The Melbourne Cup was run this month and a horse named Interpretation came sixth. Horseracing and statutory interpretation have one thing in common. They are both about picking winners. A degree of ‘interpretation’ may be applied to the form-guide, and there are any number of ‘systems’ dedicated to this exciting pursuit. They include raw statistics, urban mythology, superstition and the …
AER v Pelican Point Ltd [2023] FCA 1110
A regulator sought declarations that Pelican had under-reported the electricity it could produce on a given day. Pelican argued that any doubt or ambiguity in the civil penalty provisions should be resolved in its favour. Besanko J (at [680]) agreed generally2.
This is similar to criminal situations where, if real …
Croc’s Franchising v Alamdo [2023] NSWCA 256
Did COVID regulations protect Croc’s as an ‘impacted lessee’ from termination by Alamdo?4 Clause 7 required regard be had to National Code principles when decisions affected ‘impacted lessees’.
While ordinary interpretation principles apply to delegated legislation5, that legislation will often not be drafted with the same care as statutes…
Granville Hotel v ILGA [2023] NSWCA 248
Granville’s application to operate pokies late at night was rejected on the basis there were insufficient gaming ‘venues’ proximate to the hotel. The dispute turned solely on whether ‘venues’ in a guideline8 included the singular9. Granville argued it should.
Kirk JA (at [32]) accepted that the Interpretation Act applied to …
Raiz v PSR (No 2) [2023] FCA 1293
Dr Raiz challenged referral of a complaint to a committee. He said a prior ‘inclination to refer’ was itself a ‘decision’ which was flawed because his submissions had not been taken into account11. The issue was what is meant by ‘make a referral’12.
The judge held no ‘decision’ …
E100 talks about the controlling influence of purpose in our system. But purpose does not solve all problems. Purpose may operate as the ‘statutory decider’ only where it can be derived from objective evidence within or outside the statute. Purpose may involve a compromise, be obscure or unexpressed1. This happened in a recent GST food case2. …
Ramsay v Minister [2023] NSWLEC 66
Farmers were granted access licences for lesser amounts of water than they applied for. They tried to appeal on the basis that ‘a decision refusing to grant an access licence’ had been made5. They raised the principle that, where two meanings are open, it is proper to adopt the one which avoids …
The King v Jacobs Group [2023] HCA 23
This case is about the penalty imposed after a company conspired to bribe a foreign official on construction projects8. The penalty provision mirrored treaty obligations and was to be read consistently with international law9. Penalties should be ‘effective, proportionate and dissuasive’; and proportionate to the gravity of the …
Disorganized Developments v SA [2023] HCA 22
Hells Angels is a criminal organisation. Two members were directors of Disorganized, which owned land at Cowirra. It is an offence for members of a criminal organisation to enter property declared a ‘prescribed place’11. Regulations sought to (but did not on their face) declare the land a ‘prescribed place’. After conviction, …
MK v R [2023] NSWCCA 180
MK was convicted of maintaining an ‘unlawful sexual relationship’ with a child13. That term is defined as ‘a relationship in which an adult engages in 2 or more unlawful sexual acts towards a child over any period’. Two earlier cases held that a sexual relationship over and above commission of the offences …
