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Federal Court of Australia |
ADMINISTRATIVE LAW - judicial review legislation - whether decision authorised by an enactment
Customs Act 1901 (Cth), ss 269TG(1), 269TG(2), 269TG(4), 269TG(4A), 269TG(9), 269TG(11), 269TM(2), 269TAJ(3)
Customs Tariff (Anti-Dumping) Act 1975 (Cth), s 8
Anti-Dumping Authority Act 1988 (Cth), ss 7(3), 7(4), 7(4A)
Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction and Customs (1993) 40 FCR 332 at 342, cited.
Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 at 256-258, cited.
AUSTRALIAN PAPER LIMITED v THE ANTI-DUMPING AUTHORITY
NG 841 of 1997
LOCKHART J
SYDNEY
24 FEBRUARY 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG841 of 1997 |
|
BETWEEN: | AUSTRALIAN PAPER LIMITED
Applicant |
|
AND: | THE ANTI-DUMPING AUTHORITY
Respondent |
|
JUDGE: | LOCKHART J |
| DATE OF ORDER: | 24 FEBRUARY 1998 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The application is dismissed with 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 | NG841 of 1997 |
|
BETWEEN: | AUSTRALIAN PAPER LIMITED
Applicant |
|
AND: | THE ANTI-DUMPING AUTHORITY
Respondent |
JUDGE:
LOCKHART J DATE: 24 FEBRUARY 1998 PLACE: SYDNEY
This case raises questions about the operation and effectiveness of a written undertaking and a later revision of it given by PT Pabrik Kertas Tjiwi Kimia ("Kimia"), an Indonesian exporter, purportedly pursuant to s 269TG(4) of the Customs Act 1901 ("the Customs Act"), not to export to Australia A4 copy paper below certain minimum prices.
To understand the issues it is necessary to set out the facts and relevant statutory provisions. The facts are not in dispute.
On 13 May 1993 Australian Pulp and Paper Mills Pty Ltd lodged an application with the Australian Customs Service ("Customs") requesting that anti-dumping measures be put in place against exports of A4 copy paper from a number of countries including Indonesia.
In its preliminary "finding report" of 15 September 1993 Customs stated its conclusion that, in respect of Indonesia, A4 copy paper had been exported to Australia at dumped prices, that future exports from Indonesia may be at dumped prices, and because of that, material injury had been suffered by the Australian industry producing like goods and that provisional anti-dumping measures should be imposed.
On 28 September 1993 Customs referred to the Anti-Dumping Authority ("the Authority") the question of whether anti-dumping action was justified in respect of A4 copy paper imported from countries including Indonesia. The Authority found that imports of A4 copy paper from Indonesia had been dumped, that there may be imports of that paper at dumped prices from Indonesia and that the Australian industry producing like goods had suffered material injury. In light of this, the Authority recommended that the Minister accept a certain price undertaking offered by Kimia and suspend consideration of whether a declaration should be made that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 ("the Anti-Dumping Act 1975 ") apply to future exports of A4 copy paper by Kimia from Indonesia to Australia.
By document dated 22 January 1994 addressed to the Australian Minister for Science and Small Business, Kimia gave an undertaking in the following terms:
Acknowledging that you are considering whether or not a declaration under section 269TG of the Customs Act 1901 should be made in regard to the exportation to Australia of A4 copy paper from Indonesia, PT Pabrik Kertas Tjiwi Kimia, being the exporter of such goods, hereby undertakes that PT Pabrik Kertas Tjiwi Kimia will conduct its future export trade to Australia in like goods so as to avoid causing or threatening material injury to the Australia [sic] industry producing like goods.
For this purpose, future consignments of the goods as are described in the following table ("The Table") will be made at export prices which are not less than those specified in the table.
PT Pabrik Kertas Tjiwi Kimia acknowledges that such export prices may be subject to review from time to time.
PT Pabrik Kertas Tjiwi Kimia also acknowledges that this undertaking shall take effect from the date of your acceptance thereof, but will lapse should you decide not to issue a notice declaring that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to like goods exported from Indonesia.
DESCRIPTION : Woodfree, uncoated white A4 cut ream copy paper, weighing from 70 to 80 grams per square metre.
EXPORT PRICE : $ Aus per tonne, FOB Indonesia, packed, cash.
No adjustment is to be made to the export price for credit terms up to 90 days."
