Electra Cables (Aust.) Pty Limited v Minister for Industry and Innovation [2025] FCA 1677

s 269TAB(2)(b)Electra Cables (Aust.) Pty Limited v Minister for Industry and Innovation [2025] FCA 1677 | Case summary | Zoe

[34]

After examining a morass of colourfully shaded cells across many spreadsheets with an antique magnifying glass provided by counsel for the applicant, and hearing argument about the legality of several administrative decisions as well as the interpretation of various statutory provisions, I now find myself in a position to deliver reasons.
Primarily, this proceeding concerns how an "export price" is determined under s 269TAB of the Customs Act 1901 (Cth) (Customs Act) for the ultimate purpose of determining whether "dumping" has occurred. Generally, "dumping" occurs when the "export price" for the relevant goods is less than the "normal value" of those goods. Therefore, determining the "export price" is of central importance. To those unaccustomed to the terms of the Customs Act, one would have thought this would be a relatively straightforward exercise, but as is explained below, this has not proven to be the case.
The goods in question in this case are polyvinyl chloride (PVC) flat electrical cables (Goods), which were exported to Australia from the People's Republic of China (China) by Guilin International Wire and Cable Group (Guilin). The goods were imported by the applicant (Electra), which is an entity related to Guilin.
This dispute has an intricate and Labyrinthine history, which is helpful to explain.
On 23 March 2018, Prysmian Australia Pty Ltd, a manufacturer of PVC electrical cables in Australia, lodged an application under s 269TB of the Customs Act seeking the publication of a dumping duty notice and a countervailing duty notice in respect of the Goods exported to Australia from China. The application alleged that the exportation of the Goods to Australia from China at dumped and subsidised prices had caused material injury to the Australian industry producing like goods.
On 4 June 2018 and in response to that application, the third respondent, the Commissioner of the Anti-Dumping Commission (Commissioner), initiated an investigation into the alleged dumping and subsidisation of the Goods exported to Australia from China during the period from 1 January 2017 to 31 December 2017.
On 8 April 2019, the Anti-Dumping Commission (ADC) finalised its report, being ADC Report 469. ADC Report 469 set out the findings on which the Commissioner based his recommendations to the then Minister for Industry, Science and Technology (Minister) regarding the investigation.
On 14 May 2019, the then Minister, having considered ADC Report 469 and accepted the Commissioner's recommendations, declared under s 269TG(1) and (2) of the Customs Act that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (Anti-Dumping Act) applied to the Goods, specifying a dumping margin of 6.6% (Minister's 2019 Decision).
On 3 September 2019, Electra sought judicial review of the Minister's 2019 Decision in this Court (VID 965 of 2019). On 13 February 2020, Kerr J made orders by consent setting aside the Minister's 2019 Decision and remitting the matter to the Minister for reconsideration.
On 5 November 2020, the Department of Industry, Science, Energy and Resources (DISER) wrote to Electra and Guilin seeking submissions in relation to the reconsideration. On 26 November 2020, Electra and Guilin made a joint submission to DISER.
On 9 July 2021, DISER sought further submissions. On 5 August 2021, Electra and Guilin, in responding to an invitation from DISER, made joint submissions with respect to DISER's "preliminary recommended position" concerning the reconsideration.
Following receipt of Electra's submission made on 5 August 2021, DISER provided a departmental submission to the then Minister, recommending that the Minister "declare by public notice, that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia by [Guilin]" (DISER Submission). The reference to "Dumping Duty Act" is a reference to the Anti-Dumping Act.
On 1 September 2022, the Minister, having accepted the recommendations of DISER and the relevant recommendations of the ADC in ADC Report 469 on 29 August 2022, published an Anti-Dumping Notice (ADN 2022/019), relevantly declaring under s 269TG(2) of the Customs Act that s 8 of the Anti-Dumping Act applied to the Goods exported to Australia from China and specifying a dumping margin of 2.8% (Minister's 2022 Decision).
On 4 October 2022, pursuant to s 269ZZE of the Customs Act, Electra made an application to the Anti-Dumping Review Panel (Panel) for merits review of the Minister's 2022 Decision. The grounds for review were set out in attachments to the application, being Attachments B (confidential) and C (non-confidential). There were two grounds on which Electra sought review.
First, Electra contended that there were errors in the determination of the dumping margin, being:

[38]

On 24 January 2024, the Panel published a notice announcing the recommencement of its review.
On 12 March 2024, a conference under s 269ZZHA was held with the Panel at which Electra provided additional information to the Panel. On 6 May 2024, a further conference was held with the Panel at which Electra was requested to provide further information.
On 30 August 2024, the Panel provided its report to the Minister, being ADRP Report 160A. ADRP Report 160A found that the Minister's 2022 Decision was the correct and preferable decision, and recommended that the Minister affirm the Minister's 2022 Decision.
On 30 September 2024, the Minister accepted the recommendation of the Panel and published a notice affirming his 2022 decision (Minister's 2024 Decision).
On 10 October 2024, the Panel published on its public record ADRP Report 160A and a notice dated 30 September 2024 under s 269ZZM(4) of the Customs Act affirming the Minister's 2022 Decision.
Electra now challenges the Minister's 2024 Decision. As that decision was based on ADRP Report 160A, which was in turn based on ADC Report 469, Electra also seeks judicial review of the Panel's decision contained in ADRP Report 160A, being to recommend to the Minister to affirm the Minister's 2022 Decision (Panel's Decision); and the Commissioner's decision contained in ADC Report 469, being to recommend to the Minister that dumping and countervailing duty notices be published in respect of the Goods exported to Australia from China (Commissioner's Decision).
The respondents accepted that the Minister's 2024 Decision and ADRP Report 160A are amenable to judicial review but contend that ADC Report 469 is not amenable to judicial review.
In making the Minister's 2024 Decision, the Minister "considered and accepted the recommendations, and reasons for the recommendations, made by the Review Panel in Report No. 160A, including all material findings of fact or law as set out in Report No. 160A". For that reason, the Minister accepted that ADRP Report 160A had a necessary effect on the ultimate decision as explained by the High Court in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149. Indeed, ADRP Report 160A constitutes a "condition precedent" to the exercise of the Minister's powers which are challenged in this proceeding, and in that sense, is within the principles set out in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 (at 162 per Brennan CJ, Gaudron and Gummow JJ): GM Holden Ltd v Commissioner of the Anti-Dumping Commission [2014] FCA 708; (2014) 225 FCR 222 (at 254 [108] per Mortimer J).
ADC Report 469 is also amenable to judicial review. While the Minister's 2024 Decision was based on ADRP Report 160A, it was also, in turn, based on ADC Report 469. It will be recalled that the Minister's 2024 Decision affirmed his 2022 decision. In making the Minister's 2022 Decision, the Minister:

[42]

Whether foreign exchange gains are "costs, charges or expenses" under s 269TAB(2)(b)

The Panel and the Minister proceeded on an incorrect understanding of the law in determining that the net foreign exchange gain recorded in the Applicant's 2017 Financial Statement was not capable of falling within the meaning of "costs, charges or expenses" in s 269TAB(2)(b) of the Customs Act so as to be the subject of a prescribed deduction for the purpose of determining the export price under s 269TAB(1) of the Act.

Whether foreign exchange gains arise in relation to the goods after exportation

The Panel and the Minister's approach to determining whether the net foreign exchange gain recorded in the Applicant's 2017 Financial Statement was a cost, charge or expense "arising in relation to the goods after exportation" for the purposes of s 269TAB(2)(b) of the Customs Act was irrational and/or legally unreasonable.

Further, or in the alternative to Ground 2, if the Panel and the Minister applied the correct approach to determining whether the net foreign exchange gain recorded in the Applicant's 2017 Financial Statement was a cost, charge or expense "in relation to the goods after exportation" within the meaning of s 269TAB(2)(b) of the Customs Act, the Commissioner, the Panel and the Minister erred in law, or failed to exercise jurisdiction, in not applying the same approach to the Applicant's other costs.

