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[1995] FCA 210
Federal Court of Australia
1995-04-06
Tamberlin JJ, Moore J
Original judgment source is linked above.
h) ("the Act"). The review concerned an application by Rocklea Spinning Mills Pty Limited ("Rocklea") lodged in December 1992 under s 269TB of the Act seeking the publication by the Minister of a countervailing duty notice on cotton yarn exported or proposed to be exported to Australia from Pakistan. The Minister has a discretion whether to issue such a notice. Such a notice is published under s 269TJ and under the mechanism of s 10 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) ("Anti-Dumping Act") a countervailing duty is imposed on the goods. Such a duty is aimed to offset the effect of the assistance given by the Government of the exporting state. The delegate of the Comptroller-General of Customs ("ACS") reported in May 1993 that there were not sufficient grounds for the publication of a countervailing duty notice in respect of the cotton yarn. The ADA thereafter reviewed this decision and in August 1993 confirmed the negative preliminary finding of ACS that such a notice should not be published. This decision was the subject of the application for judicial review. At the outset of this application the respondents raised the question whether the actions of the Pakistan government under consideration by the ADA could amount in law to the provision of a payment or grant, directly or indirectly, upon the production, manufacture, carriage or export of cotton yarn, which could be characterised as "a subsidy, bounty, reduction or remission of freight or other financial assistance" within the meaning of s 269TJ(1) of the Act. The ADA's argument before the trial judge was that the actions of Pakistan in implementing its cotton policy could not be so characterised, with the result that the challenge to the ADA's decision must fail. The only decision open to the ADA, it was argued, was to make a negative preliminary finding. Any reviewable error in a consideration of the merits was immaterial to that decision. The respondents applied for and were granted a determination of the construction of s 269TJ as a preliminary question, his Honour deciding it in favour of the respondents by holding that what is described as the "cotton policy" of the Pakistan government did not come within s 269TJ. This is the decision now under appeal. Section 269TJ of the Act provides as follows: " 269TJ (1) .... where the Minister is satisfied, as to any goods that have been exported to Australia, that: (a) in the country of origin or the country of export of the goods, there has been paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of those goods a subsidy, bounty, reduction or remission of freight or other financial assistance; 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 .... the Minister may, by notice published in the Gazette, declare that section 10 of that Act applies to those goods.... (3) Where the export of a consignment of goods to Australia has been under consideration by the Minister with a view to determining whether or not a declaration should be made under this section in relation to the goods in the consignment or to like goods, the Minister may: (a) give notice in writing to the Government of the country of origin, or of the country of export, of the goods in the consignment or to the exporter of the goods in the consignment stating that: (i) the Minister is of the opinion that it would be appropriate for the Government or exporter to whom the notice is given to give an undertaking in accordance with paragraph (b); and (ii)an undertaking in the terms set out in the notice may be satisfactory to the Minister; and (b) whether or not a notice has been given to the Government of the country of origin, or of the country of export, or to the exporter in accordance with paragraph (a), suspend his or her consideration of the export of that consignment if he or she is given and accepts: (i) an undertaking by the Government of the country of origin, or of the country of export, of the goods in the consignment, in terms that are satisfactory to the Minister, that that Government will, in relation to any future export trade to Australia in like goods, review any financial assistance by that Government and make any changes that may be found to be necessary to avoid causing or threatening material injury to an Australian industry producing like goods or hindering the establishment of such an Australian industry; or (ii)an undertaking by the exporter of the goods in the consignment, in terms that are satisfactory to the Minister, that the exporter will so conduct his or her future export trade to Australia in like goods as to avoid causing or threatening material injury to an Australian industry producing like goods or hindering the establishment of such an Australian industry.... (4) Where the Minister is satisfied that: (a) under the law of a country other than Australia there are imposed on goods of a particular kind that are exported from Australia to that country special duties of customs in the nature of countervailing duties; and (b) those duties are imposed because it is alleged that there is paid or granted, directly or indirectly, upon the production, manufacture, carriage or export of goods of that kind, a subsidy, bounty, reduction or remission of freight or other financial assistance; and (c) those duties are imposed without regard to, or without proper regard to, whether or not material injury to an industry in that country producing like goods has been or is being caused or is threatened, or the establishment of such an industry in that country has been or may be materially hindered, by reason of the payment or grant of that subsidy, bounty, reduction or remission of freight or other financial assistance; the Minister may, by notice published in the Gazette, declare that section 10 of the Anti-Dumping Act applies to goods specified in the notice ... (5) Where the Minister is satisfied that: (a) under the law of a country other than Australia there are imposed on goods of a particular kind that are exported from Australia to that country special duties of customs in the nature of countervailing duties; and (b) those duties are imposed because it is alleged that: (i) prescribed assistance is paid or granted, directly or indirectly, in relation to goods of that kind that are exported from Australia to that country; and (ii)material injury to an industry in that country producing like goods has been or is being caused or is threatened, or the establishment of such an industry in that country has been or may be materially hindered, by reason of the payment or grant of that prescribed assistance; and (c) prescribed assistance of the same kind as, or a substantially similar kind to, the prescribed assistance by reason of which the duties referred to in paragraph (a) were imposed has been paid or granted in relation to goods exported from that country to Australia and material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of such an Australian industry has been or may be materially hindered, by reason of the payment or grant of that prescribed assistance; the Minister may, by notice published in the Gazette, declare that section 10 of the Anti-Dumping Act applies to goods specified in the notice... (7) A reference in this section to prescribed assistance in relation to goods is a reference to any assistance, incentive, exemption, privilege or benefit (whether financial or otherwise) in relation to goods other than the payment or grant of a subsidy, bounty, reduction or remission of freight or other financial assistance on the production, manufacture, carriage or export of the goods. (8) Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the amount of any subsidy, bounty, reduction or remission of freight or other financial assistance in relation to goods to be ascertained for the purpose of this section, that amount is to be taken to be such amount as is determined by the Minister having regard to all relevant information. (9) If the Minister is satisfied that adequate information as to the amount, cost or value of the prescribed assistance in relation to goods cannot be obtained for the purposes of this section, the amount, cost or value of that prescribed assistance is to be taken to be such amount, cost or value as is determined, in writing, by the Minister. (10) For the purposes of this section, the benefit accruing to an exporter from the use of dual or multiple rates of exchange in relation to the proceeds of export sales is to be taken to be financial assistance paid to that exporter." The Decision of the Authority In order to resolve the preliminary question it is necessary to understand the nature of the apparent cotton pricing policy of the Pakistan government. That policy is conveniently set out in the August 1993 Report of the ADA as follows: "5 SUBSIDISATION 5.1 Introduction Under both the GATT code and Australian legislation, goods imported into Australia which have been produced or exported with the benefit of a (direct or indirect) subsidy can be subjected to countervailing action if the subsidy is found to have caused or to threaten material injury to a local industry producing like goods. Rocklea, in its application to Customs, claimed that policies of the Government of Pakistan were aimed at increasing the production and export of cotton yarn. Rocklea claimed that, because of these policies, Pakistani manufacturers and exporters of yarn had benefited from a subsidy or financial assistance.... 5.2 Relevant policies of the Government of Pakistan From the documents before Customs, it appears that the production and export of cotton lint, yarn and fabrics in Pakistan are strongly influenced by Government policies. The policies of prime interest to the present inquiry are those affecting the competition, in the purchase of raw cotton, between Pakistani producers of cotton yarn on the one hand and Pakistani exporters of raw cotton on the other. Without Government intervention these two groups of purchasers would presumably pay much the same prices for raw cotton; and since one of the groups (the exporters) would immediately be selling the raw cotton on the world market, the domestic prices would presumably be related to world prices. Government intervention may have allowed Pakistani producers of cotton yarn to acquire raw cotton at much less than the world price, and may thus have formed an indirect subsidy on the production of yarn. The policies in question appear, from the documents available to Customs, to be both highly complex and constantly changing. The following description begins with an account of those policies as they applied during 1991. Two 'policy prices' were set by the Government: a Minimum Export Price (or 'MEP') and a 'benchmark' price. Each of these varied over time: the MEP was set at 3 p.m. each day, the benchmark was changed less frequently. The MEP was always well above the benchmark. The prime effect of these two prices was on exporters of raw cotton: an exporter was not permitted to sell cotton at less than the Minimum Export Price; and when cotton was exported at the MEP or more, the Government collected, as an export duty, a percentage of the difference between the actual export price and the benchmark. The percentage varied between 60 and 100 per cent. An example using hypothetical prices may make the idea clearer. Suppose the benchmark were set at 60 and the MEP at 100. Then an exporter would not be allowed to export at a price of less than 100; and if he exported at a price of 100 or more (at a price of 105, say) the Government took as duty a percentage of the difference between that price and the benchmark - eg., when the percentage was 100 the duty would be 45 and the exporter would receive 60. The exporter, like the Pakistani manufacturers of cotton yarn, had to buy raw cotton in the domestic Pakistani market. The relationships between that market price and the 'policy prices' set by the Government were thus crucial to the behaviour of the exporter, and hence to the competition experienced by the yarn manufacturers. Some settings (e.g., an export duty of 100 per cent and a benchmark set below the price in the domestic market) would mean that there would be few, if any, exports: an exporter would have to pay more for raw cotton (the domestic price) than he could obtain from the export sale (the benchmark) and would thus make a loss on the transaction. Pakistani manufacturers of yarn would thus be essentially the only purchasers of raw cotton. If, in contrast, the policy settings were such that the benchmark was above the domestic price of raw cotton, exporters could enter the market : they would buy at the domestic price, get the (higher) benchmark price from the export sale (or more, if the duty rate was less than 100 per cent) and thus trade profitably. Some of the information available to Customs suggests that Pakistani government agencies ensured that at the beginning of each season the policy prices were so set as effectively to preclude exports, thus reserving the raw cotton for the Pakistani manufacturers of yarn. Later in the season (that information suggested), when the yarn manufacturers had purchased their requirements, the policy settings would be altered and exports of raw cotton could begin. As noted earlier, the precise form of the policy seems to change frequently. Thus between late 1991 and early 1992, the duty charged on exports of raw cotton was, it seems, reduced from the whole of the amount by which the export price exceeded the benchmark to 60 per cent of that amount.... From all of the above, the Authority concludes that throughout the period under inquiry the Government of Pakistan has had in place policy instruments providing a (variable) disincentive to the export of raw cotton and thus lowering the competition faced by Pakistani yarn manufacturers in purchasing raw cotton. There are conflicting accounts, in the material available to Customs, of the reasons for these policies. The Authority is in no doubt, however, that one of their effects has been the provision of assistance to manufacturers of cotton yarn." (Emphasis added) The basic issue before the Court below was whether that assistance was "other financial assistance" within the meaning of s 269TJ of the Act. In relation to quantification of the assistance the ADA said: "Customs decided that the best method of estimating the subsidy-equivalent of the Pakistani Government's policies was to assess the cost advantage accorded to Pakistani yarn manufacturers by the artificially reduced prices of raw cotton: i.e. the difference between the prices for raw cotton paid by the manufacturers and the corresponding world prices.... The Authority concludes that the Pakistan Government's policies have conferred an advantage on manufacturers of cotton yarn in Pakistan, and that that advantage has been equivalent to a subsidy of about four per cent of the export prices of cotton yarn manufactured in Pakistan, in each of 1991-92 and the first half of 1992-93." The conclusion of the ADA on this point was as follows: " 5.4 Is the subsidy countervailable? Customs' assessment In the course of its Preliminary Finding inquiry, Customs considered whether the financial assistance available was countervailable under the provisions of section 269TJ of the Customs Act. Customs stated in its report : '... that ss. 269TJ(1) and (2) do not require financial assistance to be a charge on the public account. To this end Customs was satisfied that the effects of the Government of Pakistan's cotton policies could be countervailed in terms of ss. 269TJ(1) and (2) if they financially assisted the production of cotton yarn in Pakistan and caused or threatened to cause material injury to the Australian industry producing like goods'. The Authority's assessment The Authority agrees with Customs that a subsidy as defined under section 269TJ of the Customs Act does not require that a payment is made from the public account to the producers concerned. Nevertheless, the Authority has considerable reservations as to whether the effects on Pakistani yarn producers of the cotton policy of the Government of Pakistan constitute a countervailable subsidy for the purposes of section 269TJ of the Act. The section speaks of 'a subsidy, bounty or other financial assistance'; and that wording seems to make plain that assistance, to be countervailable, should take the form of financial assistance (whether or not from the public purse). It is of course possible to estimate a subsidy-equivalent of the assistance policies here under inquiry; but (from the information before Customs) the assistance does not seem to be per se financial. The fact that a company benefits from a particular government initiative does not of itself mean that the benefit bestowed is a countervailable subsidy. For the purpose of this review of a preliminary finding, however, the Authority is prepared to conclude that the assistance given to Pakistani yarn exporters may constitute a countervailable subsidy." It is thus clear that the ADA assumed but did not finally decide, for the purpose of giving its decision, that the cotton policy could, as a matter of law, be a subsidy which could attract a countervailing duty. The ADA, however, did not find that the cotton policy posed a threat of material injury to the Australian yarn producing industry. Grounds of Appeal The claimed errors of law on the part of the primary judge were expressed to be: 1. in finding that the phrase "subsidy, bounty, reduction or remission of freight or other financial assistance" as contained in subsection 269TJ(1) of the Customs Act is restricted to that class of assistance which has resulted from the expenditure of moneys by a government or the government foregoing revenue. 2. in the alternative, in finding that the conduct of the government of Pakistan as described by the Anti-Dumping Authority did not involve the provision of a "subsidy, bounty, reduction or remission of freight or other financial assistance" and thus did not constitute conduct to which 269TJ(1) of the Customs Act is directed. 3 in the alternative, that the material before his Honour was insufficient to find whether the conduct of the government of Pakistan as described by the Anti-Dumping Authority involved the provision of a "subsidy, bounty, reduction or remission of freight or other financial assistance", and that His Honour erred in proceeding to make such a finding. First and Second Grounds of Appeal The primary question is whether, on its true construction, the expression "subsidy, bounty, reduction or remission of freight or other financial assistance" within the meaning of s 269TJ(1) of the Act requires that the class of assistance must result from the expenditure or foregoing of revenue by the Government of the exporting country. The resolution of this question involves close examination of the language used in the legislation. Section 269TJ(1) does not expressly refer to financial assistance by or on behalf of governments. However, it is clear that Part XVB of the Act is designed to reflect and implement the international rights and obligations in respect of countervailing and anti-dumping measures, assumed by Australia, as a result of its membership of GATT and the Countervailing Code. Moreover, the notion of a payment or grant of financial assistance is more in keeping with a monetary sum than the conferral of an indirect price advantage which does not emanate from the state signatory. The parties to those agreements are sovereign states, not citizens of states. In support of its submission that there must be government action the ADA referred to s 269TJ(3) which provides for the Minister to give written notice to the government of the country of export seeking an undertaking from such government. This lends some support to the proposition that the targeted measures or financial assistance are governmental in character. The appellant pointed out that there is also provision in that subsection for an undertaking being given by the exporter of the goods to the Minister to modify the exporter's conduct. However, this provides simply a further or alternative remedy available to the Minister and does not mean that the conduct in question is non-governmental in character. Subsections 269TJ(4) and (5) are concerned with the imposition of duties of customs on goods exported from Australia. This must refer to governmental action since it is governments that impose duties not citizens. Subsection (5) refers to the concept of "prescribed assistance". This is defined in subsection (7) to refer to any assistance, incentive, exemption, privilege or benefit (whether financial or otherwise) in relation to goods other than forms of assistance covered in subsection (1), namely the payment or grant of a subsidy, bounty, reduction or remission of freight or other financial assistance. This special definition would be wide enough to cover the Pakistan cotton policy here under consideration. It is substantially wider than the categories set out in subsection (1). The concept of "financial assistance" is narrower than the concept of any assistance, incentive, exemption, privilege or benefit. The relevance of subsection (7) is that s 269TJ envisages that there is a broad spectrum of assistance or benefits beyond the subsection (1) concepts of financial assistance which may be non-financial in nature and which are dealt with in a different way to the categories in subsection (1). These broader terms could have been but were not employed in subsection (1), suggesting that a more limited construction of that provision was intended. The distinction made in subsection (7) is followed through in subsections (8) and (9) which deal with the quantification of the assistance. When speaking of financial assistance the reference is to "amount" but in relation to the wider category of prescribed assistance the reference is to "amount, cost or value". The expression "amount" is more apposite to a payment or remission of a monetary sum rather than to a more generalised assessment of value. A further significant matter is that, in subsection (10), the scope of financial assistance is extended to cover a benefit accruing to an exporter from the use of dual or multiple rates of exchange in relation to the proceeds of export sales. This provision is clearly a "deeming provision" which is used in s 269TJ to impose for the purpose of that section an artificial construction of the expression "financial assistance" which would not otherwise apply: Cf Re Application of the News Corp Ltd (1987) 15 FCR 227 at 239 per Bowen CJ, and cases there cited. If the expression in subsection (1) had the wider meaning contended for by Rocklea, such an extension would not be necessary because such a mechanism would be included within the term itself. This extension is not in our view a mere matter of clarification of circumstances already covered by subsection (1). It was submitted that this provision was only an extension of the term "paid" but in our view the provision is an extension of the term "financial assistance " as well. Also worth noting is the reference to "benefit accruing" which suggests that there is an enlargement of the more direct term "financial assistance." Reference was made to a further extending provision in s 269TAG(1) in relation to allowances in respect of the expression "reduction of" freight but this does not in our view assist in considering the question before us. Again, it is an extension which would not have been necessary if the expressions used in s 269TJ(1) are interpreted in the broader manner contended for by Rocklea; that is, to focus on ultimate effect rather then the specific methods of providing financial assistance. Reverting to s 269TJ(1), it is necessary that the financial assistance be "paid" or "granted". The term "paid" even when coupled with the term "indirectly" denotes a transfer of funds from one party to another. That does not arise in our view as a result of the Pakistan cotton policy. The term "granted" connotes a relationship of grantor and grantee which even if indirect, cannot be said to exist under the Pakistan cotton policy. It is true that the term "granted" is a wider term than "paid" but when read in conjunction with the rest of the subsection referring to "subsidy, bounty, reduction or remission of freight or other financial assistance" and the other subsections of s 269TJ the better view is that the term "granted" is not apt to apply to the operation of the cotton policy which does not confer any benefit by way of direct or indirect grant of what could properly be described as "financial assistance". Australian Decisions In Vacuum Oil Co Pty Ltd v Queensland (1934) 51 CLR 108, the High Court held that a licensing scheme to sell motor spirit which required the licence holders to purchase and pay for at a prescribed rate a quantity of power alcohol manufactured in Australia related to the quantity of motor spirit purchased, did not amount to the grant of a "bounty" within s 90 of the Constitution. The obligation was characterised by Starke J at 120 as being to pay a price or sum which persons licensed to sell motor spirit are compelled to pay for power alcohol. In reaching this view he examined the obligation imposed on the holder of the licence. In the same case Dixon J at 125 said: " The liability to make the payment is not imposed by the enactment itself, but arises only when the suppliers of petrol proceed to fulfil the requirements of the enactment and purchase power alcohol; and then liability arises exclusively out of the contract of sale.....The payment received by the seller of power alcohol is not a bounty on the production of goods. It is not paid for or on behalf of the State, or any authority under the State. It is not a premium, but the price on a sale." The emphasis in this analysis is on the direct legal liability or right created by the legislation and not its ultimate and indirect commercial effects. Of course in that case the Court was dealing with the provisions of s 90 of the Constitution but notwithstanding the difference in context we consider that the observations of the Court provide some assistance in the resolution of the question before this Court as to what is meant by the concept of a "bounty". The fixing of a price under the Pakistan cotton policy, coupled with the taxation measures, does not have the immediate legal effect of a payment or grant to the exporter. There is no liability or obligation imposed on the government to make a payment or grant to assist the exporters. The advantage or benefit to the exporter arises from the action or behaviour of buyers of raw material under the regulatory pricing scheme set up pursuant to the cotton policy. We were also referred to the decision in Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120. Again, in a different legislative context the Court considered that the term "aid" meant direct monetary assistance. It was pointed out by Stephen J at 140 that the term "aid" may have a very wide meaning, as when it describes assistance generally, but it also has other meanings much narrower and more specific in character. He considered, in the legislative context of s 91 of the Constitution, that it had a meaning akin to a "pecuniary grant in aid". Other judges of the Court took a similarly narrow approach: see Barwick CJ at 126 ("granting money"); Gibbs J at 135 ("monetary aid"); and Mason J at 159 ("fiscal aid"). These two decisions, although reached in different contexts to that presently before this Court, do afford relevant guidance in resolving the present question in favour of a narrower construction of s 269TJ(1). The expressions used in that provision are consistent not so much with regulatory schemes but rather with specific types of action or assistance. The construction of the language of Part XVB is not without difficulties, but on considering the language used in s 269TJ and reading the section as a whole, our view is that the section is not capable of extending to the cotton policy of Pakistan. That is because there is no payment or grant by the government of pecuniary or financial assistance to Pakistani exporters of yarn either directly or indirectly. This conclusion is reinforced by a consideration of the international agreements and the decisions relating to these agreements to which reference is made below. International Framework Decisions of Australian Courts make it clear that in considering provisions such as s 269TJ, where the meaning is not clear, the courts can have regard to the international agreements and codes to which Australia is a signatory. These include what was known at the relevant time as the General Agreement on Tariffs and Trade ("GATT") and the Countervailing Code: see Atlas Air Australia Pty Ltd v The Anti-Dumping Authority (1990) 26 FCR 456 at 469. These agreements embody the international rights and obligations of the parties in relation to international trade and the extent to which and circumstances in which governments may subsidise export goods and the action which can be taken in relation to goods exported to states which are subsidised in the country of origin. Part XVB of the Act deals with the same subject matter as the international agreements and is intended to reflect and implement Australia's international rights and obligations under them: ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 568. In the ICI Case a Full Court of this Court considered in detail the history of the legislative scheme by which countervailing measures are imposed by Australian law in Part XVB of the Customs Act, the ADA Act and the Anti-Dumping Act. That history is not repeated: see 34 FCR at 568-572. Guidance from International Agreements Because Part XVB of the Customs Act is part of a legislative scheme designed to reflect and implement Australia's rights and obligations as set out in the GATT and the Countervailing Code, it is permissible to resort to the terms of those agreements for assistance in cases of ambiguity or uncertainty. The courts should in cases of doubt favour a construction of the Act which accords with the obligations of Australia under such international agreements, otherwise uncertainty would ensue if municipal courts gave a myriad of different constructions to the same basic concepts: see ICI id; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38. The relevant provisions of GATT were as follows: "ARTICLE VI Anti-dumping and Countervailing Duties 3. No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term "countervailing duty" shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly or indirectly, upon the manufacture, production or export of any merchandise." Article XVI of GATT dealt with the obligations of a party to GATT who grants or maintains any subsidy and provided: "ARTICLE XVI Subsidies Section A - Subsidies in General 1. If any contracting party grants or maintains any subsidy, including any form of income or price support, which operates directly or indirectly to increase exports of any product from, or to reduce imports of any products into, its territory, it shall notify the CONTRACTING PARTIES in writing of the extent