ASIC v King [2020] HCA 4
Some may tire of the mantra – ‘text context purpose’ – but the High Court hasn’t. On who is an ‘officer’ of a corporation, the court said it was necessary to consider the provision4 ‘by reference to considerations of text, context and purpose having regard to the mischief at which it was directed’…
Hopkins v Minister [2020] FCAFC 33
Legislation is presumed not to infringe fundamental rights/freedoms in the absence of clear language – the principle of legality6. The task is to identify some right or freedom, then test if it is ‘fundamental’.
H arrived here as an infant in 1967. 46 years later, his permanent visa was cancelled due to …
Lawson v Minister [2020] NSWSC 186
It was argued that the presumption against taking property without compensation8 prevented extinguishment of native title by legislation9. An intention to take must be ‘manifest’, something which requires ‘clear and unambiguous words’10. The provision said that the lands ‘are hereby vested in South Australia for an estate of fee …
Anastasiou v Wallace [2020] NSWLEC 14
A development consent was ‘subject to’ the other provisions of the legislation12. Pain J (at [44-45]) accepted this meant that consent provisions were subservient to the rest of the Act13. As there was no inconsistency, ‘subject to’ had no work to do.
Another recent case considers a water access licence …
Comptroller-General v Pharm-a-Care [2020] HCA 2
Tariff classification under treaty items copied into domestic law can be complicated4. Were vita-gummies free of duty as ‘medicaments … containing vitamins’?5 The English version of the treaty (our law) contains within Note 1(a) a general exclusion for ‘foods or beverages’ (absent in the French version).
Both texts are ‘equally …
Attorney General v WB [2020] NSWCA 7
WB was unfit to stand trial for sexual offences and committed to a facility for 3 years. He became a ‘forensic patient’ by statutory definition8, something which could be extended on an interim or final basis. If his status as a ‘forensic patient’ lapsed for any reason (including timing issues), could …
Woods v Newman [2020] QSC 10
Decided in 1998, Project Blue Sky is one of the rocks on which modern interpretation in Australia stands10. In Woods (at [35]), Applegarth J said the ‘words of any provision must be interpreted in their context and, so far as possible, enable a harmonious operation between different provisions’11. ‘These principles …
Basten JA (2019) 93 Australian Law Journal 367
In 1981, 2 judges said the principles of interpretation ‘are no more than rules of common sense’12. Basten JA says the days have passed since interpretation was to be seen as some exercise in common sense13. Is there inconsistency between these 2 statements?
Rhetorical ‘common sense’, as unanalysed …
NNXF v NDIA [2019] AATA 5552
Episode 55 includes a case where 2 pieces of legislation were not a scheme3. Here the AAT said there was a scheme, comprising national disability & AAT Act provisions4. These were to be construed ‘harmoniously and justly’5 as ‘beneficial legislation’ and to ensure correct and preferable decisions. The meaning …
Hogg v R [2019] NSWCCA 323
In this sexual assault appeal, the accused said the principle of legality should prevent his right to silence during official questioning being eroded by any adverse inference drawn under s 89(1) of the Evidence Act 1995. This was rejected (at [100]).
The principle of legality requires clear words in legislation to adversely impact …
