Episode 101

Gordon Brysland

E100 talks about the controlling influence of purpose in our system.  But purpose does not solve all problems.  Purpose may operate as the ‘statutory decider’ only where it can be derived from objective evidence within or outside the statute.  Purpose may involve a compromise, be obscure or unexpressed1.  This happened in a recent GST food case2.  Hespe J said (at [141]) that the ‘legislative scheme with its arbitrary exemptions is not productive of cohesive outcomes’ and that parliament had ‘left the court in the unsatisfactory position of having to determine whether to assign novel food products to a category drafted on the premise of unarticulated preconceptions’.  Comments like this are not new3.  Implicit in them is that you cannot make up your own idea of what purpose should look like4.  If there is no evidence for it, context or other factors will be determinative.

Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au

See here for the official PDF of Episode 101 of interpretation NOW!

Thanks – Jeremy Francis, Andrew McCrossin & Oliver Hood.


1 cf Outback Ballooning [2019] HCA 2 [76], Thiess [2014] HCA 12 [23].

2 Simplot Australia Pty Ltd v FCT [2023] FCA 1115, ‘prepared meal’.

3 French [2007] FedJSchol 14 [11-12], Telstra 96 ATC 4805 (4806-4807). 

4 Certain Lloyds [2012] HCA 56 [24-26], Wreck Bay [2019] HCA 4 [79].