Vanderstock v Victoria: Fiscal Federalism Meets Environmental Constitutionalism?

Abstract

Abstract This analysis critically examines the High Court of Australia’s recent decision in Vanderstock & Anor v The State of Victoria [2023] HCA 30 as an instance of environmental impact litigation (‘EIL’). The Vanderstock plaintiffs successfully challenged a state tax on low-emissions and electric vehicles on the basis that it was a duty of excise: a tax that can only be imposed by the federal parliament under s 90 of the Australian Constitution. However, the analysis cautions against viewing the decision as a victory for the environment. The High Court’s ruling has significant consequences for federal fiscal relations. At best, these have ambivalent implications for environmental policy. At worst, they may hamper or defeat environmental policy initiatives. Vanderstock thus offers a cautionary lesson for constitutional EIL, suggesting that any evaluation of the ‘impact’ of such litigation must have regard for structural implications of the legal norms involved.