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Federal Court of Australia - Full Court Decisions |
Last Updated: 19 December 2002
Pilkington (Australia) Ltd v Minister of State for Justice & Customs [2002] FCAFC 423
CUSTOMS - Anti-dumping - Relevant considerations - Whether the Minister, in deciding whether or not to take anti-dumping measures, is required to take into account considerations concerning whether dumping has occurred in the past in subss 269TG(1) and (2) by reference to a period wider than the "investigation period" or up to the making of the decision.
ADMINISTRATIVE LAW - Relevant considerations.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Customs Act 1901 (Cth) Pt XVB, ss 269SM, 269T, 269TAAD, 269TAA, 269TAB, 269TAC, 269TACB, 269TAG, 269TB, 269TC, 269TD, 269TDAA, 269TDA, 269TE, 269TEA, 269TG, 269TH, 269TJ, 269TJA, 269TK, 269TL, 269ZL, 269ZZ, 269ZZA, 269ZZK, 269ZZL, 269ZZM
Customs Tariff (Anti-Dumping) Act 1975 (Cth) s 8
Customs Legislation (World Trade Organisation Amendments) Act 1994 (Cth)
Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth)
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 Articles 2.1, 5, 6, 12
Vienna Convention on the Law of Treaties Article 31
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 discussed and applied
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 referred to
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 referred to
Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 referred to
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 referred to
Morrison v Peacock [2002] HCA 44; (2002) 192 ALR 173 referred to
Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328 referred to
James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141 referred to
Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 referred to and discussed
Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142 referred to
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 referred to
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 referred to
The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 referred to
Water Conservation and Irrigation Commission (New South Wales) v Browning [1947] HCA 21; (1947) 74 CLR 492 referred to
Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 referred to
NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207 referred to
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 2) (1987) 77 ALR 601 referred to
Adams v Yung (1998) 83 FCR 248 referred to
X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 67 ALD 355 referred to
Anti-Dumping Authority v Degussa AG (1994) 52 FCR 414 discussed and distinguished
BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 referred to
PT Pabrik Kertas Tjiwi Kimia Tbk v Minister for Justice and Customs (2000) 60 ALD 203 referred to
PILKINGTON (AUSTRALIA) LIMITED (ACN 006 904 052) v MINISTER OF STATE FOR JUSTICE & CUSTOMS & ANOR
N655 of 2002
MANSFIELD, CONTI & ALLSOP JJ
SYDNEY
19 DECEMBER 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
1. The appeal be dismissed.
2. Within fourteen days the parties agree upon a form of order as to costs, or if agreement cannot be reached, within twenty-one days the parties file written submissions as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: |
PILKINGTON (AUSTRALIA) LIMITED (ACN 006 904 052) APPELLANT |
AND: |
MINISTER OF STATE FOR JUSTICE AND CUSTOMS P T ASAHIMAS FLAT GLASS TBK SECOND RESPONDENT |
JUDGE: |
MANSFIELD, CONTI & ALLSOP JJ |
DATE: |
XX DECEMBER 2002 |
PLACE: |
SYDNEY |
THE COURT:
Introduction
1 This is an appeal from orders made by a Judge of this Court dismissing the application brought by the appellant, which sought orders under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) in connection with decisions of the first respondent (the Minister) to issue notices under s 269TL of the Customs Act 1901 (Cth) (the Act) to the effect that he had decided not to declare that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (the Duty Act) applied to certain clear float glass (CFG) exported to Australia from Indonesia.
2 We will return to the facts in due course after we have explained the nature of the appeal and the relevant statutory context. For present purposes, it is sufficient to note that the second respondent is an Indonesian company that exports and exported CFG to Australia. It was one of the exporters whom the appellant asserted had dumped CFG in Australia. Underlying the decisions of the Minister were findings that the second respondent had not engaged in dumping of CFG in Australia and that another Indonesian exporter of CFG to Australia (PT Muliaglass, to which we will refer as "Muliaglass") had not engaged in dumping other than in relation to one dimension of CFG. The appellant is a company which manufactures glass products, including CFG, in Australia.
3 The appeal concerns the question as to what the Minister must take into account in deciding whether or not to take what are termed "anti-dumping measures" under the Act. Dumping is the exporting of goods to a country (here, to Australia) at a price below the "normal" or foreign domestic price of the goods. The Act provides for a procedure for the investigation of complaints of dumping made by Australian companies, which procedure involves the Chief Executive Officer (CEO) of the Australian Customs Service (Customs) providing a report to the Minister about the matter. That report is concerned with a period identified in steps leading up to the report as the "investigation period". (In this case the "investigation period" ended on a date some twenty months before the Minister's decision was made.) After considering the CEO's report the Minister may take "anti-dumping measures" that include the publication of a "dumping duty notice" which has the effect of duty becoming payable under the Duty Act in respect of goods covered by it. The issue for determination on the appeal is whether the primary judge was correct in his views concerning the question whether the Minister in considering whether dumping had occurred was required to examine the question by reference to a time period wider than the "investigation period" with which the CEO's report was concerned.
4 The primary submission of the appellant was that, in accordance with what Mason J referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 44-5, as a "general principle", the Minister must:
...make his decision on the basis of material available to him at the time the decision is made.
5 Mason J also expressed the matter at 44 as follows:
...a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.[emphasis added]
6 Thus, it was said by the appellant, the decision could not lawfully be made by the Minister without investigation of the question of dumping after the end of the "investigation period" dealt with by the CEO's report.
7 The primary judge, after examining the Act, concluded that the Minister was not obliged to look at material after the end of the investigation period. Whether his Honour was correct in that conclusion is the essence of the appeal. (There was a debate before us as to whether his Honour went further than this and said that the Minister was not permitted to go beyond the CEO's report in making his or her decision. We will return to this question in due course.)
8 It goes without saying that a close attendance to the Act, its text and its purpose, is required in order to deal with the appeal. Central to the disposition of the appeal is s 269TG which deals with the decision in question of the Minister. Subsections 269TG(1) and (2) are in the following terms:
(1) Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:(a) the amount of the export price of the goods is less than the amount of the normal value of those goods; and
(b) because of that:
(i) material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or
(ii) in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Dumping Duty Act--material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;
the Minister may, by public notice, declare that section 8 of that Act applies:
(c) to the goods in respect of which the Minister is so satisfied; and
(d) to like goods that were exported to Australia after the CEO made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.
(2) Where the Minister is satisfied, as to goods of any kind, that:
(a) the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and
(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;
the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.
[emphasis added]
9 It will be necessary, in due course, to examine the terms of relevant provisions within, and the structure of, Part XVB of the Act which deal with dumping by exporters to Australia. The phrase "dumped goods" is defined by s 269T as meaning:
...any goods exported to Australia that the Minister has determined, under section 269TACB, have been dumped.
We will return to s 269TACB in its context. It, too, is central to the disposition of the appeal. In order to illustrate, at this point, the notion of dumping, it is convenient to refer to Article 2.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Implementation Agreement), being the international agreement to which Australia is a party that Part XVB of the Act introduces in significant part into domestic Australian law. It provides that:
2.1 For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.[emphasis added]
Central Questions
10 Before turning to the Act, it is appropriate to expose, in a little more detail, the questions central to the determination of this appeal. Paramount is the proper construction of s 269TG of the Act, in particular, whether the Minister's consideration of whether dumping has occurred in the past (that is prior to the decision of the Minister) raised by subss 269TG(1) and (2) in the parts of those subsections emphasised at [8] above, at least in the context of a decision of the Minister made after an application under s 269TB by someone such as the appellant for a dumping duty notice or countervailing duty notice, must be undertaken only by reference to goods exported to Australia during the "investigation period" identified in the statutory provisions to which we will come, or whether that consideration must be undertaken by reference to a period wider than that period and, on one argument, extending up to the making of the decision.
11 In this case, the Minister had regard to a report of the CEO which found that during the investigation period there was no dumping by the second respondent. The appellant says that the Minister erred in making the decision under s 269TG by failing to take into account the matters set out in [10] and [11] of the Second Further Amended Statement of Claim (the 2nd FASC). These paragraphs asserted that the Minister was "required to have regard to" the amount of the export price and the amount of the normal value either (a) as close as practicable to the date of the Minister's decision, or (b) to the extent that it was practicable to do so, during the period starting on the "date of the initiation of the investigation" by Customs and ending twenty days after the statement of the essential facts was placed on the public record. (The significance of these dates and the precise meaning of these terms will become apparent later in the discussion of the detailed procedure required by the Act.)
12 Though framed as a case of error by failure to take into account relevant (that is, mandatory) considerations, being the material pleaded in [10] and [11] of the 2nd FASC, in one sense it was a case able to be analysed as the Minister failing to complete the necessary task laid out by the terms of s 269TG: that is, to be satisfied of the matters as to dumping in the past called for by subss 269TG(1) and (2), by reference to the appropriate period of time against which to assess those matters. This, perhaps, can be seen in the debate which ensued between the parties as to the significance of the correspondence particularised under [11(a)] of the 2nd FASC. The Minister pointed out that all the communications sent to the Minister before the decision by, or on behalf of, the appellant were considered by the Minister. So, it was said, the Minister in fact had regard to all up to date information which was "at hand" for the purposes of the satisfaction of the principle expressed by Mason J in Peko-Wallsend, supra at 44-5, concerning the requirement (in law) for the decision to be based on the most recent and accurate information that the Minister had at hand or which was available. The Minister pointed to evidence before the primary judge which demonstrated that to undertake the exercise of examining export prices and normal values after the investigation period would have involved significant effort by way of investigation, of a kind and extent similar to that carried out during the investigation by reference to the "investigation period". Thus, the Minister said, the appellant was really seeking to transform the principle expressed by Mason J in Peko-Wallsend, supra at 44-5, into a duty to investigate, not just a duty to take into account up to date material that was in fact at hand or available. In answer to this, the appellant went so far as to say that it was not to the point that the task may involve some exertion and expense, because the Act required the matters to be taken into account and, so, to be dealt with, prior to making a decision.
13 The debate, thus understood, reflected the reliance by each party upon the content of s 269TG insofar as the task of the Minister is there identified.
