SYNGENTA AUSTRALIA PTY LTD and COMPTROLLER-GENERAL OF CUSTOMS - [2023] AATA 1475

SYNGENTA AUSTRALIA PTY LTD and COMPTROLLER-GENERAL OF CUSTOMS [2023] AATA 1475
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/4961
Re:SYNGENTA AUSTRALIA PTY LTD
APPLICANT

AndCOMPTROLLER-GENERAL OF CUSTOMS
RESPONDENT

DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:29 March 2023
Place:Sydney

The Comptroller General’s 29 June 2021 internal review decision is affirmed.
..................................[SGD]......................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
CUSTOMS – tariff concession order - whether substitutable goods were produced in Australia and put, or capable of being put to a use that corresponds with a use of the goods subject to the tariff concession order – substitutable goods found – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Agricultural and Veterinary Chemicals Code Act 1994 (Cth)
Agricultural and Veterinary Chemicals Code 1994 (Cth)
Customs Act 1901 (Cth)
CASES
Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43
Becker Vale Pty Ltd v CEO of Customs [2015] FCA 525
Brand Developers Aust Pty Ltd v Chief Executive Officer of Customs [2015] AATA 215
Chief Executive Officer of Customs v Toyota Material Handling Australia Pty [2012] FCAFC 78
Cohns Industries Pty Ltd v DCT (1979) 24 ALR 658; 37 FLR 508
Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109
Dow Agroscience Australia Limited and Chief Executive Officer of Customs and Nufarm Australia [2012] AATA 568
Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336
General Merchandise & Apparel Group Pty Ltd v CEO of Customs [2009] AATA 988
In re Searles Ltd (1932) 33 SR (NSW)
Kenso Marketing (M) SDN BHD and Chief Executive Officers and Nufarm Australia Limited [2008] AATA 42
Kenso Marketing (M) SDN BHD and Chef Executive Officer of Customs [2011] FCAFC 26
Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757
Re Bag & Jute Company (Tamworth) Pty Ltd v Comptroller General of Customs (1995) 38 ALD 357
Re Downer EDI Rail Pty Ltd v Chief Executive of Customs (2010) 118 ALD 454
Re Thirco v Comptroller of Customs [1994] AATA 293; (1994) 35 ALD 665
Re Vulcan Australia Pty Ltd v Comptroller General of Customs [1994] AATA 150; (1994) 34 ALD 773
Toro Australia Group Sales Pty Ltd v Chief Executive Officer of Customs [2014] AATA 18
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
29 March 2023

Syngenta Crop Protection AG (“Syngenta AG”) is a Swiss company that manufactures “Reflex”, an agricultural herbicide. Its’ subsidiary company, Syngenta Australia Pty Ltd (which I will refer to simply as “Syngenta”) imports Reflex and distributes it in Australia.
Syngenta’s importation and sale of Reflex in Australia is the subject of a March 2021 registration and approval by the Australian Pesticides and Veterinary Medicines Authority (“the APVMA”)[1] under the Agricultural and Veterinary Chemicals Code 1994 (Cth) (“the Agvet Code”) – sections 14 & 15.[2]
[1] The APVMA is a corporation, established under that name, by the Agricultural and Veterinary Chemicals (Administration) Act (Cth) 1994 (“Agvet Admin Act”) ss 4, 6 & 12.
[2] The Agvet Code is the Schedule to the Agricultural and Veterinary Chemicals Code Act (Cth) 1994. It applies as a national code, as a result of the operation of the Agricultural and Veterinary Chemicals Act (Cth) 1994 and complementary State legislation – e.g. the Agricultural and Veterinary Chemicals (New South Wales) Act 1994.
The APVMA approval permits the importation of Reflex, its’ domestic sale, and its use in Australia for pre-emergent[3] weed control in a range of six different broadleaf crops. The APVMA approved label for Reflex states that the product’s active constituent is “240g/L FOMESAFEN”. The label also includes “general instructions”. They are to the effect that Reflex (i) is a soil applied, root absorbed, residual herbicide, (ii) dependent on its permissible application rates, and the particular crop, is efficacious in either control or suppression of seventeen specified broadleaf weeds in particular crops, (iii) except for being limited to pre-sowing in connection with lentil crops, and again dependent on its rate of application, can be applied either up to 7 days before sowing, and incorporated by sowing, or up to 10 days after crop sowing, but before crop emergence. The label also declares that Reflex is not to be used, for any purpose or in any manner, contrary to the contents of the label.
[3] The expression “pre-emergent” refers to herbicide application to soil before the emergence of crops or weeds. A pre-emergent herbicide is taken up through the plant roots (rather than foliage) and may, as in the case of Reflex, have some residual “post-emergent” effect.
SYNGENTA’S TARIFF CONCESSION ORDER APPLICATION
Under the ordinarily applicable tariff classification (ie. 3808.93.90 “… herbicides, anti-sprouting products and plant growth regulators …”) the importation of Reflex attracts duty at a general duty rate of 5 per cent. In these review proceedings, Syngenta is pursuing an application for a Tariff Concession Order (“TCO”) that would apply to its importation of Reflex. Syngenta made that application on 30 October 2020, under the relevant provisions of Part XVA of the Customs Act 1901 (Cth) (“CA1901”).
CA1901 section 269F(3)(a) mandates that a TCO application must contain “a full description of the goods to which the application relates”. The description Syngenta provided in its TCO application was “HERBICIDES having an active ingredient of fomesafen”. The stated use of these goods was “for the control of a range of broadleaf weeds when applied prior to sowing, or post sowing pre-emergence” in the six crops. The documents submitted with the application included a seventeen page “safety data sheet” setting out extensive information about Reflex. That information included the description of its principal ingredient as “fomesafen-sodium”. In November 2020, apparently as a result of that description in the safety data sheet, the Comptroller-General suggested (and Syngenta agreed) that the word “sodium” should be added to the description of the TCO goods.
The Comptroller‑General of Customs accepted Syngenta’s TCO application as a valid application for the purposes of CA1901 section 269H. It was then the subject of a 25 November 2020 gazettal which (i) included “sodium” in the “description of the goods to which the application relates”, (ii) stated that their use was for the control of “broadleaf weeds” in the six crops and, (iii) identified Syngenta as the TCO applicant. That gazettal attracted an objection submission by Nufarm Australia Limited (“Nufarm”). The basis of the objection was that three of Nufarm’s herbicide products were designed for use on broadleaf weeds and were “substitutable goods” for the purposes of CA1901 sections 269B(1) and 269C.
In February 2021, in response to Nufarm’s objection, Syngenta itself proposed a further amendment to the description of the proposed TCO goods. This proposal added the words “Group G”, apparently for the purpose of highlighting the fact that the three Nufarm herbicides had different modes of action, and different classification groupings, from that of “fomesafen sodium”” herbicides. As finally gazetted on 10 March 2021, the amended description of the proposed TCO goods was:
HERBICIDES, Group G[4], having an active ingredient of fomesafen sodium
[4] The “grouping” refers to a “mode of action” classification of herbicides. An international classification system uses numerals to identify the different “mode of action” groupings. The Australian herbicide classification system previously used capital letter identifiers but is being / has been altered to align with the international system. It was common ground in the proceedings that there was no content difference between (the Australian) Group G and (the International) Group 14: see Transcript page 303.29. The Group 14 “mode of action” was “inhibition of protoporphyrinogen oxidase”. The Group included five different “chemical families”. One family - “diphenyl ethers” - included “fomesafen” as one of the three “active ingredients” relating to the family.
REJECTION OF SYNGENTA’S TCO APPLICATION
In light of the information Nufarm had provided in support of its 6 January 2021 objection submission, the Comptroller-General was not satisfied that Syngenta’s TCO application satisfied the “core criteria” in CA1901 section 269C (satisfaction about compliance with the “core criteria” is a pre-condition to the Comptroller General’s power to make a TCO:- CA1901 section 269P(1)). The essence of the “core criteria” is that, “on the day on which the application was lodged”, no “substitutable goods”[5] were produced in Australia “in the ordinary course of business”. On 8 April 2021, the Comptroller‑General notified Syngenta of that dissatisfaction, and of the consequential rejection of the 30 October 2020 TCO application.
[5] The “substitutable goods” statutory criterion is further discussed in later parts of these reasons – at paragraphs 69, 101 & 118 below.
The substantive reasons for the Comptroller General’s 8 April 2021 decision proceeded on the basis of an implicit assumption that the relevant use of the herbicides described in the TCO application – the control of “broadleaf weeds” – was the same as the APVMA approved uses of Reflex and applied to the particular broadleaf weeds (and crops) specified in the approved Reflex label. On the basis of that assumption, the substantive reasons for the Comptroller General’s decision were as follows:
(a)Three herbicides - Amicide Advance 700 (Group I), Estercide Xtra 680 (Group I) and TriflurX, (Group D) – were efficacious in either controlling or killing at least some of, the same weeds as those affected by the Group G herbicides that were “the subject of the” TCO application, and therefore had a use that “corresponds”[6] with a use to which the TCO goods could be put;
(b)The three herbicides with the capacity for a use that “corresponds” with a use capacity of the TCO goods, were all “produced in Australia” (for the purposes of CA1901 section 269D), because they were the subject of substantial manufacturing processes (involving blending of ingredients, milling, granulation and a controlled exothermic process) carried out in Nufarm’s premises at Laveron in Victoria;
(c)Nufarm had produced the three herbicides “in the ordinary course of business” (for the purposes of CA1901 section 269E), because Nufarm had sold at least some of the “corresponding use” herbicides after 30 October 2020 (ie. within two years prior to Syngenta’s 30 October 2020 TCO application) and continued to advertise them for sale in Australia;
(d)The three herbicides were “substitutable goods” (for the purposes of CA1901 section 269B), because they had been “produced in Australia”, in the “ordinary course of business”, and had a use that “corresponds” with a use of the TCO goods;
(e)The finding that each of the three Nufarm herbicides was a “substitutable” good meant Syngenta’s 30 October 2020 application did not meet the “core criteria” in CA1901 section 269C;
(f)Because of the finding that Syngenta’s 30 October 2020 application did not meet the “core criteria”, CA1901 secton 269P(1) did not authorise the making of a TCO in response to the application.
[6] The capacity for corresponding use is a central aspect of the statutory definition of “substitutable goods”: see CA1901 s 269B(1).
The essence of the Comptroller General’s 8 April 2021 decision reasoning was that the fact of herbicidal efficacy against particular kinds of weeds, where it was common to both the TCO goods and Nufarm’s products, sufficed to characterise the latter as “substitutable goods” for the purposes of CA1901 section 269B(1).
THE MAY 2021 INTERNAL REVIEW REQUEST AND JUNE 2021 DECISION
Despite the generic wording of the description in the 10 March 2021 gazettal (see paragraph 7 above), Syngenta’s 11 May 2021 internal review request explicitly identified Reflex as “the goods described in the TCO”. The request then complained that the Comptroller General had incorrectly identified the “reasonable” actual/potential uses of both Reflex and the Nufarm herbicides. The substance of Syngenta’s contention involved the propositions that (i) the reasonable use of each of the four herbicides was limited to a combination of weeds, (ii) there was no known weed resistance to Group G herbicides, (iii) there was known resistance to Group D and I herbicides, (iv) consequently, the reasonable use of Reflex was either limited to, or only appropriate for, a weed combination target that included weeds that were resistant to the Nufarm herbicides.
The essence of Syngenta’s argument was that the mere fact Reflex and the Nufarm products were approved as effective herbicides in controlling or suppressing some of the same kinds of weeds, was insufficient to justify characterising any of the Nufarm herbicides as “substitutable goods”. Rather, it was necessary to compare their approved herbicidal efficacy[7] in relation to both their respective weed spectrum targets, and the permissible timing of their application (particularly relative to crop sowing). Syngenta contended that, when those kinds of comparisons were made, the Nufarm products had (i) a weed spectrum efficacy that significantly differed from, and had only a limited overlap with, that of Reflex, (ii) differences from Reflex in the types of permissible crop usage and, (iii) an application time restricted to the period prior to crop sowing. Those differences were said to lead to the conclusion that the Nufarm products could not be regarded as “substitutable goods”. They did not have a “reasonable” use that “corresponds” with the use capacity of Reflex.
[7] This composite expression has some relevance. APVMA approval for particular applications and purposes, does restrict the lawful supply and promotion of herbicides to the terms of the approval:- see paragraph 26 below. However, the approval does not necessarily delimit the actual efficacy of the particular herbicide. The point may be made by reference to two considerations. The first is that both Reflex, and at least some of the Nufarm herbicides, whilst restricted to “pre-emergent” applications, were known to have significant “post-emergent” residual effects. The second point is that Reflex, for example, has additional efficacious uses approved in other jurisdictions.
Underlying Syngenta’s contention was the proposition that the corresponding use capacity, critical to the characterisation of goods as “substitutable” for the purpose of meeting the CA1901 section 269C “core criteria”, required enquiry about (i) the use of “the actual goods described in the TCO application”: Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43 at [52], [53] & [56]; (2020) 275 FCR 652 at 652 & 667-668 (“Alstom”) and, (ii) the reasonable actual and potential uses of the locally produced goods:- Chief Executive Officer of Customs v Toyota Material Handling Australia Pty [2012] FCAFC 78 at [4]; (2012) 203 FCR 129 at 130 (“Toyota”).[8]
[8] I return to the concept of “reasonable use” later in these reasons: see paragraph 118 below.
The Comptroller‑General’s 29 June 2021 internal review decision, adhered to the April 2021 rejection of Syngenta’s TCO application. The internal review decision reasoning was substantially similar to that underlying the earlier decision. In particular, after correctly noting the description in the 10 March 2021 gazettal notice, the reasoning proceeded on the basis that “the goods the subject of the TCO application is called Reflex”. However, it specifically rejected the proposition that a herbicide’s APVMA approved “weed spectrum”[9] excluded its permissible use for the purpose of controlling or suppressing either weed populations of lesser diversity or individual weed species. In addition, the review decision reasoning supplemented the April 2021 reasoning with specific findings about the scope of Reflex’s approved herbicidal efficacy, on the one hand, and that of the Nufarm herbicides, on the other. The findings were to the following effect:
(a)the three Nufarm products, taken collectively, were effective herbicides in relation to nine of the eighteen weeds in relation to which APVMA had approved the use of Reflex;
(b)Amicide Advance 700 (“Amicide”) had permissible uses for the control of broadleaf weeds in fallow ground and in cereal crops, pastures sugar cane and non-agricultural areas, and was an effective herbicide in relation to seven of the weeds in relation to which the use of Reflex had been approved;
(c)Estercide Xtra 680 had permissible uses as a selective herbicide in some crops, pastures and non-agricultural areas, and was effective against three of the same weeds in relation to which the use of Reflex had been approved;
(d)TriflurX had permissible uses as a selective pre-emergent herbicide for the control of both annual grasses and some broadleaf weeds, in a number of agricultural crops, and was effective against four of the same weeds in relation to which the use of Reflex had been approved;
(e)the fact of common herbicidal efficacy in relation to some of the same weeds (and in connection with the same crops) sufficed to establish a corresponding use even if, because of their different active ingredients, the Nufarm products had different modes of action from Reflex;
(f)the potential “corresponding” use of the Nufarm products was “reasonable” for two reasons: (i) there was a substantial degree of “overlap” in the herbicidal efficacy of those products in relation to weeds listed in the Reflex label and, (ii) the potential for their use, given the desirability of herbicide rotation, to reduce the risk of the development of weed resistance.
[9] It would be more accurate, at least in the case of Reflex, to refer to the plural of “weed spectrum”. This is because the permissible weed targets comprised different weed groupings, depending upon both the nature of the crop and on whether the spray application purpose was weed suppression or weed control.
The Comptroller General’s internal review reasoning (in relation to the finding in paragraph 14(e) above) did not address, in any specific detail, Syngenta’s contention that reasonable use of the Nufarm herbicides was restricted to application prior to crop sowing. The reasoning proceeded on the basis that any restriction (or differences) only reflected differences in the mechanism of herbicidal efficacy. The Comptroller General considered that differences of that kind were required to be regarded as immaterial to the assessment of “substitutability”, having regard to the Tribunal’s decision in Dow Agroscience Australia Limited and Chief Executive Officer of Customs and Nufarm Australia [2012] AATA 568; (2012) 90 ATR 412.
Syngenta’s 22 July 2021 review application (under CA1901 section 273GA(1)(n)) challenged the Comptroller General’s reasoning, specifically in relation to the finding that the Nufarm products were “substitutable goods”. Syngenta seeks to have the Tribunal make a decision contradicting the 29 June 2021 internal review decision.
A THRESHOLD CHALLENGE TO SYNGENTA’S TCO APPLICATION
The April 2021 decision reasons, Syngenta’s May 2021 internal review grounds and the June 2021 decision reasons had all apparently regarded Reflex as “the goods the subject of the (TCO) application”.[10] That regard was again evident in Syngenta’s 29 October 2021 contention document. That document stated that (i) “the goods described in the application are registered … in Australia … and marketed under the name REFLEX” and, (ii) the only issue in the review proceedings was whether any of the Nufarm products were “substitutable for REFLEX”.
[10] This is the expression used in the definition of “substitutable goods” in CA1901 s 269B and in CA1901 ss 269(2), 269N(1)&(2), 269P(3), 269SA(1)(b)&(2)(b). Slightly different expressions are used in CA1901 ss 269F(3)(a), 269K(1)(b) & 269L(3)(a) (“the goods to which the application relates”) and CA1901 s 269L(3)(b) (“the description of the goods as set out in the application”). I have proceeded on the basis that the various expressions are synonymous, and that the relevant “goods” are those described in the TCO application (including any permissible amendment of the application).

