Two recent NSWCA cases
In Glencore, a submission that the procedural history of a determination6 could not be considered given no ambiguity had been shown was rejected7. McHugh JA observed (at [86]) that ‘language is unavoidably contextual’ and that context is to be considered ‘in the first instance’. But this is not to deny there are limits to the material that can be taken into account.
In JS, Bell CJ used the EM of one legislature as extrinsic material for the cognate Act of another legislature8. At issue was the meaning of ‘adduced’ in NSW provisions all but identical to those in the Commonwealth Act. The desirability of consistency9 logically made the Commonwealth EM relevant.
This principle is from Episode 134 of interpretation NOW!
Footnotes:
6 s 44V Competition and Consumer Act 2010 (Cth).
7 Glencore Coal Assets v Port of Newcastle Operations [2026] NSWCA 64.
8 JS v DPP [2026] NSWCA 58 [28], cf Talacko [2017] HCA 15 [68].
9 Farah [2007] HCA 22 [135], Falzon [2018] HCA 29 [49], Hill [2022] HCA 21.