Judgment Template

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FEDERAL COURT OF AUSTRALIA

Panasia Aluminium (China) Limited v Attorney-General of the Commonwealth [2013] FCA 870

Citation:

Panasia Aluminium (China) Limited v Attorney-General of the Commonwealth [2013] FCA 870

Parties:

PANASIA ALUMINIUM (CHINA) LIMITED and OPAL (MACAO COMMERCIAL OFFSHORE) LIMITED v ATTORNEY-GENERAL OF THE COMMONWEALTH and CAPRAL LIMITED (INTERVENER)

File number:

NSD 1653 of 2011

Parties:

TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO LIMITED and KAM KIU ALUMINIUM PRODUCTS SDN BHD and KAM KIU (AUSTRALIA) PTY LIMITED v ATTORNEY-GENERAL OF THE COMMONWEALTH and TRADE MEASURES REVIEW OFFICER and CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE and CAPRAL LIMITED (INTERVENER)

File number:

NSD 1869 of 2011

Judge:

NICHOLAS J

Date of judgment:

30 August 2013

Catchwords:

ADMINISTRATIVE LAW Part XVB Customs Act 1901 (Cth) (Act) anti-dumping measures countervailable subsidy aluminium extrusions exported from China to Australia by State-owned suppliers whether supplier public body within the meaning of that term as used in definition of subsidy consideration of Agreement on Subsidies and Countervailing Measures (SCM Agreement) whether decision-maker misinterpreted or misapplied definition of public body as used in Act whether decision-maker misinterpreted or misapplied World Trade Organization (WTO) Appellate Body jurisprudence on meaning of public body in SCM Agreement.

ADMINISTRATIVE LAW Part XVB of Act anti-dumping measures where goods under consideration (GUC) consist of range of aluminium extrusions having different finishes where decision-maker makes declarations pursuant to subss269TG(1) and (2) and subss269TJ(1) and (2) in respect of GUC whether open to decision-maker to specify different variable factors in respect of different types of GUC pursuant to subs269TG(3) and subs269TJ(11) consideration of statutory scheme in relation to determination of dumping margins applicability of subs33(3A) of Acts Interpretation Act 1901 (Cth) to ss269TG and 269TJ imposition of anti-dumping measures on consolidated or differentiated basis whether imposition on differentiated basis permissible relevance of WTO agreements General Agreement on Tariffs and Trade 1994 Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 consideration of WTO Appellate Body jurisprudence on zeroing.

ADMINISTRATIVE LAW Part XVB of Act public notices published pursuant to subss269ZZI(2) and 269ZZL(2)(b) consequences of non-compliance with subss269ZZI(2) or 269ZZL(2)(b) whether any review by TMRO or reinvestigation by CEO or subsequent decision by Minister under s269ZZM liable to be set aside due to such non-compliance whether non-compliance gave rise to denial of procedural fairness.

ADMINISTRATIVE LAW Part XVB of Act words and phrases normal value export price non-injurious price dumping margin like goods competitive market costs for less than adequate remuneration.

Legislation:

Acts Interpretation Act 1901 (Cth), s33

Administrative Decisions (Judicial Review) Act 1977 (Cth), s11

Customs Act 1901 (Cth), ss 269T, 269TAAC, 269TAAD, 269TAA, 269TAB, 269TAC, 269TACA, 269TACB, 269TACC, 269TAE, 269TAF, 269TB, 269TEA, 269TG, 269TJ, 269TL, 269ZZI, 269ZZK, 269ZZL, 269ZZM

Customs Regulations 1926 (Cth), reg 180

Customs Tariff (Anti-Dumping) Act 1975 (Cth) ss8, 10

Trade Practices Act 1975 (Cth), s46

Cases cited:

Al Abdullatif Industrial Group Co Ltd v Minister for Justice and Customs [2000] FCA 758

Australian Finance Direct Limited v Director of Consumer Affairs Victoria (2007) 234 CLR 96

Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Queensland Cooperative Milling Association Ltd;

Re Defiance Holdings Ltd (1976) 25 FLR 169

Seven Network Ltd v News Ltd (2009) 182 FCR 160

Date of hearing:

14 and 15 May 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

176

Counsel for the Applicants in Proceeding NSD 1653 of 2011:

Mr N Williams SC and Mr M Izzo

Solicitor for the Applicants in Proceeding NSD 1653 of 2011:

Minter Ellison

Counsel for the Applicants in Proceeding NSD 1869 of 2011:

Mr MR Speakman SC and Mr JD Smith

Solicitor for the Applicants in Proceeding NSD 1869 of 2011:

Corrs Chambers Westgarth

Counsel for the Respondents:

Mr G Kennett SC and Mr D Thomas

Solicitor for the Respondents:

Australian Government Solicitor

Counsel for the Intervener:

Mr SB Lloyd SC and Ms AM Mitchelmore

Solicitor for the Intervener:

Clayton Utz

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1653 of 2011

BETWEEN:

PANASIA ALUMINIUM (CHINA) LIMITED

First Applicant

OPAL (MACAO COMMERCIAL OFFSHORE) LIMITED

Second Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

AND:

CAPRAL LIMITED

Intervener

JUDGE:

NICHOLAS J

DATE OF ORDER:

30 august 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Within 7 days the applicants are to file and serve a draft minute of the orders they contend should be made having regard to these reasons for judgment and, in particular, their success in relation to Issue G2.

2. The proceeding stand over to a date to be fixed for further hearing concerning the appropriate form of orders including as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1869 of 2011

BETWEEN:

TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO LIMITED

First Applicant

KAM KIU ALUMINIUM PRODUCTS SDN BHD

Second Applicant

KAM KIU (AUSTRALIA) PTY LIMITED

Third Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

First Respondent

TRADE MEASURES REVIEW OFFICER

Second Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE

Third Respondent

AND:

CAPRAL LIMITED

Intervener

JUDGE:

NICHOLAS J

DATE OF ORDER:

30 august 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Within 7 days the applicants are to file and serve a draft minute of the orders they contend should be made having regard to these reasons for judgment and, in particular, their success in relation to Issue G2.

2. The proceeding stand over to a date to be fixed for further hearing concerning the appropriate form of orders including as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1653 of 2011

BETWEEN:

PANASIA ALUMINIUM (CHINA) LIMITED

First Applicant

OPAL (MACAO COMMERCIAL OFFSHORE) LIMITED

Second Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

and:

CAPRAL LIMITED

Intervener

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1869 of 2011

BETWEEN:

TAI SHAN CITY KAM KIU ALUMINIUM EXTRUSION CO LIMITED

First Applicant

KAM KIU ALUMINIUM PRODUCTS SDN BHD

Second Applicant

KAM KIU (AUSTRALIA) PTY LIMITED

Third Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

First Respondent

TRADE MEASURES REVIEW OFFICER

Second Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS AND BORDER PROTECTION SERVICE

Third Respondent

AND:

CAPRAL LIMITED

Intervener

JUDGE:

NICHOLAS J

DATE:

30 august 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

There are two proceedings before me which have been heard together. The applicants in each proceeding challenge the validity of various decisions made by the Attorney-General of the Commonwealth (the Attorney) and other officers of the Commonwealth under the provisions of Part XVB of the Customs Act 1901 (Cth) (the Act).

The first proceeding is brought by Panasia Aluminium (China) Limited and a related company (collectively referred to as Panasia) against the Attorney.

The second proceeding is brought by Tai Shan City Kam Kiu Aluminium Extrusion Co Limited and two related companies (collectively Kam Kiu) against the Attorney, the Trade Measures Review Officer (theTMRO) and the Chief Executive Officer of the Australian Customs and Border Protection Service (the CEO).

The decisions the subject of both proceedings relate to the alleged dumping of goods consisting of aluminium extrusions with a variety of finishes exported to Australia from the Peoples Republic of China (China) and anti-dumping measures taken with respect to such goods.

