons below I am of opinion that the words “would be likely to lead” in s 269ZHF(2) can, and in a case like the present should, be read as applying directly to the expression “the dumping or subsidisation and the material injury that the anti-dumping measure is intended to prevent”, without the meaning of that expression being qualified or restricted by the words “a continuation of, or a recurrence of”.
46 There was no finding in Report 137 that actual injury was being suffered by Qenos as a result of the dumping by Siam. Therefore, each of the CEO and the Minister was obliged to consider the second scenario of whether the expiration of the measures would be likely to lead to both dumping and the relevant material injury. The scenarios adverted to in s 269ZHF(2) involve a consideration of future events based on an evaluation of the present position. When s 269ZHF(2) refers to the question of whether the expiration of the measures would lead to a continuation or recurrence, it is addressing the issue that arises where current dumping would in fact cause material injury were it not for the operation of the measures that are in place at the time. Ordinarily, this will involve the CEO, then the Minister, considering whether the removal of the dumping duty then in place would cause the Australian industry material injury. Ordinarily, this will be because the price of the imported goods would be sufficiently below that of its Australian competitor to cause or be likely to cause it material injury.
47 On the other hand, where the second limb of s 269ZHF(2) is relevant, namely whether the expiration of the measures “would be likely to lead” to dumping and material injury, the section requires a prediction to be made. The use of the word “likely” qualifies the nature of that prediction. Since s 269TG(2) authorised the use of the measures where there was a threat of material injury to an Australian industry caused by dumping, the character of the likelihood in s 269ZHF(2) will take its meaning from the purpose for which the original imposition of dumping duty under s 269TG(2) was imposed.
48 I am of opinion that the character of the threat necessary for the purposes of s 269TG(2) should be read consistently with the degree of likelihood necessary to satisfy the criterion in s 269ZHF(2) of being “likely to lead” to the dumping and material injury that an existing measure is intended to prevent. That character is governed by s 269TAE(2B). The threat must be of an injury that is foreseeable and imminent unless dumping measures were imposed. I am satisfied that the word “likely” in s 269ZHF(2) should be interpreted as meaning more probably than not.
49 First, s 269ZHF(2) uses the word “likely” as part of “would lead, or would be likely to lead”. This draws a distinction between a prediction of something definite (“would lead”) and something less definite (“would be likely to lead”). But the satisfaction of either prediction will have the result of the CEO recommending the continuation of a measure “intended to prevent” the predicted event. This context suggests that the Parliament used “likely” to convey “more probable than not”, rather than a lesser degree of certainty. Secondly, the conditions that had justifyed the giving of a notice under s 269TG(2), required the Minister to be satisfied, that a threat of injury was “foreseeable and imminent unless dumping … measures were imposed” in accordance with the standard imposed in s 269TAE(2B). It would be consistent with achieving the original purpose of a notice under s 269TG(2) addressing such a threat of material injury, to construe the prediction required by the word “likely” in s 269ZHF(2) in the same manner. Thirdly, this construction is also confirmed by the Explanatory Memorandum for the 1998 amendments that stated that s 269ZHF:
“… prohibits the CEO from recommending the continuation of anti-dumping measures unless he or she is satisfied the factual grounds that must be present prior to the taking of anti-dumping measures, set out in Division 3, have been satisfied.” (bold emphasis added)
50 Fourthly, this construction is consistent with Art 11.3 of the implementation agreement providing that “the expiry of the duty would be likely to lead to a continuation or recurrence of dumping an injury” in the context of sunset reviews, such as those contemplated by Div 6A. The WTO Appellate Body said of Art 11 in Corrosion Resistant Carbon Steel (AB-2003-5) at [110]-[113]:
“Turning to the word "determine" in Article 11.3, we note that the dictionary definitions of this verb include "[c]onclude from reasoning or investigation, deduce" as well as "[s]ettle or decide (a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter". (Shorter Oxford English Dictionary, 5th ed, W.R. Trumble, A. Stevenson (eds) (Oxford University Press, 2002), Vol I, p 659.) As for "review", definitions of this noun include "[a]n inspection, an examination" and a "general survey or reconsideration of some subject". (Ibid., Vol II, p 2567.) Finally, the adjective "likely" is defined as "[h]aving an appearance of truth or fact; that looks as if it would happen, be realized, or prove to be what is alleged or suggested; probable; to be reasonably expected". (Ibid., Vol I, p 1595.)
This language in Article 11.3 makes clear that it envisages a process combining both investigatory and adjudicatory aspects. In other words, Article 11.3 assigns an active rather than a passive decision-making role to the authorities. The words "review" and "determine" in Article 11.3 suggest that authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis of information gathered as part of a process of reconsideration and examination. In view of the use of the word "likely" in Article 11.3, an affirmative likelihood determination may be made only if the evidence demonstrates that dumping would be probable if the duty were terminated—and not simply if the evidence suggests that such a result might be possible or plausible.
In addition to the text of Article 11.3, certain other provisions of the Anti-Dumping Agreement confirm that sunset reviews must conform to the principles outlined above. Article 11.4 applies the provisions of Article 6 regarding "evidence and procedure" to reviews, and Article 12.3 applies the provisions of Article 12 on "Public Notice and Explanation of Determinations" to reviews. Thus, even though the rules applicable to sunset reviews may not be identical in all respects to those applicable to original investigations, it is clear that the drafters of the Anti-Dumping Agreement intended a sunset review to include both full opportunity for all interested parties to defend their interests, and the right to receive notice of the process and reasons for the determination.
Article 11.3 states that, notwithstanding the provisions of Articles 11.1 and 11.2, Members "shall" terminate an anti-dumping duty "unless" the authorities make an affirmative likelihood determination in a sunset review. This confirms that the mandatory rule in Article 11.3 applies in addition to, and irrespective of, the obligations set out in the first two paragraphs of Article 11. This also suggests to us that authorities must conduct a rigorous examination in a sunset review before the exception (namely, the continuation of the duty) can apply. In addition, our view of the exacting nature of the obligations imposed on authorities under Article 11.3 is supported by a consideration of the implications of initiating a sunset review. The last sentence of Article 11.3 allows the relevant duty to continue while the review is underway, and Article 11.4 contemplates that the review process may take up to one year. These provisions create an additional exception to the requirement that anti-dumping duties will be terminated after five years, permitting a Member to maintain the duty for the period during which the review is ongoing, regardless of the outcome of that review. This, too, suggests that the drafters of the Anti-Dumping Agreement saw the sunset review as a rigorous process that can take up to one year, involving a number of procedural steps, and requiring an appropriate degree of diligence on the part of the national authorities.” (emphasis added)
51 In Swan Portland 28 FCR at 144-145, Lockhart J examined the nature of a determination whether material injury to an Australian industry producing like goods to those dumped has been, or is being caused, or is threatened. He said that such a determination was not an exercise of counting heads of markets, production or distribution centres or things of that kind and that:
“It is essentially a practical exercise designed to achieve the objective of determining whether, when viewed as a whole, the relevant Australian industry is suffering material injury from the dumping of goods.”
And, he went on to emphasise that the finding of injury depends on the facts of the case and inevitably involves a question of degree, balancing all relevant considerations and integers, before concluding whether or not the dumping constitutes material injury to the Australian industry. That approach was approved by Black CJ, Neaves and von Doussa JJ in ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 576, 577-578. The Full Court held that if the Australian ind`ustry had suffered detriment from a number of probable causes, then s 269TG required a determination whether there was a separate material injury or material incremental injury caused by the dumping over and above detriment caused by other factors: ICI Australia 34 FCR at 579. While in each of those cases the Court was considering the legislation in an earlier form than that it presently takes, those observations continue to assist in the construction of the present statutory scheme: see e.g. Schaefer 156 FCR at 115-116 [147]-[149] per Jacobson J.