and nature of the subsidization, of the estimated effect to the subsidization on the quantity of the affected product or products imported into or exported from its territory and of the circumstances making the subsidization necessary...." Article 7 of the Countervailing Code provided: "ARTICLE 7 Notification of subsidies 22 1. Having regard to the provisions of Article XVI:1 of the General Agreement, any signatory may make a written request for information on the nature and extent of any subsidy granted or maintained by another signatory (including any form of income or price support) which operates directly or indirectly to increase exports of any product from or reduce imports of any products into its territory." The footnote to this Article provided: "22 In this Agreement, the term "subsidies" shall be deemed to include subsidies granted by any government or any public body within the territory of a signatory ..." Article 9 of the Countervailing Code provided: "ARTICLE 9 Export subsidies on products other than certain primary products 1. Signatories shall not grant export subsidies on products other than certain primary products. 2. The practices listed in points (a) to (1) in the Annex are illustrative of export subsidies." The Annex was, by Article 9(2), to be treated as an integral part of the Countervailing Code. The Annex provided as follows: " ANNEX ILLUSTRATIVE LIST OF EXPORT SUBSIDIES (a) The provision by governments of direct subsidies to a firm or an industry contingent upon export performance. (b) Currency retention schemes or any similar practices which involve a bonus on exports. (c) Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments. (d) ... (e) The full or partial exemption, remission, or deferral specifically related to exports, of direct taxes or social welfare charges paid or payable by industrial or commercial enterprises. (f) The allowance of special deductions directly related to exports or export performance, over and above those granted in respect to production for domestic consumption, in the calculation of the base on which direct taxes are charged.
(g) The exemption or remission in respect of the production and distribution of exported products, of indirect taxes in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption. (h) ..... (l) Any other charge on the public account constituting an export subsidy in the sense of Article XVI of the General Agreement." Both parties to this Appeal have invoked these agreements in aid of their submissions. The following features of the international agreements are important: 1. The contracting parties to the agreements are sovereign states and this supports the view that the provisions are directed to action by governments and public bodies. 2. GATT Article VI was concerned with the grant of a bounty or subsidy and extends to cover any special subsidy to the transportation of a particular product. In section 269TJ(1) the payment or grant is extended to include "reduction or remission of freight or other financial assistance". These expressions have been selected to implement the treaty provisions which are basically directed to subsidies and bounties. In other words, the extended reference to "financial assistance" is within the context of a provision designed to implement Article VI of GATT which is concerned with countervailing specific types or forms of financial assistance namely a subsidy or a bounty. 3. Article XVI of GATT in dealing with subsidies in general was directed to any contracting party (that is to say governments or their agents) granting or maintaining any subsidy, including income or price support. 4. Article 7 of the Countervailing Code also referred to a subsidy by another signatory. This again clearly refers to a governmental body. 5. Note 22 to Article 7 of the Countervailing Code (which is the agreement on interpretation and application of Articles VI, XVI and XXIII of GATT), provided that "subsidies" shall be deemed to include subsidies granted by any government or any public body within the territory of a signatory. Again, the concern is with governmental action or action by a public body. 6. Article 9 of the Countervailing Code prohibited export subsidies on certain products by signatories - again, a reference to states or governments. 7. When the illustrative list of export subsidies referred to in Article 9 of the Code, as set out in the Annex, is examined, it is clear from the illustrations given that: (a) they basically relate to measures taken by governments or governmental agencies; (b) they are directed to payments or remissions of moneys; (c) they relate to charges on the public account. See paragraph (l) (d) the emphasis in the examples is on the payment or foregoing of pecuniary sums. The word "charges" is apposite to include foregoing of revenue such as by using tax exemptions as well as payment of monetary sums. Of course, the Annex of illustrative examples of subsidies was not intended to be exhaustive or all inclusive but it does provide useful guidance as to the interpretation of the concept of subsidy or bounty in the GATT and the Countervailing Code. Paragraph (l) gives an indication that the framers of the Code intended that the preceding examples are designed to come within the description of "a charge on the public account". This indication supports a narrower interpretation of s 269TJ than that contended for by the appellant. In relation to clause (c) of the Annex which was relied on by the appellant and which refers to measures "provided or mandated by governments", we consider that the expression "mandated by governments" should be read in the light of paragraph (l). Paragraph (c) can be interpreted consistently with paragraph (l) to refer to a "government or a governmental agency or public body under its control" which grants more favourable rates as to transport. The submission was made in relation to paragraph (c) that by reason of the term "mandated" it was not necessary that the actual charges should be imposed by governments themselves, but could be ordered to be implemented by private enterprises. Hence it was sought to argue that the terms "subsidy" or "bounty" were designed to encompass regulatory schemes imposed by governments but which did not involve the