mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44 ; (2007) 233 CLR 229
Outcome: applied
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." 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].
Case: Expo-Trade Pty Ltd v Minister for Justice and Customs [2003] FCA 1421 ; (2003) 134 FCR 189
Outcome: distinguished
respondents argued that the use of the economic concept of unsuppressed selling price "... is virtually always used to establish the non-injurious price and has also been endorsed by this Court: Expo-Trade Pty Ltd v Minister for Justice and Customs [2003] FCA 1421 ; (2003) 134 FCR 189 at 206". They contended that having decided not to revoke the existing measures, the respondents decided to change the variable factors based on "... the most current information available". I reject that argument. The report failed to identify why, or give any reason for finding that, the non-injurious price was set at the level it was for Siam. In essence, the Report simply assumed that once it had found dumping, material injury was either caused or threatened by the dumping. That appears from the statements in the Report referring to the fact that Dow and Siam made a submission for revocation on 17 January 2008, 5 days later than the 40 days allowed for submissions after the initial advertisement in s 269ZC(7)(d). After this, Customs visited Siam in Thailand in February 2008 and obtained all information from it that was required. Yet the Report said the following in relation to what was in the statement of essential facts: "However, Customs notes that dumping is another relevant factor. Customs found that exports to Australia by [Siam] over the review period were at dumped prices. As the issue of revocation was only raised when the review was significantly advanced, Customs was unable to evaluate and form a view on all other factors relevant to whether the measures should be revoked ." (emphasis added) Similarly, the final assessment in the Report asserted that Customs' "examination of the factors relevant to revocation would have been more extensive" had Dow and Siam indicated earlier that this was sought.
Case: Foster v Minister for Customs and Justice [2000] HCA 38 ; (2000) 200 CLR 442
Outcome: applied
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.
Case: LK v Director General, Department of Community Services (2009) 253 ALR 202
Outcome: applied
treaties should be interpreted uniformly by States party: LK v Director General, Department of Community Services (2009) 253 ALR 202 at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. The starting point for the process of construction of the Act, is found in the words that the Parliament has chosen. The terms of the implementation agreement, or other international convention, are an aid to construction of domestic legislation enacted by the Parliament: see Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 ; (2008) 170 FCR 560 at 568-570 [32] - [41] per French, Rares and Besanko JJ. International treaties should be interpreted uniformly by contracting States. But where a convention deliberately leaves a term undefined in a context that reflects the intention of the States party to treat its application as a question of pure fact, the use of that term in domestic legislation will not require the domestic court to apply decisions involving that term in other jurisdictions as determinations of law rather than fact: LK v Director General 253 ALR at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. Thus, decisions of the WTO Appellate Body and a panel of the WTO Dispute Settlement Body, on the construction of the implementation agreement cannot be determinative of the construction of the Act and the Dumping Duty Act . The latter have been framed with the intention to give effect to the implementation agreement in a particular manner crafted by the Parliament in its own words. The task of the Court is to construe the words of the statutes, but nonetheless to have regard to the context provided by the implementation agreement and decisions of other jurisdictions, where relevant, that may shed light on the intention of the Parliament: see too Chiropedic Bedding (2008) 170 FCR at 568-569 [32]-[36] per French, Rares and Besanko JJ.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
the declaration is made under s 269ZDB(1), the Minister must consider, or have regard to, the most up to date information available. The Act requires the Minister to form a judgment about the current circumstances and future consequences of the importation of the relevant goods. This is so for the following reasons. First, the review is intended to consider the impact of changed circumstances in a market affected by the operation of a notice under s 269TG(2) (whether in its original or a varied form) (s 269SM(5)). That requires consideration of the current circumstances that formed the basis for the review identified by ss 269ZA(1)(b) and 269ZC(2)(b), namely a change in a variable factor or the current absence of justification for the Minister to take any relevant anti-dumping measure. Secondly, it is a general principle that an administrative decision-maker is required to make his or her decision on the most current material available to the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 44-45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-572 [27]-[32] where I discussed this principle. The test applied by the CEO and the Minister
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
the whole of the reasons in the Report as fairly and generously as I can in favour of the administrative decision-maker ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ), I am nonetheless driven to conclude that these last quoted words encapsulated the CEO's, and the Minister's, approach to, or the test that was applied in, making the determination under s 269ZDB(1)(a). That is, the Minister did not make a positive decision that if the measures were revoked the dumping found, first, would occur in circumstances where Qenos would, or would be likely, to suffer any material injury or, secondly, that the dumping would, or would be likely, to cause that material injury. Here, all the prices for the product had increased so that the previous calculations and bases upon which anti-dumping duty had been fixed had no relevance to the current trading of the product in Australia. In addition, Report 134 found Qenos' business relating to the product had performed strongly in the review period and the volume of dumped goods was small relative to total imports and the Australian market as a whole. The CEO had concluded that all the dumped goods (of which Siam's were only a part) "... had a limited effect on Australian industry selling prices in the review period". This must be read in light of the express admission in the respondents' defence that there was no evidence or other material before either of them of any injury to Qenos caused by Siam's eports. The Correct Test Yet, under s 269ZDB(1)(a) the Minister's discretion as to what information, in addition to the report of the CEO, is relevant to making a declaration, is not absolute. First, in the chapeau to s 269ZDB(1) the Parliament reinforced that the declaration is "for the purposes of this Act and the Dumping Duty Act ". Secondly, s 269ZDA(3) prescribes criteria that the CEO must consider in preparing his or her report to the Minister under s 269ZDA(5). While s 269ZDA(3)(b) is in similarly broad terms to s 269ZDB(1) in permitting the CEO to have regard to any other matter that he or she considers to be relevant to the review, the CEO's consideration cannot be at large. There must be a reasonable connection between what information the Minister (under s 269ZDB(1)), or matter the CEO (under s 269ZDA(3)(b)), considers relevant and the function each performs in the statutory process. Each must act in good faith and cannot be capricious or arbitrary in considering information or a matter to be relevant. It may be difficult to show, the more so in the case of the Minister, that the discretion miscarried where the selection of what the Minister or CEO considered to be relevant was or involved a matter of policy or opinion: cf Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Wu Shan Liang 185 CLR at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Case: Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92
Outcome: cited
the Parliament has enacted Pt XVB to deal with the subject matter of the implementation agreement, the legislation must be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with Australia's international obligations. Where the language of a statute is ambiguous, the Court should favour a construction consistent with the international instrument and the obligations which it imposes over another possible construction of that legislation. The meaning of obligations in an international instrument, such as the implementation agreement, must be ascertained by giving primacy to the text of the instrument as well as considering its context, objects and purposes. And, an international instrument is interpreted in a more liberal manner than ordinarily when a court construes exclusively domestic legislation: Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92 at 100 [25] - [26] per Mansfield, Conti and Allsop JJ.
Case: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322
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.
Case: Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: applied
relevant injury for s 269TACA(a) is that caused or likely to be caused by the dumping; that is by the sales of imported product into Australia at a level of price sufficient to cause or threaten material injury to Qenos' business or its recurrence. That was not addressed in Report 134. The Report itself demonstrated that there was no immediate past or current injury. There was no suggestion in the Report of any imminent or foreseeable change to the current position that had been reached in the competitive and growing market, it had found, in which prices and costs were increasing. The absence of any analysis of the questions of material injury, causation or how the non-injurious price was set consistently with the requirements of s 269TACA(a) give rise to the inference, that I draw, that the Minister had no good reason for making the declaration complained of so far as it affected Siam: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] - [40] per Gleeson CJ, Gummow and Heydon JJ.
Case: Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94
Outcome: cited
purpose of the anti-dumping measures, identified in s 269TG(2) is to address material injury and threatened material injury to the Australian industry producing like goods to those which are being sold at dumped prices in the Australian market, caused or likely to be caused by the dumping. That requires the decision-maker to have some objectively identified basis for concluding that the dumping has been, or is causing, or is threatening to cause, the relevant material injury after excluding the operation of any other cause of such injury or threat (s 269TAE(2A)). But, although a quantitative assessment is involved, the authorities have made clear that this is essentially a practical exercise and material injury to an industry may be identified even though precise quantification of the injury is not possible. What is material injury will depend on the circumstances of the particular case and may vary from industry to industry and from time to time: ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564 at 577-578 per Black CJ, Neaves and von Doussa JJ; see too Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144-145 per Lockhart J; Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94 at 115-116 [147] - [149] per Jacobson J and the authorities he collected there.