The dollar amounts in the table have been deleted as they are confidential. I shall refer to this document as "the Undertaking".
The Minister accepted the Undertaking by instrument dated 3 February 1994 in the following terms:
I, CHRISTOPHER CLELAND SCHACHT, Minister of State for Science and Small Business hereby ACCEPT the undertaking by PT Pabrik Kertas Tjiwi Kimia of the Republic of Indonesia that the company will so conduct future export trade to Australia in woodfree, uncoated white A4 cut ream copy paper, from 75 to 80 grams per square metre as to avoid causing or threatening material injury to the Australian industry producing like goods. A true copy of the undertaking is annexed hereto and dated the 22nd day of January 1994."
Dated this 3 day of Feb 1994
CHRISTOPHER CLELAND SCHACHT
Minister of State for
Science and Small Business
Note: Because of confidentiality, a copy of the undertaking will not be published."
On 31 May 1996 industry and trade consultants acting for the applicant applied to Customs for a review of the normal values then the subject of the Undertaking to the Minister by Kimia in 1994, and for a review of the export price determined by the Minister in respect of exports made by Kimia.
By notice in the Gazette of 28 June 1996 Customs notified a review of normal values, export prices and non-injurious price applying to A4 copy paper exported from Indonesia. The review was completed by Customs; and in a document produced by Customs dated 1 November 1996 it is stated that:
"The review has been completed and, despite several requests, the company [Kimia] declined to advise whether it intended to renew the price undertaking at the revised level. The company was told that in the absence of any advice, Customs would assume that it did not wish to do so. As such, Customs recommends that the existing price undertaking be replaced with dumping notices which reflect the current amounts for normal value, export price and non-injurious price."
By notice published in the Gazette on 26 November 1996 it is stated that the Minister accepted Customs' recommendations and had published new anti-dumping notices which imposed an interim dumping duty amount on future imports of A4 copy paper from Kimia. It is also stated that the new arrangements would apply to paper exported from Indonesia by Kimia entered for home consumption on or after 26 November 1996.
That Gazette notice contained the Minister's declaration dated 7 November 1996 which stated:
"I, GEOFFREY DANIEL PROSSER, Minister of State for Small Business and Consumer Affairs, resume consideration of anti-dumping action against ... Kimia ... and pursuant to subsection 269TG(2) of the Customs Act 1901, hereby DECLARE that section 8 of the Customs Tariff (Anti-Dumping) Act applies to goods being like goods to ... A4 copy paper, exported to Australia from Indonesia by that company:
(a) after the date of publication of this notice; and
(b) the amount of the export price of which is less than the amount of its normal value."
The Gazette notice went on to state that the Minister had ascertained that the normal value, export price and non-injurious price for such paper were those amounts set out in the table annexed to the notice.
This was followed by Kimia commencing a proceeding against the Minister and Customs in this Court (NG109 of 1997) by filing an application and statement of claim on 14 February 1997 seeking review of the relevant decisions of the Minister and Customs concerning the review of the anti-dumping measures imposed on exports of A4 copy paper by Kimia and the decision of the Minister on 7 November 1996 to make a declaration under s 269TG(2) as mentioned above.
Then came an exchange of correspondence between the Australian Government Solicitor and the solicitors for Kimia with a view to resolving the litigation.
Agreement was reached between the parties to that litigation and orders were made by this Court by consent on 16 May 1997 setting aside the relevant decisions of the Minister and Customs and ordering that the subject matter of those decisions be remitted to the Minister and Customs to be determined according to law.
The next relevant event occurred on 26 June 1997 when Kimia lodged with the Authority a document entitled "Application for Release from Undertaking" which purported to request, in accordance with s 7(3) of the Anti-Dumping Authority Act 1988 ("the Authority Act") that the Minister release Kimia from "an undertaking" given under the Customs Act in respect of the relevant A4 paper the subject of the undertaking accepted by the Minister on 3 February 1994. This document is a little curious because it requests a release by the Minister from the 1994 undertaking under s 7(3) of the Authority Act; yet the terms of that subsection provide that the Authority is empowered to inquire whether the Minister should release a person from an undertaking, rather than for the Authority or the Minister to itself or himself grant the release.