The relief sought by Panasia and Kam Kiu include orders setting aside a decision of the Attorney made on 23 August 2011 pursuant to s269ZZM of the Act. By that decision the Attorney affirmed his earlier decision of 21 October 2010 (published on 28 October 2010) to publish dumping and countervailing duty notices, but also varied those notices in some significant respects.

Capral Ltd (Capral) is a company that carries on business in Australia manufacturing and supplying aluminium extrusions. Capral was granted leave to intervene in both proceedings. It appeared at the hearing, and made oral and written submissions which, for the most part, adopted those made by the respondents.

LEGISLATIVE BACKGROUND

There are a number of interrelated international agreements by which Australia, a member of the World Trade Organization (WTO), is bound that are referred to in Part XVB of the Act. These are:

the World Trade Organization Agreement establishing the World Trade Organization done at Marrakesh on 15 April 1994 (the WTO Agreement);

the General Agreement on Tariffs and Trade 1994 (GATT 1994);

the Agreement on Subsidies and Countervailing Measures (the SCM Agreement);

the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement).

As will be seen, various arguments presented in these proceedings drew for support from decisions of the WTO Appellate Body concerned with the interpretation of both the SCM Agreement and the Anti-Dumping Agreement.

There were significant amendments made to Pt XVB of the Act in 1994 and 1998 to bring Australias laws with respect to dumping into conformity with Australias international obligations under GATT 1994, the SCM Agreement and the Anti-Dumping Agreement. The legislative background to these changes is discussed in some detail by the Full Court in Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92 (Mansfield, Conti and Allsop JJ) at [19]-[28] and I will not repeat that discussion here.

The provisions of PtXVB of the Act are technical and complex. They must be interpreted in accordance with the settled principles of statutory construction. As always, the interpretative task begins with a consideration of the terms of the relevant legislation (Australian Finance Direct Limited v Director of Consumer Affairs Victoria (2007) 234 CLR 96 at [34] per Kirby J). Recourse to the international agreements will only be of assistance in resolving the questions of construction in this case where the relevant provisions are ambiguous, and where the international agreements may assist in resolving the ambiguity (see, for example, ChuKheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and DeaneJ).

Nevertheless, to better understand some of the basic concepts and principles upon which PtXVB is based it is useful to refer to some of the key provisions of the relevant international agreements.

Article VI(1)-(2) of GATT 1994 provides:

(1)The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. For the purposes of this Article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to another

(a)is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or,

(b)in the absence of such domestic price, is less than either

(i)the highest comparable price for the like product for export to any third country in the ordinary course of trade, or

(ii)the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.

Due allowance shall be made in each case for differences in conditions and terms of sale, for differences in taxation, and for other differences affecting price comparability.*

(2)In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this Article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1.*

[The asterisks call up supplementary provisions which may be ignored for present purposes.]

As is apparent from ArtVI(1), there are two principal elements to dumping. First, the products of one country must be introduced into another country at less than normal value. Secondly, the introduction of such products at less than normal value must cause or threaten material injury to a domestic industry or retard the development of such an industry. So far as the latter element is concerned, ArtVI(6)(a) of GATT 1994 provides:

No contracting party shall levy any anti-dumping or countervailing duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping or subsidization, as the case may be, is such as to cause or threaten material injury to an established domestic industry, or is such as to retard materially the establishment of a domestic industry.

The Anti-Dumping Agreement specifies in greater detail the circumstances in which an anti-dumping measure may be applied. Article 2.1 provides:

For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.

Article 2.4 provides [a] fair comparison shall be made between the export price and the normal value and also explains how such a comparison should be undertaken. Article 2.6 defines like product as follows:

Throughout this Agreement the term like product (produit similaire) shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

Article 9.1 provides:

The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry.

Article 9.3 then provides (inter alia) that [t]he amount of anti-dumping duty shall not exceed the margin of dumping as established under Article 2.

Part XVB of the Act contains an elaborate set of provisions which regulate the imposition of dumping duties including various provisions concerned with the determination of export price (s269TAB), normal value (s269TAC), the non-injurious price of goods (s269TACA) (these being the three values referred to in the Act as the variable factors) and dumping margins (s269TACB). Other provisions of Part XVB of the Act that may be relevant for the purposes of determining the variable factors and, ultimately, dumping margins, include s269TAAD (ordinary course of trade) and s269TAA (arms length transactions).

Section 269TACB is a central provision which establishes how the variable factors, once ascertained in accordance with other relevant provisions of the Act, are to be used in determining whether dumping has occurred. Section269TG is the provision of the Act that permits the Minister to impose dumping duty by the publication of a dumping duty notice if dumping has occurred. However, the circumstances in which the Minister may impose dumping duty are closely confined by the terms of the section and related provisions including, in particular, s269TAE (material injury to industry).

Turning to countervailing subsidies, ArtVI(3) of GATT 1994 provides:

No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term countervailing duty shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise.*

The SCM Agreement contains more detailed provisions regulating the imposition of countervailing duties. Article 1 of the SCM Agreement provides that a subsidy shall be deemed to exist in various situations including, most relevantly, if there is a financial contribution by a government or any public body within the territory of a [WTO] Member and a benefit is thereby conferred.

The word subsidy is defined in s269T of the Act and the expression countervailable subsidy in s269TAAC. I will say more about these definitions and related provisions later in these reasons when considering the specific issues which arise for determination.

Section 269TJ permits the Minister to impose countervailable duty where he or she is satisfied that a countervailable subsidy has been received and, because of that, material injury to an Australian industry producing like goods has been caused or is threatened or the establishment of an Australian industry producing such goods has been or may be materially hindered. The Minister does this by the publication of a countervailing duty notice.

FACTUAL BACKGROUND

On 11 May 2009 Capral lodged an application under s269TB of the Act requesting that dumping duty and countervailing duty notices be published in respect of certain aluminium extrusions exported to Australia from China. In response, the Australian Customs and Border Protection Service (Customs) undertook an investigation that culminated in the provision by the CEO to the Attorney of a report entitled Report to the Minister No148 Certain aluminium extrusions exported to Australia from the Peoples Republic of China (Report148). The investigation period was from 1 July 2008 to 30 June 2009.

In Report148, the CEO recommended that the Attorney impose dumping duty and countervailing duty on certain aluminium extrusions exported from China to Australia. The CEOs recommendations were accepted by the Attorney. On 28October 2010, the Attorney published dumping duty notices under subss269TG(1) and (2) of the Act, and countervailing duty notices under subss269TJ(1) and (2) of the Act.

A number of applications were made to the TMRO for a review of certain findings contained in Report148 upon which the Attorney based his decision to publish the 28October 2010 notices. The TMRO (also referred to in relevant provisions of the Act as the Review Officer) is the person from time to time holding the office of Trade Measures Review Officer established under Div8 of PtXVB of the Act. Under Div9 of Part XVB, the TMRO is authorised to undertake a review of certain ministerial decisions. Pursuant to subs269ZZI(1), the TMRO must publish a notice indicating that he or she proposes to conduct a review. The notice must (inter alia) describe the goods under review, the ground for seeking the review and invite submissions from interested parties. On 20 December 2010, the TMRO published a notice (the First Notice) indicating that he proposed to conduct a review of the Attorneys decision to publish dumping duty and countervailing duty notices.

After conducting the review, the TMRO may recommend, pursuant to subs269ZZK(1), that the Minister affirm the reviewable decision, or recommend that the Minister direct the CEO to reinvestigate a finding or findings that formed the basis of the reviewable decision. In a report dated 18 April 2011 (the TMRO Report) the TMRO recommended that the Attorney direct the CEO to reinvestigate certain matters the subject of Report148. On 16 May 2011, the Attorney published a notice (the Second Notice) stating that he had accepted the recommendations made by the TMRO and had requested that the CEO reinvestigate certain findings made in Report 148. On 15 August 2011 the CEO published a further report entitled Report175 Reinvestigation of certain findings in Report No148 (Report175).

