Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel

(a) Ground 1 38 It is desirable to say something further regarding the proper approach by a Court exercising judicial review jurisdiction in relation to a statement of reasons of the kind provided by the Panel here. As noted above, this was a critical factor in the primary judge's reasoning with respect to what the appellant claimed was an error at [47] of the Panel's reasons and which error was said to taint the Panel's overall approach. 39 It is convenient to repeat Griffiths J's summary of some of the relevant principles in Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042; 251 FCR 308 at [141] to [151]. We did not understand either party to challenge the correctness of that summary (emphasis in original): 141 The leading authority, of course, is that of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang). In that case, which involved judicial review of three decisions by ministerial delegates concerning the refugee status of three applicants, each of the delegates provided detailed written statements of reasons. Those statements explained why, although it was accepted that each applicant feared punishment for reasons of imputed political opinion if he were returned to China, those fears were not well-founded. Each delegate indicated that he/she considered that certain matters which were relied upon by the applicants were "speculative", including that if the applicants were returned to a particular part of China they would be subjected to excessively punitive fines which would amount to persecution. 142 Below, the Full Court had set aside the decisions on the basis that the reference to "speculative" and "speculation" in the statements of reasons revealed that the delegates had not applied the "real chance" test in accordance with Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 (Chan) at 413. This conclusion was reached notwithstanding that it acknowledged that the delegate had started and finished with a correct test, but the Full Court regarded the references to "speculative" and "speculation" as demonstrating that the delegate's assessment had shifted from one of an assessment of "real chance" to an assessment of "balance of probabilities". 143 On appeal, the following propositions were described by the High Court at 272 as "well settled": (a) the Court should not be concerned with looseness in language nor with unhappy phrasing in the reasons of an administrative decision-maker (citing Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287); and (b) the reasons for an administrative decision which is the subject of judicial review "are not to be construed minutely and finally with an eye keenly attuned to the perception of error". 144 The High Court described (at 272) these propositions as recognising: the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 145 The Court added that in subjecting a decision about refugee status to judicial review, the Court must "beware" of turning a review of the reasons of the decision-maker upon principles into a reconsideration of the merits of a decision. 146 It was held that the Full Court had fallen into error because of the meaning and significance it attributed to the references in the delegates' statements of reasons of the word "speculative". Rather than suggesting that the delegates had misapplied the correct test in their assessment of the future chances of persecution, the High Court concluded (at [43]) that, in the particular context, it was equally the case that the word was used to refer to "the probative force of the material before the delegate". This meaning would not indicate that the delegates had departed from the Chan test. The Court proceeded on the basis that this construction of the delegates' reasons was one which was equally available to that found by the Full Court. Evidently, the Court considered it unnecessary to go further and determine whether the alternative meaning was the only meaning. This ambiguity in the proper meaning of "speculative" formed a central part of the Court's view that the reasons did not disclose reviewable error in the application of the Chan test. The plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) observed at 278: There is certainly nothing which would suggest such a conclusion in sufficiently strong terms to overcome a properly "beneficial construction" of the delegates' reasons. 147 It is important to note that the High Court justified the need for a restrained approach in construing an administrator's statements of reasons by reference to the limited nature of judicial review and the need to avoid a judicial review court straying into an impermissible review of the merits of an administrative decision. This approach to construing statements of reasons has been applied in many subsequent cases involving judicial review of administrative decisions, not confined to decisions relating to refugee status. 148 Understandably, the ACF did not deny the force and relevance of these principles, however, it sought to dilute them to some extent in the particular circumstances of this case by reference to events leading up to the Minister making his fresh decision in October 2015. In particular, the ACF relied upon the fact that the Minister's earlier decision to approve the project was the subject of litigation which led to the matter having to be reconsidered. The ACF also contended that significance should attach to the fact that the Minister's decision and statement of reasons must have been the subject of close scrutiny by his lawyers and it was reasonable to assume that legal advice was provided in respect of how those reasons were expressed. The ACF submitted that the following observations of the Full Court in Soliman at [57] supported its position: Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely: the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764, 290 ALR 326 at [36] at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37] per Lander, Flick and Jagot JJ; and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons: the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman. The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed. 149 Those observations do not provide any material assistance to the ACF's position. In particular, the circumstances here are quite different from those in Soliman because: (a) Here the Minister provided a statement of reasons in respect of an administrative decision made by him based upon information obtained by his Department not only from the proponent, but also from other government agencies and the public, including information supplied by the ACF. This decision-making process is far removed from that in an adversarial hearing before Fair Work Australia under the Workplace Relations Act 1996 (Cth), as in Soliman. The ACF provided the Minister and his Department with various information concerning the assessment and approval of the project. In particular, the ACF wrote to the Department on 27 August 2015 in response to an invitation to provide further material which outlined the ACF's concerns with the project. The ACF provided a summary of its key issues of concern, including on the topic of environmental impacts. It also provided new evidence in the form of some of the materials which had been adduced in the Land Court proceeding concerning the extent of greenhouse gas emissions caused by the project and likely impacts on the Reef. The ACF submitted that the impacts of climate change on the Reef were of such significance that the Minister should refuse to approve the project. Significantly, and in contrast with the position in Soliman, the ACF did not provide any specific submissions as to how this material should be assessed by the Minister within the particular legal framework of the EPBC Act, including in respect of the operation of specific provisions such as ss 82, 136(2)(e) and 527E which now form the subject of ground 2 of its judicial review application. (b) In Soliman, one of the parties had provided detailed legal submissions on the topic of mitigating circumstances which was described by the Full Court as a submission which was "central to a party's case". In circumstances where the Vice President made no express reference to those submissions in his written statement of reasons, the Full Court inferred that the submission had not been addressed and this amounted to jurisdictional error. 150 The other two authorities cited by the ACF with a view to diluting or modifying the Wu Shan Liang principles do not take the matter any further. In Sadsad, which involved judicial review of a medical assessor's assessment (and reasons) under the Motor Accidents Compensation Act 1999 (NSW), the critical issue was whether the medical assessor had properly applied a particular clause in permanent impairment guidelines which were binding on him. In concluding that the medical assessor's reasons did not disclose the pathway of reasoning by which the assessor applied the relevant clause, Hamill J made the following observations at [47]: It is one thing to give a "beneficial construction" to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5). This accords with the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]: The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked. 151 This limitation on the operation of what, for convenience, might be described as the "beneficial construction principle" should be accepted. But it has no application to the circumstances here because, unlike Sadsad and the judgment of Stone J referred to by Hamill J, the relevant paragraphs of the Minister's statement of reasons are not devoid of material which indicates the Minister's path of reasoning. For reasons which will be given shortly, this is the case even though there is no explicit reference in those paragraphs to specific provisions in the EPBC Act, such as s 527E. 40 Having regard to the particular statutory background in this proceeding, it is desirable to make the following additional observations regarding the correct approach on judicial review to reading an administrative decision-maker's statement of reasons. First, it might be noted that the authoritative observations in Wu Shan Liang on this topic were made in the context of proceedings involving judicial review of statements of reasons voluntarily provided by Ministerial delegates. There was no statutory obligation under the Migration Act 1958 (Cth) to provide such statements in that particular statutory context and it is unclear whether the statements of reasons were provided in response to a request under s 13 of the Administrative Decisions (Judicial Review) Act 1976 (Cth) (ADJR Act). It appears, however, that the question whether the statements of reasons were provided pursuant to a statutory obligation or provided voluntarily did not affect the need to adopt a restrained approach in reviewing the statements of reasons in that case. That is not to say, however, that the overall statutory setting is not important in reviewing a voluntarily provided statement of reasons, a matter to which we will now turn. 41 Secondly, and consistently with the need to pay close attention to the particular statutory setting, it may be noted that the Act here imposes different obligations on the Commissioner and the Panel with respect to providing reasons for particular decisions. Thus, where the Commissioner decides to terminate an investigation under s 269TDA, there is a statutory obligation imposed by s 269TDA(15) for the Commissioner to: (1) give "public notice" of that decision; (2) ensure that a copy of the public notice is sent to the appellant and other specified persons; and (3) inform the appellant of the right to apply to the Panel under Div 9 for a review of the Commissioner's termination decision. 