WORLD TRADE  
ORGANIZATION  G/ADP/AHG/W/160 
26 March 2004 
 
 (04-1380) 
Committee on Anti-Dumping Practices 
Working Group on Implementation Original:   English 
 
 
 
ARTICLE 13 – JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW 
 
Paper by Australia  
 
 
 The following communication, dated 25 March 2004, is being circulated at the request of the Delegation of Australia.  
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   To assist in the Working Group on Implementation’s discussion on the implementation of Article 13 of the WTO Anti-Dumping Agreement, Australia submits the following paper outlining 
Australia’s system of judicial review. 
 
Legislative Framework 
 
  Australia’s anti-dumping legislation, i.e. Part XVB of the Customs Act 1901   (Customs Act) 
and the Customs Tariff (Anti-Dumping) Act 1975, do not include any provisions for judicial tribunals 
or procedures as referred to in Article 13 of the WTO Anti-Dumping Agreement .  This is because the 
Administrative Decisions (Judicial Review) Act 1977 (ADJR Act ) provides an avenue for judicial 
review of any administrative decisions, incl uding decisions related to dumping and subsidy 
investigations, in the Federal Court of Australia.     In addition to the right of judicial review se t out in the ADJR Act, Part XVB of the Customs 
Act provides for the establishment of an administ rative review body, namely the Trade Measures 
Review Officer (TMRO).  Judicial Review
 
 
 The ADJR Act provides that a person aggrieved by the making of an administrative decision 
under an enactment, conduct leading up to the making of  such a decision or a failure to make such a 
decision, may apply to the Federal Court for an orde r of review.  In a judicial review, the court does 
not examine the merits of the case but the process of  the decision-making.  Where the Court finds that 
one or more of the grounds of review set out in the ADJR Act has been made out, it may, in its 
discretion, grant an order to remedy the unlawful ac tion.  Schedule 1 to the ADJR Act sets out classes 
of decisions that are not decisions to which the Act applies.    An application for judicial review has to set out the grounds of the application and has to be lodged with the Court generally within twenty-ei ght days after the day on which a document setting 
out the terms of the decision is furnished to the applicant.  
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  The ADJR Act sets out a number of grounds upon which a judicial review might be sought.  
 
• The grounds for judicial review are: 
• A breach of the rules of natural justice o ccurred in connection with the making of the 
decision; 
• Procedures that were required by law to be observed in connection with the making of the 
decision were not observed; 
• Want of jurisdiction in making the decision; 
• Improper exercise of power in making the decision; 
• Decision made was not authorised by the enactment; 
• Error of law; 
• Decision made was induced or affected by fraud; 
• No evidence to justify th e making of the decision; 
• Decision was otherwise contrary to law. 
  An improper exercise of a power includes a reference to:  
• Taking an irrelevant consideration into account; 
• Failing to take a relevant consideration into account; 
• An exercise of a power for a purpose other than  a purpose for which the power is conferred; 
• An exercise of a discretionary power in bad faith; 
• An exercise of a personal discretionary power at the behest of another person; 
• An exercise of a discretionary power in accordan ce with a policy without regard to the merits 
of the particular case; 
• Unreasonableness; 
• An exercise of a power in such a way that the r esult of the exercise of the power is uncertain; 
and 
• Abuse of the power. 
  The remedies which may be granted by the Cour t upon an application for an order of review 
are set out in the ADJR Act. These remedies are granted at the discretion of the Court.   
 The Court may make all or any of the following orders: 
 
• Quashing or setting aside the decision; 
• Referring the matter back to the decision-maker for reconsideration; 
• Declaring the rights of the parties; 
• Directing the parties to do or to refrain from doing any act or thing, as the Court considers 
necessary to do justice between the parties.  
 Administrative Review
 
 
 Division 8 in Part XVB of the Customs Act has established an administrative review body 
known as the TMRO.    Unlike the judicial review, the TMRO could stand in the shoes of the decision-maker and 
could substitute its decision for that of the decision-ma ker.  The role of the TMRO is to review certain 
decisions made by the Minister or the CEO of th e Australian Customs Service in relation to dumping 
and subsidy investigations.    G/ADP/AHG/W/160 
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  The TMRO performs a pure review function and will be limited to assessing the Minister’s 
final finding and certain decisions made by the CEO, including the decision to reject a dumping or subsidy application at the screening stage or the decisi on to terminate an investigation, in light of the 
claims made in the application for review.    
 The review undertaken by the TMRO is based on the information that forms part of the 
Australian Customs Service’s investigation record.  Parties cannot seek to introduce into the review 
process information that was not before the Austra lian Customs Service or the Minister when the 
reviewable decision was made.  Also, the TMRO cannot substitute its decision for that of the 
Minister.  The TMRO can only recommend that the Minister either: 
 
• affirm the reviewable decision; or 
• direct the CEO to reinvestigate the findings  specified in the application for review. 
  Having reviewed the CEO’s decision, the TMRO may either:  
• affirm the reviewable decision; or  
• revoke the reviewable decision and subs titute a new decision in lieu of that. 
 
 A person who is an interested party in rela tion to a reviewable decision may apply for a 
review of that decision by the TMRO.  An appli cation for a review by the TMRO must be made 
within 30 days after a public notice of the review able decision was first published in a newspaper.  
The procedures for review by the TMRO are set out in Division 9 of Part XVB of the Customs Act which include public notification of review, invita tion of submissions by interested parties and 
maintaining public record in relation to reviews.  
  Any party to an application for a review by the TMRO who is dissatisfied with any recommendation or decision made by the TMRO may appeal the decision to the Federal Court of Australia under the ADJR Act.    
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