FEDERAL COURT OF AUSTRALIA
Panasia Aluminium (China) Limited v Attorney-General of the Commonwealth
[2013] FCA 870
Citation:
Panasia Aluminium (China) Limited v Attorney-General
of the Commonwealth [2013] FCA 870
Parties:
PANASIA ALUMINIUM (CHINA) LIMITED and
OPAL (MACAO COMMERCIAL OFFSHORE)
LIMITED v ATTORNEY-GENERAL OF THE
COMMONWEALTH and CAPRAL LIMITED
(INTERVENER)
File number:
NSD 1653 of 2011
Parties:
TAI SHAN CITY KAM KIU ALUMINIUM
EXTRUSION CO LIMITED and KAM KIU
ALUMINIUM PRODUCTS SDN BHD and KAM
KIU (AUSTRALIA) PTY LIMITED v ATTORNEYGENERAL OF THE COMMONWEALTH and
TRADE MEASURES REVIEW OFFICER and
CHIEF EXECUTIVE OFFICER OF THE
AUSTRALIAN CUSTOMS AND BORDER
PROTECTION SERVICE and CAPRAL LIMITED
(INTERVENER)
File number:
NSD 1869 of 2011
Judge:
NICHOLAS J
Date of judgment:
30 August 2013
Catchwords:
ADMINISTRATIVE LAW – Part XVB Customs Act
1901 (Cth) (Act) – anti-dumping measures –
countervailable subsidy – aluminium extrusions
exported from China to Australia by State-owned
suppliers – whether supplier “public body” within the
meaning of that term as used in definition of “subsidy” –
consideration of Agreement on Subsidies and
Countervailing Measures (SCM Agreement) – whether
decision-maker misinterpreted or misapplied definition
of “public body” as used in Act – whether decisionmaker misinterpreted or misapplied World Trade
Organization (WTO) Appellate Body jurisprudence on
meaning of “public body” in SCM Agreement.
-2ADMINISTRATIVE LAW – Part XVB of Act – antidumping measures – where goods under consideration
(GUC) consist of range of aluminium extrusions having
different finishes – where decision-maker makes
declarations pursuant to subss 269TG(1) and (2) and
subss 269TJ(1) and (2) in respect of GUC – whether
open to decision-maker to specify different variable
factors in respect of different types of GUC pursuant to
subs 269TG(3) and subs 269TJ(11) – consideration of
statutory scheme in relation to determination of
dumping margins – applicability of subs 33(3A) of Acts
Interpretation Act 1901 (Cth) to ss 269TG and 269TJ –
imposition of anti-dumping measures on consolidated or
differentiated basis – whether imposition on
differentiated basis permissible – relevance of WTO
agreements – General Agreement on Tariffs and Trade
1994 – Agreement on the Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994 –
consideration of WTO Appellate Body jurisprudence on
“zeroing”.
ADMINISTRATIVE LAW – Part XVB of Act –
public notices published pursuant to subss 269ZZI(2)
and 269ZZL(2)(b) – consequences of non-compliance
with subss 269ZZI(2) or 269ZZL(2)(b) – whether any
review by TMRO or reinvestigation by CEO or
subsequent decision by Minister under s 269ZZM liable
to be set aside due to such non-compliance – whether
non-compliance gave rise to denial of procedural
fairness.
ADMINISTRATIVE LAW – Part XVB of Act –
words and phrases – normal value – export price – noninjurious price – dumping margin – like goods –
competitive market costs – for less than adequate
remuneration.
Legislation:
Acts Interpretation Act 1901 (Cth), s 33
Administrative Decisions (Judicial Review) Act 1977
(Cth), s 11
Customs Act 1901 (Cth), ss 269T, 269TAAC,
269TAAD, 269TAA, 269TAB, 269TAC, 269TACA,
269TACB, 269TACC, 269TAE, 269TAF, 269TB,
269TEA, 269TG, 269TJ, 269TL, 269ZZI, 269ZZK,
269ZZL, 269ZZM
Customs Regulations 1926 (Cth), reg 180
Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss 8, 10
Trade Practices Act 1975 (Cth), s 46
-3Cases cited:
Al Abdullatif Industrial Group Co Ltd v Minister for
Justice and Customs [2000] FCA 758
Australian Finance Direct Limited v Director of
Consumer Affairs Victoria (2007) 234 CLR 96
Boral Besser Masonry Ltd v Australian Competition and
Consumer Commission (2003) 215 CLR 374
Chu Kheng Lim v Minister for Immigration, Local
Government and Ethnic Affairs (1992) 176 CLR 1
Cooper Brookes (Wollongong) Pty Ltd v Commissioner
of Taxation (1981) 147 CLR 297
Hunter Valley Developments Pty Ltd v Cohen (1984) 3
FCR 344
Minister for Immigration and Citizenship v SZIAI
(2009) 259 ALR 429
Minister for Immigration and Multicultural Affairs v
Yusuf (2001) 206 CLR 323
Minister of State for Immigration and Ethnic Affairs v
Teoh (1995) 183 CLR 273
Pilkington (Australia) Ltd v Minister for Justice and
Customs (2002) 127 FCR 92
Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 194 CLR 355
Re Queensland Cooperative Milling Association Ltd;
Re Defiance Holdings Ltd (1976) 25 FLR 169
Seven Network Ltd v News Ltd (2009) 182 FCR 160
Date of hearing:
14 and 15 May 2012
Place:
Sydney
Division:
GENERAL DIVISION
Category:
Catchwords
Number of paragraphs:
176
Counsel for the Applicants in
Proceeding NSD 1653 of 2011:
Mr N Williams SC and Mr M Izzo
Solicitor for the Applicants in
Proceeding NSD 1653 of 2011:
Minter Ellison
Counsel for the Applicants in
Proceeding NSD 1869 of 2011:
Mr MR Speakman SC and Mr JD Smith
Solicitor for the Applicants in
Proceeding NSD 1869 of 2011:
Corrs Chambers Westgarth
Counsel for the Respondents:
Mr G Kennett SC and Mr D Thomas
-4-
Solicitor for the Respondents:
Australian Government Solicitor
Counsel for the Intervener:
Mr SB Lloyd SC and Ms AM Mitchelmore
Solicitor for the Intervener:
Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:
NSD 1653 of 2011
PANASIA ALUMINIUM (CHINA) LIMITED
First Applicant
OPAL (MACAO COMMERCIAL OFFSHORE) LIMITED
Second Applicant
AND:
ATTORNEY-GENERAL OF THE COMMONWEALTH
Respondent
AND:
CAPRAL LIMITED
Intervener
JUDGE:
NICHOLAS J
DATE OF ORDER:
30 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.
Within 7 days the applicants are to file and serve a draft minute of the orders they
contend should be made having regard to these reasons for judgment and, in
particular, their success in relation to Issue G2.
2.
The proceeding stand over to a date to be fixed for further hearing concerning the
appropriate form of orders including as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:
NSD 1869 of 2011
TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO
LIMITED
First Applicant
KAM KIU ALUMINIUM PRODUCTS SDN BHD
Second Applicant
KAM KIU (AUSTRALIA) PTY LIMITED
Third Applicant
AND:
ATTORNEY-GENERAL OF THE COMMONWEALTH
First Respondent
TRADE MEASURES REVIEW OFFICER
Second Respondent
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN
CUSTOMS AND BORDER PROTECTION SERVICE
Third Respondent
AND:
CAPRAL LIMITED
Intervener
JUDGE:
NICHOLAS J
DATE OF ORDER:
30 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.
Within 7 days the applicants are to file and serve a draft minute of the orders they
contend should be made having regard to these reasons for judgment and, in
particular, their success in relation to Issue G2.
2.
The proceeding stand over to a date to be fixed for further hearing concerning the
appropriate form of orders including as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:
NSD 1653 of 2011
PANASIA ALUMINIUM (CHINA) LIMITED
First Applicant
OPAL (MACAO COMMERCIAL OFFSHORE) LIMITED
Second Applicant
AND:
ATTORNEY-GENERAL OF THE COMMONWEALTH
Respondent
AND:
CAPRAL LIMITED
Intervener
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:
NSD 1869 of 2011
TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO
LIMITED
First Applicant
KAM KIU ALUMINIUM PRODUCTS SDN BHD
Second Applicant
KAM KIU (AUSTRALIA) PTY LIMITED
Third Applicant
AND:
ATTORNEY-GENERAL OF THE COMMONWEALTH
First Respondent
TRADE MEASURES REVIEW OFFICER
Second Respondent
CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN
CUSTOMS AND BORDER PROTECTION SERVICE
Third Respondent
AND:
CAPRAL LIMITED
Intervener
JUDGE:
NICHOLAS J
DATE:
30 AUGUST 2013
PLACE:
SYDNEY
-2REASONS FOR JUDGMENT
INTRODUCTION
There are two proceedings before me which have been heard together. The applicants
1
in each proceeding challenge the validity of various decisions made by the Attorney-General
of the Commonwealth (the Attorney) and other officers of the Commonwealth under the
provisions of Part XVB of the Customs Act 1901 (Cth) (the Act).
The first proceeding is brought by Panasia Aluminium (China) Limited and a related
2
company (collectively referred to as Panasia) against the Attorney.
The second proceeding is brought by Tai Shan City Kam Kiu Aluminium Extrusion
3
Co Limited and two related companies (collectively Kam Kiu) against the Attorney, the
Trade Measures Review Officer (the TMRO) and the Chief Executive Officer of the
Australian Customs and Border Protection Service (the CEO).
The decisions the subject of both proceedings relate to the alleged dumping of goods
4
consisting of aluminium extrusions with a variety of finishes exported to Australia from the
People’s Republic of China (China) and anti-dumping measures taken with respect to such
goods.
5
The relief sought by Panasia and Kam Kiu include orders setting aside a decision of
the Attorney made on 23 August 2011 pursuant to s 269ZZM of the Act. By that decision the
Attorney affirmed his earlier decision of 21 October 2010 (published on 28 October 2010) to
publish dumping and countervailing duty notices, but also varied those notices in some
significant respects.
6
Capral Ltd (Capral) is a company that carries on business in Australia manufacturing
and supplying aluminium extrusions.
Capral was granted leave to intervene in both
proceedings. It appeared at the hearing, and made oral and written submissions which, for
the most part, adopted those made by the respondents.
-3LEGISLATIVE BACKGROUND
There are a number of interrelated international agreements by which Australia, a
7
member of the World Trade Organization (WTO), is bound that are referred to in Part XVB
of the Act. These are:

the World Trade Organization Agreement establishing the World Trade Organization
done at Marrakesh on 15 April 1994 (the WTO Agreement);

the General Agreement on Tariffs and Trade 1994 (GATT 1994);

the Agreement on Subsidies and Countervailing Measures (the SCM Agreement);

