WORLD TRADE  
ORGANIZATION  G/SG/Q1/AUS/6 
25 April 2006 
 (06-1945) 
Committee on Safeguards Original:   English 
  
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLE 12.6 OF THE AGREEMENT  
 
Replies to Questions Posed by the EUROPEAN COMMUNITIES
1  
Regarding the Notification of AUSTRALIA2 
   The following communication, dated 24 April 2006,  is being circulated at the request of the 
Delegation of Australia. 
 
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Q1. Could Australia please explain how it co nsiders the non-application of a safeguard 
measure, taken in accordance with the WTO Agre ement on Safeguards, to products originating 
from a partner with whom it has a Free Tr ade Agreement to be compatible with the erga omnes  
principle of safeguards?  
 WTO caselaw provides that if a Member complies with the principle of parallelism, then the 
non-application of a safeguard measure to the imports from a free trade agreement partner is 
compatible with the WTO Agreement on Safeguards.   An aspect of the principle of parallelism 
requires that if a Member has excluded imports (i ncluding those from free trade agreement partners) 
from the scope of its safeguard measures, then that  Member must have excluded those imports from 
the injury phase
3.  That is, the imports covered under the injury phase must correspond to the 
remedies phase.    Amendment [1]  Q2. Could Australia please explain why the wo rds 'from the inquiry' have been deleted 
under paragraph 5(a) from its general pro cedures relating to safeguard measures? 
  WTO caselaw has clarified that if a Member has excluded certain imports from the 
application of the safeguard measure, that Member must consider such imports as a factor “other than increased imports” within the meaning of Article 4.2(b)
4.  The words “from the inquiry” were deleted 
to ensure that Australia’s competent authority (i.e., the Productivity Commission) could apply the 
principle of parallelism and Articles 2 and 4 of the Agreement on Safeguards. 
 
                                                      
1 G/SG/Q1/AUS/4. 
2 G/SG/N/1/AUS/2/Suppl.1 
3 See e.g., United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon 
Quality Line Pipe from Korea , Reports of the Panel and Appellate Body, adopted on 8 March 2002. 
4 See e.g., United States – Definitive Safeguard Measures on Imports of Certain Steel Products , Report 
of the Appellate Body, adopted on 10 December 2003. G/SG/Q1/AUS/6 
Page 2  
 
  Q3. Could Australia please explain what, if an y, impact the above deletion will have in 
safeguard investigations particularly in relation to the treatment of products determined to be 
of New Zealand origin? 
 
 Australia will ensure that obligations under Article 2.1 and 4.2 of the Agreement on 
Safeguards are met. 
 
Amendment [3] 
 
Q4. Regarding the new paragraph 5(c), could Au stralia explain its practice vis-à-vis imports 
of Singapore origin in safeguard proceedings?  Co uld Australia clarify if it excludes products of 
Singapore origin in injury investigations as well as from the eventual application of any safeguard measures?  
 
 Australia has conducted only one safeguard ac tion investigation since the WTO Agreements 
have come into force
5.  No safeguard actions have been initia ted since Australia entered into a free 
trade agreement with Singapore.  In the event of a safeguards investigation, Australia would exclude 
products of Singapore origin in the injury and remedy phases of the safeguards investigations, 
consistent with Articles 2.1 and 4.2 of the Agreement on Safeguards.   
 
Q5. Regarding the new paragraphs 5(d) and (e),  could Australia please address the following 
points:  
- how Australia will conduct injury investigations in erga omnes  safeguard cases, 
particularly the treatment of impo rts from the US and Thailand?  
  The Productivity Commission will conduct inju ry investigations for global safeguards 
measures matters in the manner described in the responses to Questions 1 and 2 
above. 
 
- could Australia explain the legal basis in the WTO Agreement on Safeguards for 
an injury investigation covering impo rts originating in specific countries? 
 
 New paragraphs 5(d) and (e) of the Gazette
6 do not purport to conduct injury 
investigations covering imports originating in specific countries. 
 
- could Australia explain the difference be tween 'serious injury or threat thereof' 
and 'serious damage or threat thereof' applicable in relation to imports 
originating in Thailand? For the latter, co uld Australia identify the legal basis in 
the WTO Agreement on Safeguards for the notion of 'serious damage'? 
   
 Chapter 5 of the Australia-Thailand Free Trade Agreement7 defines the term “serious 
damage” as “a significant overall impairment in the position of a domestic industry”.  
                                                      
5 G/SG/N/8/AUS/1and G/SG/N/9/AUS/1. 
6 Commonwealth of Australia Gazette, ‘Establishmen t of General Procedures for Inquiries by the 
Productivity Commission into whether Safeguard Action is Warranted under the Agreement Establishing the 
World Trade Organization”, No. S 297, 25 June 1998, as amended by Commonwealth of Australia Gazette, ‘Amendment of General Procedures for Inquiries by  the Productivity Commission into whether Safeguard 
Action in Warranted under the Agreement Establishing the World Trade Organization’, No. GN 39, 
5 October 2005; see G/SG/N/1/AUS/2 and G/SG/N/1 /AUS/2/Suppl.1 respectively. 
7 [2005] Australian Treaty Series 2, signed at Canberra, 5 July 2004, entered into force on 
1 January 2005.  G/SG/Q1/AUS/6 
 Page 3 
 
 
  Article 4.1(a) of the WTO Agreement on Safeguards defines “serious injury” “to 
mean a significant overall impairment in the position of a domestic industry”. 
   
- how Australia will apply the different in jury/causality standards specified under 
paragraphs 5(d) and (e) applicable to imports from the US and Thailand? What 
is the legal significance of imports being a 'substantial cause' as opposed to 
imports being "just" a 'cause'? 
 
  The different terms used in paragraphs 5(d) and (e) are simply a reflection of the 
different languages used in the two treaties.   Australia will take full account of its 
rights and obligations under these provisions of these two treaties as well as its rights 
and obligations under the WTO Agreements in the application of these provisions. 
 
- whether the use of the word 'may' in paragraphs 5(d) and 5(e) entails a margin 
of discretion in the exclusion of imports originating in the United States and/or 
Thailand and, if so, how and on the basi s of what criteria that discretion would 
be exercised? 
 
  Consideration of the treatment of impor ts from the United States or Thailand would 
be considered by Australia in its decision to initiate a safeguards investigation.  Any 
decision would be consistent with our  rights and obligations under the WTO 
Agreements and the respective free trade agreements. 
 
- how the investigation will be structured in order to take account of the various 
injury and causality standards introduced by the amendments and how Australia will ensure that the injury determination is in compliance with the 
requirements set out in Article 4 of the WTO Agreement on Safeguards?  
 
Australia’s administrative procedures are in  compliance with Australia’s obligations 
under Article XIX of the GATT and th e WTO Agreement on Safeguards.   
 Our application of our free trade agreemen ts will be in compliance with the WTO 
Agreements, including Article 4.2 of  the Agreement on Safeguards.    
  
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