Northern Land Council v Quall [2019] FCAFC 77
The ability to do all things ‘necessary or convenient’ for performing statutory functions is a common mechanism for ensuring powers are adequate for their intended role12. The court (at [105-107]) sets out basic principles for giving content to powers of this kind. They are ‘strictly ancillary’, do not extend the …
Brewster v BMW Australia Ltd [2019] NSWCA 35
In a class action for faulty airbags in BMWs, a ‘common fund’ order was made that 25% of any proceeds be paid in priority to the litigation funder. Section 183 said that the court may ‘make any order that the Court thinks appropriate or necessary to ensure that justice is done in …
Tjungarrayi v WA [2019] HCA 12
This case (at [89]) reminds us that the operation of all statutory definitions yield to contrary intention10. The Act said that a native title claim could not be made over unallocated Crown land covered by a lease. While some parts of the Act said ‘lease’ included mining leases11, there was …
Ketjan v Assistant Minister [2019] FCA 516
Ketjan’s visa was cancelled under a migration provision requiring cancellation where someone has a substantial criminal record and is currently imprisoned. The decision-maker took into account a custodial sentence completed before the provision came into force. Was this prevented by the presumption against retrospective laws?13
The court held (at [40]) that the …
Cappello v RMS[2019] NSWSC 439
RMS could ‘acquire land for any of the purposes of this Act’. Affected owners resisted acquisition because the ‘objects’ clause in the Act did not extend to acquiring land for road tunnelling work. Campbell J (at [40-46]) rejected the argument on the basis that the ‘purposes of this Act’ are to be found in …
Satyam Computer Services v FCT [2018] FCAFC 172
In this case, it was argued that double tax agreements can only ever be ‘shields not swords’. That is, DTAs can only limit domestic taxing rights, and cannot operate to grant extra taxing powers.
The court disagreed (at [28]), saying it was an error to approach construction of the Indian DTA from …
When reading overseas decisions, we should keep in mind their approach to interpretation. EU judges, for example, take a ‘teleological’ approach. This translates roughly as ‘purposive’, but not as we know it. Outcomes are driven more by economic policy and political factors than the text. Judges fill gaps in ways we see as activist in the extreme6. Ends …
Michos v Eastbrooke Medical [2019] VSC 131
Con Michos tried to exercise his statutory right to access a medical report about him10, but was required by the clinic first to see a doctor. After telling the clinic he had accessed the report another way, the clinic cancelled his appointment. Despite this, Michos continued to assert his right to …
Bhalsod v Perrie [2018] WASCA 108
The ‘always speaking’ concept arose in the 19th century as a style of drafting12, where present tense was used to cover future events in order to give effect to an Act’s ‘spirit, true intent and meaning’.
Now ‘always speaking’ is widely understood to allow statutory language to be ‘adaptable to new …
WHA v Outback Ballooning [2019] HCA 2
Did NT work safety laws ‘alter, impair or detract’ from federal provisions? In this context, Gageler J commented on the nature of legislative intention. It is what parliament is taken to intend the words to mean after the interpretation process is complete5.
The judge referred to ‘emergent scepticism’ about the very …
