Christopher Vanderstock & Kathleen Davies v State of Victoria
High Court of Australia | M61/2021
Equity Generation Lawyers represents Christopher Vanderstock and Kathleen Davies in a High Court of Australia action challenging the constitutional validity of the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) (ZLEV Act).
Chris is a nursing manager living with his family in the suburbs of Melbourne – he drives a fully electric plug in vehicle. Kath is an engineering consultant also living in the Melbourne suburbs – she and her family drive a hybrid electric vehicle. From 1 July 2021, Chris, Kath, and other Victorian electric vehicle drivers are required by the ZLEV Act to maintain a log of the use of their vehicles and pay an annual charge to the Victorian Government based on the number of kilometres driven in the preceding 12 months.
About the claim
Chris and Kath brought a claim in the High Court of Australia against the State of Victoria to challenge the ZLEV Act. They argued that the State of Victoria lacks the constitutional authority to impose such a charge. The basis of their claim was section 90 of the Commonwealth Constitution, which reserves the exclusive power to levy duties of excise for the Commonwealth. The claim was filed in the Melbourne Registry of the High Court of Australia on 16 September 2021.
The Commonwealth Attorney General intervened in the proceeding in support of our clients’ position on 8 July 2022. The Australian Trucking Association has filed submissions as an amicus curiae or friend of the court in support of our clients’ case.
The Attorneys-General of South Australia, Western Australia, Queensland, New South Wales, Tasmania, the Northern Territory, and the Australian Capital Territory have intervened in the proceedings in support of the State of Victoria’s position.
The High Court’s website for the matter, which contains links to the parties’ submissions and other information, is here.
Hearing
The case was heard by a full bench of the High Court in Canberra on 14, 15 and 16 February 2023. The transcripts of oral argument before the Court are available on the High Court’s case webpage.
Judgment
On 18 October 2023, the High Court found in favour of our clients and the Commonwealth and held that the State of Victoria’s Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) is unconstitutional. This means that Victoria’s ZLEV charge is invalid. The High Court’s judgment can be found here.
The plaintiffs’ legal representative
Mr Vanderstock and Ms Davies are represented by Equity Generation Lawyers.
Ron Merkel KC, Craig Lenehan SC, Frances Gordon, and Thomas Wood are the plaintiffs’ counsel.
Christopher (Chris) Vanderstock is a father and nursing manager who lives in the suburbs of Melbourne with his partner and children. He is the owner of a fully electric car and runs a YouTube Channel to educate and inform Australians on all things EV, solar power, battery storage, and other emerging technologies.
Kathleen (Kath) Davies is a mother and engineering consultant who lives with her family in the suburbs of Melbourne. She is passionate about the environment and bought her first electric vehicle in 2012 to reduce her family’s dependence on fossil fuels. Kath has also been a participant in numerous climate initiatives such as Shift Australia and Climate Engineers’ declaration of a climate emergency.
“The blockbuster case, which started in Canberra on Tuesday, affects about 15,000 car owners and involves every state and territory, will determine how EVs are taxed and what level of government can collect revenue from their use..”
Blockbuster High Court case tests validity of electric vehicle tax – The Australian Financial Review
“Lawyer David Hertzberg says the landmark case will have implications for the division of power between the commonwealth and the states”
High court charged with deciding if Victoria has the power to tax electric vehicles – The Guardian
“By making electric vehicles more expensive, this tax disincentivises Victorians from making the switch to cleaner cars that cut emissions and improve air quality. In short, it’s bad for the climate, it’s bad for Victorians, and it may be unconstitutional” said Jack McLean.
Stoush over electric vehicle tax nears Australian high court hearing – The Guardian
The Albanese government has joined a legal bid to strike down Victoria’s controversial electric vehicle tax, opening up a fight with states over who will control billions of dollars in revenue collected from motorists. … [Vanderstock and Davies’] lawyer, Jack McLean, said the pair welcomed the Commonwealth’s intervention.
Albanese government seeks to pull plug on Victoria’s electric vehicle tax – The Age
Transport is Victoria’s second-biggest contributor to greenhouse gas emissions, after its ageing coal-fired power plants, and these emissions are still rising. Cars are responsible for half of these transport emissions. … although Victoria has joined other global jurisdictions by setting a target of reaching net zero emissions by 2050, this is unlikely to happen if the state’s transport emissions continue to increase. …
High court challenge to Victoria’s electric vehicle tax – Sydney Morning Herald
Attorney-General Mark Dreyfus filed an intervention in the High Court in support of two motorists challenging the electric vehicle tax. … The outcome of the case will determine how other states and territories implement their taxes relating to electric vehicles.
Federal government challenges Victoria’s electric vehicle tax – Sky News
“The Andrews government is imposing a rushed tax cash grab on EVs that will see Australia and Victoria left behind,” Mr McLean told The New Daily. “It makes EVs less affordable. It ends up being about a $5000 tax over the life of a car
‘Cash grab’: Victorian drivers mount High Court challenge over electric vehicle tax – The New Daily
The system, which relies on drivers sending in photos of odometers and in some cases estimates distances driven, has been dubbed the “worst EV policy in the world” and has seen drivers complaining about wildly inaccurate charges. A letter sent to the supporters by Equity Generation, the lawyers representing Vanderstock and Davies, confirms that the federal government will support the defendants.
Albanese government backs legal challenge to Victoria EV tax – The Driven
“Instead of taxing clean technologies, the Victorian government should be concentrating on getting dirty cars off the road,” Mr Vanderstock said.
High court challenge to Victoria’s electric vehicle tax – Sydney Morning Herald
Two Victorian EV drivers are challenging the state’s road tax in the High Court, on the basis the constitution gives the Commonwealth the exclusive power to impose such a levy.
Hybrid drivers demand an end to Victoria’s ‘double tax’ – The Age
Victoria is the only state in Australia – and the world – to introduce a road user tax that applies to electric vehicles only.
EV drivers lodge High Court challenge to Victoria’s electric road tax – The Driven