42 The Commissioner's obligation to give "public notice" of the termination decision attracts the operation of s 269ZI. It is desirable to set out s 269ZI(1) and (2), which have the effect of obliging the Commissioner to give written reasons for a termination decision, including all material findings of fact or law on which the decision was based (emphasis added): 269ZI Public notice (1) If a person or body is required or empowered to give public notice of a decision or determination but the provision requiring or empowering the giving of that notice does not specify where the notice is to be given, it is to be published on the Anti-Dumping Commission's website. (2) If a person or body is required or empowered to give public notice of a decision or determination, whether because of subsection (1) or otherwise, that person or body must: (a) set out in the notice particulars of the decision or determination made; and (b) set out in the notice, or in a separate report to which the notice refers, the reasons for the decision or determination including all material findings of fact or law on which the decision or determination is based; and (c) if a person has a right to have the decision or determination reviewed by another body or referred to another body for review - set out in the notice full particulars of those rights; and (d) if the material findings of fact or law are contained in a separate report - ensure that copies of the report are freely available and that the manner of obtaining a copy is set out in the notice. … 43 This is to be contrasted with the statutory scheme when the Panel finalises a review of the Commissioner's termination decision under s 269ZZT. Under s 269ZZT(6) the Panel is obliged to publish its decision under s 269ZZT on its website. The Panel is also obliged under s 269ZZI to publish a notice on its website where the Panel proposes to conduct a review. Significantly, however, these obligations are not expressed in terms of giving "public notice" so as to attract the operation of s 269ZI and the requirement to publish reasons for a decision, as is the case with the Commissioner under ss 269TDA(15) and 269ZI(1) and (2) (presumably, an obligation to provide a statement of reasons could arise under s 13 of the ADJR Act, however, it appears that no request under that provision was made here). 44 It is unclear why there is no statutory obligation imposed upon the Panel to publish a statement of reasons in respect of its review decision concerning the Commissioner's termination decision, as opposed to simply publishing its decision on its website as required by s 269ZZT(6). This is to be contrasted with other parts of the Act which do impose an obligation on the Panel to give reasons for particular decisions. This is the case, for example, with review by the Panel of certain Ministerial decisions as dealt with in Subdiv B of Div 9. In specified circumstances, the Panel must make a report to the Minister on a review conducted under this subdivision. Notably, s 269ZZK(2) imposes an explicit obligation on the Panel to provide a report to the Minister for the Panel's recommendation (i.e. whether to affirm or revoke the reviewable decision), which report must set out the reasons for the Panel's recommendation. Presumably the requisite content of the Panel's reasons will be informed by s 25D of the Acts Interpretation Act 1901 (Cth). Notably, however, there is no similar provision to s 269ZZK(2) where the Panel conducts and finalises a review of the Commissioner's termination decision under Subdiv C of Div 9. 45 For completeness, it should be noted that even though there is no statutory obligation upon the Panel to give reasons for its decision on a review of the Commissioner's decision to terminate an investigation, under s 269ZZX the Panel is obliged to maintain a public record concerning an application for a review of a termination decision under Subdiv C, which must contain: (1) a copy of the review application; (2) if the Panel has sought further information from the review applicant, any such information so given to the Panel; and (3) a summary of further information obtained at a conference mentioned in either s 269ZZHA or s 269ZZRA. 46 The Panel is also obliged to make this public record available upon request by an interested person (s 269ZZX(1)(b)). 47 Thirdly, it has been made clear in subsequent High Court authorities that where there is a statutory obligation to provide reasons, in conducting judicial review close consideration must be given to the terms of such a provision. This is reflected, for example, in the following statement by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (reaffirming what Gummow J said in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [69] (with whom Heydon and Crennan JJ agreed)) (emphasis added and footnotes omitted): As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared. 48 Another clear illustration of how the particular wording of a statutory provision obliging an administrative decision-maker to provide a statement of reasons for a decision in the context of a judicial review challenge is the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68]-[69] per McHugh, Gummow and Hayne JJ with reference to the nature and scope of the obligation imposed by s 430 of the Migration Act. 49 For the following reasons, we reject ground 1. The appellant's arguments in support of this ground are predicated on an approach which involves the Court reading the Panel's reasons and particular passages therein divorced from the overall context of the reasons, and involves an inappropriate and unduly critical reading of those reasons. The point is well illustrated by the appellant's criticism of [33] of the Panel's reasons (which is set out at [19] above). The appellant submitted that the fact that the Panel stated that s 269TAA(1) "deals with the circumstances in which a transaction is not an arms length transaction" indicated that the Panel erroneously considered that the three matters set out in that provision were exhaustive of the circumstances in which a transaction is not an arms length transaction. The appellant's contention is inconsistent with other parts of the Panel's reasons. For example, at [38], the Panel referred to the Commissioner's report which explicitly acknowledged that even if none of the circumstances in s 269TAA(1) existed, it was still open to the Commissioner to examine relevant information in order to determine whether or not there had been an arms length transaction. This necessarily implied that a determination could be made that a purchase or sale is not an arms length transaction in circumstances apart from those identified in s 269TAA(1). Moreover, at [44] of the Panel's reasons, it was acknowledged that even where there is no evidence from which it appears that the price was influenced by the parties' relationship, the Commissioner may treat the transaction as an arms length transaction. 