Case: ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120 ; (1992) 34 FCR 564
Outcome: applied
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. I am of opinion that the consideration of the essential matters of material injury, threat recurrence and causation had to be considered on a review in order to determine, among other things, how to set a non-injurious price, whether or not an affected person argued for revocation. Where the Australian industry has suffered, or is likely to suffer, detriment from a number of causes, the Minister must first quantitatively (but as part of a practical exercise), separate the detriment caused or threatened by factors other than the dumping of the exported goods. Only then can the Minister determine whether he or she is satisfied that the dumping itself has caused, is causing or is threatening to cause material injury to the Australian industry: ICI Australia 34 FCR at 572, 576, 577-578 per Black CJ, Neaves and von Doussa JJ. The absence of a reasoned explanation of how the Minister was entitled to change the variable factors, including the non-injurious price, relating to exports of the product to Australia by Siam was not addressed by the respondents' argument. The selection of the figures for these variable factors in the confidential sections of Report 134 had not been explained. Rather those figures were mere assertions that appeared to be contrary to the express findings in the Report of the operation of the market and the increasing strength of Qenos. The aim of Art 11.1 of the implementation agreement is to ensure that anti-dumping duty "... shall remain in force only so long as and to the extent necessary to counteract dumping which is causing injury". That aim is reflected in s 269TACA(a)'s requirements for setting a non-injurious price. The necessity for such a price to be set for Siam at the level it was by the Minister's declaration was not explained in the Report.