government itself in making any payments, grants or charges which were imposed on the public purse. We do not think that the use of the words "or mandated" in paragraph (c) was intended to have such an effect, particularly since it can be read consistently with paragraph (l). The European Court of Justice and GATT Decisions Reference was made to two decisions of the European Court of Justice in EEC Seed Crushers' and Oil Processors' Federation (Fediol) v Commission of the European Communities (1988) ECR 4155 (Argentina) and at 4193 (Brazil) respectively. The issue was whether the concept of subsidy "necessarily involved a charge on the public account". The Court decided that it did. The Court concluded in the first of the cases, contrary to the Report of the Advocate General, that a differential tax imposed by the Government of Argentina of 25% for exports of soya beans and of 10% for exports of products intended to be crushed or processed, such as soya meal, did not amount to an export subsidy because the concept of an export subsidy necessarily required a financial burden borne directly or indirectly by public bodies. This conclusion was largely derived from the effect of clause (l) of the Annex of illustrations, referred to above, which was repeated in the relevant regulation under consideration. The Court considered that such a charge could arise in the form of a payment, exemption or remission of debts by government or governmental bodies. In that case, notwithstanding the differential tax, since there was no such charge in the Argentinian measure the Court held that it was not a subsidy and upheld the decision of the Commission. Fediol submitted that "subsidy " in the relevant regulation did not presuppose a charge on the public account and that a broad construction of a "subsidy" should be taken. Fediol emphasised the end result of the measures. These submissions were rejected. The decision was reached notwithstanding that it was clear that the exporter or manufacturer derived, in the end result, an advantage in terms of input costs and the supply of raw material. The same criteria as applied in the Argentinian decision were also applied in the second case between the same parties, EEC Seed Crushers' and Oil Processors' Federation (Fediol) v Commissioner of the European Communities (1988) ECR 4193 at 4225-4226 which concerned Brazilian differential taxation measures along the same lines. These decisions, in principle, bear directly on the issues before this Court. It is accurate to observe that the EEC regulation under consideration expressly embodied the illustrative list in the Annex while the provision before us does not. It is also true, as was pointed out by the appellant, that the term "financial assistance" was not under consideration. However, the Australian legislative regime must be examined in conjunction with the international agreements. When this is done the conclusion expressed above on examination of the language of the Australian Act alone is reinforced and the cotton policy of Pakistan in the present case does not come within s 269TJ(1). In the course of argument reference was also made to the detailed report by the Panel of the GATT Committee on Subsidies and Countervailing Measures of 15 November 1994, SCM/185, which ruled that the forgiveness of a debt by German private banks to a German steel manufacturer was not a subsidy. The debt forgiveness by the private banks occurred as the result of negotiations between the government and the banks and was initiated by the government. It was a condition of the arrangement that the government would provide financial assistance to the steel manufacturer whose debts were forgiven by the banks. This approach by the Panel is supportive of the view that the payment or grant in question must be that of a government or governmental agency or public body. Footnote 4 to Article 1 of the Countervailing Code in the definition of "countervailing duty" refers to "subsidy bestowed directly or indirectly upon the manufacture .... of any merchandise". The Panel considered that the words "directly or indirectly" were concerned with the ways in which a subsidy was provided and not with the ultimate commercial or economic effect on the conduct of the manufacturer. As the case law points out, an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community would attribute to the relevant instrument or concept: see Queensland v The Commonwealth (1989) 167 CLR 232 at 240. In the present case the decisions of the European Court of Justice and the views of the GATT Panel should be accorded substantial weight in the light of this principle. Moreover, as a broad principle, it is obviously desirable that expressions used in international agreements should be construed, so far as possible, in a uniform and consistent manner by both municipal Courts and international Courts and Panels to avoid a multitude of divergent approaches in the territories of the contracting parties on the same subject matter. The imposition of a countervailing duty by a government is in its nature a form of economic retaliation by one sovereign state in response to the actions of another sovereign state. In view of this it is fitting that the actions or conduct which warrant the imposition of a countervailing duty should be defined with clarity and precision and not left in the realm of generality or uncertainty. Again, it is not inappropriate that the action or conduct countervailed should be similar in nature to a duty, that is to say, an imposition or a benefit of a pecuniary or monetary nature, in order that the degree and amount of countervailing duty can be determined. Both these considerations favour an emphasis in construction on specific defined monetary benefits and actions rather than on eventual commercial or ultimate economic effects of regulatory actions taken by governments in relation to matters such as prices. These considerations are not controlling but they are significant matters to bear in mind when ascertaining the meaning of municipal legislation which empowers the imposition by governments of countervailing duty on goods originating in a foreign nation and traded in international commerce. In the present case there is no payment or remission by the