Australian Government Publishing Service
Canberra 1987

© Commonwealth of Australia 1987
ISSN 0815-3795
ISBN 0 644 06430 7
Printed in Australia by Watson Ferguson & Co., Brisbane ii

G.P.O. Box 9955
Canberra, A.C.T. 2601
6 February 1987
Dear Attorney-General,
I have pleasure in submitting to you herewith a report by the Administrative Review
Council entitled Review of Customs and Excise Decisions: Stage Three, Anti-Dumping and
Countervailing Duty Decisions.
Yours sincerely,
E.J.L. Tucker
Chairman
The Hon. Lionel Bowen, M.P.
Attorney-General
Parliament House
Canberra, A.C.T. 2600 iii

The members of the Administrative Review Council at the date of the Council’s adoption of this report were:
Mr E.J.L. Tucker (Chairman)
The Hon. Mr Justice J.D. Davies
Mr G.K. Kolts, OBE, QC
The Hon. Xavier Connor, AO, QC
Mr P. Brazil
Mr J.H.P. Disney
Mr P.J. Flood
Mr W.E. Impey
Mr J.F. Muir
The Hon. Mr Justice P.R. Munro
Mr A.D. Rose
Dr C.A. Saunders
The members of the committee responsible for overseeing the anti-dumping project at the date of the Council’s adoption of this report were:
Mr E.J.L. Tucker (Chairman)
The Hon. Mr Justice J.D. Davies
Mr P.J. Flood
Mr W.E. Impey
Mr J.F. Muir
This report follows circulation by the Council of a discussion paper. The Council wishes to thank, in particular, its consultant, Mr Jeffrey Waincymer, of Monash University, Melbourne, for his work in its preparation.
The Council also expresses its gratitude to both past and present members of its Secretariat for the assistance given in preparing this report, in particular current members
Mr Denis O’Brien (Director of Research) and Ms Bronwyn McNaughton (Project Officer), and former members Dr John Griffiths (Director of Research) and Mr Jeffrey Barnes (Project
Officer). iv

List of recommendations
Introduction
Consultation
Format of report
Chapter 1: The nature of dumping and subsidisation and present legislation
Dumping and subsidisation
Australia’s international anti-dumping and countervailing duty obligations
Outline of legislation
Anti-dumping and countervailing procedures
Customs
Complaints
Securities
Further investigations
Imposition of duty
Undertakings
Role of IAC
Chapter 2: Existing provisions for review of anti-dumping and countervailing decisions
Internal review
Paragraph
1
9
10
11
The Industries Assistance Commission
The proposed anti-dumping tribunal
The Administrative Appeals Tribunal
Commonwealth and state courts exercising general federal jurisdiction
Judicial review
The Commonwealth Ombudsman
Chapter 3: Review on the merits - proposals for reform
General principles of reviewability
Decisions concerning duty
59
61
Exemption from review by means of ministerial certificate
Reference to the IAC
Undertakings
70
72
73
Preliminary decisions 82
Facultative, transitional and internal administrative decisions 84
Securities
Proposals for change
86
89
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45
46
48
50
51
56
30
34
35
38
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16
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27
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40
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Chapter 4: The forum of review
The Ombudsman
The Industries Assistance Commission
The Administrative Appeals Tribunal
The Trade Practices Tribunal
The appropriate review body
Paragraph
92
95
100
109
113
Standing
Delay
Suggested restrictions on review process
Chapter 5: Confidentiality and costs
Confidentiality
Costs
Appendix 1: Persons or groups who made submissions to the Council
Appendix 2: Customs procedures for dealing with normal complaints
Appendix 3: Recommendations concerning review on the merits of decisions taken under the anti-dumping legislation
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151
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35 vi

Recommendation 1: Duty decisions (paras 61-9)
(1) The following decisions should be subject to review on the merits:
 decisions to declare that a section of the Anti-Dumping Act imposing dumping or
 countervailing duty applies to goods; decisions to exempt goods from dumping or countervailing duty;
 decisions to revoke a notice which has the effect of causing dumping or countervailing duty to be imposed on goods and decisions not to revoke such a notice.
(2) In order to facilitate review of all final decisions relating to the imposition of dumping or countervailing duty, legislation should provide that:
(a) the Comptroller-General may, at any time, terminate an investigation of a dumping or countervailing matter by notice in the Gazette; and
(b) where the Minister is satisfied that a notice declaring that a section of the Anti-
Dumping Act applies to goods should not be published, the Minister shall publish a notice in the Gazette to that effect, and the decisions of the Comptroller-General and the Minister, respectively, should be subject to review on the merits.
Recommendation 2: Ministerial certificates (paras 70-1)
(1) Notwithstanding recommendation 1, where a decision to declare that a section of the
Anti-Dumping Act imposing dumping or countervailing duty applies to goods is a decision taken -
(a) in retaliation to a duty imposed by a foreign country on goods exported from
Australia;
(b) as a result of a request by the government of a foreign country to impose dumping duty following actual or threatened injury within that country; or
(c) as a result of a request by the government of a foreign country to impose countervailing duty following actual or threatened injury within that country, the Minister should be empowered to issue a certificate, the effect of which would be to exclude review on the merits in relation to the decision, stating that the Minister is of the opinion that it is in the public interest that responsibility for the decision should remain with the Minister.
(2) A certificate issued in accordance with clause (1) should be personally signed by the
Minister and should specify one or more grounds upon which the certificate was issued.
(3) The Minister should be required to table in the Parliament within 15 sitting days of its issue a copy of a certificate issued in accordance with clause (1).
Recommendation 3: Reference of certain matters to the IAC (para. 72)
Sub-sections 15(2), (3), (3A) and (4) of the Anti-Dumping Act should be repealed.
Recommendation 4: Undertakings (paras 73-81) vii

A decision made by the Minister to accept or reject an undertaking should not be subject to review on the merits. viii

Recommendation 5: Determination of export price, normal value, etc (paras 82-3)
Decisions listed as preliminary decisions in Appendix 3 should not be independently subject to review on the merits but should be reviewable in the context of the review of a final decision which subsumes them.
Recommendation 6: Facultative, transitional and internal administrative decisions
(paras 84-5)
Decisions listed as facultative, transitional and internal administrative decisions in Appendix
3 should not be subject to review on the merits.
Recommendation 7: Decisions relating to securities (paras 86-8)
Decisions under the Customs Act 1901 relating to the imposition or non-imposition of securities in respect of duty that may be payable under the Anti-Dumping Act should not be subject to review on the merits.
Recommendation 8: The forum of review (paras 113-40)
Anti-dumping and countervailing duty decisions recommended for review on the merits should be reviewable by the Administrative Appeals Tribunal. ix

1. This report is the third stage of an examination of rights of review of decisions made under customs and excise legislation. In February 1980 the Council resolved that a committee be formed to undertake a general review of customs and excise legislation, and it was subsequently decided to undertake this project in five stages. Stages one, two and four have been completed. A report entitled Review of Import Control and Customs By-Law Decisions
(AGPS, 1982) had been transmitted to the Attorney-General in 1979. This was subsequently regarded as stage one of the project. The report on the second stage, Review of Customs and
Excise Decisions: Stage Two (AGPS, 1985), was transmitted on 28 June 1985. It dealt with review of decisions made under the Customs Act 1901 and regulations made pursuant to that
Act. The report on the fourth stage, Review of Customs and Excise Decisions: Stage 4, Censorship
(ALPS, 1986), was transmitted on 5 September 1985. Work has recently commenced on the fifth and final stage of the project which will deal with rights of review in relation to customs and excise decisions not dealt with in the earlier stages.
2. Following a review of anti-dumping administration conducted by the Department of
Industry, Technology and Commerce (‘the Department’) in 1983, amendments to the Customs
Tariff (Anti-Dumping) Act 1975 and related legislation were assented to on 14 March 1984.
Before those amendments came into force, the Senate Standing Committee for the Scrutiny of
Bills in its First Report, 7 March 1984, made the general comment that the Customs Tariff (Anti-
Dumping) Amendment Bill (No. 2) 1983, like the principal Act, gave the Minister a wide range of discretions which were not reviewable by the Administrative Appeals Tribunal. In responding to the Committee’s comments, the Minister undertook to seek an examination of
‘what, if any, provision should be made for administrative review of the discretions’. As a result of this undertaking, the then Attorney-General, Senator Gareth Evans QC, made a request in June 1984 to the Administrative Review Council to bring forward its plans to investigate anti-dumping appeals provisions.
3. The anti-dumping legislation dealt with in this report is the Customs Tariff (Anti-
Dumping) Act 1975 (the ‘Anti-Dumping Act’) and sections 42, 43 and 45 of the Customs Act
1901 in relation to anti-dumping and countervailing duty. Section references are to the Anti-
Dumping Act unless otherwise specified. The report focuses on the question whether decisions provided for in the legislation that are not currently subject to review on the merits should be so reviewable.
4. Anti-dumping and countervailing legislation is an attempt by the legislature to deal with certain types of what are alleged to be ‘unfair’ international trading practices.
Substantial sums of money are often involved in anti-dumping and countervailing disputes.
In addition to affecting the interests of importers and domestic industry, decisions may affect foreign exporters and their governments, local manufacturers utilising imported goods in their manufacturing processes, and domestic consumers. And any examination of the antidumping and countervailing duty area has to take into account the foreign trade policy implications of decisions in the area and the problems of data collection and interpretation.
5. A review of the existing system of anti-dumping duties has recently been undertaken by Professor F.H. Gruen of the Australian National University, at the request of the Minister for Industry, Technology and Commerce following a dispute concerning anti-dumping
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duties on fertilisers. See Professor F.H. Gruen, Review of the Customs Tariff (Anti-Dumping)
Act 1975 - Report, March 1986 (‘Gruen’). In his report, Professor Gruen wrote:
5.7 A continuing thread through submissions reflected a desire for more transparency in the process. More detail in reports, more open public hearings, release of all normal values and NIFOBs [non-injurious free on board values] and increased opportunity for various interests to comment on the ACS conclusions at various stages.
Suggestions for changed appeal provisions to the IAC, the Federal Court or the
Administrative Appeals Tribunal and proposals that the legislation be clarified and simplified were also made.
6. Professor Gruen commented also that many submissions had drawn attention to the length of time it took to process claims and the lack of comprehensive and adequate reviews of action and had made suggestions for automatic reference to the IAC after action had been in place for some time (para. 5.8). Professor Gruen recommended as follows:
8.10 Following the rewriting of the Act and in the light of the forthcoming report from the
Administrative Review Council, consideration should be given to extending the ambit of the Administrative Appeals Tribunal to appropriate decisions under the Act and to removing provision for appeals on the facts to the IAC.
7. The Council sometimes finds it necessary to recommend changes in primary decision-making procedures to facilitate effective review on the merits, and, in this case, some limited changes are suggested. However, the present primary decision-making procedures under the Anti-Dumping Act were dealt with in the report by Professor Gruen and, for the most part, these matters are not canvassed again in this report.
Recommendations for changes in the administration of dumping matters are set out in
Gruen at paragraph 7.2 ff.
8. The government’s response to the report by Professor Gruen was announced in a press release by the Minister for Industry, Technology and Commerce on 30 October 1986.
Amongst the proposals announced by the Minister was a proposal to establish an antidumping tribunal to make recommendations to the Minister on anti-dumping and countervailing action. It was also announced that the government proposed to amend the
Anti-Dumping Act by introducing a provision under which anti-dumping measures would cease after 3 years continuous application. It is understood that the government proposes to introduce the necessary amending legislation during the 1987 autumn sittings. This report is necessarily written on the basis of the existing law. At relevant places in the report, however, the changes to the Act foreshadowed by the government are referred to.
9. The submissions received in response to the discussion paper circulated by the
Council in July 1986 have been helpful in preparing this report and the Council expresses its gratitude to the persons and organisations which took the time to respond to the invitation to comment. A list of those who commented appears in Appendix 1. In the course of preparing this report officers of the Council’s Secretariat have also benefited considerably from consultations with officers of the Australian Customs Service (‘Customs’) and of the
Industries Assistance Commission (‘the IAC’).
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10. This report first considers the nature of dumping and subsidisation, Australia’s international obligations under various international codes and the present legislation. The existing means of review of decisions taken under the anti-dumping legislation are then set out. After outlining the basis which the Council has previously adopted for determining whether decisions should be subject to review on the merits, decisions which may be made in the course of action under the anti-dumping legislation are examined from the point of view of their appropriateness or otherwise for review. Next, the appropriate forum of review is considered. Finally the question of confidentiality of information provided during the course of any review proceedings and the question of costs are considered.
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11. Dumping occurs where the export price of goods exported to Australia is less than the amount of their normal value and anti-dumping duties may be imposed when, as a result of dumping, material injury to an Australian industry is caused or threatened (s.8(1)). The normal value of goods exported to Australia is the price actually or notionally paid for like goods in the ordinary course of trade in the country of export (s.5).
12. Subsidisation is a term applied to a variety of forms of direct or indirect assistance given by a foreign government to exporters from its country. Subsidies are employed by governments because of the internal social and economic benefits they are expected to produce. However, they may also have external effects. In particular, they may have detrimental effects on producers of competing goods in importing countries and on other exporters to those countries, and beneficial effects on importers and users of the goods.
13. Anti-dumping duties are duties imposed to combat the injurious effects of dumped imports on an Australian industry. Countervailing duties are duties imposed to offset the injurious effects of subsidies on goods imported into Australia. The duties may also be imposed where injury is caused to producers or manufacturers in a third country and the
Minister is requested by the government of the third country to impose the duty (ss.9 and 11).
14. Australia’s obligations in respect of proposed anti-dumping or countervailing actions are governed by the General Agreement on Tariffs and Trade (‘GATT’) which entered into force on 1 January 1948. Australia was one of the original contracting parties. Under the
GATT, dumping and subsidisation are not outlawed as such. Article VI of the GATT authorises the imposition of anti-dumping and countervailing duties subject to certain conditions. Under the GATT, anti-dumping or countervailing duty can only be imposed where the effect of the dumping or subsidisation is such as to cause or threaten material injury to an established domestic industry or is such as to retard materially the establishment of a domestic industry. Subsidies and countervailing duties are dealt with by Articles XVI and XXIII of the GATT.
15. Members of the GATT have negotiated agreements or codes relating to dumping and subsidies. These are referred to as the ‘Anti-Dumping Code’, the ‘Revised Anti-Dumping
Code’, and the ‘Subsidies Code’. Australia has acceded to these codes.
16. Although Australia first introduced anti-dumping legislative measures in 1906, the
Customs Tariff (Anti-Dumping) Act 1975 was enacted to give effect to Australia’s decision to accede to the initial GATT Anti-Dumping Code. The Anti-Dumping Act was extensively
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revised in 1981 to enable Australia to become a signatory to the Revised Anti-Dumping
Code, and further amendments in 1984 were the result of a government green paper and submissions on the paper.
17. The Anti-Dumping Act is drafted to give effect to the relevant codes but there are some differences between the legislation and the codes. The codes are of importance in any consideration of the Anti-Dumping Act for two main reasons. First, much of the administrative procedure concerning anti-dumping or countervailing action is not set out in the Act but appears in the codes. Secondly, if there is any ambiguity in the language of the
Act, resort may be had to the codes in resolving the ambiguity (D and R Henderson (Mfg) Pty
Ltd v Collector of Customs for NSW (1974) 48 ALJR 132, 135, per Mr Justice Mason).
18. The purpose of the Anti-Dumping Act was described by Mr Justice Sheppard in
Feltex Reidrubber Ltd v Minister for Industry and Commerce (1982) 46 ALR 171, 182-3 as follows:
Its essential purpose is the protection of Australian industry. Its object is to protect manufacturers here from exposure to what, as the GATT agreements indicate, is internationally regarded as unfair competition brought about by the dumping of goods on to the market at prices below which the goods would normally be sold in their home country. The Dumping Act sets out to achieve this purpose by imposing duties upon the importation of such goods. The duties are intended to force the exporter and/or importer of the goods back to a situation under which an amount (made up of export price plus duty) equivalent to a normal selling price will have to be paid. The complex of sections which make up the Dumping Act provide the machinery whereby all this is to be achieved.
The sections concerned are now outlined.
19. Following the terminology of the domestic legislation, dumping occurs where the export price of goods is less than their normal value (s.8). Normal value is calculated either by arms length sales of like goods in the ordinary course of trade in the domestic market of the exporting country by the exporter or other sellers, or if there are no such sales, by a constructed value of the goods or a representative price paid for like goods sold to third countries (s.5). Alternative methods of computing normal value can also be used where the government in the exporting country controls prices or where there is insufficient information to allow normal value to be calculated in the usual manner (s.5(3) and (4)).
Disputes may arise as to the choice of an appropriate third country, rejection of domestic prices in countries with centrally planned economies, ascertainment of a profit component where constructed value is utilised and choice between various methods of calculating normal values.
20. Export prices are usually easier to ascertain, being the sale prices to the importers
(s.4A(1)(a)). However the legislation incorporates alternative methods of calculating export price where the purchase of the goods by the importer was not an arms length transaction
(s.4A(1)(b), (2)). Normal value and export price need to be compared at the same level of trade and time and due allowances must be made for any differences affecting price comparability (s.5(5), (6)).
21. Before an anti-dumping duty can be imposed on goods, not only dumping but also injury to local production must be found. In this context, ‘injury’ means material injury to an
Australian industry, threat of material injury to an Australian industry or the material hindering of the establishment of an Australian industry (s.8(1)). The injury must have arisen by reason of the dumping. Thus there are three necessary elements: dumping, injury
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and causation. Where a preliminary determination of injurious dumping is made Customs has power to impose securities in respect of any anti-dumping duty which may be imposed
(Customs Act 1901, s.42(1)). In addition, undertakings may be sought from exporters of goods to Australia on the prices or quantities of future exports of like goods so as to avoid causing or threatening material injury to an Australian industry or hindering the establishment of an Australian industry (s.8(2A)).
22. ‘Australian industry’ is not defined in the Act. The concept of industry for dumping purposes is, however, defined in Part I, Article 4 of the Anti-Dumping Code as follows:
In determining injury the term ‘domestic industry’ shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that
(i) when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the industry may be interpreted as referring to the rest of the producers...
23. The imposition on goods of countervailing duties is also regulated by the Anti-
Dumping Act. Neither the Subsidies Code nor the Anti-Dumping Act contains a precise definition of a subsidy. Again subject to injury and causation requirements, a countervailing duty may be imposed where there has been paid or granted upon the production, manufacture, carriage or export of the goods a subsidy, bounty, reduction or remission of freight or other financial assistance (s.10). As Professor Gruen has said in his report, countervailing action was virtually unknown prior to 1982 and still accounts for an insignificant number of cases (Gruen, para. 2.3.6).
24. In addition to the codes and domestic legislation, certain international agreements require consultation before final action is taken (e.g. Australia, New Zealand Closer
Economic Relations - Trade Agreement, Article 15.4).
25. Anti-dumping and countervailing duties are special duties of customs and are in addition to any duty that may be payable under other Customs Tariff Acts (s.21). Under section 132 of the Customs Act 1901 the duties are due and payable at the time the goods are entered for home consumption. By virtue of section 153 of the Customs Act 1901, the duties are payable by the owner of the goods.
26. It is important to note that there are two aspects of anti-dumping or countervailing action. Its purpose is to prevent material injury to an Australian industry. However, its effects vary between different parties according to the activity they are involved in.
Decisions to declare that a section of the Anti-Dumping Act imposing dumping or countervailing duty applies to goods will remove the disadvantage suffered by particular companies in the Australian industry which produce goods with which the allegedly dumped imports compete (or in certain circumstances remove the disadvantage suffered by producers or manufacturers in another country) and will eliminate the advantage enjoyed by companies in Australia importing and using the goods concerned and companies exporting the goods to Australia. Decisions not to declare that such a section of the Act applies to goods may be alleged to be wrong and therefore may be perceived as disadvantaging the particular companies in the Australian industry which produce goods with which the allegedly dumped imports compete (or in certain circumstances producers or manufacturers in another country) and advantaging companies in Australia importing and using the goods and companies exporting the goods to Australia.
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Customs
27. Anti-dumping and countervailing laws are the responsibility of the Minister for
Industry, Technology and Commerce. Complaints are handled by the Dumping Division of
Customs.
28. Duties and securities are collected by State Collectorates of Customs. Overseas
3 investigations are conducted by officers of the Dumping Division. There are regional offices in Brussels, New York, Tokyo, Hong Kong and Auckland.
29. Administrative procedures for handling dumping and subsidisation complaints are not laid out in the Act or in regulations. Details of procedures are contained in literature published by Customs and are available to interested parties.
Complaints
30. The normal method for initiation of an investigation is a complaint by members of an
Australian industry. Customs has designed a questionnaire which must be completed in conjunction with the complaint and which seeks to elicit evidence of dumping or subsidisation and resultant material injury. The Anti-Dumping Code (Article 5.1) allows proceedings to be initiated without a complaint where there is sufficient evidence of the necessary elements but, in practice, it appears that Customs waits for complaints before initiating proceedings.
31. Upon receiving a complaint Customs examines it to determine whether to accept or reject it on the basis of the sufficiency of the evidence provided. Customs aims to conduct this initial examination as quickly as possible. If rejected, the complainant is advised and given reasons for the rejection.
32. A complaint will be further considered if it presents prima facie evidence of dumping
(or subsidisation) and injury, and if, after making inquiries of producers of like or competitive goods, Customs is satisfied that the complaint has the support of the local industry. Upon commencing to investigate a complaint, Customs notifies the public via an
Australian Customs Notice. The notice calls for submissions from interested parties. It also tells importers that it is in their interest to ascertain whether their purchase prices of current and projected shipments, at FOB level, are less than normal values and, if so, to decide whether to continue purchasing at those prices. Following notification, an administrative investigation is undertaken by Customs. The non-confidential section of the complainant’s completed questionnaire, together with any other relevant material, is supplied for comment, under cover of a letter from Customs, to the importers of the goods concerned. The government of the exporting country is also notified and is provided with similar data.
33. Interested parties are requested to respond to Customs questionnaires within 30 days.
At the same time Customs will undertake preliminary inquiries to ascertain if there is sufficient evidence of dumping and injury to enable a preliminary finding to be made. The
Minister requires Customs to reach a preliminary finding wherever possible within 55 days from the initial notification of acceptance of a complaint. If the preliminary finding is affirmative, Customs proceeds with further investigations. If a negative finding is made, the investigation is terminated.
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Securities
34. Provisional measures by way of cash or documentary securities may be requested during the investigation of a dumping or countervailing complaint. If Customs makes a preliminary affirmative finding of dumping (or subsidisation) and injury, securities may be imposed on the owner of the goods. The purpose of their imposition is to prevent injury by increasing the cost of the goods to the importer during the period of the investigation, although the selling price of the goods may nevertheless be maintained, pending Customs’ investigation, by an importer confident that no injurious dumping will be found. An amount taken as security may be converted to and retained as duty if, following completion of an investigation, a notice in respect of the goods concerned is published under section 8(1) or
10(1). Under section 42(1) of the Customs Act 1901, Customs is able to take securities to ensure compliance with conditions or requirements to which the importation of goods is subject and generally for the protection of the revenue of Customs. If a demand for payment of duty in respect of the goods is not subsequently made by a Collector of Customs, the amount of any cash securities is required to be returned to the owner of the goods.
Further investigations
35. The preliminary finding of dumping or subsidisation is publicly notified by a further
Australian Customs Notice. This outlines the conclusions reached and their basis together with details of any provisional measures to be applied. Customs also directly advises relevant parties of its preliminary findings. After an affirmative preliminary finding,
Customs attempts to arrange a meeting of interested parties within approximately two weeks of notification. There is no obligation on any party to attend. Additional meetings are at times held during the course of the investigations. After an affirmative preliminary finding, Customs also commences overseas inquiries to seek information in regard to normal values and export prices, and where appropriate the level of subsidisation, and to verify information provided to it. Further investigation will occur in relation to material injury and the causal link.
36. If Customs concludes that duties should be imposed, a report is made to the Minister.
Customs seeks to provide the report within sufficient time to enable the Minister’s decision to be taken and notified within 120 days of notification of the preliminary findings. Thus a final determination of a dumping complaint is intended to occur within 175 days of acceptance of the initial complaint.
37. Procedures with regard to countervailing complaints are similar, although there is an additional requirement to consult with the foreign government concerned. This leads to the recommended maximum time frame being 195 days. Appendix 2 sets out in table form the recommended time frames for Customs’ investigation of anti-dumping and subsidisation matters.
