Marina, Companhia Vidraria Santa v Minister for Small Business and Consumer Affairs
[1997] FCA 300
•18 Apr 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 640 of 1996 ) GENERAL DIVISION )
BETWEEN: COMPANHIA VIDRARIA SANTA MARINA
ApplicantAND: MINISTER FOR SMALL BUSINESS AND CONSUMER AFFAIRS
First RespondentCHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE
Second RespondentCORAM: EMMETT J PLACE: SYDNEY DATED: 18 APRIL 1997
EX TEMPORE REASONS FOR JUDGMENT
This is an application brought under the Administrative Decisions (Judicial Review) Act for review of two decisions. The first was made by the first respondent, the Minister for Small Business and Consumer Affairs (“the Minister”). The second was made by the second respondent, the Chief Executive Officer of the Australian Customs Service (“the CEO”). Both of the decisions relate to the exercise of power under division 5 of the Customs Act 1901 (“the Act”). To explain and resolve the question in issue it is necessary to consider the scheme of divisions 2, 3 and 5 of Part XVB of the Act.
Division 3 is headed “Consideration of Anti-Dumping Matters by the Minister”. Section 269TG(1) of the Act relevantly provides:
“.... where the Minister is satisfied, as to any goods that have been exported to Australia that:
(a)the amount of the export price of the goods is less than the amount of the normal value of those goods; and
(b)because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, ....
the Minister may by public notice declare that section 8 of [the Anti-Dumping Act] applies to those goods.”
Section 269TG(2) also provides:
“Where the minister is satisfied, as to goods of any kind, that:
(a) the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and
(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, .....
the Minister may, by public notice...... declare that section 8 of the Anti-Dumping Act applies to like goods.......”
Section 269TG(3) then provides that where a notice under section 269TG(1) or (2) is given declaring goods to be goods to which section 8 of the Anti-Dumping Act applies, the notice must include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice:
“(c) was or would be the normal value of the goods.....;
(d) was or would be the export price of those goods; and
(e) was or would be the non-injurious price of those goods.”
The reference to the Anti-Dumping Act is a reference to the Customs Tariff (Anti Dumping) Act (Cth) 1975.
The provisions to which I have just referred employ three significant, defined terms. They are “export price”, which is defined in section 269TAB, “normal value of goods” which is defined in section 269TAC and “non-injurious price” which is defined in section 269TACA. In simplified terms, the export price is the price paid or payable for the goods by the importer and the normal value of goods is the price paid for like goods sold in the ordinary course of trade for home consumption in the country of export, in sales that are arms length transactions. Non-injurious price is defined, for present purposes, as the minimum price necessary to prevent the injury or a recurrence of the injury referred to in sections 269TG(1) or (2).
Division 2 of the Act is headed “Consideration of Anti-Dumping Matters by the CEO”. Section 269TB contemplates that in certain circumstances a person may request the Minister to publish a dumping duty notice in respect of goods which have been or are likely to be imported into Australia. Section 269TC provides for consideration of such an application by the CEO who may reject an application for the publication of a dumping duty notice. If the CEO decides not to reject an application, the procedure laid down in that section is to be followed.
Under section 269TD, the CEO must consider the application, taking into account submissions received pursuant to that procedure and any other matters that the CEO considers relevant. Section 269TD(2) provides that, if as a result of that consideration, the CEO makes a preliminary finding that there are sufficient grounds for the publication of a dumping duty notice, he must refer to the Anti-Dumping Authority (“the Authority”) the question whether the publication of the notice sought in the application is justified. Section 7 of the Anti Dumping Authority Act 1988 provides that where the CEO refers to the Authority under section 269TD(2) the question whether the publication of a dumping duty notice is justified, the Authority must, after holding an inquiry and before the expiration of a period of 120 days, give to the Minister a report recommending whether any such notice should be published. It is following such a recommendation that the Minister exercises the power conferred by section 269TG.
Section 8 of the Anti Dumping Act 1975 deals with dumping duties. Section 8(2) provides that there is imposed a special duty of customs, to be known as dumping duty, calculated in accordance with section 8(6). Section 8(3) provides that, pending final assessment of the dumping duty, an interim dumping duty is payable.
Subsection 8(4) provides that the interim dumping duty is an amount equal to the sum of:
(a)the difference between the export price of goods as ascertained or last ascertained by the Minister ... and the normal value of goods ... as so ascertained;...... and
(b)if the export price of those goods is lower than the export price of goods of that kind as ascertained, ..... the amount by which the latter export price exceeds the former.
Section 8(6) then provides that the dumping duty payable on goods which are the subject of a notice under section 269TG(1) or (2) is an amount equal to one of two amounts. If the Minister, in a notice given under section 8(5), determines that the whole or part of the interim dumping duty is to be ascertained by reference to the non-injurious price of goods of that kind as ascertained or last ascertained by the Minister, then the dumping duty is the difference between:
the amount that the Minister ascertains to be the export price of the particular goods; and
the lower of the amount that the Minister ascertains to be the normal value of those particular goods and that non-injurious price.
The dispute between the parties relates to the calculation of interim dumping duty and arises out of division 5 of the Customs Act which permits a review of interim duty. Section 269Z(1) provides that, if a dumping duty notice has been published and an affected party, which for relevant purposes includes the present applicant, considers that it is appropriate to review the rate of interim duty imposed because one or more of the variable factors relevant to the determination of interim duty has changed, the affected party may, by application lodged with the CEO request a review of the rate of interim duty.
Section 269T(4E) provides:
“.... A reference to variable factors relevant to the determination of interim duty ...... is a reference ...... to the normal value, export price and non-injurious price of goods of that kind as ascertained or last ascertained by the Minister.”
Section 269Z(3) limits the entitlement of an affected party to request a review to the extent that such an application must not be made earlier than 12 months after the day of publication of the dumping duty notice or, if a review has already been undertaken, the day on which the Minister published the result of the last such review.
Section 269ZA(1) requires that an application for review must contain:
(a)a description of the kind of goods to which the dumping duty notice .... relates; and
(b)a statement of the variable factor or factors relevant to the determination of interim duty that, in the opinion of the applicant, have changed; and
(c)a statement of the amount by which each such factor has changed and information to establish that amount.
Section 269Z(2) also authorises the Minister to request the CEO to review the rate of interim duty if a dumping duty notice has been published and the Minister considers that it may be appropriate to vary the rate of interim duty because one or more of the variable factors relevant to the determination of interim duty may have changed.
Section 269ZB(1) provides that, not later than 25 days after the lodgment of such an application or receipt of such a request, the CEO must publish a notice stating that it is proposed to review the rate of interim duty. Under section 269ZB(2) and (3) the notice must invite interested parties to make submissions, although the CEO may disregard any such submission received after the end of that period.
Section 269ZB(4) requires that the CEO must, not later than 100 days after the day of publication of the notice, and after considering the application for review any submissions made and any other material he or she considers relevant, give the Minister a report recommending either that the rate of interim duty remain as originally calculated, or that the rate of interim duty be altered, and setting out reasons for so recommending.
Section 269ZC then provides that, after considering the recommendation of the CEO and the reasons, the Minister must:
(a) declare that, with effect from the date of publication, the Act and the Anti-Dumping Act are taken to have had effect as if the Minister had, in the original dumping duty notice, fixed each of the variable factors relevant to the determination of interim duty at the respective amounts specified in the notice, or
(b) declare that each of the variable factors relevant to the determination of interim duty is to remain unchanged.
There is in force a dumping duty notice in respect of fiberglass gun rovings imported from Brazil to Australia by the applicant, such notice having been given on 5 December 1994 (“the Original Notice”). In about June 1995, the applicant increased the export price of the fiberglass gun rovings it exports to Australia to the non-injurious price set by the Original Notice. On 15 December 1995 the applicant lodged an application under section 269ZA for a review of the interim dumping duty rate applying to fiberglass gun rovings exported from Brazil on the basis that a variable factor, namely the export price, had changed.
On 9 January the CEO gave notice that a review had been initiated of the rate of interim dumping duty on fiberglass gun rovings and on 15 April 1996 the CEO gave a report to the Minister pursuant to section 269ZB(4) which found that changed circumstances had altered the level of the factors involved in setting the interim rate of duty. The report recommended that the ascertained normal value, the ascertained export price and the ascertained non-injurious price be revised upwards, but that there be no change in the actual rate of interim duty to apply to exports of fiberglass gun rovings from Brazil. In doing so the CEO gave consideration to the normal value, export price and non-injurious price. The applicant's complaint is in relation to the treatment by the CEO of non-injurious price.
In the course of the deliberations which led to the Original Notice, the Authority had determined a non-injurious price by reference to what was described as the unsuppressed selling price in 1991. In its report of 15 April 1996, the CEO said:
“as a result of its investigations during the course of this review, Customs considers that there had been a change in circumstances which leads it to the view that 1991 is not an appropriate base year to assess the unsuppressed selling price.”
I do not think that it is necessary for me to outline the reasoning which led the CEO to conclude that the Authority, in its deliberations, had not addressed the implications of certain evidence which was considered to affect the 1991 year. The CEO concluded that it was appropriate and reasonable to select another year on which to base unsuppressed selling price and recommended that 1990 be selected.
