Delegated legislation

NL v Chief Executive DFCP [2023] SASCA 20

Delegated legislation is invalid if it is inconsistent with the statute under which it is made12.  As the court explained (at [118-123]), inconsistency may involve direct collision between the two, or may arise where the statute is ‘plainly intended’ to ‘cover the field’13 – that is, where the statute …


Attorney General v FJG [2023] NSWCA 34

In this case, Bell CJ (at [1]) observes that interpretation should never start from some preconceived policy outcome considered desirable then ‘work backwards’.  Preconception may be unconscious just as much as deliberate.  Within our purposive system, it is a particular problem that appellate courts have been concerned to call out15.

Could …

Expert evidence

Odisho v Central Coast Council [2023] NSWLEC 1017

When meaning is at stake, a natural inclination may be to call in an expert.  But, while experts might give evidence on the technical meaning of non-legal words4, their views on ordinary meaning of words are inadmissible5.  This case makes an even bigger point.

At issue was the …

Statutory purpose

Sunsie Pty Ltd v KDD [2023] WASC 18

S pre-paid $380K to an agent in relation to purchase of a unit; the agent gave it to the developer before strata plan registration; the project failed; the agent claimed the money was a loan, not part of the price. 

Archer J held the money was recoverable under strata title provisions preventing …

Expressio unius

Case (pseudonym) v The King [2023] VSCA 12

C was convicted in Victoria of involving another in production of child abuse material – s 51B of the Crimes Act 1958.  While in SA, he phoned someone in Victoria giving step-by-step instructions about what was to occur.  Related provisions had extraterritorial effect, but not s 51B.  C argued this meant …

Extrinsic materials (again)

NDIA v Foster [2023] FCAFC 11

F needed a catheter to urinate – did he meet access rules to become an NDIS ‘participant’14?  He said that ‘effectively or completely’ in the context of his ability to participate in self-care activities took its ordinary meaning without regard to extrinsic materials.

The court (at [31]) rejected this.  The notion these …


4 Boys (NSW) v ILGA [2022] NSWSC 1689

Section 34(4) of the Gaming Machines Act allowed ILGA to increase a venue’s gaming machine threshold.  There was no express power to revoke a decision to increase, but s 48(1) of the Interpretation Act 1987 provided that statutory functions ‘may be exercised … from time to time as occasion requires’.

Did this …


Wipro Ltd v NSW [2022] NSWCA 265

Did employment in India under separate arrangements with the same entity count as part of ‘continuous service’ for long service leave purposes?8   This depended on territorial reach of the legislation  and the presumption against extraterritoriality9, each of which depend on interpretation.

The task is to identify the ‘hinge’ or central …

Statutory rights

White (pseudonym) v The King [2022] VSCA 278

Could W consent to joinder of unrelated incest charges in the same indictment?  The statute said an indictment ‘must … comply with Schedule 1’12, which stated that only ‘related offences’ could be joined.

Two judges (at [65]) noted the old principle that a person can waive a statutory right enacted …

New textbook

Modern Statutory Interpretation

If a single word describes this textbook from Jeffrey Barnes, Jacinta Dharmananda and Eamonn Moran14, that word is ‘comprehensive’.  Among its strengths are the practical guidance it provides, its concise and up-to date explanations, and its worked examples.

There are 43 chapters, key ones being Ch 9 practical techniques, Ch 4 legislative intent, Ch 7 …