Stora Australia Pty Ltd v Anti-Dumping Authority
[1998] FCA 594
•2 JUNE 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - applicant seeking declaration under Judiciary Act 1903 (Cth) that inquiry of the Anti-Dumping Authority beyond power and unlawful - injunction sought restraining Authority from continuing inquiry – inquiry made pursuant to s 9(2) of the Anti-Dumping Authority Act 1988 (Cth) (“the Authority Act”) – whether such an inquiry can be made pursuant to s 9(2) where other provisions of the Act explicitly authorise and govern the holding of an inquiry – whether Authority can recommend the publication of a notice under s 269TG(1) of the Customs Act 1901 (Cth) when acting pursuant to s 9(2) – whether Authority can hold a special inquiry in respect of a negative prima facie decision – construction of the Authority Act – Authority Act authorises imposition of dumping duties in the national public interest – s 9 of the Authority Act to be construed according to ordinary meaning of its text – sufficiently wide to authorise inquiry and recommendation – application dismissed.
CUSTOMS – customs and excise – anti-dumping – importation of goods – imposition of dumping duty – inquiries and reports under Customs Act 1901 (Cth) and Anti-Dumping Authority Act 1988 (Cth).
Judiciary Act 1903 (Cth), s 39B
Anti-Dumping Authority Act 1988 (Cth), ss 3, 4, 5, 6, 7, 8, 9, 13, 14
Customs Act 1901 (Cth), ss 269TB, 269TC, 269TD, 269TF, 269TG
Customs Tariff (Anti-Dumping) Act 1975 (Cth), s 8
Acts Interpretation Act 1901 (Cth), s 15AB
Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs (1993) 40 FCR 332, applied
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, cited
Sarasvati v The Queen (1991) 172 CLR 1, cited
Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, cited
David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265, cited
Irish Country Bacon (Cooked Meats) Limited v Comptroller-General of Customs (1991) 32 FCR 355, applied
Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1933) 47 CLR 1, considered
STORA AUSTRALIA PTY LIMITED v
ANTI-DUMPING AUTHORITY & ORS
NG 382 of 1998
BRANSON J
SYDNEY
2 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 382 of 1998
BETWEEN:
STORA AUSTRALIA PTY LIMITED
APPLICANTAND:
ANTI-DUMPING AUTHORITY
FIRST RESPONDENTJOHN TERRENCE MCGUIRE
SECOND RESPONDENTAUSTRALIAN PAPER LIMITED
THIRD RESPONDENTJUDGE(S):
BRANSON J
DATE OF ORDER:
2 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 382 of 1998
BETWEEN:
STORA AUSTRALIA PTY LIMITED
APPLICANTAND:
ANTI-DUMPING AUTHORITY
FIRST RESPONDENTJOHN TERRENCE MCGUIRE
SECOND RESPONDENTAUSTRALIAN PAPER LIMITED
THIRD RESPONDENT
JUDGE(S):
BRANSON J
DATE:
2 JUNE 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE APPLICATION
By an application dated 24 April 1998 under s 39B of the Judiciary Act 1903 (Cth) the applicant seeks declaratory and injunctive relief. The declaration sought is in the following terms:
“…that the special enquiry notified by the Anti-Dumping Authority in the Commonwealth of Australia Gazette, No GN 9 of 4 March 1998, is beyond the power conferred on the First and Second Respondents by the Anti-Dumping Authority Act 1988 and unlawful.”
An injunction is sought restraining the Anti-Dumping Authority from continuing with the inquiry.
THE PARTIES
The applicant is a company which arranges for the placing of orders and the customs clearance of paper goods exported to Australia by a Swedish company, Stora Grycksbo AB.
The first respondent, the Anti-Dumping Authority (“the Authority”) is established by s 4 of the Anti-Dumping Authority Act 1988 (Cth) (“the Authority Act”). The Authority is not established as a body corporate. Section 13(1) of the Authority Act provides that the Authority shall consist of one member appointed by the Governor-General. Section 14(1) authorises the appointment by the Minister of a person to act as the member in specified circumstances. The second respondent, John Terrence McGuire, has apparently been appointed by the Minister pursuant to s 14(1) of the Authority Act to act as the member constituting the Authority. It would seem unnecessary to name both the Authority and the individual constituting the Authority as separate respondents to legal proceedings.
The third respondent, Australian Paper Limited (“Australian Paper”), moved the Court to be joined as a party to this proceeding. Ultimately it was joined as a party by an order made by consent, but on the condition that it seek no order in respect of its costs either at first instance or on any appeal. Australian Paper claims to be the only producer in Australia of coated paper.
BACKGROUND
A useful summary of the background to this proceeding can be found in section 1.1 of Report No 183 of the Anti-Dumping Authority dated February 1998, being the Authority’s “Review of the Australian Customs Service’s negative preliminary finding on certain coated paper from Finland, the Republic of South Africa and Sweden and coated paper between 75 and 90 gsm” (“the Report”). Section 1.1 of the Report reads as follows:
“1.1SUMMARY
On 19 June 1997, Australian Paper Ltd lodged an application with Customs requesting that anti-dumping measures be put in place in respect of exports of coated paper weighing between 75 and 150 gsm from Austria, Belgium/Luxembourg, Finland, France, Germany, Indonesia, Italy, Japan, Korea, the Netherlands, South Africa, Sweden, Switzerland and Taiwan.
Australian Paper claimed in its application that it is the only local producer of coated paper.
On 20 November 1997, the Australian Customs Service made a preliminary finding that ‘there is not an Australian industry producing like goods to A3 CWF [coated woodfree] paper, to CWF paper made from bagasse fibre or to CWF paper weighing less than 90 gsm’.
On 23 December 1997, Australian Paper asked the Authority to review Customs’ negative preliminary finding. It stated that:
… goods produced by Australian Paper compete directly with paper made from bagasse, paper having a weight less than 90 gsm and paper generally considered of slightly different quality (described by the ACS [Customs] in some documents as A3 quality). Such comparisons reveal similar physical characteristics. All compete in the same market and for which there is intense price competition. An objective and reasonable person could only conclude they are ‘like goods’ used interchangeably in the printing industry for a vast variety of printing jobs.
In the context of a dumping or subsidy inquiry like goods means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration.
Australian Paper produces coated woodfree papers of A2 grade in sheets weighing from 90 gsm to 150 gsm. This paper is used by printers to produce a wide range of products including reports, booklets, posters and promotional material.
The information available to Customs indicates that the characteristics of the coated paper produced by Australian Paper differ from those of A3 grade coated paper, coated paper produced using sugar cane fibre (bagasse) and coated paper weighing between 75 and 90 gsm.
Evidence was provided to Customs that there are differences in the end-uses of A2 paper and papers of the types under review. Australian Paper indicated to Customs that it would supply evidence to show that the goods were in fact close substitutes. This evidence was not provided.
Based on the information available to Customs, the Authority is satisfied that there is not an Australian industry producing like goods to A3 coated paper, coated paper produced using sugar cane fibre (bagasse) and coated paper weighing between 75 and 90 gsm. It therefore must confirm the negative preliminary finding by Customs.
The Authority, however, considers that special circumstances apply in the present case.
Customs was able to gather only a limited amount of information on the characteristics of the various grades of coated paper: A1, A2 and A3 and in respect of coated paper weighing between 75 and 90 gsm.
As part of its inquiry following Customs’ positive preliminary finding in respect of certain other exports, the Authority is considering inter alia the question of whether A1 coated paper is a like good to that produced by the Australian industry. Information gathered as part of this investigation suggests that papers of various grades are commonly substituted and that despite differences in characteristics between grades the products are treated by users as like goods.
The Authority is not satisfied that there is sufficient evidence before it to reach a truly informed decision in respect of A3 coated paper and coated paper weighing between 75 and 90 gsm.
The Authority has therefore decided:
·to confirm the negative preliminary finding by Customs in respect of A3 coated paper, coated paper produced from bagasse pulp and coated papers weighing between 75 and 90 gsm; and
·to initiate an inquiry, under subsection 9(2) of the Anti-Dumping Authority Act, into whether A3 coated paper and coated paper weighing between 75 and 90 gsm exported from the countries under investigation by Customs are like goods to those produced by the Australian industry and, if so, whether these goods have been dumped and caused or threaten to cause material injury to the Australian industry producing like goods to those being imported.”
By notice published in the Commonwealth of Australia Gazette No GN 9, 4 March 1998 the Authority gave notice of a “special inquiry on certain coated paper from Austria, Belgium, Finland, France, Germany, Indonesia, Italy, Japan, the Republic of Korea, the Netherlands, Sweden, Switzerland and Taiwan” (“the Inquiry”). The notice invited interested parties to make submissions to the Authority by no later than 13 April 1998. In this proceeding the applicant challenges the right of the Authority to initiate and conduct the Inquiry.
STATUTORY CONTEXT
The Authority has purported to initiate and conduct the Inquiry under s 9(2) of the Authority Act. It is convenient to set out s 9 of the Authority Act in its entirety.
“9(1) The Minister may, by notice in writing delivered to the Authority, request the Authority to consider, and prepare and give to the Minister a report on, an anti-dumping matter specified in the notice, and the Authority shall comply with the request as soon as practicable.
(2)The Authority may, where it considers it appropriate to do so, consider, and prepare and give to the Minister a report on, any anti-dumping matter.”
An “anti-dumping matter” is defined by s 3(1) of the Authority Act to mean –
“a matter relating to:
(a) the imposition of duties under the Anti-Dumping Act; or
(b)the operation of the Anti-Dumping Act or of Part XVB of the Customs Act 1901.”
The preparation of reports for the Minister under s 9 of the Authority Act is one of a number of functions of the Authority. The functions of the Authority are specified in s 5 of the Authority Act as follows:
“5. The functions of the Authority are:
(a)to recommend to the Minister under section 7 whether the Minister should publish a dumping duty notice or a countervailing duty notice in respect of goods and, where applicable, whether notices should be given under subsection 269TG (4) or 269TJ (3) of the Customs Act 1901;
(b)to recommend to the Minister under section 7 whether the Minister should, under section 269TAJ of the Customs Act 1901 revoke or partly revoke a notice under Part XVB of that Act or release or partly release a person from an undertaking given under that Part;
(ba)to review under section 7A any decision by the Comptroller to terminate his or her investigation of an exporter or of a country of export;
(c)to review under section 8 negative prima facie decisions and negative preliminary findings;
(ca)to recommend to the Minister under section 8A whether an anti-dumping measure within the meaning of that section should be continued; and
(d) to prepare and give to the Minister reports under section 9.”
Section 6 of the Authority Act is concerned with the powers of the Authority. It provides as follows:
“6.In addition to any other power conferred on it by this Act, the Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.”
The above provisions of the Authority Act are to be construed in their legislative context. The Authority Act is part of a package of legislative measures which derive from the Anti-Dumping Code of the General Agreement on Tariffs and Trade (“GATT”). The rest of the package is comprised of Part XVB of the Customs Act 1901 (Cth) (“the Customs Act”) and the Customs Tariff (Anti-Dumping) Act 1975 (Cth). The Customs Tariff (Anti-Dumping) Act 1975 (Cth) is referred to in the Customs Act as the “Anti-Dumping Act”. It will also be referred to in that way in these reasons. The legislative package is relevantly concerned to counteract “dumping” of goods in Australia. Dumping, in this sense, occurs when the products of one country are exported to another country at less than their normal value in the country of export.
The power to impose a dumping duty is vested in the Minister by ss 269TG(1) and (2) of the Customs Act. Subsections 269TG(1) and (2) provide as follows:
“269TG (1) Subject to section 269TN, 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:
(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; or
(ii)in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Anti-Dumping Act – material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;
the Minister may, by public notice, declare that section 8 of that Act applies to those goods.
(2)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, or the establishment of an Australian industry producing like goods has been or may be materially hindered;
the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Anti-Dumping Act applies to like goods:
(c)that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice; and
(a)the amount of the export price of which is less than the amount of their normal value.”
Section 8 of the Anti-Dumping Act operates to impose interim dumping duty and final dumping duty on goods falling within the scope of a notice issued under s 269TG of the Customs Act.
Section 269TB(1) of the Customs Act authorises persons to make requests to the Minister for the publication of a dumping duty notice. It provides as follows:
“269TB (1) Where:
(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii)may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;
(b)there is, or may be established, an Australian industry producing like goods; and
(c)a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
that person may, by application in writing lodged with the Customs in accordance with subsection (5), request that the Minister publish that notice in respect of the goods in the consignment.”
However, the power of the Minister to publish a notice under s 269TG imposing a dumping duty is not conditional on the making of an application under s 269TB: the power will arise whenever the Minister has the satisfaction referred to in s 269TG (Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs (1993) 40 FCR 332).