52 After finding that Siam was dumping, the reasoning in Report 137 did not address expressly the question of the likelihood of material injury being caused by that dumping. Rather, it used the expressions “… imports of [the product] from Thailand, if dumped have the potential to cause injury to the Australian industry producing like goods” and, the commencement of slowing the regional and Australian markets was “likely to create an environment where the Australian industry is more susceptible to injury caused by dumping”. Those “findings” did not address the question of the likelihood of injury. The concepts that the Report used of potential of, and greater susceptibility to, injury do not describe any injury, let alone a material injury that is likely to be caused by dumping if the measures expire. The CEO and Minister did not make a quantitative assessment about, or undertake the practical exercise of assessing, whether material injury to Qenos was likely if the measures expired. The “findings” I have just identified provided no basis for a conclusion that dumping would, or would be likely, to cause material injury to Qenos if the measures expired.
53 Report 137 did not make a finding that it was likely (i.e. more probable than not) that dumping by Siam would cause material injury to Qenos if the measures expired. The vapid assertions that there was potential of, or greater susceptibility to, injury did not address the statutory requirement in s 269ZHF(2) for the continuation of the measures that there was, at least, the existence of the likelihood of material injury being caused to Qenos by Siam’s dumping.
54 I am of opinion that the respondents applied the wrong test and failed to ask themselves the correct question for the purposes of ss 269ZHF(2) and 269ZHG(1) in arriving at their finding in Report 137 that it was likely that dumped imports from Thailand, and Siam, would cause material injury to Qenos if the measures expired. It follows that each decision of the respondents was not made according to law.
Issue 2
55 I reject the respondents’ argument that s 269TAE(2B) was irrelevant to, or did not operate on a sunset review under Div 6A of Pt XVB. Division XVB contemplates that after a notice is given under s 269TG(2), it will be amended by the process of reviews under Pt 5 and Pt 6A. As I have explained, those reviews can culminate in the Minister making a declaration that has the practical effect of amending the terms and the operation of, initially the original notice given under s 269TG(2), and subsequently the latest amendment (made under s 269ZDB or s 269ZHG). One crucial purpose of a notice under s 269TG(2) is that it, and it alone, creates the authority for duty to be collected under s 8 of the Dumping Duty Act. This is because s 8(2)(a) of that Act provides that duty is imposed on goods “… to which this section applies by virtue of a notice under subsection 269TG(1) or (2) of the Customs Act”. It follows that when s 269TAE(1) refers to the purposes of s 269TG, those purposes should not be confined to the initial decision to give a notice, but extend to amendments to the notice created by later decisions under Pt 5 and Pt 6A. A notice under s 269TG(2) continues in force, as amended by subsequent declarations made the Minister until revoked, subject to its having any different effect or operation by reason of the Minister revoking the notice in part or amending the variable factors under ss 269ZDB(1)(a)(i) or (ii), 269ZHG(4)(a) and (5). Indeed, s 269ZHG(4)(a) provides that when the Minister declares that he or she has decided to secure the continuation of anti-dumping measures, that continuation is secured, in respect of the (earlier) publication of a dumping duty notice (under s 269TG(2)), by the Minister determining in writing “… that the notice continues in force after the specified expiry day” (emphasis added).
56 I am of opinion that when s 269TAE(1) requires the Minister to have regard to certain factors in making determinations for the purposes of s 269TG, those purposes include any variations of notices issued, but remaining in force, under s 269TG(2). And, importantly, s 269TAE(1) authorises the Minister to have regard to a variety of factors for the purpose of determining whether material injury to an Australian industry has been, is being caused, or is threatened, “… or would and might have been caused” because of any circumstances in relation to the exportation of goods to Australia from the country of export. In considering circumstances and factors, including any that are referred to in terms in s 269TAE(1), the Minister is constrained by the provisions of ss 269TAE(2A) and (2B).
