Australia: Obtaining a tariff concession order (TCO) – not a breeze for wind turbine importer

Last Updated: 23 July 2017
Article by Fletch Heinemann and Sarah Lancaster

Carefully describing the imported goods is critical to a tariff concession order (TCO) application. The description needs to distinguish the imported goods from 'substitutable goods' currently produced in Australia and capable of being produced in Australia.

In a recent AAT decision, Vestas-Australian Wind Technology Pty Limited finally succeeded in overturning the decision of the Comptroller-General of Customs to not grant a TCO. A new TCO, granted in accordance with the AAT's decision, will enable Vestas to import the goods without customs duty.


Vestas sells, installs and services wind turbines in Australia. In 2012, it applied to Customs for a TCO in respect of gearboxes for wind turbines. The application was refused on the basis that it did not satisfy the 'core criteria' in the legislation. An engineering company, Hofmann Engineering, had objected to Customs granting the TCO.

Under the law, if Customs is satisfied that the TCO application meets the core criteria, it must grant a TCO. The core criteria will be satisfied if, on the day the TCO application is lodged, no substitutable goods are produced in Australia in the ordinary course of business.

The TCO regime is designed to protect the Australian manufacturing industry from overseas competition. A corollary of this is that industry should not be burdened by tariffs where there is no local industry requiring protection.

The Full Court of the Federal Court found that the TCO regime extends to the protection of goods capable of production in Australia in the future. This was important because Customs had conceded that substitutable goods had not actually been produced in Australia before the TCO application. The Full Court remitted the matter to the AAT for further consideration in light of its reasons. Despite this, the AAT decided that the application satisfied the core criteria – no substitutable goods were produced or were capable of being produced in the future. The AAT remitted the matter to Customs to grant a TCO in respect of the goods.


'Substitutable goods' are produced in Australia if Australian manufacturers make goods that are put, or capable of being put, to the same use as those being imported. Substitutable goods are taken to be produced in Australian in the ordinary course of business if they have been produced or could be produced with existing facilities.

The question before the AAT was whether Hofmann, an Australian producer, could have used its existing facilities to produce goods capable of being used as particular gearboxes. The gearboxes would have to convert high torque from low turbine blade rotations to higher rotation low torque revolutions for use by a wind turbine generator to produce a power output of 3MW. This very limited use was found to be the only use to which the goods the subject of the TCO application could be put, having regard to the description of the goods in the application.

The AAT was not convinced that Hofmann was capable of producing substitutable goods with its existing facilities. It found that, although gearboxes destined for use in different industries will have many features in common, a gearbox for a wind turbine was unique to the wind turbine industry. Since Hofmann had never designed a gearbox for a wind turbine, the AAT was not satisfied that its design skills in relation to producing gearboxes for other industries would transfer to the wind turbine industry.

The AAT also considered Hofmann's existing facilities. It found that, since Hofmann did not have the testing equipment necessary to ensure that gearboxes it produced complied with the relevant industry standards, there was no basis for concluding that the gearboxes were capable of being put to use in a wind turbine. All that could be said was that they might be capable, not that they were capable. This was not enough to conclude that Hofmann could produce substitutable goods with its existing facilities.


Although the importer was ultimately successful, this case demonstrates that, when applying for a new TCO, it may not be enough to satisfy Customs that there are no substitutable goods currently produced in Australia. The difficulty lies in showing that Australian producers are not capable of producing substitutable goods with their existing facilities. Unfortunately, importers may only become aware of this possibility when Australian manufacturers come out of the woodwork to object to a TCO application.

This case also reveals the advantages of describing the goods with a high level of specificity in the TCO application. The description should be broad enough to include the kinds of goods that will be imported but narrow enough to limit the purpose to which the goods may be put. If there are differences in the imported goods, multiple TCO applications may be an alternative strategy.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions