On 28 August 2025, at a joint press conference “announcing [the] abolishment of nuisance tariffs” hosted by the Minister for Industry and Innovation, the Minister for Trade and Tourism, and the Treasurer, the Australian Government announced that responsibility for safeguard inquiries would move from the Productivity Commission to the Anti-Dumping Commission.
Under WTO rules safeguard measures can only be imposed against imports after an inquiry has been carried out by a competent authority. Since 1998 in Australia that authority has been the Productivity Commission.
The change follows decades-long lobbying from Australian domestic industry groups and unions who have repeatedly complained that the Productivity Commission’s approach towards safeguard inquiries was not industry-friendly. Which is understandable, in that the Productivity Commission’s remit has always been public interest based economic analysis rather than industry protection.
Because its critics viewed the Productivity Commission as an institutional obstacle to the successful prosecution of safeguard matters, such cases were few and far between. Indeed, the last safeguard inquiries in Australia, which concerned canned tomatoes and canned fruits, were concluded in 2013, and did not result in the imposition of safeguard measures.
The Australian Government now sees the Anti-Dumping Commission, which comes under the Department of Industry, as a more “fit for purpose” authority to carry out safeguard inquiries, in line with the other trade remedy proceedings that its name denotes. This shift is considered to be part of the Government’s “anti-dumping reform” and “an essential building block for a Future Made in Australia”.
What are safeguard measures and who do they safeguard?
Safeguard measures are temporary quotas, increased tariffs, or both that are imposed against the imports of a certain product. They were initially designed as a unique “emergency” trade remedy, intended to respond to a surge of imports that causes or threatens to cause serious injury to the domestic industry producing the same product. Because prohibitive tariffs are now being imposed by a number of major WTO Member countries, safeguard measures are now being eyed by many countries as a possible instrument to combat trade diversion.
Currently, safeguard inquiries are conducted pursuant to the Productivity Commission Act 1998 and Commonwealth Gazette No. S 297 of 25 June 1998. Australia’s closest trade partner, New Zealand, has been exempt from any safeguard risk under the two countries Closer Economic Relations arrangements since the original 1998 instrument was published. The Gazette was then amended in 2005 to give effect to safeguard measures exemptions contained in Australia’s FTAs with Singapore, Thailand and the US. These exemptions create WTO or FTA headaches for Australia, on the basis that safeguard measures are intended to be universal in their impact and not be targeted against or exclusionary of any exporting country or countries.
Without substantially changing the rules and the burdens of proof, the legal threshold required to establish an urgent situation justifying a safeguard action will continue to be a significant hurdle for the successful prosecution of safeguard measure inquiries. The surge in imports claimed must not merely be quantitative. It must also be the result of “unforeseen developments”[1] and be “recent enough, sudden enough, sharp enough and significant enough” in order to meet the requirements of the WTO rules.[2]
If the Anti-Dumping Commission, or whatever it is renamed, finds there to be grounds to impose safeguard measures, Australia could impose measures such as quantitative restrictions (quotas), tariff-rate quotas (imports exceeding a set quantity to be subject to higher tariff rate), or additional tariffs on the investigated steel products from all countries of export, for up to four years, and if extended, for a maximum of eight. In contrast to anti-dumping and countervailing measures, safeguard measures are imposed at a product-level irrespective of the country of export.[3] Further, if a safeguard measure is put in place for more than a year, the imposing WTO Member must liberalise the measure at regular intervals thereafter.
In recognition of the fact that safeguard measures require no finding of unfair trade, the WTO Agreement on Safeguards requires imposing Members to compensate affected exporting Members for the impact of the safeguard measure by ensuring a “substantially equivalent level of concessions and other obligations” is maintained with them. Failure to arrive at a mutually agreed means of trade compensation can entitle the affected Members to retaliate by suspending substantially equivalent concessions and obligations.
Accordingly, they are a potent instrument of industry protection, with direct impacts on market supply and on prices that can extend beyond the industry and market to which the safeguard measures directly apply.
Confusion trumps clarity
In making the announcement, these comments were attributed to Minister for Trade and Tourism Tim Ayres:
I have in this job since my appointment been working across industry, across heavy industry, across those smaller contractors in structural steel right through to big industry. And that requirement for a cohesive, effective anti-dumping regime that is modern and fit for purpose in the different world that we’re in, that question of having all of these – all of the tools at the government’s disposal in one place is at the top of industry’s list.
We have looked at it carefully. We’ve looked at it in the context of this set of reforms which will remove another 500 nuisance tariffs. That is a good outcome for the economy, but I can tell you that is an important outcome for Australian industry. And I’m delighted that we’ve worked this through and got, I think, a very high-quality outcome for Australia. It is an essential building block for a Future Made in Australia to make sure that we’re engaged in anti-dumping reform.
This is short on detail, and high on confusion. Safeguard measures are not an anti-dumping remedy; the shift of the safeguard measures responsibility to the Anti-Dumping Commission is not an anti-dumping reform; and nuisance tariffs have got nothing to do with it.
Ready, steady… go
The peak representative body for the Australian steelmaking industry, the Australian Steel Institute, chimed in with a media release on the same day as the Government’s announcement, stating that moving the safeguard responsibility to the Anti-Dumping Commission “provided much-needed clarity for how a Safeguard action is to be progressed in Australia”; that the change “brings the oversight of all trade measures in Australia into line with other comparable countries”; and that this was “an important step in protecting local jobs, and small business, and sustaining essential sovereign capabilities”.
Further, whether true or only a hurry-up provocation, the media release claimed that ASI was “currently in the final stages of readying an application for a Safeguard action, on behalf of the domestic steel industry”. Key members of the ASI, including BlueScope Steel and OneSteel/Infrabuild, are already frequent users of trade remedy actions in Australia, being the proponents of most of the anti-dumping and countervailing investigations initiated by the Anti-Dumping Commission.
Inevitable, but when?
As of 4 September 2025, the Productivity Commission’s website states that “Further details on the timing of this transition will be provided when available”. Thus, it is unclear how soon the administration of safeguard inquiries will be moved to the Anti-Dumping Commission and presumably a name change for the Commission would be in order. Whether there will be any rule changes to how safeguard inquiries are conducted and considered in Australia is also unknown, although the Government is constrained by the WTO Agreement on Safeguards as to how such inquiries are conducted and about the kind and duration of measures that may be imposed.
Whether or not there are delays in implementation, the clear policy signal is that safeguard measures will form part of an expanded trade remedy toolbox available to Australian industry under the “protective” eye of the Minister for Industry, soon or eventually.
About us
Moulis Legal is Australia’s only Chambers & Partners Band 1 ranked law firm for international trade/WTO. Our lawyers have represented key interested parties involved in the few safeguard measures inquiries conducted by Australia’s Productivity Commission. These include the Canadian Meat Council and Canadian Pork Council (pigmeat, 1998 and 2005) and the Italian National Industry Association of Conserved Vegetables (processed tomatoes, 2013). Moulis Legal also appeared for Swedish steel exporter SSAB EMEA in the Malaysian Ministry of International Trade and Industry safeguard measures inquiry concerning hot rolled steel plate (2014).
[1] General Agreement on Tariffs and Trade 1994, Article XIX:1(a) (“if, as a result of unforeseen developments…”) and Appellate Body Report, Argentina – Footwear (EC), para. 91.
[2] Appellate Body Report, Argentina – Footwear (EC), para. 131.
[3] With exceptions for developing country Members under Article 9 of the Agreement on Safeguards.
