Principles

Two opposing perspectives

Episode 106 focussed on comments by Edelman J on the status of extrinsic materials¹⁰.  It was said EMs are ‘important and weighty sources of information that invite the available implication that these materials are more reflective of government intent’. 

This was applied directly in R v RB¹¹.  We should not expect that all …

EXV v Uniting Church [2024] NSWSC 490

Weinstein J refused to set aside under new laws  deeds of settlement already concluded between child sex abuse victims and the church¹⁴.  Similar laws had been enacted elsewhere at the same time.  What impact should decisions under those laws have?

The judge (at [166]) drew attention to comments by Gageler J …

Tigers Realm v Commonwealth [2024] FCA 340

Was movement of coal within Russia a ‘sanctioned import’ under regulations?⁴  That term included where a ‘person … transports goods … and … the goods are import sanctioned goods for a country …’  The coal was ‘import sanctioned goods’ by declaration.

Tigers said ‘transports’ only extended to coal imported into Australia or …

Azimitabar v Commonwealth [2024] FCAFC 52

This case dismissed an appeal from the decision discussed in Episode 99⁷.  It confirms that the idea  definitions are not read as a source of substantive power is no more than a ‘general principle’⁸.

Many cases, in fact, have not observed this ‘principle of good drafting’.  One of them states …

Ex parte Northern Land Council [2024] NTSC 34

Episode 1 drew attention to comments by Nettle J about statutory obligations which are ‘impossible or impracticable’ to comply with¹⁰.  This case (at [26-27]) says that impracticable consequences should be avoided where the provisions ‘are susceptible to an alternative construction’¹¹.  Further, it was not to be inferred that …

Liquorland v Director [2024] WASC 128

This liquor licencing appeal is an important reminder about what ‘legislative intention’ is and what it isn’t.  Lemonis J (at [35]) quoted High Court authority for the point that legislative intention is ‘something of a fiction’¹⁵, and that there is never the attribution of some collective mental state to any legislators.

Findings …

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 …

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…

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 …

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 …