It is, nonetheless, necessary to notice the procedures required to be followed where a person lodges an application in writing with the Australian Customs Service (“Customs”) under s 269TB of the Customs Act. Section 269TC(1) requires the Chief Executive Officer of Customs (“the CEO”) to consider such an application and reach a decision concerning it. Section 269TC(1) is in the following terms:
“269TC (1) The CEO shall, within 25 days, or, if another period is prescribed, within that other period, after Customs receives an application under subsection 269TB(1) in respect of goods, examine the application and, if the CEO is not satisfied, having regard to the matters contained in the application and to any other information that the CEO considers relevant:
(a) that the application complies with subsection 269TB (4); or
(b)that there is, or is likely to be established, an Australian industry in respect of like goods; or
(c) that there appear to be reasonable grounds:
(i)for the publication of a dumping duty notice or a countervailing duty notice, as the case requires, in respect of the goods the subject of the application; or
(ii)for the publication of such a notice upon the importation into Australia of such goods;
he or she shall reject the application and inform the applicant, by notice in writing, accordingly.”
A decision of the CEO under s 269TC(1) of the Customs Act rejecting an application made under s 269TB(1) of that Act is referred to as a “negative prima facie decision” in the Authority Act. Under s 269TF(1) of the Customs Act a person whose application under s 269TB has been rejected by the CEO (ie. a negative prima facie decision has been reached) may apply to the Authority for the Authority to review the decision. Section 8 of the Authority Act requires the Authority, where an applicant in respect of an application made under s 269TB of the Customs Act refers a negative prima facie decision to it, to review the decision. The Authority must, within 60 days after the decision is referred to it, confirm the decision, or revoke the decision and substitute a decision accepting the application. Subsection 8(3) of the Authority Act provides:
“In conducting the review, the Authority shall not have regard to any information that was unavailable to the CEO at the time that the CEO made the negative prima facie decision or the negative preliminary finding, as the case may be.”
Where an application under s 269TB(1) is not rejected, the CEO must give public notice of the decision in accordance with s 269TC(4) of the Customs Act inviting submissions concerning the publication of the notice sought by the applicant. If, after consideration of any submissions lodged in respect of the application and such other matters as the CEO considers relevant, the CEO makes a preliminary finding that there are sufficient grounds for the publication of a dumping notice, the CEO must give public notice of that finding and, within seven days of the publication of that notice, refer the question whether the publication of the notice sought in the application is so justified to the Authority (s 269TD).
Subsection 7(1) of the Authority Act provides, so far as is here relevant, as follows:
“7. (1) Where, in relation to an application under section 269TB of the Customs Act 1901:
(a)the CEO refers to the Authority under subsection 269TD (2) of the Customs Act 1901 the question whether the publication of a dumping duty notice or countervailing duty notice sought in respect of the goods the subject of the application is justified; or
(b)the Authority revokes, under subsection 8(2), a negative preliminary finding relating to such goods and substitutes a preliminary finding to the effect that there are sufficient grounds for the publication of a dumping duty notice or countervailing duty notice in respect of the goods the subject of the application or that there will be sufficient grounds for such publication subsequent to the importation into Australia of such goods;
the Authority shall, after holding an inquiry into the matter and before the expiration of a period of 120 days, or, if another period is prescribed by the regulations for the purpose, before the expiration of that other period, after the reference, give to the Minister a report:
(c)recommending whether any such notice should be published and the extent of any duties that are or should be payable under the Anti-Dumping Act in consequence of such notice;
(d)in particular recommending whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; …”.
Part IV of the Authority Act provides for public notice to be given of inquiries to be held by the Authority under ss 7 or 8A of the Act, requires a public record to be kept of such inquiries, and gives to the Authority certain powers and protections to facilitate its inquiries.
CONTENTIONS OF THE APPLICANT
The applicant’s principal submission is based upon the well settled principle of statutory construction that -
“[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.” (Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 per Gavan Duffy CJ and Dixon J at 7).
The above statement of principle has been accepted in a number of subsequent decisions of the High Court (see R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550; Sarasvati v The Queen (1991) 172 CLR 1 at 23-25; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171-172, 180-182; and David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276).
The applicant draws attention to the explicit power given to the Authority by s 7(1) of the Authority Act to hold an inquiry and make a recommendation to the Minister in respect of the publication of a dumping duty notice. The applicant places emphasis on the statutory controls in respect of the circumstances in which such an inquiry is required to be held and in which it must be terminated and on the manner and timing of its conduct. It notes that none of the conditions imposed on the CEO and the Authority in relation to investigations and inquiries in relation to an application under s 269TB of the Customs Act applies in relation to the general power of the Authority to “consider, and prepare and give to the Minister a report on, any anti-dumping matter” under s 9(2) of the Authority Act.
The applicant submits that:
“[t]he power conferred on [the Authority] in general terms by section 9 of the Anti-Dumping Authority Act ought not be construed as encompassing a power to hold an inquiry or give to the Minister … a report recommending whether a dumping duty notice should be published. It ought not be construed as covering, without any conditions or restrictions, the same substantive subject-matter as the power conferred by section 7(1).”
The applicant further submits that the construction of s 9 of the Authority Act for which it contends is assisted by two textual considerations: first, the failure of s 9 of the Authority Act, in contrast with ss 7 and 8A of the Act, expressly to authorise an “inquiry”, and secondly, the terms of the definition of “anti-dumping matter” in s 3(1) of the Authority Act. As to this definition the applicant contends:
“The words “relating to” require there to be a connection or association between the “matter” considered and “the imposition of duties”: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (29 April 1998) at 87. The words are inconsistent with the “matter” considered being itself “the imposition of duties”. One thing cannot readily be said to “relate to” another thing if it is itself that other thing. That is because it is meaningless to talk about a connection or association between a thing and itself. A “matter relating to … the imposition of duties” is therefore naturally read as meaning something other than the imposition of duties.”
In the alternative, the applicant submits that if s 9 is sufficiently wide to authorise an inquiry into, and report on, whether a dumping notice should be published, the discretion conferred by s 9(2) should not be understood as enabling the Authority to circumvent the limitation imposed on it when conducting a review of a prima facie decision of the CEO. That is, as I understand it, the applicant contends that s 9(2) should not be construed as sufficiently wide to enable the Authority, where it has upheld a negative prima facie decision of the CEO, to then hold a special inquiry under s 9(2) for the purpose of undermining the effect of the negative prima facie decision.
CONSIDERATION
It is convenient to consider first the submission that s 9 of the Authority Act does not authorise the conduct of any inquiry by the Authority. That is, that in considering an anti-dumping matter, and preparing and giving to the Minister a report on such matter pursuant to s 9, the Authority may contemplate and reflect on the anti-dumping matter but not make any inquiries in respect of it. This submission, in my view, overlooks the powers given to the Authority by s 6 of the Authority Act. Section 5(d) of the Authority Act specifies the preparation and giving of reports to the Minister under s 9 of the Authority Act as one of the functions of the Authority. Section 6 of the Authority Act provides that the Authority “has power to do all things necessary or convenient to be done for or in connection with the performance of its functions”. In my view, few things could be more necessary or convenient to the preparation of a report on which a Minister of the Crown might be expected to place weight than appropriate inquiry into the subject matter of the report. I reject the contention that the Authority does not have the power to conduct an inquiry for the purposes of the preparation of a report to the Minister pursuant to s 9 of the Authority Act.
I also reject the submission that, in exercising its function under s 9 of the Authority Act of preparing and giving reports to the Minister, the Authority may not recommend that a notice should be published under s 269TG(1) of the Customs Act. Even if it be assumed, contrary to my inclination, that there is merit in the applicant’s argument that “one thing cannot readily be said to ‘relate to’ another thing if it is itself that other thing”, a recommendation as to the imposition of a duty on particular goods cannot in any sensible way, in my view, be regarded as the same thing as the imposition of duties generally. In my view a report containing a recommendation that a notice should be published under s 269TG(1) of the Customs Act declaring that s 8 of the Anti-Dumping Act applies to particular goods is a report on “a matter relating to … the imposition of duties under the Anti-Dumping Act”. (See the definition of “anti-dumping matter” in s 3 of the Authority Act.) I see no illogicality or incongruity in speaking of the relationship of a part of a thing to the whole of that thing.
I turn to the applicant’s principal contention, namely, that in view of the explicit power given to the Authority by s 7(1) of the Authority Act to hold an inquiry and make a recommendation to the Minister in respect of the publication of a dumping duty notice, s 9 of the Authority Act is not to be construed as authorising an inquiry and recommendation on the same topic.
It is important in considering the above contention to consider the nature of the legislative package of which ss 7 and 9 of the Authority Act are part. As is mentioned above, such package is comprised of Part XVB of the Customs Act, the Authority Act and the Anti-Dumping Act. The fact that the package derives ultimately from GATT confirms that it is intended to protect public national and international interests as well as the private interests of individual manufacturers and traders. Naturally, there is in the area of international trade considerable overlap between public interests and private interests.