Imposition of duty
38. Once a final positive finding is made, duty is imposed on dumped goods by publication of a notice in the government Gazette. A Gazette notice under section 8(1) will have the effect of imposing dumping duties on specified goods that have been exported from a certain country where their export price is lower than their normal value. A Gazette notice under section 8(2) will have the effect of imposing dumping duties on specified goods exported from a certain country after the date of the notice if their export price is lower than their normal value. Normal values are assessed administratively from time to time. Export prices are checked for each shipment as they may vary and it is up to the State Collectorates to calculate the dumping duties applicable. Under the Anti-Dumping Act, the Minister may
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impose a level of duty less than the full dumping margin, that is, less than the difference between the export price and the normal value (s.8(5)). This may occur when a lower level of duty will prevent the injury (s.8(5A)).
Undertakings
39. Where a dumping or subsidisation complaint has been accepted and Customs has commenced an investigation of the complaint, the Minister may seek an undertaking from the exporter of the goods to Australia that the exporter will so conduct his future export trade to Australia in goods of the same kind as those goods as to avoid causing or threatening material injury to an Australian industry or hindering the establishment of an
Australian industry (ss.8(2A), 10(2A)). In the case of subsidisation complaints, undertakings may be sought from foreign governments (s.10(2A)). Upon accepting an undertaking, the
Minister may cease consideration of the export consignment in question. When undertakings are accepted, Customs monitors imports so that, if any breach is detected, securities may be imposed to enable duty to be imposed retrospectively (s.13(6), (7)). Where securities are imposed during an investigation and an undertaking from the exporter of the goods to Australia is subsequently accepted by the Minister, the Minister will consider whether all or some of the securities collected during the investigation period should be refunded to the importer of the goods. For example, if serious material injury has been caused during the investigation of a dumping complaint, the Minister will give specific consideration to publishing a notice under section 8(1).
Role of IAC
40. Section 15(1) of the Anti-Dumping Act empowers the Minister to refer to the IAC for inquiry and report a question as to the existence of any fact or facts relating to dumping or countervailing issues and material injury to an Australian industry. Section 15(4) provides for such a question to be referred to the IAC by the Minister in certain circumstances where a person engaged in, or concerned in the establishment of, an Australian industry has requested the Minister to publish a notice under section 8 or 10 in relation to goods of a kind with which persons engaged in that industry are concerned, and the Minister has declined to do so, or where such a person or an importer of goods has requested the Minister to revoke a dumping or countervailing notice. To date, the Minister has not referred a matter to the IAC on his own initiative. All thirteen of the IAC’s references under section 15 have been as a result of requests made to the Minister.
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41. This chapter discusses the extent to which anti-dumping and countervailing decisions are presently subject to review. The chapter also considers the role of the proposed antidumping tribunal which the government has announced. Reference is made to both review on the merits and judicial review. ‘Review on the merits’ refers to the power to review an administrative decision, taking into account all relevant facts and circumstances and, even though the decision may not be legally defective, to substitute a decision which is considered to be correct or preferable. Judicial review is review by the courts. It is concerned only with review of a decision on grounds related to its lawfulness.
42. In conformity with the general obligation imposed by the GATT to minimise the period for which anti-dumping or countervailing duty is in place, the Minister or
Comptroller may revoke a Gazette notice if, at any time after it has been published, he is satisfied that, in the circumstances at that time, the notice could not be published afresh
(s.20). Thus the Minister or Comptroller may reconsider and update normal value and injury determinations without any formal application by the relevant parties. It is understood that
Customs guidelines provide for review of normal value decisions at approximately 12 month intervals and injury decisions at 24 month intervals, depending on the availability of resources.
43. In addition, Customs will reconsider preliminary or final decisions at any time where a party is able to provide evidence that there have been changes to key factors. The reconsideration may be conducted by the officers involved with the initial decision. These internal practices are not reviews on the merits as such as they do not purport to reconsider the correctness of the decision in all the circumstances of the case. Rather they seek to determine whether the facts have changed to a sufficiently significant degree to suggest an alternative decision. Notwithstanding this they are important procedural processes because dumping and countervailing disputes are highly dynamic. Normal values, export prices and resultant injury may change considerably over short periods of time, as may other relevant factors, leading to problems in the local industry which are not related to the dumping or subsidy.
44. The Council notes that Professor Gruen, in his report, recommended a ‘sunset’ clause which automatically revoked an anti-dumping or countervailing notice after 2 years. He also recommended that a request to extend anti-dumping action beyond 2 years should require a reference to the IAC to examine assistance to the subject industry in accordance with the
IAC’s normal guidelines in section 22(1) of the Industries Assistance Commission Act 1973
(Gruen, para. 8.5). A form of the sunset clause recommendation has been accepted by the government (see para. 89) which has proposed that the sunset provision operate to bring the anti-dumping or countervailing measures to an end after 3 years. The Council considers below (para. 90) whether there should be provision for review of decisions on the merits in the light of the proposed sunset clause.
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45. As mentioned in paragraph 40 above, the role of the IAC in its anti-dumping inquiries is simply to report on the question of the existence of certain facts relating to dumping and countervailing issues and of related material injury to Australian industry. It does not reconsider the correctness of the decision. Thus, although in one sense the IAC may be regarded as conducting a review, it does not conduct a full review on the merits.
46. In a press release dated 30 October 1986, the Minister for Industry, Technology and
Commerce, Senator Button, announced, inter alia, the government’s intention to establish an anti-dumping tribunal to make recommendations to the Minister on anti-dumping and countervailing action. He also endorsed Professor Gruen’s recommendation that there be no
‘national interest’ provision written into the legislation.
47. At the time of writing this report, details of the anti-dumping tribunal were being formulated. According to the Minister’s press release, however, the proposed anti-dumping tribunal would be a small specialist tribunal, staffed by approximately 10 officers drawn mostly from the Minister’s portfolio. The tribunal is envisaged as having responsibility for developing guidelines and making judgments on questions of injury and the use of section 5(9) of the Anti-Dumping Act (relating to the calculation of normal values). It would rely on factual information provided by Customs, which would continue to receive dumping complaints and gather information on normal values and injury, and would make recommendations to the Minister on anti-dumping and countervailing action. It appears from the available information that the new anti-dumping tribunal is not being proposed as a review tribunal but as part of the primary decision-making process. The meeting of parties which Customs currently conducts in a dumping or subsidisation dispute (para. 35 above), or a similar hearing process, is likely to be conducted by the new tribunal.
48. It is generally assumed that the AAT (which has the power to review administrative decisions on their merits) has no jurisdiction to review the application of anti-dumping and countervailing legislation because such review is provided for neither in Schedule 1 to the
AAT Act nor in any other enactment. It is arguable that there is jurisdiction based on sections 167 and 273GA of the Customs Act and the wide definition of the words ‘customs tariff’ in section 4 of that Act but there is no record of this avenue of review having been employed.
49. In any event, any such jurisdiction of the Tribunal would not be freely available to all parties to anti-dumping and countervailing disputes. The ‘payment under protest’ system under the Customs Act contemplates appeals only by an owner of goods for the recovery of the whole or any part of the sum paid as duty, at the time of entry of the goods (Customs
Act, s.167).
50. To the extent that jurisdiction is conferred on them, relevant state and federal courts might also have jurisdiction in anti-dumping and countervailing matters by virtue of section
167(2) of the Customs Act, again because of the wide definition of the words ‘customs tariff’ in section 4 of that Act. Such potential appeals would have the same unsatisfactory
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characteristics as AAT review which was founded on these provisions (see para. 49). Again, there is no record of this avenue of appeal having been used in an anti-dumping or countervailing matter. In its Report No. 23, Review of Customs and Excise Decisions: Stage Two, the Council recommended that the right of appeal to a court of competent jurisdiction under section 167(2) should be abolished.
51. Judicial review of anti-dumping and countervailing action may be sought in the High
Court in its original jurisdiction under paragraphs 75(iii) and (v) of the Constitution and in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (‘the AD(JR)
Act’) and under section 39B of the Judiciary Act 1903.
52. The AD(JR) Act gives the Federal Court jurisdiction to review administrative action taken under a Commonwealth enactment. This would include review of departmental and ministerial decisions pertaining to the provisions of the Anti-Dumping Act. Recent examples of cases in which judicial review under the AD(JR) Act was sought of a decision to make a declaration under section 8 of the Anti-Dumping Act are Tredex Australia Pty Ltd v Button
(11 September 1986) and GTE (Australia) Pty Limited v Brown (31 October 1986).
53. Following litigation in the Federal Court which challenged decisions to impose securities (see, e.g., Tasman Timber Lid v Minister for Industry and Commerce (1982) 46 ALR 149 and Feltex Reidrubber Ltd v Minister for Industry and Commerce (1982) 46 ALR 171), regulations were made pursuant to section 19 of the AD(JR) Act to remove from the scope of that Act decisions to take cash or other securities under the Customs Act as provisional anti-dumping and countervailing measures. These regulations were later superseded by the Customs
Securities (Anti-Dumping) Amendment Act 1982 which amended Schedule 1 to the AD(JR) Act by adding to the classes of decisions that are not decisions to which the Act applies the following: decisions under section 42 of the Customs Act 1901 to require and take securities in respect of duty that may be payable under the Customs Tariff (Anti-Dumping) Act 1975.
54. From a practical point of view this change is unlikely to result in any loss of jurisdiction by the Federal Court, as that court has original jurisdiction with respect to matters in which relief is sought by way of mandamus, prohibition or injunction against an officer of the Commonwealth (s.39B, Judiciary Act 1903). In R v Hayes; ex pane J Wattie
Canneries Ltd (18 November 1986) this jurisdiction was exercised by the Federal Court in relation to a preliminary finding of dumping made by the Comptroller-General following which the Comptroller-General had sought to impose securities on J Wattie Canneries Ltd.
55. The point that needs to be made in relation to judicial review of a dumping or countervailing decision by the courts is that such review is concerned only with the legality of the decision. It is based on the facts that existed at the time the decision was made; it is not concerned with the merits of the decision; and the court cannot substitute its own decision for that of the administrator.
56. The Ombudsman is empowered under the Ombudsman Act 1976 to investigate complaints arising from administrative action by Commonwealth officials and statutory bodies. After conducting an investigation, the Ombudsman may, if he thinks fit, recommend
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that certain remedial action be taken, such as the payment of compensation. The
Ombudsman has, to date, investigated one anti-dumping case, as a result of which he recommended that an ex gratia payment be made.
57. The Council notes, however, that most of the ultimate decisions under the Anti-
Dumping Act are taken by the Minister. While the Ombudsman may investigate recommendations made by Customs (or, it is anticipated, the proposed new anti-dumping tribunal) to the Minister, he is unable to review the Minister’s decision itself.
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58. The decision-making powers under the Anti-Dumping Act and the Customs Act relating to anti-dumping and countervailing matters are considered in this chapter under the following headings:
 decisions concerning duty;

- ministerial certificates; undertakings;

 preliminary decisions; facultative, transitional and internal administrative decisions;
 securities.
The sections under which the decision-making powers are conferred are listed in full in
Appendix 3. In that Appendix each group of powers is preceded by a summary of the relevant recommendation made by the Council in this chapter concerning review on the merits.
59. A primary criterion for determining whether a decision made in the exercise of a decision-making power should be subject to review on the merits is whether the exercise of the power may significantly affect the rights or interests of a person. For a decision made in the exercise of a decision-making power to be appropriate for review on the merits, the decision-making power should generally be of a substantive nature; it should not be a power that is interim in nature, or the exercise of which is collateral or preliminary to the exercise of another power.
60. The status of a primary decision maker will not preclude review on the merits of his or her decision. In its Report No. 3, Review of Import Control and Customs By-Law Decisions
(AGPS, 1982), the Council said (at para. 20):
The justification for regarding any decision as unreviewable lies in the character of the substance of the decision. The identity of the decision maker is irrelevant to that decision.
Thus ministerial decisions may be appropriate for review on the merits, depending on their substance and character.
61. Decisions made under the Anti-Dumping Act to publish a notice under section 8, 9,
10 or 11 which has the effect of causing duty to be imposed on goods have the purpose of preventing material injury to an Australian industry. These decisions, and decisions not to publish such a notice, have an impact on particular companies and may affect their rights and interests to a significant degree. For example, the declaration under section 8(1) of the
Anti-Dumping Act notified in Gazette No S111, 9 June 1983, in relation to replacement spark plugs exported to Australia from the Federal Republic of Germany prior to the date of publication of the notice, clearly affected the interests of the importers, local manufacturers
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and users of spark plugs because, by virtue of section 8(3) of the Act, dumping duty became payable on the spark plugs exported to Australia.
