Case Note: Palmer's Ore: Queensland Nickel Pty Ltd v Commonwealth

[Extract] The Australian Constitution1 has express prohibitions on Commonwealth discrimination against the States and it makes an attempt to divide various aspects of fiscal power between the Commonwealth and the States. As set out in section 99 of the Australian Constitution the Commonwealth may not give preference to States or parts of Sates in any revenue law.2This case3was a Constitutional matter heard in the High Court of Australia, examining whether the effect of intensive greenhouse gas emission activities of entities that have been taxed under the Clean Energy legislation4was to give preference to one State over another contrary to section 99 of the Australian Constitution. It is worth noting that the Clean Energy Act 2011 (Cth) in its whole was repealed with effect from 1 July 2014.5However, despite that repeal, the operation of the Clean Energy legislation was preserved insofar as it related to the liability of entities to pay the greenhouse gas emissions tax for the years beginning 1 July 2012 and 1 July 2013 (‘the relevant years’).This case note will examine the High Court’s decision in relation to section 99 of the Australian Constitution and its impact on the Clean Energy legislation. This case note will also examine the High Court’s decision in this case as a follow-on from the principles highlighted in Fortescue Metals Group Ltd v Commonwealth