Setting the Playing Field: Vanderstock, Economic Tendencies and the Identification and Definition of Constitutional Facts
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(Accepted version)
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2024
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Carter, A.
Nadarajalingam, J.
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Public Law Review, 2024; 35(3):223-237
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Anne Carter and Jayani Nadarajalingam
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Although the High Court of Australia has long accepted that issues of constitutional validity may sometimes depend on questions of fact, the relationship between facts and validity deserves closer examination. In this article we focus on the economic tendencies that were relied upon by the High Court in Vanderstock v Victoria in the course of determining whether the Zero and Low Emissions Vehicle (ZLEV) charge imposed by Victoria constituted a duty of excise for the purposes of s 90 of the Constitution. By examining the role played by tendencies in Vanderstock we consider the relationship between facts and validity, suggesting that some facts will be more salient to validity than others. We also consider the extent to which constitutional facts form binding precedent.
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