62. One benefit of merits review of decisions concerning duty is that it would provide a means of independently verifying some of the key facts. It would, for example, provide a means of confirming the normal value of any goods exported to Australia (s.5).
63. The Council considers that decisions to publish a notice which imposes duty would be appropriate for review on the merits. Certainly, the impact of such decisions is reflected in. the demand for review - review on the merits of these decisions was supported by most of the submissions received by the Council on the discussion paper which preceded this report, although several submissions warned against the possibilities for delay and consequent injury to Australian industry that provisions for review might entail. The Council acknowledges that on occasions the time taken by the review process may be considered by business interests to be too long and thus to be unsatisfactory from the point of view of business certainty. Nevertheless, most submissions considered that the benefits of review were such as to outweigh possible disadvantages.
64. In the Council’s view, review on the merits should extend to decisions under section 20 of the Anti-Dumping Act to revoke a notice which has had the effect of causing dumping or countervailing duty to be imposed on goods, and decisions under sections 8(7),
9(7), 10(8) and 11(8) to exempt goods from duty. Such decisions may impact significantly on
Australian producers of like or directly competitive goods.
65. The Council is of the view that decisions under section 20 of the Anti-Dumping Act not to revoke a duty notice should also be subject to review on the merits. Where a duty notice is published the appropriate course of a person whose interests are affected would be to seek review of the decision to publish the notice. But where a duty notice had been in force for some time and such a person considered that the circumstances upon which the notice was based had changed and that the notice should be revoked, the only course open to that person would be to seek its revocation, as it would be likely at that stage that review on the merits of the decision to publish the notice would be time-barred. Since a refusal to revoke a notice in these circumstances may affect to a significant extent the interests of the person, the Council considers that review on the merits is appropriate.
66. Decisions to terminate an investigation may also impact significantly on members of an Australian industry, particularly where Customs has decided not to impose securities r on the goods in question. The investigation of a dumping complaint may be terminated where
Customs considers that there is not sufficient evidence of either dumping or injury to justify proceeding with an investigation. Termination in these circumstances is provided for in the
Anti-Dumping Code and, pursuant to the usual administrative procedures, Customs notifies complainants and publishes an Australian Customs Notice notifying the termination.
However, termination is not provided for in the Anti-Dumping Act. The Council considers that there should be review on the merits of termination decisions. If the Council’s later recommendation is accepted, that the AAT is the appropriate forum for review on the merits of anti-dumping decisions, then a legislative amendment would be required to provide specifically in the Anti-Dumping Act for termination decisions, as, pursuant to section 25(1) of the AAT Act, AAT review is only possible of decisions made in the exercise of powers conferred by an enactment.
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67. Other decisions not specifically provided for in the legislation which may significantly affect the interests of members of an Australian industry are decisions of the
Minister at the end of a Customs investigation that a notice having the effect of causing duty to be imposed should not be published.
68. In order to make appropriate provision for the review of termination decisions and of decisions not to publish a duty notice, the Council considers that, first, the Act should contain a provision empowering the Comptroller-General to terminate at any time an investigation of a dumping or countervailing matter. There may be a need for some
‘backfilling’ behind a provision along these lines, as there is currently nothing in the Act dealing with the administrative procedures concerning complaint investigation. Secondly, the Act should provide that, where the Minister is satisfied that a notice declaring that a section of the Act applies to goods should not be published (that is, in effect, where the
Minister is satisfied that no anti-dumping or countervailing duty should be imposed), the
Minister shall publish a notice in the Gazette to this effect. There should then be provisions for review on the merits of, in the first case, termination decisions and, in the second case, decisions of the Minister that a notice declaring that a section of the Act applies to goods should not be published. The Council’s view that there should be review of termination decisions is influenced in part by its recommendation made later in this report that decisions not to impose securities should not be subject to review on the merits. If decisions not to impose securities are not subject to review on the merits, and if review of termination decisions were not to be provided for, an Australian industry might be denied any opportunity of seeking review.
69. It is understood that a key reason for not providing in the anti-dumping legislation for some important administrative procedures (such as the termination of a dumping or subsidisation investigation) is a constitutional one: the view is taken that, as Australia’s antidumping and countervailing legislation is a taxing Act, the Constitution, in stipulating that taxing Acts cannot deal with any matter other than taxation, precludes the incorporation of administrative procedures. If this factor were to be seen as precluding amendments of the kind suggested here, separate legislation could be passed.
Recommendation 1: Duty decisions
(1) The following decisions should be subject to review on the merits:
 decisions to declare that a section of the Anti-Dumping Act imposing dumping or

 countervailing duty applies to goods; decisions to exempt goods from dumping or countervailing duty; decisions to revoke a notice which has had the effect of causing dumping or countervailing duty to be imposed on goods and decisions not to revoke such a notice.
(2) In order to facilitate review of all final decisions relating to the imposition of dumping or countervailing duty, legislation should provide that:
(a) the Comptroller-General may, at any time, terminate an investigation of a dumping or countervailing matter by notice in the Gazette; and
(b) where the Minister is satisfied that a notice declaring that a section of the Anti-
Dumping Act applies to goods should not be published, the Minister shall publish a notice in the Gazette to that effect, and the decisions of the Comptroller-General and the Minister, respectively, should be subject to review on the merits.
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Exemption from review by means of ministerial certificate
70. Customs, in its submission, suggested some exceptions to the general principle that decisions concerning the imposition or non-imposition of dumping or countervailing duty should be subject to review. Those exceptions relate to cases where the decision to impose duty is not based on injurious dumping or subsidisation affecting an Australian industry and the matter directly concerns:
(a) retaliatory action to a duty imposed by a foreign country on Australian goods
(s.10(28), (2C), (2D), Anti-Dumping Act);
(b) a request by the government of a foreign country to impose dumping duty following actual or threatened injury within that country (s.9, Anti-Dumping Act - third country dumping duties); or
(c) a request by the government of a foreign country to impose countervailing duty following actual or threatened injury within that country (s.11, Anti-Dumping Act - third country countervailing duties).
71. In these situations, the decisions are made as a reaction to duty imposed as an aggressive foreign trade action by another country or as a result of a request to Australia by a foreign government. Demonstration of injury to an Australian industry producing like or competitive goods would not be required, although importers and users of the goods concerned in Australia would be affected. Considerations of Australia’s international trade or international relations would be the major factor in such decisions. These decisions are, in the Council’s view, of such a nature that the government should be in a position, if it considers it appropriate, to take final responsibility for them. A decision of this kind should not be subject to review on the merits if the Minister issues a certificate stating that the
Minister is of the opinion that it is in the public interest that responsibility for the decision should remain with the Minister. Such a certificate should be personally signed by the
Minister and should state the grounds upon which the certificate was issued. Since the issue of a certificate which has the effect of excluding review on the merits is predicated on the basis that responsibility for the decision should remain with the government, the Council considers that political accountability for the decision, and for the decision to grant the certificate, would be enhanced if the Minister were required to table in the Parliament a copy of the certificate.
Recommendation 2: Ministerial certificates
(1) Notwithstanding recommendation 1, where a decision to declare that a section of the
Anti-Dumping Act imposing dumping or countervailing duty applies to goods is a decision taken -
(a) in retaliation to a duty imposed by a foreign country on goods exported from
Australia;
(b) as a result of a request by the government of a foreign country to impose dumping duty following actual or threatened injury within that country; or
(c) as a result of a request by the government of a foreign country to impose countervailing duty following actual or threatened injury within that country, the Minister should be empowered to issue a certificate, the effect of which would be to exclude review on the merits in relation to the decision, stating that the Minister is of the opinion that it is in the public interest that responsibility for the decision should remain with the Minister.
(2) A certificate issued in accordance with clause (1) should be personally signed by the
Minister and should specify one or more grounds upon which the certificate was issued.
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(3) The Minister should be required to table in the Parliament within 15 sitting days of its issue a copy of a certificate issued in accordance with clause (1).
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Reference to the IAC
72. As mentioned above (para. 40), section 15(4) provides for a matter to be referred to the IAC for inquiry and report where a person engaged in, or concerned in the establishment of, an Australian industry has requested the Minister to publish a notice under section 8 or 10 in relation to goods and the Minister has declined to do so or where such a person or an importer of goods has requested the Minister to revoke a dumping or countervailing notice and the Minister has declined to do so. The Minister is obliged to refer the matter to the IAC unless the matter has been referred to the IAC within the 2 year period immediately preceding the request. The Council is of the opinion that if decisions not to cause a notice to be published (see recommendation 1(2)(b)) and decisions not to revoke a notice (see recommendation 1(1)) are subject to review on the merits, then sub-sections 15(2), (3), (3A) and (4) of the Anti-Dumping Act should be repealed in order to avoid an unnecessary duplication of review processes in relation to decisions not to publish a duty notice and decisions not to revoke such a notice.
Recommendation 3: Reference of certain matters to the IAC
Sub-sections 15(2), (3), (3A) and (4) of the Anti-Dumping Act should be repealed.
73. As was mentioned in paragraph 39 above, undertakings may be sought and accepted in respect of either dumping duty (s.8(2A)) or countervailing duty (s.10(2A)). Under the
Australian legislation, upon accepting an undertaking, the Minister is empowered to suspend indefinitely his consideration of the export of the consignment in question, and, contrary to the relevant codes (Anti-Dumping Code, Article 7.3 and Subsidies Code,
Article 4.5(B)), interested parties are unable to force the Minister to complete the investigation. (Both codes indicate that if the undertakings are accepted, the investigation of injury shall nevertheless be completed if the interested party so desires. The intention of the codes is to allow the parties to seek a final determination which would either vindicate the undertaking or remove any grounds for its establishment.) The effect of the Australian legislation, then, is that an acceptance of an undertaking is a final decision, notwithstanding that under the terms of the Anti-Dumping Act the Minister does not in fact terminate the investigation but rather may ‘suspend indefinitely his consideration of the export of that consignment’ (see ss.8(2A) and 10(2A)). A decision not to accept an undertaking is not, however, a final decision as the investigation by Customs would continue and a final decision would be reached at a later stage.
74. An essential element of an undertaking is that it is voluntary. No exporter is forced to enter into an undertaking. It may be given by an exporter of goods to Australia (s.8(2A)) or by the government of the country of origin of allegedly subsidised goods (s.10(2A)) and may be accepted by the Minister. Of course, negotiations may take place as to the terms of an undertaking before it is accepted by the Minister.
75. Because the acceptance of an undertaking essentially concludes a bargain between the exporter or country of export on the one hand and the Minister on the other hand, it seems to the Council that such a bargain should not be reviewable on the merits at the instance of the parties to the undertaking.
76. Both Customs and the Commission of the European Communities in their submissions to the Council addressed the question whether the rejection of an undertaking should be subject to review on the merits. As the submission from Customs pointed out, the
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rejection of an undertaking is likely to be of concern to the relevant exporter who would not have offered it if not satisfied of the merit of doing so. However, if the concern of the exporter in offering an undertaking were a desire to avoid findings of injurious conduct being made public in the usual manner, the exporter might prefer to continue negotiations as to the terms of an undertaking rather than to seek review. The absence of a provision for review on the merits would have the positive effect of encouraging continuation of negotiations between the exporter and Customs. Furthermore, the absence of a provision for review on the merits of a rejection of an undertaking would not be critical so far as the exporter was concerned. The rejection of an undertaking would mean that the investigation of the dumping or subsidisation complaint would continue and, at the end of the process, if duty were imposed, the exporter would be able, if the Council’s recommendation were accepted, to seek review of the decision concerning duty. The Council therefore does not recommend review of the rejection of an undertaking.
77. A further and difficult question is whether the acceptance by the Minister of an undertaking should be reviewable at the instance of any persons, other than the parties to the undertaking, whose interests are affected by the undertaking. It can be argued that a member of the Australian industry should have an opportunity to seek review if it considers that the price accepted in the undertaking is not in fact sufficient to remove injury.
78. The Council recognises the force of the argument that the industry, or some companies within it, may consider that the price offered and accepted in the undertaking is less than the normal value of the goods concerned and is not sufficient to remove injury.
Nonetheless, the Council considers, on balance, that review of undertakings should not be provided for. If review were to be provided for, it would be impossible for the Minister to ensure that his consideration for entering into the undertaking, namely, that he will suspend indefinitely his consideration of the export consignment in question, will be provided. This is because, should a review be sought, the review itself would take the place of the investigation.
