The Reasoning of the Chief Executive Officer and the Primary Judge
61 The most immediately central question dividing the parties at this stage of the argument was whether the Chief Executive Officer had correctly applied the requirements imposed by s 269TG and, thereafter, whether the primary Judge was correct in concluding that the Chief Executive Officer had applied the wrong test.
62 It is dangerous to focus too much attention upon any particular part of Report 134 and to attempt to read that discrete part free from the broader context in which it appears. It was common ground that that Report had to be read in a common-sense manner (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 to 276) and that particular parts of the Report had to be read in the broader context of the whole Report.
63 Subject to that caution, reference may be made to those parts of the Report where the Chief Executive Officer was addressing the submissions being advanced on behalf of Dow and Qenos and to where the Chief Executive Officer was addressing their submissions made in response to the Statement of Essential Facts (prepared in accordance with s 269ZD).
64 Relevantly, Dow sought to focus attention on whether or not exports would cause or be likely to cause material injury. The Report summarises Dow's submission in part as follows:
Dow claimed that the exports of LLDPE from SPE were never priced at levels which were ever likely to cause material injury to the Australian industry. Dow further claimed that any injury allegedly sustained by Australian industry could not and cannot be attributed to importations from SPE. Dow considers that measures against importations of LLDPE from SPE are entirely inappropriate and need to be rescinded at the earliest opportunity.
When addressing the submissions of Dow and Qenos, Report 134 expressed the following assessment:
6.2 CUSTOMS ASSESSMENT
In assessing whether measures should be revoked, Customs normally considers a range of factors to form a view on whether dumping and injury would be likely to recur if the measures were revoked. The absence of dumping or export pricing that is above the level of the NIP would be relevant factors but would not, of itself, be persuasive evidence that dumping and injury would not recur if the measures were revoked.
The timing of Dow's submission, lodged at day 45 of the review, limited Customs' ability to undertake an extensive examination of issues relevant to whether the measures, as they relate to SPE, should be revoked.
Dow claimed that in the recent past its import pricing and selling prices in the Australian market have been at levels which have not caused injury to the Australian industry, based on its own assessment of the NIP and USP. Customs agrees that these are factors relevant to whether measures should be revoked.
However, Customs notes that dumping is another relevant factor. Customs found that exports to Australia by SPE over the review period were at dumped prices. As the issue of revocation was only raised when the review was significantly advanced, Customs was unable to evaluate and form a view on all other factors relevant to whether the measures should be revoked.
Based on the available evidence, Customs was not satisfied that circumstances exist to recommend that the measures should be revoked as they relate to SPE.
65 Although the assessment was that the product was being exported at dumped prices, the issue outstanding remained whether that was causing material injury. The Report returned to this issue when providing its assessment as to the submissions made on behalf of Qenos, Dow and Siam in response to the Statement of Essential Facts. That assessment was in part as follows:
7.2 CUSTOMS' ASSESSMENT
The anti-dumping legislation provides that, where anti-dumping measures are in place, an affected party may apply for a review of the measures if they consider that, since the factors were last ascertained, one or more of the variable factors has changed. Dow acknowledges the legislative mechanism and commercial rationale for reviewing the variable factors.
The questioning of the need to increase one of the variable factors, the NIP, in view of the Australian industry's strong performance is, in Customs view, an extension of its submissions that the anti-dumping measures are not necessary and should be revoked. Customs addresses the submissions on revocation below.
On the issue of increasing the NIP, Customs' view is that, it is appropriate that all variable factors, including the NIP, be revised to the levels observed during the review period.
Customs is mindful of its obligations under Article 11 of the Anti-Dumping Agreement in relation to the revocation of measures. As part of the review, Customs considered whether it should recommend that the anti-dumping measures should be revoked. At the time of the SEF, taking into account the available evidence, Customs was not satisfied that the measures should be revoked.
Attention was drawn to the recent strong performance of the Australian industry in a period when anti-dumping measures were at outdated levels and possibly not affording the Australian industry with any great degree of protection from dumping. In the SEF, Customs stated that it considered dumped imports had, in the review period, a limited effect on the Australian industry's selling prices and that, therefore, these prices were suitable for establishing a USP. Dow/SPE submits that the finding of a limited effect should allow Customs to be reliably convinced that any allegedly dumped exports by SPE did not cause injury to Qenos.
Dow/SPE further submits that imports from SPE are unlikely to cause material injury to the Australian industry because SPE's pricing was never found to have been injurious since measures were first imposed over four years ago.
Customs considers the points made by Dow/SPE are legitimate and relevant to whether the measures should be revoked. However, Customs does not agree that the absence of material injury or causal link in the review period (not explicit findings by Customs but reasonable assertions in the circumstances) means that if the measures had not been taken the Minister would not be entitled to impose such measures and on this basis the measures must be revoked.
In Customs' view, the matter of which it must be satisfied to recommend that the measures be revoked is not whether one or more of the elements for imposing dumping measures (dumping, causal link and material injury) is not present in the review period. Anti-dumping measures often cause exporters to modify their behaviour and are designed to discourage dumping or remedy material injury caused by dumping.