50 Similarly, the appellant's challenge based on the wording of [47] of the Panel's reasons is inconsistent with the Wu Shan Liang approach. The statements in [47] have to be read fairly and in the context not only of the Panel's reasons as a whole, but [46] to [48] in particular (see [19] above), which provide the immediate context for those statements. When the statements are read in context and not in isolation it is apparent that the Panel was assessing whether the TPS Report alone established the appearance of influence, which the appellant had contended in its submissions to the Panel. Thus when the Panel stated at [48] that the TPS Report did not provide a basis for concluding that the prices "'appeared' to be influenced" by the related parties' relationships for the purpose of s 269TAA(1)(b), the Panel was simply responding to this aspect of the appellant's case and not making a sweeping statement of principle as to the potential relevance of evidence concerning the existence of a relationship between a buyer and seller and its effect on price. The TPS Report constituted but one part of the evidence which was before the Panel and it was for the Panel to determine the weight and effect of the TPS Report. 51 In addition, we consider that the appellant's primary focus on the wording of [47] of the Panel's reasons, substantially in isolation from the balance of those reasons, fails to give effect to the need to read the reasons as a whole and not on an assumption that the reasoning is clinically sequential or compartmentalised in individual pods. As Jagot J succinctly and correctly stated in Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at [24] (emphasis added): … First, reasons are to be read as a whole. Second, reasons are to be read fairly. Third, reasons are not to be read as if each paragraph is self-contained and necessarily sequential … 52 When the Panel's reasons are read fairly and as a whole, the appellant's contention that the Panel erred because it considered that there must be evidence of actual influence on price for it not to be an arms length transaction must also be rejected. The Panel clearly stated at [43] that s 269TAA(1)(b) does not require the Commissioner to be satisfied that, as a matter of fact, the export price was influenced by the relationship between the exporter and importer. Similarly, at [49] and [54] of its reasons, the Panel explicitly acknowledged that the core issue was one of the appearance of influence, and not actual influence. When the Panel's reasons are read fairly and as a whole they do not reveal any reviewable error involving misconstruction or misapplication of the relevant statutory provision. 53 Nor do we accept the appellant's contention that s 269TAA(1)(b) operates so as to treat transactions that "are arms length transactions as if they were not" (see AS at [10]). In our view, the provision has a broader operation. Whether or not particular transactions are or are not arms length transactions within the ordinary meaning of that phrase, the provision requires that they not be treated as arms length transactions. In other words, the provision may operate to require a particular transaction to be treated as not being an arms length transaction whether or not it otherwise would have met that description. 54 We also reject any claim by the appellant that the transcript of the 8 May 2020 conference supports its contentions in relation to ground 1 of the appeal. We repeat and adopt what Griffiths J said on this topic in Kelly v Australian Postal Corporation [2015] FCA 1064 at [52] and [53]: 52 As noted above, in support of its appeal, the applicant placed particular emphasis on the apparent inconsistency between certain remarks made by the AAT in the course of the hearing and its decision to prefer Dr Smith's evidence to Dr Parsonage's. Considerable caution must be exercised in using a transcript for the purpose advanced by the applicant here. In WZAQU at [30] Flick J made the following obiter observations regarding the limited significance of the transcript in construing the reasons for an administrative decision: Whether or not the transcript of the interview may be taken into account when construing the reasons for the recommendation of the Independent Protection Assessor may be left unresolved. A transcript of proceedings may unquestionably be relied upon to prove that claims were in fact advanced and to prove the nature and ambit of those claims. Reference to the transcript of November 2011 could thus be made to give content to the claims advanced by the Appellant, although the nature of those claims is in any event largely made apparent from paragraphs [40] to [42] of the reasons for decision. But considerable reservation is expressed as to whether reference to the transcript may also be made for the purpose of construing what was intended to be conveyed by paragraph [98]. It has been concluded by the High Court that the transcript of a proceeding forms no part of the "record" when seeking certiorari to correct error of law on the face of the record: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180-181 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Whether the same considerations which led to that conclusion are apposite to considering whether a transcript can be relied upon to construe reasons for an administrative decision can also be left unresolved. But that which is common to both is a concern as to whether recourse to a transcript would only encourage parties seeking to impugn or support (or supplement) a statement of reasons by scouring the transcript with a view to minutely discerning differences between the transcript and reasons. To do so may only encourage impermissible reliance upon thoughts or queries raised during the course of a hearing which are only later abandoned at that stage when reasons are being prepared. Even if recourse is made to the transcript in the present proceeding, that transcript provides no assistance - not surprisingly - in construing what was intended to be conveyed by paragraph [98]. 