Consideration: Issue one
38 The scheme of Div 6A of Pt XVB of the Act requires the CEO, and ultimately the Minister, to consider the need to retain anti-dumping measures after a period of five years since they were first imposed or most recently imposed. The imposition of the measures and their continuation is authorised under Pt XVB so as to protect Australian industry from material injury that has been, or is being caused, or that is threatened to be caused by the dumping of goods. This purpose is emphasised in the terms of s 269ZHF(2). That requires that before recommending to the Minister to take steps to secure the continuation of anti-dumping measures currently in place, the CEO must be satisfied that their expiration would lead or be likely to lead to a continuation of or a recurrence of the dumping and the material injury that the measures were intended to prevent.
39 Thus, the formation of the requisite state of satisfaction by the CEO under s 269ZHF(2) is an essential precondition to the Minister being able to exercise his or her power under s 269ZHG(1) to decide whether or not to secure the continuation of the anti-dumping measures. And, the CEO's report under s 269ZHF, including the CEO's satisfaction, findings of fact, particulars of the evidence relied on and reasons to support the recommendations in accordance with s 269ZHF(2) and (5), must be considered by the Minister in arriving at a decision under s 269ZHG(1), together with any other information he or she considers relevant. The discretion of the Minister in s 269ZHG(1) is expressed in wide terms. Nonetheless, it must be exercised within proper limits as Stephen, Mason, Murphy, Aickin and Wilson JJ explained in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 where they said that:
"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view", to use the words of Dixon J in Browning ((1977) 74 CLR at p 505). In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at p 758)), "on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power"."
40 Here, the limits of the discretion, are to be found in the subject matter, scope and purpose of Pt XVB of the Act and, in particular, in the requirement of s 269ZHG(1) itself, that the Minister must consider the report of the CEO. In that consideration, the Minister must also consider, as a fundamental matter in exercising his or her discretion, the central finding of the report that, in accordance with s 269ZHF(2), the CEO was satisfied that the expiration of the measures would lead or be likely to lead to a continuation or recurrence of both the dumping and the material injury that the anti-dumping measure is intended to prevent.
41 Thus, a review under Div 6A of Pt XVB is not intended as a complete replication of the process under Div 3 involved in the initial imposition of anti-dumping measures. But, the continuation review under Div 6A is still directed to the purpose of preventing material injury or the threat of such an injury caused by dumping. So, in exercising his or her discretion under s 269ZHG(1), I am of opinion that the Minister must consider whether the existing measures are appropriate and adapted to achieve the purpose served by the measures identified in s 269ZHF(2) if they are to be continued.
42 The purpose of the measure under consideration by the CEO and the Minister in s 269ZHF(2), relevantly here, is to impose an anti-dumping duty that will equate to the sum provided in s 8(6) of the Dumping Duty Act. That requires that the dumping duty payable on goods "the subject of a notice under subsection 269TG …. (2)" of the Customs Act relevantly to be the difference between the amounts that the Minister ascertains to be the export price and the normal value of those particular goods. In evaluating what the duty must be, the Minister (and the CEO in making any recommendation) must evaluate the consequences of an expiration of the measures. Thus, s 269ZHF(2) addresses a number of possible scenarios including whether that expiration actually would lead, or alternatively would be likely to lead, to a continuation or recurrence of both the dumping and the material injury that the measures were intended to prevent.
43 Although, s 269ZHF(2) uses the words "a continuation of, or a recurrence" in relation to two existing facts, namely dumping and material injury, no party submitted that the CEO could not make a recommendation under s 269ZHF(2), or the Minister a decision to continue measures under s 269ZHG(1), where the original measures had been imposed only to meet a threatened material injury. While neither s 269ZHD(2)(b) nor s 269ZHF(2), expressly refers to a threat of material injury, Div 6A is concerned with the consequence of the expiration of existing measures, including those that are intended to prevent material injury being caused for the first time by dumping that would be threatened if there were no measures in place. The threat of material injury from dumping is a justification for the Minister giving a notice under s 269TG(2). It would be incongruous for Pt 6A of Div XVB to be construed in such a way that if that threat persisted after 5 years of effective measures that had counteracted it, Pt 6A did not allow the Minister to continue the measures.
44 I do not consider that I should adopt a narrow construction of the scope of a continuation or sunset review under Pt 6A that would prevent the Minister continuing measures that that had been effective in meeting a threat. There is no indication in Pt XVB that such a narrow construction would achieve a purpose of the Parliament. Nor, if the construction were open, does Pt XVB prevent a new application for anti-dumping measures being made and granted under Divs 2 and 3 of Pt XVB.