the Agreement on the Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (the Anti-Dumping Agreement).
As will be seen, various arguments presented in these proceedings drew for support from
decisions of the WTO Appellate Body concerned with the interpretation of both the SCM
Agreement and the Anti-Dumping Agreement.
8
There were significant amendments made to Pt XVB of the Act in 1994 and 1998 to
bring Australia’s laws with respect to dumping into conformity with Australia’s international
obligations under GATT 1994, the SCM Agreement and the Anti-Dumping Agreement. The
legislative background to these changes is discussed in some detail by the Full Court in
Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92 (Mansfield,
Conti and Allsop JJ) at [19]-[28] and I will not repeat that discussion here.
9
The provisions of Pt XVB of the Act are technical and complex. They must be
interpreted in accordance with the settled principles of statutory construction. As always, the
interpretative task begins with a consideration of the terms of the relevant legislation
(Australian Finance Direct Limited v Director of Consumer Affairs Victoria (2007) 234 CLR
96 at [34] per Kirby J). Recourse to the international agreements will only be of assistance in
resolving the questions of construction in this case where the relevant provisions are
ambiguous, and where the international agreements may assist in resolving the ambiguity
(see, for example, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; Minister of State for
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and
Deane J).
-410
Nevertheless, to better understand some of the basic concepts and principles upon
which Pt XVB is based it is useful to refer to some of the key provisions of the relevant
international agreements.
11
Article VI(1)-(2) of GATT 1994 provides:
(1)
The contracting parties recognize that dumping, by which products of one
country are introduced into the commerce of another country at less than the
normal value of the products, is to be condemned if it causes or threatens
material injury to an established industry in the territory of a contracting
party or materially retards the establishment of a domestic industry. For the
purposes of this Article, a product is to be considered as being introduced
into the commerce of an importing country at less than its normal value, if
the price of the product exported from one country to another
(a)
is less than the comparable price, in the ordinary course of trade, for
the like product when destined for consumption in the exporting
country, or,
(b)
in the absence of such domestic price, is less than either
(i)
the highest comparable price for the like product for export to
any third country in the ordinary course of trade, or
(ii)
the cost of production of the product in the country of origin
plus a reasonable addition for selling cost and profit.
Due allowance shall be made in each case for differences in conditions and
terms of sale, for differences in taxation, and for other differences affecting
price comparability.*
(2)
In order to offset or prevent dumping, a contracting party may levy on any
dumped product an anti-dumping duty not greater in amount than the margin
of dumping in respect of such product. For the purposes of this Article, the
margin of dumping is the price difference determined in accordance with the
provisions of paragraph 1.*
[The asterisks call up supplementary provisions which may be ignored for present purposes.]
12
As is apparent from Art VI(1), there are two principal elements to dumping. First, the
products of one country must be introduced into another country at less than normal value.
Secondly, the introduction of such products at less than normal value must cause or threaten
material injury to a domestic industry or retard the development of such an industry. So far
as the latter element is concerned, Art VI(6)(a) of GATT 1994 provides:
No contracting party shall levy any anti-dumping or countervailing duty on the
importation of any product of the territory of another contracting party unless it
determines that the effect of the dumping or subsidization, as the case may be, 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.
-513
The Anti-Dumping Agreement specifies in greater detail the circumstances in which
an anti-dumping measure may be applied. Article 2.1 provides:
For the purpose of this Agreement, a product is to be considered as being dumped,
i.e. introduced into the commerce of another country at less than its normal value, if
the export price of the product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product when destined
for consumption in the exporting country.
Article 2.4 provides “[a] fair comparison shall be made between the export price and the
normal value” and also explains how such a comparison should be undertaken. Article 2.6
defines “like product” as follows:
Throughout this Agreement the term “like product” (“produit similaire”) shall be
interpreted to mean a product which is identical, i.e. alike in all respects to the
product under consideration, or in the absence of such a product, another product
which, although not alike in all respects, has characteristics closely resembling those
of the product under consideration.
Article 9.1 provides:
The decision whether or not to impose an anti-dumping duty in cases where all
requirements for the imposition have been fulfilled, and the decision whether the
amount of the anti-dumping duty to be imposed shall be the full margin of dumping
or less, are decisions to be made by the authorities of the importing Member. It is
desirable that the imposition be permissive in the territory of all Members, and that
the duty be less than the margin if such lesser duty would be adequate to remove the
injury to the domestic industry.
Article 9.3 then provides (inter alia) that “[t]he amount of anti-dumping duty shall not exceed
the margin of dumping as established under Article 2.”
14
Part XVB of the Act contains an elaborate set of provisions which regulate the
imposition of dumping duties including various provisions concerned with the determination
of export price (s 269TAB), normal value (s 269TAC), “the non-injurious price of goods”
(s 269TACA) (these being the three values referred to in the Act as the “variable factors”)
and dumping margins (s 269TACB). Other provisions of Part XVB of the Act that may be
relevant for the purposes of determining the variable factors and, ultimately, dumping
margins, include s 269TAAD (ordinary course of trade) and s 269TAA (arms length
transactions).
15
Section 269TACB is a central provision which establishes how the variable factors,
once ascertained in accordance with other relevant provisions of the Act, are to be used in
determining whether dumping has occurred. Section 269TG is the provision of the Act that
-6permits the Minister to impose dumping duty by the publication of a dumping duty notice if
dumping has occurred. However, the circumstances in which the Minister may impose
dumping duty are closely confined by the terms of the section and related provisions
including, in particular, s 269TAE (material injury to industry).
16
Turning to countervailing subsidies, Art VI(3) of GATT 1994 provides:
No countervailing duty shall be levied on any product of the territory of any
contracting party imported into the territory of another contracting party in excess of
an amount equal to the estimated bounty or subsidy determined to have been granted,
directly or indirectly, on the manufacture, production or export of such product in the
country of origin or exportation, including any special subsidy to the transportation
of a particular product. The term “countervailing duty” shall be understood to mean a
special duty levied for the purpose of offsetting any bounty or subsidy bestowed,
directly, or indirectly, upon the manufacture, production or export of any
merchandise.*
17
The SCM Agreement contains more detailed provisions regulating the imposition of
countervailing duties. Article 1 of the SCM Agreement provides that a subsidy shall be
deemed to exist in various situations including, most relevantly, if there is a “financial
contribution by a government or any public body within the territory of a [WTO] Member”
and “a benefit is thereby conferred.”
18
The word “subsidy” is defined in s 269T of the Act and the expression
“countervailable subsidy” in s 269TAAC. I will say more about these definitions and related
provisions later in these reasons when considering the specific issues which arise for
determination.
19
Section 269TJ permits the Minister to impose countervailable duty where he or she is
satisfied that a countervailable subsidy has been received and, because of that, material injury
to an Australian industry producing like goods has been caused or is threatened or the
establishment of an Australian industry producing such goods has been or may be materially
hindered. The Minister does this by the publication of a countervailing duty notice.
FACTUAL BACKGROUND
20
On 11 May 2009 Capral lodged an application under s 269TB of the Act requesting
that dumping duty and countervailing duty notices be published in respect of certain
aluminium extrusions exported to Australia from China. In response, the Australian Customs
and Border Protection Service (Customs) undertook an investigation that culminated in the
-7provision by the CEO to the Attorney of a report entitled “Report to the Minister No 148 –
Certain aluminium extrusions exported to Australia from the People’s Republic of China”
(Report 148). The investigation period was from 1 July 2008 to 30 June 2009.
21
In Report 148, the CEO recommended that the Attorney impose dumping duty and
countervailing duty on certain aluminium extrusions exported from China to Australia. The
CEO’s recommendations were accepted by the Attorney. On 28 October 2010, the Attorney
published dumping duty notices under subss 269TG(1) and (2) of the Act, and countervailing
duty notices under subss 269TJ(1) and (2) of the Act.
22
A number of applications were made to the TMRO for a review of certain findings
contained in Report 148 upon which the Attorney based his decision to publish the
28 October 2010 notices. The TMRO (also referred to in relevant provisions of the Act as
“the Review Officer”) is the person from time to time holding the office of Trade Measures
Review Officer established under Div 8 of Pt XVB of the Act. Under Div 9 of Part XVB, the
TMRO is authorised to undertake a review of certain ministerial decisions. Pursuant to
subs 269ZZI(1), the TMRO must publish a notice indicating that he or she proposes to
conduct a review. The notice must (inter alia) describe the goods under review, the ground
for seeking the review and invite submissions from interested parties. On 20 December 2010,
the TMRO published a notice (the First Notice) indicating that he proposed to conduct a
review of the Attorney’s decision to publish dumping duty and countervailing duty notices.
23
After conducting the review, the TMRO may recommend,
pursuant to
subs 269ZZK(1), that the Minister affirm the reviewable decision, or recommend that the
Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the
reviewable decision. In a report dated 18 April 2011 (the TMRO Report) the TMRO
recommended that the Attorney direct the CEO to reinvestigate certain matters the subject of
Report 148. On 16 May 2011, the Attorney published a notice (the Second Notice) stating
that he had accepted the recommendations made by the TMRO and had requested that the
CEO reinvestigate certain findings made in Report 148. On 15 August 2011 the CEO
published a further report entitled “Report 175 – Reinvestigation of certain findings in Report
No 148” (Report 175).
24
The Attorney accepted the recommendations contained in Report 175, and on
27 August 2011 published a notice that affirmed his 28 October 2010 decision to publish
-8dumping duty and countervailing duty notices but which also varied the 28 October 2010
notices so that, among other things, they were taken to have effect as if different variable
factors had been used in the calculation of duty on different finishes of aluminium extrusions.
Whether or not it was open to the Attorney to vary the notices in this particular way is a key
issue in the proceedings.
THE AGREED STATEMENT OF ISSUES
25
There are numerous issues raised in the proceedings. They are identified in the
agreed statement of issues upon which argument at the hearing focused and which provides
the frame of reference for these reasons for judgment.
26
The agreed statement of issues, in its final form, raises the following issues:
A.
Normal Value
1.
Whether the Attorney erred in applying the phrase “competitive market costs”
in reg 180(2)(b)(ii) of the Customs Regulations 1926 (Cth) (the Regulations).
2.
Whether the respondent misapplied s 269TAC by including a profit
component in the constructed normal value for certain domestic finishes.
B.
Subsidy
1.
Whether the Attorney erred in construing or applying the phrase “public body”
in s 269T of the Act.
2.
Whether the Attorney erred in construing or applying:
(a)
the phrase “for less
subs 269TACC(4)(d); or
than
adequate
remuneration”
(b)
the phrase “prevailing market conditions” in subs 269TACC(5);
in
in finding that Program 15 involved the supply of primary aluminium at less
than adequate remuneration so as to amount to a subsidy.
C.
Export Price
1.
Whether the Attorney erred in failing to consider whether there was a
sustained movement in the Australian dollar against the Chinese renminbi so
as to cause a notice or notices to be published under subs 269TAF(4).
-9F.
Continuation of Dumping and Subsidisation
1.
Whether the Attorney erred in finding that dumping would continue if antidumping measures were not imposed, and also that countervailable subsidies
would continue.
G.
Variable Factors
1.
In circumstances where:
(a)
the TMRO had not identified in the First Notice that a matter the
subject of his review was whether measures should be imposed on the
basis of the type of finish of the goods, rather than on a consolidated
basis;
(b)
the Attorney did not identify in the Second Notice that the CEO was
directed to reinvestigate the finding in Report 148 that measures should
be imposed on a consolidated basis rather than by finish; and
(c)
the applicants were not otherwise put on notice that measures may be
imposed by finish rather than on a consolidated basis,
whether:
(d)
the following notices did not comply with the provisions of the Act
they were made under:
(i)
the First Notice published by the TMRO pursuant to
subs 269ZZI(2); and
(ii)
the Second Notice published by the Attorney pursuant to
subs 269ZZL(2)(b);
(e)
procedural fairness was not afforded to the applicants; and, if so,
(f)
the Attorney did not have the power to vary the dumping and
countervailing notices so as to impose different variable factors for
each finish.
2.
Whether the Attorney (aside from the issues identified at G(1)) had the power
to vary the dumping and countervailing notices so as to impose different
variable factors for each finish.
3.
Whether the Attorney erred in affirming the decision to impose dumping
duties and countervailing duties on goods exported by Kam Kiu in finished
states other than “mill” and on powder coated goods exported by Panasia.
- 10 H.
Delay
1.
Whether the court should extend the time for making an application by Kam
Kiu for orders under the Administrative Decisions (Judicial Review) Act 1977
(Cth) in respect of any or all of the decisions with the exception of the
decisions of the first respondent made on 22 August 2011 (“the earlier
decisions”).
2.
If, in deciding Issue G1, the court finds that any of the earlier decisions is
infected with jurisdictional error, whether the court should, in the exercise of
its discretion, refuse to grant relief on the basis of that finding as a
consequence of the delay in commencing these proceedings.
My numbering of the issues differs slightly to that which appears in the agreed statement of
issues as filed. For the purposes of these reasons for judgment I have identified the relevant
issues by reference to the numbering set out above.
ISSUES
“PUBLIC BODY” (ISSUE B1)
27
The first issue I propose to consider concerns the phrase “public body” which is used
in s 269T of the Act in the definition of “subsidy”. The phrase “public body” is not itself
defined. The definition of “subsidy” in s 269T is in these terms:
subsidy, in respect of goods that are exported to Australia, means:
(a)
a financial contribution:
(i)
by a government of the country of export or country of origin of those
goods; or
(ii)
by a public body of that country or of which that government is a
member; or
(iii)
by a private body entrusted or directed by that government or public
body to carry out a governmental function;
that is made in connection with the production, manufacture or export of those
goods and that involves:
(iv)
a direct transfer of funds from that government or body to the enterprise
by whom the goods are produced, manufactured or exported; or
(v)
a direct transfer of funds from that government or body to that enterprise
contingent upon particular circumstances occurring; or
(vi)
the acceptance of liabilities, whether actual or potential, of that
enterprise by that government or body; or
(vii) the forgoing, or non collection, of revenue (other than an allowable
exemption or remission) due to that government or body by that
enterprise; or
- 11 (viii) the provision by that government or body of goods or services to that
enterprise otherwise than in the course of providing normal
infrastructure; or
(ix)
(b)
the purchase by that government or body of goods provided by that
enterprise; or
any form of income or price support as referred to in Article XVI of the
General Agreement on Tariffs and Trade 1994 that is received from such a
government or body;
if that financial contribution or income or price support confers a benefit in relation
to those goods.
28
One matter the subject of the reinvestigation concerned the question whether certain
primary aluminium producers, identified as state-owned enterprises, qualified as “public
bodies” for the purposes of the Act. This question arose in the context of a number of related
contentions which the CEO was required to consider. The first of these was that certain stateowned producers of primary aluminium had supplied aluminium to companies engaged in the
manufacture of aluminium extrusions for less than adequate remuneration. The second was
that the supply of aluminium in such circumstances may involve the making of a financial
contribution by a public body and, consequently, the giving of a “subsidy” for the purposes of
the Act.
29
The state-owned producers of primary aluminium that were the focus of the
reinvestigation were CHINALCO and various of its subsidiaries. CHINALCO is identified
in Report 175 as a wholly state-owned company that owns 41.82% of CHALCO. There are
about 28 companies identified in Report 175 that are wholly or majority owned (either
directly or indirectly) by CHALCO. According to Report 175 (at p 18) “CHINALCO, via its
subsidiary, CHALCO (and in turn, its subsidiaries), represented the largest producer of
primary aluminium in China”.
30
In Report 148, the CEO found that CHINALCO and its subsidiaries were “public
bodies” for the purposes of the Act because they were “all state-owned primary aluminium
producing enterprises [that] are either majority or wholly owned and therefore public bodies.”
31
The TMRO considered that the meaning given to the phrase “public body” in Report
148 was too broad.
In recommending that there be a reinvestigation, the TMRO was
influenced by a report of the WTO Appellate Body published on 11 March 2011 entitled
“United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products
from China” (the US/China Report).
- 12 32
The phrase “public body” as used in the definition of subsidy in s 269T derives from
Article 1.1 of the the SCM Agreement. Article 1.1 of the SCM Agreement stipulates that a
“subsidy” shall be deemed to exist for the purpose of the SCM Agreement if there is a
“financial contribution by a government or any public body within the territory of a Member”
and “a benefit is thereby conferred”.
33
The meaning of the phrase “public body” as the phrase is used in Article 1.1(a)(1) of
the SCM Agreement was considered at paras 317-319 of the US/China Report. The WTO
Appellate Body said:
317.
… We see the concept of “public body” as sharing certain attributes with the
concept of “government”. A public body within the meaning of Article
1.1.(a)(1) of the SCM Agreement must be an entity that possesses,
exercises or is vested with governmental authority. Yet, just as no two
governments are exactly alike, the precise contours and characteristics of a
public body are bound to differ from entity to entity, State to State, and case
to case. Panels or investigating authorities confronted with the question of
whether conduct falling within the scope of Article 1.1.(a)(1) is that of a
public body will be in a position to answer that question only by conducting a
proper evaluation of the core features of the entity concerned, and its
relationship with government in the narrow sense.
318.
In some cases, such as when a statute or other legal instrument expressly
vests authority in the entity concerned, determining that such entity is a
public body may be a straightforward exercise. In others, the picture may
be more mixed, and the challenge more complex. The same entity may
possess certain features suggesting it is a public body, and others that suggest
that it is a private body. We do not, for example, consider that the absence of
an express statutory delegation of authority necessarily precludes a
determination that a particular entity is a public body. What matters is
whether an entity is vested with authority to exercise governmental functions,
rather than how that is achieved. There are many different ways in which
government in the narrow sense could provide entities with authority.
Accordingly, different types of evidence may be relevant to showing that
such authority has been bestowed on a particular entity. Evidence that an
entity is, in fact, exercising governmental functions may serve as
evidence that it possesses or has been vested with governmental
