IMPOSITION OF MEASURES ON A CONSOLIDATED OR DIFFERENTIATED BASIS (ISSUES G2 AND G3)
120 Aluminium extrusions exported to Australia from China are produced in a range of finishes. In Report 148 the CEO calculated anti-dumping and countervailing measures across the entire range without distinguishing between different finishes. In submissions the CEO was said to have made his calculations on a "consolidated" as opposed to a "differentiated" basis. I will adopt this nomenclature in these reasons.
121 The goods the subject of investigation and reinvestigation were described in Report 175 (at p 14) as follows:
The goods under consideration (the goods) are aluminium extrusions produced via an extrusion process, of alloys having metallic elements falling within the alloy designations published by The Aluminium Association commencing with 1, 2, 3, 5, 6 or 7 (or proprietary or other certifying body equivalents), with the finish being as extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not worked, having a wall thickness or diameter greater than 0.5 mm., with a maximum weight per metre of 27 kilograms and a profile or cross-section which fits within a circle having a diameter of 421 mm.
The goods include aluminium extrusion products that have been further processed or fabricated to a limited extent, after aluminium has been extruded through a die. For example, aluminium extrusion products that have been painted, anodised, or otherwise coated, or worked (e.g. precision cut, machined, punched or drilled) fall within the scope of the goods.
The goods do not extend to intermediate or finished products that are processed or fabricated to such an extent that they no longer possess the nature and physical characteristics of an aluminium extrusion, but have become a different product.
122 By notices published on 28 October 2010 the Attorney imposed anti-dumping and countervailing measures on aluminium extrusions on a consolidated basis in accordance with the recommendations made in Report 148. The TMRO subsequently recommended that the CEO adopt a different approach. In his report dated 18 April 2011 the TMRO explained (at p 53):
…[T]he different finishes have different costs and pricing, and therefore there may be an unduly low ascertained export price for certain finishes. I therefore recommend that Customs and Border Protection reinvestigate the most appropriate ascertained export price, having regard to the differences between the separate finishes.
In the reinvestigation that followed, the CEO accepted this recommendation, and calculated anti-dumping and countervailing measures for different finishes. In Report 175 the CEO identified four different finishes: "mill", "anodised", "powder coated" and "other". He ascertained a specific export price, normal value and non-injurious price for each of these finishes and made recommendations on that basis. By notice published on 27 August 2011 the Attorney imposed anti-dumping and countervailing measures in accordance with these recommendations.
123 The applicants submitted that the relevant provisions of the Act did not permit the calculation or the imposition of different anti-dumping and countervailing measures in respect of different finishes. This submission was said to find support in the relevant statutory language and the Anti-Dumping Agreement as interpreted by the WTO Appellate Body.
124 Subsection (1) of s 269TACB provides that the Minister must determine whether dumping has occurred by comparing export prices for the goods the subject of the application with corresponding normal values in respect of like goods. Subsection (1) provides:
(1) If:
(a) application is made for a dumping duty notice; and
(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and
(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;
the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.
For the purpose of making such a determination the Minister may derive a "dumping margin" based upon:
(i) the result of a comparison of the weighted average of export prices with the weighted average of corresponding normal values calculated over the whole or a part of the investigation period (subss 269TACB(2)(a)-(aa));
(ii) the result of a comparison of export prices determined in respect of individual transactions with corresponding normal values determined over the whole of the investigation period (subs 269TACB(2)(b)); or
(iii) the result of a comparison of the kind referred to in (i) for part of the investigation period and a comparison of the kind referred to in (ii) for another part of the investigation period (subs 269TACB(2)(c)).
125 There are two related provisions that are important to understanding the nature of the comparisons which the Minister may make under s 269TACB. First, subs 269T(1) includes a definition of "like goods" that is materially the same as the definition of "like product" that appears in the Anti-Dumping Agreement. According to this definition "like goods":
in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration.
Secondly, subs 269T(5), which draws upon the definition of "like goods", provides:
A reference in this Act to goods the subject of an application under section 269TB is a reference to goods referred in the application:
(a) that have been imported into Australia;
(b) that are likely to be so imported; or
(c) that may be so imported, being like goods to goods to which paragraph (a) or (b) applies.
126 Subsection 269TACB(4) specifies the circumstances in which goods are taken to have been dumped and establishes the formula for calculating the "dumping margin" in respect of dumped goods. It provides:
If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:
(a) the goods exported to Australia during that period are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.
127 Subsection 269TACB(7) provides (subject to an exception provided for in subs (8)) that "the existence of dumping and the size of a dumping margin will normally be worked out for individual exporters of goods to Australia."
128 Section 269TG relevantly provides:
(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) Where 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.
129 The respondents accept that subss (1) and (2) of s 269TG would "ordinarily" (their word) permit the Minister to make a declaration that s 8 of the Dumping Duty Act applies only in respect of the entire class of goods under consideration, not merely one or more sub-classes. However, they do not accept that the Minister, having made such a declaration, may only specify a single normal value, a single export price or a single non-injurious price (the variable factors) for a particular exporter's goods. In this regard, the respondents submit that subs 269TG(3) should be construed as including a power to specify different variable factors for different sub-classes of goods making up the goods under consideration. To understand the respondents' argument, it is necessary to look more closely at the structure of s 269TG.
130 Subsection (1) of s 269TG is concerned with goods that have been exported to Australia, whereas subs (2) is concerned with goods that may be exported to Australia in the future. Determining whether or not a declaration should be made by the Minister under subss (1) or (2) of the Act is what the respondents referred to as the first step under s 269TG. Subject to being satisfied that such goods or like goods have been or may be exported to Australia, the Minister may make a declaration that s 8 of the Dumping Duty Act applies if he or she is also satisfied of a number of other things including, where subs (1) applies, that the amount of the export price of the goods is less than the amount of the normal value of those goods and, where subs (2) applies, the amount of the export price of like goods that have already been exported to Australia is less than the normal value of those goods.
131 The next step arises under subs (3) of s 269TG. If the Minister decides that a declaration should be made under subss (1) or (2) then the Minister must include in the notice declaring that s 8 of the Dumping Duty Act applies a statement of the amounts for the variable factors as ascertained by the Minister at the time of publication of the notice.
132 The respondents argued that the purpose of the second step is to allow for the imposition of interim duty on the relevant goods at a level that will deter future imports at dumped prices or elevate the domestic prices of goods that are imported into Australia at dumped prices. They submitted that this purpose might not be achieved if the goods under consideration consist of different classes that have very different dumping margins. The respondents illustrated this possibility by way of the following example:
Take, for example, a notice which specifies a normal value of $100 per ton and an export price of $80 per ton for certain goods. The interim duty payable under s 8(4) of the Dumping Duty Act will be $20 per ton (the "fixed component" under para (a)), plus any amount by which the actual export price of particular goods is less than $80 (the "variable component" under para (b)). Now assume that the goods subject to the notice range in price from $60 to $120 per ton. The cheapest goods would be subject to a prohibitive interim duty of $40 per ton, which is likely to be a great deal more than the relevant dumping margin; while the most expensive goods would be subject to an interim duty of $20 per ton, which might or might not bear some relationship to their actual dumping margin.
The respondents argued that these kinds of outcomes could never have been intended by the legislature and that a construction of subs 269TG(3) that required the Minister to adopt the same variable factors for all sub-classes of goods under consideration could produce absurd results. They submitted that this could be avoided if subs 269TG(3) is read with subs 33(3A) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) and that, when it is, subs 269TG(3) is to be taken to authorise the inclusion of a statement in a public notice issued pursuant to subss 269TG(1) or 269TG(2) of different variable factors for different sub-classes of goods.