The Minister failed to exercise jurisdiction, by not determining whether or to what extent the net foreign exchange gain recorded in the Applicant's 2017 Financial Statement was a cost, charge or expense "arising in relation to the goods after exportation".

Currency conversion

The Commissioner, the Panel and the Minister proceeded on an incorrect understanding of the law, in that they did not use "the rate of exchange on the date of the transaction or agreement" as required by s 269TAF(1) of the Customs Act, and thereby incorrectly calculated the relevant dumping duty.

[56]

In essence, the respondents contend the Minister, in adopting the recommendations of the Panel, applied a correct understanding of s 269TAB(2)(b) in determining that "costs, charges or expenses" did not include the net foreign exchange gain recorded in Electra's 2017 Financial Statement, and did not reach a conclusion on this issue that was irrational or legally unreasonable. They further submit there was a sound legal and factual basis for the net foreign exchange gain to be treated differently from Electra's costs that were included in the s 269TAB(2)(b) "prescribed deductions", and for the Panel and the Minister to be satisfied on the evidence provided that the gains should not be included in the calculation of costs that was required by s 269TAB(2)(b).
For the following reasons, these submissions ought to be accepted.
Needless to say, the starting point is the interpretation of the phrase "costs, charges or expenses" in s 269TAB(2)(b) of the Customs Act and ascertainment of whether the net foreign exchange gain recorded in Electra's 2017 Financial Statement was capable of falling within the meaning of that expression so as to be the subject of a prescribed deduction for the purpose of determining the export price under s 269TAB(1) of the Customs Act.
It is trite that the modern approach to statutory interpretation requires, in the first instance, consideration of the text of the statute while, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (at 368 [14] per Kiefel CJ, Nettle and Gordon JJ).
Indeed, the importance of context has been emphasised by the High Court, and although recent statements to the effect that the process of statutory interpretation must start and end with a consideration of the statutory text, they were not intended to and did not demote or relegate the importance of context in the process of statutory interpretation: Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204; (2021) 106 NSWLR 1 (at 10 [28] per Bell P). Further, context should be considered in its widest sense and includes the existing state of the law, legislative purpose and the mischief the statute was designed to remedy: SZTAL (at 368 [14] per Kiefel CJ, Nettle and Gordon JJ, and 374 [36] per Gageler J).
Turning to the provisions, s 269TAB sits within Division 1 of Part XVB of the Customs Act. Part XVB of the Customs Act is entitled "Special provisions relating to anti-dumping duties". Section 269SM(1), which is headed "Overview of Part", provides:

[62]