Case: SPP Nemo SA Comercial Exportadora v Minister of State for Small Business and Consumer Affairs [1998] FCA 1627
Outcome: followed
non-injurious price had to be calculated by reference to the question of material injury, an assessment of its extent and the establishment of the causal link between dumping and the injury: cp SPP Nemo SA Comercial Exportadora v Minister of State for Small Business and Consumer Affairs [1998] FCA 1627 per Drummond, North and Mansfield JJ (15 December 1998 unreported) at pp 23-24. Their Honours were there dealing with the provisions of the Act before amendments were made in 1998. Even so, I consider that the present statutory scheme, like its predecessor, required the decision-maker to consider the question of material injury in setting the non-injurious price and to give a reasoning process that justified the conclusions on both subjects (injury and price): cp SPP Nemo [1998] FCA 1627 at p 24. This is reinforced by s 269TACA(a) which required the setting of a non-injurious price for goods the subject of a notice under s 269TG(2) to be "the minimum price necessary ... to prevent the injury [or] the recurrence of the injury; ... referred to in ..." s 269TG(2)(b). The requirements of s 269TACA(a) remain constant (although the manner of addressing material injury may vary for the reasons I have explained above) whether the non-injurious price is that initially set when the notice is given under s 269TG(2), or is affected by a declaration under s 269ZDB(1)(a). I am of opinion that the present circumstances are similar to those in SPP Nemo [1998] FCA 1627 at pp 23-24 and that Report 134 did not provide any basis for the Minister to form any view on the issues of material injury or any causative effect of Siam's dumping on Qenos. The mathematical calculations contained in the confidential material proceeded upon the unfounded assumption that the non-injurious price had been fixed by reference to the earlier examination of the minimum level of pricing necessary to eliminate or prevent actual material injury to Qenos or its threat or recurrence. Mere price competition, by itself, even from dumped product, was insufficient because of s 269TAE(2A)(d). One purpose of price competition is to win customers from a competitor, as Gleeson CJ and Callinan J observed in Boral Besser Masonry Ltd v Australia Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 at 411 [86] - [87] , and, in that sense, a purpose of competitive conduct is to damage a competitor.
Case: Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135
Outcome: cited
purpose of the anti-dumping measures, identified in s 269TG(2) is to address material injury and threatened material injury to the Australian industry producing like goods to those which are being sold at dumped prices in the Australian market, caused or likely to be caused by the dumping. That requires the decision-maker to have some objectively identified basis for concluding that the dumping has been, or is causing, or is threatening to cause, the relevant material injury after excluding the operation of any other cause of such injury or threat (s 269TAE(2A)). But, although a quantitative assessment is involved, the authorities have made clear that this is essentially a practical exercise and material injury to an industry may be identified even though precise quantification of the injury is not possible. What is material injury will depend on the circumstances of the particular case and may vary from industry to industry and from time to time: ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564 at 577-578 per Black CJ, Neaves and von Doussa JJ; see too Swan Portland Cement Ltd v Minister for Small Business and Customs [1991] FCA 49 ; (1991) 28 FCR 135 at 144-145 per Lockhart J; Schaefer Waste Technology Sdn Bhd v Chief Executive Officer, Australian Customs Service [2006] FCA 1644 ; (2006) 156 FCR 94 at 115-116 [147] - [149] per Jacobson J and the authorities he collected there.
Case: SZJTQ v Minister for Immigration (2008) 172 FCR 563
Outcome: followed
the declaration is made under s 269ZDB(1), the Minister must consider, or have regard to, the most up to date information available. The Act requires the Minister to form a judgment about the current circumstances and future consequences of the importation of the relevant goods. This is so for the following reasons. First, the review is intended to consider the impact of changed circumstances in a market affected by the operation of a notice under s 269TG(2) (whether in its original or a varied form) (s 269SM(5)). That requires consideration of the current circumstances that formed the basis for the review identified by ss 269ZA(1)(b) and 269ZC(2)(b), namely a change in a variable factor or the current absence of justification for the Minister to take any relevant anti-dumping measure. Secondly, it is a general principle that an administrative decision-maker is required to make his or her decision on the most current material available to the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 44-45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-572 [27]-[32] where I discussed this principle. The test applied by the CEO and the Minister
Case: United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5)
Outcome: discussed
WTO Appellate Body decided that it is necessary for a decision-maker, on a review under Art 11.3 of the implementation agreement, to make a determination concerning injury (i.e. whether injury is being, has been or is threatened to be caused) based on positive evidence and on an objective examination of the same nature as Art 3.1 required: Oil Country Tubular Goods (AB-2004-4) at [284] see too at [177]-[181] and the WTO Appellate Body decision in United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) at [110]-[113]. Although those decisions concerned a sunset review, they were based on a consideration of Art 11 as a whole, that being the article governing all reviews. Divisions 5 and 6A of Pt XVB the Act express the Parliament's manner of giving effect to the review processes contemplated by Art 11 of the implementation agreement. Of course, the nature of the inquiry on a sunset review under s 269ZHB(1) in Div 6A can be affected by the more extensive time frame of at least nine months in which it may occur as compared with the more limited period of 110 or 155 days for a review under s 269ZC(7)(c) Div 5 of Pt XVB.