Principles

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 …

Edelman J stresses the importance of context, saying that trying to understand speech without context is like trying ‘to understand the meaning of a painting before the paint is applied to the canvas’⁴.  But only in the last 50 years have extrinsic materials been seen as part of that context for interpretation purposes. 

Edelman J referred to the …

Edelman J said that the fact that some extrinsic materials are weighty does not deny that others will have little influence.  This is only natural.  An EM, for instance, may be ‘an important and weighty extrinsic source of information’.  Given the central role of ministers and departments in their drafting, it ‘invites the available implication that these materials are more …

Edelman J explains that s 15AB was enacted before the ‘modern approach’ had solidified⁹.  Section 15AB regulates how extrinsic materials may be used by providing gateways, conditions and processes.  But the differences between statutory and common law paths ‘should not be overstated’.  There ‘will very rarely be a difference in practice’ between them¹⁰.

Each path …

This case confirms the potential of extrinsic materials under the ‘modern approach’ to influence meaning¹². 

What Edelman J said in Harvey is important for many reasons.  (1) Access to extrinsic materials is driven by the contextual focus of our system. (2) The statutory and common law paths into those materials exist side-by-side¹³. (3) It will be …