14 The respondents said that in circumstances where the process culminating in a decision under s 269TG had been instigated by an application under s 269TB, the relevant enquiry as to the past (for the purposes of subss 269TG(1) and (2)) was whether there had been dumping during the investigation period. They said that the question whether there had been dumping after that period might be "relevant" (in the sense discussed by Deane J in Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363, 374-76) in assessing whether there had been dumping during the investigation period, or in assessing the matters concerning the future found in subs 269TG(2), but that in circumstances where it had been found that there was no dumping during the investigation period it was irrelevant to the decision (that is foreign to the task at hand) to determine, for its own sake, whether there had been dumping after the investigation period. The respondents also said, in the alternative, that on the proper construction and interpretation of the Act there was no room for an implication that the Minister was required to make the decision on the basis of the material available to him at the time the decision is made.
15 It is fundamental to the disposition of this appeal to appreciate that the pleaded case of the appellant was not that the Minister was obliged to take into account material concerning export prices and normal values after the investigation period as relevant in order to falsify the conclusion of the CEO expressed in the report that there had been no dumping during the investigation period. Rather, the case of the appellant was limited to the asserted required legal relevance of material concerning the occurrence of dumping after the investigation period.
16 Late in the oral argument, Mr Walker SC, who appeared, with Mr Speakman, for the appellant, momentarily seemed to go further and embrace the relevance of information relating to the time after the investigation period to falsify the conclusion in the report as to the absence of dumping during the investigation period. However, he clarified the position and made clear that the case of the appellant was as set out in [15] above.
17 The case before the primary judge was fought on the basis of the following facts pleaded in [11(b)], [11(d)] and [11(e)] of the 2nd FASC being admitted by the Minister:
11(b) The Minister had no information before him as to export prices and normal values of CFG exported to Australia from Indonesia as at any time after the Investigation Period (including as at any time during the period starting on date of initiation of the [Customs'] investigation and ending 20 days after the [statement of essential facts] had been placed on the public record)....
11(d) The Minister had not sought any information of the kind referred to in [11(b)] above from ... [Customs] or any other source.
11(e) The Minister:(i) did not determine, or attempt to determine, and
(ii) therefore did not have regard to,
export prices or normal values of CFG exported from Indonesia to Australia as close as practicable to the date of the Minister's decision, including as at any time after the Investigation Period (or as at any time during the period starting on date of initiation of the [Customs'] investigation and ending 20 days after the [statement of essential facts] had been placed on the public record).
...
18 Together with other considerations referred to in [11(a)] and [11(c)] of the 2nd FASC, which can for the moment be put to one side as ancillary to this discussion, the above matters, of themselves, and not by reference to the possible falsification of the CEO's conclusion as to there having been no dumping during the investigation period, were said to demonstrate a failure to do that which was required by the statute, as understood in the light of the judgment of Mason J in Peko-Wallsend, supra at 44-5.
The Purpose of the Act and its Background
19 Part XVB of the Act deals with anti-dumping and contains the provisions of the Act dealing with anti-dumping measures. Anti-dumping measures are the publication of notices in respect of goods (a dumping duty notice and a countervailing duty notice) and the acceptance of undertakings from foreign exporters to Australia in respect of goods. The publication of such notices brings the consequence that duty is payable under the Duty Act: see especially ss 8 to 11 of the Duty Act.
20 Division 3 of Part XVB deals with decisions by the Minister as to whether he or she will publish a notice under s 269TG or s 269TH (dumping duty notices) or under s 269TJ or s 269TK (countervailing duty notices) or under s 269TJA (concurrent dumping and countervailing duty notices) or as to whether he or she will give a public notice, under s 269TL, that no dumping duty or countervailing duty notice is to be given. In respect of the second respondent, the Minister made a decision under s 269TG not to publish a dumping duty notice in respect of the goods of the second respondent and under s 269TL to publish a notice under that section.
21 Section 269SM is a statutory "overview" of Part XVB. It is available to assist in the construction of the statute. Relevantly, the following is stated in s 269SM as to the purpose of the relevant divisions within Part XVB:
(3) Divisions 1, 2 and 3 deal with the preliminary and procedural matters leading to a Ministerial decision to publish or not to publish a dumping duty notice or a countervailing duty notice or to accept an undertaking instead of publishing such a notice.....
(9) Divisions 8 and 9 establish an independent reviewer, the Trade Measures Review Officer, and provide for the Review Officer to review Ministerial decisions to publish or not to publish dumping duty notices or countervailing duty notices and also a range of decisions made by the CEO.
22 Before turning to the relevant provisions of Part XVB in a little detail, it should be noted that Part XVB reflects, in substance, amendments to the Act made in 1994 by the Customs Legislation (World Trade Organisation Amendments) Act 1994 (Cth) (the 1994 Act) and in 1998 by the Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth) (the 1998 Act). The explanatory memorandum to the Bill which became the 1994 Act stated as follows:
This Bill is one of a package of Bills that make changes to Australian law to enable Australia to meet its obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).This Bill will amend the Customs Act 1901 and the Anti-Dumping Authority Act 1988 to bring Australia's anti-dumping and countervailing regimes into conformity with the standards and principles arising from the Uruguay Round agreements.
While the fundamental elements of dumping and subsidy investigations remain unchanged the Agreements now provide much greater guidance and prescriptive direction in the conduct of an investigation. The Bill will amend the relevant Acts to incorporate the broader technical and operational matters as required by the agreements.
A summary of the main points follows.
...
* The terms of the agreements will also lead to a formalisation and expansion of the public file system which is intended to provide interested parties with the opportunity to comment on information available to the investigating authorities. There will be a corresponding emphasis on parties providing non-confidential versions of submissions and the possibility to disregard information if a non-confidential summary is not provided. Parties which are not directly involved in the particular investigation will also receive increased detail via a broader range of public notifications. While these provisions will impose additional obligations both on the administrators and interested parties, they should result in a process that is more transparent and open.
...
[emphasis added]
23 The 1998 Act amended the procedure leading to a decision by the Minister. The then existing two-stage, two-agency investigative process, involving a preliminary inquiry by Customs and a further inquiry by the Anti-Dumping Authority (ADA), was changed. The ADA was abolished and Customs took on the sole responsibility for investigations. The second reading speech of the then Minister in respect of the Bill which became the 1998 Act included the following:
Australia has committed itself to anti-dumping and countervailing legislation which is consistent with the obligations imposed by the relevant agreements of the World Trade Organisation, WTO. Of particular importance is the obligation that "throughout an investigation all interested parties must have a full opportunity for the defence of their interests", including the opportunity to see all relevant information, to acquaint themselves with the opposing views and to offer rebuttal arguments.
24 The Minister then went on to outline the detailed procedure of the operation of the Part, to which we will come shortly.
25 The particular agreement negotiated at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) to which the explanatory memorandum made reference (see [22] above) was the Implementation Agreement. The Implementation Agreement created international obligations upon Australia. To the extent that the Parliament has passed (as it has) legislation dealing with the subject matter of the Implementation Agreement, that legislation will be interpreted and applied, as far as its language permits, so that it is in conformity, and not in conflict, with Australia's international obligations. Where a statute is ambiguous (the conception of ambiguity not being viewed narrowly) the court should favour a construction consistent with the international instrument and the obligations which it imposes over another construction: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 384 at [97].
26 The ascertainment of the meaning of, and obligations within, an international instrument (here the Implementation Agreement) is to be ascertained by giving primacy to the text of the international instrument, but also by considering the context, objects and purposes of the instrument: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, 230 (per Brennan CJ, agreeing with McHugh J), 240 (per Dawson J), 251-56 (per McHugh J), 277 (per Gummow J, also agreeing with McHugh J); and Morrison v Peacock [2002] HCA 44; (2002) 192 ALR 173 at [16] (per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ). The manner of interpreting the international instrument is one which is more liberal than that ordinarily adopted by a court construing exclusively domestic legislation; it is undertaken in a manner unconstrained by technical local rules or precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328, 350; James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, 152; Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251, 281-2, 285, 293; Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142, 159; Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, 412-3; Applicant A, supra at 255; and Morrison v Peacock, supra at [16]. The reasons for this approach were described by Lord Diplock in Fothergill, supra at 281-2, as follows:
The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it, in James Buchanan & Co. Ltd. v Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141, 152, "unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation."
27 The need for a broad or liberal construction is reinforced by the matters which can be taken into account under Article 31 of the Vienna Convention on the Law of Treaties, in accordance with which Australian courts interpret treaties: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 265; The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 93, 177; and Applicant A, supra at 251-2. The word "treaty" is defined in the Vienna Convention as an international agreement concluded between States in written form and governed by international law, whether in one or more instruments and whatever its particular designation. This covers the Implementation Agreement.
28 It is unnecessary to set out in detail the provisions of the Implementation Agreement. It sets out, in particular in Articles 5, 6 and 12, the framework for the investigation and determination of complaints in an ordered manner, giving some emphasis to the provision of relevant information in a public way to all interested parties. Procedural transparency is called for. This is not surprising given that the parties interested in any conclusion by the authorities (here the Minister) include foreign corporations and foreign governments. Also, Article 5 makes clear that the primary method of initiating an investigation is to be by written application by or on behalf of the "domestic industry". Provision is also made for "the authorities" to initiate the investigation: see Articles 5.1 and 5.6.
Part XVB of the Act
29 An investigation about dumping may be initiated under the Act pursuant to ss 269TB or 269TAG. Under s 269TB a person (such as the appellant) may, by application in writing, request that the Minister publish a dumping duty notice in circumstances:
(1) Where:(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;
(b) there is, or may be established, an Australian industry producing like goods; and
(c) a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
...
30 Under s 269TAG the Minister may initiate an investigation into the need to take anti-dumping measures, even if no application under s 269TB has been made. Such an investigation must be carried out in accordance with the Minister's own written requirements: subs 269TAG(2). At the conclusion of such an investigation the Minister may issue a notice or accept undertakings of the kind referred to earlier, including making a decision under s 269TG, as if the investigation has been carried out under Part XVB (that is, as if the investigation had been carried out after an application under s 269TB): subs 269TAG(3). Nevertheless under subs 269TAG(4):
(4) The Minister must not take such anti-dumping measures unless the Minister:(a) has determined any matters which the Minister would be required to determine; and
(b) is satisfied of any matters of which the Minister would be required to be satisfied;
in order to take those measures if the investigation had been carried out in accordance with the requirements of the other provisions of this Part.