On 23 April 1996 the Minister accepted the recommendation of the CEO in the report of 15 April 1996 and, pursuant to 269ZC(1) by notice declared that the normal value, export price and non-injurious price, as ascertained in the Original Notice, would be amended as set out in the schedule to the notice. The net effect is that there is no reduction in interim duty. The complaint of the applicant is that the extent of the review undertaken by the CEO and accepted by the Minister is not authorised by section 269ZB(4) or 269ZC(1).The Minister and the CEO contend that the scheme of division 5 is that, once the review is triggered by an affected party who considers that one or more of the variable factors have changed, it is then open to the CEO, and consequently the Minister, to undertake a review of those factors on any basis which is considered appropriate. That, of course, is what the CEO did in the report of 15 April 1996. I do not consider that the Act authorises a review of that breadth.
There are two considerations advanced on behalf of the applicant which I regard as cogent in leading to that conclusion. The first relates to the interrelationship between division 2 and division 5 and the second relates to the language of division 5 and the scheme of division 3. It may be that it is inappropriate to treat them as separate matters. It really is a matter of recognising the scheme of Part XVB of the Act as a whole.
The functions of the CEO and the Authority under division 2 are distinct. While there may be some argument as to whether or not that distinction is to do with a hierarchical division of powers, there is no doubt that there is a distinction between the functions to be performed by the CEO and the functions to be performed by the Authority under division 2.
Counsel for the applicant likened the function of the CEO under division 2 to that of finding a prima facie case. That analogy I think is apt. The CEO is not called upon to conduct the same inquiry as the Authority conducts. The functions of the Authority are specified in the Anti-Dumping Authority Act 1988. They include recommending to the Minister whether the Minister should publish a dumping duty notice together with other functions that are there specified. More significantly, however, the Authority is required to hold an inquiry before giving to the Minister a report recommending whether any notice should be published.
The process specified in section 269TC and 269TD to be followed by the CEO does not involve an inquiry but, in effect, the calling for submissions which the CEO is required to consider. A significant factor to be considered in that process must be at least four factors relevant to the Minister being satisfied for the purpose of section 269TG. They are:
(a) the amount of the export price;
(b) the amount of the normal value of goods;
(c) material injury being caused or threatened to an Australian industry; and
(d)any causal connection between that injury on the one hand and the fact that the export price is less than the normal value on the other hand.
As a result of the process that is contemplated, an anti-dumping notice must specify three things, being the normal value, the export price and the non-injurious price. Whatever might be the scope of the process under division 2, all that is to be reviewed under division 5 are the three matters which are to be stated in a dumping notice. It is significant that what is involved is a review of the interim duty limited to the review of those three factors. Those three matters are the only matters which fall for review under division 5.
The scope of the exercise required under division 5 is narrower than the scope of the exercise which must be undertaken before a dumping notice is published. It would be curious if the limited review that is contemplated under division 5, as compared with the division 2 and division 3 process, left open the possibility that the base which was being reviewed could be completely undermined by reason of the CEO adopting a completely different approach to the establishment of the three matters which are reviewed.
In addition to those considerations is the language of section 269Z itself. What is involved is a consideration of whether any of the variable factors has changed. That signifies, in the context of the scheme of the Act in my view, that what the CEO was required to do was consider what had happened since the Minister published the Original Notice or last carried out a review. It would be curious, in my view, that, if the CEO were simply considering what had changed, he or she could nevertheless embark on an inquiry that undermined the conclusion reached by the Authority after the enquiry that which had been carried out under division 2.
Counsel for the respondents referred to the fact that it would be necessary to reconsider all of the three factors once the trigger for review had been pulled. He made reference specifically to the question of inflation, suggesting that it would be illogical for a review to ignore such a matter. That must be correct. However, the applicant’s response is that inflation is a change. That is also correct. What would have changed would be the value of money and that would have brought about circumstances where any of the three variable factors may have changed. That is clearly something which it would be appropriate for the CEO to consider. That, however, is a different consideration from investigating the underlying basis upon which the three factors had been determined for the purposes of the Original Notice.
I do not consider that section 269ZB(4) authorised the CEO, in the conduct of the review that is required by that provision, to go beyond the determinations that had been made by the Minister in accepting or considering the recommendation of the Authority in making the declaration in the Original Notice. I consider therefore that the applicant should succeed in this application.
I will make orders 1, 2, 3 in the amended application, and order that the respondents pay the applicant's costs.
I certify that this and the preceding eleven pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.
Associate:
Dated: 18 April 1997
Heard: 18 April 1997
Place: Sydney
Decision: 18 April 1997
Appearances:
Counsel for the Applicant: S.J. Gageler
Solicitor for the Applicant: Baker & McKenzie
Counsel for the Respondent: P. Roberts
Solicitor for the Respondent: Australian Government Solicitor
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