45 For the reasons below I am of opinion that the words "would be likely to lead" in s 269ZHF(2) can, and in a case like the present should, be read as applying directly to the expression "the dumping or subsidisation and the material injury that the anti-dumping measure is intended to prevent", without the meaning of that expression being qualified or restricted by the words "a continuation of, or a recurrence of".
46 There was no finding in Report 137 that actual injury was being suffered by Qenos as a result of the dumping by Siam. Therefore, each of the CEO and the Minister was obliged to consider the second scenario of whether the expiration of the measures would be likely to lead to both dumping and the relevant material injury. The scenarios adverted to in s 269ZHF(2) involve a consideration of future events based on an evaluation of the present position. When s 269ZHF(2) refers to the question of whether the expiration of the measures would lead to a continuation or recurrence, it is addressing the issue that arises where current dumping would in fact cause material injury were it not for the operation of the measures that are in place at the time. Ordinarily, this will involve the CEO, then the Minister, considering whether the removal of the dumping duty then in place would cause the Australian industry material injury. Ordinarily, this will be because the price of the imported goods would be sufficiently below that of its Australian competitor to cause or be likely to cause it material injury.
47 On the other hand, where the second limb of s 269ZHF(2) is relevant, namely whether the expiration of the measures "would be likely to lead" to dumping and material injury, the section requires a prediction to be made. The use of the word "likely" qualifies the nature of that prediction. Since s 269TG(2) authorised the use of the measures where there was a threat of material injury to an Australian industry caused by dumping, the character of the likelihood in s 269ZHF(2) will take its meaning from the purpose for which the original imposition of dumping duty under s 269TG(2) was imposed.
48 I am of opinion that the character of the threat necessary for the purposes of s 269TG(2) should be read consistently with the degree of likelihood necessary to satisfy the criterion in s 269ZHF(2) of being "likely to lead" to the dumping and material injury that an existing measure is intended to prevent. That character is governed by s 269TAE(2B). The threat must be of an injury that is foreseeable and imminent unless dumping measures were imposed. I am satisfied that the word "likely" in s 269ZHF(2) should be interpreted as meaning more probably than not.
49 First, s 269ZHF(2) uses the word "likely" as part of "would lead, or would be likely to lead". This draws a distinction between a prediction of something definite ("would lead") and something less definite ("would be likely to lead"). But the satisfaction of either prediction will have the result of the CEO recommending the continuation of a measure "intended to prevent" the predicted event. This context suggests that the Parliament used "likely" to convey "more probable than not", rather than a lesser degree of certainty. Secondly, the conditions that had justifyed the giving of a notice under s 269TG(2), required the Minister to be satisfied, that a threat of injury was "foreseeable and imminent unless dumping … measures were imposed" in accordance with the standard imposed in s 269TAE(2B). It would be consistent with achieving the original purpose of a notice under s 269TG(2) addressing such a threat of material injury, to construe the prediction required by the word "likely" in s 269ZHF(2) in the same manner. Thirdly, this construction is also confirmed by the Explanatory Memorandum for the 1998 amendments that stated that s 269ZHF:
"… prohibits the CEO from recommending the continuation of anti-dumping measures unless he or she is satisfied the factual grounds that must be present prior to the taking of anti-dumping measures, set out in Division 3, have been satisfied." (bold emphasis added)
50 Fourthly, this construction is consistent with Art 11.3 of the implementation agreement providing that "the expiry of the duty would be likely to lead to a continuation or recurrence of dumping an injury" in the context of sunset reviews, such as those contemplated by Div 6A. The WTO Appellate Body said of Art 11 in Corrosion Resistant Carbon Steel (AB-2003-5) at [110]-[113]:
"Turning to the word "determine" in Article 11.3, we note that the dictionary definitions of this verb include "[c]onclude from reasoning or investigation, deduce" as well as "[s]ettle or decide (a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter". (Shorter Oxford English Dictionary, 5th ed, W.R. Trumble, A. Stevenson (eds) (Oxford University Press, 2002), Vol I, p 659.) As for "review", definitions of this noun include "[a]n inspection, an examination" and a "general survey or reconsideration of some subject". (Ibid., Vol II, p 2567.) Finally, the adjective "likely" is defined as "[h]aving an appearance of truth or fact; that looks as if it would happen, be realized, or prove to be what is alleged or suggested; probable; to be reasonably expected". (Ibid., Vol I, p 1595.)
This language in Article 11.3 makes clear that it envisages a process combining both investigatory and adjudicatory aspects. In other words, Article 11.3 assigns an active rather than a passive decision-making role to the authorities. The words "review" and "determine" in Article 11.3 suggest that authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis of information gathered as part of a process of reconsideration and examination. In view of the use of the word "likely" in Article 11.3, an affirmative likelihood determination may be made only if the evidence demonstrates that dumping would be probable if the duty were terminated - and not simply if the evidence suggests that such a result might be possible or plausible.
