Episode 104

Gordon Brysland

We hear daily in the media that the rule-of-law is under assault everywhere.  But what is the rule-of-law exactly, and what has it got to do with statutory interpretation?1  The rule-of-law is a network of high-level fundamental values which guide the law in a democracy (certainty, transparency, fairness, impartiality, etc).  Robert Hughes in The Fatal Shore called it a ‘form of religion’.  It is assumed by the Constitution2 and finds direct reflection in our statutory interpretation principles3.  As Colvin J explains, these principles ‘must be formulated by reference to the attributes of the rule-of-law’4.  One very visible example is the principle of legality under which statutes are read to protect core rights and freedoms.  Our interpretation principles are far more than some mere set of rules.  Their conscientious application by everyone is essential to the expression of our democracy.

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

See here for the official PDF of Episode 104 of interpretation NOW!

Thanks – Oliver Hood, Jeffrey Barnes, Patrick Boyd & Amanda Bingham.


1 generally – BDM (36-45), Mason in Barnes (ed) Coherence Ch 4.

2 Unions NSW [2019] HCA 1 [61-62], cf Palmer [2021] HCA 31 [8].

3 cf K-Generation [2009] HCA 4 [46-47], Zheng [2009] HCA 52 [28].

4 Colvin [2022] Robert French Oration (22).