Section 269TG of the Customs Act empowers the Minister to take action to impose dumping duties on goods where he or she is satisfied of certain matters. One way in which the Minister may become satisfied of such matters is by receiving and considering a report under s 7(1) of the Authority Act. As is noticed above, a report under s 7(1) of the Authority Act is the end product of a process which may be initiated under s 269TB of the Customs Act either by a person or by the government of a third country. However, the Minister may in fact become satisfied of the matters in respect of which he or she is required to be satisfied before imposing dumping duties without an application being made under s 269TB of the Customs Act. If so satisfied, the Minister is entitled to act pursuant to s 269TG of the Customs Act to impose dumping duties (Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs). That is, the Authority Act authorises the Minister to impose dumping duties in the national public interest notwithstanding that no individual or government of a third country has been moved to make an application in his, her or its respective interest under s 269TB of the Customs Act.
Once it is accepted, as it appropriately was in this case, that the power of the Minister to publish a notice under s 269TG of the Customs Act is not conditional on the making of an application under s 269TB, but will arise whenever the Minister has the satisfaction referred to in s 269TG, it follows, in my view, that implications should not lightly be read into the legislative package which could restrict the capacity of the Minister to act in the public interest. The construction of s 9 of the Authority Act for which the applicant contends would have this effect, in circumstances such as those out of which this case arises, by denying the Minister advice from the expert authority established by the Authority Act and by compelling the Minister, if he or she desires relevant advice, to seek it from a source other than such expert authority.
It seems to me that s 9 of the Authority Act should be construed according to the ordinary meaning of its text and free of the implication for which the applicant contends. I note that the Minister for Science, Customs and Small Business on the occasion of the moving by him of the motion that the Bill for the Authority Act be read a second time said:
“I might also mention that clause 9 of the Bill will permit the Government or the Authority to initiate anti-dumping inquiries where facts produced by interests indirectly concerned with a dumping issue can justify such action.”
Consideration of this material tends, in my view, to confirm that s 9 should be construed according to the ordinary meaning of its text (s 15AB of the Acts Interpretation Act 1901 (Cth)).
For the same reasons that lead me to reject the applicant’s principal contention, I reject also the applicant’s alternative contention that s 9(2) of the Authority Act should not be construed so as to enable the Authority, where it has upheld a negative prima facie decision of the CEO, to then hold a special inquiry for the purpose of undermining the effect of the negative prima facie decision. Were the Act concerned solely to protect private interests there might well be merit in this contention. However, I see no reason to imply a limitation of this kind upon the power of the Authority to provide advice to the Minister in a context in which the Minister has the power to act in the public interest when satisfied of certain matters.
I do not consider that my above conclusions involve any departure from the principle of statutory construction articulated in Anthony Hordern and Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia. Section 7(1) of the Authority Act is concerned to prescribe certain matters relating to the inquiry which the Authority is required to conduct in the two circumstances specified in the subsection. Those circumstances can only arise following the making of an application by a person or the government of a third country under s 269TB of the Customs Act. Plainly the Authority could not seek to invoke its general powers under s 9 of the Authority Act to avoid the prescriptions contained in s 7 of that Act. However, s 7 of the Authority Act is not a provision which seeks to place conditions or limitations upon the power of the Authority to conduct inquiries; it is concerned to place conditions and limitations on a particular kind of inquiry that the Authority is required to conduct.
I find some support for my above conclusions in Irish Country Bacon (Cooked Meats) Limited v Comptroller-General of Customs (1991) 32 FCR 355. Although there has been some amendments of the statutory provisions which Foster J was required to consider in the Irish Bacon Case, such amendments are not material for present purposes. In that case the Authority confirmed a negative preliminary finding of Customs. Nonetheless, having regard to information relevant to such finding derived from its own studies, it determined to initiate its own enquiry under s 9(2) of the Authority Act. As to this determination his Honour at 359 said:
“As I understand it, no submission is made that there was any error in the approach taken by the Authority to the first respondent’s negative preliminary finding or to its determination to proceed itself in the matter under s 9(2) of the Authority Act. Indeed, I am satisfied that the Authority clearly had power to initiate its own investigation in this way and at the point which the previous proceedings had reached.”
The application will be dismissed. I will hear counsel on the question of costs.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the Applicant: S Gageler, with S Lloyd Solicitor for the Applicant: KPMG Solicitors Counsel for the First and Second Respondents: G P Comans Solicitor for the First and Second Respondents:
Australian Government Solicitor Counsel for the Third Respondent: G A Flick SC with
R S HolloSolicitor for the Third Respondent:
C G Gillis & Co Date of Hearing: 21 May 1998 Date of Judgment: 2 June 1998
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