The Attorney accepted the recommendations contained in Report175, and on 27August 2011 published a notice that affirmed his 28October 2010 decision to publish dumping duty and countervailing duty notices but which also varied the 28 October 2010 notices so that, among other things, they were taken to have effect as if different variable factors had been used in the calculation of duty on different finishes of aluminium extrusions. Whether or not it was open to the Attorney to vary the notices in this particular way is a key issue in the proceedings.

THE AGREED STATEMENT OF ISSUES

There are numerous issues raised in the proceedings. They are identified in the agreed statement of issues upon which argument at the hearing focused and which provides the frame of reference for these reasons for judgment.

The agreed statement of issues, in its final form, raises the following issues:

A.Normal Value

1.Whether the Attorney erred in applying the phrase competitive market costs in reg180(2)(b)(ii) of the Customs Regulations 1926 (Cth) (the Regulations).

2.Whether the respondent misapplied s269TAC by including a profit component in the constructed normal value for certain domestic finishes.

B.Subsidy

1.Whether the Attorney erred in construing or applying the phrase public body in s269T of the Act.

2.Whether the Attorney erred in construing or applying:

(a)the phrase for less than adequate remuneration in subs269TACC(4)(d); or

(b)the phrase prevailing market conditions in subs269TACC(5);

in finding that Program 15 involved the supply of primary aluminium at less than adequate remuneration so as to amount to a subsidy.

C.Export Price

1.Whether the Attorney erred in failing to consider whether there was a sustained movement in the Australian dollar against the Chinese renminbi so as to cause a notice or notices to be published under subs269TAF(4).

F.Continuation of Dumping and Subsidisation

1.Whether the Attorney erred in finding that dumping would continue if anti-dumping measures were not imposed, and also that countervailable subsidies would continue.

G.Variable Factors

1.In circumstances where:

(a)the TMRO had not identified in the First Notice that a matter the subject of his review was whether measures should be imposed on the basis of the type of finish of the goods, rather than on a consolidated basis;

(b)the Attorney did not identify in the Second Notice that the CEO was directed to reinvestigate the finding in Report 148 that measures should be imposed on a consolidated basis rather than by finish; and

(c)the applicants were not otherwise put on notice that measures may be imposed by finish rather than on a consolidated basis,

whether:

(d)the following notices did not comply with the provisions of the Act they were made under:

(i)the First Notice published by the TMRO pursuant to subs269ZZI(2); and

(ii)the Second Notice published by the Attorney pursuant to subs269ZZL(2)(b);

(e)procedural fairness was not afforded to the applicants; and, if so,

(f)the Attorney did not have the power to vary the dumping and countervailing notices so as to impose different variable factors for each finish.

2.Whether the Attorney (aside from the issues identified at G(1)) had the power to vary the dumping and countervailing notices so as to impose different variable factors for each finish.

3.Whether the Attorney erred in affirming the decision to impose dumping duties and countervailing duties on goods exported by Kam Kiu in finished states other than mill and on powder coated goods exported by Panasia.

H.Delay

1.Whether the court should extend the time for making an application by Kam Kiu for orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of any or all of the decisions with the exception of the decisions of the first respondent made on 22 August 2011 (the earlier decisions).

2.If, in deciding Issue G1, the court finds that any of the earlier decisions is infected with jurisdictional error, whether the court should, in the exercise of its discretion, refuse to grant relief on the basis of that finding as a consequence of the delay in commencing these proceedings.

My numbering of the issues differs slightly to that which appears in the agreed statement of issues as filed. For the purposes of these reasons for judgment I have identified the relevant issues by reference to the numbering set out above.

ISSUESPUBLIC BODY (ISSUE B1)

The first issue I propose to consider concerns the phrase public body which is used in s269T of the Act in the definition of subsidy. The phrase public body is not itself defined. The definition of subsidy in s269T is in these terms:

subsidy, in respect of goods that are exported to Australia, means:

(a)a financial contribution:

(i)by a government of the country of export or country of origin of those goods; or

(ii)by a public body of that country or of which that government is a member; or

(iii)by a private body entrusted or directed by that government or public body to carry out a governmental function;

that is made in connection with the production, manufacture or export of those goods and that involves:

(iv)a direct transfer of funds from that government or body to the enterprise by whom the goods are produced, manufactured or exported; or

(v)a direct transfer of funds from that government or body to that enterprise contingent upon particular circumstances occurring; or

(vi)the acceptance of liabilities, whether actual or potential, of that enterprise by that government or body; or

(vii)the forgoing, or non collection, of revenue (other than an allowable exemption or remission) due to that government or body by that enterprise; or

(viii)the provision by that government or body of goods or services to that enterprise otherwise than in the course of providing normal infrastructure; or

(ix)the purchase by that government or body of goods provided by that enterprise; or

(b)any form of income or price support as referred to in Article XVI of the General Agreement on Tariffs and Trade 1994 that is received from such a government or body;

if that financial contribution or income or price support confers a benefit in relation to those goods.

One matter the subject of the reinvestigation concerned the question whether certain primary aluminium producers, identified as state-owned enterprises, qualified as public bodies for the purposes of the Act. This question arose in the context of a number of related contentions which the CEO was required to consider. The first of these was that certain state-owned producers of primary aluminium had supplied aluminium to companies engaged in the manufacture of aluminium extrusions for less than adequate remuneration. The second was that the supply of aluminium in such circumstances may involve the making of a financial contribution by a public body and, consequently, the giving of a subsidy for the purposes of the Act.

The state-owned producers of primary aluminium that were the focus of the reinvestigation were CHINALCO and various of its subsidiaries. CHINALCO is identified in Report 175 as a wholly state-owned company that owns 41.82% of CHALCO. There are about 28 companies identified in Report 175 that are wholly or majority owned (either directly or indirectly) by CHALCO. According to Report 175 (at p18) CHINALCO, via its subsidiary, CHALCO (and in turn, its subsidiaries), represented the largest producer of primary aluminium in China.

In Report 148, the CEO found that CHINALCO and its subsidiaries were public bodies for the purposes of the Act because they were all state-owned primary aluminium producing enterprises [that] are either majority or wholly owned and therefore public bodies.

The TMRO considered that the meaning given to the phrase public body in Report 148 was too broad. In recommending that there be a reinvestigation, the TMRO was influenced by a report of the WTO Appellate Body published on 11 March 2011 entitled United States Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (the US/China Report).

The phrase public body as used in the definition of subsidy in s269T derives from Article1.1 of the theSCMAgreement. Article 1.1 of the SCM Agreement stipulates that a subsidy shall be deemed to exist for the purpose of the SCM Agreement if there is a financial contribution by a government or any public body within the territory of a Member and a benefit is thereby conferred.

The meaning of the phrase public body as the phrase is used in Article 1.1(a)(1) of the SCM Agreement was considered at paras317-319 of the US/China Report. The WTO Appellate Body said:

317. We see the concept of public body as sharing certain attributes with the concept of government. A public body within the meaning of Article 1.1.(a)(1) of the SCM Agreement must be an entity that possesses, exercises or is vested with governmental authority. Yet, just as no two governments are exactly alike, the precise contours and characteristics of a public body are bound to differ from entity to entity, State to State, and case to case. Panels or investigating authorities confronted with the question of whether conduct falling within the scope of Article 1.1.(a)(1) is that of a public body will be in a position to answer that question only by conducting a proper evaluation of the core features of the entity concerned, and its relationship with government in the narrow sense.