31 Thus, the consideration by the Minister of the matters referred to in s 269TG can be brought about pursuant to an investigation initiated by an application under s 269TB, or pursuant to an investigation by the Minister's own motion. In both cases the Minister is obliged to determine and be satisfied of the same matters: subs 269TAG(4).
32 Before turning to the sequence of events laid down by the Act subsequent to the lodgement of an application under s 269TB in proper form, it is appropriate to refer to s 269TACB in order to illuminate one of the matters which must be determined by the Minister when an application under s 269TB is made, before taking anti-dumping measures. Section 269TACB is concerned with the central question as to whether dumping has occurred and the levels of dumping. Subsections 269TACB(1) to (6), in particular subs 269TACB(1), make and makes clear that the task of the Minister in determining whether dumping has occurred is based on export prices and normal values during the "investigation period". We have emphasised below the parts of s 269TACB which make plain the relevance of the "investigation period" to the task under s 269TACB.
269TACBWorking out whether dumping has occurred and levels of dumping
(1) If:
(a) application is made for a dumping duty notice; and
(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and
(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;
the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.
(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3):
(a) compare the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or
(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or
(b) compare the export prices determined in respect of individual transactions over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or
(c) use:
(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and
(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.
(2A) If paragraph (2)(aa) or (c) applies:
(a) each part of the investigation period referred to in the paragraph must not be less than 2 months; and
(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.
(3) If the Minister is satisfied:
(a) that the export prices differ significantly among different purchasers, regions or periods; and
(b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period;
the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the weighted average of corresponding normal values over that period.
(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:
(a) the goods exported to Australia during that period are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.
(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.
(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value:
(a) the goods exported to Australia in that transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that transaction is the difference between that export price and that normal value.
(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period:
(a) the goods exported to Australia in each such transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values.
(7) Subject to subsection (8), the existence of dumping and the size of a dumping margin will normally be worked out for individual exporters of goods to Australia.
(8) If the number of exporters from a particular country of export who provide information in relation to an application for a dumping duty notice is so large that it is not practicable to determine the existence of dumping and to work out individual dumping margins for each of them, the Minister may, on the basis of information obtained from an investigation of a selected number of those exporters:
(a) who constitute a statistically valid sample of those exporters; or
(b) who are responsible for the largest volume of exportations to Australia that can reasonably be investigated;
decide whether dumping exists, and, if it does, fix dumping margins for such selected exporters and for exporters who are not so selected.
(9) If information is submitted by an exporter not initially selected under subsection (8) for the purposes of an investigation, the investigation must extend to that exporter unless to so extend it would prevent the investigation's timely completion.
(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise.
[emphasis added]
33 The phrases "export price" and "normal value" are dealt with comprehensively in ss 269TAB and 269TAC, respectively. The phrases "ordinary course of trade" and "arms length transactions" are dealt with in detail in ss 269TAAD and 269TAA, respectively. Subsections 269TAB(1) and 269TAC(1) set the framework for the calculation of "export price" and "normal value". They are in the following terms:
s 269TAB(1) For the purposes of this Part, the export price of any goods exported to Australia is:
(a) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was an arms length transaction;
the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or
(b) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was not an arms length transaction; and
(iii) the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;
the price at which the goods were so sold by the importer to that person less the prescribed deductions; or
(c) in any other case--the price that the Minister determines having regard to all the circumstances of the exportation.
...
s 269TAC
(1) Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods.
34 It is to be noted that these sections are not limited expressly by reference to the "investigation period".
35 Fundamental to the disposition of the appeal is the question of the relationship between s 269TACB and subss 269TG(1) and (2), and whether the task called for by subs 269TACB(1) (as to whether dumping has occurred), which is to be undertaken by reference to exports to Australia during the investigation period and the corresponding normal values of like goods during the same period, governs and limits the task of reaching the states of satisfaction contemplated by pars 269TG(1)(a) and (2)(a) as to past events (see the emphasised passages at [8] above).
36 It is now necessary to turn to the sequence of events laid down by the Act.
37 Within twenty days of Customs receiving an application under s 269TB, the CEO, under subs 269TC(1), must examine it and must reject it if the CEO is not satisfied:
(a) that the application complies with subs 269TB(4), which includes the requirement that the application be supported by a "sufficient part" of the domestic industry; or
(b) that there is, or is likely to be, an Australian industry in respect of like goods; or
(c) that there appear to be reasonable grounds for the publication of relevant notices.
38 If the CEO decides not to dispose of the application at this early stage, he or she must give public notice of that decision. That notice, under s 269TC, must set out a number of matters provided for by subs 269TC(4), as follows:
(a) setting out particulars of goods the subject of the application; and...
(bc) setting a date, which should be the date or estimated date of publication of the notice, as the date of initiation of the investigation; and
(bd) indicating the basis on which dumping or countervailable subsidisation is alleged to have occurred; and
(be) summarising the factors on which the allegation of injury or hindrance to the establishment of an industry is based; and
(bf) indicating that a report will be made to the Minister:
(i) within 155 days after the date of initiation of the investigation; or
(ii) if the 110 days referred to in paragraph (e) is extended by the Minister--within the period of 155 days as similarly so extended;
on the basis of the examination of exportations to Australia of goods the subject of the application during a period specified in the notice as the investigation period in relation to the application; and
(c) inviting interested parties to lodge with the CEO, within a specified period of not more than 40 days after the date of initiation of the investigation, submissions concerning the publication of the notice sought in the application; and
...
(e) stating that:
(i) within 110 days after the date of initiation of the investigation; or
(ii) such longer period as the Minister allows under section 269ZHI;
the CEO, in accordance with section 269TDAA, will place on the public record a statement of the essential facts on which the CEO proposes to base a recommendation to the Minister; and
(f) inviting interested parties to lodge with the CEO, within 20 days of that statement being placed on the public record, submissions in response to that statement; and
...
(h) stating that if the Minister decides to publish or not to publish a dumping duty notice or a countervailing duty notice after considering the report referred to in paragraph (bf), certain persons will have the right to seek review of that decision in accordance with Division 9.
[emphasis added]
39 As can be seen, par 269TC(4)(bf), above, refers to the "investigation period" identified in the CEO's notice. Under s 269T the phrase "investigation period" is defined for Part XVB as meaning:
in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods... a period specified by the CEO in a notice under subsection 269TC(4) to be the investigation period in relation to the application.
40 It is plain from this notice, and in particular par 269TC(4)(bf), that the recommendation to the Minister will be made by the CEO on the basis of examination of exportations to Australia during the investigation period, nominated in the notice. Paragraph 269TC(4)(c) allows the "interested parties" (a term defined in subs 269T(1) to include the appellant) to put submissions about, amongst other things, this period.
41 The date of the initiation of the investigation is set by the CEO in the notice under s 269TC, and is the date of publication of the notice under that section: par 269TC(4)(bc).
42 As can be seen in par 269TC(4)(h), the notice is required to tell all interested parties of a relationship between the report, referred to in par 269TC(4)(bf), which is referable to the investigation period, and the decision of Minister. The relationship is temporal, "after considering", but nevertheless the parties are told that the Minister will decide the question after that report is considered. An interested party, familiar with the statutory provisions governing the Minister's responsibilities, would be aware that the task required of the Minister included the required task of determining whether dumping had occurred by comparing export prices and normal values during the investigation period: subs 269TACB(1).
43 No doubt, the knowledge of the investigation period in the public notice under subs 269TC(4) and of the determination by the Minister under subs 269TACB(1) of the central question of dumping in respect of the goods intended to be covered by that section was intended to assist all parties to marshal their evidence and material to put forward in the investigation, in particular considering the tight time-frames within which the process was intended to move forward: see for example par 269TC(4)(f).
44 Next, within 110 days of the date of the initiation of the investigation (set by the CEO in the public notice under subs 269TC(4) - see par 269TC(4)(bc)) the CEO must place on the public record the "statement of essential facts", being the facts upon which the CEO proposes to base a recommendation to the Minister in respect of the application under s 269TB: see subs 269TDAA(1).
45 Subsections 269TDAA(2) and (3) identify the matters to which the CEO must, and may, have regard in formulating the statement of essential facts. The CEO must have regard to the application and any submissions that are received by Customs within the forty day period after the initiation of the investigation referred to in par 269TC(4)(c) (see [38] above): see par 269TDAA(2)(a). The CEO may have regard to any other matters that he or she considers relevant: see par 269TDAA(2)(b). If a submission contemplated by par 269TC(4)(c) is received by Customs outside the forty day period there provided for, the CEO is not obliged to have regard to it if, in the CEO's opinion, to do so would prevent the timely placement of the statement of essential facts on the public record: see subs 269TDAA(3).
46 After the placement of the statement of essential facts on the public record, interested parties have twenty days in which to lodge with the CEO submissions in response to the statement. See the public notice under subs 269TC(4) to this effect: par 269TC(4)(f).
47 The next step is the report of the CEO to the Minister. The public notice under subs 269TC(4) has already told interested parties that a report will be made to the Minister within 155 days of the date of the initiation of the investigation (or possibly longer if the Minister extends the time for the placing of the statement of essential facts on the public record) and that that report will be based on the examination of exportation to Australia of goods the subject of the application during the period specified in the notice as the investigation period in relation to the application: par 269TC(4)(bf).
