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CASE NOTE: AMCOR V CEO OF CUSTOMS

OVERTURNING GOVERNMENT DECISIONS: A CASE STUDY

The recent Federal Court Decision of Amcor Packaging (Australia) Pty Ltd v CEO of Customs is a classic tale of a private litigant being required to make a Government Department accountable for decisions made under a legislative scheme. It also provides a compelling summary of Australia’s anti-dumping regime, which is regulated through the Customs Act 1901 (C’wth).

Background and Nature of Dumping

BHP Packaging had lodged a complaint with Australian Customs, alleging that tinplate exported from Taiwan and the United Kingdom was being “dumped” into the Australian domestic market. Amcor is a significant importer of tinplate and used this raw material predominantly in the manufacture of metal packaging, such as food and beverage cans. As with most dumping investigations, the interests of the local manufacturer and importer were diametrically opposed.

Dumping of goods occurs when goods are imported at a price that is less than the “normal value” of the goods in the country of export. “Normal Value” is a determined primarily by looking at the cost structures for the goods being exported. In addition, Australian producers of identical or similar goods must suffer “material injury” (akin to significant financial loss) as a result of the importations.

In this case, Customs determined that there were sufficient grounds for conducting an investigation, which is triggered by publication of a Dumping Duty Notice. Customs then, after the initial phase of the investigation, published a Preliminary Affirmative Determination and required Amcor to provide banking securities to the value of interim dumping duty, assessed in this case at roughly $880,000. In response, Amcor applied for a Final Determination of dumping duty, presumably on the basis that the Interim Duty figure was excessive. Critically, Amcor had to lodge its application within 6 months of interim duty being imposed.

The Decision and the Legal Challenge

Amcor’s application for a Final Determination of duty was dismissed by Customs without it being considered on its merits. In a letter to Amcor, a Customs Officer, being the delegate to the CEO of Customs, stated that the application did not provide any information to establish the claimed Normal Value in the country of export, nor the Export Price.

In Court, Customs also argued that Amcor’s application was not made in time. The application was received by Customs via facsimile at 5:41 pm on the last day for making the application.

* Judicial Citation: [2002] FCA 1346, delivered on 31 October 2002, Jacobson J.

Amcor then challenged the decision by applying to the Federal Court for a review of this decision, as it is empowered to do under the Administrative Decisions (Judicial Review) Act 1977. This Act of parliament gives the Courts power to review decisions of most Commonwealth Government Departments and Agencies that are “administrative” in character. Some decisions may be challenged in the Administrative Appeals Tribunal, but a great many, such as dumping decisions, may only be challenged in the Federal Court.

Findings

On 31 October 2002, the Federal Court found in Amcor’s favour and determined that Customs has failed to properly fulfil its role set down in the Customs Act. Accordingly, the Court ordered that a Writ of Mandamus be issued to the CEO of Customs, compelling the CEO to go back and assess the application.

More particularly, the Court found that:

A. The anti-dumping scheme required the CEO of Customs to examine an application and make various recommendations to the relevant Minister, which may or may not be adopted by the Minister. Summary dismissal of an application was inconsistent with this process.

B. If the CEO of Customs did not have this power, then the Customs Officer who made the decision, as an authorised delegate on behalf of the CEO, certainly did not have this power.

C. The application was still validly made if physically lodged outside ordinary business hours on the last day permitted under the Customs Act. Customs had argued that the application was not lodged until acknowledged as received, which was in this case, the next business day.

D. The information contained in the application did not have to be in a particular format (as Customs had argued). The applicant merely was required to supply information that would allow the CEO of Customs to make an assessment, upon which a decision could be made to determine the final amount of duty payable.

Lessons and the limits of Administrative Review

At the end of the day, the Customs Officer was compelled by the Court to assess the application on its merits. This is not, of course, a case of the Government Department being required to revisit a decision, but rather Customs was ordered to look at the application properly for the first time. The irony of this matter is that a Court battle may well have been avoided, had the Customs Officer examined the application and rejected it after having provided a detailed and reasoned response to Amcor.

The powers of review, in a sense, are limited in that an aggrieved party cannot force a decision maker to make the decision that the aggrieved party wants. However, if the issues or financial stakes are high enough, the person seeking a decision or review of a decision may seek review by the Courts as a means of ensuring that the decision-maker has fairly and reasonably arrived at a decision. Grounds for review of decisions, pursuant to the ADJR Act, include:

• A failure to consider relevant criteria required to be considered by legislation in arriving at a decision (or the reverse – taking an irrelevant consideration into account);
• Making a decision based on a general government policy without regard to the merits of a particular case;
• That the decision-maker did not have power to make the decision;
• That the decision was an improper exercise of power, was made in bad faith or was affected by fraud.

Ross Becroft

Please note that should you have any questions or issues regarding either potential or actual anti-dumping matters or review of government decisions generally, contact Louis Gross or Ross Becroft.

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