authority, particularly where such evidence points to a sustained and
systematic practice. It follows, in our view, that evidence that a government
exercises meaningful control over an entity and its conduct may serve, in
certain circumstances, as evidence that the relevant entity possesses
governmental authority and exercises such authority in the performance of
governmental functions. We stress, however, that, apart from an express
delegation of authority in a legal instrument, the existence of mere formal
links between an entity and government in the narrow sense is unlikely to
suffice to establish the necessary possession of governmental authority. Thus,
for example, the mere fact that a government is the majority shareholder of
an entity does not demonstrate that the government exercises meaningful
control over the conduct of that entity, much less that the government has
bestowed it with governmental authority. In some instances, however,
where the evidence shows that the formal indicia of government control
- 13 are manifold, and there is also evidence that such control has been
exercised in a meaningful way, then such evidence may permit an
inference that the entity concerned is exercising governmental authority.
319.
In all instances, panels and investigating authorities are called upon to engage
in a careful evaluation of the entity in question and to identify its common
features and relationship with government in the narrow sense, having
regard, in particular, to whether the entity exercises authority on behalf of
government. An investigating authority must, in making its determination,
evaluate and give due consideration to all relevant characteristics of the entity
and, in reaching its ultimate determination as to how that entity should be
characterized, avoid focusing exclusively or unduly on any single
characteristic without affording due consideration to others that may be
relevant.
(footnotes omitted, emphasis added)
34
The question whether CHINALCO and its subsidiaries were “public bodies” for the
purpose of the Act was the subject of reinvestigation by the CEO, and is dealt with at length
in Section 4 of Report 175.
In Section 4.1 the CEO summarised the findings of his
reinvestigation of this issue as follows (at p 11):
The delegate recommends the Attorney-General affirms the finding of the original
investigation that primary aluminium producers identified as SOEs qualify as ‘public
bodies’ under the Act. The reinvestigation is satisfied that the policies of, and level of
control exercised by, the Chinese Government in relation to primary aluminium
producers who were also enterprises with state investment (formerly known as
SOEs), was such as to cause these entities to possess, exercise or be vested with,
government authority, and those primary aluminium producers exercise such
authority in the performance of governmental functions, specifically, the
performance of the Chinese Government’s industrial development policies.
35
In Section 4.4.2 of Report 175, the CEO referred to paras 318-319 of the US/China
Report and said (at p 14):
According to the Appellate Body, a ‘public body’ may possess, exercise or be vested
with government authority, in the following circumstances:
•
where a statute or other legal instrument expressly vests government authority
in the entity concerned;
•
evidence that an entity is, in fact, exercising governmental functions may serve
as evidence that it possesses or has been vested with governmental authority;
and
•
evidence that a government exercises meaningful control over an entity and its
conduct may serve, in certain circumstances, as evidence that the relevant
entity possesses governmental authority and exercises such authority in the
performance of governmental functions.
(footnote omitted, original emphasis)
- 14 36
At Section 4.5 of Report 175 the CEO expressed his ultimate conclusion in these
terms (at p 24):
The reinvestigation observes that when the program of Chinese Government
policies, guidelines and directions applicable to both primary aluminium
producers and suppliers, and enterprises with state investment are considered as
a whole, then it is reasonable to conclude that the government exercises
meaningful control over the conduct of such entities, to the extent that the
government has bestowed them with governmental authority. As such, the
reinvestigation considers that primary aluminium producers and suppliers, not
identified as private enterprises without government investment, do qualify as ‘public
bodies’ under the Act. The reinvestigation has considered the reasons of the original
investigation concerning the status of primary aluminium producers and suppliers,
where the existence of government investment is not known, and considers it
reasonable to conclude in those circumstances that the primary aluminium producer
or supplier is a ‘public body’.
(emphasis added)
37
It is implicit in what the CEO said in Section 4 of Report 175 that he has proceeded
on the basis that a “public body” for the purposes of the Act must be an entity that possesses,
exercises or is vested with government authority. This reflects the interpretation of the
phrase “public body” that the Appellate Body adopted at para 317 of the US/China Report.
None of the parties to the proceedings suggested that the CEO was in error in adopting this
interpretation of the same phrase for the purposes of the Act. On the contrary, the applicants
submitted that the CEO adopted the correct test, but that he misapplied it when considering
whether CHALCO and its subsidiaries were public bodies for the purposes of the Act.
38
For the purpose of deciding whether an entity possesses, exercises or is vested with
government authority, the CEO identified what he referred to (at p 19) as “the indicia
established by the Appellate Body as supporting such a conclusion.” He referred to these as
“Indicator 1”, “Indicator 2” and “Indicator 3” (the Indicators), each of which corresponded
to one of three illustrations referred to at para 318 of the US/China Report that is highlighted
in the extract set out above, and which are in turn referred to in the three bullet points
appearing in Section 4.4.2 of Report 175.
39
The applicants’ attack upon the CEO’s finding that CHALCO and its subsidiaries
were public bodies for the purposes of the Act focused upon his consideration of each of the
Indicators. Separate arguments were developed by the applicants in relation to the CEO’s
consideration of each of the Indicators. It is convenient to examine what the CEO said in
- 15 relation to the Indicators and his ultimate conclusion on the “public bodies” issue before
considering these arguments.
Indicator 1
40
The CEO said (at pp 19-20):
Indicator 1: The existence of a “statute or other legal instrument” which
“expressly vests government authority in the entity concerned”
The Interim Report 2007 of CHALCO (contained in the applicant’s application)
provided the reinvestigation with one source of evidence of the existence of a “statute
or other legal instrument” vesting government authority in CHINALCO.
The reinvestigation contends that the following agreements constitute legal
instruments that ‘vest’ CHINALCO with the authority to impose on its subsidiaries
(including the CHALCO group of companies) state-prescribed pricing policies:
•
the general agreement on Mutual Provision of Production Supplies and
Ancillary Services;
•
Provision of Engineering, Construction and Supervisory Services Agreement;
•
Mineral Supply Agreement; and
•
Comprehensive Social and Logistics Services Agreement.
The Interim Report 2007 examined the operation of each of these agreements in
relation to transactions entered into between CHINALCO and CHALCO:
•
General transactions are covered by the general agreement on Mutual
Provision of Production Supplies and Ancillary Services, which subjects
transactions to the following pricing policy hierarchy:
(i)
adoption of prices prescribed by the Chinese Government (stateprescribed price);
(ii)
in the absence of a state-prescribed price, then adoption of a ‘stateguidance price’;
(iii)
if there is neither a state-prescribed price, nor a state-guidance price,
then adoption of the market price (being the price charged to and from
independent third parties); and
(iv)
If none of the above are available, then adoption of a contractual price
(being reasonable costs incurred in providing the relevant services plus
not more than 5% of such costs).
The reinvestigation notes that although the original investigation did not obtain direct
evidence of the exercise of this pricing regime, it notes that the pricing hierarchy is
prescriptive and CHALCO considers itself bound by it.
Transactions for the supply of specialist or specific goods and services are subject to
the following pricing prescriptions:
•
utility services, including electricity, gas, heat and water, are supplied at the
state prescribed price,
- 16 •
engineering, project construction and supervisory services are covered by the
Provision of Engineering, Construction and Supervisory Services Agreement,
which prescribed the state-guidance price or prevailing market price,
•
purchases of key and auxiliary materials (including bauxite, limestone,
carbon, cement, coal) from the CHINALCO Group are covered by the
General Agreement on Mutual Provision of Production Supplies and
Ancillary Services and the Mineral Supply Agreement, with the effect that the
pricing policy set out in the pricing hierarchy above is prescribed, and
•
social services and logistics services provided by the CHINALCO Group
were covered by the Comprehensive Social and Logistics Services
Agreement, which prescribes the pricing hierarchy above.
The above agreements vest CHINALCO with government authority to impose state
mandated pricing policies on its subsidiaries.
(footnote omitted)
Indicator 2
41
Turning to Indicator 2, the CEO stated (at pp 20-21):
Indicator 2: Evidence that an entity is, in fact, exercising governmental functions
may serve as evidence that it possesses or has been vested with governmental
authority
A further indicator that an entity possesses, exercises or is vested with government
authority arises where the entity is, in fact, exercising governmental functions.
In support of this view, the reinvestigation considered a translated version of a
Guiding Opinion of SASAC of the State Council about Promoting the Adjustment of
State-owned Capital and the reorganization of State-owned Enterprises. At the
outset, the reinvestigation acknowledges the comments of the Chinese Government
to the original investigation in its response to the Government Questionnaire, namely
that, the expression of such guiding opinions are not uncommon for monitoring
agencies in most countries. The Chinese Government therefore considered the
position of the Guiding Opinion as having the status of a research and discussion
paper.
The reinvestigation observed the following comments as evidence of the outcomes of
enterprises with state investment exercising governmental functions:
•
The document advised of the outcome of ‘state-owned asset management
system reform’, such as, “significantly improved economic effects, which
play an important role for perfecting socialist market economic system and
promoting sustained, fast and sound development of national economy”;
•
The documents [sic] identified the role played by SOEs in order to “execute
the spirits of the Third and Fifth Plenary Sessions of the Sixteenth CPC
Central Committee, and the Opinions of the State Council about Deepening
the Economic System Reform in 2005 (No. 9 [2005 of the State Council]),
namely:
°
“…enhance the state-owned economy’s controlling power, influence,
driving force, bring the leading role of state-owned economy into
play…”;
- 17 °
“…persist in strengthening supervision over state-owned assets, rigidly
enforce the procedures for property right transactions and equity
transfer, promote orderly flow, prevent the loss of state-owned assets
and ensure the value maintenance and increase of state-owned assets”;
°
“…persist in safeguarding the legitimate rights and interests of
workers, protect the workers’ rights to enterprise reorganisation,
restructuring and other kinds of reform, and fully mobilize and protect
the initiatives of the vast majority of workers to participate in the
reform and reorganisation of state-owned enterprises”;
°
“promote state-owned capital to concentrate on major industries and
key fields relating to national security and national economic lifelines
… and accelerate the formation of a batch of predominant enterprises
with independent intellectual property rights, famous brands and strong
international competitiveness”;
°
“enhancing the controlling power of state-owned economy, and
bringing its leading role into play”.
(footnotes omitted)
Indicator 3
42
The section of Report 175 in which Indicator 3 was examined is headed:
Indicator 3: Evidence that a government exercises meaningful control over an
entity and its conduct may serve, in certain circumstances, as evidence that the
relevant entity possesses governmental authority and exercises such authority in
the performance of governmental functions
43
Below this heading there is a lengthy discussion by the CEO of three documents, each
of which was perceived by him to be relevant to the extent to which the government might be
regarded as exercising control over CHALCO and its subsidiaries.
The first document
44
The first document was entitled “Interim Measures for the Supervision and
Administration of State-Owned Assets of the Enterprises”. According to the CEO (at p 21)
this document provides “guidance on the government’s role as an owner of enterprises with
state investment”. Earlier in Report 175, the CEO referred (at p 12) to what is known as the
“Chinese State-owned Assets Supervision and Administration Commission” (SASAC). In
connection with his consideration of Indicator 3 the CEO said (at p 22):
However, when the main functions and responsibilities of SASAC are outlined in the
Guidelines, then, evidence of the extent of the control of the Chinese Government,
albeit via SASAC, becomes relevant to the consideration of this indicator:
“(a)
[SASAC] performs the responsibility of investor, and guides and pushes
- 18 forward the reform and restructuring of SOEs; supervises the preservation
and increment of the value of state-owned assets for enterprises under its
supervision, and enhances the management of state-owned assets; advances
the establishment of modern enterprise system in SOEs, and perfects
corporate governance; and propels the strategic adjustment of the structure
and layout of the State economy;
“(b)
despatches supervisory panels to some large enterprises on behalf of the
State; takes charge of daily management of the supervisory panels;
“(c)
appoints and removes top executives of enterprises, and evaluates their
performances through legal procedures, either grants rewards or inflicts
punishments based on their performances; establishes corporate executives
selection system in accordance with the requirements of socialist market
economy system and modern enterprise system, and perfects incentives and
restraints system for corporate management; and
“(d)
supervises and administers the preservation and increment of the value of
state-owned assets under the supervision of SASAC through statistics and
auditing; establishes and perfects the index system of the preservation and
increment of the value of state-owned assets, and works out assessment
criteria; safeguards the rights and interests of the investor of state-owned
assets.”
The reinvestigation acknowledges that the power to appoint and remove “top
executives of enterprises”, and evaluate their performance through legal procedures,
is a power of owners of enterprises, it is the additional criteria applied by SASAC in
executing this responsibility that amounts to conduct which may serve, in certain
circumstances, as evidence that the relevant entity possesses governmental
authority and exercises such authority in the performance of governmental
functions. Applied here the reinvestigation had regard to references suggesting the
selection of corporate executives “in accordance with the requirements of socialist
market economy system and modern enterprise system…” In particular, the express
power vested in SASAC, to:
“(e)
[draft] laws and administrative regulations of the management of the stateowned assets and draws up related rules; directs and supervises the
management work of local state-owned assets according to law”,
suggests that the level of the control over the entity is significant.”
(footnotes omitted)
The second document
45
The next document the CEO had regard to in connection with his consideration of
Indicator 3 was entitled “Guidelines for accelerating the restructuring of the Aluminium
Industry” (Accelerating Guidelines). The CEO said (at pp 22-23) that he regarded this as
evidence that the Chinese Government exercised meaningful control over primary aluminium
producers and suppliers. This was so, according to the CEO, whether or not the enterprise
concerned was a state-owned enterprise. The CEO stated that the Accelerating Guidelines
prescribe which aluminium industry participants should be supported by Chinese
- 19 Government departments and entities. The CEO then quoted the following passage from the
Accelerating Guidelines (at p 23):
“financial departments should continue providing financial support to … aluminium
enterprises which are conformed to the state industrial policy, credit policy and the
industrial access conditions. As to the enterprises, which are not conformed to the
industrial policy and market access conditions, or which have been eliminated by the
laws or regulations due to backward technology or techniques, the financial
departments should not provide any support in any form. If any support has been
provided to the enterprises by mistake, the financial departments should withdraw it
to avoid financial risk.”
(footnote omitted)
46
The CEO considered (also at p 23) these directions to be “highly prescriptive and
designed to achieve compliance by primary aluminium producers and suppliers, with the
consequence of a withdrawal of support for non-compliance.”
The third document
47
The CEO then turned to a third document which was a “Form 20-F return of
CHALCO” (the Form 20-F). The Form 20-F included the following statements (at p 23):
“The central and local PRC governments continue to exercise a substantial degree of
control and influence over the aluminium industry in China and shape the structure
and characteristics of the industry by means of policies in respect of major project
approval, preferential treatments such as tax incentives, electricity pricing, and safety,
environmental and quality control…”
“Under current PRC regulatory requirements … the expansions of primary
aluminium plants … require Chinese Government approval.”
“Substantially all of our business, assets and operations are located in China … the
PRC government continues to play a significant role in regulating industry by
imposing industrial policies. It also exercises significant control over China’s
economic growth through the allocation of resources, controlling payment of foreign
currency-denominated obligations, setting monetary policy and providing preferential
treatment to particular industries or companies.”
48
The CEO said (at p 24) that these statements by CHALCO:
support the view that the level of control and regulation by the Chinese Government
in the aluminium industry in China is so significant, that primary aluminium
producers and suppliers are in fact responding to the Chinese Government’s
industrial development policy. The reinvestigation views the operations of primary
aluminium producers and suppliers as inextricably tied to the implementation of
government industrial and macro-economic functions.
- 20 The applicants’ submissions
In its originating application Panasia contended that the CEO’s finding that primary
49
aluminium producers or suppliers in China are public bodies within the meaning of s 269T of
the Act involved a misapplication of the phrase “public bodies” to the facts of the case in
that:
50
(i)
the “statutes or other legal instruments” relied on in the section entitled
“Indicator 1” are not capable of demonstrating any vesting of government
authority in CHALCO but demonstrate only that prices set by CHALCO may
be influenced by government pricing policies;
(ii)
the “Guiding Opinion of SASAC” relied on in the section entitled “Indicator
2” does not demonstrate that enterprises with state investment are in fact
exercising governmental functions; and
(iii)
the evidence relied on in the section entitled “Indicator 3” to demonstrate that
government exercises meaningful control over primary aluminium producers
and suppliers is not attended by any analysis of how the suggested control
serves as evidence that the relevant entities themselves possess governmental
authority.
In its originating application Kam Kiu contended that the CEO’s finding that primary
aluminium producers or suppliers in China are public bodies was based on a misconstruction
of the term “public body” in s 269T of the Act, namely, that an enterprise that achieves a
government policy thereby performs a governmental function and so is a public body within
the meaning of that section. Kam Kiu also contended that the Attorney’s decision was not
based on evidence or other material from which the CEO could reasonably be satisfied that
benefits had been conferred or may be conferred on Kam Kiu by a Chinese public body, or,
alternatively, that the decision was dependent on a finding of the conferring of such a benefit
and there was no evidence to establish that such a benefit had been conferred by a Chinese
public body. These latter contentions are not reflected in the agreed statement of issues and
neither of them was the subject of oral argument. I have proceeded on the basis that both of
them were abandoned in so far as they might be perceived to raise any additional contention
apart from the first.
51
Panasia’s submissions focus on the applications by the CEO of each of the Indicators,
something which was said to involve legal error in that, although the CEO purported to apply
the correct legal test, he did not in fact do so. Panasia submitted:
- 21 Indicator 1

