High Court of Australia

Fortescue Metals Group Limited v The Commonwealth [2013] HCA 34

87 ALJR 935; 300 ALR 26

7 Aug 2013

Case Number: S163/2012


French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ


Constitutional law – Powers of Commonwealth Parliament – Constitution, s 51(ii) – "[T]axation; but so as not to discriminate between States or parts of States" – Minerals Resource Rent Tax Act 2012 (Cth), Minerals Resource Rent Tax (Imposition–Customs) Act 2012 (Cth), Minerals Resource Rent Tax (Imposition–Excise) Act 2012 (Cth), Minerals Resource Rent Tax (Imposition–General) Act 2012 (Cth) ("Acts") established and imposed minerals resource rent tax ("MRRT") – Amounts paid as State royalties allowed under Acts as royalty credits – Available royalty credits which do not exceed mining profit deductible from MRRT as royalty allowance – Effect of Acts alleged to be that liability to pay MRRT varies between States and that reduction in State royalty increases liability to pay MRRT by the amount of the reduction – Whether Acts discriminate between States contrary to s 51(ii) of Constitution.

Constitutional law – Constitution, s 99 – Prohibition on Commonwealth, by any law of revenue, giving preference to one State over another – Whether Acts give preference to one State over another.

Constitutional law – Melbourne Corporation doctrine – Whether Acts discriminate against or place particular burden upon operations or activities of States, beyond legislative power of Commonwealth Parliament.

Constitutional law – Constitution, s 91 – "Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals" – Whether Acts contravene s 91.

Words and phrases – "discrimination", "Melbourne Corporation doctrine", "minerals resource rent tax", "preference in trade, commerce or revenue", "State royalties", "States or parts of States".

Constitution – ss 51(ii), 91, 99.

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