Extreme examples

Minister v Aboriginal Land Council [2018] NSWLEC 26

In deciding what a provision means, we invariably test things against hypothetical facts.  The rationale is that the outcomes produced will shine a light on which construction best fits the statutory purpose.  A natural inclination in this process is to frame our examples at the outer limits of speculation in order to make the choice involved as stark as possible. 

This case (at [71]) cautions that ‘construction of legislation is not to be tested by reference to extreme examples or distorting possibilities’5.  By all means, test your hypothesis against a variety of assumed facts.  Be aware, though, that extreme examples may produce false or unreliable results.

This case is from Episode 37 of interpretationNOW!


5 Forge [2006] HCA 44 (at [46]) cited, Shaw [2003] HCA 72 (at [32]).