That apparent correlation between Reflex and the description of the goods in Syngenta’s TCO application led to the Comptroller General advancing a new, and threshold, argument in the review proceedings. The argument involved the following propositions:-
(a)Reflex is the only herbicide product containing fomesafen sodium that is registered with the APVMA.
(b)As the only such registered product, Reflex is the only fomesafen sodium herbicide that can lawfully be imported into, or manufactured or used in, Australia
(c)The description of the goods in the proposed TCO (see paragraph 7 above) therefore applies, and in fact can only apply, to “Reflex”;
(d)The proposed “description of the goods” therefore refers, by implication, to Syngenta’s Reflex produce and is therefore an ineligible description for the contents of a TCO: CA1901 sections 269SJ(1)(aa) & 269SJ(1A)
(e)Therefore, CA1901 section 269HA mandates rejection of Syngenta’s 30 October 2020 TCO application.
The first proposition, that Reflex is the only APVMA registered product having an active ingredient containing fomesafen sodium, was asserted, rather than established by evidence.[11] Syngenta did not actively challenge the accuracy of the assertion, and it would ordinarily be imprudent to accept the absence of contest as sufficient to justify acceptance of such an assertion.[12] However, the parties were content to accept it as accurate, and I will proceed on that basis.
[11] There was no direct evidence about the content of the APMVA’s (i) register of “agricultural chemical products” (ii) register of “approved active constituents for chemical products” or, (iii) record of permits: see Agvet Code ss 17, 18 & 113. The Comptroller General’s written submissions (10 March 2022 at [39]) asserted that a search of the APVMA’s “Public Chemical Registration Information System” (of registrations and approvals) for the word “fomesafen” revealed only the facts of (i) Reflex’s registration and, (ii) the approval of “fomesafen” as an active constituent. The submissions did not address the content of APVMA’s record of permits.
[12] The TCO application form requires an applicant to have made enquiries about the availability of “substitutable goods”. Contemplated enquiries include requests for information from “prescribed organisations”, resort to the Department of Home Affairs list of “domestic manufacturers”, review of “trade directories” and use of internet search engines. Syngenta’s TCO application disclosed that it had utilised only “search engine” enquiries.
Nevertheless, the Comptroller-General’s second proposition, that Reflex is the only herbicide containing fomesafen sodium that can lawfully be imported into Australia, requires some examination, and consequential qualification.
There certainly is a general prohibition on the importation into Australia of both an unregistered chemical product and an unapproved active constituent for a chemical product: Agricultural and Veterinary Chemicals (Administration) Act 1992 (“Agvet Admin Act”) section 69B(1). However, the APVMA may exempt any chemical product, and any active constituent, from the prohibition: Agvet Admin Act section 69B(3). Furthermore, an otherwise prohibited importation does not constitute an offence, if the importer has the APVMA’s written consent: Agvet Admin Act sections 69B(1B) & (3A). Where goods have been wrongfully imported, the APVMA may (but is not obliged to) cause them to be forfeited to the Crown: Agvet Admin Act section 69B(4). Where the wrongful importation results in a conviction, a court may order products or ingredients belonging to the convicted person to be forfeited to the APVMA: Agvet Admin Act section 69ET.
In assessing the prospect of APVMA exemption or consent in relation to the importation of a “chemical product”, it is informative to consider what was involved in the process by which Syngenta obtained its March 2021 registration of Reflex.
Syngenta’s evidence established that, at least as a practical matter, an application for APVMA chemical product registration had to be supported by evidence of the trial use of the product in Australia. It also established that Syngenta had carried out Australian trials of Reflex, prior to obtaining the March 2021 APVMA registration and approvals. At least in the absence of any evidence to the contrary, it necessarily follows that Syngenta had previously been able to obtain an operative permission from the APVMA, and had effected the lawful importation of Reflex, well before March 2021.
ASPECTS OF THE AGVET CODE
In that context, it is also relevant to understand the principal aspects of the Agvet Code. That understanding is relevant for the purpose of assessing the prospect of APVMA exemption or consent in relation to any current or future importation of a “chemical product” falling within the description of the goods in Syngenta’s TCO application. The principally relevant Agvet Code provisions are summarised in the following paragraphs.
APVMA registration, approval, exemption,[13] or permit, is a prerequisite to the lawful supply, or possession, “with the intention of supply”, of any “agricultural chemical product” or an active constituent of such a product: Agvet Code sections 74 to 78.
[13] The Agvet Code contains a general provision, dependent on a relevant complementary reference in other Code provisions, authorising the APVMA to exempt chemical products and active constituents from the operation of various provisions of the Code: see Agvet Code s 6.
Lawful supply and promotion of any “agricultural chemical product” is further conditional upon compliance with any registration (or permit) conditions and is limited to supply in a container with an APVMA approved label: Agvet Code sections 79 to 84.
The APVMA may register a “chemical product”, where it has approved “each active ingredient”, and the “label for containers” of the product: Agvet Code sections 14, 15 & 19 to 22.
Neither product registration, active constituent approval nor label approval, precludes similar registration or approval in response to applications by entities other than the first successful applicant: Agvet Code section 16.
APVMA product registration and label approval are time limited, but are both potentially renewable: Agvet Code sections 47 & 49 to 51. Subject to various formalities and / or conditions, any APVMA registration or approval can be subsequently reconsidered, cancelled, suspended, or its “relevant particulars” (i.e. details including instructions for use and label contents) varied, by the APVMA: Agvet Code sections 27 to 29B (variation); sections 29L to 34AF (reconsideration); and sections 34N to 45A (cancellation and suspension).
In the absence of an applicable registration or approval, any person may apply for, and the APVMA may issue, a permit to authorise conduct that would otherwise be prohibited by either various specified provisions of the Agvet Code (including the provisions referred to above) or by an “eligible law”: Agvet Code sections 108 & 116.[14] The APVA may issue such a permit irrespective of the fact, or status, of any approval or registration application. Subject to certain disqualifying conditions (relating to past convictions or the risk of future non-compliance), the APVMA must approve a permit application if it satisfied that (i) the application complies with various specified requirements and, (ii) the goods meet safety, efficacy and trade criteria[15]: Agvet Code sections 112 & 112A.
[14] It is not entirely clear that the Agvet Administration Act would be an “eligible law”, having regard to the definition in the Agvet Code s 3. However, the issue of a permit would likely constitute a written consent for the purposes of the conditional importation prohibition in Agvet Administration Act s 69B.
[15] The content of these three criteria is detailed in Agvet Code ss 5A, 5B & 5C.
REFLEX IS NOT THE ONLY “FOMESAFEN” HERBICIDE
Reflex’s APVMA registration, even if accepted as a current singularity, does not justify acceptance of the Comptroller General’s third threshold proposition - that the description of the “goods the subject of the (TCO) application” can only apply to Reflex. The March 2021 APVMA registration of Reflex does not preclude (i) the existence of other currently manufactured herbicides containing fomesafen sodium, (ii) the future development of such herbicides or, (iii) the future APVMA registration of such herbicides.
In relation to those possibilities, Syngenta provided evidence tending to establish that (i) there are, in fact, at least four known manufacturers of fomasafen[16], (ii) fomasafen is marketed in two forms – “technical” (a dry, and less soluble form) and “sodium” (a more soluble fomasafen salt supplied as a wet paste), (iii) although “fomasafen” is the active ingredient that has been approved by the APVMA, fomasafen sodium is the form of fomasafen typically used in the formulation of herbicides (at least because of its greater solubility) and, (iv) approximately 16 companies (including Syngenta and Nufarm) marketed a “fomasafen” containing herbicide at some stage during 2021.[17]
[16] This evidence referred to “fomesafen” and “fomesafen AI” (I assume “AI” is an abbreviation of “active ingredient”) rather than to “fomesafen sodium”. However, this evidence was proferred in response to my specific enquiry about the existence of other herbicides capable of satisfying the description in the TCO application:- see Tcpt at 251.5. Consequently, the evidence favoured, and I have adopted, the view that the term “fomesafen” was used to refer to “fomesafen sodium”.
[17] The evidence was not specific as to whether these fomesafen products were marketed in, or only outside, Australia. However, I have proceeded on the basis that all such marketing was outside Australia – see paragraph 19 above.
Syngenta also provided evidence that Syngenta AG markets a number of fomesafen containing herbicides in addition to Reflex. Two of those other Syngenta AG herbicides have fomasafen[18] as their active ingredient. One of them is registered for use in seventeen countries, predominantly for the purpose of the “post emergent” control of broadleaf weeds in a range of “bean” crops. The other Syngenta AG fomesafen herbicide is registered for use in the USA for the suppression and control, both pre and post emergence, of broadleaf weeds in soybean crops. Four other Syngenta AG herbicides contain fomesafen as part of a mixture of active ingredients. Those four other fomesafen containing herbicides are registered for use in a total of 10 countries, including four countries in which Syngenta AG does not market either of the other two fomesafen herbicides. One of these other “mixture” herbicides is registered for use only in Mexico, and only for the post emergent control of broadleaf weeds in soybeans and garden beans. Another of the “mixture” herbicides is registered for similar “post emergent” applications in four countries. The third of the “mixture” herbicides is registered for broadleaf weed control in both soybean and cotton crops and has both pre and post emergent uses. The fourth of the mixture herbicides is registered for use, typically “post emergent” in soybean crops. It is also registered for use in the USA and Canada as a non-selective “burndown” application for the control of grasses.
