FEDERAL COURT OF AUSTRALIA Al Abdullatif Industrial Group Co Ltd v Minister for Justice & Customs [2000] FCA 758 CUSTOMS – dumping – whether there was failure to take into account relevant considerations – whether it was appropriate for the Minister to obtain advice from ACS – extent of duty to enquire Customs Act 1901 (Cth) ss 269TAC(8), 269TACB, 269TB, 269TDAA, 269TEA, 269TG(1) and (2), 269ZZL, 269ZZK(1) Customs Tariff (Anti-Dumping) Act 1975 (Cth) s 8 GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309, distinguished Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458, referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, referred to AL ABDULLATIF INDUSTRIAL GROUP CO LTD v MINISTER FOR JUSTICE & CUSTOMS N 981 of 1999 O'CONNOR J 23 JUNE 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 981 OF 1999 BETWEEN: AL ABDULLATIF INDUSTRIAL GROUP CO LTD Applicant AND: MINISTER FOR JUSTICE & CUSTOMS First Respondent CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE Second Respondent JUDGE: O'CONNOR J DATE OF ORDER: 23 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application in relation to the three decisions 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 N 981 OF 1999 BETWEEN: AL ABDULLATIF INDUSTRIAL GROUP CO LTD Applicant AND: MINISTER FOR JUSTICE & CUSTOMS First Respondent CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE Second Respondent JUDGE: O'CONNOR J DATE: 23 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The applicant Al Abdullatif Industrial Group Co Ltd ("Abdullatif") manufactures, in Saudi Arabia, and exports to Australia, a product known as woven polypropylene, which is a carpet backing fabric ("the goods") which are used, after sale in Australia, in the manufacture of tufted carpets. 2 On 18 December 1998 the second respondent, who is the Chief Executive Officer of the Australian Customs Service ("ACS"), reported to the Minister (the first respondent) pursuant to s 269TEA of the Customs Act 1901 (Cth) ("the Act"). This report recommended that the Minister be satisfied that some of Abdullatif's exports to Australia were at export prices less than their normal value, called dumping, and the consequence was that this was causing material injury to Amoco Chemicals Pty Limited. 3 The report recommended that the Minister take action under ss 269TG(1) and (2) of the Act to prevent this dumping. 4 On 12 January 1999 the Minister accepted these recommendations and made a declaration that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) applied to these goods exported to Australia from Saudi Arabia. 5 On 17 February 1999 Abdullatif applied to the Trade Measures Review Officer ("TMRO") for review of the decision of the Minister which was available under Subdivision B of Division 9 of part XVB of the Act. 6 On 6 May 1999 the TMRO reported to the Minister pursuant to s 269ZZK(1) of the Act, and recommended that the Minister direct the CEO to reinvestigate certain findings that had been the basis of the Minister's decision. 7 On 19 August 1999 the Minister decided not to accept this recommendation and affirmed her previous decision under s 269ZZL(1). However, before affirming this decision the Minister sought and received comments on the report of the TMRO from the second respondent. Decisions Under Review 8 Abdullatif challenges three decisions in this application: (i) the recommendation of the CEO under section 269TEA; (ii) the declaration of the Minister under section 269TG(1) and (2); and (iii) the decision of the Minister under section 269ZZL(1). Relevant Legislation Establishing the Anti-dumping Scheme 9 Section 8 of the Customs Tariff (Anti-Dumping) Act 1975 provides: Section 8 Dumping duties 8 (1) This section does not apply to goods that are: (a) the produce or manufacture of New Zealand; and (b) imported into Australia after the commencement of this subsection. (2) There is imposed, and there must be collected and paid, on goods: (a) to which this section applies by virtue of a notice under subsection 269TG (1) or (2) of the Customs Act; and (b) in relation to which the amount of the export price is less than the amount of the normal value; a special duty of Customs, to be known as dumping duty, calculated in accordance with subsection (6). (3) Pending final assessment of the dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, an interim dumping duty is payable on those goods. (4) Subject to subsection (5), the interim dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act is an amount equal to the sum of: (a) the difference between the export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice and the normal value of goods of that kind as so ascertained, or last so ascertained; and (b) if the export price of those particular goods is lower than the export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice--the amount by which the latter export price exceeds the former. (5) The Minister must, by signed notice, direct that the element of interim dumping duty referred to in paragraph (4)(a) in respect of particular goods be ascertained: (a) as a proportion of the export price of those particular goods or of the export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the dumping duty notice, whichever is the greater; or (b) by reference to a measure of the quantity of those particular goods; or (c) by reference to a combination of a proportion of the kind referred to in paragraph (a) and a measure of the quantity of those particular goods; and the notice has effect accordingly. (5A) The Minister must, in exercising his or her powers under subsection (5) in respect of particular goods the subject of a notice under subsection 269TG (1) or (2) of the Customs Act, if the non-injurious price of goods of that kind as ascertained or last ascertained by the Minister for the purposes of the notice is less than the normal value of goods of that kind as so ascertained, or last so ascertained, have regard to the desirability of fixing a lesser amount of duty such that the sum of: (a) the export price of goods of that kind as so ascertained or last so ascertained; and (b) that lesser duty; does not exceed that non-injurious price. (5B) If, in the circumstances specified in section 269TJA of the Customs Act, both a notice under section 269TG of that Act and a notice under section 269TJ of that Act are published at the same time and in respect