Contrary to the approach taken by the CEO in his consideration of Indicator 1,
evidence that CHALCO is bound by directions from its major shareholder as
to prices is not evidence that CHALCO is vested with government authority.

The agreements referred to by the CEO in his consideration of Indicator 1 are
incapable of constituting legal instruments which vest government authority in
CHALCO and its subsidiaries.
Indicator 2

The statements relied upon by the CEO which he drew from the document
entitled “Guiding Opinions of the SASAC of the State Council about
Promoting the Adjustment of State-owned Capital and the Reorganization of
State-owned Enterprises” (the Guiding Opinion) did not provide any
evidence that any entity, including CHALCO and its subsidiaries, was
exercising governmental functions. In particular, the Guiding Opinion makes
no reference to CHINALCO, CHALCO or any other producer of primary
aluminium.
Indicator 3

The statements relied upon by the CEO taken from the first document – the
Guidelines issued by the SASAC (the SASAC Guidelines) – related to Stateowned enterprises generally, and said nothing about whether the Chinese
government exercised meaningful control over CHINALCO, CHALCO or any
other producer of primary aluminium.

The statements relied upon by the CEO taken from the second and third
documents – the Accelerating Guidelines and the Form 20-F – related to the
aluminium industry generally, and not merely State-owned enterprises.
52
Kam Kiu adopted Panasia’s submissions on this issue and developed some further
submissions of its own.
Kam Kiu submitted that in determining the question whether
CHALCO and its subsidiaries exercised, possessed or were vested with government
authority, the CEO made three errors. First, he “misdirected” his inquiry because the supplier
of the primary aluminium in question was not CHINALCO, but CHALCO. In this regard,
the CEO was said to have conflated different legal entities, one being the regulator and the
- 22 other being the regulated, or one exercising governmental authority and one that was the
subject of governmental authority. Secondly, the CEO wrongly assumed that ownership of a
subsidiary (CHALCO) by a parent (CHINALCO) clothes the subsidiary with the same
identity as the parent, such that if the parent is a public body for the purposes of the Act, then
the subsidiary must also be such a body. On this submission, the CEO found that CHALCO
was a public body for the simple reason that it was partly owned by CHINALCO, a wholly
State-owned enterprise. Thirdly, the CEO relied upon the Guiding Opinion in circumstances
where it could have no bearing on whether any of the primary aluminium producers were in
fact exercising government functions.
53
Kam Kiu further submitted that none of the material that the CEO relied upon in
support of a finding that the government exercised meaningful control over CHALCO and its
subsidiaries could provide any such support. In its written submission Kam Kiu argued:
That material established no more than the fact that the Chinese government has
industrial policies, enacts guidelines and laws in pursuit of those policies, and
encourages compliance with those laws and guidelines. However, the fact that a
government makes laws that it expects to be followed by an entity can have no
bearing on whether that entity is a “public body”. If it were otherwise, there would
be no meaningful distinction between the terms “public body” and “private body” in
the definition of “subsidy” in s 269T of the Act.
Consideration of “Public Body” issue
54
It is important to observe at the outset that the Indicators referred to by the CEO (upon
which most of the argument focused) are merely illustrations of circumstances in which it
might be found that a particular entity possessed, exercised or was vested with governmental
authority so as to render it a “public body” for the purposes of the Act. As emphasised in the
passages in the US/China Report referred to by the CEO and set out above, the question
whether an entity is a public body may present a mixed and complex picture.
55
The Appellate Body held that for an entity to be a “public body” for the purposes of
Article 1.1(a)(1) of the SCM Agreement, it must possess, exercise, or be vested with,
governmental authority. However, it is clear that “authority” in this context is not confined to
“authority” in the sense that word is usually understood in the context of Anglo-Australian
law. In particular, it is not an essential characteristic of a “public body” that it be an agent of
government in the sense that a narrow view of the word “authority” might imply. There is
nothing in the US/China Report to suggest that for an entity to be a “public body” for the
purposes of Article 1.1(a)(1) it must be an agent of government in any technical sense.
- 23 56
Besides the straightforward cases involving an entity that is the subject of an express
grant or delegation of governmental authority pursuant to a legislative instrument, it may not
be possible to identify any such instrument or other formal record evincing the grant or
delegation of authority by government in favour of an entity through which it seeks to give
effect to its economic or social policies. As the Appellate Body made clear, different types of
evidence may be relevant to show that governmental authority has been conferred on a
particular entity. One type of evidence that might demonstrate that this has occurred is
“[e]vidence that an entity is, in fact, exercising governmental functions”. Another type is that
which shows that a government exercises “meaningful control” over an entity which may
demonstrate that an entity both possesses and exercises governmental authority in the
performance of governmental functions.
57
It is well settled that an administrative decision-maker’s reasons must not be read with
“an eye keenly attuned to the perception of error”. Further, a decision-maker’s reasons must
be read as a whole. These basic principles were at the forefront of the respondents’ response
to the applicants’ submissions.
58
The applicants’ challenge to the CEO’s finding that CHALCO and its subsidiaries
were “public bodies” for the purposes of the Act involved what was a highly
compartmentalised analysis of the relevant section of Report 175 which was undertaken by
reference to the different Indicators with little, if any, attention given to the terms of the
CEO’s conclusion. The applicants’ analysis was no doubt shaped by the way in which the
CEO himself approached the question of whether CHALCO and its subsidiaries were public
bodies. Nevertheless, his finding that CHALCO and its subsidiaries were public bodies was
the product of a process of reasoning that must be viewed as a whole and, in particular, in
light of his overall conclusion and the language in which it is expressed.
59
In my opinion it is apparent upon a reading of Report 175 as a whole that the
conclusion that CHALCO and its subsidiaries were “public bodies” for the purposes of the
Act was open to the CEO and was not affected by legal error.
60
It is true that in his discussion of Indicator 1, the CEO focused not on CHALCO, but
on CHINALCO. However, CHINALCO was a relevant entity because it is a wholly-owned
State enterprise, and a parent of CHALCO. The precise finding made by the CEO in relation
to CHINALCO was that it was vested with governmental authority to impose State-mandated
- 24 pricing policies on its subsidiaries. Panasia did not contend that this particular finding was
not open to the CEO, and Kam Kiu merely relied upon a very general submission which is
reflected in the passage from the written submissions extracted above.
61
The CEO’s description of the relevant agreements indicates that they invested
CHINALCO with power to impose State-prescribed pricing policies on CHALCO and its
subsidiaries. Kam Kiu did not refer to the agreements that were before the CEO with a view
to demonstrating that this involved a mischaracterisation of their purpose or effect. Against
that background I am not satisfied that it was not open to the CEO to find that these
agreements were not mere “guidelines” and that they did more than provide “encouragement”
in relation to pricing.
62
Panasia’s submission that the agreements referred to by the CEO are incapable of
constituting legal instruments which vest government authority in CHALCO and its
subsidiaries ignores the very narrow terms of the CEO’s finding. The CEO did not find that
these agreements vested governmental authority in CHALCO or its subsidiaries. He did no
more than find that they vested CHINALCO with governmental authority to impose Statemandated pricing policies on its subsidiaries. This was one of a number of considerations
that contributed to the overall conclusion that CHALCO and its subsidiaries were also public
bodies for the purposes of the Act.
63
So far as Panasia’s submissions regarding Indicator 2 are concerned, it is again
important to look at the findings made by the CEO in relation to the Guiding Opinion. He
did not make any specific finding in relation to the Guiding Opinion. Rather, the Guiding
Opinion formed part of a broader evidentiary basis upon which he founded his overall
conclusion. That conclusion was to the effect that, in light of the Chinese Government’s
policies, guidelines and directions applicable to primary aluminium producers and suppliers
in which the Chinese Government had an investment, it should be concluded that the Chinese
Government exercised meaningful control over the conduct of such entities to the point
where it could be said that those producers and suppliers were conferred with governmental
authority.
64
The subject matter of the Guiding Opinion was clearly relevant to a consideration of
the nature and extent of the Chinese Government’s involvement in enterprises in which the
State had invested. The fact that the Guiding Opinion made no reference to the particular
- 25 entities with which the CEO was most directly concerned does not establish any error of law
on his part. It was for the CEO to determine what weight should be given to the material
before him. In this regard, the submissions of the Chinese Government to the CEO, assuming
they were accurately summarised by him, seem to have suggested that the Guiding Opinion
should be given no weight, not because the Guiding Opinion did not apply to the particular
enterprises with which the CEO was most directly concerned, but because it was in the nature
of a mere research or discussion paper.
It is apparent the CEO did not accept that
submission.
65
This brings me to the submissions made by the applicants in relation to the three
documents discussed by the CEO in the context of Indicator 3. Again, the submissions made
by Panasia in relation to the first document, the SASAC Guidelines, reflect what is in essence
a complaint about the weight that the CEO attached to the document. The CEO was of the
view that the SASAC Guidelines suggested that the Chinese Government’s level of control
over the entities to which they applied was significant. When regard is had to the functions
and responsibilities of SASAC referred to in paras (a)-(e) of the SASAC Guidelines (as set
out at page 22 of Report 175) it is apparent this was a view open to the CEO.
66
The CEO considered that the second document, the Accelerating Guidelines, showed
that the Chinese Government exercised meaningful control over primary aluminium
producers and suppliers including those entities that were not the subject of State investment.
He described the Accelerating Guidelines as “highly prescriptive” and “designed to achieve
compliance”. The fact that the Accelerating Guidelines apply to all primary aluminium
producers and suppliers, and not merely those that are State-owned, is not to the point. The
Accelerating Guidelines were, at the very least, equally relevant to enterprises that were the
subject of State investment.
67
The Chinese Government’s submission, as summarised by the CEO, sought to portray
the Accelerating Guidelines as being concerned with the reduction of waste and pollution,
and as including what were described as mere “aspirational statements”. It was open to the
CEO to take a different view of the Accelerating Guidelines and to treat them as evidence of
the Chinese Government exercising control over primary aluminium producers and suppliers,
including through providing or withholding financial support to enterprises based upon
whether or not they complied with directions or requirements of the Chinese Government.
- 26 The third document, the Form 20-F, which is a business record of CHALCO, seems to
68
me to be especially significant when considering the degree of control exercised by the
Chinese Government over CHALCO and its subsidiaries.
It includes a clear
acknowledgment that the Chinese Government exercises a substantial degree of control and
influence that shapes the structure and characteristics of the aluminium industry in China
through the provision of preferential treatments of various kinds. It was open to the CEO to
take the view in light of this document that the Chinese Government, through its control of
primary aluminium producers and suppliers, bestowed them with its authority to give effect
to the Chinese Government’s economic, industrial and social policies by providing or
withholding financial support of various kinds to the domestic manufacturers which they
supplied.
The CEO’s conclusion as expressed in Section 4.5 of Report 175 reflects his
69
conclusion that the Chinese Government exercises meaningful control over the conduct of
primary aluminium producers and suppliers in which it has invested. It also reflects his
substantive conclusion, though not expressed precisely in these terms, that the extent of the
control exercised by the Chinese Government over the primary aluminium producers and
suppliers justified his finding that such producers and suppliers possessed, or had been vested
with, governmental authority.
Finally, I do not accept Kam Kiu’s submissions as summarised at [52]-[53] above. In
70
particular, I am not satisfied that the CEO confused CHINALCO or CHALCO, or mistakenly
characterised CHALCO as regulator, rather than an entity that is regulated. Clearly, the CEO
recognised that CHALCO was itself the subject of regulation, but he also recognised, and
found, that CHALCO and its subsidiaries served as instruments through which, and by
extension, the Chinese Government could give effect to its economic and social policies
through the aluminium industry as a whole.
CONSTRUCTION OF THE PHRASES “FOR LESS THAN ADEQUATE
REMUNERATION” AND “PREVAILING MARKET CONDITIONS” (ISSUE B2)
The next issue to be considered concerns the CEO’s construction and application of
71
s 269TACC.
There are two issues raised.
First, whether the CEO misconstrued or
misapplied the phrase “for less than adequate remuneration” in subs 269TACC(4)(d) of the
Act.
Second, whether he misconstrued or misapplied the phrase “prevailing market
conditions” in subs 269TACC(5).
- 27 72
Section 269TACC relevantly provides:
(1)
If:
(a)
a financial contribution referred to in paragraph (a) of the definition
of subsidy in subsection 269T(1); or
(b)
income or price support referred to in paragraph (b) of that definition;
is received in respect of goods, the question whether that financial
contribution or income or price support confers a benefit, and, if so, the
amount of subsidy attributable to that benefit, are to be worked out according
to this section.
(2)
If a financial contribution in respect of goods is a direct financial payment
received from a government of a country, a public body of that government
or of which that government is a member, or a private body entrusted or
directed by that government or public body to carry out a governmental
function, a benefit is taken to be conferred because of that payment.
(3)
If:
(a)
there is no financial contribution of the kind referred to in
subsection (2) received in respect of goods; but
(b)
a financial contribution of another kind, or income or price support, is
received in respect of those goods from a government of a country, a
public body of that government or of which that government is a
member, or a private body entrusted or directed by that government
or public body to carry out a governmental function;
the question whether that financial contribution or income or price support
confers a benefit is to be determined by the Minister.
(4)
In determining whether a financial contribution confers a benefit, the
Minister must have regard to the following guidelines:
(a)
the provision of equity capital from the government or body referred
to in subsection (3) does not confer a benefit unless the decision to
provide the capital is inconsistent with normal investment practice of
private investors in the country concerned;
(b)
the making of a loan by the government or a body referred to in
subsection (3) does not confer a benefit unless the loan requires
repayment of a lesser amount than would be required for a
comparable commercial loan;
(c)
the guarantee of a loan by the government or a body referred to in
subsection (3) does not confer a benefit unless, without the guarantee,
the enterprise receiving the loan would have to repay a greater
amount;
(d)
the provision of goods or services by the government or body
referred to in subsection (3) does not confer a benefit unless the
goods or services are provided for less than adequate remuneration;
(e)
the purchase of goods by the government or body referred to in
subsection (3) does not confer a benefit if the purchase is made for
more than adequate remuneration.
- 28 73
One of the contentions raised before the CEO was that Chinese exporters of
aluminium extrusions had benefited from the provision of goods by Government-owned
enterprises for less than adequate remuneration. In particular, it was contended that primary
aluminium, the main input used in the manufacture of aluminium extrusion, was both
produced and supplied for less than adequate remuneration.
74
The CEO found (at p 49) in Report 148 that aluminium extrusions exported from
China to Australia received “financial contributions in respect of the goods that conferred a
benefit under 19 subsidy programs.” One of these programs was referred to as “Program 15”.
75
Program 15 could only involve the giving of a subsidy in respect of goods exported to
Australia if it involved a financial contribution which conferred a benefit in relation to those
goods: see definition of ‘subsidy’ in s 269T.
Subsection 269TACC(4) specifies five
guidelines to which the Minister must have regard for the purpose of determining whether a
financial contribution confers such a benefit.
76
The fourth such guideline (subs (4)(d)) provides that the provision of goods or
services by a government or public body does not confer a benefit unless they are provided
for “less than adequate remuneration”. According to subs (5), the question whether goods or
services are provided for less than adequate remuneration for the purposes of the guidelines
“is to be determined having regard to prevailing market conditions for like goods or services
in the country where those goods or services are provided or purchased”.
77
The CEO dealt with Program 15 in Appendix 8 of Report 148. The CEO stated (at
p 1 of Appendix 8):
2.4
Effect of the program
Under this program, a benefit to the exporter of aluminium extrusions is conferred by
primary aluminium being provided by the GOC at an amount reflecting less than
adequate remuneration, having regard to prevailing market conditions in China.
Customs and Border Protection requested information from the four exporters
selected for further verification in relation to their purchases of primary aluminium
during the investigation period. For each supplier of primary aluminium, the
exporters were required to identify whether they were a trader or manufacturer of the
goods. Where the supplier was not the manufacturer of the goods, each exporter was
asked to identify the manufacturer.
As well as identifying the manufacturers of all purchased primary aluminium, the
exporters were also asked to indicate whether these enterprises were SOEs.
Information presented by these exporters showed that SOEs were significant
- 29 suppliers of primary aluminium. This is further supported by information provided by
the GOC which showed the share of total domestic aluminium production in China
by SOEs.
In determining whether the provision of goods conferred a benefit, Customs and
Border Protection has had regard to the guidelines set out in ss.269TACC(4) and (5).
In establishing a benchmark price for primary aluminum [sic] reflecting adequate
remuneration, Customs and Border Protection considered whether prices from private
enterprises were an appropriate basis. Information provided in the GOC questionnaire
response showed that SOEs represented a significant percentage of the total number
of aluminium producers in China. Importantly, in terms of production volumes, SOEs
producing primary aluminium accounted for almost half of the total aluminum [sic]
production in 2008. It is Customs and Border Protection’s view that prices of primary
aluminium supplied by SOEs are likely to have influenced domestic primary
aluminium prices generally.
Customs and Border Protection has also taken into account the following factors
which indicate the Government’s involvement in the domestic aluminium market and
the distorting effects on domestic prices:
•
export taxes on primary aluminium; and
•
purchase of primary aluminium by the GOC.
For these reasons, Customs and Border Protection considers privately owned supplier
prices of primary aluminium to be distorted and unsuitable for use as a benchmark in
determining whether a benefit is conferred by the program.
In ascertaining an appropriate benchmark, Customs and Border Protection is mindful
of the need to determine a price that reflects prevailing market conditions for like
goods in China. This requirement is reflected in s.269TACC(5). Customs and Border
Protection was able to confirm that an important factor in the purchasing decisions of
Chinese exporters was the comparison of domestic prices reflected on the SHFE and
equivalent prices for imported primary aluminium quoted on the LME. This was
clearly evidenced in the switch to imported aluminium at about the same time that
SHFE prices rose above LME prices.
Therefore, Customs and Border Protection considers that LME prices for primary
aluminium (after some adjustment for delivery and other costs) are indicative of
import prices into the Chinese market and as such, are a suitable benchmark for
determining whether primary aluminium was provided at less than adequate
remuneration and conferred a benefit in relation to the goods exported.
…
2.6
Is there a subsidy?
Based on the information above, Customs and Border Protection considers that this
program involves a financial contribution to the extent that it was made in connection
with the production of aluminium extrusions from China, that involves the provision
of goods (primary aluminium) by SOEs, being public bodies.
Where the financial contribution involves a direct transaction between the public
bodies and the exporters of aluminium extrusions, Customs and Border Protection
considers that this financial contribution confers a direct benefit to the extent that the
goods were provided at less than adequate remuneration. Where the financial
contribution involves the provision of primary aluminium by the public bodies to
private intermediaries that then trade those inputs to the exporters of aluminium
extrusions, Customs and Border Protection considers in accordance with
- 30 s.269T(2AC)(a) that an indirect benefit is conferred in relation to the exported goods
to the extent that the benefits conferred to the private intermediaries are passedthrough to the exporters of aluminium extrusions by way of the goods being provided
at less than adequate remuneration.
Where exporters of aluminium extrusions during the investigation period purchased
primary aluminium at less than adequate remuneration under the program in
connection with the production, manufacture or export of those goods it would confer
a benefit in relation to those goods and the financial contribution would meet the
definition of subsidy under s.269T.
78
The CEO made clear in para 2.4 of Appendix 8 that he had regard to the guidelines
referred to in subss 269TACC(4) and (5). Panasia did not submit, nor is there any basis to
hold, that the CEO did not do so.
79
In written submissions, Panasia submitted that, although the CEO acknowledged the
need to have regard to “prevailing market conditions” for like goods in China in determining
what is “adequate remuneration”, he erred by concluding that prices charged by private
enterprises in China were not capable of reflecting prevailing market conditions in that
country under subs 269TACC(5) because they were “distorted”. Panasia submitted:

The only matters identified by the CEO as “distorting” domestic prices for
primary aluminium were export taxes and government purchases. Neither of
these matters precluded domestic prices in China, private or otherwise, from
reflecting prevailing market conditions.

The CEO’s decision to ignore privately-owned supplier prices was contrary to
the decisions of the Appellate Body which address the meaning of the phrases
“adequate remuneration” and “prevailing market conditions” in Art 14(d) of
the SCM Agreement. In support of this submission reference was made to
(inter alia) the report of the Appellate Body entitled “United States – Final
Countervailing Duty Determination with Respect to Certain Softwood Lumber
from Canada” dated 19 January 2004 (WT/DS257) (the Softwood Lumber
Report) especially paras 86-90 and 99-103.

It was necessary for the CEO to demonstrate that any distortion of market
conditions resulted from the government’s role as supplier because, absent that
connection, there could be no subsidy in the relevant sense.

The prices which the CEO adopted as reflecting “prevailing market
conditions” were London Metals Exchange (LME) prices which were not
- 31 capable of satisfying the statutory description. Panasia submitted that this was
apparent from the CEO’s finding in Report 175 that the actual prices of
imported primary aluminium paid by specific companies were themselves
below the comparable LME price (Report 175 at p 33).
In oral submissions Panasia also submitted:

The government’s involvement in relation to export taxes and as a purchaser
of primary aluminium did not provide a basis for finding “a relevant
distortion”.