133 Capral submitted that there was nothing in the Act to preclude the Minister from specifying different dumping margins for different categories of product. It further submitted that the essential purpose of Pt XVB of the Act is to protect the Australian industry from dumped goods and that the Court should have regard to this when resolving the issue now under consideration. Capral submitted:
It would be absurd to construe the Act as requiring single dumping margins when the definition of "like goods" clearly envisages that goods of different grade or quality can still be "like goods" because, while not alike in all respects they "have characteristics closely resembling those of the goods under consideration". Hence, if different thickness of glass or different grades of A4 paper or different cuts of pineapple are able to be "like goods", it follows that the Act must contain the flexibility to deal with situations where there are different dumping margins for different qualities of goods within the ambit of "like goods". Any other construction would virtually inevitably lead to some combination of excessive and unnecessary protection. The Court should adopt such a construction only if none other is open; that is not the case here.
134 Subsection 33(3A) of the Interpretation Act provides:
Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters.
In accordance with s 2 of the Interpretation Act, subs 33(3A) will apply to s 269TG "subject to a contrary intention".
135 As I have mentioned, the respondents accept that subss (1) and (2) of s 269TG will ordinarily only permit the Minister to make declarations in respect of all goods the subject of an application under s 269TB (including "like goods") and that it is ordinarily not open to him or her to make a declaration under either of these subsections with respect to some, but not all, such goods. It seems to me to be implicit in the respondents' acceptance of this proposition that the powers conferred upon the Minister under subss (1) and (2) are not enlarged by subs 33(3A) because the Act manifests an intention that subs 33(3A) not apply at least in so far as subss (1) and (2) are concerned. On the other hand, Capral's position seems to be different to that of the respondents in that its arguments were explicitly founded on the proposition that there is no reason why subs 33(3A) should not apply to each of subss (1), (2) and (3).
136 In my opinion, subs 33(3A) of the Interpretation Act does not apply to subss (1) or (2) of s 269TG. This follows from the overall statutory scheme, including in particular s 269TACB, which dictates how the Minister must go about determining whether the goods the subject of the application for a dumping duty notice have been dumped and, if they have been, what the dumping margin will be (normally) for a particular exporter.
137 The question whether dumping has occurred requires a consideration not only of particular goods that have been or are likely to be imported into Australia, but also "like goods" that have been or are likely to be so imported. If the comparison utilised by the Minister is of the kind referred to in subs 269TACB(2)(a)-(aa) then the "dumping margin" is the difference between the two weighted averages (ie. a single figure): see subs 269TACB(4). If the comparison is based upon a comparison of the kind referred to in subs 269TACB(2)(b) then the "dumping margin" for the goods the subject of a single transaction is the difference between the export price and the normal value in respect of that transaction (ie. a single figure): see subs 269TACB(5). While s 269TACB is not explicit about this, I would infer from the statutory language that, if a comparison of the kind referred to in subs 269TACB(2)(b) is undertaken which involves more than one transaction, then the Minister will normally be required to calculate weighted averages in respect of both export prices and normal values so as to arrive at a "dumping margin" (ie. another single figure) for a particular exporter.
138 In the present case it is clear from Report 148 that the CEO compared a weighted average of export prices to a weighted average of corresponding normal values to produce a single "dumping margin" for each of Panasia and Kam Kiu. Although it is not stated in Report 175 what approach was adopted for the purpose of calculating different dumping margins for different finishes, it is not disputed, and in any event I infer, that weighted averages were again used.
139 This brings me back to subs 269TG(3) of the Act. When s 269TG is read as a whole, it is apparent that subs (3) refers to the goods the subject of a declaration under subss (1) or (2). In particular, the references in subs (3)(c) of s 269TG to "the goods to which the declaration relates" and in subs (3)(d) and (e) to "those goods" indicate that the goods referred to are the same goods as those the subject of the declaration made under subss (1) or (2) and that they will have the same dumping margin as that calculated pursuant to s 269TACB. In my opinion, if a declaration is made under subss (1) or (2) in respect of goods then subs (3) requires that, along with the relevant declaration, the public notice set out details of the ascertained variable factors that led to the declaration. The ascertained normal values and export prices will each be the same single figure (usually expressed as a percentage) referable to a particular exporter that was used to determine, in accordance with the requirements of s 269TACB, whether dumping occurred and, if so, at what margin.