318.In some cases, such as when a statute or other legal instrument expressly vests authority in the entity concerned, determining that such entity is a public body may be a straightforward exercise. In others, the picture may be more mixed, and the challenge more complex. The same entity may possess certain features suggesting it is a public body, and others that suggest that it is a private body. We do not, for example, consider that the absence of an express statutory delegation of authority necessarily precludes a determination that a particular entity is a public body. What matters is whether an entity is vested with authority to exercise governmental functions, rather than how that is achieved. There are many different ways in which government in the narrow sense could provide entities with authority. Accordingly, different types of evidence may be relevant to showing that such authority has been bestowed on a particular entity. Evidence that an entity is, in fact, exercising governmental functions may serve as evidence that it possesses or has been vested with governmental authority, particularly where such evidence points to a sustained and systematic practice. It follows, in our view, that evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions. We stress, however, that, apart from an express delegation of authority in a legal instrument, the existence of mere formal links between an entity and government in the narrow sense is unlikely to suffice to establish the necessary possession of governmental authority. Thus, for example, the mere fact that a government is the majority shareholder of an entity does not demonstrate that the government exercises meaningful control over the conduct of that entity, much less that the government has bestowed it with governmental authority. In some instances, however, where the evidence shows that the formal indicia of government control are manifold, and there is also evidence that such control has been exercised in a meaningful way, then such evidence may permit an inference that the entity concerned is exercising governmental authority.

319.In all instances, panels and investigating authorities are called upon to engage in a careful evaluation of the entity in question and to identify its common features and relationship with government in the narrow sense, having regard, in particular, to whether the entity exercises authority on behalf of government. An investigating authority must, in making its determination, evaluate and give due consideration to all relevant characteristics of the entity and, in reaching its ultimate determination as to how that entity should be characterized, avoid focusing exclusively or unduly on any single characteristic without affording due consideration to others that may be relevant.

(footnotes omitted, emphasis added)

The question whether CHINALCO and its subsidiaries were public bodies for the purpose of the Act was the subject of reinvestigation by the CEO, and is dealt with at length in Section 4 of Report 175. In Section 4.1 the CEO summarised the findings of his reinvestigation of this issue as follows (at p11):

The delegate recommends the Attorney-General affirms the finding of the original investigation that primary aluminium producers identified as SOEs qualify as public bodies under the Act. The reinvestigation is satisfied that the policies of, and level of control exercised by, the Chinese Government in relation to primary aluminium producers who were also enterprises with state investment (formerly known as SOEs), was such as to cause these entities to possess, exercise or be vested with, government authority, and those primary aluminium producers exercise such authority in the performance of governmental functions, specifically, the performance of the Chinese Governments industrial development policies.

In Section 4.4.2 of Report 175, the CEO referred to paras318-319 of the US/China Report and said (at p14):

According to the Appellate Body, a public body may possess, exercise or be vested with government authority, in the following circumstances:

where a statute or other legal instrument expressly vests government authority in the entity concerned;

evidence that an entity is, in fact, exercising governmental functions may serve as evidence that it possesses or has been vested with governmental authority; and

evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions.

(footnote omitted, original emphasis)

At Section 4.5 of Report 175 the CEO expressed his ultimate conclusion in these terms (at p24):

The reinvestigation observes that when the program of Chinese Government policies, guidelines and directions applicable to both primary aluminium producers and suppliers, and enterprises with state investment are considered as a whole, then it is reasonable to conclude that the government exercises meaningful control over the conduct of such entities, to the extent that the government has bestowed them with governmental authority. As such, the reinvestigation considers that primary aluminium producers and suppliers, not identified as private enterprises without government investment, do qualify as public bodies under the Act. The reinvestigation has considered the reasons of the original investigation concerning the status of primary aluminium producers and suppliers, where the existence of government investment is not known, and considers it reasonable to conclude in those circumstances that the primary aluminium producer or supplier is a public body.

(emphasis added)

It is implicit in what the CEO said in Section 4 of Report 175 that he has proceeded on the basis that a public body for the purposes of the Act must be an entity that possesses, exercises or is vested with government authority. This reflects the interpretation of the phrase public body that the Appellate Body adopted at para317 of the US/China Report. None of the parties to the proceedings suggested that the CEO was in error in adopting this interpretation of the same phrase for the purposes of the Act. On the contrary, the applicants submitted that the CEO adopted the correct test, but that he misapplied it when considering whether CHALCO and its subsidiaries were public bodies for the purposes of the Act.

For the purpose of deciding whether an entity possesses, exercises or is vested with government authority, the CEO identified what he referred to (at p19) as the indicia established by the Appellate Body as supporting such a conclusion. He referred to these as Indicator 1, Indicator 2 and Indicator 3 (the Indicators), each of which corresponded to one of three illustrations referred to at para318 of the US/China Report that is highlighted in the extract set out above, and which are in turn referred to in the three bullet points appearing in Section 4.4.2 of Report 175.

The applicants attack upon the CEOs finding that CHALCO and its subsidiaries were public bodies for the purposes of the Act focused upon his consideration of each of the Indicators. Separate arguments were developed by the applicants in relation to the CEOs consideration of each of the Indicators. It is convenient to examine what the CEO said in relation to the Indicators and his ultimate conclusion on the public bodies issue before considering these arguments.

Indicator 1

The CEO said (at pp19-20):

Indicator 1: The existence of a statute or other legal instrument which expressly vests government authority in the entity concerned

The Interim Report 2007 of CHALCO (contained in the applicants application) provided the reinvestigation with one source of evidence of the existence of a statute or other legal instrument vesting government authority in CHINALCO.

The reinvestigation contends that the following agreements constitute legal instruments that vest CHINALCO with the authority to impose on its subsidiaries (including the CHALCO group of companies) state-prescribed pricing policies:

the general agreement on Mutual Provision of Production Supplies and Ancillary Services;

Provision of Engineering, Construction and Supervisory Services Agreement;

Mineral Supply Agreement; and

Comprehensive Social and Logistics Services Agreement.

The Interim Report 2007 examined the operation of each of these agreements in relation to transactions entered into between CHINALCO and CHALCO:

General transactions are covered by the general agreement on Mutual Provision of Production Supplies and Ancillary Services, which subjects transactions to the following pricing policy hierarchy:

(i)adoption of prices prescribed by the Chinese Government (state-prescribed price);

(ii)in the absence of a state-prescribed price, then adoption of a state-guidance price;

(iii) if there is neither a state-prescribed price, nor a state-guidance price, then adoption of the market price (being the price charged to and from independent third parties); and

(iv) If none of the above are available, then adoption of a contractual price (being reasonable costs incurred in providing the relevant services plus not more than 5% of such costs).

The reinvestigation notes that although the original investigation did not obtain direct evidence of the exercise of this pricing regime, it notes that the pricing hierarchy is prescriptive and CHALCO considers itself bound by it.

Transactions for the supply of specialist or specific goods and services are subject to the following pricing prescriptions:

utility services, including electricity, gas, heat and water, are supplied at the state prescribed price,

engineering, project construction and supervisory services are covered by the Provision of Engineering, Construction and Supervisory Services Agreement, which prescribed the state-guidance price or prevailing market price,

purchases of key and auxiliary materials (including bauxite, limestone, carbon, cement, coal) from the CHINALCO Group are covered by the General Agreement on Mutual Provision of Production Supplies and Ancillary Services and the Mineral Supply Agreement, with the effect that the pricing policy set out in the pricing hierarchy above is prescribed, and

social services and logistics services provided by the CHINALCO Group were covered by the Comprehensive Social and Logistics Services Agreement, which prescribes the pricing hierarchy above.

The above agreements vest CHINALCO with government authority to impose state mandated pricing policies on its subsidiaries.

(footnote omitted)

Indicator 2

Turning to Indicator 2, the CEO stated (at pp20-21):

Indicator 2: Evidence that an entity is, in fact, exercising governmental functions may serve as evidence that it possesses or has been vested with governmental authority

A further indicator that an entity possesses, exercises or is vested with government authority arises where the entity is, in fact, exercising governmental functions.

In support of this view, the reinvestigation considered a translated version of a Guiding Opinion of SASAC of the State Council about Promoting the Adjustment of State-owned Capital and the reorganization of State-owned Enterprises. At the outset, the reinvestigation acknowledges the comments of the Chinese Government to the original investigation in its response to the Government Questionnaire, namely that, the expression of such guiding opinions are not uncommon for monitoring agencies in most countries. The Chinese Government therefore considered the position of the Guiding Opinion as having the status of a research and discussion paper.