The WTO jurisprudence emphasises that private prices can only be ignored
when the government’s market share is so large that it drives all prices down.
80
In considering these submissions it is useful to begin with the broad structure of
s 269TACC. The section is directed to the question whether a financial contribution “confers
a benefit”. Subsection (2) is concerned with direct financial payments. If such a payment is
received from (inter alia) a government or a public body then a benefit is deemed to be
conferred by the payment. But if something other than a direct financial payment is received
that constitutes “a financial contribution of another kind, or income or price support” then the
question whether it confers a benefit is to be determined by the Minister (subs (3)). In
determining this question the Minister must have regard to the guidelines specified in subs (4)
including, relevantly, sub-para (d) which provides that the provision of goods or services by a
government or public body does not confer a benefit unless the goods or services are
provided for less than adequate remuneration. Subsection (5) then provides that the adequacy
of remuneration in relation to goods or services is to be determined having regard to
“prevailing market conditions”. The latter phrase is not defined.
81
Contrary to Panasia’s submissions, the CEO identified not only export taxes and
government purchases as distorting domestic prices for primary aluminium, but also the role
of SOEs which he found accounted for almost half of total aluminium production in 2008.
These three factors led the CEO to conclude that prices for primary aluminium offered by
private suppliers were unsuitable for the purposes of assessing whether or not a benefit had
been conferred by government or public bodies through the provision of primary aluminium
by SOEs to manufacturers of aluminium extrusions.
- 32 82
The CEO’s approach is consistent with the decisions of the WTO Appellate Body in
relation to Art 14(d) of the SCM Agreement. In the Softwood Lumber Report the Appellate
Body said (at para 102):
We emphasize once again that the possibility under Article 14(d) for investigating
authorities to consider a benchmark other than private prices in the country of
provision is very limited. We agree with the United States that “[t]he fact that the
government is a significant supplier of goods does not, in itself, establish that all
prices for the goods are distorted”. Thus, an allegation that a government is a
significant supplier would not, on its own, prove distortion and allow an investigating
authority to choose a benchmark other than private prices in the country of provision.
The determination of whether private prices are distorted because of the
government’s predominant role in the market, as a provider of certain goods,
must be made on a case-by-case basis, according to the particular facts
underlying each countervailing duty investigation.
(footnote omitted, emphasis added)
Even if it is accepted that the fact that SOEs were significant suppliers of primary aluminium
could not of itself establish that prices for primary aluminium offered by private suppliers
were “distorted” and therefore unsuitable for the purpose of determining a benchmark, that
does not accurately describe the extent of the matters taken into account by the CEO in this
case. The existence of export taxes and governmental purchases of primary aluminium were
factors contributing to the CEO’s conclusion.
83
The complaint made by Panasia concerning the CEO’s use of LME prices assumes,
incorrectly, that the CEO must adopt prices that reflect “prevailing market conditions”.
Subsections (4) and (5) require only that the Minister have regard to certain matters for the
purpose of determining whether a benefit has been conferred. It is apparent that the CEO was
of the view that there was a market for imported primary aluminium in China and that, after
making adjustments for delivery and other costs, LME prices provided a suitable benchmark
in determining whether primary aluminium was supplied to manufacturers of aluminium
extrusions in that market at less than adequate remuneration. I am not persuaded that this
conclusion was not open to the CEO on the material before him.
“NORMAL VALUE” (ISSUES A1 AND A2)
Section 269TAAD and Regulation 180(2)(b)
84
Section 269TAAD provides:
(1)
If the Minister is satisfied, in relation to goods exported to Australia:
- 33 (a)
that like goods are sold in the country of export in sales that are
arms length transactions in substantial quantities during an extended
period:
(i)
for home consumption in the country of export; or
(ii)
for exportation to a third country;
at a price that is less than the cost of such goods; and
(b)
that it is unlikely that the seller of the goods will be able to recover
the cost of such goods within a reasonable period;
the price paid for the goods referred to in paragraph (a) is taken not to have
been paid in the ordinary course of trade.
(2)
For the purposes of this section, sales of goods at a price that is less than the
cost of such goods are taken to have occurred in substantial quantities during
an extended period if the volume of sales of such goods at a price below the
cost of such goods over that period is not less than 20% of the total volume
of sales over that period.
(3)
Costs of goods are taken to be recoverable within a reasonable period of time
if, although the selling price of those goods at the time of their sale is below
their cost at that time, the selling price is above the weighted average cost of
such goods over the investigation period.
(4)
The cost of goods is worked out by adding:
(5)
85
(a)
the amount determined by the Minister to be the cost of production
or manufacture of those goods in the country of export; and
(b)
the amount determined by the Minister to be the administrative,
selling and general costs associated with the sale of those goods.
Amounts determined by the Minister for the purposes of paragraphs (4)(a)
and (b) must be worked out in such manner, and taking account of such
factors, as the regulations provide in respect of those purposes.
Regulation 180 of the Regulations relevantly provides:
(1)
(2)
For subsection 269TAAD(5) of the Act, this regulation sets out:
(a)
the manner in which the Minister must, for paragraph
269TAAD(4)(a) of the Act, work out an amount (the amount) to be
the cost of production or manufacture of like goods in a country of
export; and
(b)
factors that the Minister must take account of for that purpose.
If:
(a)
an exporter or producer of like goods keeps records relating to the
like goods; and
(b)
the records:
(i)
are in accordance with generally accepted accounting
principles in the country of export; and
(ii)
reasonably reflect competitive market costs associated with
- 34 the production or manufacture of like goods;
the Minister must work out the amount by using the information set out in the
records.
…
86
In Report 148, the CEO stated (at p 39):
Customs and Border Protection considers that each of the selected exporters
maintained records that complied with the GAAP [generally accepted accounting
principles] of China. Customs and Border Protection identified a distorting influence
stemming from the Chinese government’s intervention in the domestic aluminium
market on the price of primary aluminium ultimately paid for by producing exporters
of aluminium extrusions.
Therefore Customs and Border Protection has determined that the cost of primary
aluminium reflected in the records of the exporters does not reasonably reflect
competitive market costs.
Given that the conditions of Regulation 180(2) have not been fulfilled, Customs and
Border Protection considers it appropriate to determine the cost of production for
aluminium extrusions sold domestically by replacing the cost of primary aluminium
with a competitive market cost for the purposes of assessing whether domestic sales
were sold in the ordinary course of trade.
87
Thus, the CEO found that the exporters’ costs did not reasonably reflect competitive
market costs due to a “distorting influence stemming from the Chinese government’s
intervention in the domestic aluminium market on the price of primary aluminium”.
88
Panasia submitted that the CEO focused on one cost (ie. primary aluminium) as
opposed to all costs incurred by exporters (which would include, for example, labour and
machinery costs) and that this revealed a misunderstanding on the CEO’s part of the phrase
“competitive market costs” as used in reg 180(2) of the Regulations. It submitted that the
relevant question to be decided under reg 180(2)(b)(ii) was whether the total costs reasonably
reflected “competitive market costs”, not whether one particular cost component did so. In
its written submission the point was developed as follows (at [22]):
It is perfectly possible that one input such as primary aluminium does not reflect
competitive market costs because those costs are below market; but that because
prices paid by an exporter for some other input are above market, the exporter’s costs
as a whole do reflect competitive market costs. Such an approach is consistent with
the evident purpose of cl 180, which is to ensure that the calculation of normal value
is not distorted by what are in substance low cost sales of the finished product which
s.269TAAD(1) requires to be excluded.
89
I do not accept this submission. It is not supported by the language of reg 180(2)
which refers to “competitive market costs associated with the production or manufacture
- 35 of like goods” (emphasis added). The cost of purchasing primary aluminium is a cost that is
associated with the manufacture of aluminium extrusions.
Panasia also submitted that it did not follow merely because government policy,
90
implemented through measures such as export taxes on primary aluminium, led to an increase
in the supply of primary aluminium that the market for the supply of primary aluminium was
not a “competitive market”. In particular, it was submitted that the existence of export
disincentives which kept the price of aluminium low did not equate to an absence of
competition. In support of this submission Panasia referred to various decisions concerning
s 46 of the Trade Practices Act 1975 (Cth) (now the Competition and Consumer Act 2010
(Cth)), including Re Queensland Cooperative Milling Association Ltd; Re Defiance Holdings
Ltd (1976) 25 FLR 169 at 190; Boral Besser Masonry Ltd v Australian Competition and
Consumer Commission (2003) 215 CLR 374 at [188]; and Seven Network Ltd v News Ltd
(2009) 182 FCR 160 at [582].
Again, I do not think this submission should be accepted. In the present case the
91
question is not whether any particular market participant exercises a particular degree of
market power, nor whether there is competition in any market for primary aluminium in
China. Rather, the question which is required to be answered for the purposes of reg 180 is
whether the relevant records reasonably reflect competitive market costs associated with the
manufacture or production of the relevant goods.
Implicit in the CEO’s finding is an
approach to reg 180(2) which recognises that the implementation of government policy may
drive down particular costs associated with the manufacture or supply of goods such that the
costs might not only reflect the ordinary effects of supply and demand but also reflect the
impact of government policy aimed at increasing or reducing supply or demand. In my view,
this approach was open. In particular, it was open to the CEO to conclude that in the
circumstances which he found to exist, the cost of primary aluminium did not reasonably
reflect “competitive market costs”, but also that government policy aimed at reducing the cost
of primary aluminium used in the domestic production of finished goods had distorting
effects.
Section 269TAC
92
Subsection 269TAC(1) of the Act provides:
(1)
Subject to this section, for the purposes of this Part, the normal value of any
- 36 goods exported to Australia is the price paid or payable for like goods sold in
the ordinary course of trade for home consumption in the country of export in
sales that are arms length transactions by the exporter or, if like goods are not
so sold by the exporter, by other sellers of like goods.
93
Subsection 269TAC(2) relevantly provides:
(2)
Subject to this section, where the Minister:
(a)
is satisfied that:
(i)
because of the absence, or low volume, of sales of like goods
in the market of the country of export that would be relevant
for the purpose of determining a price under subsection (1);
or
(ii)
because the situation in the market of the country of export is
such that sales in that market are not suitable for use in
determining a price under subsection (1);
the normal value of goods exported to Australia cannot be
ascertained under subsection (1); or
(b)
is satisfied, in a case where like goods are not sold in the ordinary
course of trade for home consumption in the country of export in
sales that are arms length transactions by the exporter, that it is not
practicable to obtain, within a reasonable time, information in
relation to sales by other sellers of like goods that would be relevant
for the purpose of determining a price under subsection (1);
the normal value of the goods for the purposes of this Part is:
(c)
(d)
94
except where paragraph (d) applies, the sum of:
(i)
such amount as the Minister determines to be the cost of
production or manufacture of the goods in the country of
export; and
(ii)
on the assumption that the goods, instead of being exported,
had been sold for home consumption in the ordinary course
of trade in the country of export—such amounts as the
Minister determines would be the administrative, selling and
general costs associated with the sale and, subject to
subsection (13), the profit on that sale; or
…
Subsections 269TAC(13) and (14) provide:
(13)
Where, because of the operation of section 269TAAD, the normal value of
goods is required to be determined under subsection (2), the Minister shall
not include in his or her calculation of that normal value any profit
component under subparagraph (2)(c)(ii).
(14)
If:
(a)
application is made for a dumping duty notice; and
- 37 (b)
goods the subject of the application are exported to Australia; but
(c)
the volume of sales of like goods for home consumption in the
country of export by the exporter or another seller of like goods is
less than 5% of the volume of goods the subject of the application
that are exported to Australia by the exporter;
the volume of sales referred to in paragraph (c) is taken, for the purposes of
paragraph (2)(a), to be a low volume unless the Minister is satisfied that it is
still large enough to permit a proper comparison for the purposes of assessing
a dumping margin under section 269TACB.
Subsection 269TAC(13), as can be seen, refers to s 269TAAD. I have already set out
s 269TAAD at [84] above.
95
In Report 148, the CEO (at p 45) said:
6.8.2
Normal Value
PanAsia made domestic sales of like goods during the investigation period
that were found to be arms length transactions.
A comparison of selling prices for comparable domestic models to the
corresponding monthly revised CTMS showed that the volume of
unprofitable and unrecoverable sales exceeded 20% of the respective total
volume. These unrecoverable sales were discarded for the purpose of
determining normal values. The remaining domestic sales found to be in
the ordinary course of trade were considered suitable for determining
normal values under s.269TAC(1).
For two of the domestic models, the remaining volume of ordinary course
of trade sales was found not to be in sufficient volume (i.e. less than 5% of
the exported volume) when compared to the corresponding export volume.
Therefore all domestic sales for those models were considered unsuitable
for establishing normal values. For these domestic models, Customs and
Border Protection considers it appropriate to construct a normal values
[sic] in accordance with s.269TAC(2)(c) including an amount of profit
based on the remaining domestic sales in the ordinary course of trade.
96
Paragraph 6.8.2 of Report 148 reveals the following process of reasoning. First, the
CEO accepted that Panasia made domestic sales of like goods at arms length. Secondly, he
found that some of those domestic sales were unprofitable and unrecoverable and therefore
should be ignored for the purpose of calculating normal value under subs 269TAC(1).
Thirdly, he was satisfied that there were sufficient domestic sales of like models to determine
normal values under subs 269TAC(1) except in the case of two domestic models. Fourthly,
in the case of the two models in respect of which the domestic sales were insufficient in
volume to establish normal values under subs 269TAC(1) he considered it appropriate to
construct normal values under subs 269TAC(2)(c) which included an amount for profit.
- 38 97
Panasia submitted that the CEO was not entitled to include any amount for profit in
constructing a normal value because this was directly forbidden by subs 269TAC(13).
Panasia did not advance any other criticism of the process of reasoning revealed in para 6.8.2.
In the circumstances, the question that arises is whether the CEO erred in including an
amount for profit in determining a normal value for each of the two domestic models to
which he referred in para 6.8.2.
98
The answer to this question depends upon whether subs 269TAC(13) applied.
Subsection 269TAC(13) can only apply where the normal value is required to be determined
under subs 269TAC(2)(c)(ii) because of the operation of s 269TAAD.
The respondents
submitted that the CEO’s determination under subs 269TAC(2)(c)(ii) was not required to be
made because of the operation of s 269TAAD. I accept the respondents’ submission.
99
As I have mentioned, Panasia’s complaint about para 6.8.2 was limited to the
inclusion of an amount for profit in the construction of normal value for two domestic
models.
The CEO decided to construct a normal value for these models because he
considered that domestic sales were of insufficient volume when compared to export sales. It
is significant, in my view, that the CEO did not purport to apply s 269TAAD when
determining whether to rely upon domestic sales of the two domestic models. In particular,
he did not purport to make any finding in relation to the cost of the two domestic models as
would be required if subs 269TAAD(1) applied. There is no suggestion in para 6.8.2 that the
CEO’s reason for constructing a normal value for each of the two domestic models in
question was based upon him being satisfied that they were sold in the domestic market for
less than cost.
100
I am satisfied that the CEO’s decision to construct normal values for the relevant
models was made under subs 269TAC(2)(c) but not because of the operation of s 269TAAD.
In these circumstances, subs 269TAC(13) did not preclude the CEO from including an
amount for profit when constructing a normal value for these models.
EXPORT PRICE (ISSUE C1)
101
Section 269TAF of the Act is concerned with the possible impact of exchange rate
movements in the comparison of export prices and normal values. Relevantly, s 269TAF
provides:
- 39 (1)
If, for the purposes of this Part, comparison of the export prices of goods
exported to Australia and corresponding normal values of like goods
requires a conversion of currencies, that conversion, subject to
subsection (2), is to be made using the rate of exchange on the date of the
transaction or agreement that, in the opinion of the Minister, best
establishes the material terms of the sale of the exported goods.
(2)
If, in relation to goods exported to Australia, a forward rate of exchange is
used, the Minister may, in a conversion of currencies under subsection (1),
make use of that rate of exchange.
(3)
If:
(a)
the comparison referred to in subsection (1) requires the conversion
of currencies; and
(b)
the rate of exchange between those currencies has undergone a
short-term fluctuation;
the Minister may, for the purpose of that comparison, disregard that
fluctuation.
(4)
If:
(a)
the comparison referred to in subsection (1) requires the conversion
of currencies; and
(b)
the Minister is satisfied that the rate of exchange between those
currencies has undergone a sustained movement;
the Minister may, by notice published in the Gazette, declare that this
subsection applies with effect from a day specified in the notice and, if the
Minister does so, the Minister may use the rate of exchange in force on
that day for the purposes of that comparison during the period of 60 days
starting on that day.
(5)
(6)
Nothing in subsection (4) prevents the Minister specifying a day in a
notice that is earlier than the day of publication of the notice if the day
specified:
(a)
is a day after the start of the sustained movement; and
(b)
is not a day occurring within 60 days after the day specified in a
prior notice.
Nothing in subsection (4) prevents the Minister publishing more than one
notice if a sustained movement in the rate of exchange continues for more
than 60 days.
…
102
In Report 148, the CEO noted (at p 44) that Panasia claimed that during the first half
of the investigation period, there was a clear sustained movement in exchange rates outside
the normal range of exchange rate fluctuations. However, the CEO refused to examine this
claim because it was first raised by Panasia by letter dated 19 March 2010 after the
publication of the relevant statement of essential facts (SEF 148). The TMRO later found
- 40 that the CEO erred by refusing to consider Panasia’s claim that exchange rates should be
fixed pursuant to subs 269TAF(4) because Panasia’s submission was received within 20 days
of SEF 148 being placed on the public record and that, on that basis, the CEO was required to
consider it (see subs 269TEA(3) of the Act).
103
The CEO reinvestigated Panasia’s claim that the exchange rate should be fixed
pursuant to subs 269TAF(4). In Report 175 (at pp 27-28) the CEO stated:
If comparing export price and normal values requires a conversion of currencies,
s269TAF(1) directs that the conversion is to be the exchange rate on the date that
best establishes the material terms of the sale, which is usually the invoice date.
However, if:
•
a forward contract is used, then under s269TAF(2), the forward exchange rate on
that contract may be used;
•
the exchange rate has undergone a short-term fluctuation, then under
s269TAF(3), the fluctuation may be disregarded; or
•
the exchange rate has undergone a sustained movement, then under s269TAF(4),
the exchange rate on a day specified day may be used for a period of 60 days
from that day by publishing a notice in the Gazette.
The reinvestigation notes that evidence of a forward exchange rate contract is
required to use a fixed exchange rate under s269TAF(2). Further, the reinvestigation
considers that it would be necessary to consider whether export prices have
responded to the exchange rate movements, in order to offset the short-term
fluctuation under s269TAF(3), or the sustained movement under s269(4). In this
regard, the original investigation noted that
‘In examining whether a fixed exchange rate should be used for the purposes of
converting currencies, Customs and Border Protection would typically examine
such issues as whether the exporter used any forward exchange rate management
instruments and whether export prices have been adjusted in line with exchange
rate movements, as well as the nature of the exchange movements’
The reinvestigation has examined the information obtained in the original
investigation in relation to PanAsia’s pricing arrangements and determined that there
is insufficient information to be able to verify whether or not a forward rate of
exchange was used by the parties to the transaction, or examine whether there was an
attempt by the exporter to adjust export prices in line with exchange rate movements.
In relation to this latter point, the reinvestigation has reviewed movements in the
exporter’s export price … however, the circumstances surrounding the observed
export price movements are not known. Therefore, the reinvestigation considers it
unsafe to speculate as to the reasons for these price movements. In this regard, the
reinvestigation notes that the inter-relationship between the exporter, PanAsia, and its
Australian customers would potentially assist the exporter’s ability to adjust prices
for sustained exchange movements.
The reinvestigation is constrained in its ability to gather new information. As a result,
the reinvestigation finds that there is insufficient reliable and credible information
available to warrant revoking the original investigation’s finding on this issue.
(footnote omitted)
- 41 104
Panasia submitted that since the CEO was required to reinvestigate Panasia’s claim,
he was bound to take some steps to seek out what it referred to as “the missing information”
before completing the reinvestigation. Panasia further submitted that the CEO’s failure to
seek out this additional information constituted a constructive failure to carry out the
reinvestigation required by the Act. It was also said to manifest an error of law in the CEO’s
construction and application of subs 269TAF(4), as well as a failure to take into account a
relevant consideration.
105
Panasia placed considerable reliance upon the reasons for decision of the plurality in
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25] where
their Honours (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
Although decisions in the Federal Court concerned with a failure to make obvious
inquiries have led to references to a “duty to inquire”, that term is apt to direct
consideration away from the question whether the decision which is under review is
vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration
Act is a duty to review. It may be that a failure to make an obvious inquiry about a
critical fact, the existence of which is easily ascertained, could, in some
circumstances, supply a sufficient link to the outcome to constitute a failure to
review. If so, such a failure could give rise to jurisdictional error by constructive
failure to exercise jurisdiction. It may be that failure to make such an inquiry results
in a decision being affected in some other way that manifests itself as jurisdictional
error. It is not necessary to explore these questions of principle in this case. There are
two reasons for that.
(footnote omitted)
It should be noted that in the very next paragraph of their reasons, their Honours indicated
that one reason why they did not need to further explore the issue raised in [25] was that there
was nothing on the record to indicate what further information might have been elicited if the
decision-maker were to have made the further inquiry that it was submitted should have been
made in that case.
106
In support of its submissions on this issue Panasia also relied on the the AntiDumping Agreement. Article 2.4.1 of the Anti-Dumping Agreement provides:
When the comparison under paragraph 4 requires a conversion of currencies, such
conversion should be made using the rate of exchange on the date of sale, provided
that when a sale of foreign currency on forward markets is directly linked to the
