‘And’ & ‘or’

Onebev v Encore Beverages [2016] VSC 284

‘And’ and ‘or’ usually take their plain meaning.  ‘And’ is conjunctive and combines items in a provision, while ‘or’ is disjunctive and creates alternatives.  However, ‘and’ is sometimes read as ‘or’ (and vice versa) if there is a clear drafting or printing error, or if context shows the other meaning was intended7

‘Must’ and ‘shall’

AS v Minister [2016] VSC 351

Words like ‘must’, ‘shall’ or ‘required’ normally impose a mandatory duty and remove discretion8, but as always, this is subject to contrary intention9.  While there is no fixed formula, consider whether failing to comply would defeat the Act’s purpose.  If so, the provision may be compulsory10.

In this …

Status of tax laws

Traditionally, there was a view that tax Acts ‘should receive a strict construction’1.  Hill J said it would be ‘a sad day’ if the rule were abandoned, as this could lead to ‘sloppy drafting’2. Kirby J disagreed, famously saying that a tax Act is ‘just another statute’3.

Where are we now on this?  With …

Context and ambiguity

FCT v Jayasinghe[2016] FCAFC 79 

In this case, Allsop CJ emphasises (at [3-12]) that statutory words need not be ambiguous on their face before their context may be examined6.  Words cannot be construed in isolation, and context (in its widest sense) must be considered straight away7.

At the same time, Allsop CJ warns against giving …

Tax retrospectivity

Numo Pty Ltd v CSR [2016] VSC 274

Episode 7 said that Acts which change legal rights or liabilities are presumed not to apply retrospectively.  This case says further (at [47-51]) that the presumption chiefly applies to Acts that change the law, not the exercise of existing statutory powers10

The Commissioner had exercised a statutory discretion to group …

General & special provisions

Totten v Secretary [2016] AATA 240

If a specific provision conflicts with a more general one in the same or an earlier statute, there is a general rule that the specific provision prevails.  However, the conflict must first be completely irreconcilable11, as all words of an Act should be given effect where possible12.

In this case …

Back to basics

BPG Caulfield Village v CSR [2016] VSC 172

The past dozen episodes of iNOW! cover a decent range of interpretational issues.  Regularly, however, courts direct us back to the basics. 

This case (at [32]) quotes Alcan3 for the following – (A) interpretation ‘must begin with a consideration of the text itself’, (B) historical considerations and extrinsic materials cannot …


Lockhart v United States 577 US (2016)4 

In America, child pornography offences attract extra jail time if X has prior convictions for ‘aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’.  X pleaded guilty but had a prior for adult sexual abuse.  Argument raged between 2 technical grammar rules – the ‘last antecedent’ and ‘series qualifier’ …

Principle of legality

Commissioner of Police v Guo[2016] FCAFC 62

The principle of legality gets plenty of court time these days.  Very clear words in an Act are needed to exclude important common law rights and doctrines.  The issue in this case was whether public interest immunity was available in the AAT to prevent police being asked about informants. The finding (at …

Delegated legislation

Heatscape v Mahoney (No 2) [2016] NSWLEC 45

Episode 9 explains how regulations cannot control what an Act means.  This case (at [149]) reminds us that the same principles we apply to statutes ‘are equally applicable to the interpretation of subordinate legislation’ – no surprises here. 

An additional point11, however, is that delegated legislation is ‘less carefully drafted, …