iNOW! has many times dealt with extrinsic materials and their uses within the interpretive process. A recent case makes a key point here1. Thawley J said of an interpretation advanced by one party that it ‘does not give primary effect to the statutory language read in context: rather, it looks to the extrinsic material and presumes that to have been the intended meaning of the statutory text’2. It is ‘interpretation 101’ that extrinsic materials cannot be substituted for the text, nor can they determine with authority what the text means – see Episode 68. These materials, as part of the wider context, may be useful in identifying purpose or mischief. However, as Thawley J reminds us, they raise no presumption about what parliament is objectively taken to intend a provision to mean. iTip – tread carefully whenever something in an explanatory memorandum fails to find its way into the Act.
Gordon Brysland – Tax Counsel Network
See here for the official PDF of Episode 71 of interpretation NOW!
In this episode:
Credits – Gordon Brysland, Oliver Hood & Patrick Boyd.
Footnotes:
1 FCT v Apted [2021] FCAFC 45 (at [108]), Episodes 15, 27, 29, 30, 34, 60 & 68.
2 CMH [2012] HCA 55 (at [39]), cf Sandoz [2020] FCAFC 133 (at [102-103]).