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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:

Author Photo - David Russell CTA-Life
David Russell CTA-Life
David commenced legal practice in 1974. He is admitted to practise in Australia, England and Wales (Lincoln’s Inn), the Courts of the Dubai International Financial Centre, New York (as a Legal Consultant), New Zealand and Papua New Guinea. He was appointed Queen’s Counsel in 1986. David has acted for Commonwealth and State Governments as well as individuals and corporations and was the President of The Tax Institute from 1993 to 1995. Current at 01 October 2014 Click here to expand/collapse more articles by David RUSSELL.
Stephen McMillan, Barrister, Ground Floor Wentworth Chambers
Click here to expand/collapse more articles by S.J MCMILLAN.
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