Paragraph 6 of Article 2 also provided that for the cases referred to in paragraph 5 "allowance for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made".
This purpose is reflected in the text of s 269TAB(1). Section 269TAB(1) outlines three different methods for determining the "export price" of any goods exported to Australia, which are as follows.
First, in circumstances where: (a) the goods have been exported to Australia by some person other than the importer; (b) the goods have been purchased by the importer from the exporter; and (c) the purchase of the goods by the importer was an arm's length transaction (using that expression in its ordinary sense), the "export price" is the price paid or payable for the goods by the importer other than any part of that price that represents a charge in respect of the transport or any other matter arising after exportation: s 269TAB(1)(a). Put simply, the "export price" under s 269TAB(1)(a) will be the price paid by the importer for the goods from the exporter, both of whom are independent from one another, less any post-exportation charges.
Secondly, in circumstances where: (a) the goods have been exported to Australia by some person other than the importer; (b) the goods have been purchased by the importer from the exporter; (c) the purchase of the goods by the importer was not an arm's length transaction; and (d) the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer, the "export price" is the price at which the goods were so sold less the "prescribed deductions" in s 269TAB(2): s 269TAB(1)(b). Hence instead of using the price the importer paid the exporter in the non-arm's length transaction, the "export price" will be the price at which the importer sells the goods to an independent third party, the "non-associate", less any "prescribed deductions". The price the importer paid the exporter is not part of the calculation. The purpose is to identify a notional yet reliable "export price" as the original export price was set other than in an arm's length transaction.
Thirdly, in any other case, the "export price" is the price that the Minister determines having regard to all the circumstances of the exportation: s 269TAB(1)(c).
Section 269TAB(2) provides that a reference in s 269TAB(1)(b) to "prescribed deductions" in relation to a sale of goods that have been exported to Australia is reference to: (a) "any duties of Customs or sales tax paid or payable on the goods" (s 269TAB(2)(a)); (b) "any costs, charges or expenses arising in relation to the goods after exportation" (s 269TAB(2)(b)), being the impugned provision in the present case; and (c) "the profit, if any, on the sale by the importer or, where the Minister so directs, an amount calculated in accordance with such rate as the Minister specifies in the direction as the rate that, for the purposes of paragraph (1)(b), is to be regarded as the rate of profit on the sale by the importer" (s 269TAB(2)(c)).
The meaning of the phrase "costs, charges or expenses" in s 269TAB(2)(b) should be understood in the context of the two further categories of prescribed deductions that appear in s 269TAB(2). Indeed, the words "cost", "charge" and "expense" are not defined in the Customs Act. All three deductions are intended to remove any costs, charges, expenses and profits added as part of the resale price by the importer after the goods were exported to Australia. The removal of these items is a key component in ascertaining the notional "export price" in s 269TAB(1)(b).
It is unsurprising that in ADRP Report 160A, the Panel was focussed on the ordinary meaning of the words "costs", "charges" and "expenses", which conformed with the statutory task of deducting, under s 269TAB(2)(b), amounts which would ordinarily be understood as "things that are paid (or liable to be paid) by, and diminish or would diminish the financial position, of the importer" (ADRP Report 160A at [164]). Indeed, there is nothing to indicate that each of those words should have any meaning other than their ordinary meaning considering the context in which the words are used. As correctly explained by the Panel, the ordinary meaning of the words "costs", "charge" or "expense", used in a commercial context, "would not include a gain to, or enhancement in, a financial position, including when the gain or enhancement involves an increase in the value of assets" (ADRP Report 160A at [164]).
The Panel correctly identified that a 'cost' is "something that must be given in order to acquire, produce or effect something, or is an expenditure, sacrifice, loss or penalty that is borne, lost or suffered in accomplishing or gaining something" (ADRP Report 160A at [165]). A 'charge' is a "pecuniary burden or cost, a liability to pay or to enter a debit against", while an 'expense' is "an amount expended, or is a disbursement, consumption or loss" (ADRP Report 160A at [165]).
Each of the words "cost", "charge" and "expense" involve an expenditure, burden, liability, loss or consumption of something. The Panel was correct in concluding that none of those three words would include a revenue gain or increase in commercial value such as a gain in value denominated in a foreign currency when exchanged into Australian dollars (ADRP Report at [165]).
Applying that construction, the Panel ultimately concluded that the net forex gain recorded in Electra's 2017 Financial Statement was not a "cost", "charge" or "expense" within the meaning of s 269TAB(2). It said (at [167]):

[66]

