Chapter 9
Other issues
Review by the Administrative Appeals Tribunal
9.1
Item 47 of the bill inserts a paragraph under subsection 273GA(1) of the
Act that allows that a decision of the CEO, the Minister or the Review Officer
may be appealed to the Administrative Appeals Tribunal (the Tribunal) for
review.
9.2
While Moulis Legal did not consider the logistics and mechanics of this
provision in its submission, it saw merit in its consideration as it would
result in Australia becoming more compliant with its WTO obligations. It
considered that 'the TMRO...can not be seen to be independent of the
authorities responsible for the determinations that the TMRO is called upon to
review'.[1]
9.3
Some submitters argued that adding another 'layer' of review was
'unnecessary' and would result in inefficiencies:
...would the Administrative Tribunal review decisions
currently reviewable by the Trade Measures Review Officer and, if so, what role
would the Trade Measures Review Officer have? Further, reviews by the Trade
Measures Review Officer are required to be undertaken in a very short space of
time, namely, 60 days. Reviews of decisions by the Administrative Appeals
Tribunal can take well over 12 months and involve considerable expense for all
parties. The LCA and LIV are concerned that this proposed amendment does not
lend itself to an efficient review of decisions in anti-dumping and
countervailing duty investigations.[2]
9.4
For some, such as the Australian Industry Group (AIG), the issue was not
that the appeals process was not working, but rather, it reflected resourcing
constraints at TMRO and Customs, something it believed should be rectified by
improving resources.[3]
9.5
CSR Limited also argued against the amendment, noting that:
The TRMO [sic] currently examines any filings in the
conclusion drawn by Customs based on the evidence before them. There is no
provision for TRMO [sic] to investigate the case. TMRO is in effect
substituting for the AAT. Introducing a further appeals body adds uncertainty
to the process and may result in less rigour. CSR does not support these
amendments.[4]
9.6
In the opinion of JELD-WEN, rather than complicate what is already a
lengthy process, the review process should be simplified as it currently leads
to differing advice given to the Minister by the TMRO and Customs. It argues
for the implementation of the Productivity Commission's recommendation to
remove the restriction that TMRO refer a matter back to Customs for re-consideration
if it disagrees with its conclusions, and instead, legislate that the TMRO's
decision is binding. Otherwise, an alternative could be to follow more closely
the appellate system established under income tax law.[5]
Committee view
9.7
One of the key issues raised by submitters was the prohibitive costs
associated with Australia's anti-dumping and countervailing system. The
committee believes that introducing a further layer of review would prolong the
period of uncertainty and increase the costs to all users of the system,
including domestic producers, importers and exporters. The Tribunal would also
not necessarily have the same level of expertise and understanding of the
issues which face the domestic industries and the global factors that give rise
to dumping/countervailing investigations, which may lengthen the process of
review even further.
9.8
The committee notes the view of some submitters that this issue could
partially be solved by making the TMRO's decisions binding as it would reduce
the subsequent workload of Customs, and enhance the function of the review
process of Australia's anti-dumping and countervailing system. The committee
considers, however, that this would be a fundamental change to the role of the
TMRO, as it would likely require the TMRO to have an investigative function.
9.9
Instead, the committee considers that the issue is more likely to be a
result of a rise in anti-dumping applications over the past few financial years
that has not been offset by an increase in resourcing or an expansion in the
statutory constraints on review timeframes (currently restricted to 60 days)
allowed for the TMRO to complete his or her determination.
9.10
Consequently, the committee does not support this amendment.
9.11
Under this amendment, the Minister must cause an independent review of
the first two years after the amendments have taken place. The panel must
consist of at least three persons with appropriate qualifications and/or
substantial experience or knowledge in international trade and foreign affairs
or economics, and cannot include a currently serving Customs officer.[6]
9.12
A requirement for an independent review of the amendments was met with
lukewarm reaction by submitters. As CSR Limited noted in its submission:
The effort that goes into a Customs review is substantial and
lengthy. The current review cycle is still incomplete. There would seem little
point in a review in two years and we see no requirement for this to be
legislated.[7]
Committee view
9.13
The committee notes it does not support the majority of amendments
proposed by this bill. If the committee's recommendations regarding the
provisions of the bill are supported by the Senate, the need for a legislative
requirement that an independent review of the amended Part of the Act be
conducted is less apparent.
9.14
In the event that a substantial number of the proposed amendments are
passed by the Senate, while there are merits in ensuring that the changes to
the system introduced by the bill are achieving their objective, a two year
time period may not be adequate for the full implication of the changes to be
assessed. A longer timeframe may be necessary.
Recommendation 11
9.15 The committee recommends that the Senate reject item 47 and clause 4.
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