Forty years ago in the K&S Lake case, Mason J set down what he called the ‘modern approach’ to statutory interpretation1. The crucial breakthrough which the judge sought to engineer was that context in the ‘widest sense’ is to be considered ‘in the first instance’ rather than at some later stage ‘when ambiguity might be thought to arise’2. This formulation of principle was adopted almost word-for-word some years later in CIC Insurance3. Mason J did not sit on the latter case, nor is he mentioned by name. The court did reference K&S Lake, however, together with the English case Mason J had quoted at the time4. This principle has never since been doubted and is repeatedly endorsed in the High Court5. As more recently explained6, s 15AB of the Acts Interpretation Act 1901 also does not operate to undermine the position staked out last century by Mason J.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 K&S Lake City Freighters v Gordon & Gotch (1985) 157 CLR 309 (315).
2 cf Sydney Seaplanes [2021] NSWCA 204 [27], EXV [2024] NSWSC 490 [149].
3 CIC Insurance (1997) 187 CLR 384 plurality (408), Gaudron J agreeing (412).
4 Attorney-General v Prince Earnest Augustus of Hanover [1957] AC 436 (461).
5 SZTAL [2017] HCA 34 [35-37]), A2 [2019] HCA 35 [32-33] for example.
6 Harvey [2024] HCA 1 [113-114], Palmanova [2025] HCA 35 [77-79].