Lawyers Weekly Austraila
Victorian owners of electric vehicles successfully persuaded a full bench of the High Court that a tax imposed on the kilometres they travelled was invalid under the Commonwealth Constitution.
From July 2021, owners like Christopher Vanderstock and Kathleen Davies were required to pay a tax under the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (ZLEV) to the Victorian government based on the time spent on public roads.
The Victorian government had justified the tax by explaining owners of ZLEC had to pay their “fair share” to use the roads, as owners of fuel-powered vehicles already contribute through the fuel excise.
Following an argument this tax breached section 90 of the Australian Constitution – which prohibits states from imposing any tax that may be considered to be in a customs duties or excise nature – Chief Justice Susan Kiefel, along with Justices Stephen Gageler and Jacqueline Gleeson, ruled in favour of the electric vehicle owners.
Mr Vanderstock and Ms Davies, represented by Equity Generation Lawyers, had support from the Commonwealth Attorney-General, an intervening party, and the Australian Trucking Association.
The Victorian government, which was also ordered to pay the costs of the proceedings, had the backing of the intervening attorneys-general from the other states and territories.
In its published reasons, the full bench said the last time the court examined the scope and operation of section 90 was in Capital Duplicators v ACT (No 2) and in Ha v NSW.