The reinvestigation observed the following comments as evidence of the outcomes of enterprises with state investment exercising governmental functions:

The document advised of the outcome of state-owned asset management system reform, such as, significantly improved economic effects, which play an important role for perfecting socialist market economic system and promoting sustained, fast and sound development of national economy;

The documents [sic] identified the role played by SOEs in order to execute the spirits of the Third and Fifth Plenary Sessions of the Sixteenth CPC Central Committee, and the Opinions of the State Council about Deepening the Economic System Reform in 2005 (No. 9 [2005 of the State Council]), namely:

enhance the state-owned economys controlling power, influence, driving force, bring the leading role of state-owned economy into play;

persist in strengthening supervision over state-owned assets, rigidly enforce the procedures for property right transactions and equity transfer, promote orderly flow, prevent the loss of state-owned assets and ensure the value maintenance and increase of state-owned assets;

persist in safeguarding the legitimate rights and interests of workers, protect the workers rights to enterprise reorganisation, restructuring and other kinds of reform, and fully mobilize and protect the initiatives of the vast majority of workers to participate in the reform and reorganisation of state-owned enterprises;

promote state-owned capital to concentrate on major industries and key fields relating to national security and national economic lifelines and accelerate the formation of a batch of predominant enterprises with independent intellectual property rights, famous brands and strong international competitiveness;

enhancing the controlling power of state-owned economy, and bringing its leading role into play.

(footnotes omitted)

Indicator 3

The section of Report 175 in which Indicator 3 was examined is headed:

Indicator 3: Evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions

Below this heading there is a lengthy discussion by the CEO of three documents, each of which was perceived by him to be relevant to the extent to which the government might be regarded as exercising control over CHALCO and its subsidiaries.

The first document

The first document was entitled Interim Measures for the Supervision and Administration of State-Owned Assets of the Enterprises. According to the CEO (at p21) this document provides guidance on the governments role as an owner of enterprises with state investment. Earlier in Report 175, the CEO referred (at p12) to what is known as the Chinese State-owned Assets Supervision and Administration Commission (SASAC). In connection with his consideration of Indicator 3 the CEO said (at p22):

However, when the main functions and responsibilities of SASAC are outlined in the Guidelines, then, evidence of the extent of the control of the Chinese Government, albeit via SASAC, becomes relevant to the consideration of this indicator:

(a)[SASAC] performs the responsibility of investor, and guides and pushes forward the reform and restructuring of SOEs; supervises the preservation and increment of the value of state-owned assets for enterprises under its supervision, and enhances the management of state-owned assets; advances the establishment of modern enterprise system in SOEs, and perfects corporate governance; and propels the strategic adjustment of the structure and layout of the State economy;

(b)despatches supervisory panels to some large enterprises on behalf of the State; takes charge of daily management of the supervisory panels;

(c)appoints and removes top executives of enterprises, and evaluates their performances through legal procedures, either grants rewards or inflicts punishments based on their performances; establishes corporate executives selection system in accordance with the requirements of socialist market economy system and modern enterprise system, and perfects incentives and restraints system for corporate management; and

(d)supervises and administers the preservation and increment of the value of state-owned assets under the supervision of SASAC through statistics and auditing; establishes and perfects the index system of the preservation and increment of the value of state-owned assets, and works out assessment criteria; safeguards the rights and interests of the investor of state-owned assets.

The reinvestigation acknowledges that the power to appoint and remove top executives of enterprises, and evaluate their performance through legal procedures, is a power of owners of enterprises, it is the additional criteria applied by SASAC in executing this responsibility that amounts to conduct which may serve, in certain circumstances, as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions. Applied here the reinvestigation had regard to references suggesting the selection of corporate executives in accordance with the requirements of socialist market economy system and modern enterprise system In particular, the express power vested in SASAC, to:

(e)[draft] laws and administrative regulations of the management of the state-owned assets and draws up related rules; directs and supervises the management work of local state-owned assets according to law,

suggests that the level of the control over the entity is significant.

(footnotes omitted)

The second document

The next document the CEO had regard to in connection with his consideration of Indicator 3 was entitled Guidelines for accelerating the restructuring of the Aluminium Industry (Accelerating Guidelines). The CEO said (at pp22-23) that he regarded this as evidence that the Chinese Government exercised meaningful control over primary aluminium producers and suppliers. This was so, according to the CEO, whether or not the enterprise concerned was a state-owned enterprise. The CEO stated that the Accelerating Guidelines prescribe which aluminium industry participants should be supported by Chinese Government departments and entities. The CEO then quoted the following passage from the Accelerating Guidelines (at p23):

financial departments should continue providing financial support to aluminium enterprises which are conformed to the state industrial policy, credit policy and the industrial access conditions. As to the enterprises, which are not conformed to the industrial policy and market access conditions, or which have been eliminated by the laws or regulations due to backward technology or techniques, the financial departments should not provide any support in any form. If any support has been provided to the enterprises by mistake, the financial departments should withdraw it to avoid financial risk.

(footnote omitted)

The CEO considered (also at p23) these directions to be highly prescriptive and designed to achieve compliance by primary aluminium producers and suppliers, with the consequence of a withdrawal of support for non-compliance.

The third document

The CEO then turned to a third document which was a Form 20-F return of CHALCO (the Form 20-F). The Form 20-F included the following statements (at p23):

The central and local PRC governments continue to exercise a substantial degree of control and influence over the aluminium industry in China and shape the structure and characteristics of the industry by means of policies in respect of major project approval, preferential treatments such as tax incentives, electricity pricing, and safety, environmental and quality control

Under current PRC regulatory requirements the expansions of primary aluminium plants require Chinese Government approval.

Substantially all of our business, assets and operations are located in China the PRC government continues to play a significant role in regulating industry by imposing industrial policies. It also exercises significant control over Chinas economic growth through the allocation of resources, controlling payment of foreign currency-denominated obligations, setting monetary policy and providing preferential treatment to particular industries or companies.

The CEO said (at p24) that these statements by CHALCO:

support the view that the level of control and regulation by the Chinese Government in the aluminium industry in China is so significant, that primary aluminium producers and suppliers are in fact responding to the Chinese Governments industrial development policy. The reinvestigation views the operations of primary aluminium producers and suppliers as inextricably tied to the implementation of government industrial and macro-economic functions.

The applicants submissions

In its originating application Panasia contended that the CEOs finding that primary aluminium producers or suppliers in China are public bodies within the meaning of s269T of the Act involved a misapplication of the phrase public bodies to the facts of the case in that:

(i)the statutes or other legal instruments relied on in the section entitled Indicator 1 are not capable of demonstrating any vesting of government authority in CHALCO but demonstrate only that prices set by CHALCO may be influenced by government pricing policies;

(ii)the Guiding Opinion of SASAC relied on in the section entitled Indicator 2 does not demonstrate that enterprises with state investment are in fact exercising governmental functions; and

(iii)the evidence relied on in the section entitled Indicator 3 to demonstrate that government exercises meaningful control over primary aluminium producers and suppliers is not attended by any analysis of how the suggested control serves as evidence that the relevant entities themselves possess governmental authority.

In its originating application Kam Kiu contended that the CEOs finding that primary aluminium producers or suppliers in China are public bodies was based on a misconstruction of the term public body in s269T of the Act, namely, that an enterprise that achieves a government policy thereby performs a governmental function and so is a public body within the meaning of that section. Kam Kiu also contended that the Attorneys decision was not based on evidence or other material from which the CEO could reasonably be satisfied that benefits had been conferred or may be conferred on Kam Kiu by a Chinese public body, or, alternatively, that the decision was dependent on a finding of the conferring of such a benefit and there was no evidence to establish that such a benefit had been conferred by a Chinese public body. These latter contentions are not reflected in the agreed statement of issues and neither of them was the subject of oral argument. I have proceeded on the basis that both of them were abandoned in so far as they might be perceived to raise any additional contention apart from the first.