Pakistan Government, nor is there any charge on the public purse of Pakistan either in the sense of a payment from public funds or the remission of duty or tax or the foregoing of other governmental revenues. For the above reasons the cotton policy of the Pakistan Government does not constitute a subsidy, bounty, reduction or remission of freight or other financial assistance within the meaning of s 269TJ granted by a government or governmental body. Third Appeal Ground Essentially, Rocklea's argument on this matter is that the Authority has left open and undetermined the question whether the cotton policy as a matter of fact constitutes an indirect subsidy. Accordingly it is submitted that his Honour erred in dismissing the review application because the factual position has not been finally resolved. In its Report which was the subject of the application for review, the ADA stated: " Government intervention may have allowed Pakistani producers of cotton yarn to acquire raw cotton at much less than the world price, and may thus have formed an indirect subsidy on the production of yarn." (Emphasis added) The submission is that there was insufficient material before the trial judge to make a determination of whether or not the conduct of the Government of Pakistan constituted conduct within s 269TJ (1). It is said that, for example, it is "reasonable to speculate" that the operation of the scheme involved expenditure by governments or the government foregoing revenue insofar as taxes paid by raw cotton producers whose incomes were deflated by the scheme would if related to income have been lower than the case if there had been no scheme. Further, it is suggested, as a reasonable speculation, that the activities of potential exporters of raw cotton being curtailed by the scheme, would have resulted in lower taxes being paid by them, and that the scheme which was described as complex and constantly changing would have resulted in the government incurring administration costs and wages for those responsible for administering the scheme. Whilst it is true that the ADA in its report at paragraph 5.2 said that government intervention may have allowed Pakistan producers of cotton yarn to acquire raw cotton at much less than the world price, nevertheless the applicant agreed that the description of the relevant policies of the Government of Pakistan was generally accurately set out in that section of the report. We consider that there was sufficient material in the outline of the Pakistani policy before the trial judge, and this Court on appeal, as to the nature and working of the scheme, to enable a decision to be made on the question whether the scheme is within the ambit of section 269TJ(1). We are thus not persuaded that there is any substance in the third ground of appeal. Preliminary Question Because the present hearing involved the preliminary question of law being decided without the benefit of the factual situation having been finally resolved or fully agreed, it is appropriate to make some observations on the general undesirability of isolating preliminary questions of law when the factual foundation for the determination of such a question is not resolved. It is generally appropriate and desirable to deal completely with a case such as the present on facts fully and finally found, so that all issues can be resolved once and for all. It is important that the Court should not be asked to decide questions of law which may turn out to be hypothetical or merely advisory, in the event that the resolution of the other review grounds requires remission of the matter back to the decision maker for further consideration on the facts. In the present case, although the matter did proceed on a preliminary question, there was a reservation by the applicant in relation to whether it would finally dispose of the whole matter, or whether it may be necessary for the matter to be remitted for reconsideration to the ADA. Preliminary questions generally should only be isolated for separate decisions in circumstances where the factual position is such as to preclude the necessity for the matter having to go back before the body whose decision is the subject of the review application whichever way the decision on the point of law is decided: Cf Tilling v Whiteman [1980] AC 1 at 17-18, and 25; and Nissan v Attorney General [1970] AC 179 at 242. In the present matter, as it has turned out, the decision on the preliminary question of law raised has disposed of the whole matter because, in the final analysis, there was sufficient material before the trial judge to enable him to make his determination on the point of law. However, we think that caution ought to be exercised in cases of this kind before deciding to proceed with a preliminary question. Changes to the Legislation For completeness we note that as the result of an amendment to the definition of "subsidy" inserted into the Customs Act by s 7 of Act No 150 of 1995 after the recent Uruguay Round of world trade negotiations, the question before us now has been legislatively determined in favour of a narrower approach to the subject matter of s 269TJ(1). To be a "subsidy" there must now be a "financial contribution" by a government or public body or a form of income or price support that is received from a government or public body. These legislative changes are not relevant to the questions raised by the appeal. However, the conclusions we have reached are consistent with the definition of subsidy in the amended legislation. Conclusion We consider that the trial judge was correct in the conclusions to which he came and therefore this appeal is dismissed with costs. I certify that this and the preceding thirty-four (34) pages are a true copy of the Reasons for Judgment herein of the Court. Associate : Date : 6 April 1995 Counsel for Appellant: Mr B W Walker SC Mr A E Galasso Solicitors for Appellant: Corrs Chambers Westgarth Counsel for Respondent: Mr S J Gageler Solicitor for Respondent: Australian Government Solicitor Date of Hearing: 15 February 1995 Date Judgment Delivered: 6 April 1995
Vacuum Oil Co Pty Ltd
Queensland
(1987) 15 FCR 227
(1934) 51 CLR 108
(1978) 144 CLR 120
(1990) 26 FCR 456
(1992) 34 FCR 564
(1992) 176 CLR 1
(1989) 167 CLR 232
(1978) 144 CLR 120