Episode 68

Gordon Brysland

The reach of extrinsic materials in the world of statutory interpretation can be misunderstood.  A good place to start for guidance is a High Court case last year1.  Two key principles are that extrinsic materials cannot displace the meaning of the text, nor may they be substituted for it2.  A related point is that these materials cannot be taken into account for what the words mean.  They may assist in ascertaining the statutory purpose and the targeted mischief, but parliament cannot declare with binding effect what their enactments mean.  NSW cases establish this3, a position which is ‘otherwise consistent with recent High Court authority’4.  To adopt a different stance would breach our objective approach to interpretation.  It would also give to legislation a kind of Alice in Wonderland dimension as parliament would effectively be saying – ‘the words mean whatever I say they mean’5.

Gordon Brysland – Tax Counsel Network

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In this episode:

Credits – Gordon Brysland, Oliver Hood, Claudia Hodge & Jeffrey Barnes.


1 Mondelez [2020] HCA 29 (at [67-72]), Pearce 9th ed Ch 3, Episodes 27 & 60.

2 CMH [2012] HCA 55 (at [39]), Bolton (1987) 162 CLR 514 (at 518) respectively.

3 Harrison [2008] NSWCA 67 (at [162]), A2 [2018] NSWCCA 174 (at [471-472]).

4 Barnes Harrison v Melhem [2018] 5 UNSW Law Journal Forum 1 (at 16).

5 Lewis Carroll Alice in Wonderland, Weti-Safwan [2018] FCA 1761 (at [22-23]).