of the same goods, the Minister must, in exercising his or her powers under subsection (5) in relation to interim dumping duty in respect of the goods, have regard to the desirability of fixing the amount of interim dumping duty in respect of the goods such that the sum of: (a) the export price of those particular goods; and (b) the amount of the interim dumping duty as so fixed; and (c) the amount of interim countervailing duty as fixed under section 10 ; does not exceed the non-injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of those notices. (5C) If the Minister signs a notice under subsection (5), the Minister must cause a copy of that notice to be published in the Gazette unless, in the opinion of the Minister, the publication of that notice would adversely affect the business or commercial interests of any person. (5D) A notice under subsection (5) applies to goods entered for home consumption on or after a day specified in the notice, which may be earlier than the day of publication of the notice but may not be a day on which an earlier notice under that subsection applied to the goods. (6) The dumping duty payable on goods the subject of a notice under subsection 269TG (1) or (2) of the Customs Act is an amount equal to: (a) unless paragraph (b) applies--the difference between the amounts that the Minister ascertains to be the export price and the normal value of those particular goods; or (b) if, in a notice under subsection (5), the Minister determines that the whole or a part of the interim dumping duty payable on those particular goods is to be ascertained by reference to the non-injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the first-mentioned notice--the difference between: (i) the amount that the Minister ascertains to be the export price of those particular goods; and (ii) the lower of the amount that the Minister ascertains to be the normal value of those particular goods and that non-injurious price. (7) The Minister may, by notice in writing, exempt goods from interim dumping duty and dumping duty if he is satisfied: (a) that like or directly competitive goods are not offered for sale in Australia to all purchasers on equal terms under like conditions having regard to the custom and usage of trade; (b) that a Tariff Concession Order under Part XVA of the Customs Act 1901 in respect of the goods is in force; (c) that: (i) where the goods are goods to which section 8 of the Customs Tariff Act 1995 applies--the item in Schedule 4 to that Act that applies to the goods is expressed to apply to goods, or to a class or kind of goods, as prescribed by by-law; and (ii) suitably equivalent goods the produce or manufacture of Australia are not reasonably available; (d) that: (i) the tariff classification in Schedule 3 to that Act that applies to the goods is such that no duty is payable in respect of the goods or the duty payable in respect of the goods is at a rate equivalent to a rate payable under Schedule 4 on the goods; and (ii) suitably equivalent goods the produce or manufacture of Australia are not reasonably available; or (e) that the goods, being articles of merchandise, are for use as samples for the sale of similar goods. (8) Where the Minister exempts goods from interim dumping duty and dumping duty under subsection (7) by reason of his being satisfied as to a matter specified in paragraph (7)(a), (c) or (d), the instrument of exemption shall be published in the Gazette . (9) In this section, a reference to a Tariff Concession Order includes a reference to a Commercial Tariff Concession Order made under Part XVA of the Customs Act as in force before section 10 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 commences. 10 Relevant legislation is drawn from the Customs Act 1901 (Cth): Section 269TAC Normal value of goods 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. (1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales. (2) Subject to this section, where the Minister: (a) is satisfied that: (i) because of the absence, or low volume, of sales of like goods in the market of the country of export that would be relevant for the purpose of determining a price under subsection (1); or (ii) because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1); the normal value of goods exported to Australia cannot be ascertained under subsection (1); or (b) is satisfied, in a case where like goods are not 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, that it is not practicable to obtain, within a reasonable time, information in relation to sales by other sellers of like goods that would be relevant for the purpose of determining a price under subsection (1); the normal value of the goods for the purposes of this Part is: (c) except where paragraph (d) applies, the sum of: (i) such amount as the Minister determines to be the cost of production or manufacture of the goods in the country of export; and (ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and, subject to subsection (13), the profit on that sale; or (d) if the Minister directs that this paragraph applies—the price determined by the Minister to be the price paid or payable for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions. (3) The price determined under paragraph (2)(d) is a price that the Minister determines, having regard to the quantity of like goods sold as described in paragraph (2)(d) at that price, is representative of the price paid in such sales. (4) Subject to subsections (6) and (8), where the Minister is satisfied that it is inappropriate to ascertain the normal value of goods in accordance with the preceding subsections because the Government of the country of export: (a) has a monopoly, or substantial monopoly, of the trade of the country; and (b) determines or substantially influences the domestic price of goods in that country; the normal value of the goods for the purposes of this Part is to be a value ascertained in accordance with whichever of the following paragraphs the Minister determines having regard to what is appropriate and reasonable in the circumstances of the case: (c) a value equal to the price of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country, being sales that are arms length transactions; (d) a value equal to the price determined by the Minister to be the price of like goods produced or manufactured in a country determined by the Minister and sold in the ordinary course of trade in arms length transactions for exportation from that country to a third country determined by the Minister to be an appropriate third country; (e) a value equal to the sum of the following amounts ascertained in respect of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country: (i) such amount as the Minister determines to be the cost of production or manufacture of the like goods in that country; (ii) such amounts as the Minister determines to be the administrative, selling and general costs associated with the sale of like goods in that country and the profit on that sale; (f) a value equal to the price payable for like goods produced or manufactured in Australia and sold for home consumption in the ordinary course of trade in Australia, being sales that are arms length transactions. (5) The price determined under paragraph (4)(d) is a price that the Minister determines, because of the quantity of like goods sold as described in paragraph (4)(d) at that price, is representative of the price paid in such sales. (5A) Amounts determined: (a) to be the cost of production or manufacture of goods under subparagraph (2)(c)(i) or (4)(e)(i); and (b) to be the administrative, selling and general costs in relation to goods under subparagraph (2)(c)(ii) or (4)(e)(ii); must be worked out in such manner, and taking account of such factors, as the regulations provide for the respective purposes of paragraphs 269TAAD(4)(a) and (b). (5B) The amount determined to be the profit on the sale of goods under subparagraph (2)(c)(ii) or (4)(e)(ii), must be worked out in such manner, and taking account of such factors, as the regulations provide for that purpose. (5C) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2)(d) or (4)(d), the Minister may have regard to the following matters: (a) whether the volume of trade from the country of export referred to in paragraph (2)(d) or the country first-mentioned in paragraph (4)(d) is similar to the volume of trade from the country of export to Australia; and (b) whether the nature of the trade in goods concerned between the country of export referred to in paragraph (2)(d) or the country first-mentioned in paragraph (4)(d) is similar to the nature of trade between the country of export and Australia. (5D) If goods are exported to Australia and the Minister is satisfied that: (a) in the past the Government of the country of export had a monopoly, or a substantial monopoly, of the trade of that country and determined, or substantially influenced, the domestic price of goods in that country; and (b) the circumstance described in paragraph (a) no longer applies in relation to the country of export; and (c) a price control situation applies, within the meaning of subsection (5E), in relation to like goods to those first-mentioned goods; the normal value of those first-mentioned goods is such amount as is determined by the Minister having regard to all relevant information. (5E) A price control situation applies in relation to the domestic selling price of like goods to the goods first referred to in subsection (5D): (a) if the exporter of the goods so referred to sells like goods in the country of export and the domestic selling price of those like goods is controlled, or substantially controlled, by a government (at whatever level) of that country; or (b) if the exporter does not sell like goods in the country of export but there are other sellers in that country of like goods and the domestic selling price of like goods sold by some or all of those other sellers is so controlled or substantially so controlled. (5F) Without limiting the generality of subsection (5D), for the purpose of working out, under that subsection, the amount that is to be the normal value of goods exported to Australia, the Minister may determine that amount in a manner that would be open to the Minister under paragraph (4)(c), (d), (e) or (f) if subsection (4) were applicable. (5G) If goods ("exported goods") are exported to Australia and the Minister is satisfied that: (a) in the past the government of the country of export had a monopoly, or a substantial monopoly, of the trade of that country and determined, or substantially influenced, the domestic price of goods in that country; and (b) the circumstance described in paragraph (a) no longer applies in relation to that country; and (c) subsection (5D) does not apply in relation to the exported goods; and (d) a particular raw material used in producing or manufacturing the exported goods was, in whole or in part, supplied directly to the producer or manufacturer by an enterprise that is wholly owned by the national government, or by a provincial government, of that country; and (e) the cost actually incurred by the producer or manufacturer in procuring the raw material so supplied exceeds 10% of the costs actually incurred by the producer or manufacturer in producing or manufacturing the exported goods; the normal value of the exported goods for the purposes of this Part is the sum of: (f) an amount determined by the Minister, having regard to all relevant information, to be the value of the raw material so supplied, irrespective of the cost actually incurred by the producer or manufacturer in procuring the raw material so supplied; and (g) the amount of the cost actually incurred by the producer or manufacturer in producing or manufacturing the exported goods, other than the cost actually incurred by the producer or manufacturer in procuring the raw material so supplied; and (h) on the assumption that the exported goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—an amount determined by the Minister to be the sum of the administrative, selling and" "general costs associated with the sale of the exported goods and of the profit on that sale. (5H) Without limiting the generality of paragraph (5G)(f), the Minister may determine the amount that is to be the value of a raw material under that paragraph in accordance with whichever of the following paragraphs the Minister, having regard to what is appropriate and reasonable in the circumstances of the case, determines to be appropriate, as if the raw material were goods exported from the country of export referred to in paragraph (5G)(a): (a) an amount equal to the price determined by the Minister to be the price of like goods to the raw material produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country, being sales that are arms length transactions; (b) an amount equal to the price determined by the Minister to be the price of like goods to the raw material produced or manufactured in a country determined by the Minister and sold in the ordinary course of trade in arms length transactions for exportation from that country to a third country determined by the Minister to be an appropriate third country; (c) an amount equal to the sum of the following amounts ascertained in respect of like goods to the raw material produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country: (i) such amount as the Minister determines to be the cost of production or manufacture of like goods to the raw material in that country; (ii) such amounts as the Minister determines to be the administrative, selling and general costs associated with the sale of like goods to the raw material in that country and the profit on that sale; (d) an amount equal to the price payable for like goods to the raw material produced or manufactured in Australia and sold for home consumption in the ordinary course of trade in Australia, being sales that are arms length transactions. (5J) For the purposes of fulfilling Australia's international obligations under an international agreement, regulations may be made to disapply subsection (5D) or (5G) to a country. (6) Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the normal value of goods to be ascertained under the preceding subsections (other than subsection (5D)), the normal value of those goods is such amount as is determined by the Minister having regard to all relevant information. (7) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable. (7A) The application of subsection (5D) or (5G) to goods that are exported to Australia from a particular country does not preclude the application of other provisions of this section (other than subsections (4) and (5)) to other goods that are exported to Australia from that country. (8) Where the normal value of goods exported to Australia is the price paid or payable for like goods and that price and the export price of the goods exported: (a) relate to sales occurring at different times; or (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 or payable for like goods is to be taken to be such a price adjusted in accordance with directions by the Minister so that those differences would not affect its comparison with that export price. (9) Where the normal value of goods exported to Australia is to be ascertained in accordance with paragraph (2)(c) or (4)(e), the Minister must make such adjustments, in determining the costs to be determined under that paragraph, as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods. (10) Where: (a) the actual country of export of goods exported to Australia is not the country of origin of the goods; and (b) the Minister is of the opinion that the normal value of the goods should be ascertained for the purposes of this Part as if the country of origin were the country of export; he or she may direct that the normal value of the goods is to be so ascertained. (11) For the purposes of subsection (10), the country of origin of goods is: (a) in the case of unmanufactured raw products—the country of which they are products; or (b) in any other case—the country in which the last significant process in the manufacture or production of the goods was performed. (13) here, because of the operation of section 269TAAD, the normal value of goods is required to be determined under subsection (2), the Minister shall not include in his or her calculation of that normal value any profit component under subparagraph (2)(c)(ii). (14) If: (a) application is made for a dumping duty notice; and (b) goods the subject of the application are exported to Australia; but (c) the volume of sales of like goods for home consumption in the country of export by the exporter or another seller of like goods is less than 5% of the volume of goods the subject of the application that are exported to Australia by the exporter; the volume of sales referred to in paragraph (c) is taken, for the purposes of paragraph (2)(a), to be a low volume unless the Minister is satisfied that it is still large enough to permit a proper comparison for the purposes of assessing a dumping margin under section 269TACB. Section 269TACB Working out whether dumping has occurred and levels of dumping … (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. Section 269TB Application for action under Dumping Duty Act (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; that person may, by application in writing lodged with the Customs in accordance with subsection (5), request that the Minister publish that notice in respect of the goods in the consignment. Section 269TDAA Statement of essential facts in relation to investigation of application under section 269TB 269TDAA(1)The CEO must, within 110 days after the date of initiation of an investigation arising from an application under section 269TB or such longer period as the Minister allows under section 269ZHI, place on the public record a statement of the facts (the "statement of essential facts") on which the CEO proposes to base a recommendation to the Minister in relation to that application. (2) Subject to subsection (3), in formulating the statement of essential facts, the CEO: (a) must have regard to: (i) the application concerned; and (ii) any submissions concerning publication of the notice that are received by Customs within 40 days after the date of initiation of the investigation; and (b) may have regard to any other matters that the CEO considers relevant. (3) The CEO is not obliged to have regard to a submission received by Customs after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the CEO's opinion, prevent the timely placement of the statement of essential facts on the public record. Section 269TEA Report to Minister concerning publication of notices under this Part 269TEA(1) If: (a) application has been made under section 269TB for publication of a dumping duty notice or a countervailing duty notice; and (b) the CEO has initiated an investigation in respect of the application under section 269TC; the CEO must, after holding such an investigation and before the end of the period for reporting to the Minister that is referred to in