48 Before the report is finalised, at a time not earlier than sixty days after the date of the initiation of the investigation, the CEO may make a determination (a preliminary affirmative determination) that there are sufficient grounds for the publication of a dumping duty notice or countervailing duty notice in respect of goods the subject of an application under s 269TB, if he or she is satisfied of the matters referred to in pars 269TD(1)(a) and (b), being:
(a) that there appears to be sufficient grounds for the publication of such a notice; or(b) that it appears that there will be sufficient grounds for the publication of such a notice subsequent to the importation into Australia of such goods;
49 Subsections 269TD(2) and (3) deal with what the CEO must, and may, have regard to in making that decision. The decision has the consequences set out in subss 269TD(4) and (5) as follows:
(4) If the CEO makes a preliminary affirmative determination:(a) the CEO must give public notice of that determination; and
(b) Customs may, at the time of making that determination or at any later time during the investigation, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while the investigation continues.
(5) If Customs decides to require and take securities under subsection (4), the CEO must give public notice of that decision.
50 Thus, during the investigation there may be securities taken for interim duty that may be payable in respect of goods exported to Australia, not within the investigation period. However, this will only have arisen after a view has been formed by the CEO referred to in pars 269TD(1)(a) and (b) in respect of an investigation which is linked to an investigation period.
51 The report of the CEO to the Minister is made under s 269TEA. Before turning to that section, some aspects of s 269TE should be noted. In making a recommendation in a report under s 269TEA, the CEO is required to determine any matter ordinarily required to be determined by the Minister under the Act in like manner to the Minister and having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter: subss 269TE(1), (2) and (3). Subsection 269TE(2) is in the following terms:
(2) If the CEO is required, in making a recommendation or decision, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the CEO must determine the matter:(a) in like manner as if he or she were the Minister; and
(b) having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter.
Thus, if the Minister is obliged to have regard to something under the Act, so is the CEO. We shall return to the importance of this in due course; but at this point, it suffices to say that the necessary disconformity produced by the appellant's submissions that the Minister must take factors into account which are irrelevant to the CEO's report and recommendations therein, sits uneasily with s 269TE. We should also note at this point that subs 269TE(4) provides as follows:
(4) Nothing in this section implies that the determination of a matter by the CEO affects the power of the Minister to make a final determination in respect of that matter for the purposes of the Dumping Duty Act.
52 The CEO's report under s 269TEA is required to contain the matters in pars 269TEA(1)(c), (d) and (e), which are as follows:
(a) First, (under par 269TEA(1)(c)) the report must contain a recommendation whether a dumping duty notice or a countervailing duty notice should be published and the extent of any duties that should be payable under the Duty Act because of that notice. This is a recommendation as to what the Minister should decide under s 269TG.
(b) Secondly, (under par 269TEA(1)(d)) the report must contain a recommendation whether the Minister ought to be satisfied as to matters in respect of which he or she is required to be satisfied before such notice can be published. This would include a recommendation as to whether the Minister should determine whether dumping has occurred as required by subs 269TACB(1) (see the words "must determine" in that subsection). As discussed earlier, this requirement on the Minister under subs 269TACB(1) to determine whether dumping has occurred is by reference to exportation to Australia during the investigation period.
(c) Thirdly, (under par 269TEA(1)(e)) the report must contain a recommendation whether the Minister ought to give a notice to an exporter under subs 269TG(3D) dealing with the giving of an undertaking, or to the government of the country of export or to the exporter under subs 269TJ(2A) also dealing with the giving of an undertaking.
53 Subsections 269TEA(3) and (4) deal with the matters to which the CEO must, and may, have regard in deciding on the recommendations to be made to the Minister in the report. Paragraph 269TEA(3)(a) requires the CEO to have regard to:
(i) the application; and(ii) any submission concerning the publication of that notice to which the CEO has had regard for the purpose of formulating the statement of essential facts; and
(iii) the 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;
...
54 The CEO may have regard to any other matters he or she considers to be relevant: subs 269TEA(3)(b). Subsection 269TEA(4) provides that the CEO is not obliged to have regard to submissions of the kind referred to in par 269TEA(3)(a)(iv), above (in response to the statement of essential facts) received outside the twenty day period following the placing of the statement of essential facts on the public record, if in the CEO's opinion to do so would prevent the timely preparation of the report to the Minister.
55 Subsection 269TEA(5) provides:
(5) The report to the Minister must include a statement of the CEO's reasons for any recommendation contained in the report that:(a) sets out the material findings of fact on which that recommendation is based; and
(b) provides particulars of the evidence relied on to support those findings.
56 At this point the following is clear: the Minister is required to determine whether dumping of goods the subject of the application has occurred by reference to goods exported to Australia during the investigation period: subs 269TACB(1); the CEO is to tell all interested parties by public notice that he or she will make recommendations to the Minister as to whether to issue anti-dumping or countervailing duty notices on the basis of examination of exportations to Australia of the goods the subject of the application during a period stated in the public notice to be the investigation period: par 269TC(4)(bf); the interested parties put their submissions forward on that basis; the CEO is bound to reach his or her recommendations on the same basis as the Minister is required under the Act to decide such matters: subs 269TE(2); and a clear, staged and transparent process of submissions from all interested parties on defined subject matter limited, in relation to the exportation to Australia of goods the subject of the application, to the investigation period, in a very tight time-frame, is the basis for the recommendation to the Minister as to what should be done.
57 Before turning to the decision of the Minister under s 269TG, one further aspect of the CEO's report should be noted. As we have already said, subss 269TEA(3), (4) and (5) deal with the matter to which the CEO must and may have regard. In this respect, subs 269TEA(2) should also be noted. It provides as follows:
(2) The CEO's report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record.[emphasis added]
58 The appellant places considerable reliance on the fact that the CEO is obliged by subs 269TEA(2), to the extent that it is practicable, to look beyond the investigation period in this regard. However, it is in relation to "like goods" (defined in s 269T as meaning goods that are identical to, or have characteristics closely resembling, the goods under investigation), not covered by the application, but imported into Australia during the period from the date of the initiation of the investigation to a point of time ending twenty days after the statement of essential facts is placed on the public record: cf pars 269TC(4)(bc) and (f). This time period no doubt informed the pleader of [10(f)], [11(c)] and [11(f)] of the 2nd FASC.
59 Neither the explanatory memorandum to the Bill which became the 1998 Act, nor the Minister's second reading speech, give any specific insight into the purpose of subs 269TEA(2). However, what it plainly does not do is change in any way the central task of the Minister in deciding whether dumping has occurred during the investigation period insofar as that task is called for by subs 269TACB(1) or the task of the CEO in making recommendations to the Minister on the same basis (subs 269TE(2)). No doubt it was considered germane, if practicable to do so, to provide the Minister with this information given his or her task under s 269TG in considering not only the question as to whether dumping has occurred, but also whether there has been, is being, or will be, caused material injury to an Australian industry producing like goods: see par 269TG(2)(b). We will return to this in due course.
60 Also important to an understanding of the context of the decision under s 269TG and to an understanding of the meaning, and context, of the text in s 269TG, is the obligation on the CEO under s 269TDA to terminate the investigation commenced by an application under s 269TB if he or she is satisfied, relevantly here, of matters set out in pars 269TDA(1)(b)(i) and (ii). Subsection 269TDA(1) is in the following terms:
(1) If:(a) application is made for a dumping duty notice; and
(b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the CEO is satisfied that:
(i) there has been no dumping by the exporter of any of those goods; or
(ii) there has been dumping by the exporter of some or all of those goods, but the dumping margin for the exporter, or each such dumping margin, worked out under section 269TACB, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%;
the CEO must terminate the investigation so far as it relates to the exporter.
61 In the light of what the Minister must determine about whether dumping has occurred in respect of goods the subject of the application: subs 269TACB(1), the form of the public notice: pars 269TC(4)(bf) and (h), the obligation of the CEO to approach the matter in the same way as the Minister: subs 269TE(2), and the balance of Part XVB to which we have made reference, there can be no doubt that pars 269TDA(1)(b)(i) and (ii) are referring to the absence of, or the negligible margins of, dumping during the investigation period. Looking at par 269TDA(1)(b)(i), this is the very matter which the Minister (and so the CEO: subs 269TE(2)) is required to determine in respect of the goods the subject of the application during the investigation period: subs 269TACB(1). This is not to make any implication into subs 269TDA(1). From the text of this section, its context in the balance of Part XVB and the text of the provisions to which we have referred, the words in subs 269TDA(1) carry that meaning.
62 The conclusion that the consideration called for by subs 269TDA(1) as to whether there has been dumping by the exporter is to be made by reference to the investigation period is reinforced by other parts of s 269TDA which employ the phrase "reasonable examination period". Subsections 269TDA(3), (4), (5), (7), (8), (9), (10) and (11) are in the following terms:
CEO must terminate if negligible volumes of dumping are found(3) If:
(a) application is made for a dumping duty notice; and
(b) in an investigation for the purposes of the application the CEO is satisfied that the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over a reasonable examination period from a particular country of export; and
(ii) that have been, or may be, dumped;
is negligible;
the CEO must terminate the investigation so far as it relates to that country.
What is a negligible volume of dumped goods?
(4) For the purpose of subsection (3), the total volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped is taken to be a negligible volume if:
(a) when expressed as a percentage of the total Australian import volume, it is less than 3%; and
(b) subsection (5) does not apply in relation to those first-mentioned goods.
Aggregation of volumes of dumped goods
(5) For the purposes of subsection (4), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped if:
(a) the volume of such goods that have been, or may be, so exported from that country and dumped, when expressed as a percentage of the total Australian import volume, is less than 3%; and
(b) the volume of goods the subject of the application that have been, or may be, exported to Australia over that period from another country of export and dumped, when expressed as a percentage of the total Australian import volume, is also less than 3%; and
(c) the total volume of goods the subject of the application that have been, or may be, exported to Australia over that period from the country to which paragraph (a) applies, and from all countries to which paragraph (b) applies, and dumped, when expressed as a percentage of the total Australian import volume, is more than 7%.
...
CEO must terminate if negligible volumes of countervailable subsidisation are found
(7) If:
(a) application is made for a countervailing duty notice; and
(b) in an investigation for the purposes of the application, the CEO is satisfied that the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia from a particular country of export during a reasonable examination period; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
is negligible;
the CEO must terminate the investigation so far as it relates to that country.
What is a negligible volume of subsidised goods?
