Episodes

Forty years ago in the K&S Lake case, Mason J set down what he called the ‘modern approach’ to statutory interpretation¹.  The crucial breakthrough which the judge sought to engineer was that context in the ‘widest sense’ is to be considered ‘in the first instance’ rather than at some later stage ‘when ambiguity might be thought to arise’…

Spigelman CJ once noted that ‘lawyers are traffickers in words’¹.  Trafficked words, however, often require safe passage across international borders and the high seas, most commonly within treaties.  Fortunately, the principles for treaty interpretation hold steady in an often tumultuous global climate.  This is illustrated by the High Court decision in Evans v Air Canada, where the …

In Ravbar v Commonwealth, the High Court upheld legislation¹ that put the CFMEU into administration².  The law did not infringe the implied freedom of political communication and was not otherwise invalid³.  The key provision required the Attorney-General to be ‘satisfied that, having regard to the Parliament’s intention in enacting [the legislation], it [was] in …

The ‘modern approach’ to statutory interpretation was first articulated in this country by Mason J in 1985¹.  Courts now tell us week-by-week that the principles are ‘well established’.  Indeed, they are so well established that often little more is said than that the method involved follows the familiar ‘text context purpose’ protocol.  Earlier this month, in a case …

In 2021, the High Court said the principles of interpretation are ‘familiar’, adding – ‘Oftentimes they can seem banal’¹.  The sense of this is that the principles are trite, commonplace or mundane.  Gageler J described them as ‘workaday’².  A recent case observes again (A) that the principles are ‘well established’, and (B) that the language of …

An old nuclear test compensation case was mentioned at a recent conference¹.  Despite the remedial nature of the statute in question², the High Court denied relief to a RAAF airman who had unloaded contaminated planes.  As the statutory meaning was clear, the majority refused to read the extra words ‘of a kind’ into the provisions.  Stephen …

It is telling how often Project Blue Sky (PBS) guides the resolution of difficult issues, as the recent decision in MZAPC illustrates¹.  An officer had the duty to remove an unlawful non-citizen ‘as soon as reasonably practicable’ after refusal of a visa².  The officer declined to refer a request for a different visa to the minister, …

An academic wrote that a ‘statute is probably the most repellent form of written expression known to man’¹.  That was in 1958 when statutes were just starting their takeover of the common law world.  Now, there’s hardly a corner of human life unregulated by big complex statutes.  It is the rare person who does not prefer reading cases …

Statutory interpretation is not (and has never been) about finding an old maxim in a textbook to support an outcome you think may be correct or desirable.  An approach of this kind inverts the process and subverts the outcome¹.  Finding out what parliament meant by the words it used involves the application of a rational method by which …

What has the High Court told us about interpretation in 2024?  Two things stand out.  First are the comments by Edelman J in Harvey on extrinsic materials¹.  Second is the clarification in SkyCity of how we are to read statutory definitions².  Several other cases emphasise basic themes – textcontextpurpose, coherence and objectivity³; …