Episode 103

Gordon Brysland

Given the time of year, something might be said about holidays and interpretation.  Usually, if an Act requires or allows a thing to be done and ‘the last day for doing the thing is a Saturday, a Sunday or a holiday1: then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday’2.  Rules about calculation of time, all simple on their face, are much litigated3.  A recent NSW case shows how difficult it is to displace the holiday rule by reason of contrary intention4.  Environmental prosecutions had to be brought within 2 years – by Saturday 11 June 2022 ‘despite anything … in any other Act’5.  Prosecutions were commenced on Tuesday 14 June (Monday being a public holiday).  The court denied that the holiday rule was ousted and allowed the actions to continue.  Consistent with the statutory purposes, ‘despite …’ was facultative, not restrictive.  Happy (public) holidays!

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

See here for the official PDF of Episode 103 of interpretation NOW!

Thanks – Oliver Hood, Amanda Bingham, Kiran Tiwana & Cheryl D’Amico.


1 s 36(3) defines ‘holiday’ – cf Onebev [2016] VSC 284.

2 s 36(2) of the Acts Interpretation Act 1901 (Cth), cf Pearce [4.39].

3 Particularly in procedural settings – Cheng [2020] FCA 1859 illustrates.

4 Aerotropolis [2023] NSWCCA 195, cf Wignalls [2002] TASSC 67.

5 s 190(3) of the National Parks and Wildlife Act 1974 (NSW).