WORLD TRADE  
ORGANIZATION   
G/ADP/N/1/AUS/2/Suppl.6 
G/SCM/N/1/AUS/2/Suppl.4 17 July 2012 
 
(12-3866) 
Committee on Anti-Dumping Practices  
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS   
UNDER ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
 
AUSTRALIA 
 
Supplement 
   The following communication, dated 12 July 2012, is being circulated at the request of the 
Delegation of Australia. 
 
_______________ 
 
  Pursuant to Article 32.6 of the Agreemen t on Subsidies and Countervailing Measures and 
Article 18.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994, Australia hereby notifies a new Mini sterial Direction on Material Injury which was 
attached to Australian Customs Dumping Notice No. 2012/24 of 1 June 2012 (available online at 
www.customs.gov.au).    
Australian Customs Dumping Notice no. 2012/24 
 
New Ministerial Direction on Material Injury 
 
 On 22 June 2011, the Australian Government announced its ' Streamlining Australia's 
anti-dumping system ' policy.  This announcement included a commitment to revise the current 
Ministerial Direction on Material Injury to confirm that profits foregone and loss of market share in 
an expanding market are rele vant injury considerations. 
  The previous guidance on material injury w as based on a Ministerial Direction from former 
Minister Beddall in 1990 and two letters from then Minister Button and Minister Vanstone in 1991 
and 2000 respectively.  In an effort to conso lidate the previous guidance, and deliver on the 
Government's commitment to streamlining the anti- dumping system, the Minister for Home Affairs 
has issued a new Ministerial Direction under section 269TA of the Customs Act 1901  (the Act). 
  The new Ministerial Direction includes the fo llowing key points from the previous guidance: 
 
 material injury is injury which is not immaterial, insubstantial or insignificant; 
 
 the injury must be greater than that likely to occur in the normal ebb and flow of 
business; 
 
 identifying material injury will depe nd on the circumstances of each case; 
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   injury caused by other factors must not be attributed to dumping or subsidisation, 
however dumping or subsidisation need not be the sole cause of injury to the industry; 
and  
 it is important to consider regional dumpi ng, the greater impact of injury during 
periods of economic downturn and reduced ra tes of growth as an element of injury. 
 
 The new Ministerial Direction also rec ognises that there may be circumstances where 
dumping or subsidisation may still result in injury wh ere it has caused the rate of an industry's growth 
to slow, without causing it to contract, or where an industry suffers a loss of market share in a growing market, without a decline in profits. 
 
 Under the terms of subsection 269TA(1) of the Act, the Chief Executive Officer of the 
Australian Customs and Border Protection Service is bound to comply with the new Ministerial Direction, a copy of which is attached for reference.  Further information 
 
 Enquiries concerning this notice may be directed to the Customs liaison hotline on telephone number (02) 6275 6066, fax number (02) 6275  6888 or email tmliaison@customs.gov.au. 
  
Kim Farrant 
National Manager International Trade Remedies Branch CANBERRA ACT  
1 June 2012  G/ADP/N/1/AUS/2/Suppl.6 
 G/SCM/N/1/AUS/2/Suppl.4  Page 3 
 
 
  MINISTERIAL DIRECTION ON MATERIAL INJURY 2012 
SUBSECTION 269TA(1) OF THE CUSTOMS ACT 1901 
COMMONWEALTH OF AUSTRALIA 
 
I, JASON CLARE, Minister for Home Affairs, under subsection 269TA(1) of the Customs Act 1901 , 
give the following directions to the Chief Executive Officer of Customs relating to the determination 
of material injury to an Australia n industry under section 269TAE of the Customs Act 1901.  
On 22 June 2011 the Australian Government announced its ' Streamlining Australia's anti-dumping 
system ' policy.  This included a commitment to revise the current Ministerial Direction on material 
injury to confirm that profits foregone and loss of market share in an expanding market are relevant 
injury considerations. 
The previous guidance on material injury is cont ained within former Minister Beddall's direction 
under section 269TA of the Customs Act dated 4 September 1990, a letter from the then 
Minister Button to the Comptroller-General of Cu stoms dated 16 December 1991 and a letter from the 
then Minister Vanstone to the CEO of Customs sent  in December 2000 ('the previ ous guidance').  It is 
timely to clarify certain aspects of, and to consolid ate, the previous guidance.  This direction is 
intended to replace the previous guidance so far as it relates to material injury. 
I now direct you as follows in connection with carryi ng out or giving effect to your powers and duties 
under Part XVB of the Act. 
My direction is to be construed as subject always to  the law, including Part XVB.  Consistently with 
section 269TA(2) my direction does not deal with the carrying out or the giving effect to your powers or duties in relation to a particular consignment of goods or to like goods to goods in a particular 
consignment but deals instead with the general principles for carrying out or giving effect to your 
powers.  You must still have regard to the facts of the individual case.  It is not enough to assert that 
because there is dumping or subsidisa tion injury automatically follows. 
I direct that identification of material injury be  based on facts and not on assertions unsupported by 
facts. 
Consistent with Australia's international trad e obligations under the World Trade Organization's 
Anti-Dumping Agreement  and Agreement on Subsidies and Countervailing Measures , I would expect 
it to be shown that the industry is suffering injury, and that the injury caused by dumping or subsidisation is material in degree.  The injury must  also be greater than that  likely to occur in the 
normal ebb and flow of business. 
Subject always to the law, I direct you to consider ma terial injury to be injury that is not immaterial, 
insubstantial or insignificant.  I direct that ther e is no threshold amount that is capable of general 
application.  Rather, identifying material injury  will depend upon the circumstances of each case and 
will differ from industry to industry and from time to time.  A material injury assessment involves a range of factors that are considered together;  no one or several of these factors can necessarily give 
decisive guidance. 
In the past some uncertainty has arisen over estab lishing the requirements for material injury where 
other factors may be contributing to injury suffered by the industry.  Injury caused by other factors must not be attributed to dumping or subsidisation.   However, I direct that dumping or subsidisation 
need not be the sole cause of injury to the industry. 
Whether dumping or subsidisation is the sole cause of injury or whether there are other contributing 
factors, I direct that the injury caused by dumping or subsidisation must be material in degree.  This is G/ADP/N/1/AUS/2/Suppl.6 
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  consistent with Australia's international trad e obligations under the World Trade Organization's 
Anti-Dumping Agreement  and Agreement on Subsidies and Countervailing Measures . 
I note that relevant economic  factors to be considered when assessi ng material injury are referenced at 
subsection 269TAE(3) of the Customs Act.  These in clude, but are not limited to  the quantity of goods 
of the kind in question, or like goods, produced or manufactured in the industry;  the value of sales of, 
or forward orders for, goods of that kind or like goods, produced or manufactured in the industry;  the 
level of profits earned in the industry, that are a ttributable to the production or manufacture of goods 
of the kind in question, or like goods;  the number of persons employed, and the level of wages paid 
to persons employed, in the industry in relation to the production or manufacture of the goods in 
question, or like goods;  the te rms and conditions of employment  (including the number of hours 
worked) of persons employed in the industry;  and investment in the industry. 
I understand that the law does not prevent judging th e materiality of injury caused by a given degree 
of dumping or subsidisation differently, depending on the cu rrent economic condition of the 
Australian industry suffering the injury.  In consider ing the circumstances of each case I direct (that 
you consider that an industry which at one point in time is healthy and could shrug off the effects of 
the presence of dumped or subsidised products in the market, could at another time, weakened by 
other events, suffer material injury from the same  amount and degree of dum ping or subsidisation. 
I note that anti-dumping or countervailing action is possible in cases where an industry has been 
expanding its market rapidly, and dumping or subs idisation has merely slowed the rate of the 
industry's growth, without causing it to contract.  In cases where it is asser ted that an Australian 
industry would have been more prosperous if not for the presence of dumped or subsidised imports, 
I direct that you be mindful that a decline in an i ndustry's rate of growth may be just as relevant as the 
movement of an industry from growth to decline.  I direct that it is possible to find material injury 
where an industry suffers a loss of market share in a growing market without a decline in profits.  As 
in all cases, a loss of market share cannot alone be deci sive.  I direct that a loss of market share should 
be considered with a range of relevant injury in dicators before material injury may be established. 
I note that in cases where the dumped or subsidised imports hold a small share of the Australian 
market, it may be difficult to demonstrate material  injury.  I direct that no minimum standard should 
be used to determine whether dumped or subsidised  imports have a sufficient share of the Australian 
market to cause material injury. 
In considering cases with regional implications I direct that you bear in mind that an industry's 
vulnerability to dumped or subsidised imports may be confined to a specific region of Australia.  
Injury may be occurring in the part of the industry lo cated in that region, with out directly affecting the 
rest of the Australian industry.  In this circumst ance it is still possible to take account of regional 
injury of this kind and, in appropriate circumstanc es, to judge such injury to be material to the 
industry as a whole. 
I direct that the above directions be adapted an d applied by you to consideration of claims of 
threatened material injury or hindran ce to the establishment of an industry. 
The Ministerial Direction on Material In jury dated 4 September 1990, is revoked. 
This instrument takes effect on the day after it is signed. 
Dated:  27 April 2012 
JASON CLARE 
Minister for Home Affairs 
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