Panasias submissions focus on the applications by the CEO of each of the Indicators, something which was said to involve legal error in that, although the CEO purported to apply the correct legal test, he did not in fact do so. Panasia submitted:

Indicator 1

Contrary to the approach taken by the CEO in his consideration of Indicator 1, evidence that CHALCO is bound by directions from its major shareholder as to prices is not evidence that CHALCO is vested with government authority.

The agreements referred to by the CEO in his consideration of Indicator 1 are incapable of constituting legal instruments which vest government authority in CHALCO and its subsidiaries.

Indicator 2

The statements relied upon by the CEO which he drew from the document entitled Guiding Opinions of the SASAC of the State Council about Promoting the Adjustment of State-owned Capital and the Reorganization of State-owned Enterprises (the Guiding Opinion) did not provide any evidence that any entity, including CHALCO and its subsidiaries, was exercising governmental functions. In particular, the Guiding Opinion makes no reference to CHINALCO, CHALCO or any other producer of primary aluminium.

Indicator 3

The statements relied upon by the CEO taken from the first document the Guidelines issued by the SASAC (the SASAC Guidelines) related to State-owned enterprises generally, and said nothing about whether the Chinese government exercised meaningful control over CHINALCO, CHALCO or any other producer of primary aluminium.

The statements relied upon by the CEO taken from the second and third documents the Accelerating Guidelines and the Form 20-F related to the aluminium industry generally, and not merely State-owned enterprises.

Kam Kiu adopted Panasias submissions on this issue and developed some further submissions of its own. Kam Kiu submitted that in determining the question whether CHALCO and its subsidiaries exercised, possessed or were vested with government authority, the CEO made three errors. First, he misdirected his inquiry because the supplier of the primary aluminium in question was not CHINALCO, but CHALCO. In this regard, the CEO was said to have conflated different legal entities, one being the regulator and the other being the regulated, or one exercising governmental authority and one that was the subject of governmental authority. Secondly, the CEO wrongly assumed that ownership of a subsidiary (CHALCO) by a parent (CHINALCO) clothes the subsidiary with the same identity as the parent, such that if the parent is a public body for the purposes of the Act, then the subsidiary must also be such a body. On this submission, the CEO found that CHALCO was a public body for the simple reason that it was partly owned by CHINALCO, a wholly State-owned enterprise. Thirdly, the CEO relied upon the Guiding Opinion in circumstances where it could have no bearing on whether any of the primary aluminium producers were in fact exercising government functions.

Kam Kiu further submitted that none of the material that the CEO relied upon in support of a finding that the government exercised meaningful control over CHALCO and its subsidiaries could provide any such support. In its written submission Kam Kiu argued:

That material established no more than the fact that the Chinese government has industrial policies, enacts guidelines and laws in pursuit of those policies, and encourages compliance with those laws and guidelines. However, the fact that a government makes laws that it expects to be followed by an entity can have no bearing on whether that entity is a public body. If it were otherwise, there would be no meaningful distinction between the terms public body and private body in the definition of subsidy in s269T of the Act.

Consideration of Public Body issue

It is important to observe at the outset that the Indicators referred to by the CEO (upon which most of the argument focused) are merely illustrations of circumstances in which it might be found that a particular entity possessed, exercised or was vested with governmental authority so as to render it a public body for the purposes of the Act. As emphasised in the passages in the US/China Report referred to by the CEO and set out above, the question whether an entity is a public body may present a mixed and complex picture.

The Appellate Body held that for an entity to be a public body for the purposes of Article 1.1(a)(1) of the SCM Agreement, it must possess, exercise, or be vested with, governmental authority. However, it is clear that authority in this context is not confined to authority in the sense that word is usually understood in the context of Anglo-Australian law. In particular, it is not an essential characteristic of a public body that it be an agent of government in the sense that a narrow view of the word authority might imply. There is nothing in the US/China Report to suggest that for an entity to be a public body for the purposes of Article 1.1(a)(1) it must be an agent of government in any technical sense.

Besides the straightforward cases involving an entity that is the subject of an express grant or delegation of governmental authority pursuant to a legislative instrument, it may not be possible to identify any such instrument or other formal record evincing the grant or delegation of authority by government in favour of an entity through which it seeks to give effect to its economic or social policies. As the Appellate Body made clear, different types of evidence may be relevant to show that governmental authority has been conferred on a particular entity. One type of evidence that might demonstrate that this has occurred is [e]vidence that an entity is, in fact, exercising governmental functions. Another type is that which shows that a government exercises meaningful control over an entity which may demonstrate that an entity both possesses and exercises governmental authority in the performance of governmental functions.

It is well settled that an administrative decision-makers reasons must not be read with an eye keenly attuned to the perception of error. Further, a decision-makers reasons must be read as a whole. These basic principles were at the forefront of the respondents response to the applicants submissions.

The applicants challenge to the CEOs finding that CHALCO and its subsidiaries were public bodies for the purposes of the Act involved what was a highly compartmentalised analysis of the relevant section of Report 175 which was undertaken by reference to the different Indicators with little, if any, attention given to the terms of the CEOs conclusion. The applicants analysis was no doubt shaped by the way in which the CEO himself approached the question of whether CHALCO and its subsidiaries were public bodies. Nevertheless, his finding that CHALCO and its subsidiaries were public bodies was the product of a process of reasoning that must be viewed as a whole and, in particular, in light of his overall conclusion and the language in which it is expressed.

In my opinion it is apparent upon a reading of Report 175 as a whole that the conclusion that CHALCO and its subsidiaries were public bodies for the purposes of the Act was open to the CEO and was not affected by legal error.

It is true that in his discussion of Indicator 1, the CEO focused not on CHALCO, but on CHINALCO. However, CHINALCO was a relevant entity because it is a wholly-owned State enterprise, and a parent of CHALCO. The precise finding made by the CEO in relation to CHINALCO was that it was vested with governmental authority to impose State-mandated pricing policies on its subsidiaries. Panasia did not contend that this particular finding was not open to the CEO, and Kam Kiu merely relied upon a very general submission which is reflected in the passage from the written submissions extracted above.

The CEOs description of the relevant agreements indicates that they invested CHINALCO with power to impose State-prescribed pricing policies on CHALCO and its subsidiaries. Kam Kiu did not refer to the agreements that were before the CEO with a view to demonstrating that this involved a mischaracterisation of their purpose or effect. Against that background I am not satisfied that it was not open to the CEO to find that these agreements were not mere guidelines and that they did more than provide encouragement in relation to pricing.

Panasias submission that the agreements referred to by the CEO are incapable of constituting legal instruments which vest government authority in CHALCO and its subsidiaries ignores the very narrow terms of the CEOs finding. The CEO did not find that these agreements vested governmental authority in CHALCO or its subsidiaries. He did no more than find that they vested CHINALCO with governmental authority to impose State-mandated pricing policies on its subsidiaries. This was one of a number of considerations that contributed to the overall conclusion that CHALCO and its subsidiaries were also public bodies for the purposes of the Act.

So far as Panasias submissions regarding Indicator 2 are concerned, it is again important to look at the findings made by the CEO in relation to the Guiding Opinion. He did not make any specific finding in relation to the Guiding Opinion. Rather, the Guiding Opinion formed part of a broader evidentiary basis upon which he founded his overall conclusion. That conclusion was to the effect that, in light of the Chinese Governments policies, guidelines and directions applicable to primary aluminium producers and suppliers in which the Chinese Government had an investment, it should be concluded that the Chinese Government exercised meaningful control over the conduct of such entities to the point where it could be said that those producers and suppliers were conferred with governmental authority.

The subject matter of the Guiding Opinion was clearly relevant to a consideration of the nature and extent of the Chinese Governments involvement in enterprises in which the State had invested. The fact that the Guiding Opinion made no reference to the particular entities with which the CEO was most directly concerned does not establish any error of law on his part. It was for the CEO to determine what weight should be given to the material before him. In this regard, the submissions of the Chinese Government to the CEO, assuming they were accurately summarised by him, seem to have suggested that the Guiding Opinion should be given no weight, not because the Guiding Opinion did not apply to the particular enterprises with which the CEO was most directly concerned, but because it was in the nature of a mere research or discussion paper. It is apparent the CEO did not accept that submission.

