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The so-called “carbon tax”: Is the law a law with respect to taxation?


This article examines the question of whether the so-called “carbon tax” legislation (the Clean Energy Act 2011 (Cth) and cognate legislation) is a law with respect to taxation, within the meaning of the Australian Constitution. The analysis is carried out in the context of provisions commonly found in commercial contracts which require adjustments to be made to amounts payable under the contracts where changes to the law affect the costs of carrying out the contracted activities, but which exclude from the scope of such clauses changes in the law or new laws with respect to, or in relation to, a tax.

The article examines the carbon tax legislation in the light of principles which have emerged from the cases. The conclusion is reached that the Clean Energy Act is clearly a law with respect to taxation and is consequently a law with respect to or in relation to a tax.

Author profiles

David Russell CTA-Life
Photo of author, David RUSSELL David was admitted as a solicitor in 1974 and was called to the Bar in 1977. He was appointed Queen’s Counsel in 1986. David has lectured and written extensively on taxation related topics in Australia and overseas. David is a Barrister, Wentworth Chambers. - Current at 01 October 2014
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Stephen McMillan, Barrister, Ground Floor Wentworth Chambers
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