In addition to the text of Article 11.3, certain other provisions of the Anti-Dumping Agreement confirm that sunset reviews must conform to the principles outlined above. Article 11.4 applies the provisions of Article 6 regarding "evidence and procedure" to reviews, and Article 12.3 applies the provisions of Article 12 on "Public Notice and Explanation of Determinations" to reviews. Thus, even though the rules applicable to sunset reviews may not be identical in all respects to those applicable to original investigations, it is clear that the drafters of the Anti-Dumping Agreement intended a sunset review to include both full opportunity for all interested parties to defend their interests, and the right to receive notice of the process and reasons for the determination.
Article 11.3 states that, notwithstanding the provisions of Articles 11.1 and 11.2, Members "shall" terminate an anti-dumping duty "unless" the authorities make an affirmative likelihood determination in a sunset review. This confirms that the mandatory rule in Article 11.3 applies in addition to, and irrespective of, the obligations set out in the first two paragraphs of Article 11. This also suggests to us that authorities must conduct a rigorous examination in a sunset review before the exception (namely, the continuation of the duty) can apply. In addition, our view of the exacting nature of the obligations imposed on authorities under Article 11.3 is supported by a consideration of the implications of initiating a sunset review. The last sentence of Article 11.3 allows the relevant duty to continue while the review is underway, and Article 11.4 contemplates that the review process may take up to one year. These provisions create an additional exception to the requirement that anti-dumping duties will be terminated after five years, permitting a Member to maintain the duty for the period during which the review is ongoing, regardless of the outcome of that review. This, too, suggests that the drafters of the Anti-Dumping Agreement saw the sunset review as a rigorous process that can take up to one year, involving a number of procedural steps, and requiring an appropriate degree of diligence on the part of the national authorities." (emphasis added)
51 In Swan Portland 28 FCR at 144-145, Lockhart J examined the nature of a determination whether material injury to an Australian industry producing like goods to those dumped has been, or is being caused, or is threatened. He said that such a determination was not an exercise of counting heads of markets, production or distribution centres or things of that kind and that:
"It is essentially a practical exercise designed to achieve the objective of determining whether, when viewed as a whole, the relevant Australian industry is suffering material injury from the dumping of goods."
And, he went on to emphasise that the finding of injury depends on the facts of the case and inevitably involves a question of degree, balancing all relevant considerations and integers, before concluding whether or not the dumping constitutes material injury to the Australian industry. That approach was approved by Black CJ, Neaves and von Doussa JJ in ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 576, 577-578. The Full Court held that if the Australian ind`ustry had suffered detriment from a number of probable causes, then s 269TG required a determination whether there was a separate material injury or material incremental injury caused by the dumping over and above detriment caused by other factors: ICI Australia 34 FCR at 579. While in each of those cases the Court was considering the legislation in an earlier form than that it presently takes, those observations continue to assist in the construction of the present statutory scheme: see e.g. Schaefer 156 FCR at 115-116 [147]-[149] per Jacobson J.
52 After finding that Siam was dumping, the reasoning in Report 137 did not address expressly the question of the likelihood of material injury being caused by that dumping. Rather, it used the expressions "… imports of [the product] from Thailand, if dumped have the potential to cause injury to the Australian industry producing like goods" and, the commencement of slowing the regional and Australian markets was "likely to create an environment where the Australian industry is more susceptible to injury caused by dumping". Those "findings" did not address the question of the likelihood of injury. The concepts that the Report used of potential of, and greater susceptibility to, injury do not describe any injury, let alone a material injury that is likely to be caused by dumping if the measures expire. The CEO and Minister did not make a quantitative assessment about, or undertake the practical exercise of assessing, whether material injury to Qenos was likely if the measures expired. The "findings" I have just identified provided no basis for a conclusion that dumping would, or would be likely, to cause material injury to Qenos if the measures expired.
53 Report 137 did not make a finding that it was likely (i.e. more probable than not) that dumping by Siam would cause material injury to Qenos if the measures expired. The vapid assertions that there was potential of, or greater susceptibility to, injury did not address the statutory requirement in s 269ZHF(2) for the continuation of the measures that there was, at least, the existence of the likelihood of material injury being caused to Qenos by Siam's dumping.
54 I am of opinion that the respondents applied the wrong test and failed to ask themselves the correct question for the purposes of ss 269ZHF(2) and 269ZHG(1) in arriving at their finding in Report 137 that it was likely that dumped imports from Thailand, and Siam, would cause material injury to Qenos if the measures expired. It follows that each decision of the respondents was not made according to law.