Footnotes

Chapter 1 - Introduction

[1]        The Hon. Brendan O'Connor MP, Minister for Home Affairs, House of Representatives Hansard, 2 March 2011, p. 2029.

[2]        Customs Amendment (Anti-Dumping) Bill 2011.

Chapter 2 - Australia's anti-dumping framework and the Siam decision

[1]        World Trade Organization, Anti-Dumping: Technical Information on Anti-Dumping, http://www.wto.org/english/tratop_e/adp_e/adp_info_e.htm, (accessed: 18 April 2011).

[2]        Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Part 1, Article 1, http://www.wto.org/english/docs_e/legal_e/legal_e.htm#antidump (accessed: 31 March 2011).

[3]        Government of South Australia, Submission 16 to the Senate Economics Legislation Committee's inquiry into Customs Amendment (Anti-Dumping) Bill 2011, p. 5.

[4]        Professor Martin Richardson, Submission 1 to the Senate Economics Legislation Committee's inquiry into Customs Amendment (Anti-Dumping) Bill 2011, p. 3.

[5]        Productivity Commission, Australia’s Anti-dumping and Countervailing System, Report no. 48, December 2009, p. 1.

[6]        Ms Suzanne Pitman, National Director, Trade and Compliance Division, Australian Customs and Border Protection Service, Proof Committee Hansard, 4 May 2011, p. 4.

[7]        Productivity Commission, Australia’s Anti-dumping and Countervailing System, Report no. 48, December 2009, p. 1.

[8]        World Trade Organization, 'Anti-dumping', http://www.wto.org/english/tratop_e/adp_e/adp_e.htm (accessed 23 May 2011).

[9]        World Trade Organization, 'A unique contribution', http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm (accessed 23 May 2011).

[10]      Mr Andrew Hudson, Law Institute of Victoria; Mr Andrew Percival, Law Council of Australia, Proof Committee Hansard, 4 May 2011, p. 24.

[11]      For more information regarding the various stages of the anti-dumping framework, see either this committee's report into the Customs Amendment (Anti-Dumping) Bill 2011; Productivity Commission, Australia’s Anti-dumping and Countervailing System, Report no. 48, December 2009; or Australian Customs and Border Protection Service, Dumping and Subsidy Manual, June 2009.

[12]      The discussion of reviews in this chapter is limited to reviews of measures imposed on or after 1 January 1993. Measures imposed before 1 January 1993 are reviewed using the provisions of section 269TAD of the Customs Act that were repealed in 1992 but remain in force under transitional arrangements. There is currently one such measure in force (Polyvinyl chloride homopolymer resin exported from the United States and Japan). Australian Customs and Border Protection Service, Dumping and Subsidy Manual, June 2009, p. 123; Australian Customs Dumping Notice No. 2011/19: Anti-dumping and countervailing measures—status report at 30 April 2011, p. 5.

[13]      The term 'affected party' is defined in Division 1 of Part XVB of the Customs Act to include exporters or importers of the goods subject to the dumping measure or like goods; a person representing, or representing a portion of, the Australian industry producing like goods; or the government of a country from which like goods have been exported to Australia.

[14]      See section 269ZDA of the Customs Act.

[15]      Australian Customs and Border Protection Service, Dumping and Subsidy Manual, June 2009, p. 124.

[16]      Ms Suzanne Pitman, National Director, Trade and Compliance Division, Australian Customs and Border Protection Service, Proof Committee Hansard, 4 May 2011, p. 4.

[17]      Dr Garry Jones, Planning and Development Manager, Australian Paper, Proof Committee Hansard, 4 May 2011, p. 38.

[18]      The submissions lodged by Dow and Siam, and Customs' assessment of them, are summarised in Australian Customs Service, Report No. 134: Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, May 2008, pp. 12-14.

[19]      Australian Customs Service, Report No. 134: Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, May 2008, p. 15.

[20]      Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86 (Graham and Flick JJ) [22].

[21]      Siam later sought judicial review of a related matter, namely the 27 August 2008 decision by the Minister to continue the imposition of the anti-dumping measures that were due to expire in December 2008. While the judge in the Federal Court agreed with Siam in [2009] FCA 838, the Full Court upheld the Government's appeal. As the bill relates to the matters considered in [2009] FCA 837 rather than the issue of continuation, this report does not consider this further.

[22]      Siam Polyethylene Co Ltd v Minister of State for Home Affairs [2009] FCA 837.

[23]      Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86.

[24]      Australian Customs Service, Report No. 134: Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, May 2008, p. 15.

[25]      Subsection 269TG(2) is the provision in Division 3 of the Customs Act that empowers the Minister to publish a dumping duty notice. The subsection reads as follows: Where the Minister is satisfied, as to goods of any kind, that: (a) the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and (b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

[26]      [2010] FCAFC 86 (Graham and Flick JJ) [60] (emphasis in original).

[27]      [2010] FCAFC 86 (Graham and Flick JJ) [66].

[28]      i.e. whether dumping by Siam had occurred that was causing or was threatening to cause material injury to Qenos that required new anti-dumping measures to be taken and, if so, what were the variable factors that should be adopted to address appropriately the injury.

[29]      [2009] FCA 837 [94], cited in [2010] FCAFC 86 (Graham and Flick JJ) [67].

[30]      [2009] FCA 837 [112], cited in [2010] FCAFC 86 (Graham and Flick JJ) [77].

[31]      [2010] FCAFC 86 (Graham and Flick JJ) [77] (emphasis in original).

[32]      Australian Industry Group, Submission 5, p. 1.

[33]      The Hon. Brendan O'Connor MP, Minister for Home Affairs, House of Representatives Hansard, 2 March 2011, p. 2029.

Chapter 3 - Views on the bill

[1]        Department of Agriculture, Fisheries and Forestry, Submission 1, p. 1.

[2]        Department of Agriculture, Fisheries and Forestry, Submission 1, p. 1.

[3]        Department of Agriculture, Fisheries and Forestry, Submission 1, p. 2.

[4]        Australian Workers' Union, Submission 2, p. 1.

[5]        Construction, Forestry, Mining and Energy Union, Submission 3, p. 1.

[6]        As noted in Chapter 1, the private senator's bill is being considered by the committee in a different inquiry, and the committee's findings and recommendations will consequently be published in a separate report. Consideration of the private senator's bill in this report will be limited to implications that may arise in the event that both bills are passed, a situation which is discussed in Chapter 4.

[7]        Australian Industry Group, Submission 5, p. 1.

[8]        Australian Food and Grocery Council, Submission 4, p. 2.

[9]        Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 4.

[10]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 1.

[11]      Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Part 1, Article 11.1.

[12]      United States—Anti-dumping duty on Dynamic Random Access Memory Semiconductors (DRAMS) of one megabit or above from Korea, WT/DS99/R (29 January 1999).

[13]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 2.

[14]      Mexico—Definitive Anti-Dumping Measures on Beef and Rice, WT/DS295/AB/R, (29 November 2005); cited in Law Council of Australia and Law Institute of Victoria, Submission 6, p. 2.

[15]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 3.

[16]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 3.

[17]      JELD-WEN Australia, Submission 7, p. 2.

[18]      JELD-WEN Australia, Submission 7, p. 3.

[19]      JELD-WEN Australia, Submission 7, p. 2.

[20]      JELD-WEN Australia, Submission 7, p. 1.

[21]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 4.

[22]      The CFMEU's submission suggests a list of guiding principles upon which further reform of the anti-dumping system should be based. Construction, Forestry, Mining and Energy Union, Submission 3, pp. 1-2.

[23]      Law Council of Australia and Law Institute of Victoria, Submission 6, p. 4.

[24]      The Hon. Brendan O'Connor MP, Minister for Home Affairs, 'Progress update on consideration of anti-dumping laws', Media release, 5 May 2011, http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/MediaReleases_2011_SecondQuarter_5May2011-Progressupdateonconsiderationofanti-dumpinglaws (accessed 11 May 2011).

Chapter 4 - Provisions of the bill

[1]        The Hon. Brendan O'Connor MP, Minister for Home Affairs, House of Representatives Hansard, 2 March 2011, p. 2029.

[2]        Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 7.

[3]        Minister of State for Home Affairs v Siam Polyethylene Co Ltd [2010] FCAFC 86 (Bennet J) [5].

[4]        Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 11.

[5]        JELD-WEN Australia, Submission 7, pp. 2, 3.

[6]        JELD-WEN Australia, Submission 7, p. 2.

[7]        Law Council of Australia and Law Institute of Victoria, Submission 6, p. 3.

[8]        Law Council of Australia and Law Institute of Victoria, Submission 6, p. 4.

[9]        Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 8.

[10]      Australian Customs and Border Protection Service, Dumping and Subsidy Manual, June 2009, p. 124.

[11]      Australian Customs and Border Protection Service, Dumping and Subsidy Manual, June 2009, p. 124.

[12]      Australian Customs Service, Report No. 134: Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, May 2008, p. 13.

[13]      Australian Customs Service, Report No. 134: Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, May 2008, p. 15.

[14]      Subsection 269ZD(3) states: 'The CEO is not obliged to have regard to any submissions relating generally to the review that are received by Customs after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the CEO’s opinion, prevent the timely placement of the statement of essential facts on the public record'.

[15]      In cases where the measures involved the acceptance by the Minister of an undertaking, the CEO must recommend that the person who gave the undertaking be released from it.

[16]      Explanatory Memorandum, Customs Amendment (Anti-Dumping Measures Bill 2011, p. 10.

[17]      See subsection 269ZHF(2) of the Customs Act.

[18]      Article 21 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) replicates the provisions of Article 11 of the AD Agreement for countervailing measures.

[19]      JELD-WEN Australia, Submission 7, p. 3.

[20]      United States—Anti-dumping duty on Dynamic Random Access Memory Semiconductors (DRAMS) of one megabit or above from Korea, WT/DS99/R (29 January 1999), [6.39].

[21]      United States—Anti-dumping duty on Dynamic Random Access Memory Semiconductors (DRAMS) of one megabit or above from Korea, WT/DS99/R (29 January 1999), [6.26]-[6.28]. At footnote 501 the Panel also found '...that, by virtue of note 9 of the AD Agreement, the term "injury" in Article 11.2 "shall be interpreted in accordance with the provisions of" Article 3. Article 3.5 of the AD Agreement requires the establishment of a causal link between the dumped imports and the injury found to exist.  Thus, we consider that the Article 11.2 examination of "whether the injury would be likely to continue or recur if the duty were removed or varied" may also involve an examination of whether any injury that is found to be likely to continue or recur is caused by dumped imports.  We can envisage circumstances, however, when an Article 11.2 injury review need not necessarily include an examination of causal link'.

[22]      See United States—Anti-dumping duty on Dynamic Random Access Memory Semiconductors (DRAMS) of one megabit or above from Korea, WT/DS99/R (29 January 1999) [6.31].

[23]      United States—Anti-dumping duty on Dynamic Random Access Memory Semiconductors (DRAMS) of one megabit or above from Korea, WT/DS99/R (29 January 1999), footnote 494.