Alstom driverless trains decision overturned by Federal court

Alstom Transport Australia has won a decision in the Federal court allowing it to import driverless trains free of tariffs.

On March 17, the Federal Court of Australia overturned a decision by the Administrative Appeals Tribunal (AAT) that a driverless train can be put to the same use as a driver operated train.

The Federal court hearing took place on 24 February. The court ordered that the appeal by Alstom be allowed and the matter be remitted to the Tribunal for re-determination according to law. This allows Alstom to avoid the tariff of five per cent on rollingstock imported into Australia.

The AAT had affirmed a decision made by the Comptroller-General of Customs to refuse an application made by Alstom for a Tariff Concession Order (TCO).

A TCO can be sought by a company which wishes to import a product where there are no substitutable goods  manufactured in Australia. Alstom sought the TCO to covered driverless trains with seven further specifications.

Alstom said that as the use of the imported goods was “to transport passengers on a high capacity, high frequency, driverless metropolitan train line system”, there was not a substitutable product manufactured in Australia.

Customs and the AAT said Alstom’s use of the substitutable goods was too specific and the AAT held that driver operated versus driverless trains was an issue of how the use was performed, as the tribunal found that the relevant use was transportation of passengers by train.

The Full Federal Court disagreed with the finding of the AAT, writing that the AAT merely identified the use of a “passenger train”. 

Russell Wiese, customs and global trade partner at Hunt & Hunt Lawyers said Alstom sought a TCO over a particular type of passenger train.

“In this case, it was not just any train over which a TCO was sought. It was a driverless train with 7 further specifications,” Wiese said.

“As the AAT took too wide an approach, the matter has been sent back to the AAT to be reheard.”

The Court made note of the fact that Customs had screened the TCO application and did not reject the wording as being too specific.

Alstom was approached for comment but declined as the matter is ongoing.