paragraph 269TC (4)(bf), give the Minister a report in respect of the goods the subject of the application that: (c) recommends whether any such notice should be published and the extent of any duties that are, or should be, payable under the Dumping Duty Act because of that notice; and (d) recommends, in particular, whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and (e) recommends, where applicable, whether the Minister ought to give notice to the exporter under subsection 269TG(3D) or to the government of the country of export or to the exporter under subsection 269TJ(2A). (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. (3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the CEO's report in relation to an application under section 269TB for publication of a dumping duty notice or a countervailing duty notice, the CEO: (a) must 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; and (b) may have regard to any other matters that the CEO considers to be relevant. (4) The CEO is not obliged to have regard to any submission made in response to the statement of essential facts that is received by Customs after the end of the period referred to in subparagraph (3)(a)(iv) if to do so would, in the CEO's opinion, prevent the timely preparation of the report to the Minister. (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. Section 269TG Dumping duties 269TG(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) here 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. (3) Where: (a) a notice under subsection (1) declares particular goods to be goods to which section 8 of the Dumping Duty Act applies; or (b) a notice under subsection (2) declares like goods in relation to goods of a particular kind to be goods to which that section applies; the notice must, subject to subsection (3A), include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice: (c) was or would be the normal value of the goods to which the declaration relates; and (d) was or would be the export price of those goods; and (e) was or would be the non-injurious price of those goods. (3A) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non-injurious price of goods to which a declaration under subsection (1) or (2) relates claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of that value or price would adversely affect the person's business or commercial interests: (a) in accordance with subsection 269ZI(9) the Minister is not required to include in the notice a statement of that value or price; but (b) upon request the CEO may notify that value or price to persons who, in the CEO's opinion, would be affected parties in any review of the rate of interim duty imposed on like goods to the goods to which the declaration relates. (3B) In ascertaining a normal value and export price for goods of the residual exporter, the Minister must ensure that: (a) the normal value does not exceed the weighted average of normal values for like goods of selected exporters from the same country of export; and (b) the export price is not less than the weighted average of export prices for like goods of selected exporters from the same country of export. (3C) For the purposes of subsection (3B), the weighted average of normal values and the weighted average of export prices of the selected exporters must not include any normal value or export price if: (a) in a comparison under section 269TACB involving that normal value or export price, the Minister has determined: (i) that there is no dumping; or (ii) that the dumping margin, 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%; or (b) that normal value was determined under subsection 269TAC(6) or that export price was determined under subsection 269TAB(3). (3D) If the export of a consignment of goods to Australia by an exporter has been under consideration by the Minister so as to decide whether or not to publish a dumping duty notice under this section in relation to the goods in the consignment or to like goods, the Minister may give notice, in writing, to the exporter stating that: (a) the Minister is of the opinion that it would be appropriate for the exporter to give an undertaking in accordance with subsection (4) to the Minister; and (b) an undertaking, in the terms set out in the notice, would be satisfactory to the Minister. (4) Whether or not a notice has been given to an exporter, the Minister may defer the decision to publish or not to publish a dumping duty notice covering that exporter, for so long as the Minister considers appropriate, if the exporter offers, and the Minister accepts, an undertaking that the exporter will so conduct future trade to Australia in like goods as to avoid: (a) causing or threatening material injury to an Australian industry producing like goods; or (b) materially hindering the establishment of such an Australian industry. (5) In giving a notice, and in considering the terms of any proposed undertaking, the Minister must have regard to the desirability that any price increase to which the undertaking relates is limited to an amount such that the total price of the goods is not more than the non-injurious price of the goods. (6) The Minister: (a) may give a notice to an exporter under subsection (3D) whether or not the giving of such a notice has been recommended by the CEO in a report under section 269TEA; and (b) may accept an undertaking whether or not the acceptance of such an undertaking has been recommended by the CEO in a recommendation under section 269TEB ; and (c) must not give a notice to an exporter under subsection (3D), or accept an undertaking from an exporter, before a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG, has been made that extends to that exporter; and (d) must give public notice of any undertaking so accepted. (7) The acceptance by the Minister of an undertaking may be subject to conditions that include, but are not limited to, conditions relating to: (a) giving the Minister, on an agreed basis, information that is relevant to the fulfilment of the undertaking; and (b) providing the Minister with appropriate access to such information. (8) The acceptance by the Minister of an undertaking from an exporter does not prevent the exporter requesting the Minister to determine whether, had the undertaking not been accepted, the Minister would have published a dumping duty notice or would have decided not to publish such a notice. (9) 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. (10) Subsection (9) does not imply that the Minister is required to make a determination under that subsection before the Minister has received a report of the CEO in relation to the matter. (11) 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. Section 269ZZK The review 269ZZK(1) If an application is not rejected under section 269ZZG or 269ZZH, the Review Officer must make a report to the Minister on the application by: (a) recommending that the Minister affirm the reviewable decision; or (b) recommending that the Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision, being the finding or any of the findings specified in the application. Section 269ZZL What happens after the Minister receives a recommendation? 