export sale involved, the rate of exchange in the forward sale shall be used.
Fluctuations in exchange rates shall be ignored and in an investigation the authorities
shall allow exporters at least 60 days to have adjusted their export prices to reflect
sustained movements in exchange rates during the period of investigation.
- 42 (footnote omitted)
Panasia’s submissions focused on the last sentence of Art 2.4.1 which was said to require that
the investigating authority allow exporters at least 60 days to have their export prices adjusted
to reflect sustained movements in exchange rates during the period of the investigation.
107
Panasia’s letter to Customs dated 19 March 2010 (Ex C) drew attention to the 32%
depreciation of the Australian currency against the Chinese currency in the period between
30 July and 27 November 2008 and asserted that this depreciation reflected “a sustained
movement” for the purposes of subs 269TAF(4). Referring to Art 2.4.1 of the Anti-Dumping
Agreement, Panasia submitted that its purpose was clear and that “[t]he negotiating parties
wished to avoid ‘technical’ or ‘accidental’ dumping in circumstances where an exporter could
not have been reasonably expected to adjust the price of the exported product.” Panasia’s
letter continued:
While the Minister’s declaratory power in the Act is expressed in permissive terms,
application of the principle that statutes are to be interpreted in a manner that gives
effect to Australia’s international obligations mandates the use of Minister’s power in
appropriate cases.
The present matter is just such a case. There is a documented sustained movement in
the exchange rate and, while not necessary for the operation of the section, this case
involves, as Customs has found, long lead times in respect of a major input cost. If
‘technical’ dumping is to be excluded as an element in the Minister’s final findings
we submit that he must exercise his power under subsection 269TAF(4).
Subsection 269TAF(5) requires that a retrospective notice must specify the day after
the commencement of the sustained movement as the beginning of the 60 day period.
Consequently, in the first instance we submit that the Minister must determine an
exchange rate of 6.4458 to apply for the period commencing on 30 July 2008 and
ending on 28 September 2008. Secondly, in view of the continuation of the sustained
movement, we submit that the Minister must determine an exchange rate of 5.6677 to
apply for the period commencing on 29 September 2008 and ending on 27 November
2008.
However, Panasia’s letter did not include any information relevant to the use of forward
exchange contracts by Panasia or any adjustments to export prices that may have been made
by Panasia in response to exchange rate movements.
108
Report 175 shows that the CEO had regard to the submission made in the letter of
19 March 2010. In the course of considering Panasia’s submission, the CEO reviewed
movements in Panasia’s export prices as reflected in a confidential attachment to Report 175.
The CEO observed that the circumstances surrounding the export price movements evident in
the attachment were not known and that it would be unsafe to speculate as to the reasons for
- 43 them. He considered that there was “insufficient reliable and credible information available
to warrant revoking the original investigation’s findings on this issue.”
109
It is implicit in Panasia’s submissions that it accepts that the CEO was not in
possession of information relevant to the use by Panasia of forward exchange contracts or the
reasons for the movement in Panasia’s export prices. Hence, the question that arises is
whether the CEO was required to take steps to obtain such information from Panasia for the
purpose of considering whether he should make a determination under subs 269TAF(4).
110
It may be accepted that there was, in a legal sense, no onus on Panasia to prove the
matters upon which it relied in its effort to obtain a determination under subs 269TAF(4).
However, as O’Connor J observed in Al Abdullatif Industrial Group Co Ltd v Minister for
Justice and Customs [2000] FCA 758 at [22]:
When a party seeks a particular outcome and has the opportunity to make
submissions within a known statutory scheme, the decision-maker is entitled to
expect that a party affected will, in the ordinary course, draw all relevant material to
the decision-maker’s attention, particularly where it has knowledge of the material
which would substantiate its position.
111
In the present case Panasia’s submissions suggest that the CEO should have
responded to the letter of 19 March 2010 with a request that Panasia supply the additional
information required to make a determination under subs 269TAF(4). I do not accept this
submission.
Nor do I think the CEO was required to do so for the purposes of the
reinvestigation. As counsel for the respondents submitted, Panasia is a sophisticated litigant
professionally advised at all stages of the review process. To the extent that there was any
deficiency in the material before the CEO that prevented him making the determination under
subs 269TAF(4) sought by Panasia, it was of Panasia’s making because it failed to make
material that was of obvious relevance to its submission available to the CEO for his
consideration.
112
So far as Art 2.4.1 of the Anti-Dumping Agreement is concerned, I do not think it
assists Panasia.
To argue that the Minister was bound to make a declaration under
subs 269TAF(4) ignores the clear language of the section. In the present case the Minister
had a discretion under subs 269TAF(4) and was not bound to make a declaration unless
satisfied that it was appropriate to do so in the circumstances. It was open to the CEO (and
therefore the Minister) to form the view that it would not be appropriate to make such a
- 44 declaration in the absence of evidence as to whether or not Panasia utilised forward exchange
contracts or made adjustments to its export prices to take account of movements in the
exchange rate.
113
There is one further point I should make before leaving this issue. Perhaps with an
eye to what the High Court said in SZIAI at [25] and [26] Panasia submitted it should be
inferred that, if the CEO had questioned Panasia about its use of forward exchange contracts
or the reasons for various export price fluctuations, then the answer would have been readily
obtainable and promptly provided to him. However, I would not infer, in the absence of
evidence on the point, that the information was readily obtainable or that it would have been
provided to the CEO. There was no evidence before me as to how difficult the task of
collecting the necessary information might be or whether Panasia would have been willing to
make it available in any event. As to the latter consideration, there is nothing before me to
suggest that any additional information that might have been provided by Panasia in answer
to a request by the CEO would have assisted Panasia’s arguments in favour of the CEO
recommending that a declaration be made under subs 269TAF(4).
CONTINUATION OF DUMPING AND SUBSIDISATION (ISSUE F1)
114
Subsection 269TG(2) of the Act provides:
Where the Minister is satisfied, as to goods of any kind, that:
(a)
the amount of the export price of like goods that have already been exported
to Australia is less than the amount of the normal value of those goods, and
the amount of the export price of like goods that may be exported to Australia
in the future may be less than the normal value of the goods; and
(b)
because of that, material injury to an Australian industry producing like
goods has been or is being caused or is threatened, or the establishment of an
Australian industry producing like goods has been or may be materially
hindered;
the Minister may, by public notice (whether or not he or she has made, or proposes to
make, a declaration under subsection (1) in respect of like goods that have been
exported to Australia), declare that section 8 of the Dumping Duty Act [imposing
dumping duties] applies to like goods that are exported to Australia after the date of
publication of the notice or such later date as is specified in the notice.
See also subs 269TJ(2) which provides for the making of declarations that s 10 of the
Customs Tariff (Anti-Dumping) Act 1975 (Cth) (the Dumping Duty Act) (imposing
countervailing duties) applies.
- 45 115
Chapter 10 of Report 148 is entitled “Will Dumping and Subsidy and Material Injury
Continue?” The CEO found in para 10.3 of Chapter 10 (at p 82) that “exports of aluminium
extrusions from China in the future may be at dumped or subsidised prices and that continued
dumping or subsidisation may cause further material injury to the Australian industry.”
116
In its written submissions Panasia challenged this finding on the basis that the CEO
failed to consider a relevant consideration, namely, that by the time of the close of the
investigation on 30 June 2009, the price of aluminium in China was equivalent to the LME
price. As the argument was developed in written submissions (it was not developed at all in
oral submissions) Panasia made clear that it did not contend that it was not open to the CEO
to find that dumping or subsidy may continue.
117
It was accepted by Panasia that the CEO was aware that by the time of the close of the
investigation on 30 June 2009 the price of aluminium in China was equivalent to the LME
price. That the CEO was aware of this is apparent from a graph comparing the LME prices to
the Shanghai Futures Exchange (SFE) prices reproduced elsewhere (at p 38) in Report 148.
118
In support of its submission Panasia relied upon the absence of any reference to the
price of aluminium in Chapter 10 of Report 148. This was said to support an inference that
the CEO failed to take into account that, as at 30 June 2009, the LME and SFE prices for
aluminium were equivalent. However, there was no attempt made in the written submissions
to explain why this fact constituted a “relevant consideration” which a decision-maker was
bound to take into account when exercising the discretion arising under subs 269TG(2) or
subs 269TJ(2) of the Act. As McHugh, Gummow and Hayne JJ observed in Minister for
Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73] in the context of a
decision made under the Migration Act 1958 (Cth) “… [t]he considerations that are, or are
not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by
reference to the Act rather than the particular facts of the case that the Tribunal is called on to
consider.”
119
Chapter 10 of Report 148 sets out the CEO’s findings for the purposes of
subss 269TG(2) and 269TJ(2) of the Act. These findings must be read in the context of
Report 148 as a whole which reveals that the CEO was aware of the particular matter which
he is said to have failed to consider. In these circumstances, assuming that the LME and SFE
prices as at 30 June 2009 was a matter which the CEO was bound to consider, I am not
- 46 persuaded that it was one the CEO failed to take into account when making findings for the
purposes of subss 269TG(2) and 269TJ(2) of the Act.
IMPOSITION OF MEASURES ON A CONSOLIDATED OR DIFFERENTIATED
BASIS (ISSUES G2 AND G3)
Aluminium extrusions exported to Australia from China are produced in a range of
120
finishes. In Report 148 the CEO calculated anti-dumping and countervailing measures across
the entire range without distinguishing between different finishes. In submissions the CEO
was said to have made his calculations on a “consolidated” as opposed to a “differentiated”
basis. I will adopt this nomenclature in these reasons.
The goods the subject of investigation and reinvestigation were described in
121
Report 175 (at p 14) as follows:
The goods under consideration (the goods) are aluminium extrusions produced via an
extrusion process, of alloys having metallic elements falling within the alloy
designations published by The Aluminium Association commencing with 1, 2, 3, 5, 6
or 7 (or proprietary or other certifying body equivalents), with the finish being as
extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not
worked, having a wall thickness or diameter greater than 0.5 mm., with a maximum
weight per metre of 27 kilograms and a profile or cross-section which fits within a
circle having a diameter of 421 mm.
The goods include aluminium extrusion products that have been further processed or
fabricated to a limited extent, after aluminium has been extruded through a die. For
example, aluminium extrusion products that have been painted, anodised, or
otherwise coated, or worked (e.g. precision cut, machined, punched or drilled) fall
within the scope of the goods.
The goods do not extend to intermediate or finished products that are processed or
fabricated to such an extent that they no longer possess the nature and physical
characteristics of an aluminium extrusion, but have become a different product.
By notices published on 28 October 2010 the Attorney imposed anti-dumping and
122
countervailing measures on aluminium extrusions on a consolidated basis in accordance with
the recommendations made in Report 148. The TMRO subsequently recommended that the
CEO adopt a different approach. In his report dated 18 April 2011 the TMRO explained (at
p 53):
…[T]he different finishes have different costs and pricing, and therefore there may
be an unduly low ascertained export price for certain finishes. I therefore
recommend that Customs and Border Protection reinvestigate the most appropriate
ascertained export price, having regard to the differences between the separate
finishes.
- 47 In the reinvestigation that followed, the CEO accepted this recommendation, and calculated
anti-dumping and countervailing measures for different finishes. In Report 175 the CEO
identified four different finishes: “mill”, “anodised”, “powder coated” and “other”.
He
ascertained a specific export price, normal value and non-injurious price for each of these
finishes and made recommendations on that basis. By notice published on 27 August 2011
the Attorney imposed anti-dumping and countervailing measures in accordance with these
recommendations.
The applicants submitted that the relevant provisions of the Act did not permit the
123
calculation or the imposition of different anti-dumping and countervailing measures in
respect of different finishes.
This submission was said to find support in the relevant
statutory language and the Anti-Dumping Agreement as interpreted by the WTO Appellate
Body.
Subsection (1) of s 269TACB provides that the Minister must determine whether
124
dumping has occurred by comparing export prices for the goods the subject of the application
with corresponding normal values in respect of like goods. Subsection (1) provides:
(1)
If:
(a)
application is made for a dumping duty notice; and
(b)
export prices in respect of goods the subject of the application
exported to Australia during the investigation period have been
established in accordance with section 269TAB; and
(c)
corresponding normal values in respect of like goods during that
period have been established in accordance with section 269TAC;
the Minister must determine, by comparison of those export prices with those
normal values, whether dumping has occurred.
For the purpose of making such a determination the Minister may derive a “dumping margin”
based upon:
(i)
the result of a comparison of the weighted average of export prices with the weighted
average of corresponding normal values calculated over the whole or a part of the
investigation period (subss 269TACB(2)(a)-(aa));
(ii)
the result of a comparison of export prices determined in respect of individual
transactions with corresponding normal values determined over the whole of the
investigation period (subs 269TACB(2)(b)); or
- 48 (iii)
the result of a comparison of the kind referred to in (i) for part of the investigation
period and a comparison of the kind referred to in (ii) for another part of the
investigation period (subs 269TACB(2)(c)).
125
There are two related provisions that are important to understanding the nature of the
comparisons which the Minister may make under s 269TACB. First, subs 269T(1) includes a
definition of “like goods” that is materially the same as the definition of “like product” that
appears in the Anti-Dumping Agreement. According to this definition “like goods”:
in relation to goods under consideration, means goods that are identical in all respects
to the goods under consideration or that, although not alike in all respects to the
goods under consideration, have characteristics closely resembling those of the goods
under consideration.
Secondly, subs 269T(5), which draws upon the definition of “like goods”, provides:
A reference in this Act to goods the subject of an application under section 269TB is
a reference to goods referred in the application:
126
(a)
that have been imported into Australia;
(b)
that are likely to be so imported; or
(c)
that may be so imported, being like goods to goods to which paragraph (a) or
(b) applies.
Subsection 269TACB(4) specifies the circumstances in which goods are taken to have
been dumped and establishes the formula for calculating the “dumping margin” in respect of
dumped goods. It provides:
If, in a comparison under subsection (2), the Minister is satisfied that the weighted
average of export prices over a period is less than the weighted average of
corresponding normal values over that period:
127
(a)
the goods exported to Australia during that period are taken to have been
dumped; and
(b)
the dumping margin for the exporter concerned in respect of those goods and
that period is the difference between those weighted averages.
Subsection 269TACB(7) provides (subject to an exception provided for in subs (8))
that “the existence of dumping and the size of a dumping margin will normally be worked out
for individual exporters of goods to Australia.”
128
Section 269TG relevantly provides:
(1)
Subject to section 269TN, where the Minister is satisfied, as to any goods that
have been exported to Australia, that:
- 49 (a)
the amount of the export price of the goods is less than the amount
of the normal value of those goods; and
(b)
because of that:
(i)
material injury to an Australian industry producing like goods
has been or is being caused or is threatened, or the
establishment of an Australian industry producing like goods
has been or may be materially hindered; or
(ii)
in a case where security has been taken under section 42 in
respect of any interim duty that may become payable on the
goods under section 8 of the Dumping Duty Act—material
injury to an Australian industry producing like goods would
or might have been caused if the security had not been taken;
the Minister may, by public notice, declare that section 8 of that Act applies:
(2)
(c)
to the goods in respect of which the Minister is so satisfied; and
(d)
to like goods that were exported to Australia after the CEO made a
preliminary affirmative determination under section 269TD in
respect of the goods referred to in paragraph (c) but before the
publication of that notice.
Where the Minister is satisfied, as to goods of any kind, that:
(a)
the amount of the export price of like goods that have already been
exported to Australia is less than the amount of the normal value of
those goods, and the amount of the export price of like goods that
may be exported to Australia in the future may be less than the
normal value of the goods; and
(b)
because of that, material injury to an Australian industry producing
like goods has been or is being caused or is threatened, or the
establishment of an Australian industry producing like goods has
been or may be materially hindered;
the Minister may, by public notice (whether or not he or she has made, or
proposes to make, a declaration under subsection (1) in respect of like goods
that have been exported to Australia), declare that section 8 of the Dumping
Duty Act applies to like goods that are exported to Australia after the date of
publication of the notice or such later date as is specified in the notice.
(3)
Where:
(a)
a notice under subsection (1) declares particular goods to be goods
to which section 8 of the Dumping Duty Act applies; or
(b)
a notice under subsection (2) declares like goods in relation to
goods of a particular kind to be goods to which that section applies;
the notice must, subject to subsection (3A), include a statement of the
respective amounts that the Minister ascertained, at the time of publication of
the notice:
(c)
was or would be the normal value of the goods to which the
declaration relates; and
(d)
was or would be the export price of those goods; and
- 50 (e)
129
was or would be the non-injurious price of those goods.
The respondents accept that subss (1) and (2) of s 269TG would “ordinarily” (their
word) permit the Minister to make a declaration that s 8 of the Dumping Duty Act applies
only in respect of the entire class of goods under consideration, not merely one or more subclasses. However, they do not accept that the Minister, having made such a declaration, may
only specify a single normal value, a single export price or a single non-injurious price
(the variable factors) for a particular exporter’s goods. In this regard, the respondents
submit that subs 269TG(3) should be construed as including a power to specify different
variable factors for different sub-classes of goods making up the goods under consideration.
To understand the respondents’ argument, it is necessary to look more closely at the structure
of s 269TG.
130
Subsection (1) of s 269TG is concerned with goods that have been exported to
Australia, whereas subs (2) is concerned with goods that may be exported to Australia in the
future. Determining whether or not a declaration should be made by the Minister under
subss (1) or (2) of the Act is what the respondents referred to as the first step under s 269TG.
Subject to being satisfied that such goods or like goods have been or may be exported to
Australia, the Minister may make a declaration that s 8 of the Dumping Duty Act applies if he
or she is also satisfied of a number of other things including, where subs (1) applies, that the
amount of the export price of the goods is less than the amount of the normal value of those
goods and, where subs (2) applies, the amount of the export price of like goods that have
already been exported to Australia is less than the normal value of those goods.
131
The next step arises under subs (3) of s 269TG.
If the Minister decides that a
declaration should be made under subss (1) or (2) then the Minister must include in the notice
declaring that s 8 of the Dumping Duty Act applies a statement of the amounts for the
variable factors as ascertained by the Minister at the time of publication of the notice.
132
The respondents argued that the purpose of the second step is to allow for the
imposition of interim duty on the relevant goods at a level that will deter future imports at
dumped prices or elevate the domestic prices of goods that are imported into Australia at
dumped prices. They submitted that this purpose might not be achieved if the goods under
consideration consist of different classes that have very different dumping margins. The
respondents illustrated this possibility by way of the following example:
- 51 Take, for example, a notice which specifies a normal value of $100 per ton and an
export price of $80 per ton for certain goods. The interim duty payable under s 8(4)
of the Dumping Duty Act will be $20 per ton (the “fixed component” under para
(a)), plus any amount by which the actual export price of particular goods is less than
$80 (the “variable component” under para (b)). Now assume that the goods subject
to the notice range in price from $60 to $120 per ton. The cheapest goods would be
subject to a prohibitive interim duty of $40 per ton, which is likely to be a great deal
more than the relevant dumping margin; while the most expensive goods would be
subject to an interim duty of $20 per ton, which might or might not bear some
relationship to their actual dumping margin.
The respondents argued that these kinds of outcomes could never have been intended by the
legislature and that a construction of subs 269TG(3) that required the Minister to adopt the
same variable factors for all sub-classes of goods under consideration could produce absurd
results. They submitted that this could be avoided if subs 269TG(3) is read with subs 33(3A)
of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) and that, when it is,
subs 269TG(3) is to be taken to authorise the inclusion of a statement in a public notice
issued pursuant to subss 269TG(1) or 269TG(2) of different variable factors for different subclasses of goods.
133
Capral submitted that there was nothing in the Act to preclude the Minister from
specifying different dumping margins for different categories of product. It further submitted
that the essential purpose of Pt XVB of the Act is to protect the Australian industry from
dumped goods and that the Court should have regard to this when resolving the issue now
under consideration. Capral submitted:
It would be absurd to construe the Act as requiring single dumping margins when the
definition of “like goods” clearly envisages that goods of different grade or quality
can still be “like goods” because, while not alike in all respects they “have
characteristics closely resembling those of the goods under consideration”. Hence, if
different thickness of glass or different grades of A4 paper or different cuts of
pineapple are able to be “like goods”, it follows that the Act must contain the
flexibility to deal with situations where there are different dumping margins for
different qualities of goods within the ambit of “like goods”. Any other construction
would virtually inevitably lead to some combination of excessive and unnecessary
protection. The Court should adopt such a construction only if none other is open;
that is not the case here.
134
Subsection 33(3A) of the Interpretation Act provides:
Where an Act confers a power to make, grant or issue any instrument of a legislative
or administrative character (including rules, regulations or by-laws) with respect to
particular matters (however the matters are described), the power shall be construed
as including a power to make, grant or issue such an instrument with respect to some
only of those matters or with respect to a particular class or particular classes of those
matters and to make different provision with respect to different matters or different
classes of matters.
- 52 In accordance with s 2 of the Interpretation Act, subs 33(3A) will apply to s 269TG “subject
to a contrary intention”.
135
As I have mentioned, the respondents accept that subss (1) and (2) of s 269TG will
ordinarily only permit the Minister to make declarations in respect of all goods the subject of
an application under s 269TB (including “like goods”) and that it is ordinarily not open to
him or her to make a declaration under either of these subsections with respect to some, but
not all, such goods. It seems to me to be implicit in the respondents’ acceptance of this
proposition that the powers conferred upon the Minister under subss (1) and (2) are not
enlarged by subs 33(3A) because the Act manifests an intention that subs 33(3A) not apply at