53 I respectfully agree with those observations and consider that they have particular application here. In the circumstances here, the reasons given by the AAT for its decision, including its preference for Dr Smith's evidence over that of Dr Parsonage, must be the central focus in the appeal. As Flick J commented, parties should not be encouraged to pour over the transcript with a view to identifying differences between the transcript and reasons. The reality often is that a member of a tribunal (and, for that matter, a court) may make observations or raise issues for comment during the course of the hearing not in any concluded fashion but rather to test a tentative proposition which may later not crystallise in the decision-maker's ultimate decision, including in the reasons for that decision. 55 Even if it is assumed that the transcript corroborates the Commissioner's error, it is difficult to see how the transcript can have any relevance to judicial review of the Panel's reasons, which record the Panel's appreciation that certain aspects of the Commissioner's approach were incorrect and were not repeated by the Panel. 56 The Panel did not err in approaching the question whether s 269TAA(1)(b) applied on the basis of whether the whole of the evidence was relevant in ascertaining whether or not there was an appearance of influence on price arising from the commercial or related relationship between related parties. That is a legally permissible approach to assessing the effect on price of the relevant parties' relationship. There was no legal error in the Panel looking at all the relevant evidence and circumstances, including the particular practices and policies and the manner in which pricing was determined by the relevant parties, in determining whether or not the relationship between the exporter and the importer appeared to influence the price. The material or information which is potentially relevant to this assessment need not include a comparison between the price of unrelated parties' sales. The reference in [47] of the Panel's reasons to s 269TAA(1) being concerned with "the appearance of variation from the price that would have been agreed had the sale been negotiated at arms length" when read fairly, does not mean that the Panel proceeded on the basis that, for there to be the requisite appearance of influence on price of a commercial or other relationship it was necessary for the decision-maker to determine, by way of a counterfactual, the price that would have been agreed between unrelated parties. Any other reading cannot be reconciled with the fact that the Panel was well aware that there was no evidence before it relating to prices between unrelated entities (see, for example, the final sentence of [51] and the Panel's reference in [52] to the Commissioner's inquiries involving documents being obtained from related parties). 57 For the purposes of s 269TAA(1)(b), the assessment must be directed to the relevant statutory question, namely whether there is an appearance of the price having been influenced by the commercial or other relationships between the buyer (or an associate) and the seller (or an associate). That is the approach taken by the Panel. No appealable error has been established in relation to the primary judge's analysis and conclusion rejecting ground 1 of the judicial review application. 58 Finally, as pointed out by the second and third respondents in the appeal, the appellant's presentation of ground 1 of the appeal involves the following significant changes in the case it advanced below: (a) having accepted the accuracy of the Panel's reasons at [39] and [43]-[45] at the trial, the appellant now challenges those passages; (b) the appellant did not contend at trial that [33] of the Panel's reasons contains a misconstruction of the Act; and (c) the appellant appears to have resurrected a proposition which it advanced before both the Commissioner and the Panel but explicitly disavowed at the trial (see PJ [46]), namely whether the fact that there were related parties is sufficient of itself to satisfy the "appearance" standard in s 269TAA(1)(b). 59 In elaboration of paragraph (c) immediately above, there appears to have been some internal tension in the oral presentation of the appellant's case on this matter in the appeal. On the one hand, senior counsel stated that the appellant accepted that "just because there's some evidence which shows there's appearance [of price influence] does not necessarily engage the provision". He added that the appellant accepted that "while there might be some evidence giving rise to such an appearance, there may yet be other evidence of a sufficiently strong nature to remove that appearance". Shortly thereafter, however, senior counsel said that it was the appellant's submission "that evidence that a buyer and seller are part of a multinational group would give rise to an inference that prices are influenced by that relationship". The appellant's position was that, having regard to the TPS Report, the Panel should have found that evidence as establishing the requisite appearance of price influence and then considered whether there was other evidence which displaced that inference. In our view, the Panel did not err in adopting an approach which involved consideration of all the relevant evidence bearing upon the issue of appearance, rather than adopting the appellant's segmented or sequential approach.

