Episode 28

If you read only one case on interpretation in 2017, make it this one – SZTAL v Minister1.  The majority (at [14]) state the basics, but it is Gageler J (at [34-43]) who digs deeper into the problem-solving2.  The issue was the meaning of ‘intention’ in a protection visa context3.  Gageler J stressed the need to consult context in the ‘widest sense’ up-front, and to avoid ‘abstract linguistic analysis’.  Constructional choice, he said, is usually out of a ‘range of potential meanings’, not just two.  That choice depends on ‘evaluation of the relative coherence of the alternatives with identified statutory objects and policies’4.  What is integral to the exercise is the ‘discernment of statutory purpose’5iTip – always use purpose to select from among all the possibilities.        

Gordon Brysland – Tax Counsel Network

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Writers – Gordon Brysland & Suna Rizalar. Special thanks – Ivica Bolonja.

1 SZTAL v Minister [2017] HCA 34.

The principles involved are unaffected by the dissent.

s 36(2)(aa) of the Migration Act 1958.

Taylor [2014] HCA 9 (at [66]), cited.

s 15AA of the Acts Interpretation Act 1901.