PT Pabrik Kertas Tjiwi Kimia Tbk v Minister for Justice & Customs

REASONS FOR JUDGMENT 1 It is regrettable that it was necessary for the applicant, PT Pabrik Kertas Tjiwi Kimia Tbk ("Kimia"), to institute this proceeding. There is some substance in Kimia's grievance as to the manner in which the dumping provisions of the Customs Act 1901 (Cth) have been administered in its case. Kimia's application seeks a declaration that a revised price undertaking it gave on 7 July 1997 and that was accepted by the first respondent, the Minister for Justice and Customs ("the Minister") on 30 July 1997 in accordance with the provisions of s 269TG of the Customs Act, expired on 3 February 1999. In the alternative judicial review is sought of the Minister's failure to make a decision on the report of the second respondent, the Chief Executive Officer, Australian Customs Service ("the CEO"), of May 1999 made pursuant to s 269ZDA of the Customs Act following a review of the revised price undertaking given by Kimia on 7 July 1997. Kimia is an Indonesian company that manufactures and exports A4 copy paper to Australia. The Statutory Setting 2 It is unnecessary to describe the scheme of Part XVB of the Customs Act and of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) ("the Dumping Duty Act") in relation to the dumping of goods in Australia. For present purposes it suffices to say that dumping occurs where an overseas manufacturer sells goods to an Australian importer at a price which is less than the price at which it sells like goods in the ordinary course for home consumption in the country of export. 3 Under s 269TG(1) and (2) of the Customs Act the Minister, if satisfied that dumping of goods has occurred and that in consequence material injury or threatened injury to an Australian industry producing like goods has been established, may issue a notice declaring that s 8 of the Dumping Duty Act applies to those goods. Publication of such an "anti-dumping" notice has the effect of imposing a special duty of customs on those goods pursuant to the Dumping Duty Act. 4 Relevantly for the present application s 269TG(4) provides: "(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." If an undertaking is accepted the Minister is required "[to] give public notice of [the] undertaking so accepted": s 269TG(6)(d). 5 As to the duration of an undertaking, s 269TM(2) provides: "(2) Where an undertaking is entered into after section 17 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 commences under a relevant undertaking provision in respect of goods of a particular kind, that undertaking expires 5 years after the day on which it was entered into unless provision is made for its earlier expiration." I simply note in passing that s 269TG(4) is a "relevant undertaking provision" for the purpose of this provision: s 269TM(7). 6 Until its repeal by the Customs Legislation (Anti-Dumping Amendments) Act 1998 (Cth), s 269TAJ(3) allowed the Minister, by public notice, to release or partly release a person from an undertaking entered into under Part XVB of the Customs Act. Distinctly, Division 5 of Part XVB allows affected parties to apply for review of anti-dumping measures (including undertakings). The scheme of that Division requires the CEO within a prescribed period to give the Minister a report recommending the course that should be taken in relation (inter alia) to an undertaking in accordance with what is permissible under the Act: s 269ZDA(1)(b). 7 Section 269ZDB provides insofar as presently relevant that: "(1) After considering the report of the CEO and any other information that the Minister considers relevant, the Minister must declare, by notice published in accordance with subsection (7), that for the purposes of this Act and the Dumping Duty Act: … (b) to the extent that the anti-dumping measures concerned involved the acceptance by the Minister of an undertaking: (i) that the undertaking is to remain unaltered; or (ii) that if, before a date specified in the declaration, the terms of the undertaking are altered in a manner specified in the declaration, the undertaking as so varied will be acceptable to the Minister; or (iii) that the undertaking is no longer acceptable to the Minister and that the investigation of the need for a dumping duty notice or a countervailing duty notice is to be resumed immediately; or (iv) that, with effect from a date specified in the declaration, the person who gave the undertaking is released from the undertaking and that the investigation giving rise to the undertaking is terminated." 8 The application raises two discrete issues each with its own factual context, the one relating to the content of the undertaking entered into on 30 July 1997; the other, to the events that have (and have not) occurred subsequent to Kimia seeking a review of its undertaking under Division 5 of Part XVB of the Customs Act. 9 Because of the view I take of the first of these, and because the second is contingent upon a view being taken of the first contrary to my own, I will deal separately with the two and only in any detail with the first. The 30 July 1997 Undertaking