57 A notice that remains in force by reason of a determination (even if varied under ss 269ZDB(1)(a) or 269ZHG(4)) continues as a notice deriving its authority and effect by reason of s 269TG(2) and s 8(2) and (6) of the Dumping Duty Act. Such a notice does not lose its character as having been made for the purposes of s 269TG(2) merely because the Minister, on an interim or a sunset or continuation review under Div 5 or Div 6A of Pt XVB, determines that the notice continues in force in its original state or as varied. Dumping duty becomes payable by force of ss 8(2) and (6) of the Dumping Duty Act because of the existence of a notice under s 269TG(2).
58 It follows that the purposes of s 269TG, referred to in s 269TAE(1), must include consideration of the situation on a review of an existing notice. Indeed, the additional words “or would or might have been caused” in the chapeau to s 269TAE(1) address the very situation that arises in a review of measures under either Div 5 or Div 6A of Pt XVB of the Act. In those situations the measures are already in place and the consideration that the Minister must give is to, among others, what “would or might have been caused” as an injury by dumping had those measures not been in place. That consideration does not arise when a notice is first given under s 269TG(2). Additionally, the test posed by s 269ZHF(2) expressly requires consideration of the material injury that the existing measure “is intended to prevent”. I am of opinion that the express words “or would or might have been caused” in the chapeau to s 269TAE(1) are directed to this last consideration, namely whether the expiry of the measures would be likely to lead to a continuation or recurrence of the material injury that the measures are intended to prevent.
59 Importantly, s 269TAE is directed to identifying and, to some extent, constraining the matters to which the Minister may have regard and those which he or she must consider for the purposes of the relevant provision in Pt XVB under which he or she is then acting in arriving at a state of satisfaction or conclusion (as the case requires), relating to the material injury or the threat or likelihood of material injury. Each of ss 269TAE(2A) and (2B) expressly refers to the purposes of s 269TAE(1). This reinforces the construction that applies the provisions of s 269TAE to identification of the material injury to which s 269ZHF(2) refers. Under s 269TAE(2B), the Minister is required to take account only of such changes in circumstances (as to which he or she is given a wide power) “… as would make that injury foreseeable and imminent unless dumping … measures were imposed”.
60 The WTO Appellate Body found that it was necessary to conduct an analysis that rested on a sufficient factual basis in order for the anti-dumping agency to determine the likelihood of an injury based on “reasoned and adequate conclusions”: Oil Country Tubular Goods (AB-2004-4) at [284]. In arriving at a conclusion under s 269TAE(1), the Minister must take account of the matters prescribed in ss 269TAE(2B) and 269TAE(2A). Thus, the question of the foreseeability and imminence of the threat of material injury must be addressed by eliminating factors other than the exportation of Siam’s dumped goods in considering whether that dumping alone would be likely to lead to material injury to Qenos if the measures expired. The other aspect of a consideration whether an injury is caused or threatened is that the injury under consideration must be, itself, material. Once again, the imposition of measures is not authorised unless there is more than just a mere injury actual or threatened. Part XVB requires that the injury have the character of materiality to an Australian industry producing like goods.
61 Thus, in arriving at a reasoned and adequate conclusion based on sufficient facts for the purposes of imposing or reviewing the existing or continuation of measures, the Minister must address the question of the materiality of any injury that is under consideration.
62 Here, Report 137 adverted to a number of relevant changes in circumstances. First, it noted the removal of Customs duty from 1 January 2008. This factor could impact on the market in Australia immediately following the period of review ending in the December 2007 quarter. And, Report 137 noted that regional markets had begun to slow, which, it suggested, was likely to create an environment where Qenos was more susceptible to injury caused by dumping. It also concluded that Qenos’ performance showed some signs of deterioration towards the end of the five quarters examined.
63 I am of opinion that each of these factors amounted by itself and together as circumstances which the Minister was entitled to take into account in determining whether material injury to an Australian industry, Qenos, would or might have been caused or threatened if the measures expired. Each was a factor that was capable of being seen as making injury foreseeable and imminent unless dumping measures were imposed or continued.
