Gillard should have learnt from Rudd’s mistakes on Australian mining tax

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Gillard should have learnt from Rudd’s mistakes on Australian mining tax

kevin-rudd.jpg

COMMENT: Fortescue Metals Group filed a High Court challenge against the Australian government last week in an attempt to have the mineral resource rent tax (MRRT) declared invalid, but if Prime Minister Julia Gillard had learnt from her predecessor’s mistakes the problem may have been avoided.

The resource super profits tax (RSPT) created under Kevin Rudd’s tenure proved to be a major contributor to his downfall as pressure from the mining industry, including a media campaign run by the Minerals Council of Australia, saw his popularity plummet until he was deposed by Gillard in 2010.

fortescue.jpg

Fortescue’s founder Andrew Forrest has since claimed Rudd had found a way to modify RSPT so as to appease mining industry opposition shortly before he left office.

The main feature of the redesign was to include concessions for capital spending on infrastructure.

However, once Gillard supplanted Rudd it seems her chief concern was garnering the support of the big three mining companies: BHP Billiton, Rio Tinto and Xstrata.

In devising the MRRT, a revised version of the RSPT, Gillard consulted only with the big three mining companies and neglected to involve Fortescue and other mining companies in the discussions.

Forrest told The Australian that the revised MRRT provides for deductibility for the market value of the resource in the ground which provides an enormous capital shelter for the big miners and minimises their tax payable, while hitting the smaller companies.

Deputy Prime Minister Wayne Swan maintains the MRRT will generate A$10.6 billion ($10.7 billion) within three years of its implementation date on July 1 2012, and that the main burden will fall on the big three miners.

However, Fortescue claims MRRT allows the biggest mining companies a deduction on their overall tax liability, based on the book value or market value of their separate coal and iron ore projects as of May 2 2010, while such deductions will not be available to smaller producers.

In its court filing, Fortescue is challenging the MRRT on constitutional grounds, arguing the tax discriminates between the states, curtails their sovereignty and restricts their ability to encourage mining.

julia-gillard.jpg

The High Court case is yet another obstacle for Gillard’s government to overcome in implementing the mining tax and shows the political sway the sector wields in Australia.

It seems Gillard (pictured left) may have underestimated Fortescue’s challenge, and perhaps a wider and more thorough consultation process could have averted the danger now posed by the High Court case.

But the odds are firmly stacked in the government’s favour and whether the High Court defies expectations or not with its decision, MRRT will take effect next week.

Fortescue has made an admirable stand, but it will now need to focus its resources on coping with the significant extra burden of MRRT, as will the rest of Australia’s mining sector, whether they agree with the model or not.

FURTHER READING:

Australia’s mining tax continues to come under fire

Mining tax revenue controversy compounds Gillard’s problems

Australia: Bringing the MRRT to life

more across site & shared bottom lb ros

More from across our site

The new guidance is not meant to reflect a substantial change to UK law, but the requirement that tax advice is ‘likely to be correct’ imposes unrealistic expectations
Taylor Wessing, whose most recent UK revenues were at £283.7m, would become part of a £1.23bn firm post combination
China and a clutch of EU nations have voiced dissent after Estonia shot down the US side-by-side deal; in other news, HMRC has awarded companies contracts to help close the tax gap
An EY survey of almost 2,000 tax leaders also found that only 49% of respondents feel ‘highly prepared’ to manage an anticipated surge of disputes
The international tax, audit and assurance firm recorded a 4% year-on-year increase in overall turnover to hit $11bn
Awards
View the official winners of the 2025 Social Impact EMEA Awards
CIT as a proportion of total tax revenue varied considerably across OECD countries, the report also found, with France at 6% and Ireland at 21.5%
Erdem & Erdem’s tax partner tells ITR about female leader inspirations, keeping ahead of the curve, and what makes tax cool
ITR presents the 50 most influential people in tax from 2025, with world leaders, in-house award winners, activists and others making the cut
Cormann is OECD secretary-general
Gift this article