269ZZL(1) If: (a) the Minister receives a recommendation by the Review Officer to affirm a reviewable decision; or (b) the Minister does not accept a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision; the Minister must, by public notice, affirm the reviewable decision. (2) If the Minister accepts a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, the Minister must: (a) in writing, require the CEO to: (i) make further investigation of the finding or findings; and (ii) report the result of the further investigation to the Minister within a specified period; and (b) by public notice indicate the acceptance of that recommendation (including particulars of the requirements made of the CEO). (3) The CEO must conduct an investigation in accordance with the Minister's requirements under subsection (2) and give the Minister a report of the investigation concerning the finding or findings within the specified period. (4) In a report under subsection (3), the CEO must: (a) if the Review Officer is of the view that the finding or any of the findings the subject of reinvestigation should be affirmed—affirm the finding or findings; and (b) set out any new finding or findings that the CEO made as a result of the reinvestigation; and (c) set out the evidence or other material on which the new finding or findings are based; and (d) set out the reasons for the CEO's decision. First and Second Decisions 11 The applicant's complaint about the first and second decisions is based on disagreements between Abdullatif and ACS about the proper adjustments to the normal value of the goods which were made under section 269TAC(8) of the Act (see above). 12 Before making the first and second decisions ACS made a number of adjustments to take account of several differences they accepted existed between domestic and export conditions. ACS, however, declined to recommend the following adjustments: (a) Goods not identical (section 269TAC(8)(b)) ACS accepted that export goods and the domestic goods differed in weight from square metre and density of weave but only agreed to make adjustments for differences in weight. Abdullatif argued that adjustments should be made on account of both differences. (b) Level of trade (section 269TAC(8)(c)) ACS agreed to deduct the selling agent's commission but did not accept that a larger adjustment needed to be made to reflect the margin of a "notional" domestic distributor. (c) Credit risk (section 269TAC(8)(c)) ACS did not accept Abdullatif's argument that the difference in the grade arrangements between domestic and export markets should result in adjustment. (a) Goods Not Identical 13 Abdullatif exported seven grades of carpet backing to Australia and sold two of these on its domestic market, although none of the export grades was in fact identical to either of the two domestic grades. 14 There is no argument between the parties that the specifications of these goods are ordinarily given in terms of: · "Warp" being the number of longitudinal threads per 10 cm metric or per inch imperial. · "Weft" or "pick" being the number of latitudinal threads per 10 cm metric or per inch imperial. · "Weight" (almost universally specified in metric terms as garments per square metre). 15 Abdullatif exports a variety of goods to Australia, to a company identified in these reasons for judgment as "Company 1". Only three of these items were found by the first respondent to have been dumped. These were goods of the following characteristics: Warp Weft Weight 10 cm 10 cm gsm 110 51 106 110 63 106 110 63 112 16 Abdullatif sold two grades of the goods with the following characteristics to a company in Saudi Arabia identified in these reasons for judgment as "Company 2": Warp Weft Weight 0 cm 0 cm gsm 110 63 106 110 71 119 17 As the table shows, while the warp remains constant in these grades of goods the weft and the weight varies significantly between the exported goods and the domestically sold like goods. Six of the export grades differed from the nearest comparable domestic grades in weight per square metre. Of these grades ACS calculated an adjustment to the domestic price based on raw material costs. Export grade 10651 has the same weight as domestic grade 11063, differing only as to the weft or pick. Abdullatif contends that ACS erred by not making an adjustment under section 269TAC(8) in respect of these differences in weft or pick. 18 The respondent relies on the fact that, at the time of preparation of the normal value report which involved a site visit, this difference was not raised by Abdullatif, only being raised in writing on 6 October 1998, by means of facsimile. Abdullatif then asserted that the value for the 51 pick fabric should be lower than the value for the 63 pick fabric without however providing any basis in fact or argument to support this assertion. In fact, the representative of Abdullatif, when discussing the issue with an ACS official on the 8 October 1998, conceded that he was not able to quantify the difference between rates. ACS acknowledged that the asserted difference in production costs (about 20 per cent) may or may not be true but, because the difference could not be quantified, declined to alter its approach and take the alleged differences into account. 