Customs interprets the test for revocation as whether, in the hypothetical situation of measures not being in place, there would now be grounds to impose the measures. In other words, if the measures were removed, is it likely that the exporter or exporters would dump goods and cause material injury to the Australian industry.
In examining this likelihood of recurring dumping and injury, the recent strong performance by the Australian industry is a relevant consideration. However, Customs also notes that the review found that exports by SPE were dumped. On the available evidence Customs could not be satisfied that dumping would not cause material injury if the measures were revoked.
In the SEF, Customs stated that the timing of Dow's submission limited Customs' ability to undertake an extensive examination of issues relevant to whether the measures, as they relate to SPE, should be revoked. Dow/SPE rejected this, stating that the review required submissions to be compiled and presented over the Christmas holiday period when staffing resources were limited.
Customs appreciates the difficulties presented by the Christmas period. However, without early advice that an affected party believes there are grounds to revoke the measures, the scope of Customs' enquiries and the ability of interested parties to defend their interests is reduced.
Customs considered whether the measures should be revoked. However, its examination of the factors relevant to revocation would have been more extensive if Dow had advised Customs, when notified of the review, of its intention to argue for revocation.
Based on the available evidence, Customs is not satisfied that circumstances exist to recommend that measures should be revoked as they relate to SPE or to exporters generally.
8 REVOCATION
In this review, Customs investigations have not revealed any information to suggest that the anti-dumping measures should be revoked in relation to a particular exporter or revoked generally.
Although the conclusion as to causation has to be read in context, the assessment was expressed in terms that:
… On the available evidence, Customs could not be satisfied that dumping would not cause material injury if the measures were revoked.
66 It is respectfully considered that the error the Chief Executive Officer committed occurs in the transition from his interpretation of "the test for revocation" to his subsequent examination of "this likelihood of recurring dumping and injury". The test, it is considered, is unexceptionally stated and is but a paraphrase of s 269ZC(2)(b)(ii) and (in this case) s 269TG(2). Section 269ZC(2)(b)(ii) requires consideration to be given to the prospect:
… that, if the anti-dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures.
And, when an application such as the present requires consideration of that prospect to be taken into account, s 269TG(2) then requires the Ministerto be satisfied that in those cases where the export price of goods is less than their normal value then:
… because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened …
The error in the application of that test to the facts as found is that the Chief Executive Officer did not make any finding as to whether the dumped prices would cause or be likely to cause material injury. Rather than making that finding, the Chief Executive Officer made a finding that he could not be satisfied that dumping would not cause material injury. His assessment was that, because he could not be so satisfied, the existing measures should not be revoked.
67 Albeit differently expressed, that was the conclusion of the primary Judge. His Honour's conclusions were expressed as follows:
[92] I am of opinion that the legislative scheme envisages that when the Minister makes a decision under s 289ZDB(1)(a), he or she will ascertain whether and what anti-dumping measures are appropriate and adapted to meet any material injury caused by dumping or threatened by present dumping or dumping that is sufficiently likely to occur if any existing measures were removed or varied.
[93] In Report 134 the CEO assumed that material injury to Qenos had been or was being caused or threatened because of the dumping by Siam. The Report made a perfunctory generalisation that "[a]nti-dumping measures often cause exporters to modify their behaviour and are designed to discourage dumping or remedy material injury caused by dumping" (A39.3). But this did not address the causal link, or indeed the associated element of injury (past, present or threatened) specified in s 269TG(2)(b), except by making that generalisation. It was not applied to what Siam's dumping had done or might threaten. As the respondents' admitted in their defence, there was no evidence or other material of any injury to Qenos caused by Siam's exports.
[94] Given the changes in the market that had made the existing measures irrelevant, the questions for the Minister and (by force of s 269TE(2)) the CEO in preparing the report under s 269ZDA(1)) were:
· whether or not there was any dumping by Siam;
· if so, whether or not that dumping at the time of making a decision under s 269ZDB(1)(a) had caused, was causing or was threatening to cause material injury to Qenos that required new anti-dumping measures to be taken and;
· if so, what were the variable factors that should be adopted to address appropriately the injury or threatened injury caused, or likely to be caused, by the dumping.
Because they failed to ask these questions or answer them, the respondents committed an error of law and made a decision outside the authority conferred by the Act.
68 In reaching that conclusion it is not considered that His Honour committed any appellable error.
69 That conclusion follows from the terms of s 269ZDA and s 269ZDB and the fact that the submissions presented on the review in this case required genuine consideration to be given to revocation of the existing anti-dumping measures and the necessity for consideration to be given to whether if those measures had not been taken "the Minister would not be entitled to take such measures". It is unnecessary to consider whether such reliance as His Honour may have placed upon other provisions found elsewhere in Part XVB may also support or dictate the same conclusion.
70 It is also unnecessary to resolve a further submission advanced on behalf of the Respondent that it would have been difficult for any conclusion to have been reached that the Australian industry would or could have suffered material injury - given the findings otherwise made by the Chief Executive Officer. To venture into that area, it is respectfully considered, goes beyond a consideration of the approach in fact adopted in Report 134 and impermissibly ventures into an examination of what findings of fact could have been made had a different approach been pursued. Such an exercise, if pursued, would impermissibly project this Court into an area of fact finding entrusted by the Legislature to Customs and not this Court.