140 Further, where in Part XVB of the Act the Minister is conferred with a discretion as to how he or she will go about determining a dumping margin, the relevant provisions usually make this quite clear. There is nothing in s 269TG to suggest that there was any intention to confer upon the Minister a discretion that would enable him or her to determine variable factors different to those utilised for the purpose of determining whether dumping occurred and, if so, at what margin.
141 I now turn to the argument based upon the potential for absurd outcomes if it is held that s 269TG requires that interim duty be calculated on a consolidated basis. In evaluating the strength of this argument I have found it helpful to consider a number of hypothetical scenarios.
142 The formula for calculating the dumping margins in the hypothetical scenario envisaged by Table 1 and other hypothetical scenarios discussed in this section of my reasons is as follows:
143 Table 1 highlights the effect of calculating variable factors on a differentiated basis as opposed to a consolidated basis in a hypothetical scenario where the goods the subject of an application under s 269TB consist of a staple commodity available in five different grades, each of which is exported to Australia during the investigation period by a particular exporter in equal quantities over the same period and at the same export price per kilogram. The grade exported to Australia at normal value (G3) does not attract dumping duty if it is calculated on a differentiated basis so that the after-duty price ($5.00) will equal normal value ($5.00). But if the duty is calculated on a consolidated basis, then the after-duty price ($5.20) will exceed the normal value ($5.00), and the grade that has the highest dumping margin (G5) will have a post-duty price ($5.20) that is still well below normal value ($6.00).
144 Thus, in the hypothetical scenario I have described, an exporter's shipments of G1, G2 and G3 to Australia at $4.50, $4.75 and $5.00 per kilogram respectively would all attract interim duty of 20 cents per kilogram if calculated on a consolidated basis, a result the respondents and Capral would describe as accidental or even absurd given that in each case the normal value is equal to or less than the export price. This may be contrasted with the treatment of a shipment by the same exporter of G4 or G5 to Australia at a price of $5.00 per kilogram. Such a shipment would attract interim duty at precisely the same rate (20 cents per kilogram) even though it is sold at a price well below normal value.
145 However, it is important to keep in mind that there is nothing in Part XVB of the Act (or the Anti-Dumping Agreement) that requires that duty be imposed upon goods within a relevant class (such as G1, G2 and G3) that are sold at or above normal value. On the contrary, pursuant to s 269TL of the Act, the Minister may decide, on the recommendation of the CEO, not to impose dumping duty on "particular goods or on goods of a like kind to particular goods". In a practical sense, the present issue therefore comes down to this: how high may the dumping duty for goods sold at less than normal value (such as G4 and G5) be set or, to put it slightly different, what is the maximum dumping margin that may be applied using the methods of calculation provided for by the Act?
146 The applicants submitted that the problems referred to by the respondents "arise … from the inflexible nature of the anti-dumping and countervailing system as a whole". I think there is considerable force in this submission. The interim duty payable in respect of a particular exporter's goods is calculated on the basis of the normal value and the export price established using information which (it may be assumed) accurately reflected prices, costs, exchange rates and other relevant matters during the investigation period but which may or may not be accurate at or after the time a declaration is made under s 269TG. Thus, the normal value used to calculate the dumping margin may not reflect increases in an exporter's costs of production which may have risen following increases in the cost of raw materials. Similarly, the dumping margin worked out for a particular exporter in accordance with s 269TACB may have been based upon a quite different mix of goods than that which is representative of that exporter's business at or after the time a declaration is made under s 269TG.
147 In my view these examples illustrate that what the respondents and Capral might describe as accidental, surprising or even absurd outcomes, are the result of a statutory scheme for imposing dumping duty that is, at least in presently relevant respects, intentionally rigid in application and capable of producing many different results some of which might be perceived to be harsh or unfair. Importantly, these results can work in quite different ways, including in favour of, or against, the interests of Australian industries or their overseas counterparts.