(c) Ground 3 and the notice of contention 61 As noted above, ground 3 challenges the primary judge's finding that, although the Panel owed procedural fairness obligations to the appellant, including in relation to the information the Panel received in a conference held on 8 May 2020 with some of the Commissioner's staff, the primary judge erred in concluding that any failure to accord procedural fairness was not a material error. 62 The Panel's notice of contention, if upheld, would render it unnecessary to determine ground 3 of the appeal. That is because the Panel challenges the primary judge's finding that the Panel failed to comply with procedural fairness requirements by holding the secret conference and not disclosing the substance of the information to the appellant with an opportunity to comment. By its notice of contention, the Panel claimed that the primary judge should have found that there was no procedural unfairness because: (1) the statutory scheme for review of reviewable decisions by the Panel under Subdiv C of Div 9 of Pt XVB is exhaustive and excluded procedural fairness requirements; and/or (2) the appellant was not deprived of any opportunity to make submissions or provide information to the Panel, thus it suffered no practical injustice. 63 It is unnecessary in this proceeding to determine whether or not the procedures set out in the relevant statutory scheme were exhaustive and excluded procedural fairness requirements. That is because, assuming for the sake of argument that procedural fairness requirements were owed to the appellant, the primary judge erred in finding that they had been breached. With respect, the primary judge's error stems from the constraints imposed upon procedural fairness requirements by the confidential nature of the information provided to the Panel at the conference. Prior to finalising its review, the Panel did in fact publish a summary of the conference, while not disclosing any confidential information. 64 It is well settled that procedural fairness requirements must bend where confidential information is involved. As Brennan J said in Kioa v West [1985] HCA 81; 159 CLR 550 at 628-629 (emphasis added and footnotes omitted): A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. … Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. … 65 In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88, the question arose whether procedural fairness required the Refugee Review Tribunal to disclose to a protection visa applicant the fact that it had received an unsolicited letter in which the author made certain allegations against the visa applicant. The High Court upheld the applicant's claim that he had been denied procedural fairness in not being told the substance of the allegations made in the letter. The High Court made clear, however, that procedural fairness did not go so far as to require the Tribunal to provide a full copy of the letter to the visa applicant or to disclose any information that may have revealed the identity of the author. The Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) said at [25] (footnote omitted and emphasis added): The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision‑maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. It is neither necessary nor appropriate to attempt to state some all‑encompassing rules about how administrative decision‑makers should deal with information supplied in this way. Not least is that because use of the expression "informer" in the context of administrative decision‑making not only does not reveal what kind of information is conveyed by the informant, but also does not reveal what relevance the information may have to the decision that is to be made. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case. 66 The Court added at [29] that procedural fairness requirements would have been met if the Tribunal had told the visa applicant the substance of the allegations made in the letter, without disclosing the identity of the author. The Court said that this procedure "would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality"". 67 In the present proceeding, following the conference on 8 May 2020 and prior to finalising its review, the Panel published a document entitled "ADRP Conference Summary". This summary, which was published at large and was available to the appellant, noted that the purpose of the conference was to obtain information in relation to the Panel's review concerning power transformers exported from China. It stated that the conference was held pursuant to s 269ZZRA of the Act. Under the heading "Discussion", the following information was disclosed regarding the content of the conference ("ADC" refers to the Anti-Dumping Commissioner): 1. The representatives of the ADC provided details of the ways in which the price of the sales between related exporters and importers was determined and the assessment of the arms length nature of those transactions. 2. The ADC provided further details of the ownership structure of ABB Chongqing and Changzhou Toshiba Co., Ltd. The ADC representatives provided information about profitability levels. 