(8) For the purposes of subsection (7), the total volume of goods the subject of the application for a countervailing duty notice that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been received is taken to be a negligible volume if:
(a) that country of export is not a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 3%; or
(b) that country of export is a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 4%;
and subsections (9), (10) and (11) do not apply in relation to those first-mentioned goods.
Aggregation of volumes of subsidised goods from countries other than developing countries(9) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received, if:
(a) the country of export is not a developing country; and
(b) the volume of such goods:
(i) that have been, or may be, exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 3%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another country that is not a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 3%; and
(d) the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 7%.
Aggregation of volumes of subsidised goods from developing countries
(10) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:
(a) the country of export is a developing country; and
(b) the volume of such goods:
(i) that have been, or may be, exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another country that is a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 4%; and
(d) the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be received;
when expressed as a percentage of the total Australian import volume, is more than 9%.
Aggregation of volumes of subsidised goods from member countries that are developing countries
(11) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:
(a) the country of export is a member country and a developing country; and
(b) the volume of such goods;
(i) that have been, or may be exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another member country that is a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(d) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 9%.
[emphasis added]
63 The phrase "reasonable examination period" is defined in subs 269TDA(17) as follows:
reasonable examination period, in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods, means a period comprising:(a) the whole or a substantial part of the investigation period; or
(b) any period after the end of the investigation period that is taken into account for the purpose of considering possible future importations of goods the subject of the application.
To the extent that the definition of "reasonable examination period" calls for an examination of the past, it is expressly limited to part or all of the investigation period. The relevance of the period outside the investigation period is only as to consideration of the future.
64 In this context, it is appropriate to recall the essence of the appeal as propounded by the appellant - that in making a decision under s 269TG, the Minister is obliged to look beyond the investigation period and take into account material concerned with the question whether there has been dumping in the past (that is prior to his or her decision) dealing with such matters on the most up to date basis.
65 We have set out earlier the terms of subss 269TG(1) and (2) (see [8] above). Section 269TG concerns the decisions there identified of the Minister which may be brought about by an application under s 269TB, or the Minister moving of his or her own motion under s 269TAG. In either contingency, the Minister must address the same matters required by the Act: subs 269TAG(4).
66 We will return shortly to a more detailed examination of subss 269TG(1) and (2), and, in particular, their relationship with subs 269TACB(1). Also, at this point, the terms of s 269TL should be noted. Section 269TL consists of one subsection and is in the following terms:
(1) Where the Minister receives a recommendation from the CEO concerning the imposition of dumping duty, third country dumping duty, countervailing duty or third country countervailing duty on particular goods or on goods of a like kind to particular goods and the Minister decides, after having regard to that recommendation, not to declare those goods to be goods to which section 8, 9, 10 or 11, as the case requires, of the Dumping Duty Act applies, the Minister must give public notice to that effect.
67 Division 8 of Part XVB of the Act provides for the establishment of the office of Trade Measures Review Officer (the Review Officer). The Review Officer must not be an officer of Customs: subs 269ZL(3). The Minister is only to appoint someone to the office if the Minister is satisfied that the person has the appropriate qualifications, knowledge or experience: subs 269ZL(4).
68 Division 9 of Part XVB of the Act provides for review of certain decisions of the Minister and the CEO by the Review Officer. Three of the decisions in respect of which there is review by the Review Officer are those under subss 269TG(1) and (2) and subs 269TL(1): subs 269ZZA(1).
69 The Review Officer, after his or her review, provides a recommendation to the Minister. The recommendation is either that the Minister affirm the decision or that the Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the decision: subs 269ZZK(1). There is set out in subs 269ZZK(3) a short time frame for the procedure, as follows:
(3) The report must be made:(a) at least 30 days after the public notification of the review under section 269ZZI; but
(b) not more than 60 days after that notification, or such longer period allowed by the Minister in writing because of special circumstances.
70 The Minister is not obliged to accept the recommendation of the Review Officer: s 269ZZL. He or she may, however, call for a re-investigation by the CEO and make another decision based on that: s 269ZZM. There is then no further review: subs 269ZZA(2).
71 Sections 269ZZ and 269ZZK both deal with how the Review Officer approaches his or her task. Subsection 269ZZ(1) is in the following terms:
(1) If the Review Officer is required, in conducting a review ... to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the Review Officer must determine the matter:(a) in like manner as if he or she were the Minister; and
(b) having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter.
72 Thus, by this provision, there is a required conformity between the determination of relevant matters by the Minister and the Review Officer. This provision mirrors the same requirement upon the CEO by subs 269TE(2) (see [51] above).
73 Subsection 269ZZK(4) deals with the information to which the Review Officer is permitted to have regard. It is in the following terms:
(4) In making the recommendation, the Review Officer:(a) must not have regard to any information other than the relevant information; and
(b) subject to subsection (5), must only have regard to the relevant information and any conclusions based on the relevant information that are contained in the application for the review or in any submissions received from interested parties within 30 days as mentioned in section 269ZZJ.
74 The phrase "relevant information" is defined in subs 269ZZK(6) in the following terms:
6) In this section:relevant information means:
(a) if the reviewable decision was made pursuant to an application under section 269TB--the information to which the CEO had had regard or was, under paragraph 269TEA(3)(a), required to have regard, when making the findings set out in the report under section 269TEA to the Minister in relation to the making of the reviewable decision; and
(b) if the reviewable decision was made pursuant to an investigation initiated by the Minister as mentioned in section 269TAG--the information:
(i) that was collected for the purposes of that investigation in accordance with the Minister's requirements; and
(ii) that was before the Minister when the Minister made the reviewable decision.
75 Thus, in circumstances, such as the present, of a reviewable decision made pursuant to an application under s 269TB, the information to which the Review Officer must only have regard is limited to the information to which the CEO had regard, which insofar as it concerned the question as to whether dumping had occurred was, subject to the matters in subs 269TEA(2), limited to an analysis of whether dumping occurred by reference to the investigation period (subs 269TACB(1)).
The Facts
76 On 17 November 1999 the appellant lodged an application under s 269TB with Customs requesting that the Minister declare by public notice pursuant to s 269TG that s 8 of the Duty Act apply to CFG in a nominal thickness range of 3 mm to 12 mm, exported to Australia from Indonesia. The application identified four producers of CFG in Indonesia and alleged that they, including the second respondent and Muliaglass, had exported CFG to Australia at prices less than normal value in Indonesia.
77 The date of the initiation of the investigation (cf par 269TC(4)(bc)) was 7 December 1999.
78 The public notice under subs 269TC(4) identified the investigation period as 1 October 1998 to 30 September 1999: cf par 269TC(4)(bf).
79 The statement of essential facts was placed on the public record on 27 March 2000, 110 days after the date of the initiation of the investigation: cf par 269TC(4)(e).
80 The CEO reported to the Minister for the purposes of s 269TEA by the Trade Measures Branch Report No 21 dated 10 May 2000 (hereafter the Report). The following facts about the Report pleaded in [7(a)] to [7(f)] of the 2nd FASC were admitted by the Minister. The pleading said Customs, but in effect, the CEO:
(a) used an investigation period of 1 October 1998 to 30 September 1999 (the "Investigation Period") to determine whether there had been dumping of CFG exported to Australia from Indonesia,(b) found that CFG exported from Indonesia to Australia by PT Asahimas Float Glass Tbk ("Asahimas") during the Investigation Period had not been dumped,
(c) found that the other major Indonesian exporter, PT Muliaglass ("Muliaglass"):
(i) had dumped CFG of 3 mm thickness exported from Indonesia to Australia during the Investigation Period, but
(ii) had not otherwise dumped CFG exported from Indonesia to Australia during the Investigation Period,
(d) found that imports of 3 mm CFG by Muliaglass from Indonesia represented about 16 percent of total imports of CFG between 3 mm and 12 mm during the Investigation Period,
(e) was satisfied that dumped exports of 3 mm CFG from Indonesia have caused material injury to the Australian industry,
(f) was satisfied that exports of 3 mm CFG in the future from Indonesia may be at dumped prices, and
...
81 The CEO recommended the following in the Report (see [8] of the 2nd FASC, admitted by the Minister):
(a) pursuant to section 269TG(4) of the Customs Act 1901, accept a price undertaking from Muliaglass in respect of 3 mm CFG and thereby suspend his consideration of whether to impose dumping duty on like goods exported by that exporter,(b) decide, after having regard to the [Customs'] recommendations, not to declare that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to CFG exported to Australia from Indonesia by companies other than Muliaglass and pursuant to section 269TL(1) of the Customs Act, issue a public notice that he has so decided, and
(c) decide, after having regard to the [Customs'] recommendations, not to declare that section 8 of the Customs Tariff (Anti-Dumping) Act applies to CFG with nominal thicknesses of 4 mm to 12 mm exported to Australia from Indonesia by Muliaglass and pursuant to section 269TL(1) of the Customs Act issue a public notice that he had so decided.
82 The Report contained the following description of the goods subject to investigation:
3. THE GOODS SUBJECT TO INVESTIGATIONThe goods the subject of the investigation are CFG in nominal thicknesses of 3 mm to 12 mm. The standard nominal thicknesses within this range are 3, 4, 5, 6, 8, 10 and 12 mm.
The actual thickness may vary from the nominal thickness. Pilkington's standard tolerances for CFG of these thicknesses are set out at Attachment 5. Using the upper and lower limit of these standard tolerances, the actual thickness range of the CFG under investigation is between 2.8 and 12.3 mm. However, the nominal thickness is used to identify particular substances. Therefore, CFG with a nominal thickness of 2.8 mm, for example, is not under investigation.
CFG is supplied in a variety of sizes, including factory run sizes (FRS), glazing stock sizes (GSS) and cut to size (CTS). The definition of these sizes is at Attachment 5. CFG is produced primarily for use in the building and associated industries. It can be further processed into toughened, laminated, mirrored and architectural glass.
The goods the subject of the application are classified to subheading 7005.29.00, statistical codes 2 to 6, in Schedule 3 of the Customs Tariff Act 1995. The general rate of duty is 5% and the DCS rate is 4%. Indonesia is subject to the DCS rate.
