The Correct Test
82 The CEO had to make a recommendation based on a report that correctly addressed the criteria upon which the Minister could made a declaration affecting an existing notice for the purposes of the Act and the Dumping Duty Act under s 269ZDB(1). Central to the purposes of the Act and the Dumping Duty Act was the present and likely future impact on the Australian industry of importation of the relevant goods at the time of the review. Here, there was no suggestion that Siam's dumping had caused any injury to Qenos in the review period. One question for the Minister to consider was whether he was satisfied that importation of the dumped product by Siam had caused, was then causing or threatening to cause material injury to the Australian industry as s 269TG(2)(b) required. The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1). In that way, the initial justification for the s 269TG(2) declaration would be revisited by the Minister having regard to the up-to-date information ascertained in the review process under Div 5 of Pt XVB and the purposes of the Act and the Dumping Duty Act would be addressed appropriately by him in making the relevant choice in a declaration under s 269ZDB(1)(a): R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J (with whom Gibbs J agreed); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474 at 501-503 [103]-[112] where I discussed the principles.
83 The actual situation at the time of the review has to be examined to determine what declaration should be made. That does not mean that the CEO or the Minister must ignore the past. Indeed, s 269TG(2) expressly refers to a past event of dumping having already caused material injury to an Australian industry as one criterion on which the Minister may issue a notice with prospective effect. In that situation s 269TG(2) does not require there to be an existing or continuing injury to enliven the power. Past conduct can often be a guide to future conduct. Dumping may be suspended as a pre-emptive strategy because of the possibility that anti-dumping measures could be implemented in an attempt to allow the importer to argue that the field is clear and thus, the measures are unnecessary.
84 Equally, I am of opinion that the purpose of the implementation agreement and of Pt XVB is not to authorise anti-dumping measures merely because of past activities by exporters to Australia that, of themselves, are not of sufficient cogency to justify interference in the policy of freedom of international trade. The decision to use or continue the use of anti-dumping measures must be justified. The Act (in s 269TM(1)) and the implementation agreement contemplate that anti-dumping measures can remain in place for five years (and can be extended beyond that). Past events can provide a justification for the decision to issue a notice under s 269TG(2) and, sometimes, to maintain it after a review under Div 5 of Pt XVB. But the decision to rely solely on past dumping having caused material injury in the absence of any present or threatened similar conduct, will require a reasoned justification based on the processes of positive evidence and objective examination that Arts 3.1, 3.5-3.8 of the implementation agreement contemplate, within the scope of Pt XVB of the Act.
85 Here, in the period preceding the review, the actual situation in terms of prices and imports had changed so radically that none of the previous variable factors had any real relation to the market the subject of the review. It could not be appropriate to approach the process of review using a presupposition that revocation of the existing, and thus, irrelevant measures required justification. That is not what a review under Div 5 of Pt XVB of the Act entails. The Act required the CEO to prepare a report and make recommendations using a structured process, once he or she has accepted that there was a reasonable basis to undertake a review. Once initiated, the review is concerned to examine what recommendation should be made to the Minister, and ultimately what determination he or she makes, based on the current circumstances of the industry.
86 It is significant that the decision-maker here was the Minister. The statutory scheme seeks to give effect to Australia's international obligations. In authorising the Minister to consider any other information that he or she considers relevant, in addition to requiring the Minister to consider the report of the CEO, the Parliament intended in s 269ZDB(1)(a) to confer a broad discretion on the Minister. In the exercise of a ministerial discretion due allowance may have to be given to a Minister of the Crown to take into account broader policy considerations that may be relevant, as Mason J explained in his classic judgment in Peko Wallsend 162 CLR at 42. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs (2000) 200 CLR 442 at 452 [22]-[23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]; Telstra 107 ALD at 503 [112] per myself.
87 Yet, under s 269ZDB(1)(a) the Minister's discretion as to what information, in addition to the report of the CEO, is relevant to making a declaration, is not absolute. First, in the chapeau to s 269ZDB(1) the Parliament reinforced that the declaration is "for the purposes of this Act and the Dumping Duty Act". Secondly, s 269ZDA(3) prescribes criteria that the CEO must consider in preparing his or her report to the Minister under s 269ZDA(5). While s 269ZDA(3)(b) is in similarly broad terms to s 269ZDB(1) in permitting the CEO to have regard to any other matter that he or she considers to be relevant to the review, the CEO's consideration cannot be at large. There must be a reasonable connection between what information the Minister (under s 269ZDB(1)), or matter the CEO (under s 269ZDA(3)(b)), considers relevant and the function each performs in the statutory process. Each must act in good faith and cannot be capricious or arbitrary in considering information or a matter to be relevant. It may be difficult to show, the more so in the case of the Minister, that the discretion miscarried where the selection of what the Minister or CEO considered to be relevant was or involved a matter of policy or opinion: cf Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J; Wu Shan Liang 185 CLR at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.
88 Division 5 of Pt XVB contemplates that the contents of the report of the CEO will have been prepared following an ordered process to address the statutory criteria to which I have referred. Those contents are, however, information not directions as to the exercise of his or her discretion that the Minister must consider before making a declaration. By structuring the process for preparation of the report of the CEO, the Parliament intended that the Minister should not overlook critical considerations in exercising his or her discretion to make a particular declaration under s 269ZDB(1)(a): cf Peko Wallsend 162 CLR at 44 per Mason J. And, the Minister was directed, in terms by the subsection, that the declaration was for the purposes of the two Acts.
89 Because s 269ZDB(1) gave the Minister the power to declare that a notice already issued under s 269TG(2) will operate differently in the future (including by being revoked wholly or partly) the statutory criteria which the Minister must take into account are those in s 269TG(2) itself which would warrant, at the time of decision under s 269ZDB(1), the making of a notice under review in its original form or in an amended or unamended form at the time of the review. This is reinforced by the terms of s 269ZDB(1)(a)(iii) since that paragraph refers to the new (i.e. different) variable factors that the declaration fixes. Importantly, s 269T(4E)(a) provided that in the case of an existing notice, for the purposes of a review under Div 5 of Pt XVB a reference to variable factors relevant to the review was a reference "… to the normal value, export price and non-injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice".
90 The character of a decision-maker's consideration of the appropriateness of anti-dumping measures after they have been first imposed is necessarily different to its character before any measure is in place. Once the measure has been determined, its existence may affect the operation of the market and the behaviour of participants in the market, including the exporter or exporters to Australia of the goods the subject of the measures. The stage at which consideration is given requires the decision-maker to have regard to the contemporaneous actual market and other circumstances so as to decide, first, whether dumping exists, and if so, secondly, whether that dumping has caused, is causing or is threatening to cause material injury to the Australian industry. In addition, when anti-dumping measures are in place, the decision-maker must also consider the effect of those measures and the consequences of their removal or amendment.
91 But the fundamental issue for the decision-maker is to determine whether, and if so what, anti-dumping measures are appropriate and adapted to serve the purposes of the Act at each time a decision must be made. Each stage will involve the decision-maker in evaluating actual market conditions and hypothesising about the effect of a proposed or existing anti-dumping measure having regard to the purposes of the Act. Those purposes recognise the necessity for, and the utility, of anti-dumping measures to secure the end to which Pt XVB is directed, namely, the protection of the Australian industry from unfair competition from dumped exports to Australia. The choices given to the Minister in s 269ZDB(1)(a) do not dictate that in approaching his or her selection any of those choices is a preferred or default position. Rather, the expression of choice in s 269ZDB(1)(a) and the process of a review under Div 5 of Pt XVB itself suggest that the CEO's recommendations and the Minister's decision will be to give effect to the appropriate and adapted measure or measures, if any, that the factual and other considerations reveal to the decision-maker as serving the purposes of the Act. That is, the task for the Minister under s 269ZDB(1)(a) is to consider what, if any, anti-dumping measures are justified having regard to the contents of the report of the CEO and any other information the Minister considers relevant.
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.
95 At the time of the review the market was apparently operating efficiently on materially higher prices than the existing notice under s 269TG(2) contemplated without any injury to Qenos (as the only Australian industry) being identified, let alone any injury related to Siam's dumping. This required the CEO in making the report, and the Minister, to address the purpose of the Act in s 269TG(2)(b). Instead, the report concluded that "… Customs is not satisfied that circumstances exist to recommend that measures should be revoked as they relate to [Siam] or to exporters generally". It then recommended, and the Minister accepted, that using increased volumes for variable factors, imports into Australia by Siam should have dumping duty increased from nil to a more substantive figure.
96 Such an increase was not a revocation. It was a new, substantive impost on Siam's product, made after a period of competition in the market at prices, involving dumping, that had not been found to injure or threaten Quenos' strongly performing business. Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ; Telstra 107 ALD at 502 [107]. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR at 256 [102]):
"It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them."
97 The reasons in the publicly available portion of Report 134 do not in terms explain how the CEO came to make the recommendation that the existing anti-dumping measures not be revoked or why, despite the absence of a finding that dumping by Siam had caused Qenos any injury, the CEO recommended that no revocation should occur. There was no explanation of any connection between the new measures, the current market and any past material injury or threat of future material injury in the public reasons of Report 134. Rather, the only statements that could amount to findings in that portion of the Report were statements that if the anti-dumping measures currently in existence were removed Customs was not satisfied that dumping would not cause material injury. As s 269TG(2)(b) emphasised, reinforced by the gateway provisions in ss 269ZA and 269ZC to which I have referred, and Art 11.1 of the implementation agreement, any anti-dumping measures must be justified on the basis that they can positively be seen as counteracting dumping that in fact is causing or is likely to cause injury in the sense for which the Act provides.
98 The WTO Appellate Body decisions recognised that in a review, no single prescriptive test or methodology necessarily would apply. The considerations in each review will need to address the facts and circumstances of the particular anti-dumping measures that are in place in the context of the current market and other factors: Oil Country Tubular Goods (AB-2004-4) at [283]-[294]; US Corrosion Resistant Steel (AB-2003-5) at [113]-[115]. Nonetheless, Art 11.1 identifies the key issue in a review as being the necessity to impose the anti-dumping duty "… to counteract dumping which is causing injury" (in the sense of actual or threatened injury). Here, the only injury that could be under examination (given the respondents' admission that in the review period there was no evidence or other material before them that any injury to Qenos was caused by Siam's exports) must have been the threat of future injury that could be based on the likelihood of a recurrence of past injury: see too the WTO panel decision in DRAMS (99-0256) at [6.28].
99 As the WTO Appellate Body concluded in Oil Country Tubular Goods (AB-2004-4) at [284], a determination of injury on a review requires positive evidence and an objective examination. Here, Report 134 made no finding of any actual or threatened injury caused or likely to be caused by Siam's dumping. Instead, it simply asserted that on the available evidence the CEO could not be satisfied that dumping by Siam would not cause material injury if the measures were revoked.
100 I am satisfied that at the time he made the declaration the Minister (and the CEO) did not consider or have regard to the likelihood of whether, if the notice were revoked, Siam's dumping threatened to cause material injury to Qenos. The consideration of this question was a matter to which fundamental weight had to be given in arriving at a decision to make a declaration: see Telstra 107 ALD at501-503 [103]-[112]; ss 269ZC(2)(b), 269ZD(2)(a)(i), 269ZDA(3)(a)(i), 269TG(2) and 269ZDB(1). The purposes of the Act and the Dumping Duty Act involved the legitimate, principled and limited imposition of dumping duty, in accordance with the tests in those Acts, to perform Australia's obligations (to the extent that the Parliament gave these effect in that legislation) under the implementation agreement.
101 Accordingly, I am of opinion that, in the circumstances, the test applied by the CEO and the Minister that they be satisfied "that dumping would not cause material injury if the measures were revoked" was not open to them. That was a jurisdictional error.