In Hopper v Victoria, the High Court held legislated caps on political donations in Victoria to be invalid1. One issue was the effect of a severance clause in the State interpretation statute2 aimed at saving a challenged provision ‘to the extent to which it is not in excess of … power’3. The plurality noted (at [53]) that the severance clause applied ‘unless a contrary intention appears’. Its effect was to ‘reverse the presumption that a statute is to operate as a whole’4. Severance clauses, however, must be ‘applied strictly within the limits of judicial power’5, and statutes are not to be rescued via ‘major surgery’. In the present case, however, nothing could be saved – a course the court did not take lightly. The structure and content of the provisions compelled total invalidity, especially given the choice involved lay ‘in the borderland between legislative and judicial power’6.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
See here for the official PDF of Episode 133 of interpretation NOW!
Thanks – Matt Freestone, Suzanne McMahon, Charlie Yu, Jeremy Francis.
Footnotes:
1 Hopper v Victoria [2026] HCA 11, Part 12 Electoral Act 2002 (Vic).
2 s 6(1) Interpretation of Legislation Act 1984 (Vic).
3 Pearce Interpretation Acts in Australia [9.2] generally.
4 Tajjour [2014] HCA 35 [169], Clubb [2019] HCA 11 [141] cited.
5 Spence [2019] HCA 15 [87] cited.
6 [68]; Clubb [2019] HCA 11 [148], cf Deripaska [2026] HCA 14 [171].