[18] The evidence did not specifically state that fomesafen was present in any of these other herbicides as “fomesafen sodium”. However, in opening and final submissions Syngenta’s counsel asserted that “fomesafen sodium” was the “salt” ie., the actual chemical form of the active ingredient: see transcript at 10.34; 241.41; 305.2. That is consistent with the evidence that “fomasafen” was supplied in only two forms – “technical” and “sodium” – and that, because of its greater solubility, “fomasafen sodium” was used “when formulating herbicides”.
The evidence summarised in the preceding paragraphs comfortably establishes the objective fact that Reflex is not the only herbicide that contains fomesafen/fomesafen sodium. The evidence less clearly establishes that Reflex is not the only herbicide capable of satisfying the TCO description. In that context, the parties agreed that contentious goods must precisely satisfy the TCO description.[19] They would not do so where they contained active ingredients other than fomasafen. It would follow from the requirement of precise TCO satisfaction that the four Syngenta “mixture” herbicides would not satisfy the TCO description. Neither would the two Syngenta products that contain only “fomasafen”, unless it was present in the form of “fomasafen sodium”. However, the evidence tended to establish that (i) “fomasafen sodium” was the form of fomasafen typically used in herbicides, (ii) fomasafen sodium, but not fomasafen “technical” was relevantly water soluble and, (iii) at least one of Syngenta’s “fomasofen” products was marketed as a “soluble concentrate”. In those circumstances, the proper conclusion to draw is that Reflex is not the only product capable of satisfying the TCO description.[20]
[19] That agreement was reflected in post hearing written submissions, in which the parties drew attention to - Toro Australia Group Sales Pty Ltd v Chief Executive Officer of Customs [2014] AATA 187; Brand Developers Aust Pty Ltd v Chief Executive Officer of Customs [2015] AATA 215 and Becker Vale Pty Ltd v CEO of Customs [2015] FCA 525, [62 – 64].
[20] The evidence did not specifically establish that either of the two Syngenta “fomasafen” herbicides would fall within the TCO description of “Group G” herbicides. However, that conclusion is appropriate – because (i) herbicide “grouping” depends on the mode of action of the active ingredient (see paragraph 7 above) and, (ii) Syngenta provided the “other product” evidence in response to my specific enquiry about the existence of other goods capable of falling with the TCO description.
THE REQUIREMENT FOR GENERIC TCO DESCRIPTION
It is next necessary to address the Comptroller General’s fourth threshold proposition – that the proposed description of the goods in the TCO refers, by implication, exclusively to Reflex. The prescriptive requirements of the description of goods in a TCO are set out in CA1901 section 269SJ. Its’ content (to the extent of its present relevance) is in the following terms:
269SJ TCOs not to apply to goods described by reference to their end use or certain goods
(1) The Comptroller‑General of Customs must not make a TCO in respect of goods:
(aa) described in terms other than generic terms; or
(a) described in terms of their intended end use; or
(b) …
(1A) Without limiting the meaning of the reference in paragraph (1)(aa) to goods described in generic terms, goods are taken not to be so described if their description, either directly or by implication, indicates that they are goods of a particular brand or model, or that a particular part number applies to the goods.
It is also relevant to recognise that a TCO ordinarily comes into force on the date of the application, and that it has a prospective force: CA1901 sections 269S(1) & 269P(4)(b). (In some circumstances,[21] it may be expressed either to end, or to take effect, prior to the date the TCO is made: CA1901 section 269SA(2)). Once a TCO has come into force, it may be revoked where the Comptroller General is satisfied that, given the circumstances current at a subsequent date, the TCO would not then have been made: CA1901 sections 269SB; 269SD(1AA) & (1AB). A TCO may also be revoked where (amongst other things) (i) the tariff rate for the goods has been changed, (ii) the tariff classification for the goods has been mis-stated or removed or, (iii) no TCO goods have been imported in the preceding two years: CA1901 section 269SD(1)-(3).
[21] Where local production of “substitutable goods” is expected either to start, or to cease, prior to the date of a decision on the TCO application.
I have already indicated acceptance of the proposition that Reflex is the only fomesafen sodium containing herbicide product currently registered by the APVMA (see paragraph 19 above). It may be correct to say that Syngenta is the only current holder of an APVMA approval for fomesafen sodium as an active constituent ingredient. It may also be correct (although the evidence does not establish) that no relevant APVMA exemption, consent or permit has been granted relating to fomesafen sodium. It does not follow, however, that the proposed description of the TCO goods “either directly or by implication, indicates that they are goods of a particular brand or model” – either the Syngenta “brand” or the Reflex “model”.
The correlation asserted by the Comptroller General, between the “goods the subject of the application” (i.e. the proposed TCO description) and Reflex, depends entirely upon contemporary factual singularities, rather than upon the actual content of the TCO description of the goods. The contemporary singularities are that (i) Syngenta is the only current holder of an approval for “fomasafen sodium” as an “active constituent” and, (ii) Reflex is the only chemical product containing such an active constituent that is currently registered by the APVMA. But there is no contextual justification for interpreting CA1901 section 269SJ as precluding the use of an otherwise generic description, merely because of such contemporary, and potentially merely temporary, singularities. There is in fact no demonstrable singularity in either (i) the existence of a fomasafen sodium containing herbicide, (ii) the prospect of lawful importation of an unregistered herbicide containing such an active constituent or, (iii) the prospect of the future registration of a herbicide containing such an active constituent.
The CA1901 section 269SJ requirement for a “generic” description of proposed TCO goods may be regarded as a somewhat idealised conception. It is an ideal capable of practical application where the proposed TCO goods are amenable to a meaningful generic classification. But practical reality suggests that the distinction between a genus and a particular “brand or model” can become problematic. The more detailed the description of the proposed goods, the greater the risk that the description will be viewed as a specification of a particular product, rather than as a mere description of a genus of goods.
This point can be made by comparison of the contents of the Explanatory Memorandum to the Customs Amendment Bill 1996 and the TCO description of the railway vehicles in the Alstom matter (see paragraph 13 above). The Explanatory Memorandum suggested that a description which gave an extensively detailed prescription of the particular physical characteristics of the proposed TCO goods would be impermissible where “it goes to such specificity as to imply there can only be a washing machine model ABC of XYC company”. On the other hand, the TCO description in the Alstom matter was of “driverless, single deck” trains having about thirteen specific features. Despite that apparently comprehensive statement of the features of the goods, the description was nevertheless not impugned as failing to satisfy the generic description requirement.
One reading of the wording of the Explanatory Memorandum illustration suggests that the impugned implication must arise exclusively from the content (i.e.. from the “specificity” of the description. Another reading is that the implication likely ultimately depends on the fact of some demonstrable correlation between the description an actual product and does not arise from the mere specificity of the description.[22] These two alternative readings highlight the potential difficulty of distinguishing between generic and particular descriptions in marginal cases. Indeed, it may be true to say that the prohibited implicit indication is unlikely to arise solely from the mere content of the contentious description, however detailed it may appear to be. However, neither that difficulty, nor that supposition, warrant the conclusion that a proposed description offends against the limitation to generic descriptions merely because of a contemporary factual correlation between an apparently generic description and a particular product. Still less is such a conclusion warranted where the objective reality is that multiple products potentially fall within the generic description, and the correlation depends on attaching determinative significance to a qualified statutory prohibition of the kind expressed in section 69B of the Agvet Admin Act (see paragraph 21 above). The emphasis of the statutory prohibition in CA1901 section 269SJ(1) is on the content of the TCO description of the goods, rather than on the contemporary factual scope or significance of that description. In applying that emphasis in the determination of particular TCO applications, difficult and impressionistic assessments may need to be made in marginal cases. But in the present case the description of the proposed TCO goods is inherently generic. It contains no textual pointers that would tend to indicate, either directly or by implication, that the goods described are a particular product, or the product of a particular manufacturer.
[22] The short point is that, unless there was a known product that satisfied the contentiously specific TCO description, it is unlikely (as a matter of practical reality) that it would be characterised as implicitly indicating a particular product or manufacturer.