79. Furthermore, the nature of the act to be reviewed, the acceptance of an undertaking, is not well suited to review on the merits by an external review body. Undertakings are a means of resolving dumping and countervailing complaints in a relatively speedy way without the necessity for final decisions being made. They generally result from negotiations, may involve political considerations relevant to Australia’s international trading relations and may be prompted by considerations such as the desire to avoid the publicity or costs of an investigation of a dumping or countervailing complaint. In the view of the Council, these are matters best left to be determined by the Minister who, before deciding to act, would seek consultations with such persons in Australia or overseas and with such foreign governments as he thinks fit. The Council would expect that the Minister would not exercise his power to accept an undertaking contrary to the reasonably held views of the Australian industry. The Council notes that Article 7 of the Anti-Dumping Code requires that an undertaking not be accepted unless the Minister is satisfied that the price offered in the undertaking is sufficient to remove injury to Australian industry. In its submission, Customs points out that the Australian industry would have been involved in the calculation of the non-injurious price. That price would be calculated having regard to any findings of the investigation to that point into the complaint made by the Australian industry.
80. In any event, the industry is free to request Customs to review the price levels on specific grounds or is free to lodge a further complaint if injury continues. And section 8(2A)
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provides concerning dumping undertakings (and s.10(2A) provides similarly in the countervailing area) that, as a precondition to the acceptance of an undertaking, the exporter must undertake ‘in terms that are satisfactory to the Minister, that the exporter will so conduct his future export trade to Australia ... as to avoid causing ... material injury to an
Australian industry’. There would appear to be grounds for a successful judicial review application in respect of the Minister’s decision to accept an undertaking if the undertaking plainly would not have the effect of removing injury.
81. Finally, it should be noted that undertakings are not common. Three were accepted in Australia in 1984-85 (Gruen, para. 2.4.1).
Recommendation 4: Undertakings
A decision made by the Minister to accept or reject an undertaking should not be subject to review on the merits.
82. The decision whether or not to impose dumping or countervailing duty involves the calculation of normal values, export prices, the amounts of subsidies, freight rates, rates of profit, etc. While the Anti-Dumping Act gives some guidance (e.g. s.12(2) defines ‘normal freight’), wide discretionary powers exist in many instances to determine, a method of calculating a certain amount (e.g. see s.5(3) in relation to calculating normal value) or to take into consideration ‘relevant’ matters (e.g. s.5(4)). Such decisions are preliminary to the final decision to impose or not to impose duty, and are subsumed by the final decision. The
Council considers that they should not be separately subject to review but that they should be subject to review on the merits as part of a final decision.
83. It is recognised, as Mr Carmichael, Chairman of the Industries Assistance
Commission, pointed out in his submission to the Council, that such preliminary decisions will often be at the heart of a final decision in regard to the imposition of duty, and therefore that the appropriateness of the particular method by which a normal value or export price is calculated, for example, could be crucial to merits review of a final decision to impose duty.
The Council accepts this view. Review of the facts concerning, for example, normal value, may be critical to any review of a decision concerning duty. However, in the Council’s view, to provide for review of such preliminary decisions prior to a final decision being made would be to hamper unnecessarily the administrative decision-making processes and would lead to a wasteful diversion of resources.
Recommendation 5: Determination of export price, normal value, etc
Decisions listed as preliminary decisions in Appendix 3 should not be independently subject to review on the merits but should be reviewable in the context of the review of a final decision which subsumes them.
84. The powers of the Minister under sections 15(1) and (4) to refer a matter to the IAC for inquiry and report are not of a substantive nature. They are rather facultative powers which may enable the making of a substantive decision. The power of the Minister under section 19(1) to delegate certain powers is a power of an internal administrative nature.
Decisions made under these powers do not affect the rights or interests of persons to a significant extent. Consequently, the Council considers that they are not appropriate for
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review. In any event, the Council has recommended the repeal of section 15(4) (see recommendation 3).
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85. The power of the Minister under section 3(3) to revoke a notice in force before the commencement of the Anti-Dumping Act is a transitional power. The Council has been advised that the section is effectively spent as all notices outstanding under former antidumping legislation at the commencement of the Anti-Dumping Act have been superseded by notices under that Act. Thus it is considered that there is no need to provide for review on the merits of decisions under that section.
Recommendation 6: Facultative, transitional and internal administrative decisions
Decisions listed as facultative, transitional and internal administrative decisions in
Appendix 3 should not be subject to review on the merits.
86. Securities in respect of any duty that may be payable on goods under the Anti-
Dumping Act are valid for a maximum period of 6 months. Before the expiration of that period, a security must be cancelled: section 45(2), Customs Act 1901. A decision to impose securities is notified publicly by means of an Australian Customs Notice which commonly provides that the securities will apply to goods entered for home consumption after the date of publication of the notice. Once a security has been cancelled, no duty may be called up on the goods concerned. The cancellation of a cash security results in repayment of the cash deposit. If a security remains in force, however, a retrospective notice having the effect of causing duty to be imposed on the goods concerned may be published. This is the effect of sections 13(1) and (2) of the Anti-Dumping Act which provide as follows:
(1) Subject to this section, the Minister shall not cause a notice to be published under sub-section 8(1), 9(1), 10(1) or 11(1) in respect of goods that have been entered for home consumption.
(2) Sub-section (1) does not prevent the publication of a notice under sub-section 8(1),
9(1), 10(1) or 11(1) in respect of goods that have been entered for home consumption in relation to which security has been taken under section 42 of the Customs Act in respect of any duty that might become payable under section 8, 9, 10 or 11 of this Act, as the case may be (not being security that has been cancelled) by reason of the publication of such a notice or in relation to which the Customs had the right to require and take such security (not being security that would have been cancelled in accordance with the Customs Act if it had been taken).
87. The Council considers that if decisions to declare that a section of the Act imposing dumping or countervailing duty applies, and decisions to terminate an investigation, are subject to review then decisions of an interim nature to impose securities, or not to impose securities, should not be subject to review. It would be difficult to establish a procedure for review of decisions relating to securities which would allow sufficient time for applicants to prepare and present a case and for adjudication before the final decision concerning the imposition of duty was made.
88. On balance it is felt that the short term nature of anti-dumping and countervailing securities, and the difficulty of ensuring a comprehensive review on the merits prior to the final determination being made, render a decision relating to them inappropriate for such review.
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Recommendation 7: Decisions relating to securities
Decisions under the Customs Act 1901 relating to the imposition or non-imposition of securities in respect of duty that may be payable under the Anti-Dumping Act should not be subject to review on the merits.
89. On 30 October 1986, the Minister announced certain proposals to change the antidumping legislation. Among other things, he announced that it had been decided to introduce a provision pursuant to which anti-dumping measures would cease after 3 years of continuous application. There would be no prohibition on a fresh application for antidumping action after this period. If such an application were made, the matter would not automatically be referred to the IAC (c.f. the recommendation made by Professor Gruen, para. 7.2.15). The change would, however, mean that injury and other aspects required to justify anti-dumping action would be fully re-tested after 3 years of continuous application.
90. While the Council has written this report on the basis of the legislation as it stands, it notes this proposal for legislative change. However, in the Council’s view, a ‘sunset’ clause of this type would not affect the recommendations made in this report. The Council considers that a 3 year period is a significant enough time to warrant the review measures recommended.
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91. It has been the view of the Council that, in the absence of compelling reasons to the contrary, jurisdiction to review administrative decisions on the merits should be vested in the AAT rather than specialist tribunals (see Eighth Annual Report 1983-84, para. 52).
However, the investigation of anti-dumping and countervailing matters already involves a specialist body, namely the Industries Assistance Commission. In addition, there is the
Trade Practices Tribunal, set up under the Trade Practices Act, to review certain determinations of the Trade Practices Commission. This body has no current jurisdiction in respect of anti-dumping matters, but its potential role warrants some consideration because of its function in reviewing economic and commercial issues in another area. In this context, then, the question of which is the appropriate body to conduct review on the merits cannot be answered simply on the basis of avoiding the proliferation of specialist tribunals which was a key concern of both the Kerr and the Bland Committees (P.P. No. 144/1971 at para. 233, P.P. No. 316/1973 at para. 123), although certainly this general principle would be relevant to whether a new specialist body should be established. In this chapter, features of the IAC, the AAT and the Trade Practices Tribunal are described and the question of an appropriate review forum is then addressed. First, however, the role of the Ombudsman is considered.
92. As noted in paragraphs 56-7 above, the Ombudsman is able to investigate certain anti-dumping or countervailing duty complaints, although he is unable to investigate decisions of the Minister. His investigations are conducted in private. Despite the availability of review by the Ombudsman, the Council is of the opinion that there is also a need for anti-dumping and countervailing duty disputes to be determined by means of a hearing procedure which allows evidence to be put forward by each of the parties and then to be tested. This is particularly so where evidence may be difficult to collect, or conflicting.
93. Considerations of a suitable remedy are also relevant. The appropriate remedy in many disputes under the Anti-Dumping Act will be a different decision having immediate effect rather than an apology, compensation or other remedial action. The appropriate review body must therefore be equipped to ensure that the correct or preferable decision is substituted with immediate effect where a decision of the Minister or the agency is found to be wrong.
94. Thus it seems to the Council that, despite the availability of the Ombudsman to deal with certain complaints that may arise under the Anti-Dumping Act, there is a need also to ensure that adequate arrangements exist for review on the merits by an adjudicative review tribunal with a suitable dispute resolution procedure and expertise, and with power to order the requisite remedial action.
95. The Anti-Dumping Act stipulates that the Minister may refer to the IAC for inquiry and report a question as to the existence of any fact or facts of which he is required to be
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satisfied. In certain circumstances, where a person involved in an Australian industry requests either that the Minister publish a notice imposing duty or that he revoke such a notice, and the Minister proposes not to accede to the request, the Minister may be obliged to refer a matter to the IAC if requested to do so by the person (s.15).
96. In its tariff activities, the IAC is required to consider what is in effect the national economic interest and to balance the various sectoral interests, but these considerations do not apply in dumping and countervailing references pursuant to section 15 of the Anti-
Dumping Act, following an amendment to the IAC Act in March 1984.
97. The IAC may hold public hearings. Advertisements are placed in the press advising that anyone may attend and give views. Six weeks notice is usual. The hearings of dumping matters take on average one to two days. There is no representation and no crossexamination although persons who are in essence representatives may appear as witnesses.
Persons are allowed to speak or present written submissions. The Commissioners question witnesses to elicit relevant information and evidence may be taken in private. The IAC has coercive powers but has never used them. In the past it has also gained a substantial amount of information by its own research outside the public hearings.
98. The Minister may refer a matter to the IAC either before or after he has made a decision. In so far as any reference to the IAC is made at a time before a notice is published, the IAC’s function is part of the investigative primary decision-making process rather than a review process. In practice, however, reference has only been made to the IAC after a decision has been made by the Minister. Thus its inquiry may be considered a review.
Pursuant to the terms of section 15 of the Anti-Dumping Act, it does not, however, reconsider the correctness of the decision as such, but concentrates on the factual elements involved. It does not, therefore, conduct a review on the merits of the decision.
99. The IAC conducts its investigations with a view to making recommendations rather than determinations. Its expertise is predominantly in the economic area although its charter under section 15 of the Anti-Dumping Act in relation to anti-dumping matters is to inquire and report as to the existence of ‘facts’. Decisions on statutory interpretation may also be involved. As its dumping reports clearly show, the IAC must often do more than merely find facts. For example, in the Polyvinyl Chloride Homopolymer report (5 October 1983,
No. 330), it had to consider whether sales at a loss could be considered to be within the ordinary course of trade and thus acceptable for the purposes of calculating normal value.
Hence in finding the ‘fact’ of the actual normal value, the IAC had to make a decision on the meaning of that expression. In preparing its report Certain Nitrogenous Fertilizers
(27 January 1984, No. 337), the IAC requested advice on a number of matters, including this particular question of sales below cost, from the Attorney-General’s Department.
100. The Administrative Appeals Tribunal has jurisdiction to review a decision only where it is conferred specifically by enactment (s.25, AAT Act). No jurisdiction has been conferred on it in relation to anti-dumping and countervailing duty matters, although it has a significant jurisdiction and experience in other kinds of customs disputes (136 out of the
1556 matters finalised by the AAT in 1985-86 arose in its Customs jurisdiction - ARC Tenth
Annual Report 1985-86, Appendix 5). An appeal lies from the AAT to the Federal Court on a question of law.
