Case: Pilkington (Australia) Ltd v Minister of State for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92
Outcome: followed
The Act provides for a multi-staged fact finding and decision-making process which is intended to treat all interested parties fairly, giving them an opportunity to comment on facts proposed to be relied upon by the CEO as the basis for his or her recommendation to the Minister; Pilkington (Australia) Ltd v Minister of State for Justice and Customs [2002] FCAFC 423 ; (2002) 127 FCR 92 at [56] . 6 One of the steps in the process is for the CEO to place on public record a statement of essential facts, usually described by the acronym "SEF". The SEF is to contain a statement of the facts on which the CEO proposes to base a recommendation to the Minister as to whether or not to impose duties; see s 269TDAA. 7 A further step in the process is for the CEO, after holding an investigation into the application, to report to the Minister. The report is to recommend, amongst other things, whether the Minister ought to be satisfied as to the necessary matters before publishing a dumping notice; s 269TEA. 23 The provisions of Part XVB were fully explained in Pilkington at [29]-[75]. I will not repeat what was said but I will endeavour to summarise or set out the provisions salient to these proceedings. Amendments made to the Act since 2002 are not material for present purposes. 24 Divisions 1, 2 and 3 of Part XVB deal with the preliminary and procedural matters leading to a decision by the Minister whether to publish a dumping duty notice; s 269SM(3). 25 An investigation about dumping may be initiated by an application lodged with Customs under s 269TB. 29 The Act lays down tight time-frames within which the process prescribed in Divs 1 and 2 of Part XVB is to move forward; Pilkington at [43]. 30 Within 20 days after Customs receives an application under s 269TB(1), the CEO must examine it and must reject it if not satisfied of the matters stated in s 269TC(1) and (2). 31 If the CEO decides not to reject an application within that period, he or she must give public notice of acceptance of the application; s 269TC(4). 42 Section 269ZJ of the Act gives effect to Australia's obligations under agreements negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). The agreements provided for a formalisation and expansion of the public file system to give interested parties an opportunity to comment on information available to investigating authorities; Pilkington at [22]. Section 269ZJ provides, relevantly: Section 269ZJ CEO to maintain public record for certain purposes (1) The CEO must, in relation to each application received under section 269TB that leads to an investigation, each application or request under section 269ZA that leads to a review and each application under section 269ZHB that leads to an inquiry: (a) maintain a public record of the investigation, review or inquiry conducted for the purposes of the application or request, containing, subject to subsection (2), a copy of all submissions from interested parties, the statement of essential facts compiled in respect of that investigation, review or inquiry, and a copy of all relevant correspondence between the CEO and other persons; and (b) draw the attention of all interested parties to the existence of the public record, and to their entitlement to inspect that record; and (c) at the request of an interested party, make the record available to that party for inspection. (2) To the extent that information given to the CEO by a person is claimed to be confidential or to be information whose publication would adversely affect a person's business or commercial interests, the person giving that information must ensure that a summary of that information: (a) that contains sufficient detail to allow a reasonable understanding of the substance of the information; but (b) that does not breach that confidentiality or adversely affect those interests; is given to the CEO for inclusion in the public record. (3) A person is not required to give the CEO a summary of information under subsection (2) for inclusion in the public record if the person satisfies the CEO that there is no way such a summary can be given to allow a reasonable understanding of the substance of the information. (4) If oral information is given to the CEO by a person, the CEO must not take that information into account unless it is subsequently put in writing by the person or by the CEO and thereby becomes available, subject to considerations of confidentiality and to the need to protect business and commercial interests, as a part of the public record. [...] 43 The purpose, background and proper approach to construction of Part XVB were explained in Pilkington at [19]-[28]. I will summarise the essential points. 44 Part XVB reflects, in substance, amendments to the Act made by legislation passed in 1994 and 1998. I will not repeat the titles of those enactments; Pilkington at [22]. 45 The provisions of the implementation agreement negotiated in the Uruguay Round of the GATT were summarised in Pilkington at [22]. Article VI of that Agreement appears to be the genesis of s 269ZJ of the Act. It provides, inter alia , that, subject to the requirement to protect confidential information, evidence presented in writing by an interested party should be made available promptly to other interested parties. 46 Article VI also provides that oral information is to be taken into account by the authorities only insofar as it is subsequently reproduced in writing and made available to other interested parties. 47 The Second Reading Speech of the Bill, which became the 1998 Act, included a statement set out in Pilkington at [23]. This was that, "throughout an investigation all interested parties must have a full opportunity to see all relevant information, to acquaint themselves with opposing views and to offer rebuttal arguments". 48 The provisions of Part XVB are to be interpreted and applied, as far as the language permits, in accordance with Australia's international obligations; Pilkington at [25]. 49 A broad approach to construction is to be adopted; Pilkington at [26]-[27]. 50 Over a period of about 15 months ending in July 2005, Schaefer won five large Australian contracts for the supply of MGBs. These were with local councils or their contractors as follows: &#8226; Ku-ring-gai Collex Pty Limited &#8226; Canterbury City Council &#8226; Bega Valley Watts Waste &#8226; Eurobodalla Staples Waste Removals Pty Limited &#8226; Coffs Coast SMS Municipal Services Pty Limited (which uses Handybin Waste Services (Coffs Harbour) Pty Limited, a related company, to supply waste services) 51 On 23 September 2005 Nylex Limited and Sulo MGB Australia Pty Limited lodged an application under s 269TB(1) of the Act requesting the Minister to publish a dumping notice. 133 Two things underlie the legislative scheme. The first is a high level of transparency, with opportunities for interested parties to comment and tender evidence at each relevant stage of the process; see Pilkington at [56]. The second is the formalisation and expansion of the public file system which was intended to make available to interested parties the material which would enable them to defend their interests; see Pilkington at [22]-[23]. 134 These objectives are reflected in particular in ss 269TC(4), 269TDAA(2), 269TEA(3) and 269ZJ(1)-(4). 135 Moreover, s 269TDAA(1) makes it plain that the statement of essential facts is not a report to the Minister upon which the Minister is to make his or her decision. Rather, it is a document which the CEO must place on the public record for the benefit of interested parties. 181 It is true that the apparent purpose of s 269ZJ is to give effect to the policy of transparency which underlies the statutory scheme in Part XVB of the Act. Thus, the CEO's recommendation should ordinarily to be made only by reference to that which is available on the public record. This enables interested parties to defend their interests; see Article VI of the Implementation Agreement for the Uruguay Round of GATT; see also Pilkington at [22], [23] and [28]. 182 However, I do not accept Dr Flick's submission as to the proper construction of s 269ZJ(4). The flaw in his argument is that it fails to take into account the provisions of s 269ZJ(2) and (3) which make special provision for the inclusion of some details of the confidential information to be placed on the public record. 183 Section 269ZJ(2) provides that a person giving information to the CEO that is claimed to be confidential must ensure that a summary of that information is given to the CEO for inclusion in the public record. The summary must contain sufficient detail to allow a reasonable understanding of the substance of the information and is to be given in a way that does not breach confidentiality. 283 I agree with the submission of the respondents that most of the changes between the SEF and the Trade Measures Report were as a result of considering and responding to the applicant's post-SEF submissions. There is no obligation on the Minister to provide a copy of the Trade Measures Report before making any decision to impose dumping duties, nor to consider any material outside the Report; see Pilkington at [126].