Vanderstock and Section 90: The Shift

In 2023, the High Court in Vanderstock v Victoria changed how certain government charges are understood.

The case looked at a per-kilometre charge on electric vehicles.

It sounded like a simple fee.

The Court said it could be something else.

The Key Principles of section 90 - Vanderstock

Substance over labels
What matters is not what a charge is called, but what it does in practice.

Excise is broader than it was
Section 90 gives the Commonwealth exclusive control over excise.
That category is no longer confined to narrow, technical definitions.

Use can fall within excise
A charge imposed on the use or consumption of goods, not just their sale or production, can still be an excise.

Practical effect is decisive
If a charge operates like a tax, the law may treat it as one, regardless of how it is described.

States cannot avoid the limit
If a charge is, in substance, an excise, a State cannot impose it, even through indirect structures or careful drafting.

There’s a quiet shift in High Court authority and principles like these. They don’t shout. They don’t announce themselves. They just sit there, and once you see them clearly, toll roads begin to look a little different.

“For nothing is hidden that will not be disclosed…” — Luke 8:17