As for Ground Five, Electra contends that the Commissioner, the Panel and the Minister proceeded on an incorrect understanding of the law by not using "the rate of exchange on the date of the transaction or agreement" as required by s 269TAF(1) of the Customs Act, and thereby incorrectly calculated the relevant dumping duty.
Before dealing with the substance of the ground, it is necessary to consider four antecedent issues.
First, the respondents contend that to the extent Ground Five directly attacks the analysis underpinning the Commissioner's recommendations to the Minister as reflected in ADC Report 469, the challenge could have been brought earlier.
It will be recalled that the Minister's 2019 Decision involved the acceptance of the Commissioner's findings and recommendations reported in ADC Report 469. In VID 965 of 2019, this Court made orders by consent setting aside the Minister's decision and remitting the matter to the Minister for reconsideration.
Similarly, in NSD 257 of 2023, the Minister's 2023 Decision and ADRP Report 160 were set aside, again by consent. ADC Report 469 was not impugned, noting the Commissioner was not a party to the proceedings. The respondents contend that Electra could have challenged ADC Report 469 in these earlier judicial proceedings and that it elected not to do so. However, given the consensual resolution, as was the case in VID 965 of 2019, there was no occasion for any attack on the Commissioner's findings and recommendations, nor any opportunity for them to be debated, considered and resolved by a court.
Secondly, the respondents contend that insofar as Ground Five concerns ADRP Report 160A and the Minister's 2024 Decision, the issue did not form part of the "reviewable grounds" before the Panel (see [14]-[16] above).
The term "reviewable grounds" is a specific statutory designation referring to the grounds the Panel accepts for review under s 269ZZG(5). Indeed, they are not necessarily what an applicant for review may classify as "grounds" in their application. They are also the grounds that must be set out in a notice that is published on the Panel's website under s 269ZZI.
Section 269ZZI(2)(b) "requires that the terms of the relevant notice be sufficient to convey to a reasonable person who is likely to have an interest in such review or reinvestigation the general scope of the proposed review and any findings that the applicant for review seeks to have reinvestigated": Panasia Aluminium (China) Ltd v Attorney-General (Cth) [2013] FCA 870; (2013) 217 FCR 64 (at 112 [163] per Nicholas J). Accordingly, the Panel decides what the "reviewable grounds" are and has a degree of discretion in the level of generality at which the grounds are formulated. In the present case, the Panel formulated the grounds very broadly indeed. In the notice published on 22 November 2022, the Panel identified the grounds as follows:

[68]

The Panel identified the grounds in the same broad terms in ADRP Report 160A (at [23]).
Given the breadth of the identification of the grounds, I am satisfied that the "reviewable grounds" encompass Electra's more particular complaint in this Court about the failure to apply s 269TAF(1) correctly.
Thirdly, with respect to all the decisions the subject of Electra's application, the respondents submit that Electra cannot raise Ground Five by reason of so-called "Anshun estoppel". Of course, Anshun estoppel, as properly understood, precludes the making of a claim or raising of an issue so connected with the subject matter of an earlier proceeding such that it would have been unreasonable not to have been brought forward in the earlier proceeding: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 (at 517-518 [22] per French CJ, Bell, Gageler and Keane JJ). In understanding its scope, it is necessary to bear in mind that it is founded on: (a) "protecting litigants from the costs and uncertainties of repetitious litigation; upholding the finality and conclusiveness of formal orders; and preventing persons from being troubled twice by what is, in substance or in fact, the same litigation", and (b) protection of public interests, including upholding the authority of orders formally disposing of disputes; preventing the prolongation of disputes by continuous litigation of things earlier concluded; and the efficient use of resources: Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Co Australian Branch trading as Liberty Speciality Markets [2024] FCA 840 (at [28] per Moshinsky J).
But the fact that a claim or issue could have been raised in a previous proceeding will generally not, of itself, be sufficient to conclude that it should have been raised; it must be shown to have been unreasonable in all the circumstances not to have done so: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 (at 247 [4] per Allsop P). Relevant circumstances may include, for example, the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, and any real or reasonably perceived difficulties in raising the relevant claim earlier.
In this way, Anshun estoppel is not a true estoppel, but reflects the same policy considerations that give rise to res judicata or cause of action estoppel: Rogers v R [1994] HCA 42; (1994) 181 CLR 251 (at 274-275 per Deane and Gaudron JJ).
When the basis of the notion is understood, it is evident that no Anshun estoppel arises as to the challenge to the decisions of the Panel and the Minister. Even leaving aside the obvious fact the prior proceedings were not contested, the decisions were made after orders were made in proceedings VID 965 of 2019 and NSD 257 of 2023.
As to the challenge to the Commissioner's Decision, it is necessary to consider Anshun estoppel more closely.
The determination of whether the conduct was unreasonable is heavily fact-dependent. This Court has recognised that "[t]he authorities emphasise that the Anshun principle, since it shuts out a litigant from pursuing a cause of action, should be applied only after a 'scrupulous examination of all the circumstances'": BC v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1669; (2001) 67 ALD 60 (at 68 [26] per Sackville J); Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 (at 192-193 [54] per the Court).
The nature of the present proceedings being judicial review proceedings is a circumstance relevant in determining whether the principle should be applied. The Full Court has held where a Minister, having no personal interest in the outcome of a proceeding, is a beneficiary of Anshun estoppel, the principle "may be of only secondary significance": Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (at 18 [39] per the Court). After all, the proceedings seek to ensure lawful conduct by Ministers and statutory authorities. There is a clear public interest in this Court determining the correct construction of s 269TAF, given the consequences that construction may have not only for Electra but for others.
Additionally, and more fundamentally, as noted above, the policy rationale for the Anshun principle is not directly engaged. A relevant and often significant consideration in determining whether an Anshun estoppel arises is the potential for conflicting judgments: Sahin v National Australia Bank Ltd [2012] VSCA 317 (at [91] per Ferguson AJA, Warren CJ and Neave JA agreeing). In the present case, there is no such prospect. Moreover, precluding Electra from raising this one ground (out of five) in relation to only one of the respondents will neither advance the public interest in the finality of litigation or materially restrain costs between parties in dispute: Stuart v Sanderson [2000] FCA 870; (2000) 100 FCR 150 (at 156 [20] per Madgwick J).
Also, to the extent it matters, the proper application of s 269TAF was a matter that the Panel raised in the most recent review. In the ADRP Conference Summary for the conference on 12 March 2024, the Panel records that it asked Electra for the following further information:

[70]

In the light of this issue only emerging late in the statutory review process, it was not unreasonable for Electra not to have taken the point in earlier judicial review proceedings.
Even if it was unreasonable for Electra not to have taken the point, the Anshun principle is subject to the "special circumstances" exception. The exception "... comprehend[s] situations where, for broad discretionary considerations related to notions of justice, [the principle] should not be applied with full rigour": Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287 (at 296 per the Court).
As that passage makes clear, the "special circumstances" exception is deliberately open-ended. For the same reasons set out above, there are "special circumstances" in the present case. In particular, the fact that the issue was raised by the Panel itself on 12 March 2024 means it would be less than just for Electra to be disabled from arguing the point that the Panel raised at a late stage in the statutory-review process.
Fourthly, the respondents also contend that, on the basis that ADC Report 469 is amenable to judicial review, any relief in respect of ADC Report 469 should be refused on "discretionary grounds". For reasons identified below, I will not presently determine this objection to the granting of relief. For current purposes, it is sufficient to decide that the considerations advanced in support of a refusal of discretionary relief are not determinative of the resolution of the distinct and logically anterior question as to whether Ground Five was able to be relied upon at the present hearing. It is sufficient to note that the respondents refer to the investigation period for the purpose of ADC Report 469, being 1 January 2017 to 31 December 2017. The respondents contend that it is unclear how revisiting that period and undertaking the investigation afresh at public expense is in the public interest, including having regard to the scope of the report, which relates to exporters in addition to Guilin.
Having said this, the Minister's first decision was made in the light of the findings in ADC Report 469, which was produced following an investigation into that period. The Minister's 2024 Decision, being the most recent decision, is made in respect of the same investigation into that same period. There should be no bar on taking Ground Five, but I will reserve dealing further with any question of prejudice caused by effluxion of time or any other related alleged discretionary considerations.