Customs issued a Dumping Report No 97/008 dated 1 July 1997 reviewing the history of the matter concerning Kimia and Customs. The third paragraph of that document states:
"After consideration of an application by the Australian paper manufacturer - Australian Paper Limited - Customs initiated a review of the price undertaking level on 28 June 1996. During the course of the review, Tjiwi Kimia declined to renew the price undertaking at the recommended revised level. Following acceptance of Customs' recommendations made in the resulting Dumping Review report No. 96/013, the Minister replaced the price undertaking with a dumping notice - which came into effect on 26 November 1996."
Below that paragraph it was stated that subsequently Kimia challenged the legal basis of the Minister to sign the dumping notice; but that there was a settlement out of Court, when it was agreed that orders should be made by the Federal Court that the dumping notice and the Customs review report (No 96/013) be set aside and that Customs prepare a new report according to law.
The fourth paragraph also stated that, pending the outcome of the Minister's decision, Customs imposed securities from 3 June 1997 on A4 copy paper imports from Kimia at the recommended normal value level established by the 1996 review investigations.
That report states on page 9 that although Kimia had refused to renew the price undertaking, it remained formally in place.
Also in the same report at page 17 it referred to the fact that the dumping notice had been set aside in May 1997 as part of the settlement of the earlier proceeding and that such action:
"had the effect of reinstating the price undertaking - although Tjiwi Kimia had again declined to renew the price undertaking at the recommended revised levels during the legal settlement process."
It was stated on page 18 of the report:
"The terms of the price undertaking included acknowledgment that the export price may be reviewed from time to time over the period of its operation. By declining to renew the price undertaking at the recommended revised level established by the mid 1996 review, Tjiwi Kimia may be considered to be in breach of one of the conditions of the undertaking. More importantly, though, the level of the price undertaking reflects the price structure prevailing in the Indonesian market in 1993 - which makes it now four years out of date."
Customs then recommended that, in view of those circumstances, the Minister conclude that the price undertaking was no longer an appropriate anti-dumping measure. Customs also recommended that the Minister resume consideration of whether it was appropriate to publish a dumping notice.
In a document dated 4 July 1997 addressed to Customs, Kimia acknowledged that Customs was considering whether or not a declaration should be made under s 269TG of the Customs Act concerning exportation of the A4 paper from Indonesia. Kimia undertook in that document, as the exporter of the goods:
"that it will conduct its future export trade to Australia so as to avoid causing or threatening material injury to the Australian industry producing like goods.
For this purpose, future consignment of the goods as described in the attached `Revised Price Undertaking', will be made at export prices which are not less than the amounts specified.
PT Pabrik Kertas Tjiwi Kimia acknowledges that such export prices may be subject to review from time to time.
PT Pabrik Kertas Tjiwi Kimia also acknowledges that this undertaking shall take effect from the date of your acceptance thereof and will expire on January 22, 1997 [sic]."
Customs responded to this document from Kimia suggesting certain amendments to the attached revised price undertaking. Customs also stated that, if the Minister accepted the revised undertaking of Kimia, it would take effect from the date of the Minister's signature and that for that reason, if no revocation occurred beforehand, the expiry date of the revised undertaking would be 3 February 1999, being five years after the date on which the Minister accepted the Undertaking (3 February 1994).
On 7 July 1997 Kimia responded, acknowledging that if accepted by the Minister, the expiry date of the revised undertaking would be 3 February 1999, unless there was earlier revocation. The amended form of the revised price undertaking was as follows:
Goods: Woodfree, uncoated white A4 cut ream copy paper. 75 to 80 gsm per square metre.
Export Price:
Sinar Dunia A4 copy paper A$ tonne, packed. FOB. days from Bill of Lading date.
Paperplus A4 copy paper A$ tonne, packed. FOB. days
(PPS FC 80 A4) from Bill of Lading date
Dated this 7th day of July 1997"
I shall refer to this document as "the Revised Undertaking". The Minister accepted the Revised Undertaking on 30 July 1997.
A Customs document which is in evidence describes the Revised Undertaking in these terms:
"In doing so, Tjiwi Kimia is not offering a new undertaking, rather it is an adjustment to the existing undertaking. The revised levels reflect the normal values in June 1996 as recommended by Customs in its report."
By notice published in the Gazette on 13 August 1997, the Authority gave notice of a revocation inquiry into whether Kimia should be released from its "undertaking" relating to its exports of A4 copy paper from Indonesia to Australia. The Authority stated that it would report to the Minister not later than 5 December 1997 and noted that the "undertaking" (accepted on 3 February 1994) was due to expire in February 1999.
