CATCHWORDS Customs - proposed anti-dumping action - securities proposed to be required upon importation of motor tyres from New Zealand - power to require securities before imposition of anti-dumping duties - considerations to be taken into account bdefore such securities may be required - relevance of international agreements relating to tariffs or trade. Administrative Decisions (Judicial Review) Act 1977, ss.5 and 6; Customs Act 1901, ss.4, 7, 42, 43 and 45; Customs Tariff (Anti-Dumping) Act 1975, ss. 5, 6, 7, 8, 9, 10, 11 and 13; Customs Securities (Anti-Dumping) Amendment Act 1982, and Customs Tariff (Anti-Dumping) Amendment Act (No.2) 1982. FELTEX REIDRUBBER_ LIMITED v, ANDREW SHARP PEACOCK, MINISTER FOR INDUSTRY 4ND COMMERCE and TEE COMPTRCLLER-GENERAL OF CUSTOMS G 189 of 1982 Coram: Sheppard d.° 25 February, 1983 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 189 of 1982 GENERAL DIVISION BETWEEN FELTEX REIDRUBBER LIMITED Applicant AND ANDREW SHARP PEACOCK, MINISTER FOR INDUSTRY AND COMMERCE AND THE COMPTROLLER-GENERAL OF CUSTOMS Respondents ORDER JUDGE MAKING ORDER : SHEPPARD J. DATE OF ORDER : 25 February, 1983 WHERE, MADE : Sydney THE COURT ORDERS THAT: i. The application be dismissed. 2. The question of costs be stood over for later argument. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 189 of 1982 eed GENERAL DIVISION BETWEEN FELTEX REIDRUBBER LIMITED Applicant AND ANDREW SHARP PEACOCK, MINISTER FOR INDUSTRY AND CCMMERCE AND THE COMPTROLLER=GENERAL OF CUSTOMS Respondents CORAM: SHEPPARD J. 25_ February, 1983 REASONS FOR JUDGMENT This is an application made pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for the review of a decision said to have been made by the second respondent, the Comptroller- General of Customs, that cash securities be required or taken pursuant to s.42 of the Customs Act 1901 in respect of the importations into Australia of motor tyres manufac- tured in New Zealand by the applicant, Relief is also sought under s.6 of the Act. The applicant 1s a company incorporeted in New Zealand, The first respondent is the Minister for Industry and Commerce. The second respondent, es I have said, 1s the Comptroller-General of Customs, The applicant does not carry on business in Australia nor 1s 1t registered here as a foreign company. When the proceedings were in their interlocutory stages, a sub- mission was made on behalf of the respondents that the applicant, because it had no legal presence in Australia, had no standing under the Act to bring this application. That submission was not made at the final hearing, not, I think, because counsel had lost faith in it, but because the realities were such that it would have been easy enough for the applicant to have procured an associated company which does carry on business in Australia to prosecute the proceedings whether as an additional or a substituted applicant. I have mentioned the matter because I wish to make it clear that I have not considered the submission Since the interlocutory stages when I expressed the tentative view that the proposition was open to serious doubt. However, I expressed no final view in relation to it, and, of course, do not do so now, The applicant carries on business in New Zealand, inter alia, as the manufacturer of motor tyres. Three types of tyres are manufactured namely, bias tyres, textile radials and steel radials. Only radial tyres are in question in these proceedings. A radial tyre has a reinforcing belt of either steel or textile. Steel raaials are now fitted on almost all 2e new cars sold in Australia. Theoretically textile radials are interchangeable with steel radials but steel radials have become the dominant product in the Australian market place because of a market view that they are a better and longer lasting product. The applicant commenced significant export of tyres to Australia in February 1980. On 1 April, 1980, it entered into a distribution agreement with an Australian company, B.#. Goodrich Australia Limited. B.F.Goodrich has a marketing arrangement with a company, Tyrepower Limited. Under this agreement there are specified certain total aggregate purchase levels throughout Australia which 1t 1s thought ought desirably be achieved. The relevance of this evidence is that 1t indicates the possible level of imports of New Zealand tyres into Austrelia. As I understana the evidence the applicant does not export to Australia quantities of radial tyres wnich exceed in number one per cent of the tyres sold in Australia each year. It is not its intention to export tyres whicr will exceed in number 1.5 per cent of the tyres sold in Australia each year, although the agreement itself contemplates thet exports could eventually rise to 3.5 per cent. On 28 September, 1982, tre secona resnvondent published Australian Customs Notice Nco.82/194. The notice, so far as it 1s relevent, was as follows: "DUMPING INQUIRY - PASSENGER CAR TYRES FROM NEW_ZEALAND, NETHERLANDS, REPUBLIC CF KOREA In accordance with Australia's obligations under Article 6(f) of the GATT Anti-Dumping Code, interested parties are advised tnat inquiries have been initiated to determine 1f export prices to Australia of certain passenger car tyres from New Zealand, Netherlands and Republic of Korea are less than the normal value within the terms of Section 5 of the Customs Tariff (Anti-Dumping) Act 1975. This action follows a complaint made to the Depart- ment by the Australian tyre manufacturing industry that material ingury is being caused and is further threatened by dumped imports of tyres falling within sub-item 40.11.300, statistical codes 18 and 29 of the Australian Customs Tariff. The industry has submitted evidence, based on pub- lished price lists and supplementary information lodged confidentially that export sales of tyres have been made to Australia at price levels which represent apparent dumping margins up to 46% when compared with tentative normal values for tyres in the above-named countries. It has been claimed that such allegedly dumped imports are causing and further threatening injury to the local industry as evidenced by loss of market share, inability to recover pro- duction cost increases and in some cases, necessitated actual price reductions. It has also been claimed that