Consequently, the Comptroller General’s belatedly asserted threshold argument is rejected.
THE ALTERED SPECTRUM OF “SUBSTITUTABLE” HERBICIDES
In the review proceedings, the Comptroller-General varied the reasoning relied on to support the TCO refusal decision. One variation was to resile from active contention that Estercide (see paragraph 14 (c) above) should be characterised as a relevant “substitutable” good. A second variation was to contend that a glyphosate herbicide produced by Nufarm – CRUCIAL (“CruciaL”) – was a “substitutable” good. A third variation was to contend that TERRAIN (“Terrain”), a Group G herbicide marketed by Nufarm, should also be characterised as a “substitutable” good. This resulted in the following four herbicides being proffered as relevantly “substitutable goods”: TriflurX, (Group D), Terrain (Group G), Amicide Advance 700 (Group I), and Crucial (Group 9).
The active ingredient of TriflurX is trifluralin, in the form of an emulsifiable concentrate. The permissible uses of TriflurX have been outlined earlier in these reasons (see paragraph14(d) above).
The active ingredient of Amicide Advance is “2, 4-D” (ie. 2, 4-Dichlorophenoxyacetic acid) in the form of soluble concentrates of dimethylamine and monomethylamine salts. The permissible uses of Amicide Advance have been outlined earlier in these reasons: see paragraph 14(b) above.
The evidence established the following matters in relation to Crucial:
(a)Crucial is a soluble herbicide concentrate whose predominant active ingredient is glyphosate (in the form of various salts), at a concentration of 600 g/L.
(b)Crucial is produced in Australia by Nufarm, using imported glyphosate acid and other agents, including Australian produced aqueous ammonia, and various surfactants and dyes.[23]
(c)Crucial has been registered by the APVMA since about 2019 and is described (on its approved label) as “a water soluble herbicide for non-selective control of many annual and perennial weeds in conservation tillage and other situations”.
(d)Crucial is approved for use in fallow and in fields to be sown with any crops, in the latter case, however, and depending on the type of weeds present, and their stage of growth the period required to pass before sowing ranges between one daylight hour and seven days,.
(e)Crucial is also approved for post sowing, pre-emergent, use in some crops (none of which is the subject of the APVMA approval for Reflex).
(f)Crucial also has “post emergence” use in some types of canola and cotton, and use as a “pre-harvest” dessicant in some crops, including at least four crops included in the approved uses of Reflex.
(g)Crucial is an effective herbicide for the control of a large number of weeds, including four weeds included in the approved uses of Reflex.
[23] A substantially similar process has previously been held, for TCO purposes, to involve the production of goods in Australia: see paragraphs 58 to 63 below.
The evidence established the following matters in relation to Terrain:
(a)The APVMA registered Terrain and approved its product label on 11 February 2019.
(b)Terrain is in the same herbicide group as Reflex (Group G), its active constituent is flumioxazin, present in a concentration of 500g/kg.
(c)Sumitomo Chemical Australia Pty Limited (“Sumitomo PL”) is the holder of the APVMA registration of Terrain, and of two other herbicides with the same active constituent.
(d)Nufarm holds the trademark for Terrain, purchases the product from Sumitomo PL, and markets Terrain in Australia.
(e)The February 2019 APVMA approval is for the use of Terrain, for pre-emergent weed suppression in various crops, by application within seven days before crop sowing (and including incorporation by sowing).
(f)The APVMA approved crop and weed applications of Terrain include three of the six crops to which Reflex’s APVMA approval relates[24] (ie. chickpea, faba bean and field pea) and the suppression of 12 of the 17 weeds that are the subject of the APVMA Reflex approval.
[24] On 11 February 2022, the APVMA approved a new label for Terrain. The principally relevant effect of that new approval was to extend the use of Terrain to pre-emergent use in “lentils” (the fourth of six of the crops to which the Reflex approval related) for the suppression of 13 weeds, including 8 weeds included in the Reflex label approval. The core criteria refer to the state of affairs at the date of the TCO application: CA1901 s 269C. Where substitutable goods commence to be produced after the TCO application, the Comptroller General may limit the period the TCO is in force. However, such a decision is subject to a separate right of review: see CA1901 ss 269SA(1); 273GA(1)(p). For these reasons, I have noted, but not otherwise had regard to, the February 2022 label.
The evidence established the following matters in relation to flumioxazin:
(a)It is the subject of APVMA approval as an “active constituent” for a chemical product but is not itself registered as a chemical product.
(b)Sumitomo PL imports flumioxazin in 50kg, plastic lined barrels.
(c)As imported, flumioxazin is variously described as “granular” or “powder” in form, and exhibits a typical particle size variation ranging from about 5 to 100 micron.
(d)The imported bulk form of flumioxazin is variously described as insoluble or having very poor solubility in water.
(e)Because of its (i) very limited (if any) solubility in water and, (ii) (variable) particle size, the imported bulk flumioxazin, is not capable of practicable use as an effective herbicide.
Using specialised contractors, Sumitomo[25] formulates Terrain in Australia in 500 kg batches. The formulation process involves the following steps:
[25] For the sake of simplicity, I will simply refer to Sumitomo as the entity that carries out the formulation and packaging activities involved in producing Terrain.
(a)In a dust-controlled environment, operators fully clad in personal protective equipment (“PPE”), remove 250kg of the imported bulk flumioxazin from the 50kg containers, and load it into a charge bin.
(b)The same operators measure various surfactants, dispersants and binding agents (according to a formula prescribed by Sumitomo, regarded by it as commercially confidential and not disclosed or explored in the evidence in the review proceedings) and load them into the vessel containing the flumioxazin[26].
[26] There was no evidence to establish that any of these other Terrain ingredients had been “produced” in Australia.
(c)The contents of the charge bin vessel are then discharged into a blender.
(d)The blender is housed in an enclosed room, with a dust controlled environment, and attended by PPE clad operators.
(e)Milling the blended ingredients in sequential mills, including a specialised “classifier mill”, to achieve a specified particle size.
(f)The required particle size is in a range between 1 to 10 micron[27] – in order to facilitate achieving product “granules” that (i) are less prone to dispersal by wind and, (ii) have the physical property of being dispersible in water.
(g)Subjecting the milled material to a second blending process.
(h)Sampling the re-blended material to assess whether it meets the product specifications, including the desired particle size.
(i)Introducing water to the approved blended material, to achieve a slurry that is then subjected to an extrusion process, to produce granules of a specified size.
(j)The extrusion process typically involves the use of a centrifuge (approximating the size of a passenger motor vehicle) equipped with multiple interchangeable screens.
(k)Oven drying the extruded granules to achieve a moisture content between one and two percent.
(l)Screening the dried granules to retain only particles of the required size.
(m)After the formulation process has been completed, Sumitomo packages the Terrain product (into boxes containing 8 foil covered, water soluble bags each containing 300gms of the product) and supplies the packaged product to Nufarm.
[27] The precise particle size specification is also regarded by Sumitomo as commercially confidential. It was not disclosed in the evidence in the review proceedings.
The evidence established the following matters about the purpose and significance of the formulation process:
(a)The restricted granule particle size used in the Terrain formulation is necessary to (i) reduce the likelihood/extent of wind dispersal in the course of “on farm” handling of the product and, (ii) result in the product, and in particular the flumioxazin, having the physical property of being readily dispersible in water.
(b)The practicability of utilising Terrain as a spray application depended on Terrain’s ability to produce a fine particulate suspension in “on farm” spray equipment tanks.
(c)The surfactants, dispersants and binding agents included in the Terrain formulation process, and the granular form of the formulated product, enhanced its ability to form, and maintain, a fine particulate suspension of flumioxazin.
(d)The restricted particle size specifications used in the Terrain formulation were also critical to the herbicidal efficacy of flumioxazin, because it facilitated uniform coverage of flumioxazin on the target soil or weeds.
(e)The surfactants included in the Terrain formulation process enhanced the uniform coverage of flumioxazin on the target soil or weeds.
THE LIMITED CONTEST ABOUT AUSTRALIAN PRODUCTION
Three of the four elements of the “core criteria” that precondition the power to make a TCO are the absence of any “substitutable goods” that were produced (i) in Australia, (ii) in the “ordinary course of business” and, (iii) at the time the TCO application was lodged: CA1901 section 269C. In both the April and June 2021 decisions, the Comptroller General had found that Nufarm’s Amicide Advance 700, Estercide Xtra 680 and TriflurX herbicides were “produced in Australia” and relevantly satisfied the three aspects of the “core criteria” in CA1901 section 269C. In the review proceedings, Syngenta conceded the propriety of those findings and did not seek to contradict them. Syngenta also acknowledged that (as the evidence established), Crucial was produced in Australia. Syngenta did dispute that Terrain had been “produced in Australia”[28].
[28] Syngenta did not dispute that, if Terrain was relevantly produced in Australia, that production took place both in the “ordinary course of business, and at the time of the TCO application.
Under the relevant CA1901 provisions, goods are taken to have been “produced in Australia” if they have been “wholly or partly” manufactured in Australia: CA1901 sections 269B(1) & 269D(1). Goods are to be taken to have been “partly manufactured in Australia” if “at least one substantial process” in their manufacture “was carried out in Australia”: see 269D(2). The statutory expression “one substantial process in the manufacture of the goods” is one of intentionally wide scope, but it is qualified by a limiting exegesis. That qualification is contained in the following wording of CA1901 section 269D(3):
(3) Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process:
(a) operations to preserve goods during transportation or storage;
(b) operations to improve the packing or labelling or marketable quality of goods;
(c) operations to prepare goods for shipment;
(d) simple assembly operations;
(e)operations to mix goods where the resulting product does not have different properties from those of the goods that have been mixed.
The first (“preservation”) and third (shipping “preparation”) aspects of the qualifications in CA1901 section 269D(3) pose some difficulty of interpretation. On one hand the “preparation” aspect could be regarded as including any activity involved in packaging the goods, including the selection and use of appropriate packaging, and as overlapping with the “preservation” aspect. On the other hand, the second aspect, with its emphasis on “operations to improve” packing or labelling, tends to convey the impression that the basic/ordinary activities of packaging or labelling goods were not intended to be excluded from characterisation as a relevant “substantial process” in the manufacture of contentious goods.
It is not necessary to reach any concluded view on the difficulty alluded to in the preceding paragraph. This is because the Sumitomo process for the formulation of Terrain involves more than activities relating to the packaging, packing and shipment of Terrain. The formulation process also involves more than “simple assembly operations”. That conclusion is merited by the considerations that the formulation process involved:
(a)The combination of a range of materials, in accordance with a commercially sensitive (and undisclosed) formulation specification.
(b)More than the mere aggregation of those materials, as if they were merely the component parts of a previously identified/composed thing.
(c)Handling materials, including a potentially hazardous material, in 500 kg batches, in a controlled environment.
(d)The use of multiple, specially equipped personnel, and specialised industrial machines, including blenders, milling machines, extrusion devices and ovens.
(e)Forming granulated particles of the blended and processed ingredients.
(f)Achieving granule sizes that conformed with particle size specifications that were particularly demanding (at least having regard to operations that would more usually merit characterisation as “simple”).
Syngenta’s contentions at least implicitly recognised that the Sumitomo formulation process for Terrain could not reasonably or accurately be characterised as merely encompassing either packaging and shipping operations, or as “simple assembly”. The focus of Syngenta’s contentions was on the proposition that the formulation process was, in essence, an operation properly described as one of mixing goods. Syngenta further contended that the resulting product (ie. Terrain) had no materially different properties from those of the mixed ingredients. Central to Syngenta’s further contention were two propositions. The first was that flumioxazin was the only active constituent in Terrain, and that the formulation process involved only achieving a uniform and reduced flumioxazin particle size. The second proposition was that the “one substantial process” criterion in CA1901 section 269D(2) required, as a matter of construction, that the process must involve a qualitative, and not merely a quantitative, transformation of the goods. It must result in the production of a “new good”. Whilst conceding that the requisite process might be mechanical, physical, electrical or chemical, Syngenta advanced the proposition that, in the case of contentious “chemical” goods, the process must involve a chemical transformation before it can merit relevant characterisation as “substantial” for the purposes of CA1901 section 269D.
Syngenta’s contention principally relied on the decisions and reasoning in earlier Tribunal and Federal Court of Australia decisions in Kenso Marketing (M) SDN BHD and Chief Executive Officers and Nufarm Australia Limited [2008] AATA 42; (2008) 99 ALD 680; Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs [2011] FCAFC 26. In those cases the following views had been expressed:
(a)per the Tribunal at (2008) 99 ALD 680 [21]: “The question whether under section 269D(2) a process in the manufacture of goods is substantial depends on the significance or importance of this contribution to the making of a new or different thing.”
(b)per the Federal Court at [2011] FCAFC 26 [25]: “a substantial process is one that results in the production of a wholly new good.”
It should be immediately apparent that neither of those views is precisely congruent with the wording of CA1901 section 269D(2), which (i) addresses partial manufacture and, (ii) requires only that “one substantial process” in that partial manufacture was carried out in Australia. It should also be apparent that neither view actually supports Syngenta’s essential contention. The first view adopts the disjunctive expression “a new or different” thing and does not insist upon a process that involves a chemical change. The second view does not say that “only” a process resulting in the production of a “wholly new good” can be regarded as substantial for the purposes of CA1901 section 269D. It is therefore, not synonymous with Syngenta’s proposition.
In any event, the views expressed in the Kenso cases must be (i) understood in their context and, (ii) used to inform, rather than to dictate, the proper interpretation of the statutory criterion.
So far as context is concerned, the topic being addressed in the Kenso cases was Nufarm’s production of a glyphosate herbicide, in a process involving the production of a herbicidal glyphosate salt from an imported non-herbicidal glyphosate acid. The contentious question was whether that production constituted a “substantial process of manufacture” for the purposes of CA1901.[29] That context immediately demonstrates that the question in issue in the Kenso cases was whether a chemical transformation process should be characterised as substantial. There was no occasion to decide the converse question - whether a chemical transformation was a precondition to the characterisation of a production process as “substantial”: see [2008] AATA 42 at [21].
[29] There was a further potential question, whether the subsequent formulation of the glyphosate salt into a saleable/usable herbicidal product also involved a “substantial process” – see (2008) 99 ALD 680.
Furthermore, several parts of the Tribunal’s reasoning in the first of the Kenso decisions are actually inconsistent with Syngenta’s contention. They include the following:
(a)at [10] - acceptance of the proposition that production of aerated water could constitute “manufacture” – citing Cohns Industries Pty Ltd v DCT (1979) 24 ALR 658; 37 FLR 508.
(b)at [11] - acceptance of the proposition that combining flowers into sheaves, bouquets, wreaths and posies could constitute the production of some “new article or entity” and thus constitute manufacture – citing In re Searles Ltd (1932) 33 SR (NSW) 7 at 1.[30]
(c)at [17] - reliance on CA1901 section 269D(3)(e) to reject the proposition that a chemical transformation was required, and to accept that a difference in physical properties (specifically, colour, melting point, density, molecular weight and solubility) could warrant characterisation of a process as substantial.
(d)at [18] - an explicit rejection, as inconsistent with the proper interpretation of CA1901 section 269D(3) of the proposition that a process of manufacture could not be regarded as “substantial” where the principal component of the goods (in that case the glyphosate acid) retained its “essential character”.
(e)at [21] - where the Tribunal recognised that the size, scale, sophistication, cost of the manufacturing process were permissibly relevant considerations in the characterisation of a manufacturing process as substantial.
[30] In General Merchandise & Apparel Group Pty Ltd v CEO of Customs [2009] AATA 988 at [300]; (2009) 114 ALD 289 the Tribunal held that the production of quilts and bedcovers was the “manufacture” of goods, because it created “a different thing from the fabric out of which they were made”. Similarly, in Re Intertex v CEO of Customs [2001] AATA 377 at [43]; (2001) 68 ALD 423, the Tribunal held that a process of combining yarns to produce a filament with particular qualities was both “manufacture” and a process which, though carried out by a single operator, was not “simple assembly”. This was because it required both technical expertise and expensive technology.