least in so far as subss (1) and (2) are concerned. On the other hand, Capral’s position seems
to be different to that of the respondents in that its arguments were explicitly founded on the
proposition that there is no reason why subs 33(3A) should not apply to each of subss (1), (2)
and (3).
136
In my opinion, subs 33(3A) of the Interpretation Act does not apply to subss (1) or (2)
of s 269TG.
This follows from the overall statutory scheme, including in particular
s 269TACB, which dictates how the Minister must go about determining whether the goods
the subject of the application for a dumping duty notice have been dumped and, if they have
been, what the dumping margin will be (normally) for a particular exporter.
137
The question whether dumping has occurred requires a consideration not only of
particular goods that have been or are likely to be imported into Australia, but also “like
goods” that have been or are likely to be so imported. If the comparison utilised by the
Minister is of the kind referred to in subs 269TACB(2)(a)-(aa) then the “dumping margin” is
the difference between the two weighted averages (ie. a single figure): see subs 269TACB(4).
If the comparison is based upon a comparison of the kind referred to in subs 269TACB(2)(b)
then the “dumping margin” for the goods the subject of a single transaction is the difference
between the export price and the normal value in respect of that transaction (ie. a single
figure): see subs 269TACB(5). While s 269TACB is not explicit about this, I would infer
from the statutory language that, if a comparison of the kind referred to in
subs 269TACB(2)(b) is undertaken which involves more than one transaction, then the
Minister will normally be required to calculate weighted averages in respect of both export
prices and normal values so as to arrive at a “dumping margin” (ie. another single figure) for
a particular exporter.
- 53 138
In the present case it is clear from Report 148 that the CEO compared a weighted
average of export prices to a weighted average of corresponding normal values to produce a
single “dumping margin” for each of Panasia and Kam Kiu. Although it is not stated in
Report 175 what approach was adopted for the purpose of calculating different dumping
margins for different finishes, it is not disputed, and in any event I infer, that weighted
averages were again used.
139
This brings me back to subs 269TG(3) of the Act. When s 269TG is read as a whole,
it is apparent that subs (3) refers to the goods the subject of a declaration under subss (1) or
(2). In particular, the references in subs (3)(c) of s 269TG to “the goods to which the
declaration relates” and in subs (3)(d) and (e) to “those goods” indicate that the goods
referred to are the same goods as those the subject of the declaration made under subss (1) or
(2) and that they will have the same dumping margin as that calculated pursuant to
s 269TACB. In my opinion, if a declaration is made under subss (1) or (2) in respect of
goods then subs (3) requires that, along with the relevant declaration, the public notice set out
details of the ascertained variable factors that led to the declaration. The ascertained normal
values and export prices will each be the same single figure (usually expressed as a
percentage) referable to a particular exporter that was used to determine, in accordance with
the requirements of s 269TACB, whether dumping occurred and, if so, at what margin.
140
Further, where in Part XVB of the Act the Minister is conferred with a discretion as to
how he or she will go about determining a dumping margin, the relevant provisions usually
make this quite clear. There is nothing in s 269TG to suggest that there was any intention to
confer upon the Minister a discretion that would enable him or her to determine variable
factors different to those utilised for the purpose of determining whether dumping occurred
and, if so, at what margin.
141
I now turn to the argument based upon the potential for absurd outcomes if it is held
that s 269TG requires that interim duty be calculated on a consolidated basis. In evaluating
the strength of this argument I have found it helpful to consider a number of hypothetical
scenarios.
142
The formula for calculating the dumping margins in the hypothetical scenario
envisaged by Table 1 and other hypothetical scenarios discussed in this section of my reasons
is as follows:
- 54 -
143
Table 1 highlights the effect of calculating variable factors on a differentiated basis as
opposed to a consolidated basis in a hypothetical scenario where the goods the subject of an
application under s 269TB consist of a staple commodity available in five different grades,
each of which is exported to Australia during the investigation period by a particular exporter
in equal quantities over the same period and at the same export price per kilogram. The grade
exported to Australia at normal value (G3) does not attract dumping duty if it is calculated on
a differentiated basis so that the after-duty price ($5.00) will equal normal value ($5.00). But
if the duty is calculated on a consolidated basis, then the after-duty price ($5.20) will exceed
the normal value ($5.00), and the grade that has the highest dumping margin (G5) will have a
post-duty price ($5.20) that is still well below normal value ($6.00).
144
Thus, in the hypothetical scenario I have described, an exporter’s shipments of G1,
G2 and G3 to Australia at $4.50, $4.75 and $5.00 per kilogram respectively would all attract
interim duty of 20 cents per kilogram if calculated on a consolidated basis, a result the
respondents and Capral would describe as accidental or even absurd given that in each case
the normal value is equal to or less than the export price. This may be contrasted with the
treatment of a shipment by the same exporter of G4 or G5 to Australia at a price of $5.00 per
kilogram. Such a shipment would attract interim duty at precisely the same rate (20 cents per
kilogram) even though it is sold at a price well below normal value.
- 55 145
However, it is important to keep in mind that there is nothing in Part XVB of the Act
(or the Anti-Dumping Agreement) that requires that duty be imposed upon goods within a
relevant class (such as G1, G2 and G3) that are sold at or above normal value. On the
contrary, pursuant to s 269TL of the Act, the Minister may decide, on the recommendation of
the CEO, not to impose dumping duty on “particular goods or on goods of a like kind to
particular goods”. In a practical sense, the present issue therefore comes down to this: how
high may the dumping duty for goods sold at less than normal value (such as G4 and G5) be
set or, to put it slightly different, what is the maximum dumping margin that may be applied
using the methods of calculation provided for by the Act?
146
The applicants submitted that the problems referred to by the respondents “arise …
from the inflexible nature of the anti-dumping and countervailing system as a whole”. I think
there is considerable force in this submission. The interim duty payable in respect of a
particular exporter’s goods is calculated on the basis of the normal value and the export price
established using information which (it may be assumed) accurately reflected prices, costs,
exchange rates and other relevant matters during the investigation period but which may or
may not be accurate at or after the time a declaration is made under s 269TG. Thus, the
normal value used to calculate the dumping margin may not reflect increases in an exporter’s
costs of production which may have risen following increases in the cost of raw materials.
Similarly, the dumping margin worked out for a particular exporter in accordance with
s 269TACB may have been based upon a quite different mix of goods than that which is
representative of that exporter’s business at or after the time a declaration is made under
s 269TG.
147
In my view these examples illustrate that what the respondents and Capral might
describe as accidental, surprising or even absurd outcomes, are the result of a statutory
scheme for imposing dumping duty that is, at least in presently relevant respects,
intentionally rigid in application and capable of producing many different results some of
which might be perceived to be harsh or unfair. Importantly, these results can work in quite
different ways, including in favour of, or against, the interests of Australian industries or their
overseas counterparts.
148
Further, I do not agree with Capral that the purpose of Part XVB of the Act is “to
protect Australian industry”. The purpose of Part XVB is far more complicated. It is
apparent from the scheme of Part XVB that the legislature has sought to strike a balance, as
- 56 the relevant international agreements no doubt seek to do, between various interests including
not only those of Australian industries but also other WTO members and their own domestic
industries, Australian consumers (in the broadest sense of that word) who may have an
interest in acquiring imported goods at the lowest available prices and Australian exporters
that supply their goods to other countries that are also members of the WTO.
149
The applicants referred me to reports of the WTO Appellate Body concerning the
Anti-Dumping Agreement which they suggested would assist in resolving the question of
construction now under consideration. These included the report entitled “United States –
Measures
Relating
to
Zeroing
and
Sunset
(WT/DS322/AB/R) (the Zeroing Report).
Reviews”
issued
9
January
2007
In the Zeroing Report the Appellate Body
considered whether the practice known as “zeroing” was permissible under the AntiDumping Agreement.
150
Zeroing is a practice that involves counting the dumping margin with respect to
particular goods as zero if the weighted average difference between normal value and the
export price is a negative. The effect of zeroing is illustrated in Table 2 below where it can
be seen to produce a higher dumping margin (7% compared to 4%) for the commodity than
would be the case if the negatives (-10%, -5%) were not counted as zero.
151
In the course of explaining why “zeroing” was inconsistent with the requirements of
the Anti-Dumping Agreement the Appellate Body considered what it understood by the
concepts of “Dumping” and “Margins of Dumping” for the purposes of GATT 1994 and the
Anti-Dumping Agreement. The Appellate Body said (at paras 108-115):
108.
First, we recall that dumping is defined in Article VI:1 of the GATT 1994 as
- 57 occurring when a “product” of one country is introduced into the commerce
of another country at less than the normal value of the “product”. Consistent
with this definition, Article VI:2 provides for the levying of anti-dumping
duties in respect of a “dumped product” in order to offset or prevent the
injurious effect of dumping.
109.
This definition of dumping is carried over into the Anti-Dumping Agreement
by Article 2.1. Furthermore, by virtue of the opening phrase of Article 2.1—
“[f]or the purposes of this Agreement”—this definition applies throughout
the Agreement. Thus, the terms “dumping”, as well as “dumped imports”,
have the same meaning in all provisions of the Agreement and for all types of
anti-dumping proceedings, including original investigations, new shipper
reviews, and periodic reviews. In each case, they relate to a product because
it is the product that is introduced into the commerce of another country at
less than its normal value in that country.
110.
Article VI:2 defines “margin of dumping” as the difference between the
normal value and the export price and establishes the link between
“dumping” and “margin of dumping”. The margin of dumping reflects the
magnitude of dumping. It is also one of the factors to be taken into account
to determine whether dumping causes or threatens material injury. Article
VI:2 lays down that “[i]n order to offset or prevent dumping, a Member may
levy on any dumped product an anti-dumping duty not greater in amount than
the margin of dumping in respect of such product.” Thus, the margin of
dumping also is defined in relation to a “product”.
111.
Secondly, the Anti-Dumping Agreement prescribes that dumping
determinations be made in respect of each exporter or foreign producer
examined. This is because dumping is the result of the pricing behaviour of
individual exporters or foreign producers. Margins of dumping are
established accordingly for each exporter or foreign producer on the basis of
a comparison between normal value and export prices, both of which relate to
the pricing behaviour of that exporter or foreign producer. In order to assess
properly the pricing behaviour of an individual exporter or foreign producer,
and to determine whether the exporter or foreign producer is in fact dumping
the product under investigation and, if so, by which margin, it is obviously
necessary to take into account the prices of all the export transactions of that
exporter or foreign producer.
112.
Other provisions of the Anti-Dumping Agreement also make it clear that
“dumping” and “margins of dumping” relate to the exporter or foreign
producer. Article 6.10 requires, “as a rule”, that investigating authorities
determine “an individual margin of dumping for each known exporter or
producer”. Similarly, Article 9.4 of the Anti-Dumping Agreement refers to
situations where anti-dumping duties are applied to exporters or foreign
producers not examined individually in an investigation, and provides that
such duties shall not exceed “the weighted average margin of dumping
established with respect to the selected exporters”. In addition, Article 9.5
indicates that the purpose of new shipper reviews is to determine “individual
margins of dumping for any exporters or producers in the exporting country
in question who have not exported the product” and refers to a “determination
of dumping in respect of such producers or exporters”.
113.
Thirdly, the Anti-Dumping Agreement and the GATT 1994 are not concerned
with dumping per se, but with dumping that causes or threatens to cause
material injury to the domestic industry. Article 3.1 stipulates that a
determination of injury shall be based on an objective examination of both
the volume of the dumped imports and the effect of the dumped imports on
- 58 prices in the domestic market for like products, and the consequent impact of
these imports on domestic producers of such products. Furthermore, Article
3.5 of the Anti-Dumping Agreement lays down that “[t]he authorities shall
also examine any known factors other than the dumped imports which at the
same time are injuring the domestic industry and the injuries caused by these
other factors must not be attributed to dumped imports.” Among the nonattribution factors listed in this Article are “the volume and prices of imports
not sold at dumping prices”.
114.
Thus, it is evident from the design and architecture of the Anti-Dumping
Agreement that: (a) the concepts of “dumping” and “margins of dumping”
pertain to a “product” and to an exporter or foreign producer; (b) “dumping”
and “dumping margins” must be determined in respect of each known
exporter or foreign producer examined; (c) anti-dumping duties can be levied
only if dumped imports cause or threaten to cause material injury to the
domestic industry producing like products; and (d) anti-dumping duties can
be levied only in an amount not exceeding the margin of dumping established
for each exporter or foreign producer. These concepts are interlinked. They
do not vary with the methodologies followed for a determination made under
the various provisions of the Anti-Dumping Agreement.
115.
A product under investigation may be defined by an investigating
authority. But “dumping” and “margins of dumping” can be found to
exist only in relation to that product as defined by that authority. They
cannot be found to exist for only a type, model, or category of that
product. Nor, under any comparison methodology, can “dumping” and
“margins of dumping” be found to exist at the level of an individual
transaction. Thus, when an investigating authority calculates a margin
of dumping on the basis of multiple comparisons of normal value and
export price, the results of such intermediate comparisons are not, in
themselves, margins of dumping. Rather, they are merely “inputs that
are [to be] aggregated in order to establish the margin of dumping of the
product under investigation for each exporter or producer.”
(footnotes omitted, emphasis added)
152
Neither the respondents nor Capral suggested that there was any reason not to accept
as correct the WTO Appellate Body’s reasoning in relation to the operation of the AntiDumping Agreement. If it is accepted, as in my opinion it should be, that the Anti-Dumping
Agreement requires the calculation of a single dumping margin for a particular exporter in
respect of the goods under investigation (which will include like goods) then it is apparent
that the kind of outcomes postulated by the respondents and Capral cannot be said to be
unintended or absurd. I therefore reject the argument that it is necessary for subs 33(3A) of
the Interpretation Act to apply to subs 269TG(3) so that unintended or absurd outcomes may
be avoided.
153
In my opinion the Minister was not entitled to include in public notices published
pursuant to s 269TG a statement of variable factors for the purposes of subs (3) different to
- 59 those utilised for the purpose of determining whether to make the declarations referred to in
subss (1) and (2). It follows that the Minister was not entitled to vary the dumping duty
notices so that they would have effect as if different variable factors had been fixed with
respect to different finishes.
154
The parties’ submissions appeared to assume that a similar result would follow in
relation to the Minister’s decision to vary the countervailing duty notices. In this regard,
neither the respondents nor Capral suggested that the Minister might have power to determine
variable factors with respect to countervailing duty on a differentiated basis if he or she was
not entitled to adopt such an approach with respect to dumping duty.
155
While there are some differences between s 269TJ and s 269TG, the general structure
of s 269TJ, at least in so far as it relates to the publication of notices (subss (1) and (2))
declaring that s 10 of the Dumping Duty Act applies, and the inclusion of a statement as to
variable factors (subs (11)), is similar to that of s 269TG. In these circumstances I have come
to the same conclusion with respect to the application of subs 33(3A) of the Interpretation
Act to subs 269TJ(11) of the Act as that reached in relation to subs 269TG(3).
156
Issue G3 gave rise to a number of arguments that were advanced by the applicants in
the alternative to those raised and considered by me in connection with Issue G2. Having
regard to my decision concerning Issue G2 it is not necessary for me to say any more in
relation to Issue G3.
PROCEDURAL DEFICIENCIES ASSOCIATED WITH THE REINVESTIGATION
(ISSUE G1)
157
The applicants raised a number of other arguments relating to the Minister’s decision
to vary the dumping and countervailing duty notices so as to fix different variable factors for
different finishes of goods.
158
In the first place the applicants submitted that the Act required that each and every
finding that the applicant for review seeks to have reinvestigated pursuant to Div 4 of Part
XVB of the Act must be set out in a notice published by the Review Officer pursuant to
s 269ZZI.
It was submitted that this was not done in this case and, as a result, the
reinvestigation, and the Minister’s subsequent decision to vary the dumping and
- 60 countervailing duty notices on the basis of the recommendations arising from it, were not
authorised by the Act.
159
160
Section 269ZZI of the Act provides:
(1)
Before the Review Officer begins to conduct a review, the Review Officer
must publish a notice in a newspaper circulating in each State, the Australian
Capital Territory and the Northern Territory, indicating that the Review
Officer proposes to conduct that review.
(2)
Without limiting the matters that must be dealt with in a notice under
subsection (1), it must:
(a)
describe the goods to which the application relates; and
(b)
set out the decision that is sought to be reviewed and the ground for
seeking the review (including the particular finding or findings the
reinvestigation of which is sought by the applicant); and
(c)
invite interested parties to lodge with the Review Officer, within 30
days starting from the date of publication of the public notice,
submissions concerning the application; and
(d)
indicate the address at which, or the manner in which, such
submissions can be lodged.
The relevant notice was published on 20 December 2010 (the First Notice). It
included a heading that referred to s 269ZZI of the Act and “Certain Aluminium Extrusions
Exported to Australia from the People’s Republic of China”.
Various applicants were
identified in the First Notice including Panasia, other exporters referred to as the “Joint
Applicants” (Kam Kiu was not one of them), and Capral. Relevantly, the First Notice stated:
The joint applicants seek review of findings relating to normal value calculations,
designations of state owned enterprises as public bodies, prevailing market
conditions in China, and the receipt of subsidies.
…
Capral seeks review of numerous findings, broadly relating to the assessment of a
market situation in China, normal value calculations, cost of production
determinations, calculation of dumping duties, certain procedural aspects of the
dumping investigation, and the findings relating to subsidies.
Further detail on the grounds of review may be obtained by interested parties through
the inspection of documents on the public file, which may be arranged by contacting
(02) 6141 3233.
161
The respondents submitted that subs 269ZZI(2)(b) did not require the Review Officer
to specify every finding the subject of the six different applications for review filed by the
various applicants. Rather, it was sufficient that the First Notice summarise those findings
- 61 and disclose a mechanism by which details of such findings and other aspects of the
applications for reinvestigation could be obtained. I accept this submission.
162
The applicants’ construction of s 269ZZI is an extreme one which could lead to
absurd results depending upon the number and complexity of the findings the subject of the
application for review and any proposed reinvestigation. The Court is entitled to have regard
to the practicalities of the interpretation of s 269ZZI advanced by them when deciding
whether the section should receive a literal interpretation (Cooper Brookes (Wollongong) Pty
Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320-321 per Mason and Wilson JJ).
163
Certainly, subs 269ZZI(2)(b) does not require the notice to set out verbatim each and
every finding the reinvestigation of which is sought by the applicant. In my view, it requires
that the terms of the relevant notice be sufficient to convey to a reasonable person who is
likely to have an interest in such review or reinvestigation the general scope of the proposed
review and any findings that the applicant for review seeks to have reinvestigated.
164
In the present case it is not necessary to decide whether the First Notice satisfied the
requirements of subs 269ZZI(2). A failure to comply with s 269ZZI would not of itself
provide a basis for setting aside the Minister’s decision to vary dumping and countervailing
duty notices in accordance with recommendations made by the CEO following a
reinvestigation that took place as a result of a review to which the section applied. In my
opinion, it is not a purpose of Pt XVB of the Act, or s 269ZZI in particular, to deprive the
Minister of power to either initiate a reinvestigation or vary dumping and countervailing duty
notices in accordance with recommendations made as a result of a review and a
reinvestigation merely because the requirements of subs 269ZZI(2) have not been complied
with (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91][93] per McHugh, Gummow, Kirby and Hayne JJ). Of course, if the consequence of any
non-compliance with s 269ZZI is that a party with a sufficient interest in the subject of the
proposed review is denied procedural fairness, then this may ultimately affect not only the
decision of the Review Officer but also subsequent decisions of the CEO and the Minister. I
will return to the question of whether there may have been a denial of procedural fairness in
this case later in these reasons.
165
Another argument raised by the applicants concerns s 269ZZL of the Act.
relevantly provides in subss (2) and (3):
It
- 62 (2)
If the Minister accepts a recommendation by the Review Officer to require
the CEO to reinvestigate a finding or findings, the Minister must:
(a)
in writing, require the CEO to:
(i) make further investigation of the finding or findings, having regard only
to the information and conclusions to which the Review Officer was
permitted to have regard; and
(ii) report the result of the further investigation to the Minister within a
specified period; and
(b)
by public notice indicate the acceptance of that recommendation
(including particulars of the requirements made of the CEO).
…
(3)
166
The CEO must conduct an investigation in accordance with the Minister’s
requirements under subsection (2) and give the Minister a report of the
investigation concerning the finding or findings within the specified period.
The applicants argued that the CEO was not authorised by the Act to conduct a
reinvestigation into the imposition of measures on a differentiated basis because a notice
published by the Attorney on 16 May 2011 (the Second Notice) “did not indicate the
acceptance of any recommendation for the reinvestigation of whether measures should be
imposed on the basis of the type of finish of the goods rather than on a consolidated basis”. It
was argued that since this aspect of the CEO’s reinvestigation was not authorised by the Act,
the Attorney’s subsequent decision to accept the CEO’s recommendations was likewise not
authorised by the Act.
167
Again, it is unnecessary for me to express a view as to whether the Second Notice
complied with the requirements of the Act because I do not accept that the non-compliance
complained of could have the consequences suggested.
168
This brings me to the question whether Panasia or Kam Kiu was denied procedural
fairness as a consequence of the alleged deficiencies in the First Notice or the Second Notice.
169
Panasia did not call any evidence in support of this aspect of its case. There is no
suggestion on the material before me that it was denied the opportunity to be heard in relation
to any matter that was considered by the TMRO. Kam Kiu is in a different position because
there is affidavit evidence from Mr Ye, the General Manager of Kam Kiu (Australia) Pty Ltd,
relevant to this question. The key aspects of his evidence (which was not the subject of
cross-examination) may be summarised as follows:
- 63 
Kam Kiu did not apply for review of the CEO’s recommendations in
Report 148 or the Attorney’s decision accepting those recommendations.

