Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Siam Polyethylene Co Ltd v Minister of State for Home Affairs (No 2) [2009] FCA 838
ADMINISTRATIVE LAW–– anti-dumping duty –– sunset review –– Customs Act 1901 (Cth) Div 6A Pt XVB –– ss 269TAE, 269 ZHF, 269ZHG –– test to be applied by Chief Executive Officer of Customs in preparing statement of essential facts and report to Minister and by Minister in declaring continuation of anti-dumping duty –– CEO had to be satisfied expiration of measures would lead or be likely to lead to continuation or recurrence of material injury existing measure intend to prevent –– whether the CEO and Minister had to consider whether material injury was being caused, or threatened to be caused, by dumping –– whether s 269TAE applied so as to require likelihood of material injury to be foreseeable and imminent –– whether material injury was being caused or threatened by a factor other than dumping of imports ADMINISTRATIVE LAW –– administrative decision making –– CEO required to form a particular state of satisfaction –– importance of decision maker actively considering a statutory requirement, rather than giving it cursory consideration and putting it to one side Held: CEO and Minister erred in not considering whether dumping was causing or threatening to cause material injury to Australian industry Words and Phrases: "would be likely to lead", "material injury" and "non-injurious price" Customs Act 1901 (Cth) Div 6A Pt XVB ss 269TAE, 269TG, 269TM, 269ZHB, 269ZHC, 269ZHD, 269ZHE, 269ZHF, 269ZHG, Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss 6, 8 Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 Art 11.3 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 cited Buck v Bavone (1976) 135 CLR 110 cited East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007)233 CLR 229 followed Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 cited Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service (2006)156 FCR 94 cited Swan Portland Cement Ltd v Minister for Small Business and Customs (1991)28 FCR 135 at 144 cited Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 applied The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 discussed United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) discussed United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4) discussed SIAM POLYETHYLENE COMPANY LIMITED v MINISTER OF STATE FOR HOME AFFAIRS and CHIEF EXECUTIVE OFFICER OF CUSTOMS
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