Yesterday, your humble blogger received a public undertaking from Premier Barry O’Farrell, that he would consult the NSW State Attorney General with a view to a legal challenge by the NSW State Government to the Federal Government’s carbon tax.
Today, a gentle reminder for Mr O’Farrell of his pre-election commitment to the people of NSW.
Feb 24, 2011:
I’ll fight against carbon tax: O’Farrell
NSW opposition leader Barry O’Farrell says he will go to Canberra to argue against a carbon tax, if the coalition wins the state election.
He was speaking during a live leadership debate with Premier Kristina Keneally, who is in favour of setting a price on carbon.
Prime Minister Julia Gillard announced on Thursday that a carbon price will start in Australia on July 1, 2012.
“I don’t support a carbon tax, the Premier does,” Mr O’Farrell said.
“The premier’s advisers say carbon taxes will cost families another $500 a year on their power bills.
“I don’t think that’s affordable.
“If you’re talking about reducing the cost of living pressures you can’t support a carbon tax.
“I won’t and I’ll go to Canberra to argue that point if I’m elected premier.”
Mr O’Farrell, the High Court of Australia is in Canberra.
And your most powerful argument against the carbon tax, is the Australian Constitution, section 114 in particular:
States may not raise forces – Taxation of property of Commonwealth or State
A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
In October 2011, constitutional barrister Bryan Pape publicly stated that State governments have legal standing to challenge the Commonwealth’s Clean Energy Future Bills 2011, given their impact on state-owned electricity generation and distribution assets.
But it is not just state-owned electricity assets that will be impacted by the carbon tax.
As we discovered in my in-depth research of the Federal Government’s NGER Register of “biggest polluters” ( The “500 Biggest Polluters” Exposed – Everything The Government Is Not Telling You ), the carbon tax will also impact on many other state-owned enterprises and utilies, including public hospitals and health care facilities, public transport, state rail networks, water utilities, state universities, state forests, and more.
Section 114 of the Constitution is clear. The Commonwealth cannot impose any tax on property of any kind belonging to a State.
Mr O’Farrell, you campaigned on a clear anti-carbon tax platform; pledged to take up the fight against the carbon tax in Canberra; and urged NSW voters to elect you as their representative to pursue that fight:
O’Farrell calls for NSW carbon tax revolt
NSW Opposition Leader Barry O’Farrell has joined the chorus calling for a people’s revolt against a carbon tax, saying the March state election is a chance for voters to send a message to Canberra.
During a visit to a shopping centre at Cranebrook, in Sydney’s west, Mr O’Farrell said the yet-to-be-determined price on carbon would raise annual energy bills by $500, and increase grocery and petrol prices.
He called on voters to voice their anger when they vote, saying a new coalition government would “send a shiver up the spine of every federal ALP backbencher sitting in a marginal seat”.
“The coming poll is the only opportunity that families and small businesses have across NSW to try and stop this carbon tax dead,” Mr O’Farrell said on Friday.
“To stop this tax needs every voice and every vote and the poll on the 26th of March gives people an opportunity to do that.”
Mr O’Farrell, your campaign promise worked:
ALP deserters ‘spooked’ by carbon tax
JULIA Gillard’s carbon tax may have saved two high-profile NSW ministers from a Greens’ assault in inner Sydney, but the move exacerbated the revolt against the 16-year-old Labor regime in its own heartland.
In western and southern Sydney, mining areas and long-established industrial towns, factory workers, two-car families and low-income households swung more heavily against Labor than the NSW average.
Echoing their federal leader Tony Abbott, incoming Coalition MPs in NSW argue that traditional Labor voters were spooked by the prospect of job losses, higher petrol prices and rising household power bills from a carbon tax.
Mr O’Farrell, you have made a promise.
You have a case to argue.
You have no excuses.
P.S. Please inform Mr O’Farrell and your local MP (or your own State Premier) that it is Your Will that the State Government should challenge the constitutionality of the carbon tax legislation in the High Court. Sample letter and contact details here.
Barnaby Is Right 
Get Ray Hadley on this.
Way to go
He seems to have the NSW Premier’s phone on a continuous hook up–he had over the disabled children’s bus fiasco and the current BER large construction firm not paying its contractors despite being prepaid millions by the government before B OF’s time.
Also, Alan Jones isn’t afraid to ask hard questions.
Perhaps you or other readers might care to assist with a gentle prompt there Jazza … I don’t follow radio.
I’m no lawyer blissful, but I would have thought the Commonwealth could simply argue that the tax is not being directly imposed on the property rather it is being imposed on that nasty “carbon pollution”.
The fact that the tax will lead to property write downs is irrelevant under the law as worded, no?.
Can’t say Richo, I’m not a lawyer either. Certainly barrister Bryan Pape asserts that the states have grounds to challenge under s.114. It’s also worth noting that a legal challenge, even if unsuccessful, could disrupt/delay/embarrass the government’s plans (eg, an injunction to prevent issuing of “compensation”), and so would be a worthy end in itself, IMO.
Embarass for the government works both ways, particularly if O Farrell loses. I’m not defending him, but I am guessing that is the reason he is dragging his heels on this issue.
Have written y letter to Liberal Premiers.
Will copy to Ray Hadley and Alan Jones.
I will send if you have a site email??
Cheers and thanks for all your hard yards!
TBI: email address now removed.
Ok.
Coming soon and feel free to use it
Cheers
Thanks Jazza.
Richo – Yes, Barry might lose, but I think he’d be FAR more embarrassed if he does nothing and lets the tax come into operation unchallenged. As a NSW voter I expect my politicians to action every option available and there’s sufficient primia facia evidence here to suggest it is well worth a go.
I doubt big Barry’s cajones are big enough for him to follow through. Don’t hold your breath…
Just got sent a doorstep interview with the PM and O Farrell annoucning the clean energy finance corporation will be based in Sydney.
O Farrell states:
“Can I congratulate and thank the Prime Minister for choosing Sydney, Australia’s financial and commercial capital, as the home of the Clean Energy Finance Corporation.”…I’m delighted with the jobs it will also bring to Sydney.
How many jobs? A grand total of 40.
Mr O Farrell speaks with a forked tongue.
Please continue to follow up as much as possible regarding this issue. I really would like to see Barry standing up for NSW voters rights,agains the “tax that we never voted for”.
None of the generators, in NSW at least, are the states as such, they are corporations owned by the states. There is no issue that they can be taxed – they are all subject to GST, Superannuation guarantee payments, etc. Constitutionality is simply not an issue, it is easily caught by the trading corporations powers, for example.
In any case, it is not strictly a tax, but an excise duty on production of CO2. This is not caught by s114 – are you suggesting that if the states sell their own petrol, they do not have to pay the duty to the commonwealth?
Clive Palmer looks so ridiculous that he makes Gillard and Swan look like accomplished statesmen. Someone needs to put him back in his kennel.
“..it is not strictly a tax, but an excise duty on production of CO2”
The multiple, mutually-dependent yet also mutually-contradictory bills in the CEF package are a clear attempt to circumvent the constitution s.55 by claiming that the “tax” is both … and, neither.
Right there is where a key point of argument resides. It appears that is precisely the legal advice that has been given to Clive Palmer.
“None of the generators, in NSW at least, are the states as such, they are corporations owned by the states.”
Section 114 states “..nor shall the Commonwealth impose any tax on property of any kind belonging to a State.” I suggest that a State-owned corporate asset – a power station, for example – would likely qualify as meeting the definition of “property of any kind belonging to a State”.