Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ

QUEENSLAND NICKEL PTY LIMITED PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA DEFENDANT

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 8 April 2015 B25/2013

ORDER

The questions asked by the parties in the special case dated 26 August 2014 and referred for consideration by the Full Court be answered as follows:

Question 1

Was Division 48 of Part 3 of Schedule 1 to the Regulations invalid in its application to the plaintiff on the ground that it gave preference to one State, or any part thereof, over another State, or any part thereof, contrary to s 99 of the Constitution?

Answer

No.

Question 2

Should any or all of the following provisions:

i. Division 48 of Part 3 of Schedule 1 to the Regulations;

ii. clauses 501 to 506, 701, 804, 901 to 913 of Schedule 1 to the Regulations;

iii. sections 122 to 134, 145 and 312 of the Act; and

iv. Part 3 of the Clean Energy (Charges – Excise) Act 2011 (Cth), Part 3 of the Clean Energy (Charges – Customs) Act 2011 (Cth) and the Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth);

be read down, in their application to the plaintiff, so as to avoid contravening s 99 of the Constitution and, if so, how?

Answer

No.

Question 3

Upon their proper construction, and to the extent any or all of the following provisions were capable of operating consistently with s 99 of the Constitution, did any or all of the following provisions:

i. Division 48 of Part 3 of Schedule 1 to the Regulations;

ii. clauses 501 to 506, 701, 804, 901 to 913 of Schedule 1 to the Regulations;

iii. sections 122 to 134, 145 and 312 of the Act; and

iv. Part 3 of the Clean Energy (Charges – Excise) Act 2011 (Cth), Part 3 of the Clean Energy (Charges – Customs) Act 2011 (Cth) and the Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth);