Queanbeyan City Council v. ACTEW Corporation Ltd and Anor

Lower Court Judgment

24/09/2010 Federal Court of Australia (Keane CJ, Stone and Perram JJ)

[2010] FCAFC 124

Catchwords

Constitutional law — Duties of excise — Water abstraction charge ("WAC") imposed by Ministerial determination — WAC calculated by reference to quantum abstracted — Whether discernible relationship to value of acquisition necessary for governmental levy for access to and acquisition of natural resource to escape characterisation as a tax — If discernible relationship required, whether requirement satisfied where government charges any rate borne by market, including monopoly rent — Evidence required to establish absence of discernible relationship between charge and value of acquired resource — Water Resources Act 2007 (ACT).

Constitutional law — Duties of excise — Utilities Network Facilities Tax ("UNFT") imposed on owners of network facilities — UNFT calculated by reference to "route length" of network facility — Whether fee said to be for exercise of legislative power authorising utilities to trespass on land a fee for service and therefore not a tax — Whether following factors sufficient to establish that a levy on network facilities not an excise: UNFT payable by owner, rather than operator, of network; UNFT imposed by reference to conferral of right to use and occupy land on which facility located; quantum of tax referable to length land occupied; quantum of UNFT not explicable only on basis of quantity and value of water supplied by respondent; payment of fee not a condition on transportation of water; UNFT does not select water network for discrimination so as to warrant conclusion that tax upon water carried in network — Utilities (Network Facilities Tax) Act 2006 (ACT).

Practice and procedure — Precedents — Decisions of High Court of Australia ("HCA") — Binding effect on other courts — Whether intermediate appellate court may depart from dicta of justices of HCA, subsequently approved by other justices of HCA, where no decision of HCA has disagreed with those dicta.

Short Particulars