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High court challenge to Victoria’s electric vehicle tax

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Plaintiff Kathleen Davies, an engineering consultant who lives in Melbourne’s east, bought her first electric vehicle, a Nissan Leaf, in 2012.

Her family liked having an electric car so much that in 2017 they upgraded to a BMW i3, with a “range extender” – a small petrol-driven motor that increases the distance the vehicle can travel between charges.

When Ms Davies first heard about the Victorian government’s proposal to tax electric vehicles she thought it was a joke.

“It’s grossly unfair. I have spent 15 years trying to reduce my reliance on fossil fuels and this stops the easy adoption of electric vehicles,” Ms Davies said. “People will view them as more expensive to run.”

Ms Davies has never taken legal action before, and considers it an avenue of last resort. But she took the step after 15 years of personal climate action, joining local action groups and lobbying politicians.

She was inspired by the partially-successful class action brought by Equity Generation on behalf of eight teenagers against Ms Ley. This challenged a proposal by Whitehaven Coal to extend its Vickery coal mine in NSW, arguing it would endanger their future.

The court dismissed the teenagers’ application in May to prevent the minister approving the coal mine extension, and Ms Ley approved it on Thursday. But the court did find Ms Ley owed a duty of care to Australia’s young people. Ms Ley is appealing this decision.

When she read about the court case Ms Davies contacted Equity Generation and agreed to be involved in this electric vehicle court case.

“Those kids are so brave, and I’m just a middle-aged woman trying to understand how we shift the system.”

Those kids are so brave, and I’m just a middle-aged woman trying to understand how we shift the system.

Kathleen Davies

Fellow plaintiff and Melbourne nurse manager Chris Vanderstock, who uses his car for his daily work commute, said he had additional concerns to the constitutional validity of the laws.

“Instead of taxing clean technologies, the Victorian government should be concentrating on getting dirty cars off the road,” Mr Vanderstock said.

The recent Intergovernmental Panel on Climate Change report found global emissions must peak within the next four years to keep warming at 1.5 degrees.

And although Victoria has joined other global jurisdictions by setting a target of reaching net zero emissions by 2050, this is unlikely to happen if the state’s transport emissions continue to increase.

The state Labor government says the tax will make road charging fairer for all motorists because electric vehicle drivers do not pay fuel excise. Mr Pallas has said the charge would establish the necessary tax infrastructure as electric vehicle uptake grows towards an anticipated 26 per cent of all cars in Australia by 2030.

He also said the $30 million expected to be raised by the new charge, over four years, will be more than offset by $45 million spending to boost the take-up of electric vehicles, with charging points across the state and plug-in facilities in new buildings.

Mr Pallas said Victoria was investing in the future of electric vehicles and ensuring everyone pays their fair share for building and maintaining roads.

“This reform will deliver broad benefits to the public in the long-term, including less congestion, reduced road maintenance expenditure, less urban sprawl and further transport mode shift,” he said.

Infrastructure Victoria, the state’s key infrastructure adviser, recently said Victoria should stop the sale of new petrol and diesel vehicles by 2035 to reduce greenhouse gas emissions and encourage more people to buy zero-emissions cars.

Widespread electric car use would not only help the state to reach its net zero target by 2050, but also save millions of dollars each year in health and environmental benefits, it said in its report, Victoria’s infrastructure strategy 2021-2051, tabled in parliament.

The government has been contacted for comment.

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