Episode 81

Gordon Brysland

In Stanley v DPP, Basten JA draws attention to one of the most basic basics of our system1.  The judge channelled Project Blue Sky in turn quoting Bennion2‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation.  An enactment consists of a verbal formula.  Unless defectively worded, this has a grammatical meaning in itself.  The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern … Furthermore there needs to be brought to the grammatical meaning … due consideration of the relevant matters drawn from the context (using that term in its widest sense)’.  We derive the legal meaning of provisions, as informed by context and purpose.  Often this will coincide with the grammatical or literal meaning, as is to be expected.  What we cannot do is pre-confine the search to the narrow fields of grammar or linguistics.  The ice-age of literalism has passed3.

Gordon Brysland – Tax Counsel Network

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In this episode:

Credits – Gordon Brysland & Oliver Hood.


1 Stanley v DPP [2021] NSWCA 337 – exercise of sentencing discretions.

2 Project Blue Sky [1998] HCA 28 (at [78]), Bennion (at 343-344).

3 A2 [2019] HCA 35 (at [37]), Sydney Seaplanes [2021] NSWCA 204 (at [26]).