By Alistair Bridges, Special Counsel and Sophie Cleveland, Partner
The ability to impose safeguards measures has been a feature of the World Trade Organisation (WTO) legal structure since its inception in 1947. Yet, in Australia safeguards inquiries are uncommon – there have been four since the turn of the millennium. Three of those resulted in no safeguard measures being imposed, and one, regarding fabricated structural steel, is ongoing with an interim report due to be released in early September.
But this is 2026, and in 2026 the principles that underpin the WTO are under increasing pressure. This is an age where tariff commitments and treaty obligations, whether bilateral or multilateral, can be dismissed with seemingly no substantive condemnation. International trade law is devolving to law of the jungle. So, it is perhaps prudent that Australia sharpen its available tools to ensure that local industry is not overwhelmed by the seismic shifts in the international trading environment.
Against this background, the Customs Amendment (Safeguard Inquiries) Bill 2026 (Safeguards Bill) is a notable development. The Safeguards Bill represents an evolution not just of Australia’s approach to safeguards measures, but to trade remedies as a whole.
Safeguard measures find their basis in Article XIX of the General Agreement on Tariffs and Trade 1994. This article allows parties to suspend obligations under that Agreement where a product is imported in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products. Generally, this suspension will relate to the level of import duty applicable to the product (i.e., to raise those duties), however there may be other measures, such as the adoption of import quotas, with the underlying intent being to redress the injury identified in an inquiry.
Where they differ from other trade remedies, for example, anti-dumping measures, is in the broadness and intent of the measures. Safeguard measures are emergency measures that relate to all imports of a product, [1] this is in contrast to anti-dumping measures and countervailing measures (presently facilitated by the Anti-Dumping Commissioner) that relate to imports from a specific country, and will be imposed to respond to industrial injury caused by the real or perceived pricing behaviour of exporters in that country.
For example, the Productivity Commission’s current safeguards inquiry relates to all imports of fabricated structural steel. This is a relatively broad category of goods – everything from bridges to guardrails, from all sources. In contrast, the Anti-Dumping Commission is presently undertaking an investigation into certain welded steel mesh sheets specifically from China and Malaysia.
The overriding purpose of the Safeguards Bill is to transfer responsibility for safeguards inquiries from the Productivity Commission to the Australian Anti-Dumping Commissioner, who would be renamed the Australian Trade Remedies Commissioner.
There is, perhaps, a perception that the Productivity Commission is more concerned with the efficiencies of trade then it is with the competitive harms that may be suffered by the Australian manufacturing industry. In contrast, the Anti-Dumping Commissioner frequently recommends the imposition of anti-dumping measures on imports.
But characterising this as a purely protectionist move is inaccurate. The Safeguards Bill requires a broader consideration of the impacts of any proposed measures. It sets out a process whereby the Minister makes a referral to the Australian Trade Remedies Commissioner to commence an inquiry. The Commissioner would ultimately provide a report to the Minister at the conclusion of the inquiry. However, before the Commissioner recommends the application of safeguards measures, they must consider whether the recommendation is in the “public interest”. Amongst other things, this would include a consideration of the “likely impact of the recommendation on the Australian economy, downstream industries, and consumers”.
This is an important check. Due to their scope, safeguard measures have the potential to significantly alter the volume and value of imports of a given product. Often overlooked in the more common forms of trade remedies is the fact that (a) importers are Australian businesses, (b) they sell their products to Australian customers, and (c) any restrictions on importation will adversely impact both these businesses and customers. This public interest consideration is an important aspect that allows the consequences of what amounts to significant market intervention to be robustly analysed.
One interesting aspect of the Safeguards Bill is the lack of any accessible merits review body. At present, other trade remedies decisions may be subject to review before the Anti-Dumping Review Panel (ADRP). Given the fact-intensive nature of the decisions made to impose anti-dumping and, or, countervailing measures, access to a specialised merits review panel is important to ensure outcomes are “correct or preferable”. There is no language in the Safeguards Bill that extends the ADRP’s jurisdiction to the decisions regarding the application of, or decision not to apply, safeguards measures.
Absent a dedicated merits review forum, the only option for review of a decision is judicial review. Even in this respect, there is may be some difficulty. The Commissioner’s report to the Minister is required to be tabled before both houses of Parliament. Assuming this recommends the adoption of safeguard measures, then the report is likely to set out the reasons for that recommendation, and – again assuming this follows a similar path to other trade remedies decisions – is likely to be adopted as the reasons for the imposition of any safeguard measures. However, the tabling of the report gives rise to the prospect that it may be subject to parliamentary immunity under s 16(3) of the Parliamentary Privileges Act 1987, so there would be some question as to whether it could be tendered in any judicial review proceeding.[2] This would make judicial review on substantive, as opposed to procedural, grounds fraught with complexity.
This is a reason for some concern. Again, anti-dumping investigations are frequently subject to judicial review proceedings, with the decisions to impose measures often found to be erroneous. By their nature, the imposition of measures adversely impacts certain parties acutely; it is important for the legitimacy of such measures that there be an opportunity to address errors in any determination.
There is every prospect that the Safeguards Bill will differ substantially from what, if anything, is ultimately enacted. What is unlikely to change, at least in the short term, is the turbulence that has affected international trade, and which inspired the Bill in the first place.
It is notable, perhaps laudable, that Australia’s response to that turbulence is to look to pre-existing treaty mechanisms for answers, rather than neglecting international rights and obligations that it has been party to for over seven decades. However, even decisions that are made with the best of intent may be infected with error or give rise to unintended consequences. It is important that aggrieved parties have avenues to address these.
[1] Subject to exemptions for developing countries in certain circumstances set out in Article 9 of the Agreement on Safeguards.
[2] This complexity is vividly illustrated in the recent decision Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science (No 2) [2026] FCA 761.
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