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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

Photo of author, David RUSSELL David is admitted to practice in New South Wales, Queensland, Victoria, the Northern Territory, the Australian Capital Territory, New Zealand, Papua New Guinea and the Courts of Dubai International Financial Centre. He was first appointed Queen’s Counsel in 1986 and holds that office in all the above Australian jurisdictions. He currently practices in Sydney (Ground Floor Wentworth Chambers) and Brisbane (Sir Harry Gibbs Chambers) with a principal focus on revenue law generally. He has acted for Commonwealth and State Governments as well as individuals and corporations. He has had a long connection with the Taxation Institute of Australia including being its President from 1993 to 1995 and President of the Asia Oceania Tax Consultants Association from 1996 to 2000.
Current at 17 May 2008
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Stephen McMillan, Barrister, Ground Floor Wentworth Chambers
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