19 Abdullatif wrote to ACS on 16 November 1998, again asserting that there was a link between pick and production cost and this time arguing that applying a gross mark up to the difference would given an indication of price difference. It also said that Abdullatif would provide details of the contribution of this factor to production costs. A further letter dated 23 November 1998 included some figures which, Abdullatif said, were relevant to this adjustment issue and sent a further letter dealing with the same subject matter on 7 December 1998. Neither letter, the respondent says, dealt with the significance of the figures. However this material was not taken into account when preparing the trade measure report because the second respondent exercised its discretion (under s 269TEA(4)) to disregard this material. Its right to do so is not challenged here. 20 The second respondent said its approach was to make adjustments only when there was a real difference between products, supported by some evidence to establish a basis on which the difference could be quantified. It gave as an example the kind of material required namely, exporters' accounts or other relevant and reliable records. In particular, they wanted evidence that the differences had impacted on the exporters' prices or costs. In GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 Burchett J considered that the nature of the adjustment to be made under this section flows from its purpose: that is to prevent differences affecting its comparison with export price. Adjustment is to allow proper comparison so that it can be ascertained whether dumping has occurred or is occurring and without factual material that proper comparison can not be made. 21 ACS argues that the correct approach in circumstances such as these is not to recommend an adjustment in respect of differences in pick unless satisfied, on the basis of some probative material, provided to it at the appropriate time, that the differences claimed had had an impact not only on the cost of producing the product but also on the prices charged for the product. Abdullatif, relying on the approach said to be approved in the GTE decision (above), argues that as a Minister and the Chief Executive Officer, the respondents have a duty imposed by the statutory scheme to make appropriate adjustments under the section. The duty to adjust appropriately imposes a corresponding duty to investigate whether or not any relevant factor affects price comparability so as to trigger the operation of the legislation. Therefore, the applicant contends, the fact that the exporter does not provide relevant information at the appropriate time does not excuse the Minister and the Chief Executive Officer from performance of that duty to investigate the issue and a failure to do so is a failure to take into account a relevant consideration amounting to an error of law. 22 The respondent acknowledges correctly that there is not, in a legal sense, any onus on Abdullatif to prove its case by providing relevant material. However, the respondents do have a legal duty to make decisions on the basis of persuasive material made available in the context of the operation of the anti-dumping scheme. This scheme, as the legislation shows, has been established with strict time limits. As one would expect there is often the provision to ACS of information in different languages and in relation to different businesses which must as a matter of law be addressed within the time frame specified. Decision making of this kind must be done in a context where parties affected are in the best position to and should provide material and make responses to enquiries by ACS but this does not create as a matter of law an obligation to investigate each avenue suggested by any interested party. When a party seeks a particular outcome and has the opportunity to make submissions within a known statutory scheme, the decision-maker is entitled to expect that a party affected will, in the ordinary course, draw all relevant material to the decision-maker's attention, particularly where it has knowledge of the material which would substantiate its position. This approach, the respondent contends, is the one taken in Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458. To create an implied duty to investigate would make such a scheme unworkable in many cases. (b) Level of Trade 23 The respondents accept that if Abdullatif had sold to a distributor in its domestic market rather than to the end user the domestic price would generally be lower. The normal value report took account of this and concluded that the appropriate adjustment for this difference was 2 per cent. This conclusion was not criticised initially in the facsimile sent from Abdullatif dated 6 October 1998. Later in the 16 November 1998 submission, it was it asserted that the proper level of trade adjustment was "at least" 5 per cent. These latter submissions were disregarded as a matter of discretion. 24 The respondent was aware that the Australian market had four agents and about eleven end users, and the Saudi market had only three end users and one was an associate of Abdullatif. In these circumstances they argue the conclusion was open to them not to accept that a distributor in the Saudi market would be able to command a margin comparable to that obtained by Company 1 in Australia and in doing so, they took into account all material they had and all relevant considerations were made at the time of producing the report. 25 The applicant also argues that warehousing costs in the domestic market should also have been taken into account in the adjustment process and that ACS, in its enquiries, took too narrow an approach to this issue, not asking the "correct questions". The respondent says that, within the time limit, figures for warehousing costs in Europe were provided but not for Saudi Arabia until the time limit had elapsed. These costs were rejected as with other issues because of the absence of "verified information". The applicant also argued that account of these costs should be taken into account as part of the costs of a "notional domestic distribution". ACS declined to include warehousing costs on any basis because it concluded that on the information it had, it could not conclude that warehousing costs, real or notional, had a relevant effect on the domestic price. These are, in my view, factual conclusions the decision maker was entitled to make. The process of reaching these conclusions is not affected by legal error. (c) Credit Risk 26 The respondent relied in coming to its conclusion on this issue, on the investigation team's factual conclusion that Abdullatif did not pay for any actual credit risk insurance in running its domestic business. Abdullatif, in its facsimile of 6 October 1998, acknowledged that fact but argued that it added a premium in the sales price to the domestic market of 2 per cent to cover credit risk. ACS classified this premium as additional profit rather than a cost concluding that there was no evidence that Abdullatif incurred any costs associated with credit risk or bad debts. The applicant again argues that the respondent had a duty to make further enquiries as to the matter and thereafter determined for themselves the effect, if any, on the price of the goods. 27 The basis of the applicant's attack on the first and second decisions under review was, as stated before, a failure to take into account relevant considerations in relation to the matters discussed above. On 8 October 1998 what had been put by Abdullatif in relation to the matters discussed above was considered and rejected. Later submissions were not considered as a matter of discretion and the right to do this is not questioned. The approach taken by ACS was not unreasonable and should, it argues, be characterised as conclusions which were open to a reasonable person on the material available. It is conceded that there may be some circumstances where a failure to institute further enquiries could be unreasonable. This was the conclusion reached in GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309. This is in my view a very different case. In the GTE case material had been specifically furnished in time and was disregarded, here the material provided in time was considered and rejected or regarded as inadequate. There is not, in this situation, a legal obligation to institute further enquiries, particularly considering the strict timetable of the scheme. The imposition of a general duty to enquire which is wider than the enquiries of the applicant in a case such as this would make the scheme unworkable. It follows that a failure to make such enquiries in the context of this case does not amount to an error of law. The Third Decision 28 In his report under s 269ZZK(1) of the Act the TMRO recommended that the Minister direct the CEO to: (a) Make an adjustment to normal values under s 269TAC(8) of the Act to account for differences in physical characteristics and level of trade; and (b) Reassess the findings made in respect of causal link between dumping and the injury suffered by the Australian industry. 29 The applicant argues that having received those recommendations the Minister was limited when exercising the powers conferred under s 269ZZL and had no statutory power to seek or to receive comments from the CEO on the report of the TMRO. 30 Seeking such comments and taking them into account without any consultation with the applicant they say also amounts to a breach of the rules of natural justice. 31 The respondent contends that there is an assumption that ministerial powers will be exercised primarily on departmental advice. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 66 Brennan J relevantly said: Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision. 32 The respondent says that only where a legislative scheme expressed a clear indication to the contrary would this approach be displaced and no such contrary indication is given under s 269ZZL of the Act. The applicant argues that as the anti-dumping legislation constitutes a code it should be read strictly as authorising nothing other than that permitted by the words of the section. Different officers are given different functions. The TMRO is the person whose advice provides the Minister's support and expert evaluation. 33 One might expect that, in circumstances such as these, the Minister would be conscious to exercise her independent judgment particularly because the report she was considering concerned aspects of an initial investigation conducted by the ACS from whom she was seeking further advice. However, merely obtaining such advice is not, per se, inconsistent with her retaining control of the decision making process. There is no evidence that the Minister failed to exercise her independent judgment, even though she sought advice from ACS. 34 The respondent argues that even accepting that the scheme amounts to a code, the structure and context of s 269ZZL support the existence of a power to consult ACS on the TMRO report because the report involved the consideration of technical issues in which ACS has particular expertise and a role to advise the Minister. The report described the course of investigations undertaken by ACS and she was entitled to verify their accuracy. To interpret the section as prohibiting any contact would preclude this function from being exercised and inhibit the exercise of the discretion available to the Minister. 35 As to the argument that there was a breach of natural justice in not further conferring with the applicant, the TMRO's report does not appear to deal with new issues although it considered additional material. Abdullatif had had by then the opportunity to make submissions both to ACS on several occasions and also to the TMRO, when this material was considered. 36 The function of consultation, in relation to making the third decision, was not one which warranted or required that the Minister seek as a matter of course submissions from Abdullatif. Counsel for the applicant affirms in his submissions that in the applicant's view the CEO's advice in respect of this decision displays the same errors of law as affects the first and second decisions. Abdullatif had at that stage already had ample opportunity to point this out to both of the respondents and there is no evidence that these submissions were not taken into account. There may be circumstances where, if new matters were raised, there would be an obligation to consult further with the applicant, for example, if new arguments were put before the Minister. This is not the case here and I do not consider that there was any procedural unfairness in the failure to further consult the applicant. 37 The application in relation to the three decisions is dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor. Associate: Dated: 23 June 2000 Counsel for the Applicant: S Gageler Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: N C Hutley SC with G R Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 March 2000 Date of Judgment: 23 June 2000