underutilisation of plant capacity has been caused resulting in higher unit production costs and possible staff retrenchments, Preliminary local inquiries have been made into the local industry's claims and the Cepertment is satis-~- fied that there 1s sufficient evidence to justify the initiation of formal incuiries. It 1s in tne interest of importers of the above goods to ascertain whether tneir purchasing prices of current and projected shipments, at FOB level, are less than normal values, and if so, to decide whether to continue purchasing at sucn prices." I shall later refer to the GATT Anti-Dumping Code and to tne legislation mentioned in the notice. On 29 September, 1982, a Mr. Reith, who is employed in the Department of Industry and Commerce as "Assistant Secretary Dumping" wrote a memorandum to the Comptroller- General. The memorandum made reference to Customs Notice No.82/194 above set out. It reported that certain inquiries into the question of whether dumping of tyres from New Zealand, the Netherlands and Korea was continuing had been completed. The conclusion was that "prima facie evidence suggests that substantial dumping 1s occuring from the nominated sources", that 1s the three countries referred to. Mr. Reitn recommended that "immediate casn security action" be taken, On 9 October, 1982, the Comptroller-General approved the course proposed. On 21 October, 1982, the Comptroller-General published a furtner Customs Notice, 82/218. The heading on the notice referred only to tyres importec from tne Netherlands and Korea. The notice referred to the earlier Customs Notice 82/194. Amongst other things the notice said: "Pending the completion of inquiries, provisional measures are being introduced for certain tyres exported from Netherlands and Republic of Korea. These provisional measures will be in the form of dumping cash securities and will apply to tyres entered for home consumption after the cate of publication of this Notice. Collectors of Customs have been notified of normal values tentatively assessed by the Department ana they will determine the need for securities naving regard to the anount, if any, by which the export prices are lower than the tentative normal values." On 28 October, 1982, these proceedings were commenced. On that day a juage of this Court granted the applicant an injunction ex parte restrain- ing the two respondents from requiring or taxing cash securities pursuant to s.42 of the Customs Act in respect of the importation into Australia of tyres manufactured in New Zealand by the applicant. There are in evidence two draft Customs Notices neither of wnich was in fact published. These show that, if the injunction granted on 28 October, 1982, had not been granted, the decision to reauire cash securities in respect of the importation of tyres would have extended to imports from New Zealand as well as from the Netherlands and Korea, I next refer to the legislation which is in question in the proceedings. The first Act to which I refer is the Customs Tariff (Anti-Dumping) Act 1975 ("the Dumping Act"). The Act was amended by the Customs Tariff (Anti-Dumoing) Amendment (Countervarling Duties) Act 1982 (No.68 of 1982). That Act did not amend the Dumping Act in any relevant respect so far as this case is concerned. Section 6 of the Dumping Act provides that the Customs Act is incorporated and shall be read as one with the Dumping Act. Section 7 provides that duties of customs are imposed in accordance witn the Dumping Act. Sub- section 8(1) of the Dumping Act 1s as follows: "(1) Subject to sections 13 and 14, where the Minister 1s satisfied, as to any goods that have been exported to Austrelia, tnat - (a) the amount of the export price of the goods is less tnan the amount of the normal value of those goods; and (bo) by reason thereof - (i) material injury to an Australian industry has been or is being caused or is threatened or the establishment of an Australian industry has been or may be materially hindered; or (i1) 1n a case where security has been taken under section 42 of the Customs Act in respect of any duty that may become payable on the goods under this section - material injury to an Austral1an industry would or might have been caused 1f the security had not been taken, the Minister may, by notice published in the Gazette, declare that this section applies to those goods." The expression "normal value of goods exported to Australia" is defined in s.5 of the Act. Relevantly it is the price paid for like goods sold in tne ordinary course of trade for home consumption in the that are arms length transactions like goods are not so sold py the of like goods. Subsequent parts provide guidance as to the manner country of export in sales by the exporter or, if exporter, by other sellers of s.5 are intended to of arriving at the price with which the section 1s concerned. For instance sub-section 5(5) is as follows: "(5) Where the normal value of goods exported to Australia 1s the price paid for like goods and that price and the export price of the goods exported - (a) relate to sales occurring at different times; (b) are not in respect of identical goods; or (c) are modified in different ways by taxes or the terms or circumstances of the sales to which they relate, that price paid for like goods is to be taken to be that price paid adjusted in accordance with directions by the Minister so tnat those differences would not affect its comparison with that export price. Sections 9, 10 and 11 of the Dumping Act provide for the imposition of third country dumping duties, countervail- ing duties and third country countervailing duties respect- ively. The detail of these sections 1s not material but 1t should be mentioned that each contains a provision comparable to sub-paragraph 8(1)(b)11) above set out, Section 13 of the Dumping Act, so far as it is relevant, is as follows: "(1) Subject to this section, the Minister snall not cause a notice to be published unaer sub-section 8(1), 9(1), 10(1) or 11(1) in respect of goods that have been entered for home consumption, (2) Sub-section (1) does not prevent the publication of a notice under sub-section 8(1), 9(1), 10(1) or 11(1) an respect of goods tnet have been entered for home consumption in relation to which security has been taken under section 42 of the Customs Act in respect of any duty that mizht pvecome payable under section &, 9, 10 or 11 of tnis Act, as tne case may a" "be (not being security that has been cancelled) by reason of the publication of such a notice or in relation to which the Customs had the right to require and take such security (not being security that would have been cancelled in accordance with the Customs Act if it had been taken). (3) Sub-section (1) does not prevent the public- ation of a notice under sub-section 8(1) in respect of goods that have been entered for home consumption to which, by virtue of sub-section (4) of this sec- tion, this sub-section applies, if - (a) within 90 days after the entry of the goods for home consumption, security has been taken under section 42 of the Customs Act in respect of any duty that might be payable on goods of the same kind under section 8 of this Act or, within that period, the Customs had the right to require and take such security; and (bo) material ingury has been caused to an Australian industry by the export to Australia during a short period of large quantities of goods of the same kind, being injury arising by reason of tne amount of the export price of the goods exported being less tnan the amount of tne normal value of the goods exported, and the Minister considers that the publication of the notice is necessary to prevent the recurrence of the ingury. (4) Sub-section (3) applies to goods - (a) that have been imported into Australia by an importer who knew, or ought to have known, that the amount of the export price of the goods was less than the normal value of the goods and that by reason thereof material injury would ce caused to an Australian industry; or (b) that are goods of a kind tne exportation of which to Australia on a number of occasions has caused, or but for the publication of a notice under sec- tion 8 in resvect of goods of thet kind, would have caused material injury to en Australian industry by reason of the amount of the export price of the goods exported being less than the normal value of the gooas exported," Section 14 of the Dumping Act prohibits the Minister from publishing a notice under any provision of the Act unless he is satisfied that the publication of the notice 1s not inconsistent with Australia's obligations under any international agreement relating to tariffs or trade. I should interrupt this account of the legislation to say that none of the Customs notices to which I have referred 1S or was intended to be a notice for the purpose of s.8 of the Dumping Act. The notices were either notices informing interested persons of the Customs' intention or of action intended to be taken pursuant to s.42 of the Customs Act to which I nave yet to refer, Notices under tne Dumping Act are given by the Minister, Action under s.42 of the Customs Act is taken by the Comptroller-General or a Collector, The effect of a notice or declaration under s.8 is to declare that the section applies to the goods the subject of the notice. Pursuant to sub-section 8(3) of the Act there 1S then cnarged upon tne goods to which the section applies a special duty of customs known as dumping duty. By sub-section 8(4) the dumping duty is a sum equal to the amount by which the export price of the goods 1s less than tne normal value thereof as definec. The intention of the legislation is to impose upon the importation of 10. dumped goods a duty equivalent to the amount needed to bring the export price of the goods up to the price which similar goods would bring in their country of origin. Whether this duty falls on the exporter or the importer, the likely effect of its imposition is to prevent overseas competition which 1s unfair to Australian industry. I next go to the relevant provisions of the Customs Act. Section 42, so far as 1t 1s relevant, is as follows: "(1) The Customs shall have the right to require and take securities for compliance with this Act, for compliance with conditions or requirements to which the importation or exportation of goods is subject and generally for the protection of the revenue of the Customs, and pending the giving of the required security in relation to any goods subject to the control of the Customs may refuse to deliver the gocds or to pnass any entry relating thereto. (3) The rights of tne Customs under this section may be exercisea by a Collector on behalf of the Customs." Because of an argument relied upon by the applicant I should mention also sub-sections (1A) and (2) of the section. These, in effect, extend the rignt of the Customs to take securities uncer the section to cases involving the payment il. of a penalty under the Customs Undertaxings (Penalties) Act 1981 end for the purposes of s.16 of the Excise Act 1901. The "Customs" is defined in s.4 to mean the Depart- ment; see s.1SB of the Acts Interpretation Act 19Cl. Reference should also be made to s.7 which provides that there shall be a Comptroller-General of Customs who, under the Minister, shall be the permanent head of the Customs and snall nave the chief control of the Customs throughout the Commonwealth. Section 43 provides that a security under s.42 is to ce given 1n a manner and form approved by a Collector of Customs and may be, subject to that approval, by bond, guarantee, cash deposit or any other method. Sub-section 45(2) is as follows: "(2) A security in respect of any duty that may ve payable on goods under section 8, 9, 10 or 11 of the Customs Tariff (Anti-Dumping} 4et 1975 shall be cancelled before the expiration of the prescribed period after the date of the security." Sub-section 45(3) specifies tne "prescribed period" mentioned in sub-section (2). For the purposes of dealing with arguments vased on the provisions of s.14 of the Dumping Act earlier referred to 1t 1S necessary to refer to certain internetional trade agreements some of wnich are in evidence. There is first ~ fh ' the General Agreement on Tariffs and Trade ("GATT"). It is not in evidence. There is then an agreement on the 1mplementation of Article VI of GATT. There are two such agreements, one being the original agreement and the otner the revised agreement. Both are in evidence, The reason why both were tendered was uncertainty as to whicn applied. Eventually it was agreed that it was the earlier agreement wnich was the relevant one. There is lattle difference between the two agreements and nothing turns, for the purposes of this case, on whether one applies tne first or the second. Although New Zealand 1s a party to GATT it is not a party to either of these agreements. Australia is a party to all agreements. In addition to the agreements to which I have referred there is an agreement to which Australia and New Zealand alone are parties. It is the New Zealand Australia Free Trade Agreement ("NAFTA") and 1t is in evidence. The submissions of the applicant originally concerned the question of whether 1t was lawful for the Comptroller-General to act pursuant to s.42 of the Customs Act and whether, if 1t were, he had nevertheless acted illegally or wrongfully because he had not observed the provisions of s.14 of the Dumping Act which required him to be satisfied that action he proposed to take was not inconsistent with Australia's international trade obligations. However, aiscussion whicn occurred during the arsument in relation to matters relied upon by the applicant in support of its submissions based on s.14 eventually led 1ts counsel to submit that, for certain reasons later to be mentioned, there was no warrant for tne taking of anti-dumping action 1n respect of the importation of tyres from New Zealand. Thus the applicant's submissions fall into three groups. In relation to some of these submissions it will be necessery to refer to further evidence. But I think 1t more con- venient to do that as I come to' deal witn each submission. Before coming to the detail of the submissions I should mention certain amencments to the legislation which came into effect after the events in suestion in this 14, case. The legislation is contained in the Customs Securities (Anti-Dumping) Amendment Act 1982 (No.137 of 1982) and the Customs Tariff (Anti-Dumping) Amend~- ment Act (No.2) 1982 (No.136 of 1982). Both these Acts came into operation on 24 November, 1982. By the first of them there was inserted into s.42 of the Customs Act a further sub-section, (1B), whicn provides that the right of the Customs under sub-section (1) to require and take a security includes the right to require and take securities 1n respect of any duty that may be payable on goods under the Dumping Act. The amendment is expressly said not to imply that the right did not exist under the Customs Act in the form in which it was prior to the amendment. The same Act also removed from the area of gudicial review under the Judicial Review Act decisions made under s.42 of the Customs Act to require and taxe securities in respect of duty that may be payable under the Dumping Act. The second of the Acts above referred to repealed s.14 of the Dumping Act, It was agreed by counsel that except in one respect later to be mentioned the amendments tc the legislation to whicn I have referred were not relevant for the outcome of the present proceecings,. 15. The submissions made on behalf of the applicant based on s.42 of the Customs Act were as follows: i. The section does not permit the Customs to take securities in respect of duties that are or may become payable pursuant to the Dumping Act. 2. The section is only apt to permit the taking of securities in respect of anti-dumping duties which are in fact due and payable. 3. The only purpose, relevantly, for which securities may be taxen under the section is the protection of the revenue. The evidence establishes tnat the reason why cash securities were to be taken was to provide interim protection of Australian industry. That was not a purpose which would authorise the taking of the securities. The two submissions made concerning the absence of gustification for implementing anti-dumping action were: 4, The export price of the tyres to be imported was not less than the normal value thereof; see s.8(1) of the Dumping Act (p.7 nereof). 2. Imports of motor tyres from New Zeeland were not causing or threatening to cause material ingury to the Australian motor tyre industry (1b1d). 16, The applicant's submissions based on fa1lure to comply with s.14 of the Dumping Act, that is the then obligation of the Minister not to publish a notice under that Act unless he were satisfied that the public- ation of the notice was not inconsistent with Australia's obligations under any international tariff or trade agreement were: 6. There was no evidence of dumping because the New Zealand prices adopted for the purpose of the preliminary inquiry which had taken place were not prices which it was appropriate to adopt for this purpose pursuant to the definition of "normal value" in s.5 of the Dumping Act and in both the agreement on the implementation of Article VI of GATT and the provisions of NAFTA. For practical purposes this submission is no different in substance from submission 4 above. 7. The respondents failed to ccnsider whether the New Zealand exports were causing or threatening to cause material angury to the Australian inaustry as distinct from the question of whether exports of tyres from otner countries were having or threatening to have this effect. 17. This submission 1s only an aspect of submission 5 above. 8. The action proposed by the respondents was contrary to the provisions of Article 8 of the GATT implementation agreement because the notices therein provided for had not been published. That submission has no counterpart in any of the previous submissions. In addition to disputing each of these propositions, senior counsel for the respondents submitted that there was no gurisdiction under the Judicial Review Act because tnere was no relevant decision. He submitted that the Court may have haa jurisdiction to grant relief under s.6, as distinct from s.5, of that Act but contended that relief under s.6 would no ionger be of utility because of the provisions of the amended legislation. This sub- mission was made generally but was made particularly in relation to submissions 6, 7 and 8 because of the repeal in the amending legislation of s.14 of tne Dumping Act. Also in relation to the applicant's submissions based upon s.14, 1t was submitted that tne GATT implementation agreement had no relevance tc the present case because New Zealand was not a party to it. I proceed to deal witn these suomissions in the order in whicn I have stated them. 18. {1 "61 aUoOs O01 FuTdJarad wayyy *(ege°d 3e Budns) aseo Kanqpey et1 ut *f sweTTTtw Aq passnosty sem uotstaoud e yons FO 7oSrje sUuL *sJzTIeL Syy yATA suo se pear 3q o7 ST pue pazyersodzoouT St yoy suloisny au} 3203 YOeTJa auy 03 (G UOT}JOeS) UOTSTAOUd e suTequoo f19y Zutdwng ayy, ayTT 'soy jJyTUe], swojysna aus *y2ROV STUUR UZTIM BoUeTTdUCD I0s,, SdT}TINoIas aye. 07 SWOJSND ayy Susmodwa zy UOT ZOaS "L H'T'D €2T (06) DaTTaTT ~Fyq HOOTSAOT "Oa TA ApouteS 02 OSTe pue pauoTzUSwW JeTTuea /*s 04 uayar J {swoysno JO Saetynp sasodut uotum 3z0y weyuzoue st yoy ButTdunq aUL *29E "H*T'O OL (7H6T) UOTJexeL fo TavoTSsTMMdD Teaepeg "A peqtuty "Ajq T[Teoseq-Aqq-Aamqpey "zo *(T)GT*S 88S $Q996T FOV FFTUey_ suoysng |uy Aq pesodut sue suojysno Jo saTqnp 'zaAamoy "TO6T OV aStoxy ayy dJapun satznp 09 pue TS6T POV (SaTATeueg) ssuTye,epuy swoysng 3ayu3 uepun Aed 01 sTqeTT awoseq Aew uosuzad eB YOTUM Satz Teued 03 uoT JOSS 394} FO UOTZeUAddO Jay spuayxe ATssaidxa 4T puey szeyjO aud uO *yoy Sutdung auy FO UOTZUSsU OU SayeU Zt_*S asneosaq aoueysqns aaeuU PTNOM WUOTSSTUGnS SU}, OS alam YEU JI *JTesiT z0¥y swoysnyg eu Aq pesodwut are swoysno so satynp 22} ST uoTZdsoucDSTU aU "yoy swoysng ayy fo uotjdaouoostuw e uodn spascoid uotsstwqns sTuy T uorsstwqns ony authorities his Honour said of a similar provision in the Income Tax Act 1939, incorvorating the provisions of the Income Tax Assessment Act 1936; " The Tax Act and the incorporated Assessment Act is, therefore, a single Act and one which falls within this section of the Constitution. But the only effect of the section is to invalidate any provision therein dealing with any other matter than the imposition of taxation." Thus the Customs 1s empowered by s.42 to require and take securities, not only for compliance with the Customs Act, but for compliance also with the Tariff and the Dumping Act, both those latter Acts providing that the Customs Act 1s incorporated and 1s to be read as one with each of the Acts. Each, as I have said above, imposes duties of customs. For the above reasons the first submission 1s rejected. Submission 2 This submission is based upon the vroposition that securities may not be required unless there is payable upon the importation of the goods in question a customs duty which 1s tnen and there due and pavable. The position was said to be no different 1f regard were haa 20. a to the words "for compliance" with the Act rather than to those specifying the protection of the revenue aS a purpose for which securities may be required. No question of compliance with the Act could arise until duties were actually imposed. Tne evidence establishes that at the time action was purported to be taken pursuant to s.42 of the Customs Act no dumping duty had been imposed in resvect of any shipment of tyres likely to be imported in the immediate future. Action under s.8 of the Dumping Act had not resulted in any notice declaring the goods to be goods to which the section applied. That stage had not been reached. It may or may not be reached in tne future depending on the outcome of inquiries which were continuing at the time the evidence in the case concluded, But for certain provisions of tne legislation I would nave nad reservations concerning the power to take securities in situations where there was no duty payable at the time of importation. However, tre argument is, in my opinion, resolved against the appiicant by the presence in the legislatzon of sub-paragraph 8(1)(b)(ii), the comparable provisions in ss.9, 1C and 11 and s.13. Of these provisions s.13 is tne most important. I* authorises the publication of a notice under sub-section 8(1) of the Act in respect of goods that have already been entered for home consumption so long as security has been taken in relation to them under s.42 of the Customs Act in respect of any duty which may become payable under s.8, Thus the section authorises the retrospective imposition of dumping duties so long as the conditions provided for in sub-section 13(2) and in certain other sub-sections to which I need not refer have been complied with. Moreover, the provisions of sub-section 13(2) refer expressly to s.42 of the Customs Act ana contemplate tnat securities may be taken prior to the actual imposition of any duty. They may be so taken wnether they are for the protection of the revenue or for compliance with the legislation. It was submitted on behalf of the applicant that the provisions of tne Dumping Act relied upon by the respondents ought not to be given the effect which I think they have because the words of s.42 themselves did not extend the Customs' power to cases where duties were not due and payable. It was said that tne provision was included in a taxing statute and ougnt to be strictly construed. It was further said that references to s.42 in the Dumping Act were made by tne draftsman under the erroneous assumption that s.42 went further than it did. I agree that the provision is contained in a tax- ing statute. But I have to consider the Dumping Act which is intended to protect Australian industry. It 1s true that it imposes a tax or duty but I would not readily apply to sucn an Act the strict construction wnich the principle relied upon sometimes calls for. In support of his proposition that Parliament had included provisions referring to s.42 of the Customs Act in the Dumping Act under the erroneous assumption that 1% extended to the taking of securities in respect of importations upon which no duty was presently payable, counsel referred to Deputy Federal Commissioner of Taxes v. Elder's Trustee and Executor Compoany Limited (1936) 57 C.L.R. 610 and to Kirkness v. John Hudson & Co.Limited (1955) A.C. 696. I do not refer to the detail of these cases. They establish tnat there may be occasions when Parliament does enact further legislation uncer tne erroneous impression that earlier legislation upon which the later legislation 1s based mekes a part:cular provision, If this 1s not in fact the case, tne later legislation will not acnieve Parliament's intention. But always the question is one of construction. The two authorities relied upon establish that later legislation may sometimes be used to resolve an ambiguity in earlier legislation. But if the words of the earlier Act are clear and unambiguous resort to later legislation will not be permitted even where it 18 reasonably clear that Parliament has pro- ceeded under a wrong impression of the meaning of the earlier provision, In my opinion tnis 1s not a case of ambiguity. Nevertheless it is a case of quite a different kind from those relied upon by counsel for the applicant. It is a case where Parliament has in the Dumping Act expressly indicated an intention to pick up and apply tne provisions of s.42 of the Customs Act to enable effective anti-dumping action to be taken prior to the actual imposition of dumping duties. Finally, in relation to submission 2, reliance was placed by counsel for the applicant upon dicta in The King v. Comptroller-General of Customs; ex parte Woolworths Limited (1935) 53 C.iL.R. 308. In my opinion that case was decided upon totally different facts and is not of assistance in the resolution of the present problem, For the reasons I have given submission 2 1s rejected. Submission 3 I propose to deal with this submission upon the basis that the evidence establishes that securities were required, not because of any fear on the part of the Customs that dumping duties ultimately imposed would not be paid, but because the taking of securities was necessary, in the view of the Customs, for protection of the Australian motor tyre industry. I do not refer to the detail of the evidence because 1t 1S all one way. But in saying wnat I nave, I do not wish it to be thought tnat I have been unmindful of submissions made on behalf of the respondents that securities were taken in fact for tne protection of the revenue as well as for the purpose I have menticned. "It will be seen that I have not founa 1t necessary to deal with those submissions. In developing this submission counsel for the applicant concentrated his attention upon tne question of whether tne purported action pursuant to s.42 was for the protection of the revenue of the Customs, That, however, is only one of the purvoses for which securities may be required. The Customs are also empowered, as I have mentioned, to take securities "for compliance with this Act", For reasons earlier given the reference to "this Act" 1s a reference, inter alia, to the Dumping Act itself. Thus it follows that securities may be reauired for compliance with the Dumping Act. In dealing with the submission it is first necessary to look to the purpose of the Dumping Act. Its essential purpose is the protection of Australian industry. Its object 1s to protect manufacturers here from exvosure to what, as the GATT agreements indicate, 1s internationally regarded as unfair competition brought about by the dumping of goods on to the market at prices below which the goods would normally be sold in their home country. The Dumping Act sets out to achieve tnis purpose by imposing duties upon the importation of such gooas. The duties are intended to force tne exporter and/or importer of the goods back to a situation under wnich an emount (made up of export price plus duty) ecu1rvelent to a normal selling price will have to be paid. The complex of sections which make up the Dumping Act provide the machinery whereby all this 1s to be achieved. However, 1t 1s not sufficient simply to have regard to the purpose for which the Dumping Act was enacted, That is because the relevant woras are "for compliance with this Act", that 1s, inter alia, for compliance with the Dumping Act, They are not "for the purposes of this Act", But 12, as my rejection of submission 2 suggests it is, it be lawful to require securities in advance of the actual impos- ition of dumping duties, why will securities not be taken for compliance witn the Act, if they are taken for the purpose of protecting Australian industry, that being the essential purpose and object of the Dumping Act. Once one concludes, as one should, that s.13 of the Dumping Act along with sub-peragreph 8(1)(b)(11) and 1ts counterparts in ss.9, 10 ané 11 of that Act empowers tne taxing of securities vorior to the 1mposition of any dumping duty, tne incuiry is at an end. Subject to tne applicant's further submissions tne Customs have proceeded in the way intended by Parliament, For the above reasons the tnird submission is rejected. e7. Submission 4 The evidence upon which it was concluded on behalf of the respondents that the applicant's export price for the goods was below their normal value is to be found in a letter dated 15 October, 1982, from a company associated with the applicant to a Mr. Balzary, an officer of Customs. The letter set out the prices charged for tyres in New Zealand, Relevantly it said: "Our domestic prices are : National OE Price Price to Govt Freight Motor Contract Bulk Buy Paid Assemblers One-off Ex Factory Ex Factory Sale to Auckland Auckland Dealers 95 tyres 180 tyres 500 tyres per day per day per day 165x13 textile 76.65 48.92 39.03 32.19 185x14 88.0 56.99 44.37 36.96 165x13 steel 92.0 60.24 45.48 33.12 185x14 106.50 69.55 52.23 38.34" The Customs selected the prices for steel radial tyres under the second column of the table. The abbreviation "OE" stands for "original equipment", and refers to tyres sold to motor vehicle assemblers to be fitted to new venicles. It is common ground that none of the tyres exported to Australia would be likely to be so used. They were for fitting to existing vehicles to revlace tyres wnich had worn out, The Customs selected the figures in the second column as best indicating tne relevant domestic price because 28. calculations based on exports of steel radial tyres to Australia revealed that these averaged out at 110 tyres per day over a calendar year. The calculation was done upon the basis of a 365 day year, not upon the basis of the number of working days in a year. Tyres exported to Australia comprise not only steel radials but also a considerable quantity of textile radials and some bias tyres. If the calculation were done by taking into account the entirety of the applicant's exports to Australia, tne average daily figure would be approximately 157 rather than the 110 adopted by the Customs. The applicant challengea the exercise done by the Customs because ;: i. It was inappropriate to select prices charged motor assemblers for tyres to be fitted to new vehicles. 