This brings me to the submissions made by the applicants in relation to the three documents discussed by the CEO in the context of Indicator 3. Again, the submissions made by Panasia in relation to the first document, the SASAC Guidelines, reflect what is in essence a complaint about the weight that the CEO attached to the document. The CEO was of the view that the SASAC Guidelines suggested that the Chinese Governments level of control over the entities to which they applied was significant. When regard is had to the functions and responsibilities of SASAC referred to in paras (a)-(e) of the SASAC Guidelines (as set out at page 22 of Report 175) it is apparent this was a view open to the CEO.

The CEO considered that the second document, the Accelerating Guidelines, showed that the Chinese Government exercised meaningful control over primary aluminium producers and suppliers including those entities that were not the subject of State investment. He described the Accelerating Guidelines as highly prescriptive and designed to achieve compliance. The fact that the Accelerating Guidelines apply to all primary aluminium producers and suppliers, and not merely those that are State-owned, is not to the point. The Accelerating Guidelines were, at the very least, equally relevant to enterprises that were the subject of State investment.

The Chinese Governments submission, as summarised by the CEO, sought to portray the Accelerating Guidelines as being concerned with the reduction of waste and pollution, and as including what were described as mere aspirational statements. It was open to the CEO to take a different view of the Accelerating Guidelines and to treat them as evidence of the Chinese Government exercising control over primary aluminium producers and suppliers, including through providing or withholding financial support to enterprises based upon whether or not they complied with directions or requirements of the Chinese Government.

The third document, the Form 20-F, which is a business record of CHALCO, seems to me to be especially significant when considering the degree of control exercised by the Chinese Government over CHALCO and its subsidiaries. It includes a clear acknowledgment that the Chinese Government exercises a substantial degree of control and influence that shapes the structure and characteristics of the aluminium industry in China through the provision of preferential treatments of various kinds. It was open to the CEO to take the view in light of this document that the Chinese Government, through its control of primary aluminium producers and suppliers, bestowed them with its authority to give effect to the Chinese Governments economic, industrial and social policies by providing or withholding financial support of various kinds to the domestic manufacturers which they supplied.

The CEOs conclusion as expressed in Section 4.5 of Report 175 reflects his conclusion that the Chinese Government exercises meaningful control over the conduct of primary aluminium producers and suppliers in which it has invested. It also reflects his substantive conclusion, though not expressed precisely in these terms, that the extent of the control exercised by the Chinese Government over the primary aluminium producers and suppliers justified his finding that such producers and suppliers possessed, or had been vested with, governmental authority.

Finally, I do not accept Kam Kius submissions as summarised at [52]-[53] above. In particular, I am not satisfied that the CEO confused CHINALCO or CHALCO, or mistakenly characterised CHALCO as regulator, rather than an entity that is regulated. Clearly, the CEO recognised that CHALCO was itself the subject of regulation, but he also recognised, and found, that CHALCO and its subsidiaries served as instruments through which, and by extension, the Chinese Government could give effect to its economic and social policies through the aluminium industry as a whole.

CONSTRUCTION OF THE PHRASES FOR LESS THAN ADEQUATE REMUNERATION AND PREVAILING MARKET CONDITIONS (ISSUE B2)

The next issue to be considered concerns the CEOs construction and application of s269TACC. There are two issues raised. First, whether the CEO misconstrued or misapplied the phrase for less than adequate remuneration in subs269TACC(4)(d) of the Act. Second, whether he misconstrued or misapplied the phrase prevailing market conditions in subs269TACC(5).

Section 269TACC relevantly provides:

(1)If:

(a)a financial contribution referred to in paragraph(a) of the definition of subsidy in subsection 269T(1); or

(b)income or price support referred to in paragraph(b) of that definition;

is received in respect of goods, the question whether that financial contribution or income or price support confers a benefit, and, if so, the amount of subsidy attributable to that benefit, are to be worked out according to this section.

(2)If a financial contribution in respect of goods is a direct financial payment received from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function, a benefit is taken to be conferred because of that payment.

(3)If:

(a)there is no financial contribution of the kind referred to in subsection(2) received in respect of goods; but

(b)a financial contribution of another kind, or income or price support, is received in respect of those goods from a government of a country, a public body of that government or of which that government is a member, or a private body entrusted or directed by that government or public body to carry out a governmental function;

the question whether that financial contribution or income or price support confers a benefit is to be determined by the Minister.

(4)In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines:

(a)the provision of equity capital from the government or body referred to in subsection(3) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned;

(b)the making of a loan by the government or a body referred to in subsection(3) does not confer a benefit unless the loan requires repayment of a lesser amount than would be required for a comparable commercial loan;

(c)the guarantee of a loan by the government or a body referred to in subsection(3) does not confer a benefit unless, without the guarantee, the enterprise receiving the loan would have to repay a greater amount;

(d)the provision of goods or services by the government or body referred to in subsection(3) does not confer a benefit unless the goods or services are provided for less than adequate remuneration;

(e)the purchase of goods by the government or body referred to in subsection(3) does not confer a benefit if the purchase is made for more than adequate remuneration.

One of the contentions raised before the CEO was that Chinese exporters of aluminium extrusions had benefited from the provision of goods by Government-owned enterprises for less than adequate remuneration. In particular, it was contended that primary aluminium, the main input used in the manufacture of aluminium extrusion, was both produced and supplied for less than adequate remuneration.

The CEO found (at p49) in Report 148 that aluminium extrusions exported from China to Australia received financial contributions in respect of the goods that conferred a benefit under 19 subsidy programs. One of these programs was referred to as Program 15.

Program 15 could only involve the giving of a subsidy in respect of goods exported to Australia if it involved a financial contribution which conferred a benefit in relation to those goods: see definition of subsidy in s269T. Subsection 269TACC(4) specifies five guidelines to which the Minister must have regard for the purpose of determining whether a financial contribution confers such a benefit.

The fourth such guideline (subs (4)(d)) provides that the provision of goods or services by a government or public body does not confer a benefit unless they are provided for less than adequate remuneration. According to subs (5), the question whether goods or services are provided for less than adequate remuneration for the purposes of the guidelines is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased.

The CEO dealt with Program 15 in Appendix 8 of Report 148. The CEO stated (at p1 of Appendix 8):

2.4Effect of the program

Under this program, a benefit to the exporter of aluminium extrusions is conferred by primary aluminium being provided by the GOC at an amount reflecting less than adequate remuneration, having regard to prevailing market conditions in China.

Customs and Border Protection requested information from the four exporters selected for further verification in relation to their purchases of primary aluminium during the investigation period. For each supplier of primary aluminium, the exporters were required to identify whether they were a trader or manufacturer of the goods. Where the supplier was not the manufacturer of the goods, each exporter was asked to identify the manufacturer.

As well as identifying the manufacturers of all purchased primary aluminium, the exporters were also asked to indicate whether these enterprises were SOEs. Information presented by these exporters showed that SOEs were significant suppliers of primary aluminium. This is further supported by information provided by the GOC which showed the share of total domestic aluminium production in China by SOEs.

In determining whether the provision of goods conferred a benefit, Customs and Border Protection has had regard to the guidelines set out in ss.269TACC(4) and (5). In establishing a benchmark price for primary aluminum [sic] reflecting adequate remuneration, Customs and Border Protection considered whether prices from private enterprises were an appropriate basis. Information provided in the GOC questionnaire response showed that SOEs represented a significant percentage of the total number of aluminium producers in China. Importantly, in terms of production volumes, SOEs producing primary aluminium accounted for almost half of the total aluminum [sic] production in 2008. It is Customs and Border Protections view that prices of primary aluminium supplied by SOEs are likely to have influenced domestic primary aluminium prices generally.

