Episodes

James Allsop recently retired as chief justice of the Federal Court.  What was his legacy on interpretation?  As a committed contextualist, he went behind the ‘widest sense’ mantra to explain why context is ‘indispensible’ – It gives the place, the wholeness and the relational reality to words; it helps prevent linear thinking and sometimes beguilingly simple and attractive logic with …

Episode 90 observed that ‘always speaking’ is a baseline assumption in our system, but that how to apply it is often problematic.  A recent UK case – News Corp UK – throws more light on this¹.  The issue was whether ‘newspapers’ in older VAT provisions extended to cover digital editions – answer ‘no’.  The court confirmed that always …

In a 2022 speech, Allsop CJ stressed that tax laws are subject to the same interpretation principles as other statutes.  Although some ‘peculiarities’ arise for tax provisions – for example, their ‘fiscal and commercial context’ is critical¹ – these merely stem from the application of settled principles.  This fits with the High Court position that ‘tax statutes do not …

We are told to start with the text while considering also context and purpose.  In America, the focus is more on close textual analysis.  A recent gun control case – Cargill v Garland – illustrates this¹.  The court struck down a ban on ‘bump stocks’, an accessory increasing rate of fire.  Bump stocks, however, do not turn rifles …

When the High Court frames an interpretation issue these days, it often says no more than that the legislation ‘is to be interpreted by considering the text, having regard to its context and purpose’¹.  This mirrors the position legislated for in New Zealand, where s 10(1) of the Legislation Act 2019 provides – ‘The meaning of legislation must …

Lord Wilberforce once said the uncertainty of words was what made statutory interpretation ‘so exciting’.  This must be one of the most super-nerdy statements in legal history.  It was made at a symposium held prior to the enactment of s 15AB¹.  It reveals, however, two fundamental truths about the ‘modern method’ we are to apply.  The first is …

That legislation is ‘always speaking’ in the present is a baseline assumption in our system of interpretation¹.  Some States have even legislated for it².  The core idea is that words take their current meaning and are not to be ‘locked in a statutory time capsule’³.  One way this is described is that, while the …

Two recent High Court cases probe difficult corners of interpretation law.  The first¹ explores presumptions both at common law and under statute² against the extraterritorial operation of domestic statutes³.  Kiefel CJ and Gageler J (at [34]) said these presumptions had no application in the circumstances – that is, they did not exclude non-residents from being a …

In a recent VSCA case¹, Sifris JA’s minority judgment (at [145-152]) touched on the interplay between text and purpose in resolving constructional choice.  If the ordinary or literal meaning of statutory words conflicts with legislative purpose, it is justifiable to depart from it in favour of an alternative construction that is ‘reasonably open’ on the words of the …

This month the number of iNOW! subscribers passed the 1000 mark.  Many are within the ATO but most are external.  They come from across the professions, government, academia and the courts.  Improving the reliability of answers to what legislation means caters to an important public interest across the community.  The modest aim of iNOW! is to provide access to the …