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101. The standing criteria of the AAT Act (s.27) allow an application for review to be made by or on behalf of any person or persons whose interests are affected by the relevant decision, although an enactment which provides for applications to the AAT may modify these standing criteria in relation to applications under that enactment (s.25(6)). The relevant interests need not be pecuniary or even specifically legal rights (Re McHattan and Collector of
Customs (New South Wales) (1977) 1 ALD 67 at 69, citing Bilbao v Farquhar [1974] 1 NSWLR 377 at 380 per Hutley JA), but must be interests affected by the decision itself rather than merely the review (Re McHattan, supra, at 69).
102. The standing criteria of the AAT Act, then, without modification, would encompass a wide range of applicants who, in anti-dumping or countervailing duty appeals, might include importers of goods to Australia and exporters of those goods from other countries, in addition to their competitors, and Australian manufacturers, consumers and users. The potential applicant would be required to show that his or her interests were affected in the relevant way by the decision under appeal.
103. The parties to proceedings before the AAT may include persons other than the applicant and the decision maker. Pursuant to section 30(1A) of the AAT Act, the AAT may join as a party to a proceeding before it any person, other than the applicant, whose interests are affected by the decision and who has applied to be made a party. The AAT’s scope to join parties in this way is an important consideration in an area such as anti-dumping where disputes may be complex and may affect a diversity of interests.
104. The membership of the AAT covers a wide range of expertise and experience, and it has a flexibility of constitution which enables it, for example, to deal with disparities in case loads over time, or to assign presidential or more experienced members to cases where complex legal issues and matters of interpretation are involved. It has significant experience in the review of discretionary decision-making and can be constituted in a multi-disciplinary mode if required.
105. The AAT has pre-hearing procedures, involving directions and preliminary hearings, which may narrow the ambit of disputes and thereby assist in minimising costs.
Additionally, the AAT Act imposes an obligation on decision makers to provide reasons which is of assistance in defining the grounds on which an application may be based. Allied to that obligation is the use of ‘section 37 statements’ once an application has been made to the AAT. Pursuant to section 37 of the AAT Act, where a decision is the subject of an application for review by the AAT, a decision maker is required to lodge material documents with the AAT. Material documents include a statement setting out the findings on material questions of fact, referring to the evidence on which those findings were based and giving the reasons for the decision.
106. Other relevant aspects of the AAT as a forum for review are its provision for representation, legal or otherwise, of parties, and its attitude to admissible evidence. This is less restrictive than the courts (s.33(1)(c), AAT Act) and is useful where much of the information relied on could fall foul of the traditional rules of admissibility. The AAT is able to elicit relevant evidence from witnesses appearing before it; it may also obtain additional statements from the decision maker (ss.37(2), 38), summon a person to appear (s.40(1A)), take evidence on oath or affirmation (s.40(1)(a)) and inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)).
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107. Although generally the AAT’s hearings are conducted in public, in special circumstances it may order private hearings and exclude a party from a hearing or a part of a hearing (s.35(2), AAT Act). Similarly, sections 36 and 36A are provisions pursuant to which the Attorney-General may certify that the disclosure of certain documents and information would be contrary to the public interest (s.36) and pursuant to which the Attorney-General may inform the AAT that the answering of certain questions would be contrary to the public interest (s.36A), although in certain instances the AAT retains a discretion to order either disclosure or answering.
108. Most fundamentally, the AAT has available to it a variety of powers on review. It may affirm, vary or set aside the decision under review, and where it does set the decision aside, it may make a decision in substitution or remit the matter to the decision maker for reconsideration (s.43, AAT Act). The AAT reviews questions of law as well as fact.
109. It was suggested in the submission by Customs that the potential role of the Trade
Practices Tribunal (‘TPT’) in relation to anti-dumping matters warranted consideration.
110. The TPT is established under Part III of the Trade Practices Act 1974 to review determinations of applications for authorisation of restrictive trade practices made by the
Trade Practices Commission. The TPT has no current jurisdiction in respect of anti-dumping matters, but, as Customs pointed out, it is a legally oriented review body, headed by a judge of the Federal Court, which reviews legal, economic and commercial issues involving a high degree of complexity.
111. A review by the TPT is a re-hearing of the matter and it may make a determination affirming, setting aside or varying the determination under review, and for the purposes of the review, perform all the functions and exercise all the powers of the original decision maker (the Trade Practices Commission). At the conclusion of its review, a determination of the TPT is deemed to be a determination of the Trade Practices Commission.
112. The procedure of the TPT is within its own discretion. It is not bound by the rules of evidence, and its hearings are conducted in public except where confidentiality requires otherwise. Legal representation is permitted.
113. Many factors are relevant to the selection of an appropriate forum of review for antidumping and countervailing duty matters. Perhaps the most important consideration is a hearing procedure, not limited in the matters it may canvass, which allows full and proper testing of the evidence, particularly as the evidence may be difficult to obtain and often incomplete or contradictory. A suitable hearing procedure would also observe the rules of natural justice and ensure that parties are fully apprised of the case against them and given adequate opportunity to test and/or rebut the evidence and present their own cases.
Moreover, persons who are called upon to adjudicate disputes which might arise in antidumping or countervailing duty matters must be capable of resolving complex matters of fact and law, of assessing the merits of each particular case, and of applying the law to the situation in question.
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114. Because of the important and large role played by commercial and statistical data in decision making in the dumping area, the appropriate review body must be equipped to handle such matters. Several submissions have indicated that their support for the AAT as an appropriate review body is subject to the condition that the AAT be armed with the relevant commercial, statistical and economic expertise. The IAC has available to it a high degree of expertise in these areas, but its capacity to act as a review body in the antidumping and countervailing duty area is hampered by a lack of legal expertise. The TPT has legal, economic and commercial expertise and experience, although it works in a highly specialised area and lacks specific experience in the customs or anti-dumping jurisdictions.
115. In the Council’s view, there is not sufficient similarity between the work of the TPT in reviewing authorisation decisions of the Trade Practices Commission and review of antidumping or countervailing decisions under the Anti-Dumping Act. The former is work of a specialised nature and it is probably appropriate that the expertise of the TPT be confined to the trade practices area. The TPT is not, therefore, further considered in this chapter as a possible forum for review of such decisions. The respective roles of the AAT and the IAC do, however, warrant further consideration.
116. As mentioned in para. 99, the IAC may request legal advice from the Attorney-
General’s Department. In such cases, advice is tendered by that Department without having heard the parties to the dispute or their representatives. This is one reason why the IAC may not be the appropriate review body in the anti-dumping area. In the Council’s view, it is inappropriate that the review body not be able to come to its own conclusions on matters which involve interpretation of perhaps complex legal questions. If a legal question has to be referred to experts, the review body may feel bound to follow that advice. The AAT, on the other hand, may be constituted in such a way as to have specific expertise to deal with questions of law (see para. 104).
117. The Chairman of the IAC, in his submission, put the view that in conducting its review of the facts of a case the IAC considers all relevant facts and circumstances in reaching a judgment as to whether there has been dumping and injury and whether there has been a causal link between the two, and therefore that it is difficult to see how, in practical terms, the IAC’s approach differs from what the Council has described as review on the merits. It is undeniable that the kind of review conducted by the IAC exhibits many of the features of review on the merits. This was certainly the view taken by Mr Justice Neaves in Tredex Australia Pty Ltd v Button (11 September 1986) in which his Honour said that a reference to the IAC under section 15 ‘will involve a review on the merits of the basic factual issues supporting the declaration under sub-s.8(1) of the Anti-Dumping Act’. However, the limitation on the IAC in regard to the review of complex legal questions that may arise, particularly in the context of analysis of the legislative provisions (which Professor Gruen has labelled ‘complex in the extreme’ [Gruen, para. 7.2.1, see also 7.2.2 and 7.2.3]), is considered a significant limitation on its ability, as it is presently constituted and functioning, to take on the role of review of administrative decisions made under anti-dumping legislation. That such questions may arise is illustrated by Mr Justice Burchett’s decision in
GTE (Australia) Pty Ltd v Brown (Federal Court, 31 October 1986) in which a careful analysis of section 5 of the Anti-Dumping Act was involved in order to ascertain the normal value of the goods in question.
118. A further limitation on any role for the IAC as an objective review body arises from its place in the development and appraisal of economic policy objectives rather than dispute
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resolution. An appropriate forum for review on the merits must be independent of governmental policy formulation.
119. The commercial questions facing a review body in the anti-dumping and countervailing area are not considered to be such as to render the AAT unsuitable for reviewing these decisions. As in any of the jurisdictions in which the AAT operates, the
AAT would be required to deal with expert evidence and perhaps information from the sections of the department which have been involved in investigating a dumping or countervailing complaint, and it would reach its decision after considering this evidence.
Difficulties of interpretation are appropriately handled by a body with legal expertise.
Furthermore, a determination of whether an industry has been injured is a matter for expert evidence and a review body would have for guidance the list of factors included in the legislation (s.5A).
120. It should also be noted that there are similarities between the AAT’s current jurisdiction and any potential jurisdiction in anti-dumping or countervailing duty matters.
For example, the AAT in its current tariff jurisdiction may be required to deal with elements such as imputed price in a customs valuation; and its jurisdiction under the Nitrogenous
Fertilizers Subsidy Act 1966 involves elements such as export price, normal value, or whether goods have been carried freight free. Thus the AAT already is familiar with many of the types of issues which would need to be determined in the review of an anti-dumping or countervailing duty dispute and would be well-placed to assume this jurisdiction.
121. The AAT, with its range of members, can be constituted in a multi-disciplinary mode when required. The structure of the AAT facilitates the obtaining of the requisite expertise by the appointment of members with the appropriate expert knowledge. Indeed, it already has several members with commercial experience. This could be advantageous when dealing with matters such as dumping and countervailing duty disputes, where commercial, economic and legal issues are involved. Indeed, the AAT’s experience is in dealing with problems that are a conglomeration of factual, legal and policy elements.
122. In the resolution of a dispute relating to anti-dumping or subsidisation matters, it would seem to the Council that a determinative rather than a recommendatory power is necessary if disputes are to be resolved satisfactorily. The IAC does not exercise the function of making final determinations at present - rather, it makes recommendations to the
Minister. If it were to take on a determinative role, some change in procedure in relation to its conduct of anti-dumping matters would be desirable, in order to conform with traditionally accepted minimum standards of natural justice. To do so, however, could alter significantly its advisory capacity, and would result in the IAC operating under different sets of procedural rules and practices, depending on the type of matter it was investigating.
123. The Australian Federation of Consumer Organisations Inc, in its submission, adverted to the need for a review body to be wary of establishing precedents which imported too great an inflexibility on economic policy in an area with the sensitivity and changing circumstances of Australia’s international trade. Professor Gruen also recognises the need for flexibility (Gruen, para. 6.3.6). There is no reason in principle why the AAT could not meet this challenge. It should be noted in this connection that decisions of the
AAT are determinative of the case before it (subject to an appeal on matters of law) but are based on the particular facts of the case and are not necessarily considered binding precedents for later cases.
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124. Of more fundamental concern to the question of the appropriateness of the IAC to review anti-dumping and countervailing duty decisions on their merits is that the ‘review’ conducted by the IAC on a referred matter under section 15 of the Anti-Dumping Act is not designed as a means of dispute resolution. The function of the IAC pursuant to sub-sections
15(2), (3), (3A) and (4) is to advise the Minister in relation to facts relevant to his decisionmaking power and thereby to enable him to make a fresh decision if necessary; it does not reexamine an ‘old’ decision.
125. The view may furthermore be taken that the IAC’s role in policy formulation is not the most appropriate one for a review body. It may be argued that, although a review body in dumping and subsidisation matters must be able to take account of government policy, a body which is essentially geared to policy formulation and advice may not be suited to the function of adjudication. In the Council’s view this argument carries weight. An adjudicative review body such as the AAT is more likely to be able to deal satisfactorily with anti-dumping and countervailing disputes. At the same time, if the AAT were to be the review body, it could be expected to deal satisfactorily with policy questions. Although it is not bound by government policy, in practice it tends to give such policy great weight. When reviewing decisions in which policy has played an important role, the AAT is usually reluctant to interfere with it, especially if the policy has largely been adopted in the political arena after consultation with appropriate persons and groups (see, for example, Re Aston and
Secretary, Department of Primary Industry (1985) 8 ALD 366, 380).