83 The Report contained, amongst other things, the following about the Australian industry and market:
4. THE AUSTRALIAN INDUSTRY AND MARKET4.1 LIKE GOODS
Pilkington and other manufacturers around the world, including Indonesian manufacturers use the same process to make CFG. Customs believes Pilkington's CFG is identical and considers the CFG produced in Australia to be like goods to CFG imported from Indonesia.
That said, Customs must also determine whether it will treat CFG of nominal thicknesses of between 3 mm and 12 mm as a single homogenous product or as a number of distinct and separate products. Is CFG with, say, a nominal thickness of 3 mm like goods to CFG with a nominal thickness of 4 mm? This is important when considering questions in relation to dumping and to material injury.
Customs concluded, for the purpose of determining dumping and injury in this Investigation, that CFG of each nominal thickness are not like goods to CFG with different nominal thicknesses.
In coming to this conclusion Customs took into consideration that different thicknesses of CFG:
* are generally not interchangeable; and
* are directed to different market segments.
Customs found that the standard thickness for general glazing is 3 mm CFG. Other thicknesses are required in other applications. For example furniture manufacturers require thicker glass. Other industries are also geared for standard thicknesses: for example, aluminium fabricators are geared to provide window frames for domestic windows where the use of CFG with a nominal thickness of 3 mm is standard.
For the purpose of defining like product for this investigation, Customs does not consider that sheet size distinguishes CFG within a nominal thickness.
[emphasis added]
84 As can be seen from the above, the second respondent and Muliaglass made and exported to Australia goods identical to those made in Australia by the appellant, and made the goods by the same process as undertaken by the appellant. The Australian and Indonesian products were identical in all respects: cf the definition of "like goods" in s 269T (see [58] above). But CFG goods of a given nominal thickness were not "like goods" to CFG with a different nominal thickness.
85 Section 5 of the Report dealt with dumping during the investigation period. Section 6 of the Report dealt with the condition of the Australian industry. Section 7 of the Report dealt with the question whether the dumping which was found to have occurred (by Muliaglass, not the second respondent, as to the 3 mm nominal thickness) had caused material injury. It was in this context that the Report purported to deal with the requirement on the CEO imposed by subs 269TEA(2), referred to at [57] above. The Report stated:
Like goods not covered by the applicationSubsection 269TEA(2) states that this report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia between initiation of the investigation and 20 days after the SEF is placed on the public record.
Customs has examined TRACE data in respect of imports of CFG up until 15 April 2000 (20 days after the SEF was placed on the public record). Customs found that the pattern of imports had not notably changed from before the time that the investigation was initiated. During the March quarter of 2000 imports of CFG from Indonesia represented approximately 62% of all imports of that product.
TRACE showed that Muliaglass had the lowest average unit prices in most statistical code categories of any supplier over that period.
86 There was no analysis of whether dumping had occurred during the period identified by subs 269TEA(2). This enquiry was restricted to the investigation period.
87 Section 8 of the Report dealt with the question of future dumping by Muliaglass of 3 mm CFG.
88 In section 11 of the Report, containing the CEO's recommendations, the CEO recommended, amongst other things, the following:
* accept the price undertakings offered by Muliaglass;* pursuant to s 269TG(4), suspend consideration of whether or not a declaration should be made under s 8 of the Dumping Duty Act in relation to future exports of CFG with a nominal thickness of 3 mm from Muliaglass.
89 Over a year elapsed before the Minister made a decision. During that period the identity of the Minister changed. On 28 May 2001 the Minister decided the following (see [9] 2nd FASC, admitted by the Minster):
(a) pursuant to section 269TG(4) of the Customs Act 1901, to accept a price undertaking from Muliaglass in respect of 3 mm CFG and thereby suspend his consideration of whether to impose dumping duty on like goods exported by that exporter.(b) after have regard to the [Customs'] recommendations, not to declare that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to CFG exported to Australia from Indonesia by companies other than Muliaglass and, pursuant to section 269TL(1) of the Customs Act, issue a public notice that he had so decided, and
(c) after having regard to the [Customs'] recommendations, not to declare that section 8 of the Customs Tariff (Anti-Dumping) Act applies to CFG with nominal thicknesses of 4 mm to 12 mm exported to Australia from Indonesia by Muliaglass and, pursuant to section 269TL(1) of the Customs Act, issue a public notice that he had so decided.
90 The appellant, mainly through consultants, thereafter corresponded with Customs. This correspondence is described in [18] to [21], [24] and [25] of the primary judge's reasons. It is only necessary to say that the appellant was asserting, amongst other things, that the calculations as to normal value for the investigation period were now unreliable as a reflection of normal value since that period because of changed circumstances. For example in a letter dated 29 June 2000 the consultant for the appellant stated the following:
The circumstances in which the Indonesian glass industry finds itself are very fluid as indicated by the attached excerpts which indicate for PT Asahimas for whom Customs determined normal values and a nil dumping finding based on arms length selling prices in 1989 are no longer appropriate as indicated by the escalating losses achieved by Asahimas on its sales. Domestic sales by Asahimas like those of Muliaglass can no longer be regarded as being "in the ordinary course of trade" rather they are sales at a loss.
91 The material provided to Customs did not demonstrate anything specific about more recent normal values, but provided, it was said, a ground for doubt as to the reliability of the normal value calculated by reference to the investigation period as a guide to the level of normal value since then. It can be inferred that Customs was probably of a like view. On 10 January 2001 the National Manager, Trade Measures Branch, wrote to the appellant's consultant saying, amongst other things:
While Customs accepts that the circumstances of the exporter may have changed since the normal values were established, this would not, I understand, affect the established normal values. Invariably, in anti-dumping investigations, normal values are determined for a defined investigation period, and Customs compares these to export prices determined over the same period in order to make a finding as to whether the goods were dumped.In order to test that the exporter is now dumping would require normal values to be established with respect to a different investigation period. This could only be done in the context of another inquiry. Of course, Customs would assess any application for a further inquiry or review on the merits of the information supporting it.
92 Also, on 30 May 2001 (two days after the decisions in question of the Minister) the same National Manager and a Director of the Trade Measures Branch in a "Ministerial" said the following to the Minister:
7. The information used to determine the anti-dumping measures currently applying to CFG from Indonesia, China, the Philippines and Thailand is now considerably dated (most recent data was collected and verified in early 2000).8. Given the circumstances, Customs considers it would be appropriate for the review to encompass all the anti-dumping measures applying to CFG from Indonesia, China, the Philippines and Thailand. Specifically, this means a review of all variable factors (normal values, export prices and non-injurious prices) applying to 3 mm CFG exported to Australia from Indonesia and 3 mm to 12 mm CFG exported to Australia from China, the Philippines and Thailand.
9. This approach will provide all interested parties an opportunity to present their case, and to update the data used for determining the level of the measures. It will also provide Customs an opportunity to determine non-injurious prices that are congruous, irrespective of the origin of the exports.
93 All the correspondence from the consultant on behalf of the appellant was given consideration by Customs. Its effect was summarised in a "Ministerial" dated 15 March 2001:
4. Many of the issues raised by Mr Day are addressed in the Customs reports. Customs has also written to Mr Day regarding these issues. Customs does not believe that there are any grounds to alter its recommendations on the basis of Mr Day's representations.
94 We have set out above ([17] above) the facts which were agreed on the pleadings.
95 Finally, we should mention the affidavit evidence of a Mr Vincent. He was a "Customs Manager" in Customs whose duties included the management of dumping investigations, including this investigation. He gave evidence in some detail of the time and expense involved if Customs were required to re-investigate for a later period, that is after the investigation period and before the time of decision, the question whether CFG was exported to Australia at dumped prices and was causing material injury to the Australian industry.
The Arguments and the Proper Construction of s 269TG
96 The appellant's argument is best expressed by [4] to [6] of its written submissions, as follows:
4. First, given:(a) "the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" [Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 [sic] at 45.3-.4 (Mason J; Gibbs CJ and Dawson J agreeing), adopted in Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 624.2-.3 (Gaudron and Gummow JJ)] (emphasis added), and
(b) "that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker [Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 45.4-.5 (Mason J), Darling Casino Ltd v New South Wales Casino Control Authority at 624.2-.3 (Gaudron and Gummow JJ)] (emphasis added),
did his Honour Justice Moore err in holding [Paragraphs 56-58 of judgment (AB 144.8-147.3)] that the Minister, in making a decision under s 269TG of the Customs Act 1901, was to do so:
(ii) "by reference only to information in the report furnished under [section] 269TEA" to him by Customs [Ground 2 in notice of appeal (AB 155.1-.2) and consequentially grounds 4, 6 and 7 in notice of appeal (AB 155.3-.5, .7-.9)] and
(iii) not by also taking into account, in certain circumstances, more recent information provided directly to the Minister?
5. Secondly, if section 269TEA(2) of the Customs Act required (as Pilkington contends and as Moore J found to be "probable" [Paragraph 66 of judgment (AB 151.6-.7)]) the Chief Executive Officer of Customs (the "CEO") to investigate, in appropriate circumstances, whether like goods (not the goods the subject of the application) have been dumped in the period between:
(a) when the application was made (here 17 November 1999), and
(b) 20 days after the statement of the essential facts was published (here 16 April 2000, being 20 days after 27 March 2000),
did Moore J err in not inferring "that the way in which the matter was addressed in the report [of Customs] demonstrates the Minister failed to consider whether like goods exported to Australia after 30 September 1999 had been dumped as part of the task arising under s 269TG(1)(d) and (2) of the Customs Act" [Paragraph 66 of judgment (AB 151.5-152.2); ground 3 in notice of appeal (AB 155.20-.3) and consequentially grounds 5-7 in notice of appeal (AB 155.5-.9)]?
6. If either was an error by Moore J, the appeal should be allowed.
[emphasis in original]
97 From the subject matter, scope and purpose (cf Water Conservation and Irrigation Commission (New South Wales) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505) of Part XVB and the terms of subss 269TG(1) and (2), the appellant identified the issue as to whether dumping has occurred as central to the task under subss 269TG(1) and (2), not only as to the enquiry about the past, but also about the present and future. Whilst the appellant recognised the role of the investigation period in the tasks of the CEO, it emphasised the separate role of the Minister and the absence of any temporal limit in s 269TG of the kind in par 269TC(4)(bf). In addition, and complementary to these matters, the appellant invoked the principle enunciated by Mason J in Peko-Wallsend, supra (see [4] and [5] above, with which views Gibbs CJ and Dawson J agreed) and which has been adopted and followed in Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 624 (per Gaudron and Gummow JJ), NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207, 242 (per Burchett J), Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 2) (1987) 77 ALR 601, 605-6 (per Wilcox J), Adams v Yung (1998) 83 FCR 248, 302 (per Burchett and Hill JJ) and X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 67 ALD 355 [15] to [17] (per Gray J) and [50] (per Moore J).
98 The appellant placed particular emphasis on subs 269TG(2) and, in respect thereof, it referred to what Lockhart J (with whom Sheppard and Olney JJ agreed) in Anti-Dumping Authority v Degussa AG (1994) 52 FCR 414, 430, which was as follows:
...The very notion of determining the normal value of goods that may be exported to Australia in the future requires, to a degree, a hypothetical exercise which can only sensibly be determined by reference to relevant domestic sales, made at or about the time when the determination is made as to the export price of like goods that may be exported in the future.
99 The appellant criticised the primary judge for departing from the text of the Act, for ignoring the need for up to date information at hand, and for impermissibly moving from a prescribed "scheme" in Part XVB concerning the CEO's tasks to imposing that "scheme" upon the decision of the Minister: see in particular the primary judge's reasons at [56] and [57] of his judgment. The greater the prescription of procedure for the CEO, the greater the contrast, it was said, with s 269TG, which was governed by no express procedure: expressio unius est exclusio alterius.
100 Significant emphasis was placed by the appellant on the element of futurity involved in subs 269TG(2). Any restriction of the usual requirement of up to date material would undermine the decision-making as to the future by limiting its foundations to potentially stale material. This is especially so if the Minister was bound not to take into account anything other than the CEO's Report, as it was said, the primary judge held.
101 The primary judge also relied on Division 9 to align the relevant material before the CEO, the Minister and the Review Officer. The appellant said that this was a case of the "tail wagging the dog".
102 The appellant stressed the centrality of the question of dumping and the text of subss 269TG(1) and (2), especially (2) insofar as the past, present and future is concerned.
103 The submissions of the appellant relied expressly on Degussa, supra, in particular as to the authoritative statement as to the meaning of subs 269TG(2). Degussa, supra, was decided on legislation existing before the 1994 Act. However, the form of subs 269TG(2) before the 1994 Act was similar to that set out at [8] above. Indeed, the first part of par 269TG(2)(a) was identical. In Degussa, supra, following lodgement of applications for the publication of dumping duty notices by Australian producers of sodium cyanide, Customs commenced an investigation. The report of normal value restricted itself to the examination of European prices of Degussa for sodium cyanide before the public announcement of the investigation. After the public announcement, Degussa's domestic prices had been reduced. It was thought by Customs that the prices after the announcement were, or might be, unreliable. However, the prices, though reduced, were at arms length. It was conceded that the later prices answered the description for the purposes of subs 269TAC(1) (in its then form, being the same as its current form) of "goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter". Subsections 269TAB(1) and 269TAC(1) (in terms identical to those at [33] above) did not have any temporal limit entitling the ADA or the Minister to ignore some domestic prices and choose others, if the prices that had been ignored conformed with the description of domestic prices which were relevant to the calculation of normal value.
104 The Court found the decision as to the past dumping pursuant to subs 269TG(1) bad: Degussa, supra at 430. Without any relevant temporal limitation, the ADA was not entitled to ignore matters which came within subs 269TAC(1) for the calculation of normal value.
105 As to subs 269TG(2), Lockhart J (at 430) directed his attention to the necessary future enquiry there involved. His Honour said:
I agree also with the primary judge that a different approach is required with respect to the application of subs (2) of s 269TG, namely to goods that may be exported here in the future. This seems to me to require that the ADA have regard to the relevant domestic sales which have taken place at the time when the ADA forms its opinion as to the export price of like goods to be exported to Australia in the future. The relevant time must be the time at which the judgment is formed.The comparison for the purposes of subs (2) of s 269TG is a little more sophisticated than it is under subs (1). Subsection (2) deals with the prospective exports of goods. Nevertheless, the comparison is between the export price of like goods that have already been exported to Australia and the amount of the normal value of those goods, if the former is less than the latter. The second part of the exercise required by s 269TG(2)(a) is to determine if the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods.
This latter excise is necessarily prospective in the sense that it must necessarily follow the export of the goods to Australia that are the basis of the measure of comparison. The very notion of determining the normal value of goods that may be exported to Australia in the future requires, to a degree, a hypothetical exercise which can only sensibly be determined by reference to relevant domestic sales, made at or about the time when the determination is made as to the export price of like goods that may be exported in the future.
106 A question for this appeal is whether the above passage retains its unalloyed force in the context of Part XVB as it now appears, in particular in the presence of subs 269TACB(1).
107 The respondents' first submission is that subs 269TACB(1) governs and regulates the past enquiry in both subss 269TG(1) and (2). This submission makes the reasoning in Degussa, supra, historically relevant only: as applying only to the statutory regime before 1994, in particular absent s 269TACB.
108 Subsection 269TG(1) deals with dumping which has occurred - with the past. It identifies the necessary (jurisdictional) circumstances of which the Minister must be satisfied before exercising the power to declare by public notice that s 8 of the Duty Act applies as set out in pars (c) and (d). The subject matter of which the Minister must be satisfied in par 269TG(1)(a) involves a comparison of export prices and normal values, otherwise provided for in s 269TACB, in particular subs 269TACB(1) using the contents of ss 269TAB and 269TAC. Subsection 269TACB(1) requires the Minister to reach a conclusion about goods that have been exported to Australia by reference to the investigation period. Section 269TACB sets out a detailed regime for that comparison. No longer do the temporally unconstrained terms of ss 269TAB and 269TAC, and in particular subss 269TAB(1) and 269TAC(1), govern the task under subs 269TG(1). The Act, in subs 269TACB(1), now makes clear what the Minister must do in relation to ascertaining "whether dumping has occurred".
109 Whilst the introductory language of subs 269TG(1) is not expressly linked to subs 269TACB(1) or s 269TACB, the regime within s 269TACB directs itself to the task, which is one of the subject matters requiring a state of satisfaction in subs 269TG(1). That state of satisfaction is to be reached by the mandatory way of approaching the matter in subs 269TACB(1).
110 In our view the respondents are correct in their submission that the state of satisfaction called for subs 269TG(1), in circumstances where the decision is brought about consequent upon a s 269TB application, is governed by the requirements of subs 269TACB(1).
111 Absent the state of satisfaction in par 269TG(1)(a) the further matters in subs 269TG(1), in particular in par 269TG(1)(d), do not arise.
112 The respondents submit that by parity of reasoning subs 269TACB(1) also governs that part of subs 269TG(2) that deals with the past: see the emphasised passages in subs 269TG(2) at [8] above. The second respondent submitted that the primary judge so concluded. He did not: see [55] of his Honour's reasons. His Honour appears to have been of the view that the words "like goods that have already been exported to Australia" distinguished subs 269TG(2) from subs 269TACB(1) the latter concerning "goods the subject of the application". The Minister recognised this aspect of the primary judge's reasons, and [4] of the Notice of Contention of the Minister put forward the argument that s 269TACB governed both subss 269TG(1) and 269TG(2). In any event, the appeal was fought with the respondents asserting that subs 269TACB(1) governed the assessment of past dumping in subs 269TG(2), as well as subs 269TG(1).
113 It must be recognised that subs 269TG(2) is dealing with a declaration that s 8 of the Duty Act applies to goods which may be exported to Australia after the publication of the notice - to future goods. Nevertheless, the Minister must be satisfied of certain things, one of which concerns exporting to Australia in the past: see the emphasised part of par 269TG(2)(a) at [8] above.
114 The introductory words to subss 269TG(1) and (2) are necessarily different. Subsection 269TG(1) is dealing with a declaration as to goods that have been exported and so commences with those words. When a decision of the Minister is called for consequent upon an application under s 269TB, the goods that have been exported will be the goods the subject of the application, and, as we have said, are governed by s 269TACB. Subsection 269TG(2) is dealing with goods that have yet to be exported. So, subs 269TG(2) cannot, obviously, commence with the same words as subs 269TG(1). It commences with wide words ("goods of any kind"). Here the relevant goods are CFG goods of different dimensions. The assessment of past dumping is by reference to "like goods", that is goods identical or near identical (see the definitions in s 269T, [58] above) to the "goods of any kind" which, here, are CFG goods of different dimensions. Thus, the phrase "like goods that have already been exported" in subs 269TG(2) is perfectly apt to encompass the goods the subject of the application made under s 269TB. The introductory words of par 269TG(2)(a) are not "like goods" compared to the goods the subject of the application, but are "like goods" compared to the posited "goods of any kind" - being CFG goods of different dimensions.
115 Thus, in our view the contention of the respondents is correct. Section 269TACB, and relevantly, in particular, subs 269TACB(1), governs the assessment of the past dumping in pars 269TG(1)(a) and (2)(a). This is not to reject Degussa, supra. That case was concerned with a crucially different statutory context, which lacked, not only s 269TACB, but much of the statutory prescribed regime that we have described above. A detailed regime of investigation and reporting has been set up. The interested parties have been told of the investigation period. The Minister has been required by subs 269TACB(1) to determine whether there has been dumping in the circumstances there set out. The statute has sought to align the bases of the respective recommendations and decisions of the CEO, the Minister and the Review Officer. Section 269TDA(1) requires the CEO to terminate an investigation if he is satisfied that there has been no dumping of any goods the subject of the application. This decision is to be made by reference to the investigation period. The statute has plainly sought to institute a detailed prescriptive regime in which guidance as to what is relevant for the interested parties to deal with is clear.
