Episode 107

Proportionality is a large and nuanced legal concept.  While not often cited in interpretation, the core idea – the balance between the degree of departure from a baseline and the importance or clarity of the departure’s purpose – is useful in resolving interpretation questions.  Under the ‘modern approach’, legal meaning usually corresponds with grammatical meaning, ‘but not always’1.  …

Human rights

Johnston v Carroll [2024] QSC 2

Many jurisdictions require their statutes to be interpreted in a way that is compatible with human rights6.  This case is about whether directions to police and ambulance workers in Queensland to be COVID vaccinated were invalid for breaching human rights.  It was held that, while the directions were unlawful, they were not …

Single purpose rarely 100%

Christian Community v Minister [2024] NSWCA 1

Private schools are funded where they are not ‘operated for profit’8.  The school here was run for profit9 and the minister sought to recover funding.  It was argued that the minister could only recover if a prior declaration had been made that the school ‘is’ being ‘operated for profit’10

Consumer protection

Dyjecinska v Step-Up [2024] NSWSC 159

Harrison AJ held that an unsigned and undated building contract remained enforceable by the builder12.  The Act, accepted as involving consumer protection, required a contract in writing which sufficiently described the work.  But extrinsic materials and amendments confirmed the purpose of the provisions13 to be to ensure that contracts were not …

Remedial legislation

Secretary v Stewart [2024] NSWCA 59

The issue was whether absence from work due to incapacity while receiving compensation is a ‘period of unpaid leave’ under the Act?14  The court said ‘no’ on the basis this was too strained an interpretation.

The court made several important points.  One, adopting a ‘broad’ construction to remedial provisions from the outset …

Episode 106 – extrinsic materials

Edelman J in Harvey v Minister [2024] HCA 1 comments on the ‘why, when and how’ regarding the role of extrinsic materials in interpretation.  This arose in the context of whether granting a mineral lease1 expanding the McArthur River Project onto Aboriginal land gave the native title holders formal objection rights.  It was held that it did.  The legal …

Focus on context

Edelman J stresses the importance of context, saying that trying to understand speech without context is like trying ‘to understand the meaning of a painting before the paint is applied to the canvas’4.  But only in the last 50 years have extrinsic materials been seen as part of that context for interpretation purposes. 

Edelman J referred to the …

Weight to be attributed

Edelman J said that the fact that some extrinsic materials are weighty does not deny that others will have little influence.  This is only natural.  An EM, for instance, may be ‘an important and weighty extrinsic source of information’.  Given the central role of ministers and departments in their drafting, it ‘invites the available implication that these materials are more …

Two paths, one destination

Edelman J explains that s 15AB was enacted before the ‘modern approach’ had solidified9.  Section 15AB regulates how extrinsic materials may be used by providing gateways, conditions and processes.  But the differences between statutory and common law paths ‘should not be overstated’.  There ‘will very rarely be a difference in practice’ between them10.

Each path …

iNOW! observations

This case confirms the potential of extrinsic materials under the ‘modern approach’ to influence meaning12

What Edelman J said in Harvey is important for many reasons.  (1) Access to extrinsic materials is driven by the contextual focus of our system. (2) The statutory and common law paths into those materials exist side-by-side13. (3) It will be …