3. The ADC representatives provided details about the materials obtained by them during the course of the investigation in relation to the decisions by the purchasers to select the successful tenderers. 4. The details of the information provided was confidential to the exporters, importers and the applicant. 68 In our respectful view, the procedure adopted by the Panel had the effect of disclosing the substance of the conference, without disclosing the details of information passed on by the Commissioner's staff to the Panel which was commercial-in-confidence. It was a procedure which, in the particular circumstances, put the appellant and other interested parties on notice as to the issues which were discussed. It was open to the appellant to provide to the Panel prior to it finalising its decision whatever submissions it wished arising from the ADRP Conference Summary in respect to those issues. There was no procedural unfairness. 69 Although in a different statutory context, the position here is similar to Jaffarie v Director-General of Security [2014] FCAFC 102; 226 FCR 505, in which the Full Court rejected a claim of procedural unfairness in relation to a visa cancellation decision. In that case, the ground of complaint was the confined nature of information disclosed in the "Unclassified Reasons" furnished by the Australian Security Intelligence Organisation to the applicant, as compared to the "Classified Reasons" relied upon by the Minister for Immigration and Citizenship in cancelling the applicant's visa on character grounds. At [110]-[111], Flick and Perram JJ stated (emphasis added): 110 The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, "whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context": Habib v Director-General of Security [2009] FCAFC 48 at [77]; (2009) 175 FCR 411 at 430 per Black CJ, Ryan and Lander JJ. 111 The touchstone of present relevance is whether enough information had been disclosed to Mr Jaffarie in the "Unclassified Reasons" to enable him to make meaningful submissions. The mere fact that more information may have been made available to him during the course of the present hearing does not necessarily say anything as to whether the initial disclosure in the "Unclassified Reasons" was sufficient to afford procedural fairness. 70 The appellant made clear in its written reply submissions that it did not contend that it should have been invited to the conference. It did contend, however, that even if some of the information conveyed during the conference was properly characterised as confidential, it should nevertheless have been made available to the appellant in "sufficient detail to allow a reasonable understanding of the substance of the information", citing s 269ZZY(2)(a). That provision deals with confidential and sensitive commercial information and is in the following terms: 269ZZY Confidential and sensitive commercial information (1) To the extent that information provided to the Panel by a person is claimed by the person to be: (a) confidential; or (b) information whose publication would adversely affect a person's business or commercial interest; the person giving that information must, at the time the information is given to the Panel, also give a summary of that information to the Panel for inclusion in the public record maintained under section 269ZZX. (2) The summary must: (a) contain sufficient detail to allow a reasonable understanding of the substance of the information; but (b) does not breach the confidentiality or adversely affect the interests concerned. Note: For the consequences of failing to comply with subsection (1), see sections 269ZZH and 269ZZR and subsection 269ZZK(5). 71 In our respectful view, there are two difficulties with the appellant's contention. The first is that, on its proper construction, this provision has no application to information provided by the Commissioner to the Panel in the course of a conference held under s 269ZZRA. That provision has a wider operation than s 269ZZRB which deals specifically with the Panel's power to seek further information from the Commissioner in relation to information that was before the Commissioner when the Commissioner made the reviewable decision. The broader power in s 269ZZRA (which the Panel explicitly relied upon in respect of the 8 May 2020 conference) empowers the Panel at any time after receiving a review application, to hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review. 72 The Note at the bottom of s 269ZZY supports the view that that provision does not apply to information obtained by the Panel from the Commissioner in a conference conducted under s 269ZZRA. 73 The provisions referred to in the Note are relevantly as follows: 269ZZH Rejection of application - failure to provide summary of confidential information The Review Panel must reject an application if: (a) the applicant in respect of the application claims that information included in it is confidential or is information whose publication would adversely affect a person's business or commercial interest; and (b) the applicant fails to give a summary of that information to the Review Panel in accordance with section 269ZZY. … 269ZZK The review … (5) The Review Panel must not have regard to a submission under subsection (4) if: (a) the