Episode 106 – extrinsic materials

Gordon Brysland

Edelman J in Harvey v Minister [2024] HCA 1 comments on the ‘why, when and how’ regarding the role of extrinsic materials in interpretation.  This arose in the context of whether granting a mineral lease1 expanding the McArthur River Project onto Aboriginal land gave the native title holders formal objection rights.  It was held that it did.  The legal point was whether granting the lease would involve ‘creation … of a right for the sole purpose of the construction of an infrastructure facility … associated with mining’2.  This depended critically on the impact of extrinsic materials on the meaning of ‘infrastructure facility’, defined in the statute to include a range of things.  All judges held that the lease created a right of the kind mentioned3.  Writing alone, Edelman J (at [106-116]) explains the different bases for considering extrinsic materials and how they play out in practice.

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

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Thanks – Ross Carter, David Lee, Jacinta Dharmananda & Oliver Hood.


1 s 40(1)(b)(ii) of the Mineral Titles Act 2010 (NT).

2 s 24MD(6B)(b) of the Native Title Act 1993 (Cth).

3 Gageler CJ, Gordon, Steward & Gleeson JJ (as the plurality).