126. A particularly important issue in the anti-dumping and countervailing duty area is the adjudication of questions of causation - that is, whether the dumping or subsidisation has caused the particular injury identified. The causation concept is not defined in the Anti-
Dumping Act. The Act merely states that the Minister may publish a dumping notice in the
Gazette where the export price of the goods is less than their normal value and ‘by reason thereof’ material injury is caused or threatened to an Australian industry (s.8; see s. 10 in relation to countervailing duties). Neither the code nor the Act indicates what degree of causation is necessary.
127. There are a considerable number of factors that arguably could lead to injury to a domestic industry and the more potential factors identifiable, the more difficult identifying causation becomes. The large number of potential causative factors and the difficulty of apportioning injury objectively where there are so many variables, the effects of which cannot readily be tested empirically, may be a difficult aspect of review of many antidumping and countervailing duty decisions.
128. Questions concerning injury highlight the importance of economic factors and considerations in the dumping and subsidisation area. The IAC has both the economic expertise, the background information and the staff to develop statistics on economic aspects. For the AAT, such aspects would be matters for judgment on the evidence, but it is important to note that the AAT would not be approaching the problem afresh but would be dealing with a problem already considered by the administrator. The methodology employed by the administrator would no doubt be critically examined and, if the IAC had played a part in this process, a great deal of economic and statistical analysis would be available. In addition, interested parties would in many instances call expert witnesses, particularly where large sums of money were involved. Conflicting evidence from economic witnesses could be evaluated by the AAT just as the Trade Practices Commission is able to do in anti-trust matters. The trade practices’ experience demonstrates that a legally oriented body is able to deal with complicated commercial and economic concepts. In any case, the
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membership of the AAT could easily be expanded if necessary to include economists, accountants, etc, to ensure that it had the necessary expertise to hear anti-dumping and countervailing matters.
129. The Council believes that, although there may be several possible outcomes of each review of an anti-dumping or countervailing duty action, the AAT is the best equipped body to provide the correct or preferable decision based on all the circumstances of each case, and that, in the interests of certainty and in keeping with the overwhelming tenor of AAT jurisdictions, the AAT should have its usual power to make a decision binding on the parties to the review. This is despite the Queensland Government’s submission that a recommendatory power would mean that the Minister would properly retain final decisionmaking power, and Simpson Ltd’s argument that, because of the nature of the area, some discretion must remain with Customs and the Minister. The Council has recommended
(recommendation 2) that in appropriate cases the Minister be able to retain the power of making a decision which could not subsequently be subject to review on the merits. When the AAT approaches each case on a case-by-case basis with a view to making an adjudication, a decision binding on the parties, unless it be overturned by a court, is an appropriate outcome. This is not to remove discretion from primary decision makers but, over time, to assist in formulating guidelines to aid the consistent and rational exercise of such discretion.
130. In proposing the AAT as the review body, the Council has borne in mind Professor
Gruen’s recommendation 8.2, that the Anti-Dumping Act be amended ‘to clarify its meaning, to ensure speedy and effective application of necessary measures to promote fair trade, [and] to ensure a transparent and predictable mechanism which does not become a substitute form of assistance’, and that ‘[p]rovided the [Anti-Dumping] Act is worded clearly, the AAT could provide a useful function in establishing operating guidelines for the ACS’ (Gruen, para. 7.2.15). It has also relied on the AAT’s usual procedure of hearing evidence, including, it is to be expected, expert evidence, which would enable it to make an adjudication on the economic and market facts relevant in each case.
Standing
131. The Council notes Professor Gruen’s remarks that access to the anti-dumping system could be improved (Gruen, para. 7.1.10) - for example, unions, farmers, importers, manufacturers of ‘like goods’ and manufacturers who use imported materials or parts may be interested in the outcome of dumping and subsidisation matters. The broad standing criteria of the AAT (AAT Act, s.27; and see para. 102) are noted in this regard. (The IAC’s public hearing procedure which allows anyone to express a view would also accommodate a wide range of participants.)
132. The question was raised in submissions whether foreign interests should be able to appeal against Australian anti-dumping action. In a case where duty was imposed, the importer of the goods would be the person most directly affected by the decision in question, and in a case where no Australian interest initiated an action, it would be highly unlikely that overseas interests would do so. However, the broad standing criteria of the AAT Act
(s.27) would not prevent an application for review from such interests, in the unlikely event that that situation were to occur. Furthermore, interested parties other than the applicant, whether local or foreign, may be joined as parties to AAT proceedings. Simpson Ltd suggested that, if overseas exporters have access to Australian review procedures,
Australians should have reciprocal rights in other countries. The rights of Australian exporters in other countries, however, are not a matter appropriate for the Council to pursue.
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Delay
133. An almost universal concern of the submissions received by the Council was the time taken to resolve anti-dumping matters. Concern was expressed both at the time currently taken at the primary decision-making stage and at the potential any appeal system might have to protract a matter. Customs guidelines (see Appendix 2) indicate the time frame within which Customs attempts to operate, but Professor Gruen refers to the Dumping
Branches’ ‘less than full performance of the review functions and failure to meet [various] targets for processing cases’ (Gruen, para. 7.2.18), and recommends a review of staffing
(para. 8.17) in order to achieve the desired goals.
134. The Council notes that the greater the time lag between dumping and the implementation of effective anti-dumping measures, the greater the harm which may be caused to an Australian industry, whereas the aim of anti-dumping action is to minimise or prevent the possibility of such harm. In capital intensive industries, in particular, loss of volume during the currency of an anti-dumping investigation may be critical. Financial loss resulting from any sustained loss of volume may mean irreparable harm which could render useless anti-dumping action.
135. There may be a 4-6 months delay in resolving appeals before the AAT, and the complex and highly technical nature of anti-dumping and countervailing duty appeals would not assist in achieving speedy resolution. In practice, it is unlikely that many cases would be resolved at the pre-hearing stage and, given present Customs procedures which allow for the making of submissions and the meeting of parties during a dumping inquiry, it is in practice also unlikely that the AAT’s pre-hearing procedures would significantly narrow the ambit of dispute. As substantial commercial interests may be involved, the engagement of senior counsel may be anticipated and it has been suggested to the Council that the involvement of counsel does not necessarily speed the resolution of disputes and at times may lead to the raising of highly technical obstructions which delay procedures. Thus it would appear that even if matters were to be listed promptly, the appeals procedure could prolong the resolution of a dispute.
136. In this regard, however, the Council draws attention to the usual situation under the
AAT Act whereby the original decision stands unless and until it is overturned or modified on appeal. Section 41(1) of the AAT Act states:
Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
137. This general rule is subject to the qualification that the AAT may, on request by a party to a proceeding before it, if it is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make an order staying the operation of the decision as considered appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review (s.41(2)). An application for review by the AAT, then, would not affect the imposition of anti-dumping or countervailing duty, or a decision not to make a declaration that duty be imposed, unless a stay order were granted. So far as decisions not to make a declaration are concerned, it is difficult to see how a stay order could be granted. So far as decisions to make a declaration concerning duty are concerned, it is unlikely that a stay order would be granted because of the effect such an order might have on local manufacturers. It is true that an appeal may
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affect the certainty of any action, but the Council believes that balanced against this, the interests of justice would almost always tip the scale against the making of a stay order.
Suggested restrictions on review process
138. Various suggestions have been made to the Council with a view to limiting the number of anti-dumping appeals and thereby eliminating a potential avenue of abuse of the anti-dumping system-for example, the Australian Council of the International Chamber of
Commerce suggested an initial assessment of the merits of any application for review, and suggested also that parties to a dispute be obliged to attend preliminary informal discussions aimed at resolving the dispute. The AAT pre-hearing procedure (see para. 105) already operates in such a way that, wherever possible, pre-hearing procedures aim to resolve disputes prior to a hearing. As to the suggestion that there be an initial assessment of the merits of an application for review, the Council feels that, although the suggestion is superficially attractive, its implementation would tend to increase any delay in the system because it would involve an extra step of assessment. On the other hand, the AAT’s usual preliminary conferences, as described above, would tend to focus the parties’ attention on the relevant issues and to some extent function as an initial assessment of the merits of the application for review.
139. Arthur Phillips and Just suggested that review be available only if leave is given by the review tribunal, on a national interest basis. They argued that the national interest is involved in determining anti-dumping and countervailing duties and that this is entirely consistent with the spirit, obligations and intent of the GATT provisions and the codes which
Australia has adopted. To allow unfettered or unlimited review, they suggested, is likely to undermine the authority of the responsible department and consequently inhibit it in its decision-making tasks.
140. The Council is of the opinion that the introduction of a leave requirement is not justified. A leave procedure is not considered warranted when its potential for added expense and delay of review is considered. It is unlikely that the introduction of an appeal to the AAT would undermine the authority of either Customs or the Minister, or inhibit the primary decision-making process. Appeal to the AAT is not an uncommon provision today, and experience shows that an external and independent review body may contribute to the development of sound practices and guidelines at the primary decision-making stage and assist in building up a body of criteria to guide the exercise of decision-making powers. The
Council also does not agree with the suggestion that a leave requirement should be based on the national interest, particularly given that the Gruen report and the Minister have rejected the introduction of any national interest provision into the anti-dumping legislation.
Recommendation 8: The forum of review
Anti-dumping and countervailing duty decisions recommended for review on the merits should be reviewable by the Administrative Appeals Tribunal.
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141. The problem of confidentiality was a recurrent theme of submissions received by the
Council. To quote from the submission made by Customs:
The issue of confidentiality of commercial information provided to the ACS is of great concern. During the course of an investigation, the ACS acquires a significant quantity of information on the operations of particular corporate entities. This information includes price calculations, costings, sources of raw materials, inter-company agreements and other highly confidential material. The ACS at times receives such information on the express understanding of confidentiality, but a considerable amount is received without such an assurance being expressly sought or given, though it is clearly of a highly sensitive nature. Information is provided by foreign governments, foreign manufacturers and exporters which is highly sensitive to Australia’s trade and international relations.
Other submissions stated that only if confidentiality could be assured could parties have confidence in any system of review.
142. Sections 35, 36 and 36A of the AAT Act provide mechanisms for dealing with confidential information. These mechanisms would ensure that, if the Council’s recommendation that the AAT is the appropriate review body is accepted, it would be able to deal adequately and sensitively with such information.
143. Section 35(2) provides that in special circumstances the AAT may order private hearings, although generally its hearings are conducted in public (the IAC may also take evidence in private, even though its hearings are generally open). The section confers power on the Tribunal to exclude the public and a party from a hearing.
144. The principles to be applied in respect of the exercise by the Tribunal of its powers under section 35(2) were discussed by Mr Justice Brennan in Re Pochi and Minister for
Immigration and Ethnic Affairs (1979) 2 ALD 33, 53-9. His Honour first drew attention to section 35(3) which requires the Tribunal to take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the content of documents lodged with the
Tribunal should be made available to the public and to all the parties. His Honour went on to note that there were exceptional cases where a tribunal might properly exclude a party from a hearing before it. He mentioned Mobil Oil Australia Pty Ltd v Federal Commissioner of
Taxation (1963) 113 CLR 475 in which the High Court had recognised that there were cases in which a Taxation Board of Review might properly take evidence in the absence of a taxpayer and the taxpayer’s representatives.
145. Mr Justice Brennan described the purpose of the powers conferred on the AAT by section 35(2) as follows:
The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). (p. 55)
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Where a question of exclusion of a party arises, his Honour said that, since it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party (p. 56).
146. Sections 36 and 36A of the AAT Act provide that certain documents and information are not required to be disclosed and certain questions are not required to be answered, respectively. Pursuant to these sections, the Attorney-General may certify that the disclosure of information or material or the answering of a question would be contrary to the public interest because it would prejudice the security, defence or international relations of
Australia, or involve the disclosure of deliberations or decisions of the Cabinet or a
Committee of the Cabinet, or for any other specified reason that could form the basis of a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed (s.36(1)). Upon the giving of a certificate, the AAT is required to ensure non-disclosure or the person is excused from answering a question, although in certain instances the AAT retains a discretion to order either disclosure or answering.
147. In considering whether information or matter should be disclosed, the AAT must take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties should be made aware of all relevant matters. The Tribunal is also directed to pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information would be contrary to the public interest (s.36(4)). The questions whether information or matter contained in a document should be disclosed to the parties, and whether the answering by a person of a question would be contrary to the public interest, are questions of law (ss.36(6), 36A(3)). Thus an appeal from a decision of the AAT on these questions lies to the Federal Court (s.44, AAT Act).