2. It was inappropriate to ignore the other tyres exported to Australia; the daily figure arrived at shoula have been 157 rather than 110. Accordingly, so the applicant submitted, it was inapprop- riate to have regard to the second column of the table above set out. If the table were to be used at all the figures in the tnird column should nave been adopted. 29. Such a course would have resulted in normal values for the steel radial tyres of $45.46 and 352.23 rather than $60.24 and $69.55. The export prices for these tyres were $46.66 and $51.96 respectively. Thus the adoption of the figures in the third column would have cisclosed no dumping in that the export orices would have equated, more or less, the prices at which the tyres were sold in New Zealand. Evidence given on behalf of the respondents acknow- ledged the difficulty of the exercise. But it was said that even if one adopted a daily figure of 157 instead of 110 the third column was inappropriate because it involved supply pursuant to a government contract. Prices obtained for supply to a government would not necessarily provide a sound indication of the price for whicn the tyres were or could te sold on the New Zealand home market. The resvondents' evidence acknowledged that the second column might be misleading because it was for the sale of tyres to be fitted to new venicles, that is it was for tyres not, as in the case of the exports, to be fitted as replacement tyres to exist- ing vehicles, However, if one were to ignore 30. the second column, the more appropriate column to use was. the first column which would result in an even greater dumping margin. Whatever column one used, criticisms could be made of the course taken. The correct method of arriving at normal value might need to involve the discarding of all the figures in the columns and the assertainment of the normai value by resort to one of the methods provided for in s.5 of tne Dumping Act, sub-section (5) which I have earlier set out. The substantial submission of the respondents was that, bearing in mind the nature of the exercise, the need to act quickly because of the believed harm which was being caused Australian industry and the whole of the circumstances of the case, including a great deal of evidence which the respondents haa from the local industry, the course taken was a reasonable one. It 1s to be rememberea tnat the challenge wnich 1s being made is not to the actual imposition of cumping duties, but to the vropriety in Octoter 1982 of reguiring cash securities wnilst furtner incuirles continued. Tne 31. applicant's arguments based on power at that stage to require securities have, for the reasons given in relation to submissions 1, 2 and 3, failed. Upon the assumption that the respondents nave the requisite power, tne question arises as to the circumstances in wnich they will be gustified 1n acting as they wish to do. Section 8 of the Dumping Act itself requires no more than that the Minister be satisfied. If the matter had vroceeded to a stage where dumping duties had been imposed, there cculd nave been no successful challenge to that imposition 1f the evidence revealed a sufficient basis for that satisfaction. In no way would the Court assume to itself the task of inquiring into what particular normal values snou]d be. But,as I have said, that stage has not been reached. In those circumstances the Court would te loath to inter- fere unless it were satisfied that there was no reasonable basis wnatsoever for the action whicn was proposed. The relevant provision of the Judicial Review Act seems to me to be paragraph 5(1)(h) rather than paragraph 5(1)(e) which was heavily relied upon by counsel for tne applicent. The essence of varagravn (n) 1s that tnere was no evidence or otner material to justify tne maxing of the decision. 32. In determining what my approach should be I have been assisted by reference to tne gudgment of Lockhart J. in Homebush Bay Timbers Pty. Limited v, Minister for Industry and Commerce (15 February, 1983). There his Honour said (p.35): "The Department cannot be expected to prophesy the precise amount of any subsidy tnat the foreign Government has or may have paid or granted. But before requiring security it must address itself to the question whether a subsidy has been paid or granted and, if so, 1ts amount or extent and whether by reason thereof material ingury to tne relevant Australian industry has been or may be caused. Some reasonable attempt must be made by the Department to determine these matters before requiring security. The effect of reauiring security can be far reaching. The impos- ition of countervailing duty and any earlier taking of security, necessarily affects Australia's relations with the trading partner concerned and people engaged in trade both in Australia and the other country. Such actions here affect fiscal policy and private interests tnere. They are serious steps and must not be taken lightly." His Honour was concerned with a case which involved the taking of securities for the possible imposition of countervailing duties under s.10 of the Dumping Act ratner than with the imposition of dumping duties under s.8. But wnat his Honour nas said is as apt for this case as it was for that with which he was dealing. Having given the matter close consideration, I am not satisfied that this 18 a cese where the Court snoula interfere, As the evidence cailed on beneit of tne respondents conceded, its approach was open to a number of criticisms. For reasons earlier mentioned, none of the columns of the table may give a reliable guide to the normal values of the tyres in question, If I were myself cnarged with the exercise, that 1s the view I would probably take. But, as I have earlier said, the matter 1s not for the Court. It :s for the Comptroller-General or one of the Collectors to make the best judgment he can in the circumstances of each case. Upon the facts of this case I find it impossible to reach the conclusion that the action taken or proposed 1s so unreasonable as to be witnout any evidentiary foundation. In particular, although the adoption of the figures un the second column of the table as a basis for deter- mining normai values 