Episode 89

Gordon Brysland

Two recent High Court cases probe difficult corners of interpretation law.  The first1 explores presumptions both at common law and under statute2 against the extraterritorial operation of domestic statutes3.  Kiefel CJ and Gageler J (at [34]) said these presumptions had no application in the circumstances – that is, they did not exclude non-residents from being a ‘group member’ under Federal Court provisions.  The second case4 deals with the somewhat slippery presumption against retrospective operation5.  The plurality (at [29, 33]) noted the ‘considerable confusion’ in this area, saying that the terminology of the presumption should not distract from interpreting the temporal operation of legislation on the basis of ‘reasonable expectations’.  iTip – resolution of questions around extraterritoriality or retrospectivity should begin with an understanding of these cases.

Gordon Brysland – Tax Counsel Network

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In this episode:

Thanks – Oliver Hood, Charlie Yu & Michelle Janczarski.


1 BHP Group Ltd v Impriombato [2022] HCA 33.

2 Morgan (1912) 15 CLR 1 (at 13), s 21(1)(b) of the Acts Interpretation Act 1901.

3 In this case, Part IVA of the Federal Court of Australia Act 1976 (Cth).

4 Stephens v The Queen [2022] HCA 31.

5 Kidman (1915) 20 CLR 245 (at 443), cf Maxwell (1957) 96 CLR 261 (at 285).