Question 2:Who should pay the costs of the proceeding?
Answer:The defendant.
Representation
R Merkel KC and C L Lenehan SC with F I Gordon SC and T M Wood for the plaintiffs (instructed by Equity Generation Lawyers)
R J Orr KC, Solicitor-General for the State of Victoria, with S Zeleznikow and M R Salinger for the defendant (instructed by Victorian Government Solicitor)
S P Donaghue KC, Solicitor-General of the Commonwealth, and D F C Thomas SC with C G Winnett and M P A Maynard for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with Z C Heger for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor for New South Wales)
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan SC for the Attorney-General for the Australian Capital Territory, intervening (instructed by Government Solicitor for the Australian Capital Territory)
J A Thomson SC, Solicitor-General for the State of Western Australia, with J D Berson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
S K Kay SC, Solicitor-General for the State of Tasmania, with E A Warner for the Attorney-General for the State of Tasmania, intervening (instructed by Solicitor-General for the State of Tasmania)
G J D del Villar KC, Solicitor-General of the State of Queensland, with F J Nagorcka and S E D Spottiswood for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
Australian Trucking Association appearing as amicus curiae, limited to its written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vanderstock v Victoria
Constitutional law (Cth) – Duties of excise – Exclusive power of Commonwealth Parliament – Scope and operation of s 90 of Constitution – Where s 7(1) of Zero…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Vanderstock v Victoria [2023] HCA 30
Case
[2023] HCA 30
Decision Date
CaseChat Overview and Summary
In *Vanderstock v Victoria*, the High Court of Australia considered a constitutional challenge to Victoria's Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) ("ZLEV Charge Act"). The dispute arose because the Act purported to oblige registered operators of zero or low emission vehicles to pay a charge for the use of these vehicles on roads within Victoria and elsewhere in Australia. The question of law was whether this charge constituted a duty of excise within the meaning of section 90 of the Australian Constitution, which grants the Commonwealth Parliament exclusive power to impose such duties.
The central legal issue before the Full Court was whether section 7(1) of the ZLEV Charge Act was invalid for imposing a duty of excise. This required the Court to determine the scope and operation of section 90 of the Constitution, particularly in relation to taxes imposed at the point of consumption. The Court was asked to consider whether the definition of a duty of excise, as previously stated in cases like *Capital Duplicators Pty Ltd v Australian Capital Territory [No 2]* and *Ha v New South Wales*, was exhaustive or merely descriptive, and whether the ZLEV charge, as an inland tax on goods imposed at the stage of consumption, answered the description of a duty of excise. The Court also considered whether *Dickenson's Arcade Pty Ltd v Tasmania* should be reopened and overruled.
The High Court reasoned that the ZLEV charge, by imposing a liability on the use of a vehicle, which is a good, at the point of consumption, fell within the constitutional definition of a duty of excise. The Court held that the previous characterisation of duties of excise as taxes on the production, manufacture, sale, or distribution of goods was too narrow. Instead, the Court adopted a broader understanding, focusing on whether the tax had the "natural tendency" to affect goods as articles of commerce, and whether it was imposed at a stage that had a "close relation to goods" and was not a tax on the consumer as such. The Court concluded that the ZLEV charge, being a tax on the consumption of a good (the vehicle's use), was a duty of excise.
The Court answered the first question in the affirmative, finding that section 7(1) of the ZLEV Charge Act is invalid as it imposes a duty of excise within the meaning of section 90 of the Constitution. The Court also ordered that Victoria pay the costs of the proceeding.
Orders
Orders of the court
The questions stated for the opinion of the Full Court in the amended special case filed on 6 September 2022 be answered as follows:
Question 1: Is s 7(1) of the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) invalid on the basis that it imposes a duty of excise within the meaning of s 90 of the Constitution?
Answer: Yes.
Question 2:Who should pay the costs of the proceeding?
Answer: The defendant.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER AND GLEESON JJ
Victoria's fourth and final pathway cannot be taken, for the reasons already given. Conclusion The substantive question, is s 7(1) of the ZLEV Charge Act invalid on the basis that it imposes a duty of excise within the meaning of s 90 of the Constitution, should be answered "yes". Victoria should pay the costs of the proceeding.