Case: Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474
Outcome: applied
CEO had to make a recommendation based on a report that correctly addressed the criteria upon which the Minister could made a declaration affecting an existing notice for the purposes of the Act and the Dumping Duty Act under s 269ZDB(1). Central to the purposes of the Act and the Dumping Duty Act was the present and likely future impact on the Australian industry of importation of the relevant goods at the time of the review. Here, there was no suggestion that Siam's dumping had caused any injury to Qenos in the review period. One question for the Minister to consider was whether he was satisfied that importation of the dumped product by Siam had caused, was then causing or threatening to cause material injury to the Australian industry as s 269TG(2)(b) required. The Minister (and the CEO in preparing the report under s 269ZDA(1)) had first, to take into account the criteria in s 269TG(2) and, secondly, to give weight to his or her conclusions on those criteria, as fundamental elements in making a declaration under s 269ZDB(1). In that way, the initial justification for the s 269TG(2) declaration would be revisited by the Minister having regard to the up-to-date information ascertained in the review process under Div 5 of Pt XVB and the purposes of the Act and the Dumping Duty Act would be addressed appropriately by him in making the relevant choice in a declaration under s 269ZDB(1)(a): R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 at 329 per Mason J (with whom Gibbs J agreed); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 107 ALD 474 at 501-503 [103]-[112] where I discussed the principles. It is significant that the decision-maker here was the Minister. The statutory scheme seeks to give effect to Australia's international obligations. In authorising the Minister to consider any other information that he or she considers relevant, in addition to requiring the Minister to consider the report of the CEO, the Parliament intended in s 269ZDB(1)(a) to confer a broad discretion on the Minister. In the exercise of a ministerial discretion due allowance may have to be given to a Minister of the Crown to take into account broader policy considerations that may be relevant, as Mason J explained in his classic judgment in Peko Wallsend 162 CLR at 42. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32]; Telstra 107 ALD at 503 [112] per myself. Such an increase was not a revocation. It was a new, substantive impost on Siam's product, made after a period of competition in the market at prices, involving dumping, that had not been found to injure or threaten Quenos' strongly performing business. Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ; Telstra 107 ALD at 502 [107]. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them." I am satisfied that at the time he made the declaration the Minister (and the CEO) did not consider or have regard to the likelihood of whether, if the notice were revoked, Siam's dumping threatened to cause material injury to Qenos. The consideration of this question was a matter to which fundamental weight had to be given in arriving at a decision to make a declaration: see Telstra 107 ALD at 501-503 [103]-[112]; ss 269ZC(2)(b), 269ZD(2)(a)(i), 269ZDA(3)(a)(i), 269TG(2) and 269ZDB(1). The purposes of the Act and the Dumping Duty Act involved the legitimate, principled and limited imposition of dumping duty, in accordance with the tests in those Acts, to perform Australia's obligations (to the extent that the Parliament gave these effect in that legislation) under the implementation agreement. Accordingly, I am of opinion that, in the circumstances, the test applied by the CEO and the Minister that they be satisfied "that dumping would not cause material injury if the measures were revoked" was not open to them. That was a jurisdictional error. In Report 134, the CEO asserted that Customs had examined the Australian market for the product to test whether the Australian industry's selling prices were affected by dumping. Its conclusion was that "... the dumped goods had a limited effect on Australian industry selling prices in the review period". The Report selected those selling prices as the unsuppressed selling price. It then used that unsuppressed selling price to calculate the non-injurious price. It is not enough for a decision-maker to give cursory consideration only to put to one side matters which the statute requires him or her to consider: East Australian Pipeline 223 CLR at 244 [52] per Gleeson CJ, Heydonn and Crennan JJ, see also Gummow and Hayne JJ at 256 [102]; Telstra 107 ALD at 501-503 at [103]-[112].