person giving the submission claims that information included in it is confidential or is information whose publication would adversely affect a person's business or commercial interest; and (b) the person fails to give a summary of that information to the Review Panel in accordance with section 269ZZY. … 269ZZR Rejection of application for review of termination decision The Review Panel must reject an application for a review of a termination decision if: (a) the applicant in respect of the application claims that information included in it is confidential or is information whose publication would adversely affect a person's business or commercial interest; and (b) the applicant fails to give a summary of that information to the Review Panel in accordance with section 269ZZY. 74 It is notable that the first two of the three statutory provisions specifically referred to in the Note (i.e. ss 269ZZH and 269ZZK(5)) are to be found in Subdiv B of Div 9, which relates to the Panel's review of certain Ministerial decisions and not review of any decision by the Commissioner. While the third statutory provision (i.e. s 269ZZR) is to be found in Subdiv C of Div 9 (which relates to the Panel's review of decisions by the Commissioner), in its own terms that provision focusses upon the failure of the review applicant to provide a summary of confidential information. It may be inferred from these matters that s 269ZZY has no application to information provided by the Commissioner to the Panel in the course of a conference held under s 269ZZRA. 75 The second difficulty with the appellant's reliance on s 269ZZY is that, even if it did apply to information provided by the Commissioner's staff to the Panel in the course of the conference, non-compliance with the provision would not invalidate the Panel's decision having regard to the terms of the Note and what was said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ. 76 Finally, the appellant also contended that, in determining the content of procedural fairness, it was relevant to take into account material statutory provisions, which it said included ss 269ZU(1) and (2)(a). It is well established that careful consideration needs to be given to the relevant statutory framework in determining what procedural fairness requires in the exercise of a power under that framework (see, for example, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 per Kitto J and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]). 77 The particular statutory provisions cited by the appellant are as follows: 269ZU Panel may supply information (1) Subject to this section, the Panel may supply information (including personal information) received by the Panel under this Act to a person. (2) The Panel or a person whose services are being made available to the Panel under section 269ZTD must not: (a) except for the purposes of this Act, supply information (other than personal information) to a person if the supplying of the information would constitute a breach of confidence; and … 78 These provisions do not assist the appellant. Section 269ZU confers a discretionary power on the Panel to supply information received by it under the Act to a person. The prohibition imposed by s 269ZU(2)(a) on the Panel supplying to a person information which would constitute a breach of confidence except for the purposes of the Act, does not impose an obligation on the Panel to supply information in breach of confidence for the purposes of the Act. Subsection 269ZU(2)(a) imposes a prohibition, not a duty, relating to the supply of information. 79 For completeness, it should be noted again that it was only during the course of the hearing below that the appellant was provided with an unredacted copy of [53] of the Panel's reasons for decision. Those redactions related to some of the information obtained by the Panel during the conference. Moreover, the transcript of that conference was not made available to the appellant and remains confidential (see PJ [20] and [79]). It is unclear why the Panel decided, during the course of the hearing below, in effect, to waive confidentiality in respect of the redacted parts of [53]. In any event, that decision does not derogate from the fact that it was reasonably open to the Panel to take the view that the redacted parts of [53] were commercial-in-confidence at the time the Panel's reasons were published. 80 Accordingly, the notice of contention should be upheld.

[1993] FCA 322

[1993] FCA 456

(1987) 75 ALR 287

(1993) 43 FCR 280

(2012) 206 FCR 576

(2011) 244 CLR 32

(1995) 129 ALR 503

(1963) 113 CLR 475

(2010) 241 CLR 252

(1995) 57 FCR 432

(1996) 185 CLR 259

(1995) 184 CLR 163

(2009) 175 FCR 411

(2011) 244 CLR 325

(1991) 34 FCR 564

(1995) 56 FCR 406

(2006) 228 CLR 152

(2005) 225 CLR 88

[2021] FCA 672

[2011] HCA 17

[2014] FCAFC 102

[2015] FCA 1064

[1998] HCA 28

[2010] HCA 23

[2018] FCA 483

[2016] FCAFC 177

[1989] HCA 62

[2012] FCAFC 114

[2007] FCA 9

[2009] FCAFC 48

[2018] HCA 34

[2021] HCA 17

[1963] HCA 41

[2001] HCA 30

[2005] HCA 72

[2006] HCA 63

[2021] FCA 591

[2019] HCA 34

[2012] FCA 754

[2015] FCA 546

[2011] HCA 1

[1999] FCA 10

[1995] FCA 418

[2012] FCA 764

[1995] HCA 58