On 13 October 1997 the applicant commenced this proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the Authority's decision to hold the inquiry.
Statutory Provisions (in force at the relevant time)
Section 269TG(1) of the Customs Act provides:
"... 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) ...
the Minister may, by notice published in the Gazette, declare that section 8 of ... [the Anti-Dumping Act] applies to those goods."
Section 269TG(2) provides:
"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 notice published in the Gazette ... declare that section 8 of the Anti-Dumping Act applies to like goods:
(c) that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice; and
(d) the amount of the export price of which is less than the amount of their normal value."
Subsection (4) of s 269TG is an important provision; it provides as follows:
"(4) Where the export of a consignment of goods to Australia by an exporter has been under consideration by the Minister with a view to determining whether or not a declaration should be made under this section in relation to the goods in the consignment or to like goods, the Minister may:
(a) give notice in writing to the exporter stating that:
(i) the Minister is of the opinion that it would be appropriate for the exporter to give an undertaking in accordance with paragraph (b); and
(ii) an undertaking in the terms set out in the notice may be satisfactory to the Minister; and
(b) whether or not a notice has been given to the exporter in accordance with paragraph (a), suspend his or her consideration of the export of that consignment if he or she is given and accepts an undertaking by the exporter, in terms that are satisfactory to the Minister, that the exporter will so conduct future export trade to Australia in like goods as to avoid causing or threatening material injury to an Australian industry producing like goods or hindering the establishment of such an Australian industry."
Subsection (4A) of s 269TG, provides as follows:
"The suspending by the Minister of his or her consideration of the export of a consignment of goods to Australia on the acceptance of an undertaking continues only until such time as the Minister considers that such consideration should be resumed."
The Minister must, if an exporter makes such a request, and may, on his or her own initiative, determine whether he or she would have published a dumping duty notice or would have decided not to publish such a notice if the undertaking had not been accepted (s 269TG(9)).
If the Minister determines under subsection (9) that he or she would have decided not to publish a dumping duty notice, the undertaking automatically lapses (s 269TG(11)).
An undertaking entered into in accordance with the preceding provisions expires five years after the day on which it was entered into unless provision is made for its earlier expiration (s 269TM(2)).
The Minister is empowered by public notice to release or partly release a person from an undertaking entered into under the preceding provisions (s 269TAJ(3)).
Application may be made for the Authority to hold an inquiry into whether the Minister should release or partly release a person from an undertaking given under Part XVB of the Customs Act (s 7(3) of the Authority Act).
Application for the holding of such an inquiry must be in the form approved by the Authority and must be made by the person who gave the undertaking (s 7(4) of the Authority Act).
Where such an application is made the Authority is required, after holding an inquiry into the matter, to report to the Minister recommending whether the person should be released from the undertaking (s 7(3) of the Authority Act).
An application for the holding of an inquiry into whether the Minister should release or partly release a person from an undertaking must not be made until after twelve months have elapsed from the date of acceptance of the undertaking (s 7(4A) of the Authority Act).
Submissions of the Parties
The primary submission of counsel for the applicant was that the Revised Undertaking was not a revision of the Undertaking, but a new and separate undertaking. Hence, an application for the holding of an inquiry into whether the Minister should release Kimia from the undertaking cannot be made until after twelve months have elapsed from the date of the acceptance of the undertaking by virtue of s 7(4A) of the Authority Act; and this period has not elapsed.
Alternatively, an inquiry into release of the Revised Undertaking cannot proceed because no application has been made to the Authority under s 7(3) of the Authority Act for such release. The application for an inquiry made on or about 26 June 1997 predated the Revised Undertaking (accepted by the Minister on 30 July 1997). That application referred to the earlier undertaking. Section 7 of the Authority Act does not provide for the Authority to commence an inquiry on its own initiative where there is no application for it to do so.
Alternatively, when the Minister issued a dumping notice in November 1996 which was set aside prospectively by consent by this Court in May 1997, the earlier undertaking ceased to operate. Hence the later undertaking cannot be a continuation of it.
Counsel for the respondent submitted that the Revised Undertaking was simply a revision of the Undertaking; and, when accepted by the Minister on 30 June 1997, was simply a revision of the export prices set out in the table attached to the Undertaking. Alternatively, the Revised Undertaking was a variation to the Undertaking, it was not a new undertaking.
Counsel argued that an undertaking does not automatically terminate if a dumping duty notice is published under s 269TG(2); also there is no necessary inconsistency between the imposition of interim duty and the existence of an undertaking. Nor is there any necessary correlation between the period of deferral of the decision to publish or not to publish a dumping notice and the period of an undertaking. Reliance was placed on Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction and Customs (1993) 40 FCR 332 at 342. The original undertaking accepted by the Minister on 3 February 1994 was therefore unaffected by the publication on 7 November 1996 of a dumping duty notice under s 269TG(2) and the subsequent setting aside of it on 16 May 1997.
Also, it was submitted that the order of this Court made by consent on 16 May 1997 had the effect of setting aside the dumping duty notice issued under s 269TG(2) ab initio and reliance was placed on a number of authorities including Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 at 256-258.
Findings
The primary question is the construction of the Undertaking and the Revised Undertaking.
The documents must be construed in their statutory framework and the relevant provisions were set out earlier.
I agree with the submission made by counsel for the respondent that an undertaking given pursuant to the authority of s 269TG does not automatically terminate if a dumping duty notice is published under s 269TG(2), as happened in this case. Also, I do not discern any indication in the Customs Act or the Anti-Dumping Act that leads to a contrary conclusion and I see no necessary inconsistency between the subsistence of an undertaking and the subsequent publication of a dumping duty notice or the imposition of interim duty.
An undertaking accepted by the Minister pursuant to s 269TG(4) will terminate in the following events:
(a) if the Minister determines under s 269TG(9) that the Minister would have decided not to publish a dumping duty notice (s 269TG(11);
(b) upon the expiration of the undertaking pursuant to s 269TM(2) (five years after the date on which it was entered into);
(c) if released wholly or partly by the Minister under s 269TAJ(3); and
(d) on such date not inconsistent with these statutory provisions before the expiration of the five year period mentioned in s 269TM(2) if the terms of the undertaking so provide.
I agree with the submission of counsel for the respondent that there is no necessary correlation between the period of deferral of the decision to publish or not to publish a dumping duty notice and the period of an undertaking.
In my opinion, the Undertaking accepted by the Minister on 3 February 1994 was not affected by the publication on 7 November 1996 and the subsequent setting aside on 16 May 1997 of the dumping duty notice under s 269TG(2).
I do not find it necessary to decide whether the effect of the Federal Court's order made by consent setting aside the dumping duty notice operated ab initio.
The Undertaking was given by Kimia for the purpose stated in its first paragraph, namely, so that it will "conduct its future export trade to Australia in like goods so as to avoid causing or threatening material injury to the Australia [sic] industry producing like goods", thus reflecting the language of s 269TG. The Undertaking stated that, for such purpose, future consignments of the A4 copy paper were to be made at export prices not less than those specified in the table. The Undertaking went on to say that Kimia acknowledged "that such export prices may be subject to review from time to time", which meant that, if prices were to be reviewed, that could only be done by agreement of Kimia and the Minister. There is nothing in the language of the Undertaking to suggest that the review could be unilateral.
Undertakings provide convenient machinery for the due administration of Customs, a quick and informal means of achieving the objectives of the legislation where dumping duties are under consideration. The capacity to review or revise the export prices specified in an undertaking, which is inherent in the Undertaking when Kimia acknowledged "that such export prices may be subject to review from time to time", is a term accepted by the Minister as being satisfactory.
The Revised Undertaking was a revision of the earlier prices set out in the table attached to the Undertaking. I reject the argument that the acknowledgment in the Undertaking that the export prices set out in the table "may be subject to review from time to time" was a provision for the earlier expiration of the Undertaking within the meaning of s 269TM(2). Those words in the Undertaking said nothing about its expiration or termination. Nor did the acknowledgment in the Undertaking in any way foreshadow that, if a new undertaking was sought, but not given, the power of the Minister to issue a dumping notice could be exercised. It merely referred to the prices specified in the Undertaking and was silent about the Minister's powers which existed under the relevant legislation.
Orders
The application is dismissed with costs.
|
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice
Lockhart |
Associate:
Dated: 24 February 1998
|
Counsel for the Applicant: | Mr M R Speakman |
| Solicitor for the Applicant: | C G Gillis and Co |
| Counsel for the Respondent: | Mr S Gageler |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 20 November 1997 |
| Date of Judgment: | 24 February 1998 |
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