148 Further, I do not agree with Capral that the purpose of Part XVB of the Act is "to protect Australian industry". The purpose of Part XVB is far more complicated. It is apparent from the scheme of Part XVB that the legislature has sought to strike a balance, as the relevant international agreements no doubt seek to do, between various interests including not only those of Australian industries but also other WTO members and their own domestic industries, Australian consumers (in the broadest sense of that word) who may have an interest in acquiring imported goods at the lowest available prices and Australian exporters that supply their goods to other countries that are also members of the WTO.
149 The applicants referred me to reports of the WTO Appellate Body concerning the Anti-Dumping Agreement which they suggested would assist in resolving the question of construction now under consideration. These included the report entitled "United States - Measures Relating to Zeroing and Sunset Reviews" issued 9 January 2007 (WT/DS322/AB/R) (the Zeroing Report). In the Zeroing Report the Appellate Body considered whether the practice known as "zeroing" was permissible under the Anti-Dumping Agreement.
150 Zeroing is a practice that involves counting the dumping margin with respect to particular goods as zero if the weighted average difference between normal value and the export price is a negative. The effect of zeroing is illustrated in Table 2 below where it can be seen to produce a higher dumping margin (7% compared to 4%) for the commodity than would be the case if the negatives (-10%, -5%) were not counted as zero.
151 In the course of explaining why "zeroing" was inconsistent with the requirements of the Anti-Dumping Agreement the Appellate Body considered what it understood by the concepts of "Dumping" and "Margins of Dumping" for the purposes of GATT 1994 and the Anti-Dumping Agreement. The Appellate Body said (at paras 108-115):
108. First, we recall that dumping is defined in Article VI:1 of the GATT 1994 as occurring when a "product" of one country is introduced into the commerce of another country at less than the normal value of the "product". Consistent with this definition, Article VI:2 provides for the levying of anti-dumping duties in respect of a "dumped product" in order to offset or prevent the injurious effect of dumping.
109. This definition of dumping is carried over into the Anti-Dumping Agreement by Article 2.1. Furthermore, by virtue of the opening phrase of Article 2.1 - "[f]or the purposes of this Agreement" - this definition applies throughout the Agreement. Thus, the terms "dumping", as well as "dumped imports", have the same meaning in all provisions of the Agreement and for all types of anti-dumping proceedings, including original investigations, new shipper reviews, and periodic reviews. In each case, they relate to a product because it is the product that is introduced into the commerce of another country at less than its normal value in that country.
110. Article VI:2 defines "margin of dumping" as the difference between the normal value and the export price and establishes the link between "dumping" and "margin of dumping". The margin of dumping reflects the magnitude of dumping. It is also one of the factors to be taken into account to determine whether dumping causes or threatens material injury. Article VI:2 lays down that "[i]n order to offset or prevent dumping, a Member may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product." Thus, the margin of dumping also is defined in relation to a "product".
111. Secondly, the Anti-Dumping Agreement prescribes that dumping determinations be made in respect of each exporter or foreign producer examined. This is because dumping is the result of the pricing behaviour of individual exporters or foreign producers. Margins of dumping are established accordingly for each exporter or foreign producer on the basis of a comparison between normal value and export prices, both of which relate to the pricing behaviour of that exporter or foreign producer. In order to assess properly the pricing behaviour of an individual exporter or foreign producer, and to determine whether the exporter or foreign producer is in fact dumping the product under investigation and, if so, by which margin, it is obviously necessary to take into account the prices of all the export transactions of that exporter or foreign producer.
112. Other provisions of the Anti-Dumping Agreement also make it clear that "dumping" and "margins of dumping" relate to the exporter or foreign producer. Article 6.10 requires, "as a rule", that investigating authorities determine "an individual margin of dumping for each known exporter or producer". Similarly, Article 9.4 of the Anti-Dumping Agreement refers to situations where anti-dumping duties are applied to exporters or foreign producers not examined individually in an investigation, and provides that such duties shall not exceed "the weighted average margin of dumping established with respect to the selected exporters". In addition, Article 9.5 indicates that the purpose of new shipper reviews is to determine "individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product" and refers to a "determination of dumping in respect of such producers or exporters".
