It just gets worse and worse for the hapless Green/Left minority government
A PROMINENT Australian legal expert says he believes the Gillard government’s carbon tax is unconstitutional and that the three largest states stand a chance of successfully overturning the legislation in the event of a High Court challenge.
The University of New England academic and practising barrister, Bryan Pape, has provided legal advice to conservative policy think tank, the Institute of Public Affairs, that says the carbon tax legislation — due to come into effect on July 1 — could be challenged on several grounds including that, ”the Commonwealth cannot tax State property: Legally carbon dioxide emissions are State property”.
The advice goes on to say that, in Mr Pape’s legal opinion, ”the Commonwealth cannot impose a carbon tax and other related penalties within the same Act. The Commonwealth cannot introduce a carbon tax within its external affairs powers”.
Mr Pape — a specialist in taxation and administrative law — made headlines in 2009 when he mounted a High Court challenge over Labor’s $42 billion stimulus package, arguing that the $900 payments to individuals exceeded the federal government’s taxation powers.
“These greenhouse gases are property owned by the States and it is impermissible for the Commonwealth to impose any tax on any property of any kind belonging to a State,” Mr Pape said.
The full bench of the court ruled in favour of the Commonwealth by a margin of 4-3.
IPA Climate Change policy director, Tim Wilson, told the National Times today that the think tank had commissioned the advice in a bid to prod the states into action against the carbon tax, a piece of legislation the conservative body has long opposed.
”The IPA commissioned a legal opinion because state governments have sat on their hands and let the Gillard government introduce a tax that they could potentially stop,” he said.
”Only the High Court can decide the constitutionality of the carbon tax, but there are clear grounds to challenge it according to one of Australia’s top administrative law minds.”
Mr Wilson said the full text of the legal opinion would not be released ”pending a possible legal challenge.”
”A copy has being provided to the Premiers and Attorneys-General of the states with the best legal standing for a potential challenge – New South Wales, Queensland and Western Australia,” he said.