64 However, Report 137 also relied on the analysis in Report 134 to arrive at non-injurious prices for Siam’s exports to Australia. Relying on that analysis, Report 137 found that imports of the product from Thailand, if dumped, “have the potential to cause injury to Qenos”. I have found in the review judgment that Report 134 provided an insufficient basis in law for the Minister to arrive at a conclusion that the measures should have remained in place. It follows that in making his determination under s 269ZHG(1), the Minister had regard to an irrelevant consideration (namely the findings in Report 134 and the notice made under s 269ZDB((1)(a)) in arriving at the conclusion that the measures should be continued under s 269ZHG(1).
65 Report 137 did not provide any reasoning process as to why the removal of measures against Siam would be likely to cause material injury to Qenos. While there may have been some substitutability between the different grades of product marketed by the two manufacturers, Qenos and Siam, there was not complete substitutability. Each had been able to compete in the market in the five quarters examined in Report 137 in circumstances where no dumping duty was payable on Siam’s products imported into Australia, although these attracted ordinary customs duty payable. Confidential appendix 7 and Report 137 in its open section recognised that in general Qenos’ prices were cheaper than Siam’s, albeit that the removal of Customs duty from 1 January 2008 may have affected that in the future. Nonetheless, Qenos’ market share had improved over the period examined and it had exhibited the strong performance as found in Report 137. The Report also found that Siam was operating at close to full capacity.
66 While further capacity may have been expected to be developed in the South East Asian region in the future, the question for the Minister was whether some material injury that was foreseeable and imminent would be likely to occur were the measures to expire in December 2008. In considering any injury likely to be caused to Qenos based on the evidence of price undercutting, the Minister had to address under s 269TAE(2A) Dow’s and Qenos’ cost to supply their customers at their locations in Australia, any differences in grade and substitutability of the product supplied to or required by the customers, whether instances in confidential appendix 7 were simply the result of competition between Siam, as a foreign, and Qenos, as an Australian, producer of like goods or of some other factor or factors including ones relating to the customers. But, Report 137 did not examine any correlation between the price cutting referred to in confidential appendix 7 and the particular circumstances of any case of price cutting or relate these to the likelihood of material injury to Qenos were the measures to expire.
67 I am not satisfied that Report 137 suffered from mere looseness in language when it concluded that the factors to which the Minister had regard were likely to create an environment where the Australian industry was “more susceptible to injury caused by dumping”. That was not a finding on the question of whether some identifiable material injury to Qenos more probably than not would occur if the measures expired having regard to the parameters of forseeability and imminence referred to in s 269TAE(2B). The Minister (and the CEO) did not identify any threat of material injury to Qenos that would be likely to be caused by Siam’s dumping that was foreseeable and imminent, if the dumping measures were allowed to expire.
Issue Three
68 The respondents argued, correctly in my opinion, that s 269TAE(1) permitted the Minister to have regard to circumstances in relation to the exportation of goods to Australia from the country of export. But, s 269TAE(2C) provided that the Minister should consider the cumulative effect of the exportation of like goods to Australia by different exporters from the same country of export (or from different countries of export) for the purposes referred to in s 269TAE(1) if, having regard to the conditions of competition between, first, those goods on the one hand and, secondly, those same goods and like goods produced domestically, he or she is satisfied that it is appropriate to do so. There was no finding in Report 137 that the CEO or the Minister was so satisfied. Indeed, I find that the CEO and the Minister were not satisfied that it was appropriate to have regard to the cumulative effect of their exports for the purposes of Report 137 or s 269TAE(2C).
