Extrinsic materials

R v RB [2022] NSWCCA 142

Statements in extrinsic materials cannot be substituted for the statutory text1.  They may reveal legislative purpose, but must be subjected to scrutiny and treated with caution.  They can also be wrong2, as this case shows.  The issue was whether sex offence provisions required a relationship to exist or merely the commission of multiple unlawful acts3.

Introducing the Bill, the A-G said categorically it was the latter.  Everything contradicted this, the clear aim having been replication of a Queensland offence4.  Fagan J (at [57-58]) found the statement to be ‘anomalous’ and questioned whether it reflected the ‘considered intention’ of either the A-G or parliament.

This principle is from Episode 87 of interpretation NOW!


1 Consolidated [2012] HCA 55 (at [39]), Beane (1987) 162 CLR 514 (at 518).

2 Mondelez [2020] HCA 29 (at [72]), cf Facebook [2022] FCAFC 9 (at [72]).

3 s 66EA(1) of the Crimes Act 1900 (NSW).

4Royal Commission into Institutional Responses to Child Abuse.