Customs and Border Protection has also taken into account the following factors which indicate the Governments involvement in the domestic aluminium market and the distorting effects on domestic prices:

export taxes on primary aluminium; and

purchase of primary aluminium by the GOC.

For these reasons, Customs and Border Protection considers privately owned supplier prices of primary aluminium to be distorted and unsuitable for use as a benchmark in determining whether a benefit is conferred by the program.

In ascertaining an appropriate benchmark, Customs and Border Protection is mindful of the need to determine a price that reflects prevailing market conditions for like goods in China. This requirement is reflected in s.269TACC(5). Customs and Border Protection was able to confirm that an important factor in the purchasing decisions of Chinese exporters was the comparison of domestic prices reflected on the SHFE and equivalent prices for imported primary aluminium quoted on the LME. This was clearly evidenced in the switch to imported aluminium at about the same time that SHFE prices rose above LME prices.

Therefore, Customs and Border Protection considers that LME prices for primary aluminium (after some adjustment for delivery and other costs) are indicative of import prices into the Chinese market and as such, are a suitable benchmark for determining whether primary aluminium was provided at less than adequate remuneration and conferred a benefit in relation to the goods exported.

2.6Is there a subsidy?

Based on the information above, Customs and Border Protection considers that this program involves a financial contribution to the extent that it was made in connection with the production of aluminium extrusions from China, that involves the provision of goods (primary aluminium) by SOEs, being public bodies.

Where the financial contribution involves a direct transaction between the public bodies and the exporters of aluminium extrusions, Customs and Border Protection considers that this financial contribution confers a direct benefit to the extent that the goods were provided at less than adequate remuneration. Where the financial contribution involves the provision of primary aluminium by the public bodies to private intermediaries that then trade those inputs to the exporters of aluminium extrusions, Customs and Border Protection considers in accordance with s.269T(2AC)(a) that an indirect benefit is conferred in relation to the exported goods to the extent that the benefits conferred to the private intermediaries are passed-through to the exporters of aluminium extrusions by way of the goods being provided at less than adequate remuneration.

Where exporters of aluminium extrusions during the investigation period purchased primary aluminium at less than adequate remuneration under the program in connection with the production, manufacture or export of those goods it would confer a benefit in relation to those goods and the financial contribution would meet the definition of subsidy under s.269T.

The CEO made clear in para2.4 of Appendix 8 that he had regard to the guidelines referred to in subss269TACC(4) and (5). Panasia did not submit, nor is there any basis to hold, that the CEO did not do so.

In written submissions, Panasia submitted that, although the CEO acknowledged the need to have regard to prevailing market conditions for like goods in China in determining what is adequate remuneration, he erred by concluding that prices charged by private enterprises in China were not capable of reflecting prevailing market conditions in that country under subs269TACC(5) because they were distorted. Panasia submitted:

The only matters identified by the CEO as distorting domestic prices for primary aluminium were export taxes and government purchases. Neither of these matters precluded domestic prices in China, private or otherwise, from reflecting prevailing market conditions.

The CEOs decision to ignore privately-owned supplier prices was contrary to the decisions of the Appellate Body which address the meaning of the phrases adequate remuneration and prevailing market conditions in Art14(d) of the SCM Agreement. In support of this submission reference was made to (inter alia) the report of the Appellate Body entitled United States Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada dated 19January 2004 (WT/DS257) (the Softwood Lumber Report) especially paras86-90 and 99-103.

It was necessary for the CEO to demonstrate that any distortion of market conditions resulted from the governments role as supplier because, absent that connection, there could be no subsidy in the relevant sense.

The prices which the CEO adopted as reflecting prevailing market conditions were London Metals Exchange (LME) prices which were not capable of satisfying the statutory description. Panasia submitted that this was apparent from the CEOs finding in Report 175 that the actual prices of imported primary aluminium paid by specific companies were themselves below the comparable LME price (Report175 at p33).

In oral submissions Panasia also submitted:

The governments involvement in relation to export taxes and as a purchaser of primary aluminium did not provide a basis for finding a relevant distortion.

The WTO jurisprudence emphasises that private prices can only be ignored when the governments market share is so large that it drives all prices down.

In considering these submissions it is useful to begin with the broad structure of s269TACC. The section is directed to the question whether a financial contribution confers a benefit. Subsection(2) is concerned with direct financial payments. If such a payment is received from (inter alia) a government or a public body then a benefit is deemed to be conferred by the payment. But if something other than a direct financial payment is received that constitutes a financial contribution of another kind, or income or price support then the question whether it confers a benefit is to be determined by the Minister (subs (3)). In determining this question the Minister must have regard to the guidelines specified in subs(4) including, relevantly, sub-para(d) which provides that the provision of goods or services by a government or public body does not confer a benefit unless the goods or services are provided for less than adequate remuneration. Subsection(5) then provides that the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions. The latter phrase is not defined.

Contrary to Panasias submissions, the CEO identified not only export taxes and government purchases as distorting domestic prices for primary aluminium, but also the role of SOEs which he found accounted for almost half of total aluminium production in 2008. These three factors led the CEO to conclude that prices for primary aluminium offered by private suppliers were unsuitable for the purposes of assessing whether or not a benefit had been conferred by government or public bodies through the provision of primary aluminium by SOEs to manufacturers of aluminium extrusions.

The CEOs approach is consistent with the decisions of the WTO Appellate Body in relation to Art14(d) of the SCM Agreement. In the Softwood Lumber Report the Appellate Body said (at para102):

We emphasize once again that the possibility under Article 14(d) for investigating authorities to consider a benchmark other than private prices in the country of provision is very limited. We agree with the United States that [t]he fact that the government is a significant supplier of goods does not, in itself, establish that all prices for the goods are distorted. Thus, an allegation that a government is a significant supplier would not, on its own, prove distortion and allow an investigating authority to choose a benchmark other than private prices in the country of provision. The determination of whether private prices are distorted because of the governments predominant role in the market, as a provider of certain goods, must be made on a case-by-case basis, according to the particular facts underlying each countervailing duty investigation.

(footnote omitted, emphasis added)

Even if it is accepted that the fact that SOEs were significant suppliers of primary aluminium could not of itself establish that prices for primary aluminium offered by private suppliers were distorted and therefore unsuitable for the purpose of determining a benchmark, that does not accurately describe the extent of the matters taken into account by the CEO in this case. The existence of export taxes and governmental purchases of primary aluminium were factors contributing to the CEOs conclusion.

The complaint made by Panasia concerning the CEOs use of LME prices assumes, incorrectly, that the CEO must adopt prices that reflect prevailing market conditions. Subsections(4) and (5) require only that the Minister have regard to certain matters for the purpose of determining whether a benefit has been conferred. It is apparent that the CEO was of the view that there was a market for imported primary aluminium in China and that, after making adjustments for delivery and other costs, LME prices provided a suitable benchmark in determining whether primary aluminium was supplied to manufacturers of aluminium extrusions in that market at less than adequate remuneration. I am not persuaded that this conclusion was not open to the CEO on the material before him.

NORMAL VALUE (ISSUES A1 and A2)Section 269TAAD and Regulation180(2)(b)

Section 269TAAD provides:

(1)If the Minister is satisfied, in relation to goods exported to Australia:

(a)that like goods are sold in the country of export in sales that are arms length transactions in substantial quantities during an extended period:

(i)for home consumption in the country of export; or

(ii)for exportation to a third country;

at a price that is less than the cost of such goods; and

(b)that it is unlikely that the seller of the goods will be able to recover the cost of such goods within a reasonable period;

the price paid for the goods referred to in paragraph(a) is taken not to have been paid in the ordinary course of trade.

(2)For the purposes of this section, sales of goods at a price that is less than the cost of such goods are taken to have occurred in substantial quantities during an extended period if the volume of sales of such goods at a price below the cost of such goods over that period is not less than 20% of the total volume of sales over that period.

(3)Costs of goods are taken to be recoverable within a reasonable period of time if, although the selling price of those goods at the time of