We hear daily in the media that the rule-of-law is under assault everywhere. But what is the rule-of-law exactly, and what has it got to do with statutory interpretation?1 The rule-of-law is a network of high-level fundamental values which guide the law in a democracy (certainty, transparency, fairness, impartiality, etc). Robert Hughes in The Fatal Shore called it a …
Given the time of year, something might be said about holidays and interpretation. Usually, if an Act requires or allows a thing to be done and ‘the last day for doing the thing is a Saturday, a Sunday or a holiday1: then the thing may be done on the next day that is not a Saturday, a Sunday …
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 …
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. …
iNOW! first published in 2015 and now turns 100. What has happened over that period and what does it mean for the interpretation of statutes? Two things stand out. The first is the stability of the system. The principles and the methods by which they are to be applied are well-established, known and flexible. The second is the place …
Senior judges once said not to read books about interpretation1. That changed with the explosion of legislation we see in the modern state. Professor Pearce produced our first textbook back in 1974. Two more have now entered the field and all of them are good2. Interpretation is a significant body of law in its own right. …
What has Franz Kafka’s The Trial got to do with interpretation? Patrick v AIC (No 2)1 is about when the AIC had a ‘duty’ to make an FOI review decision2 as would allow the Federal Court to intervene for ‘unreasonable delay’3. It was argued no duty arose until the review process was complete. Wheelahan J (at …
‘Get the picture?’ Someone asking this is not probing if you have picked up that new artwork from the framers. They are asking if you understand the whole situation around whatever is being discussed. If you have not understood the context of that situation and the purpose of those discussions, you will not ‘get the picture’ – outcomes may suffer. …
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 …