1S open to question, it should not be regarded as so unreasonable or unwarranted as to lead to the conclusion that there was no basis at all for tne decision wnich was meade. Despite strong submissions to the contrary by counsel for the appiicent I do not see wny the respondents sroula have beer obligec to adovt a daily supply figure based on 211 exports rather than upon exports of steel radial tyres alone. Tne allegations of dumping concerned only steel radial tyres and the evidence establishes that these presently are the dominant tyre upon the Australian market, It is true that the quantity of 110 tyres per day is above the figure of 95 in the heaaing of the second column of the table and also that 1t represents the price obtained from sellers of new motor vehicles. But one might tnink that the price to them would be less than the price obtained from purchasers whose business it is to replace tyres on existing vehicles. That would lead one, as the Customs evicence suggested, to adopt the figures in the first column rather than the second. I have weighed these various matters and the careful submissions made about tnem by counsel for tne applicant as best I can. Having done so, I am not satisfied that there was not a sufficient evidentiary basis for the conclusion which was arrived at. Accordingly I reject submission 4, Submission 5 This was based on two matters; firstly the indiscriminate lumping together of New Cealana exports along with those of the Netherlands and Korea, and, secondly, upon evidence that the New Zealena tyres oo were not being sold in Australia as the cneapest tyres which could be obtained on the market. Those selling the New Zealana tyres were not price leaders. As to the first of these consideretions there 1s evidence from the respondents that although the New Zealand share of the market has not to date been more tnan one per cent, that is still a significant percentage. In any event a consideration of tne entirety of the legislation in question does not suggest that dumping action may not be taken where harm is being caused to Australian industry and exports are coming from a number of countries no one of which 15 itself exporting a substantial quantity of dumped goods. If five per cent of a particular market was an insignificant percentage, but 25 per cent was not, 1t would be my view that dumping action might properly be taken in respect of the exports of five countries eacn of which had five per cent of tne market. Any other view would leave a very large loophole in the legislation for which its language provides no warrant. In support of his submissions on this aspect of the matter counsel for the applicant referred to evidence which suggested that the only reason aumping action was taken in respect of New Zealand exvorts was vecause of a fear that 1f it were not it would appear that there had been discriminatory action taken in favour of New Zealand against both tne Netherlands and Korea. There are statements in some of the exhibits which would suggest that this was a reason why dumping action was taken. But there 1s also evidence that the reason 1t was not taken at the time securities were required in respect of exports from the Netherlands and Korea was because of a need for consultation pursuant to the provisions of NAFTA. In all the circumstances I do not consider the reference in the evidence to discrimin- atory action a reason why the action which was proposed to be taken in respect of New Zealand exports was unlawful. It remains to consider the submission based on price leadership. The evidence tends to establish that the New Zealand tyres were not tne cheapest tyres available on the market. But to my mind that does not lead to the conclusion that tne New Zealand exports were not causing material harm to Australian industry. All sorts of ccnsiderations would need to be taken into account before one coula reach such a conclusion, The respondents had ample evidence from Australian industry 37. sources that harm was being caused. They were clearly entitled to reach the conclusion that there was a substantial risk that this was the case. I emphasise that the stage where actual dumping duties were to be imposed had not been reached, The respondents were concerned only with the question of whether action under s.42 of the Customs Act should be taken, For the above reasons the applicant's fifth submission is regected. Submissions 6 and 7 These raise no different considerations from those raised by submissions 4 and 5. Accordingly both submissions are rejected. Submission 8 As previously stressed, the action which has so far been taken involves no more tnan a decision to require securities pursuant to s.42 of tne Customs Act. Action has not been taken pursuant to s.8 of tne Dumping Act. It is therefore inappropriate to reach a conclusion at this stage upon the question of 38. hy whether any such action would in fact contravene s.14 of the Dumving Act, But for the repeal of that section on 24 November, 1982, it may have been appropriate, assuming the evidence established a threatened breach of the section, to ccntemplate giving i1ngunc- tave relief pursuant to s.6 of the Judicial Review Act, But such a course would not now be appropriate because s.14 has gone. I therefore reject submission 8. My rejection of it means that I do not need to consider the argu- ment that the GATT implementation agreement has no application in the present case because New Zealand is not a party to it. Nor is 1t necessary to consider the detailed submissions which were made based on the provisions of that agreement and certain of the evidence un the case. I have thus rejected each of the applicant's sub- missions. I do not express a concluded view on the auestion of jurisdiction which was argued by senior counsel for the respondents, but I do think that the Comptroller~General's epproval on 9 October, 1582, of the action proposed by Mr. Reith (see p.5 nereof) is a 39. decision for the purposes of the Judicial Review Act. For the reasons I have given the application fails and is dismissed. Because of certain matters discussed in argument, I do not now deal with costs. This is a matter which can be dealt witn after the parties have had an opportunity of considering what I have said. 40,