[77]

Importantly, the footnote in that passage provides that "[n]ormally, the date of sale would be the date of contract, purchase order, order confirmation, or invoice, whichever establishes the material terms of sale".
The Panel and the Minister, relying on Confidential Attachment 9 to the DISER Submission, used a single foreign exchange rate for each quarter of the period of investigation to convert the deductive export price from Australian Dollars to Renminbi.
However, having regard to Confidential Attachment 10 the DISER Report, they determined the date of sale to be the individual invoice dates for each of the export consignments. Adopting the words of the statute, the Minister determined that the "date of the transaction" for the purposes of s 269TAF(1) was the "date of sale", being the individual invoice dates for each of the export consignments. Electra contends that to comply with s 269TAF(1), the exchange rate on the invoice date for each of those consignments should have been used.
Electra drew this matter to the Panel's attention in a conference on 12 March 2024 and an email provided as part of a conference on 18 March 2024 and reiterated the matter in a further conference on 6 May 2024. The Panel also raised this matter with DISER in a conference on 26 March 2024 and with the ADC in a conference on 27 March 2024. The Panel declined to make any adjustment to the exchange rate used in Confidential Attachment 9 to the DISER Report.
The Commissioner took the same approach as the Panel and the Minister.
In response, the respondents contend that the currency conversion contemplated by s 269TAF was undertaken to enable a "comparison of the export prices and goods exported to Australia and corresponding normal values"; namely, the comparison required by s 269TACB to determine whether dumping has occurred. They contend that the comparison was performed by the means provided for in s 269TACB(2)(a), which involves using a "weighted average-to-weighted average" approach and that it was undertaken on a quarterly basis.
In this case, presumably for administrative convenience, the ADC used rates of exchange daily on the dates of the relevant transactions but averaged across four quarterly periods, which was consistent with the periods used to undertake comparison of the weighted average export prices to the weighted average normal value of the goods under s 269TACB(2)(a).
The respondents submit that if s 269TACB(2)(a) permits a weighted average-to-average comparison, then s 269TAF must be capable of facilitating that comparison in the way the currency conversion is to be applied.
While the ADC calculated the dumping margin in this way, I am unconvinced a necessary link exists between the Minister's choice of comparison method under s 269TACB(2) and the operation of s 269TAF(1). Under s 269TACB, the export price for goods exported to Australia and corresponding normal values for those goods have already been established (ss 269TACB(1)(b) and 269TACB(1)(c)). Having determined those values, the Minister is then required to compare export prices and normal values (see the chaussette to s 269TACB(1)). Indeed, section 269TACB(2) provides different methods for how that comparison "may" occur.
Section 269TAF(1) is engaged if "comparison of the export prices of goods exported to Australia and corresponding normal values of like goods requires a conversion of currencies". Considered in the present context, s 269TAF(1) is concerned with the comparison that is required for the Minister to determine whether dumping has occurred under s 269TACB(1). That comparison, insofar as it requires a conversion of currencies, is not influenced by the methodology chosen under s 269TACB(2). Those methodologies do not have any impact on the requirement that currency conversion, under s 269TAF(1), "is to be made using the rate of exchange on the date of the transaction or agreement that, in the opinion of the Minister, best establishes the material terms of the sale of the exported goods".
In my view, the respondents' contention purports to import impermissibly a calculation methodology from one part of the Act into another. The statutory text in s 269TAF is specific and tolerably plain. The conversion of currencies is to be made using the rate of exchange on the date of the transaction or agreement that, in the opinion of the Minister, best establishes the material terms of sale of the exported goods.
Reluctantly, given the long and tortured history of this dispute, I am required to conclude that each of the Commissioner, the Panel and the Minister proceeded on an incorrect understanding of law in relation to s 269TAF(1). My preliminary view is that the use of the correct exchange rate would necessarily have resulted in a different export price being determined. Indeed, during the 12 months between 1 January 2017 to 31 December 2017, Guilin was the exporter in 1007 transactions with Electra, each of which required an export price to be determined under s 269TAB of the Customs Act. The Commissioner, the Panel and the Minister used only four different rates of exchange for comparison of those export prices to corresponding normal values of the like goods. One can understand the pragmatism of this approach, but the prescriptive statutory scheme required adherence to the statutory text.

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