Explanatory memoranda

Two opposing perspectives

Episode 106 focussed on comments by Edelman J on the status of extrinsic materials10.  It was said EMs are ‘important and weighty sources of information that invite the available implication that these materials are more reflective of government intent’. 

This was applied directly in R v RB11.  We should not expect that all EMs will exert this degree of influence however.  Binqld Finances draws attention to the fact that it was ‘not impossible’ that the EM was ‘simply wrong’12.  Gageler J referred to this generally in Mondelez, noting that EMs lack the ‘precision of parliamentary drafting’13iTip – the impact of any EM depends on its content, quality and relevance.

This principle is from Episode 109 of interpretation NOW!


10 Harvey v Minister [2024] HCA 1 [103-116].

11 R v RB [2024] NSWSC 471 [37]; other cases are expected to follow.

12 Binqld Finances v Binetter [2024] FCA 361 [59].

13 Mondelez [2020] HCA 29 [72] citing Brooks [2000] FCA 721 [68].