The Productivity Commission filed its final report on Australia's system for anti-dumping and countervailing duties with the Government at the end of 2009. The Government has yet to issue any response, and the final report has not been made public. Reform of Australia's anti-dumping system is a sensitive topic, both domestically in Australia – where different interest groups have very different perspectives on the matter – as well as internationally, where Australia continues to take an active interest in the WTO 'Rules' negotiations. Given these dynamics – and an upcoming election – a possible outcome is that the Government will defer any formal response to the Productivity Commission's recommendations until the conclusion of the Doha Round – whenever that might be.

The Productivity Commission's draft report foreshadowed the Commission's intention to recommend that the system be maintained, subject to several innovations, including recalibrating the system to give greater focus to the overall public interest.

This would be achieved primarily by requiring Customs (Australia's investigating authority) to consider the public interest in imposition of measures. Such an approach would start with a presumption in favour of measures where dumping has been causing injury, but would be supplemented by a list of specific circumstances where measures would normally be considered not in the public interest, for example where they would damage competition, would be ineffectual in removing injury, or would impose significant costs on downstream users.

Another notable feature of the Commission's draft recommendations was their rejection of proposals to introduce special rules for access to, and protection of, parties' confidential information. The report proposed little change to the current system whereby neither side in a case has an opportunity to examine or test confidential evidence put forward by the other. This feature is a key weakness of the Australian system compared to those operating in other jurisdictions such as the United States or Canada. It effectively prejudices the interests of both sides in a case by denying any opportunity to effectively 'cross-examine' evidence put forward by other parties. It also means that Customs' calculations are sheltered from scrutiny, and increases the negative effects of any leaks of confidential information by Customs.

The Government will introduce new penalties for purchasers, sellers and agents involved in residential property transactions that contravene Australia's foreign investment policy. At the same time, the Government will reverse changes to Australia's foreign investment screening regime for purchases of residential real estate by foreign persons. Those changes, made in 2008, have been criticised for increasing the pool of potential purchasers and driving up prices. Assistant Treasurer Nick Sherry has announced that the Government will reinstate many of the previous restrictions.

In late 2008, as the storm clouds of the Global Financial Crisis gathered, investment policy was relaxed following concerns about potential loss of value in the housing market. The changes allowed for temporary residents to be able to purchase one property to live in, with such persons no longer required to sell the property upon departure from Australia. This liberalised the previous position. The definition of "new dwelling" (a category of property with few restrictions on foreign purchasers) was also expanded, and restrictions on developers selling new dwellings "off the plan" to foreign persons were also relaxed. Other policy settings, such as prevention of foreign persons purchasing existing dwellings, were not changed.

The Government will now reinstate many of the old requirements, with the stated objectives being to ensure that foreign non-residents can only invest in Australia if the investment adds to the housing stock, and temporary residents can only invest in properties for their use while living in Australia.

The reinstated rules include requirements that temporary residents notify, be screened or be approved by the Foreign Investment Review Board (FIRB) before purchasing property. Temporary residents will be required to sell the established property they have bought when they leave Australia, and will be required to begin construction on any undeveloped land purchased within 24 months or face compulsory sale of the land. The $300,000 limit on housing purchases was not reinstated by the Government.

In addition, the Government will introduce a civil penalty regime, and a data-matching system to track potential breaches.

The civil penalty regime will introduce, through an amendment to the Foreign Acquisition and Takeovers Act 1975, sanctions for purchasers, sellers and agents involved in transactions that breach the Act, a compulsory divestment requirement for property purchased in breach of the real estate investment scheme, and a monetary penalty equivalent to any capital gain made by the breaching purchaser resulting from the forced sale.

The data-matching system will draw on FIRB data, State and Territory lands and property office transactional data, and Commonwealth Department of Immigration and Citizenship visa status data, to identify transactions of concern.

Other measures to be introduced include the creation of a community hotline to address public concerns and aid reporting of potential breaches, and Memorandums of Understanding between FIRB and State real estate agent regulators, and FIRB and the Director of Public Prosecutions to enhance levels of cooperation and enable better compliance and enforcement outcomes.

The WTO panel considering the dispute between Australia and New Zealand regarding access to the Australian market for apples has issued a confidential ‘interim report’ to the two main parties.

Although confidential, details of such ‘interim reports’ are almost always leaked. In this case, media reports are that the Panel has accepted at least some of New Zealand’s claims that Australia’s measures restricting importation of apples are not consistent with Australia’s WTO obligations.

The substance of interim reports seldom changes before they are finalised. This reflects the fact that Panels are reluctant to change their mind once they have taken a view on a legal issue. It is also a function of the availability of appeal – parties often consider it counterproductive to ask a panel to correct obvious flaws in a report as this only helps ‘appeal proof’ the result.

Interim reports sometimes, however, form the basis for settling a dispute. They effectively tell the parties who will win (subject to appeal), and thereby allow a fresh opportunity to negotiate an outcome. The advantage of confidentiality at the interim stage is that a settlement avoids the need for the findings ever to be made public. A dispute between New Zealand and the European Union over butter exports was settled in this fashion in the late 1990s.

The next step usually takes several months to finalise. Final reports are given to the parties, but are not circulated to the WTO membership as a whole or published until they are translated into all of the WTO’s official languages. Full detail of the report might not be available until late 2010.

Australia has substantially increased the penalties for corporations engaged in bribery of foreign public officials. Under legislation taking effect from late February, on conviction, a corporation could face either:

• a fine of up to $11 million
• three times the benefit flowing from the conduct; or, if that benefit cannot be determined,
• 10 % of annual turnover.

Fines for individuals are increased to $1.1 million. Existing law already provides for up to 10 years imprisonment.

Australia's anti-bribery laws apply to conduct by Australian corporations anywhere in the world. They capture a fairly wide range of conduct whereby a person dishonestly offers a benefit to a foreign public official with the intention of influencing that person in the conduct of their duties. Corporations can be held accountable in circumstances where they tolerate actions by employees or fail to create a corporate culture of compliance.