Context & adding words

CCA19 v Dept of Home Affairs [2019] FCA 946

Project Blue Sky accepts that context may require statutory words to bear an ungrammatical meaning8.  Our ‘modern approach’ also includes the limited ability to add or subtract words from legislation in correction of minor drafting errors9.  This case sets out how these 2 themes interact.

Bromberg J (at [148]) observed that adopting an ungrammatical meaning may involve adding words by way of ‘explanation, not speculation or repair’ consistent with the 3-step test in Taylor10.  This is how a court avoids crossing into the forbidden land of judicial legislation.  CCA19 importantly shows how ‘adding words’ fits in with wider principles11.

This case is from Episode 50 of interpretationNOW!


8 Project Blue Sky [1998] HCA 28 (at [70]), Episodes 1 & 43.

9 Taylor [2014] HCA 9 (at [35-40]), Episodes 5, 33 & 41.

10 cf HFM043 [2018] HCA 37 (at [24]), Australian [2019] VSCA 69 (at [46]).

11 cf Lumb & Christensen (2014) 88 ALJ 661, Episode 33.