Episode 37

The Possum Case is a classic application of constructional choice principles in a practical setting1.  At issue was the scope of an exemption2 from prohibitions on forestry operations found detrimental to the ‘critically endangered’ marsupial.  Mortimer J (at [44-51]) quotes the High Court3 on constructional choice, emphasising that ‘evaluation of the relative coherence of the alternatives with identified statutory objects or policies’ is the central criterion against which meaning is determined.  The judge also points out that the nature of the provision (in this case, an exemption from criminality) is important, and that an interpretation which promotes clarity ‘will generally be preferred’4iTip Possum Case is a masterclass on how to do constructional choice.

Gordon Brysland – Tax Counsel Network (from Bormio)

See here for the official PDF of interpretationNOW! Episode 37

In this episode:


Writer – Gordon Brysland.  Producer – Suna Rizalar.

1 Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178.

2 s 38(1) Environmental Protection and Biodiversity Conservation Act 1999.

3 Esso [2017] HCA 54 (at [71]), SZTAL [2017] HCA 34 (at [14, 37-39]).

4 Powell [2017] FCAFC 89 (at [15]) quoted.