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AUSTRALIAN ANTI-DUMPING SYSTEM REVIEW: PROGRESS BUT STILL UNCERTAINTY - BY ROSS BECROFT

With the new Federal Labor Government in power, it remains to be seen whether there will be wholesale changes to Australia’s Anti-Dumping Laws.  The follow represents some of the recent history in this ongoing debate.

In 2006, the then Australian Minister for Customs, in conjunction with the Minister for Industry, launched a review of the current Anti-Dumping system in Australia. A Joint-Study Group was set up with the Terms of Reference to examine the administrative procedures during investigations, access to the system, screening of applications, levels of information required and the monitoring by Customs of outcomes. Many public submissions were received and are available from the Customs Department website.

The Joint Study Group issued a report to the Ministers in August of 2006 following consultations with various users of the system (many of whom supplied submissions). Some of the main complaints of users were:

• The difficulty of smaller companies or interest groups accessing the anti-dumping system;
• The large amount of information required in order to initiate a dumping complaint;
• Difficulties in obtaining information on Normal Values and general import data; and
• The complexity and cost of using the system.

Given the need for concrete evidence to prove a complaint or defend findings of an investigation, local manufacturers frequently find that the ‘gap' in their case is sufficient information on normal selling prices in the domestic market in the country of export (normal value).

By contrast, importers are often seeking information on whether the local manufacturer is in fact suffering material injury as a result of the alleged dumping. In these areas, it was suggested in some submissions that Australian Customs should take on a more proactive role in assisting the parties to access relevant information.

However, the Report issued by the Joint Study Group did not go that far. Rather, Customs has agreed that it will issue guidelines, particularly on the establishment of normal value. It was noted that if domestic prices are not available then other methods, such as looking at sales to comparable third countries, may be used.

Overall, the Howard Government agreed to implement the majority of the changes recommended in the Joint Study Report. The then Federal Labor opposition issued a discussion paper at the end of 2006 in which listed major changes that would be made to the system if they were elected in November 2007. One such change is the suggestion that applicants take their complaint to an independent tribunal, rather than Customs directly examining matters administratively.  This would be more akin to the American style of administrative law, where many governmental decisions are dealt with through judicial like processes.

At this stage, we are not aware of the new Federal Government’s intentions regarding changes to Anti-Dumping Laws.  Certainly Anti-Dumping Laws are particularly relevant to the renewed Australia-China Free Trade Agreement Negotiations, where there is likely to be much pressure from Australian Companies for significant trade protection against Chinese manufactured products.

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