Finally, it is important to appreciate fully the real significance of the Tribunal’s use of the disjunctive expression “the making of a new or different thing”: see paragraph 56(a) above. The Tribunal had dealt separately with the questions of (i) manufacture and, (ii) whether the manufacturing process should be characterised as substantial. The disjunctive expression had first been used by the Tribunal in relation to the first question, and in that context the Tribunal had accepted the proposition that manufacture involved making “some new article or thing”: ([2008] AATA 42 at [11]). Later, the Tribunal adopted the view that the essence of manufacture was that of making “a different thing from that out of which it was made”: [18] citing Dixon J in Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336 at 343.
Notwithstanding the above, Syngenta relied on part of the reasoning of the Full Federal Court in Kenso Marketing (M) SDN BHD and Chief Executive Officer of Customs [2011] FCAFC 26 as endorsing the proposition that the “substantial process in the manufacture” criterion in CA1901 section 269D(2) was intended to “describe a process that results in the production of a wholly new good”. However, careful regard to the whole of the relevant passages of the reasoning shows that the Full Federal Court was in fact addressing, and rejecting, the “essential character” argument that Kenso had (just as unsuccessfully) raised in the Tribunal. The complete context of the Full Federal Court’s reasoning was as follows:
[25] Kenso submitted that s 269D(2), construed purposively, is intended to describe a process that results in the production of a wholly new good. So much may be accepted; but Kenso goes further and argues that because glyphosate acid is described as a herbicide, Nufarm’s process in Australia to produce Roundup which is also a herbicide, does not produce a wholly new good because Roundup is not a good of a “different essential character” from glyphosate acid. Kenso argues that this approach is supported by the Second Reading Speech and the Explanatory Memorandum to the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Bill 1992 which added Pt XVA to the Act.
[26] The comprehensive and clear statement by the Tribunal of its reasons for its first decision means that it is possible to be brief in dealing with this argument. It may be said immediately that it is doubtful whether this argument raises a question of law in that the question whether Nufarm’s manufacturing process is a “substantial process in the manufacture of the goods” is in truth a question of fact (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-289). However that may be, the Tribunal did not err in its understanding of Nufarm’s processes of manufacture. The suggestion that the salt produced by the chemical reaction of an acid and an alkali is essentially the same as the acid does not commend itself to commonsense; and, in a context in which the use to which goods may be put is of central concern, the Tribunal was also correct in holding that a product which is actually used to kill weeds is indisputably different from a product which does not. Thus, on the undisputed evidence, the decision of the Tribunal was correct.
27 It may also be said that Kenso’s assertion that the “essential character” of the goods is decisive of the application of s 269D(2) of the Act calls to mind concepts which were in vogue at the University of Paris during the residence of St Thomas Aquinas. These concepts find no place in the language of Pt XVA of the Act or, for that matter, in the Second Reading Speech or the Explanatory Memorandum.
In the second of the paragraphs cited above I have added shading to highlight parts of the penultimate sentence. That sentence has to be understood against the background of the Tribunal’s finding (at [2008] AATA 42 [12] to [14]) that glyphosate acid, despite its inherent toxicity, “in ordinary language, … cannot legitimately be termed a herbicide”. In the third of the paragraphs cited above, the Full Federal Court’s pejorative reference to the Parisian style of reasoning of St Thomas Aquinas[31] can only be understood as an emphatic rejection of the “essential character” argument in Kenso. That rejection is quite inconsistent with acceptance of the proposition that the CA1901 section 269D(2) “substantial process” criterion requires, in the case of a herbicide, some kind of chemical transformation. On the contrary, the cited paragraphs of the Full Federal Court’s reasoning support the proposition that a process of manufacture that alters the properties of a product from herbicidal inefficacy to herbicidal potency, constitutes a substantial process in the manufacture of the goods.
[31] At the age of about 31, Aquinas filled one of the Dominican chairs at the University of Paris, between 1256 and 1259. In that role he had an objective of defending, from secular criticism, the participation of Dominican and Franciscan orders in the academic teaching at the University. Aquinas returned to the University of Paris in 1269, two years after commencing his seminal work – the Summa Theologica. In this second period, in conflict with the contrary views of the Theological Faculty at the University, Aquinas wrote two treatises, arguing that Aristotelianism was compatible with Christianity. Despite the impressive industry and breadth of knowledge readily apparent in the Summa Theologica, the style of reasoning it employs presents itself to (at least some) contemporary / secular readers as involving many unsubstantiated assumptions and considerable elements of self-serving circularity. It is obvious that the Full Federal Court was alluding to that view of the “logical” constructs Aquinas employed in his works.
Notwithstanding that support, Syngenta pressed the contention that the limiting exclusions in CA1901 section 269D(3) have a common feature – that they all refer to activities that “do not transform or otherwise alter the character of the goods”. This contention has little textual support in the wording of either CA1901 sections 269D(2) or 269D(3). Furthermore, it is gravid with ambiguity. So far as CA1901 section 269D(2) is concerned, I have already pointed out that the provision addresses partial manufacture, and requires only that “one substantial process” in that partial manufacture must be carried out in Australia. So far as CA1901 section 269D(3) is concerned, neither of the verbs “alter” and “transform” appears in the wording of the provision. Despite that, the negative use of either verb could be regarded as a reasonably appropriate way of paraphrasing the effect of the (preservation, packing and preparation) activities excluded by CA1901 section 269D(3)(a)-(c). But the same cannot be said in relation to the qualified “assembly” and “mixing” operations excluded by CA1901 section 269D(3)(d) & (e). That is because those operations inherently involve some degree of change to the contentious goods. Secondly, the Syngenta proposition uses the two verbs as disjunctives. That disjunctive use necessarily suggests that some degree of “alteration” of the goods, less than their “transformation”, may merit characterising as “substantial” a process involved in effecting the alteration. Thirdly, the Syngenta contention places emphasis on the “character” of the “mixed” goods, rather than upon the “properties” of the “resulting product” – ie. the actual expressions used in CA1901 269D(3)(d)&(e). In this respect the Syngenta contention echoes the “essential character” argument that was emphatically rejected by the Full Federal Court in the Kenso decision.
When attention is directed at the “properties” of the Terrain product, rather than to the suppositious “character” of its active constituent, the matters summarised earlier in these reasons (especially those in paragraphs 48 & 50 above) establish that the “properties” of the saleable product did in fact differ from those of its various ingredients. None of the surfactant, dispersant and binding agent ingredients had any individual herbicidal properties. Even the flumioxazin “active constituent” was not itself capable of practicable use either (i) in a spray application equipment or, (ii) as a herbicide. However, in the post production state of the Terrain product, the various product components were in a form where (i) the other ingredients contributed to the dispersability, and hence the usability of the product and, (ii) in its dispersible state, and in combination with at least the surfactant components, flumioxazin was capable of application in a manner that would result in meaningful herbicidal efficacy.
The preceding considerations suffice to warrant conclusions that (i) Terrain was at least partly manufactured in Australia and, (ii) at least one substantial process (for example, the slurry extrusion/granulation process - see paragraphs 49(i) to 49(l) above) was involved in that partial manufacture. The Terrain formulation process described earlier was intended to result, and did result, in the manufacture of a product that acquired “properties” different from those of the individual product components. That conclusion provides one reason why the Terrain formulation process was not within the scope of the limitation in CA1901 section 269D(3)(e). There is a second reason: the formulation process did not just involve “mixing” the Terrain components. Whilst they were indeed “mixed” at the initial stage of the formulation process, that mixture involved the manipulation of a substantial quantity of material. After the “mixing” the materials went through “milling” and “extrusion” processes that used specialised equipment in a controlled environment. The production process as a whole was directed at achieving consistent conformity with demanding particle size specifications, in order to achieve the practical, efficient and effective use of the Terrain product. The process as a whole satisfies the common usage of the term “manufacture”, and merits characterisation as, at least partial, manufacture: see General Merchandise & Apparel Group Pty Ltd v CEO of Customs [2009] AATA 988 at [20]; (2009) 114 ALD 289 & see the matters set out in paragraph 60 above.
The fact that a formulation process, such as that involved in the production of Terrain, falls outside the express limitations (or qualifications) in CA1901 section 269D(3)) does not dictate the inevitable conclusion that the process merits characterisation as a “substantial process” in the partial manufacture of particular goods. But it does remove an obstacle to such a characterisation. That is particularly the case where (i) the process merits characterisation as “manufacture” and, (ii) the adjectival quality of being “substantial”, whilst capable of being influenced by such considerations, does not depend on specific criteria of size, cost or complexity. In General Merchandise & Apparel Group Pty Ltd v CEO of Customs [2009] AATA 988; (2009) 114 ALD 289 after considering both the discussion in Kenso and in other authorities DP Forgie said the following:
[26] … Having regard to the words of the particular section and the policy of the Customs Act, it seems to me that a “substantial process” is a process that is regarded as being “considerable in amount, extent, [or] importance …” when considered in light of all of the processes that are undertaken in the manufacture of the goods. Is that process of relative importance when considered against the whole of the process of manufacture? That can only be judged by having regard to reference points which are determined by the particular processes leading to the manufacture of the particular goods under consideration. Those varying reference points could be monetary, complexity, time or some other factor relevant to the particular manufacture of the goods or some combination of all of them. The reference points will depend very much on the goods said to be manufactured partly in Australia. Whether they are substantial can only be judged against an understanding of the whole process.
The “whole process” of the production of Terrain in Australia by Sumitomo is one that results in a product that has a practicable and effective use that is different from that (or those) of the product ingredients that are subjected to the formulation process I have previously described (see paragraphs 49 & 50 above). In the light of that conclusion, the reasoning set above accords with the approach taken by the Full Federal Court in Kenso and provides a principled basis for finding, as I do, that the process undertaken by Sumitomo in Australia in the production of Terrain, is a “substantial process in the manufacture of the goods”, for the purposes of CA1901 section 269D(3). Terrain was, therefore, relevantly “produced in Australia” at the time of Syngenta’s TCO application.
THE ANALYTICAL PROCESS OF ASSESSING “SUBSTITUTABLE GOODS”
The statutory definition of “substitutable goods” is that they are Australian produced goods that “are put, or are capable of being put” to a use that “corresponds with a use” to which the TCO goods “can be put”: CA1901 section 269B(1). The definition’s alternative references to actual and potential uses is emphasised by the statutory declaration of the irrelevance of actual market competition between the respective goods: CA1901 section 269B(3). It follows that the conceptual analysis required in assessing the “substitutable” character of Australian produced goods involves addressing five questions: see Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757 at [57], 123 ALD 21; (2011) 282 ALR 24]; Comptroller-General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109 at [68].
The five questions are as follows:
(a)What are the TCO goods?
(b)What are the actual uses to which those goods are put, and what are the uses to which they could be put?
(c)What are the putative “substitutable” goods?
(d)What are the actual and potential uses of the putative “substitutable” goods?
(e)Are any of the (actual or potential) uses of the putative “substitutable” goods that “correspond” with an actual or potential use of the TCO goods?
QUESTION 1: THE TCO GOODS
The statutory definition of “substitutable goods” requires comparison of the respective uses of the contentious goods, and the uses of “the goods the subject of the {TCO} application”. I have previously noted that the latter expression is not consistently used, and is subject to some variation, in the relevant CA1901 provisions (see the footnote to paragraph 17 above). However, as I there noted, the differing expressions are apparently synonymous, and likely refer to the goods generically described in the TCO application, rather than to the particular product whose intended importation may have motivated the application. Consistent with that interpretation, “the goods the subject of” Syngenta’s application are those that satisfy the description contained in the gazetted description - set out earlier in these reasons (see paragraph 7 above). As CA1901 section 269SJ requires, that description (i) is generic, (ii) does not describe the goods in terms of their intended (or indeed any) use and, (iii) (having regard my rejection of the Comptroller General’s “threshold” argument (see paragraphs 35 to 42 above) does not refer to goods of any particular brand or model.
QUESTION 2: THE ACTUAL AND POTENTIAL USES OF THE TCO GOODS
Notwithstanding the generic description of the TCO goods, and the correspondingly wide description in the TCO application of their relevant use (see paragraph 5 above) both Syngenta and the Comptroller General addressed the review proceedings on the basis that Syngenta’s Reflex product was/were the TCO goods (see paragraphs 17 & 18 above). The consequence of that approach was to focus on the uses of Reflex in identifying the uses of the TCO goods.
That approach was conceptually inaccurate,[32] but understandable, and reflected an underlying pragmatism. Its pragmatism is revealed by the considerations that:
(a)Reflex falls within the generic description of the TCO goods in Syngenta’s application.
(b)the use of the TCO goods, as contemplated in Syngenta’s application was for the control “of a range of broadleaf weeds”.
(c)that contemplation either refers to broadleaf weeds of any number or combination or contemplates some external reference as a source of information to determine the particular target weeds.
(d)on either interpretation of the use description in Syngenta’s application, the actual and potential uses of the TCO goods include, at least, the APVMA approved uses of Reflex.
(e)if an actual or potential use of any of the Nufarm products corresponds with any approved use of Reflex it would necessarily correspond with an actual or potential use of the TCO described goods.[33]
(f)correspondence of that kind would preclude the making of a TCO, without the need to consider whether goods that satisfied the generic TCO description had actual, or potential uses other than the approved uses of Reflex.
[32] Comptroller General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109, [22].
[33] The converse proposition – that, absent correspondence between the Nufarm products and Reflex, there were no “substitutable goods – would not necessarily follow. Before such a conclusion could be reached it would be necessary to focus on the use of “the TCO goods”, rather than to be content with the pragmatic approach adopted by the parties.
As I outlined earlier in these reasons (see paragraphs 3 & 5 above) Reflex is approved for use in Australia, for broadleaf weed control (and suppression) in connection with six types of winter pulse crops: Chickpeas, Faba Beans, Field Peas, Lentils, Narrow Leaf Lupins and Vetch. Except in the case of Lentils, Reflex can be applied either within 7 days before, or 10 days after crop sowing. In the case of Lentil crops, Reflex can only be applied within the 7 days before sowing.
There is some emphasis, in Reflex’s APVMA approved label, on its efficacy in the “control” of the seventeen specified broadleaf weeds. That emphasis was also apparent in Syngenta’s evidence and submissions. They pointed to the difficulty of broadleaf weed control in Lentil/Pulse crops, the increasing commercial and agricultural significance of those crops, Reflex’s asserted “control” efficacy, the width of its approved target weed spectrum (and suggestions of an even wider actual herbicidal efficacy), as presenting significant advantages, over other herbicidal agents, in achieving an optimal level of weed management in broadleaf crops.
Despite that emphasis on Reflex’s “control” efficacy, the directions in its APVMA approved label contemplate its use for either the control, or the suppression,[34] of the seventeen specified weed species. However, the evidence pointed to (i) the unlikelihood that all of the seventeen weed species would be present at any particular site and, (ii) the likelihood that a herbicide, such as Reflex, would have varying degrees of efficacy even within its approved target weed spectrum. That evidence came primarily from an agronomist with experience in the south western region of Victoria. Based on his farming and consulting experience in that region he proffered the following opinions:
[34] Weed “control” and weed “suppression” are conceptually distinct, but there does not appear to be a prescriptive standard for differentiation between them. The conceptual distinction was that “control” referred to the substantial eradication of the target weed, whereas “suppression” referred to a substantial diminution, but not the eradication, of the target weed. In the absence of a prescriptive standard there was some usage variation. Syngenta used the criterion of an 80% weed population for “control” in its Australian trials of Reflex. Nufarm used an 85% reduction for “control” in its trials of Terrain. Their corresponding criteria for suppression were, respectively (i) 60% to 80% and, (ii) 50% to 84%.
(a)weed profiles in any particular paddock could vary depending on, amongst other things, the geographical region, climate, farming history and practices;
(b)some paddocks could in fact have a very low weed burden;
(c)some paddocks could have a persistent problem with a particular dominant weed[35] (such as wild radish), and such a problem could influence both herbicide and crop selection;
(d)however, even where a particular weed was dominant, other weeds were also likely to be present, and consequently it is usually unwise to focus herbicide selection and application on a particular, currently dominant, weed, because of the risk that other weeds will replace it;
(e)of the six approved crop uses for Reflex, four crops (chickpeas, lentils, lupins and vetch) were not suited to the climate, and were not commercially grown, in south western Victoria;
(f)in the south western Victoria region, up to 10, but more commonly at least 4, broadleaf weeds could be encountered in the same location;
(g)between four and six of those present in any particular location could be regarded as “a problem”;
(h)some of the broadleaf weeds more commonly encountered in the south western Victoria region were not included in Reflex’s approved weed targets;
(i)of the seventeen weed targets approved for Reflex, six of them were the combination most commonly encountered in south western Victoria;
(j)one particular weed – wild radish – was the most serious problem weed in the region, and particularly in faba bean crops.
[35] Evidence led in chief from another of Syngenta’s witnesses proceeded on the basis that a commonly occurring situation was one where one or two weeds were the “dominant species” on a particular farm or field.

