Fortress Credit v Fletcher [2015] HCA 10
What happens when parliament re-enacts words already judicially construed? As this case explains (at [15]), parliament ‘is taken to have intended the words to bear the meaning … judicially attributed to [them]’2. This presumption does not bite in all situations3, but it was applied in this case to provisions …
Hoskin v Bendigo City Council [2015] VSCA 350
Ever had to consider how fundamental rights affect interpretation? One issue in this mosque case was how the phrase ‘significant social effect’ in planning laws should be read. The court said (at [29]) that religious equality is of fundamental concern in a multi-religious society like Australia7.
If a law ‘is …
Australian Building Systems [2015] HCA 48
Episode 3 of iNOW! dealt with consistent usage. This case, on liquidator tax obligations, provides more insight (at [27]). It was pointed out that a High Court decision on a provision ‘is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes and uses identical or …
Commonwealth v Sanofi [2015] FCAFC 172
Determining if provisions involve an exhaustive code which excludes common law remedies is often hard. In this case, the court (at [101-102]) held that there was ‘no inconsistency or incompatibility’ in allowing therapeutic goods provisions to coexist with a damages remedy12, adding that the contrary would be ‘inconvenient and unjust’ (at [96]). …
NAAJA v Northern Territory [2015] HCA 41
When provisions can be read so as to invalidate them but may also be read in a way that does not, ‘a court must always choose the latter course when it is reasonably open’1. Gageler J in this case (at [75-78]) provides extra insight into this rule2. He points …
Chevron Australia v FCT (No 4) [2015] FCA 1092
This case raised whether Div 815-A transfer pricing provisions were invalid by reason of textual uncertainty. Robertson J said ‘no’. Legislation can never be void or invalid due to uncertainty5. However difficult the exercise, a statute always has a meaning and a singular meaning at that.
Neither a court …
AEU v Victoria [2015] FCA 1196
Acts are presumed not to operate retrospectively7 – it’s all about fairness. Bromberg J explains (at [237-262]) that ‘retrospectivity’ has 2 senses – (A) changing legal rights concerning past events8, and (B) merely taking account of past events as the basis for how a future law will operate9.
The …
Di Paolo v Salta Constructions [2015] VSCA 230
There is a growing jurisprudence about when and how practical consequences properly influence interpretation10 – this is a controversial area! In 1981, it was said that results which are absurd, extraordinary, capricious, irrational or obscure might drive an alternative construction11. Section 15AB was legislated for soon after.
The High …
FCT v Unit Trend Services [2013] HCA 16
In 1998, the High Court began emphasising that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’3. Last month, this was described as ‘one of the most telling statements of …
BH Apartments v Sutherland [2015] VSC 381
The High Court repeatedly warns us against simplistic characterisation of policy at levels too general to be useful. Most legislation invariably reflects political compromise, the correct question being how far the legislation goes in pursuit of its general purpose6. Gleeson CJ illustrated this via reading all provisions of the tax laws …