Mr Ye and his colleagues saw the First Notice (referred to in Mr Ye’s affidavit
as Annexure MY4) and the Second Notice (referred to as Annexure MY5)
about the time they were published.

Kam Kiu did not make submissions to the TMRO in relation to the proposed
review. According to Mr Ye this was because:
(a)
the burden imposed by the recommendations made in Report 148 and
the Attorney’s decisions accepting those recommendations did not
become critical until the publication of Report 175; and
(b)
he was not aware that either the TMRO’s review, or the
reinvestigation:
(i)
might involve any consideration of the consolidated approach
to application of final measures as set out in Report 148; or
(ii)
could lead to a finding that final measures should be applied on
a finish by finish basis.
170
The First Notice published by the TMRO was expressed in quite general terms. As
previously explained, it made clear that Capral sought a review of “numerous findings”
broadly relating to various matters, including “normal value calculations”, “cost of
production determinations”, “calculation of dumping duties”, and “findings relating to
subsidies”.
171
It should have been obvious to a reader of the First Notice that the matters that were
to be the subject of the proposed review were described in very general language. I do not
accept that a reasonable person, faced with language of that generality, would be entitled to
assume that the two matters singled out by Mr Ye might not be the subject of consideration in
the proposed review and, depending upon its outcome, in a subsequent reinvestigation. In
circumstances where it was open to Mr Ye and his colleagues to obtain further clarification as
to the scope of the proposed review by inspecting the public file, I am not persuaded that
there was in this case any denial of procedural fairness.
- 64 DELAY (ISSUES H1 AND H2)
172
Kam Kiu sought extensions of time pursuant to subs 11(1)(c) of the Administrative
Decisions (Judicial Review) Act 1977 (Cth) to permit Kam Kiu to apply out of time for orders
(inter alia) setting aside the TMRO’s decision to publish the First Notice and the Attorney’s
decision to publish the Second Notice. In determining whether to grant any extension I am
mindful of the principles which will usually guide the exercise of the relevant discretion as
summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
at 348-349.
173
Kam Kiu commenced its proceeding against the respondents on 25 October 2011.
This was about 10 months after the First Notice was published, and about 5 months after the
Second Notice was published. There was evidence from Mr Ye seeking to explain the
delays. Mr Ye said:
The reason why the applicants did not seek review of these decisions at an earlier
stage is that the applicants were not aware that those decisions did not identify all the
grounds on which the review and reinvestigation were being conducted until the
applicants were advised of the decisions made by the first respondent following the
recommendations in Report 175. In particular, as set out in paragraph 15(b) above,
the applicants were not aware that either the TMRO’s review, or the reinvestigation:
174
(a)
might involve any consideration of the consolidated approach to application
of final measures as set out in Report 148; or
(b)
could lead to a finding that final measures should be applied on a finish by
finish basis.
As I have already explained, I do not accept that Mr Ye and his colleagues were
justified in assuming that either of the two possibilities referred to by him might not be the
subject of consideration in the course of either the TMRO’s review or any reinvestigation that
might follow it. Given the extent of the delays involved, I am not satisfied that it would be
appropriate to grant Kam Kiu an extension of time.
175
The only other issue related to the question of delay (Issue H2) does not need to be
considered given my conclusions concerning the consequences of any non-compliance with
the requirements of subss 269ZZI(2) or 269ZZL(2)(b) of the Act.
DISPOSITION
176
Counsel informed me that they wished to be given an opportunity to make further
submissions in relation to the appropriate form of relief. The proceedings will be set down
- 65 for further hearing on a date which will be fixed after consultation between the parties’ legal
representatives and my associate for any further argument concerning the appropriate form of
orders including as to costs. Within 7 days of today the applicants must file and serve a draft
minute setting out the orders which they contend should be made having regard to these
reasons for judgment and, in particular, their success in relation to Issue G2.
I certify that the preceding one
hundred and seventy-six (176)
numbered paragraphs are a true copy
of the Reasons for Judgment herein
of the Honourable Justice Nicholas.
Associate:
Dated:
30 August 2013