The statutory criterion for assessment of goods as “substitutable” requires a use that “corresponds with” a use of the generically described TCO goods. In either case, the use may be an actual use or a use to which either of the goods is capable of being put. It necessarily follows that the statutory criterion does not require an exact similarity of use. Indeed, the decided cases illustrate that goods may be regarded as having a use that relevantly “corresponds” despite considerable differences in their essential character, composition and primary intended function or application. The cases include circumstances where (i) kerosene heaters and oil filled electric room heaters were treated as substitutable goods: Re Vulcan Australia Pty Ltd v Comptroller General of Customs [1994] AATA 150; (1994) 34 ALD 773; (ii) fertiliser bags able to be used only at one plant were treated as substitutable with other bags that could not be used at the plant: Re Bag & Jute Company (Tamworth) Pty Ltd v Comptroller General of Customs (1995) 38 ALD 357; (iii) train carriages were treated as substitutable with complete trains: Re Downer EDI Rail Pty Ltd v Chief Executive of Customs (2010) 118 ALD 454 and, (iv) fabric hand towels were treated as substitutable with both paper towels and hot air dryers: Re Thirco v Comptroller of Customs [1994] AATA 293; (1994) 35 ALD 665.
More recently, however, the Federal Court has cautioned against excessive focus on the identification of a functional use as determinative of the question of substitutability. This caution is apparent in the following passages from Comptroller General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109:
[26] … although, as was made clear in Nufarm, there is a distinction between the use of goods and the means by which the goods achieve their actual or intended use, the statute directs attention to the use of goods. The means by which goods operate may be relevant to answering the statutory question if, and to the extent to which, the means affects the use of the goods. The means by which goods operate may not be relevant to use if the means does not affect use. For example, in Nufarm, the means by which the TCO herbicides worked to kill weeds, which was a quite different formulation to that of the substitutable goods, did not affect either the types of weeds or the crops upon which the herbicides both worked. There may not always be a bright dividing line demarcating when, or the extent to which, the means by which goods operate affects use.
…
63 The manner in which the goods operate, as identified in the description of the TCO goods, may, but will not necessarily, affect the conclusion as to the actual or potential uses of the goods.
Nevertheless, emphasising the criterion of “use” and “correspondence” rather than the particular character or function of the contentious goods, in the present matter the Comptroller General placed considerable reliance on the reasoning employed in the series of decisions involving Dow Agroscience Australia Ltd, and its, ultimately unsuccessful, October 2007 TCO application relating to trifluralin. In objecting to that TCO application, Nufarm had contended that two of its products, TriflurX and Estercide Xtra 680 (or their precursors), were substitutable goods for trifluralin. In the Tribunal proceedings, although it was common ground that trifluralin and TriflurX were substitutable goods, there was a dispute about whether the latter was produced in Australia. There was also a subsidiary dispute as to whether trifluralin and Estercide Xtra were substitutable. In resolving that dispute, the Tribunal emphasised that trifluralin, as a root absorbed substance, was a pre-emergent herbicide, whereas 2,4-D (the active ingredient in Estercide Xtra) was absorbed through foliage and was a post emergent herbicide. Then, despite noting that both herbicides could be applied in sugarcane, the Tribunal held that “because of their different properties” (and the timing of their application) the trifluralin and 2,4-D herbicides were not substitutable goods: Dow Agroscience Australia Ltd v Chief Executive Officer of Customs [2010] AATA 859 at [24]-[27].
The Tribunal’s 2010 decision was set aside by Robertson J in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 75; (2011) 123 ALD 21; (2011) 282 ALR 24. In that decision, Robertson J held that the Tribunal had wrongly considered the herbicidal mechanism, rather than the actual respective uses, as determinative of the question of substitutability. His Honour said:
[50] In my view the present tribunal could not reason as it has done to find that the goods were not substitutable goods. Merely to say that one herbicide operates in a different manner to another does not establish that the goods were not substitutable because it leaves open that the goods have a corresponding use, that is, in killing the same weeds in the same crops.
[51] The relevant register (see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398–402; 141 ALR 59 at 65–9; 43 ALD 193 at 198–202) is not science but trade and commerce.
Robertson J then went on to reject Dow Australia’s submission that the Tribunal’s differentiation between pre and post-emergent modes of operation should be read as a finding that the two herbicides had different actual uses. His Honour said it was not possible:
[55] … to construe the tribunal’s references to pre-emergent and post-emergent properties or methods of use as meaning that it was not satisfied in a commercial or practical sense of overlap in use between the two products.
[56] … Nowhere expressly or by implication does the tribunal ask the correct questions but focuses instead on scientific matters such as the properties of the goods or how they work.
His Honour then set out the “practical analysis” required in the assessment of substitutability (see paragraphs 69 and 70 above), before observing (at [58]) that such an analysis was “absent from the tribunal’s reasons”. Robertson J underscored that characterisation of the Tribunal’s reasoning by rejecting Dow’s submission that the Tribunal’s reference to the potential overlapping use of trifluralin and 2,4-D herbicides in sugarcane, reflected a relevant “use” finding adverse to Nufarm’s contention of substitutability.[37] Robertson J said:
[61] Counsel for Dow accepted before me that the matter of the goods killing the same weeds in the same crops was argued before the tribunal but submitted that it was not sufficiently clearly put. I reject this submission.
[62] To be clear, I also reject the submission put by Dow that [19] of the tribunal’s reasons related to the insufficient cogency of the evidence of overlapping use, at least in a commercial or practical sense. This was not what the tribunal said. Its reasoning was in effect that because of its conclusion on method it did not need to consider the submissions and evidence as to the overlapping use in respect of weeds and crops. In addition, if it had rejected the evidence, instead of treating it as irrelevant, the tribunal could have addressed both the use and capable of use limbs of the required analysis.
[37] The passage in the Tribunal’s decision was as follows: 19. There was some evidence of an overlap in the case of sugarcane but we do not see this one off application of a post-emergent herbicide as affecting the issues.”
The third round of the Dow Agroscience dispute about trifluralin was the Tribunal’s decision in Dow Agroscience Australia Limited and Chief Executive Officer of Customs and Nufarm Australia [2012] AATA 568. In that decision, it was again common ground that trifluralin and TriflurX were “substitutable”. The contentious issue on substitutability was whether Estercide 698 (ie. 2,4-D) was substitutable for trifluralin. In holding that it was substitutable, the Tribunal (i) noted (at [72] & [73]) that the “corresponding” use had to be “reasonable”/a “real possibility”; (ii) noted (at [20], [54] & [78]) the different pre and post-emergent character of the two herbicides but, (iii) found (at [78]) that the labels for each product permitted their respective uses “to kill weeds in a variety of similar crops” and, (iv) (at [79]) accepted evidence that both herbicides could be applied prior to sowing. The Tribunal then expressed its ultimate finding on substitutability in the following passage:
[80] The tribunal finds that both Trifluralin Technical and 2,4-D acid can be used for the same purpose – to kill weeds growing in a variety of similar crops. The fact that one is a pre-emergent herbicide and operates in a different manner to the other post-emergent herbicide does not establish, as Robertson J stated, that the goods are not substitutable. The question is whether the 2,4-D acid can be put to a use that corresponds to a use to which Trifluralin Technical can be put . We are satisfied that the answer to that question must be “yes” – that 2,4-D acid does have a corresponding use to Trifluralin Technical. In terms of the definition in s 269C, we are satisfied that 2,4-D acid comprises “substitutable goods” for the Trifluralin Technical which is the subject of the tariff concession order application.
Despite the Tribunal’s satisfaction that the two herbicides had a corresponding use, the precise nature of that “corresponding” use was somewhat opaque. On the one hand, the Tribunal’s acceptance of evidence that both herbicides had permissible pre-sowing uses could be taken as reflecting a reliance on that use as the relevant “corresponding” use. On the other hand, the Tribunal’s reference to the permissible use of Triflurx “before the crop germinates” (as distinct from use merely before sowing) and the use of Estercide “later”, could be taken as an express finding that the two herbicides were capable of being used to kill (the same) weeds “in a variety of similar crops” and that their use “in” the same crops was the relevant “corresponding” use.[38]
[38] This alternative is strengthened by the Tribunal’s reference (at [78]) to the label of each product, at their characterisation as permitting their use “to kill weeds in a variety of similar crops”.
Any opacity in the Tribunal’s reasoning in the 2012 Dow Agroscience decision is immaterial to the assessment, in the present case, of the substitutability of Terrain for Reflex. In the present matter, the evidence clearly establishes that all of the Nufarm products contentiously characterised as “substitutable goods” have approved efficacy in relation to some crop and weed uses approved for Reflex. Indeed, Syngenta did not contest the accuracy of that general proposition. Furthermore, at a level of lesser generality, three of Syngenta’s witnesses variously conceded that (i) prior to the availability of Reflex, following its March 2021 APVMA approval, Terrain had been one of the herbicides used for broadleaf weed management in winter pulse crops, and, (ii) Reflex and Terrain were similar herbicides, despite the appearance that Reflex had superior “control” efficacy, particularly in relation to wild radish.
The considerations that point to the conclusion that Terrain is a substitutable good for Reflex (and thus for the TCO goods) are as follows:
(a)both Reflex and Terrain are pre-emergent herbicides;
(b)both are approved for use shortly before crop sowing;
(c)both are approved for use in connection with (some of) the same crops;
(d)both have residual effects after crop sowing;
(e)both are approved for use in, at least, the suppression of (some of) the same weeds;
(f)both have approved use in relation to weed and crop combinations likely to be present in at least one Australian agricultural region.
Those considerations require the conclusion that Terrain is “substitutable” for Reflex. That is the case notwithstanding (i) Syngenta’s “reasonable use” contention (to which I refer later – see paragraph 118 below) and (ii) the considerations that Reflex:
(a)is approved for use in connection with (some) different crops;
(b)is approved for use for the control of (some) weeds;
(c)is approved for use in the suppression or control of weeds additional to those amongst the permitted use of Terrain;
(d)may be applied after crop sowing;
(e)may have superior herbicidal performance on (some) weeds in at least some region / crop combinations.
QUESTION 5.2 – CORRESPONDING USE OF THE TCO GOODS / REFLEX AND TRIFLURX
In assessing the substitutability of TriflurX for Reflex, considerations corresponding to those in paragraphs 110(a) to 110(e) above apply. The consideration in paragraph 110(f) does not demonstrably apply. Nevertheless, Triflurx is approved for use in faba bean crops, and for the purpose of controlling not only two of the same weeds (commonly encountered in faba bean crops in south western Victoria) as Reflex, but also three of the other weeds for whose control the use of Reflex is also approved: see Schedule 3.2, rows 3, 6, 9, 16 & 17.
The considerations (listed in paragraph 111 above) that arguably point against substitutability in the case of Terrain, have some greater potential significance in the assessment of TrifluX. This is because TriflurX has (i) an apparently shorter permissible pre-sowing period, (ii) less commonality than Terrain with Reflex’s permissible weed targets.
Nevertheless, the comparatively limited extent of commonality between TriflurX and Reflex, in relation to crop and weed target combinations, does provide a factual basis for an assessment that TriflurX has at least a potential use that corresponds with a potential use of Reflex. That basis comes partly from the consideration that, as a matter of construction, the label approved uses of each herbicide extend to single crop and weed combinations. It also comes additionally from the evidence that (i) a permissible weed target may be only one of the weeds within the Reflex weed target spectrum (see paragraph 80(c) above) and, (ii) the intended weed target in a particular field or farm may be limited to one or two “dominant” weeds (see paragraphs 76(e) &76(j) above). Supplementing those considerations is the evidence that Triflurx is particularly effective against “wireweed” (one of the seventeen weeds in the Reflex weed spectrum), and that it is commonly applied mixed with “Roundup” (see paragraph 90 above).[39]
[39] I note that in its May 2021 internal review request Syngenta itself had identified the possibility that “wireweed” In a chickpea crop, might be the primary weed problem, and the principal focus of the intended herbicide application. That circumstance re-inforces my view that, having regard to the width of the statutory criterion, TriflurX is a substitutable good.
I have referred earlier to the evidence about (i) the usual diversity of weed populations within a particular site and, (ii) the undesirability of selecting a herbicide based on a narrow weed target (see paragraph 76(d) above). Those considerations do tend to suggest the unlikelihood of a widespread use of TriflurX as an alternative to the application of Reflex. But that unlikelihood does not meaningfully detract from the “real possibility” of the use of TriflurX, against particular dominant weed targets, as a substitute for Reflex, in some circumstances, for example, where “wireweed” was the dominant weed present.[40]
[40] A single “overlapping” / corresponding (reasonable) use suffices to establish the substitutability of the locally produced goods: Comptroller General of Customs v Alstom Transport Australia Pty Ltd [2022] FCAFC 109 at [25].
QUESTIONS 5.3 & 5.4 – CORRESPONDING USE OF THE TCO GOODS / REFLEX AND AMICIDE / CRUCIAL
I am less satisfied, and ultimately, I am not satisfied that either Amicide and Crucial are substitutable goods for Reflex. The considerations that lead me to that conclusion are principally the following:
(a)they are post emergent herbicides, which have no approved use on pre-emergent weeds;
(b)unlike Reflex, they are not approved for post sowing application;
(c)at least Amicide, unlike Reflex, is subject to “plant back” restrictions (or application restrictions) prior to crop sowing.
I recognise that my dissatisfaction in relation to the substitutability of Amicide and Crucial is apparently dissonant with the Tribunal expressed reasoning in the 2012 Dow Agrosciences decision. It is also tends to jar with the conclusion I have reached in relation to TriflurX, given the limited commonality of weed targets between Reflex and TriflurX. However, under the statutory criterion of substitutability, any instance of common efficacy is sufficient. Furthermore, the Tribunal’s 2012 decision was significantly influenced by the finding that the approved labels for the herbicides under consideration in that case allowed their use “in” the relevant crops. In the present case, there is nothing to suggest that either Amicide or Crucial was approved for use “in” fields that had been sown with crops. In the absence of very specific evidence to the contrary, I would not accept that approval for the application of a herbicide days before crop sowing, where the approval included label instructions indicating that the herbicide would only be taken up by emerged foliage, could reasonably be regarded as authorising use of the herbicide “in” any crop. It follows that I would not accept such a herbicide as a corresponding substitute for a herbicide that was approved for use as a pre-emergent application in sown fields. Unless the use of Amicide or Crucial can properly be characterised as use “in” fields already sown with one of the six Reflex approved winter pulse crops, I do not accept that the limited commonality of permissible weed targets that each herbicide has with Reflex, suffices to provide a factual basis for characterising either herbicide as substitutable for Reflex. In my view each of Amicide and Crucial has actual and potential uses that are distinct from those of Reflex, and do not involve a “real possibility” of corresponding use. That distinction lies in their limitation to pre-emergent weeds, application prior to crop sowing, and efficacy restricted to leaf absorption (necessitating the conclusion that neither had any significant residual effect on weeds that had not emerged at the time either herbicide had been applied).
THE “REASONABLE USE” CONTENTION
Earlier in these reasons, I alluded to Syngenta’s contention that the assessment of substitutability required regard to the “reasonable use” of the contentious goods: (see paragraph 11 above). That contention was advanced in Syngenta’s hearing submissions, with the additional characterisation of “reasonable” use as one that “would be reasonable in a commercial farming context”. That contention was apparently derived from (i) Robertson J’s aphorism that the “register” for substitutability was “not science but trade and commerce” (see paragraph 104 above) and (ii) the emphasis on “reasonable use” in the Toyota TCO litigation.
In Chief Executive Officer of Customs v Toyota Material Handling Australia Pty [2012] FCAFC 78; (2012) 203 FCR 129, the issue was whether fork lifts were “substitutable” where the maximum capacity of the locally produced lifts was the same as the “not less than” capacity in the description of the TCO goods. In holding that this overlap sufficed to establish “substitutability”, the Full Federal Court (i) acknowledged that the local products were actually unlikely to compete with the imported goods, (ii) accepted that it would not be a sensible commercial use to apply the imported goods to the same tasks as the local goods and (iii) also accepted that the postulated actual and potential uses contemplated by CA1901 section 269B were limited to “reasonable uses”. In relation to that latter limitation the Full Court said:
[4] The comparison required is not only between actualities but also between potentialities. And so far as the potentialities are concerned what it requires is a focus, on the one hand, on what the goods described in the proposed TCO can be used for and, on the other, the uses to which the suggested local goods can be put. The comparison which the provision calls for between the potential uses of the TCO goods and the local goods is not one, however, in which any conceivable use will suffice. A spoon may be used to dig a trench but Parliament cannot have intended for a spoon to be substitutable goods for an excavator. The potential uses to which the definition adverts are, therefore, only reasonable ones.