148. For the purposes of a hearing, information could be provided to legal counsel on counsel’s undertaking not to divulge this information to the client, but the Council neither endorses nor encourages this practice. Such an undertaking would put counsel in the unenviable position of being unable either specifically to give advice or take instructions on that information. As Customs writes in its submission:
The practice also carries the risk of a breach of the undertaking, albeit unintentional, in the heat of cross-examination or at a later time when the continuing significance of the information might not be appreciated.
Additionally, such a practice would tend to act against the interests of those parties not represented by legal counsel, and thus would encourage the use of legal counsel.
149. Customs also states its view that the claim of privilege might not adequately protect information in the event that it is called into evidence in an open hearing, and suggests that specific heads of exemption be established in the AAT Act which could be claimed with respect to business documents, foreign government communications, etc, without the need to approach the Attorney-General for a certificate. This, it is argued, would ensure that the
AAT would be sympathetic to applications not to release particular confidential information to other parties.
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150. It is the Council’s opinion that amendment of the AAT Act would not be required to protect the confidentiality of information which might come before the AAT in the course of reviewing a decision made pursuant to anti-dumping or countervailing duty legislation, if the AAT were to exercise such jurisdiction. The scheme whereby confidentiality may be maintained, as provided in sections 35, 36 and 36A of the AAT Act (see paras 142-7), would appear to the Council to be comprehensive enough to deal adequately with any questions of confidentiality that might arise in anti-dumping and countervailing matters, in particular in relation to business documents and foreign government communications, two areas of special concern mentioned in Customs’ submission. The Council also notes that, in the freedom of information area, although the AAT is there concerned with the interpretation of specific legislative provisions, it has generally adopted a protective approach to sensitive commercial information (see, e.g. Attorney-General’s Department’s submission to the Senate
Standing Committee on Constitutional and Legal Affairs’ reference on the operation and administration of the freedom of information legislation, at para. 3.4.2).
151. If, as the Council recommends, the AAT is given jurisdiction in relation to antidumping and subsidisation matters, it must be considered whether the AAT should have a special power to award legal costs in such proceedings. It does not at present have a general power to award costs in proceedings before it.
152. Only about one half of the submissions on the discussion paper addressed the question of costs. In those submissions which addressed the question, the degree of support for the AAT having a power to award costs against the Commonwealth in this jurisdiction was not substantial. No submissions dealt with the potential problem of awarding costs in anti-dumping and subsidisation proceedings in those cases where the role of the
Commonwealth may be largely neutral and the real dispute may be between the importer of the goods in question and the domestic Australian industry producing like goods.
153. In its submission on the discussion paper Customs said that, although it had no fundamental objection to costs being awarded in cases before the AAT arising under the
Anti-Dumping Act, it doubted whether costs would be likely to act as a disincentive to parties seeking review of decisions under the Act. In the view of Customs, the substantial financial interests involved in anti-dumping actions would be likely to ensure that parties would be prepared to spend considerable amounts to ensure success before the AAT.
154. The Council has concluded that the features of any anti-dumping jurisdiction for the
AAT do not warrant a departure from the general rule that the AAT should not have a power to award costs.
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(in alphabetical order)
Arthur Phillips & Just, Solicitors
Arthur Young, Chartered Accountants
Australian Chamber of Manufactures
Australian Chemical Industry Council (ACIC)
Australian Council of Furniture Manufacturers
Australian Council, International Chamber of Commerce
Australian Customs Service
Australian Federation of Consumer Organisations Inc (AFCO)
Australian Synthetic Rubber Co Ltd
Mr Jeffrey Barnes
Commission of the European Communities in Australia
Confederation of Australian Industry
Mr E J Cooper, Barrister
Department of Primary Industry.
Department of Resources and Energy
Industries Assistance Commission
Law Council of Australia, Business Law Section
Metal Trades Industry Association of Australia (MTIA)
Queensland Government
Simpson Ltd
State Chamber of Commerce and Industry (NSW)
Tubemakers of Australia Limited
Western Australian Bar Association
Western Australian Chamber of Commerce and Industry
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Return if insufficient details
Dumping
Maximum Milestones
(Days)
Complaint
Lodged
0
Public notice of initiation of investigation
Importer and exporter questionnaire mailed - response sought within 30 days
55
Public notice of preliminary finding and provisional measures, if justified
Terminate if negative finding
65
Meeting of parties
Local inquiries continue; overseas inquiries commence
Departmental reports and further submissions evaluated
Terminate if negative finding
160
Recommendation to Minister for gazettal or acceptance of undertakings
Action suspended if undertaking accepted
175
Gazettal of
Minister’s decision and printing of public report arranged
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Countervailing
Maximum Milestones
(Days)
Complaint
Lodged
Return if insufficient details
0
Consultation with foreign governments
20
Public notice of initiation of investigation
75
Public notice of positive preliminary findings; provisional measures, if justified
Importer and exporter questionnaire mailed – response sought within 30 days
Terminate if negative finding
Consultation with foreign governments and local inquiries continue; overseas inquiries commence
Departmental reports and further submissions evaluated
180
Recommendation to Minister for gazettal or acceptance of undertakings
195
Gazettal of
Minister’s decision and printing of public report arranged
Action suspended if undertaking accepted
Terminate if negative finding
Source: Based on a flow chart drawn up by Australian Customs Service
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Set out below is a list of the decision-making powers in the Anti-Dumping Act and the
Customs Act which have been identified and considered by the Council. The decisionmaking powers are grouped under headings and under each heading the recommendation made by the Council in regard to review on the merits of decisions made in. the. exercise of those powers are summarised.
Section Decision maker and power
DECISIONS CONCERNING DUTY
Decisions made under the following powers have been classified as decisions concerning duty, and it is recommended that in general they be reviewable on the merits (refer to paras 61-9). The exception to this general recommendation concerns decisions not based on injurious dumping or subsidisation affecting an Australian industry, and directly concerning retaliatory action to duty imposed by a foreign country or a request by the government of a foreign country to impose duty following actual or threatened injury within that country, where the Minister issues a certificate excluding review on the merits (refer to paras 70-1).
8(1), (2) Minister may declare that section 8 (dumping duty) applies in respect of goods injuriously dumped in Australia
8(5)
8(6)
Minister may direct that amount of dumping duty is to be ascertained in a specified manner
Minister may specify date of application of dumping duty
8(7)
9(1), (2)
Comptroller may exempt goods from dumping duty in certain circumstances
Minister may declare that section 9 (third country dumping duty) applies in respect of goods injuriously dumped in Australia
9(5) Minister may direct that amount of third country dumping duty is to be ascertained in a specified manner
9(6)
9(7)
Minister may specify date of application of third country dumping duty
Comptroller may exempt goods from third country dumping duty in certain circumstances
10(1), (2) Minister may declare that section 10 (countervailing duty) applies in respect of goods which have been injuriously subsidised
10(2B),(2C),(2D) Minister may declare that section 10 (retaliatory countervailing duty)
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10(4)(b)(ii)
10(5)
10(6)
10(8)
11(1), (2) applies in certain circumstances
Minister may determine appropriate amount of retaliatory countervailing duty
Minister may direct that amount of countervailing duty is to be ascertained in a specified manner
Minister may specify date of application of countervailing duty
Comptroller may exempt goods from countervailing duty in certain circumstances
Minister may declare that section 11 (third country countervailing duty) applies
11(5)
11(6)
Minister may direct that amount of third country countervailing duty is to be ascertained in a specified manner
Minister may specify date of application of third country countervailing duty
11(8) Comptroller may exempt goods from third country countervailing duty in certain circumstances
20(1) Minister or Comptroller may revoke notice under the Act, and shall do so in certain circumstances
DECISIONS CONCERNING UNDERTAKINGS
Decisions made under the following powers concern the giving and acceptance of undertakings and it is recommended that they not be subject to review on the merits (refer to paras 73-81).
8(2A), 10(2A) Minister may seek an undertaking and suspend indefinitely consideration of a consignment on accepting a satisfactory undertaking
PRELIMINARY DECISIONS
Decisions made under the following powers are preliminary to a decision to impose or not to impose duty. It is recommended that they not be independently subject to review on the merits but that they be reviewable in the context of the review of a final decision which subsumes them (refer to paras 82-3).
4(2)(c) Comptroller may be of the opinion that there will be some reimbursement of the price between the buyer and seller
4(3)
4(3A)(b)
Comptroller may be satisfied that goods are sold in Australia at a loss and may treat that sale as indicating that reimbursement will be made
Comptroller may determine that certain amounts are costs necessarily incurred in the importation and sale of goods
4(3A)(d)
4A(1)(c)
Comptroller may determine matters to be relevant to whether goods sold at a loss
Comptroller may determine export price, in certain instances, having regard to all the circumstances of the exportation
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4A(2)(c) Comptroller may direct in certain circumstances that profit rate be determined in accordance with a rate specified by the Comptroller
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5(4A)
5(5)
5(6)
5(7)
5(9)
5A(1), (2)
10(7)
10(7A)
11(7)
11A
4A(3)
4A(4)
5(2)(a), (b)
5(2)(c)
5(2)(d)
5(3)
5(4)
Comptroller may be satisfied that sufficient information has not been furnished or is not available and may determine export price having regard to all relevant information
Comptroller may disregard information he considers unreliable in determining export price under sub-s.4A(3)
Comptroller may be satisfied for certain reasons that normal value cannot be ascertained under s.5(1)
Comptroller, where satisfied that normal value cannot be ascertained under s.5(1), may determine cost of production or manufacture, delivery charges and other costs necessarily incurred in a sale, and a rate of profit
Comptroller may direct the use of a representative price where satisfied that normal value cannot be ascertained under s.5(1)
Comptroller may be satisfied that specified methods of ascertaining normal value are inappropriate and may determine normal value and various other relevant matters
Comptroller may be satisfied that insufficient information is available for normal value to be ascertained according to any of the specified formulas and may determine normal value having regard to all relevant information
Comptroller may disregard information he considers unreliable in determining normal value under sub-s.5(4)
Comptroller may give directions to modify prices used in ascertaining normal value
Comptroller may make adjustments in determining normal value according to specified formulas, in order to maintain proper comparative basis of prices
Comptroller may form opinion that normal value should be ascertained as if country of origin were country of export and may give direction accordingly
Comptroller may be satisfied of specified matters and may determine certain amounts
Minister may have regard to specified matters in determining whether material injury has been caused, etc
Comptroller may be satisfied that insufficient information is available and may determine amount of assistance
Minister may be satisfied adequate information cannot be obtained and may determine amount of assistance in certain cases
Comptroller may be satisfied that adequate information cannot be obtained and may determine amount of financial assistance
Minister may be satisfied that in certain circumstances it is inappropriate to determine amount of financial assistance and may determine that amount in a specified manner
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12(1)
12(2)
Minister may be satisfied that less than normal freight has been paid on goods exported to Australia
Minister may determine appropriate rate of freight taking into account the ruling rates (if any) and any other matter considered relevant
Minister may be satisfied that an exporter has violated an undertaking 13(6)(a), 8(a)
13(7)(a) Minister may be satisfied that a government has violated an undertaking
17(2) Comptroller may specify a means of ascertaining currency exchange rate
FACULTATIVE, TRANSITIONAL AND INTERNAL ADMINISTRATIVE DECISIONS
Decisions made under the following powers have been classified as facultative, transitional or internal administrative decisions and it is recommended that they not be subject to review on the merits (refer to paras 84-5). In any event, the Council recommends the repeal of section 15(4) (refer to para. 72). (The Council has been advised that as all notices outstanding under former anti-dumping legislation at the commencement of the Anti-Dumping Act have been superseded by notices under that Act, s.3(3) is effectively spent. Thus there is no need for review of the decisions classified as transitional decisions.)
3(3) Minister may revoke a notice in force before the commencement of Anti-
Dumping Act (transitional)
15(1) Minister may refer a matter to the IAC for inquiry and report (facultative)
15(4)
19(1)
Minister shall refer matter to IAC on request except in certain circumstances (facultative)
Minister may delegate certain powers (internal administrative)
Section Decision maker and power
SECURITY DECISIONS
Decisions made under the following power have been classified as security decisions, and it is recommended that they not be subject to review on the merits (refer to paras 86-8).
42(1) Customs may require security in respect of duty that may be payable under the Anti-Dumping Act
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