However, a number of parties had lodged applications with the Trade Measures Review Officer (“TMRO”) seeking review of the decision to impose the measures. Following preliminary review by the TMRO, the applications have been accepted as being in compliance with the relevant provisions of the Customs Act 1901 and by notice in The Australian Newspaper on 17 September, the TMRO has given notice of the initiation of its review of the decisions leading to the imposition of measures.
A review by the TMRO adopts a different process to other reviews with which readers may be familiar such as before the Administrative Appeals Tribunal and the Federal Court. Accordingly, some information as below may be of interest.
- The TMRO operates within the jurisdiction of the Attorney-General’s Department as opposed to the Australian Customs and Border Protection Service (“Customs”).
- The role of the TMRO is shortly to be replaced by a new review procedure pursuant to the Bills before Parliament.
- On any review, the TMRO is confined to the material provided to Customs and on which Customs conducted its investigation and made its recommendations.
- The TMRO will determine whether the grounds for review set out by applicants warrant a recommendation for a re-investigation by Customs. There are a variety of grounds which could warrant a re-investigation. For example, if Customs was found to have taken into account material which was not made available to other parties to the investigation that could be grounds for review.
- The TMRO cannot substitute an alternative decision to the decision which it is reviewing. All it can do is to make a finding on the review as to whether the relevant decisions warrant a re-investigation (or not) and then make a recommendation to the Minister for Home Affairs.
- If the Minister accepts a recommendation that there should be a re-investigation then it would be conducted by a different audit team within Customs to that which had undertaken the original investigation.
In this case we have acted for two importers seeking review of the decisions to impose measures by the TMRO. I understand that others have also made application for review. For example, the applicant for the investigation has sought review of the decision to terminate the investigation against one of the PRC exporters and impose no measures against that exporter.
As the notification of the review has now been published, interested parties have a 30 day period within which to make submissions to the TMRO. We would be pleased to provide assistance to those wishing to make such submissions.