In Toyota, the Tribunal had accepted the TCO application, essentially on the basis that the essentially different, but minimally overlapping, capacity ranges of the machines restricted them to different commercial uses. The Full Court rejected that approach, as a misapplication of the statutory criterion, in the following passage:
[19] … The first respondent sought to uphold the Tribunal’s reasoning by arguing that the concept of “use” was really a reference to the way in which the goods were, in fact, used; that is, “use” involved real world notions. So viewed, a use to which a forklift could reasonably be put but to which it would not be put was not a “use”. If this argument were correct then the definition of substitutable goods would not refer, as it does, to “a use to which the goods … can be put”, but instead to “a use to which the goods … are put”. But the short of the matter is that the definition does use the word “can”. It follows that “use” is not a reference to sensible commercial uses (although, for the reasons we have given, it is a reference to reasonable uses).
The conceptual distinction, endorsed in that passage, between “reasonable” use and “sensible commercial” uses, is one of illusory precision. This is because there is an inherent scope for uses that are not commercially sensible to be regarded as impractical and thus unreasonable. Furthermore, the limitation to “reasonable use” will not be helpful where there is more than one “reasonable” way of describing the use of the TCO goods. That latter point was influential in the first of the Federal Court decisions in the Alstom litigation relating to the importation of driverless trains for use on the Sydney Metro system: Alstom Transport Australia Pty Ltd v Comptroller-General of Customs [2020] FCAFC 43; (2020) 275 FCR 652. In that decision, the Full Court of the Federal Court rejected the Tribunal’s view that locally produced crewed trains were substitutable, on the ground that the relevant use of the TCO goods was merely carriage of passengers. After observing (at [50]) that both of the contentious uses (automated driverless trains & passenger carriage) were “reasonable” descriptions of the TCO goods, the Full Court went on to opine that the process of answering the question of the actual and potential uses of the TCO goods must accord primacy to the content of the description of those goods. After reviewing the CA1901 provisions dealing with the TCO application process, the Full Court said the following:
[52] The foregoing statutory regime may be seen as one which requires goods to be described fully but generically (or generally, to use the language of the Explanatory Memorandum) in a TCO application and which gives specific powers to the Comptroller to screen and then reject such an application for non-compliance with s 269F or s 269SJ. Notably, here, neither power was ever exercised by the Comptroller. Notably also, the regime ascribes great importance to the way goods are to be described in a TCO application and gives the Comptroller power to check and then address unsatisfactory descriptions before he or she ever gets to exercise the power to issue or not issue a TCO pursuant to s 269P of the Act. All of this supports the primacy of the description of the goods in the TCO application once it has been accepted as valid by the Comptroller.
[53] It follows that the Act is concerned with the particular way goods, as described in a TCO application, are to be used. Here, that is not just as any passenger train, but the train described in the application …
I referred earlier to the basis for Syngenta’s 11 May 2021 internal review request (see paragraphs 12 & 13 above). The essential argument Syngenta advanced was that the only reasonable use of Reflex is (i) to control the spectrum of (approximately 18) weeds listed on the product label and, (ii) where those weeds were resistant to the Nufarm herbicide products. According to Syngenta, those propositions preclude the Nufarm herbicides from having any use as a replacement for Reflex, and consequently preclude them from having a “reasonable use” use corresponding to “a use to which the goods the subject of the application” can be put. Acceptance of that proposition would consequently preclude the Nufarm goods from categorisation as “substitutable goods” for the purposes of CA1901 section 269B.
Syngenta adhered to its “only reasonable use” proposition in its 29 October 2021 contentions statement. It sought to support that proposition by advancing a further contention that the TCO legislative scheme was focused on protection of local industry and had the purpose of removing the cost of customs duty where the imposition of the duty served no protective function for Australian industry. The first of those contentions raised a question of fact. The second, possibly correct as a general, and simplified, proposition, is no substitute for statutory interpretation, guided by previous decisions.
In relation to the factual question of “reasonable use”, there was no specific direct evidentiary support for Syngenta’s contention in relation to either Reflex or any of the Nufarm goods. In the absence of specific supporting evidence the contention relied on a number of subsidiary propositions or considerations. These included:
(a)the recency of Reflex’s APVMA approval and use, and the consequentially limited likelihood of significant weed resistance within its target weed spectrum;
(b)a reputedly consequential comparative “weed resistance” advantage, over other herbicides;
(c)the comparative breadth of its permissible application window, both before and after sowing;
(d)the breadth of its target weed spectrum;
(e)the breadth of its approved crop uses;
(f)its reputed particular, and comparatively superior, efficacy in relation to some weed / crop combinations (fava beans and wild radish).
In relation to weed resistance, one of the particular advantages said to be offered by the availability of Reflex (after its March 2021 APVMA registration) was that its Group G mode of action, as a different herbicidal mechanism, was of considerable assistance to farmers, by extending the available herbicide rotation options.[41]
[41] Each of the APVMA labels for Reflex, Terrain, TriflurX, Crucial and Amicide contain specific warnings about the potential for weed resistance. In addition, the approved label for Crucial includes a detailed narrative about the desirable practices to be followed to minimise weed resistance developing. These include advice to (i) integrate different chemical and physical weed control practices, (ii) rotate herbicides with different modes of action and, (iii) regularly monitor and test for weed resistance.
These considerations all have at least an arguable element of substance, in pointing to things suggestive of Reflex’s comparative advantages/benefits over other herbicides. But, apparent advantage is one thing, and “substitutability” (for CA1901 purposes) is another. Neither individually, nor in combination, do the various considerations advanced on Syngenta’s behalf justify acceptance of Syngenta’s “only reasonable use” contention. Some of the principal reasons for that conclusion are provided by the factual matters to which I referred earlier, in relation to potential weed targets (see paragraphs 114 & 115 above). There is an additional reason, applicable to Terrain, relating to the topic of weed resistance.
Syngenta’s head of crop protection development conceded that Terrain (after its February 2019 approval) had provided a similar (weed resistance/herbicide rotation) benefit to that associated with Reflex. He added the qualification that Terrain did not cover all the same weeds as those in the Reflex target spectrum and, to his understanding, was only effective in “suppression” rather than “control” of the weeds in its target spectrum. (Syngenta’s selective herbicides portfolio manager gave similar evidence). However, the significance of that particular qualification is reduced by the knowledge, referred to elsewhere in these reasons, that (i) there are no clear criteria for distinguishing between those two assessments and, (ii) Reflex’s 80% assessment for control was actually lower than the 85% threshold Nufarm used in relation to Terrain. And the more significant point is that Syngenta’s own evidence, about weed resistance and herbicide rotation, tended to support the proposition that Terrain has at least a potential use for some of Reflex’s approved applications, and was therefore a “substitutable” good.
CONCLUSION
For the reasons set out above, I am not satisfied that Syngenta’s 30 October 2020 application meets the “core criteria”. Specifically, I am not satisfied that, on the day Syngenta’s application was lodged, no “substitutable goods” were produced in Australia in the ordinary course of business. Absent that satisfaction, the application must be rejected. Consequently, I affirm the Comptroller General’s 29 June 2021 internal review decision.
SCHEDULE 1 – REFLEX LABEL - APPLICATION RATES ("N") - WITHIN 7 DAYS BEFORE SOWING
SCHEDULE 2 - REFLEX LABEL - APPLICATION RATES ("N") - WITHIN 10 DAYS AFTER SOWING (PRE-EMERGENT)
SCHEDULE 3.1 - REFLEX _TERRAIN _ TRIFLURALIN - USE COMPARISON – CHICKPEAS
SCHEDULE 3.2 - REFLEX _TERRAIN _ TRIFLURALIN - USE COMPARISON - FABA BEENS
SCHEDULE 3.3 - REFLEX _TERRAIN _ TRIFLURALIN - USE COMPARISON - FIELD PEAS
SCHEDULE 4.1 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON – CHICKPEAS
SCHEDULE 4.2 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON - FABA BEANS
SCHEDULE 4.3 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON - FIELD PEAS
SCHEDULE 4.4 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON – LENTILS
SCHEDULE 4.5 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON – LUPINS
SCHEDULE 4.6 - REFLEX _AMICIDE_CRUCIAL - USE COMPARISON – VETCH

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

..................................[SGD]......................................
Associate
Dated: 29 March 2023

Date(s) of hearing: 30 March 2022

Solicitors for the Applicant: J. Slonim, Svenson Barristers

Advocate for the Applicant: B. Cole, BDO Services Pty Ltd

Solicitors for the Respondent: R. Northcote, Comptroller-General of Customs

Date(s) of hearing:	30 March 2022
Solicitors for the Applicant:	J. Slonim, Svenson Barristers
Advocate for the Applicant:	B. Cole, BDO Services Pty Ltd
Solicitors for the Respondent:	R. Northcote, Comptroller-General of Customs