113. Thirdly, the Anti-Dumping Agreement and the GATT 1994 are not concerned with dumping per se, but with dumping that causes or threatens to cause material injury to the domestic industry. Article 3.1 stipulates that a determination of injury shall be based on an objective examination of both the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and the consequent impact of these imports on domestic producers of such products. Furthermore, Article 3.5 of the Anti-Dumping Agreement lays down that "[t]he authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry and the injuries caused by these other factors must not be attributed to dumped imports." Among the non-attribution factors listed in this Article are "the volume and prices of imports not sold at dumping prices".
114. Thus, it is evident from the design and architecture of the Anti-Dumping Agreement that: (a) the concepts of "dumping" and "margins of dumping" pertain to a "product" and to an exporter or foreign producer; (b) "dumping" and "dumping margins" must be determined in respect of each known exporter or foreign producer examined; (c) anti-dumping duties can be levied only if dumped imports cause or threaten to cause material injury to the domestic industry producing like products; and (d) anti-dumping duties can be levied only in an amount not exceeding the margin of dumping established for each exporter or foreign producer. These concepts are interlinked. They do not vary with the methodologies followed for a determination made under the various provisions of the Anti-Dumping Agreement.
115. A product under investigation may be defined by an investigating authority. But "dumping" and "margins of dumping" can be found to exist only in relation to that product as defined by that authority. They cannot be found to exist for only a type, model, or category of that product. Nor, under any comparison methodology, can "dumping" and "margins of dumping" be found to exist at the level of an individual transaction. Thus, when an investigating authority calculates a margin of dumping on the basis of multiple comparisons of normal value and export price, the results of such intermediate comparisons are not, in themselves, margins of dumping. Rather, they are merely "inputs that are [to be] aggregated in order to establish the margin of dumping of the product under investigation for each exporter or producer."
(footnotes omitted, emphasis added)
152 Neither the respondents nor Capral suggested that there was any reason not to accept as correct the WTO Appellate Body's reasoning in relation to the operation of the Anti-Dumping Agreement. If it is accepted, as in my opinion it should be, that the Anti-Dumping Agreement requires the calculation of a single dumping margin for a particular exporter in respect of the goods under investigation (which will include like goods) then it is apparent that the kind of outcomes postulated by the respondents and Capral cannot be said to be unintended or absurd. I therefore reject the argument that it is necessary for subs 33(3A) of the Interpretation Act to apply to subs 269TG(3) so that unintended or absurd outcomes may be avoided.
153 In my opinion the Minister was not entitled to include in public notices published pursuant to s 269TG a statement of variable factors for the purposes of subs (3) different to those utilised for the purpose of determining whether to make the declarations referred to in subss (1) and (2). It follows that the Minister was not entitled to vary the dumping duty notices so that they would have effect as if different variable factors had been fixed with respect to different finishes.
154 The parties' submissions appeared to assume that a similar result would follow in relation to the Minister's decision to vary the countervailing duty notices. In this regard, neither the respondents nor Capral suggested that the Minister might have power to determine variable factors with respect to countervailing duty on a differentiated basis if he or she was not entitled to adopt such an approach with respect to dumping duty.
155 While there are some differences between s 269TJ and s 269TG, the general structure of s 269TJ, at least in so far as it relates to the publication of notices (subss (1) and (2)) declaring that s 10 of the Dumping Duty Act applies, and the inclusion of a statement as to variable factors (subs (11)), is similar to that of s 269TG. In these circumstances I have come to the same conclusion with respect to the application of subs 33(3A) of the Interpretation Act to subs 269TJ(11) of the Act as that reached in relation to subs 269TG(3).
156 Issue G3 gave rise to a number of arguments that were advanced by the applicants in the alternative to those raised and considered by me in connection with Issue G2. Having regard to my decision concerning Issue G2 it is not necessary for me to say any more in relation to Issue G3.