69 In fact, the notice and the relevant measure under s 269TG(2) that Report 137 and the Minister actually considered, did not identify Thailand as a country of export generically. The, then, current non-injurious price under s 269TG(3)(e) as amended by the notice issued under s 269ZDB(1)(c) following Report 134 had been fixed in accordance with s 269TACA(a) for the purposes of the existing notice. This information together with the other prices arrived at for Siam’s exports, the subject of the current form of the notice, were used to fix the dumping duty payable on imports of Siam’s product under s 8(2) and (6) of the Dumping Duty Act. That notice fixed for a non-injurious price, normal value and export price for Siam (and different ones for the other Thai exporter) in accordance with s 269TG(3). Thus, while the Minister was entitled to consider circumstances in relation to the exportation of goods to Australia from Thailand as the country of export under s 269TAE(1), in this particular case he had to consider those circumstances by addressing the position of each exporter to Australia from Thailand, including Siam, on which he had imposed differential measures. Each relevant measure was calculated to address the particular injury or threat of injury that would be caused to Qenos by each particular exporter from Thailand.
70 Report 137, as had Report 134, examined the position of individual exporters from Thailand. I reject the respondents’ argument that, in examining the continuation of the specific measures in place against Siam, they were entitled to have regard generically to exports from Thailand rather than to address any injury to Qenos caused or threatened by Siam.
71 Next, Report 137 found that “generally there is competition on price between Australian manufactured [product] and imports from Thailand”. The Report referred to a “price cutting analysis” being contained in confidential appendix 7. However, as I have explained above, confidential appendix 7 recorded comparative prices and sale quantities for Qenos and Dow during five quarters between December 2006 and December 2007 in respect of their common customers, together with averages over those periods both for the common customers and for the two vendors’ total customers. The total averages for all common customers and customers overall did not disclose any undercutting of Qenos in sales of Siam’s product by Dow at any time during the five quarters.
72 And, during the five quarters, Qenos’ prices were below Dow’s in respect of the larger customers, by both volume and sales. Again, there was no analysis in Report 137 as to why that was so. Confidential appendix 7 disclosed that there were instances of price undercutting, but it did not examine, and no other part of Report 137 examined, whether any of these instances was an injury to Qenos caused by Siam’s dumping or was competition in the market or was caused by some other factor of the kind referred to in s 269TAE(2A). Those factors can include location, particular type of goods for which the prices were recorded, being specialised items of one or other competitor, the result of difficulties in supply (bearing in mind that Qenos had to import some product for some part of the period under examination) or other reasons.
73 Confidential appendix 7 did not contain any examination or reasoning as to why Dow’s prices were less than Qenos’ on the occasions it instanced. Without some analysis or reasoning it is not possible to draw a conclusion about whether dumping, or some other factor, explained the differences.
74 The market activity recorded in confidential appendix 7 occurred at a time when no dumping duty was payable by Siam or Dow on the importation of the product (Report 134 led to the imposition of duty only in July 2008). From 1 January 2008, ordinary duty ceased to be payable on Siam’s and other Thai exportation of the product into Australia.
75 Because s 269ZHF(5) required the CEO to give reasons for any recommendation it is possible to analyse whether the CEO performed the statutory function of making the recommendation for continuation of the measures against Siam in accordance with the Act. The Minister declared in the notice that he gave under s 269ZHG(1) that he had accepted the CEO’s recommendations, reasons and findings. Where a statute requires a decision-maker to arrive at a state of satisfaction as a condition of the exercise of a power, the courts can review whether the power has been exercised according to law: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276 Brennan CJ, Toohey, McHugh and Gummow JJ. If the statute requires a decision-maker to be satisfied as to a certain matter or matters before making a decision, the decision can be set aside at common law if it is affected by a jurisdictional error. In instances where matters of opinion or taste or policy are involved, the courts have recognised that it may be very difficult to show that the decision-maker has made a jurisdictional error by misconstruing the applicable test, asking the wrong question, making some other mistake of law, taking into account an extraneous reason or excluding from consideration some factor that should affect the determination: Wu Shan Liang 185 CLR at 275-276; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone (1976) 135 CLR 110 at 118-119. Such a decision can also be set aside if a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is established.