116 If it be the case that under subss 269TG(1) and/or (2) the requirements of s 269TACB relate, wholly or partly, only to part of the mandatory relevant period (that is the investigation period) and there is another expanse of time in respect of which the Minister must consider whether there has been dumping, one is left with the Minister's decision being made partly by reference to a period (the investigation period) that has been closely regulated by the procedure set out in Divisions 1, 2 and 3 of Part XVB and partly by reference to a period unregulated otherwise than impliedly by reference to the dictates of procedural fairness. For instance, subs 269TACB(2) deals with the export prices and normal values referred to in subs 269TACB(1): see the word "those". Thus subs 269TACB(2) is directed to the investigation period. Subsections 269TACB(2A), (3), (4), (4A), (5) and (6) are directed to the circumstances in subs 269TACB(1), through internal referencing to subss 269TACB(2) or (4) or (3). It is unclear, if there were a dual regime in subss 269TG(1) and (2) (that is, a regime governed by the requirement in subs 269TACB(1) to determine matters as to the investigation period, and a wider temporal requirement flowing from subss 269TG(1) and (2) and/or Mason J in Peko-Wallsend, supra and/or Lockhart J in Degussa, supra) whether the balance of s 269TACB, that is subss 269TACB(7) to (10), would apply to both periods or only to the mandated task in subs 269TACB(1) by reference to the investigation period.
117 We agree with the submission of the respondents that it would be subversive of the intended detailed prescription of the investigation in Part XVB, which was and is plainly intended to conform with the matters found in the Implementation Agreement, for the Minister to be required to go outside the investigation period to ascertain whether dumping has occurred in the past for the purposes of pars 269TG(1)(a) and (2)(a). The text of the provisions of Part XVB that we have discussed, in particular subss 269TC(4), 269TE(2), 269TACB(1) and 269ZZ(1) and 269ZZK(4) and (6) are such as to lead to the conclusion that the states of satisfaction as to past dumping called for by pars 269TG(1)(a) and (2)(a), in circumstances where a decision is made consequent upon an application under s 269TB, are governed by the required task set out for the Minister (and so the CEO: subs 269TE(2)) by subs 269TACB(1) as to whether dumping has occurred in the past in respect of goods the subject of the application.
118 In each of pars 269TG(1)(a) and (2)(a) the state of satisfaction as to past dumping is necessary for the exercise of the powers contemplated. If, as here, it is absent in respect of goods the subject of the application, there is no call to examine the future in the balance of subss 269TG(1) and (2).
119 If it be the case that the Minister were satisfied that there had been dumping in the past for the purposes of pars 269TG(1)(a) and (2)(a), a question would arise as to whether the Minister was required, in assessing the balance of the matters called for by subs 269TG(2), to examine the question of dumping up to the point of decision, or put another way, as far as was practicable beyond the end of the investigation period. Though not essential for the determination of the appeal, we will deal indirectly with the question when we come, shortly, to the second, and alternative, argument of the respondents.
120 The appellant also places some emphasis on subs 269TEA(2) in its argument that the period of reference to which past dumping must be judged is wider than the investigation period. We have already (at [58] to [59] above) indicated our view that subs 269TEA(2) does not affect the Minister's task under subs 269TACB(1), or the CEO's like task by reason of subs 269TE(2). Whatever the reach of subs 269TEA(2) might be in circumstances where there has been found to be dumping during the investigation period, and where it is practicable for the CEO to deal with like goods not covered by the application, it does not operate to widen the task of the Minister (and the CEO) in his or her (and their) assessment as to whether goods the subject of the application under s 269TB (such as those of the second respondent, Muliaglass and the other Indonesian exporters of CFG covered by the application) have been dumped in Australia during the investigation period for the purposes of subs 269TACB(1).
121 It is not entirely clear what goods answer the description of like goods not covered by the application actually made by the appellant under s 269TB, other than CFG goods made in countries other than Indonesia. The pleading made clear that the goods covered by the application were CFG in the nominal thickness range of 3 mm to 12 mm exported to Australia from Indonesia. In its application the appellant identified four producers of CFG in Indonesia, including the second respondent and Muliaglass. Their exports to Australia were goods covered by, and the subject of, the application.
122 The CEO's Report contained a short section dealing with subs 269TEA(2): see [85] above. It is not clear to us that there are in fact any like goods not covered by the application, other than the CFG goods produced elsewhere than in Indonesia. In any event, as we have said, we do not see subs 269TEA(2) as widening the required task of ascertaining dumping in the past set by s 269TACB in respect of goods the subject of the application, that is, in respect of CFG produced in Indonesia by the second respondent and Muliaglass.
123 The respondents also argued that in the context of the prescriptive regime laid down by Part XVB for the conduct of the investigation so as to implement Australia's obligations under the Implementation Agreement, the alignment of the recommendations and decisions of the CEO, the Minister and the Review Officer and the matters required to be taken into account in respect thereof was such as to lead to the conclusion that there was no implication of the ordinary or usual kind contemplated by Mason J in Peko-Wallsend, supra, that the Minister was bound to take into account material beyond that contained in the CEO's report. We agree. To do so would create a period of time (even if in some cases short, bearing in mind the duty to make a decision within a reasonable period of time: BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246, 272; PT Pabrik Kertas Tjiwi Kimia Tbk v Minister for Justice and Customs (2000) 60 ALD 203, 214-16) during which the Minister was obliged to examine whether dumping had occurred without the assistance of a report, the preparation of which had been subject to a detailed prescriptive regime of notice and submissions, and without any nominated or identified regime in which interested parties might participate.
124 We agree with the respondents' submissions that to require the Minister to go beyond the CEO's Report would be subversive of the elaborate statutory process governing the preparation of the Report, being a statutory process put in place to produce the transparency and timeliness required of Australia by the Implementation Agreement: see in particular Articles 5, 6 and 12. In this regard it is relevant that the Review Officer is to make his or her recommendation on the basis of what is referred to in subss 269ZZ(1) and 269ZZK(4) and (6). Those provisions would have a fundamental tension if the Minister were required to make decisions under subss 269TG(1) and (2) going beyond the CEO's Report and thus requiring, by subs 269ZZ(1), the Review Officer to do likewise, but at the same time limiting the relevant information before the Review Officer to that which the CEO had, or was required to have, regard to: subs 269ZZK(4) and (6).
125 The primary judge appeared to conclude that the Minister was obliged not to look beyond the CEO's Report. The second respondent submitted that his Honour's judgment should not be so construed. We cannot agree. We think that [56] of his Honour's reasons accords with what the appellant attributes to him. The respondents sought to respond to this criticism of the primary judge by stating that it was sufficient to dismiss the appeal to conclude that it was not obligatory for the Minister to look beyond the CEO's Report. We agree. We do not see in the legislation a positive proscription on the Minister informing himself or herself of matters beyond the CEO's Report. Questions of procedural fairness may arise. However, if, for instance, clear evidence came to light, after the Report, falsifying significant parts of its contents, we see nothing in Part XVB to prohibit the Minister from examining such material.
126 In our view, the terms of Part XVB are such as to exclude any implication that the Minister must look to material outside the CEO's Report in coming to his or her decisions under s 269TG.
127 Thus, we conclude that, in the circumstances of decisions under s 269TG consequent upon an application under s 269TB, the satisfaction as to the relationship between export prices and normal values in the past called for in pars 269TG(1)(a) and (2)(a) is to be reached by reference to the process laid down by s 269TACB and by reference to the investigation period as called for by subs 269TACB(1). If we are wrong in that conclusion, we are of the view that the provisions of Part XVB are such that it is not obligatory for the Minister to go beyond the CEO's Report prepared conformably with Part XVB in making the decision required of him or her.
128 Our first conclusion disposes of the appeal. The second question posited by the appellant (see [96] above) cannot in those circumstances arise.
129 If we are wrong in our first conclusion the second question may become relevant. The Notice of Appeal in [5] reflects this second question:
His Honour should have held that the Minister failed to take relevant considerations into account in the exercise of his powers under section 269TG of the Customs Act, namely export prices and normal values of CFG exported from Australia [sic: Indonesia] to Indonesia [sic: Australia] as at any time during the period starting on the date of initiation of the [Customs'] investigation and ending 20 days after the SEF was placed on the public record.
130 We have already addressed the difficulties we see in applying subs 269TEA(2) here in the manner sought to be done by the appellant. Customs were of the view that CFG of different nominal thicknesses were not like goods to each other. The application covered CFG of nominal thicknesses of 3 mm to 12 mm exported to Australia by Indonesian companies including the second respondent and Muliaglass. We do not see how subs 269TEA(2), referring as it does to like goods not covered by the application, can raise an obligation on the CEO to deal with goods covered by the application in the period there referred to. In any event the Report did deal with CFG exports to Australia other than from Indonesia. It has not been shown that Customs did not attend to this task as far as it was practicable. Also, irrespective of our first conclusion, we do not see subs 269TEA(2) as requiring the CEO to undertake what is called for in [5] of the Notice of Appeal, which asserts error by the primary judge in connection with the Minister's approach to goods the subject of and covered by the application, that is exports of CFG exported from Indonesia to Australia.
131 For the above reasons the appeal should be dismissed.
132 It is unnecessary to deal further with the matters in the Minister's Notice of Contention.
133 We see no reason why the appellant should not pay the Minister's costs. We are not clear as to the basis upon which the second respondent became a party insofar as that may affect costs on the appeal. In these circumstances, we will deal with all questions of costs after the parties have had an opportunity to consider these reasons and to file submissions on the question of costs.
I certify that the preceding one hundred and thirty three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Conti & Allsop. |
Associate:
Dated: 19 December 2002
Counsel for the Appellant: |
B W Walker SC with M R Speakman |
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Solicitor for the Appellant: |
C G Gillis & Co |
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Counsel for the First Respondent: |
Dr G A Flick SC with S Lloyd |
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Solicitor for the First Respondent: |
Dibbs Barker Gosling |
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Counsel for the Second Respondent: |
S Gageler SC |
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Solicitor for the Second Respondent: |
Baker & McKenzie |
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Date of Hearing: |
21 November 2002 |
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Date of Judgment: |
19 December 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/423.html