76 While the formation of a state of satisfaction under s 269ZHF(2) may involve a question of opinion, there must be a sufficient substratum of fact on which the CEO reasonably can entertain the opinion, before the CEO is entitled to make a recommendation. Report 137 asserted a conclusion that it was likely that Qenos would be injured by the dumping of product by Siam if the measures expired. Report 137 also made an assertion that in some instances price differences in confidential appendix 7 could be characterised as “undercutting” by Dow. In anti-dumping inquiries, a key starting point for the decision-making process is that the price of the goods exported to Australia will be below that of the local industry. However, is only a starting point of the inquiry, and, without more, this will not establish the statutory foundation justifying anti-dumping measures. The reasons for the price differential must be examined, because s 269TAE(2A) requires the decision-maker to eliminate other reasons for it for apart from dumping. However, Report 137 contained only the following to address the issues under s 269TAE(2A):
“Customs has not attributed any potential injury from other factors to increasing the likelihood of that injury from dumping”.
77 The Report did not explain what, if anything, was identified as a factor that had been eliminated from consideration. It is not possible to read this “finding” as another way of stating that the CEO or the Minister had not attributed for the purposes of s 269TAE(2A) any injury or threat of injury to Qenos to factors other than the exportation of goods from Thailand or by Siam. In effect, this passage in the Report, did no more than say that the CEO had considered those factors in the sense of having looked at, but discarded, them in a cursory way: cf East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007)233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ, see also 256 [102] per Gummow and Hayne JJ. The attribution of dumping as the sole cause of the likelihood of material injury or its threat was fundamental to the imposition and continuation of anti-dumping measures. The CEO and the Minister had to give a reason to eliminate any factors other than dumping as being likely to cause such an injury or threat so as to arrive at the appropriate determination of what, if any, measures were needed to prevent that injury or threat, and if so, what the nature and extent of the measures would be.
78 No other reason supported the conclusion that the threat of material injury to Qenos would be caused by Siam’s dumping (or dumping of Thai exports) alone if the measures were allowed to expire. The material in Report 137 was inadequate to establish that the CEO and the Minister had considered what was shown in confidential appendix 7 as undercutting, in accordance with s 269TAE(2), by not attributing any factor other than dumping as being likely to cause material injury. They took the undercutting itself into account as material establishing the likelihood of a threat of material injury. But, that material begged questions, that were left unanswered, as to why the differences in price appeared and what injury was likely to be caused. Because of this inadequacy, the CEO and the Minister did not, in fact, have sufficient material on which to be satisfied that expiration of the measures would be likely to lead to a threat of material injury to Qenos caused by Siam’s dumping: see Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 at 518-519 [180]-[182] where I examined the authorities; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As I said there (Telstra 107 ALD 502 at 107):
“[107] Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229; 239 ALR 50; 97 ALD 274; 63 ACSR 404; [2007] HCA 44 at [52] (East Australian Pipeline) per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipelineat [102]):
[102] … It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them …”
79 I am of opinion that reading Report 137 as a whole, and making allowance for any looseness in language or unhappy phrasing, it does not contain any practical analysis or reasoning process by the CEO or the Minister of what, if any, injury was threatened, on the balance of probabilities, if Siam continued to export the product to Australia at the dumped prices. It was not enough for the CEO and the Minister merely to recite a paraphrase of the test in s 269TAE(2A) but discard it. A person entrusted with a discretion must call his own attention to the matters which he or she is bound to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; Telstra 107 ALD at 502 [105].
80 For these reasons, I am of opinion that the Minister and Report 137 failed to make findings specific to Siam in relation to the actual measures imposed on it, that addressed the unidentified threat of material injury to Qenos that would be caused solely by Siam’s dumping that the measures were intended to prevent.
Conclusion
81 The recommendations of the CEO made on 20 August 2008 and the declaration made by the Minister on 27 August 2008 should be set aside so far as they apply to Siam.
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I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 7 August 2009
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Counsel for the Applicant: |
NJ Williams SC; AM Mitchelmore |
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Solicitor for the Applicant: |
Baker & McKenzie |
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Counsel for the First and Second Respondents: |
A Robertson SC; SB Lloyd SC |
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Solicitor for the First and Second Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
2–3 March 2009 |
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Date of Judgment: |
7 August 2009 |
