Incurable defects

DPP v Walters [2015] VSCA 303

Legislation in Victoria had introduced ‘baseline sentencing’ but was ‘wholly silent’ on the means by which it was to be implemented.  The majority said (at [57]) that extrinsic materials could not be used to fill the gap15, and that any judicial action in this regard ‘would be to legislate, not interpret’. 

The means by which baselines were to be achieved could not be implied, nor could words be read into the statute despite clear statements of intent.  The provisions were held to be ‘incapable of being given any practical operation’ and were ‘incurably defective’.  iTip – judges themselves are extremely sensitive to suggestions they have usurped the role of parliament … a lesson surely for all of us.

This case is from Episode 9 of interpretationNOW!


15  Alcan [2009] HCA 41 (at [47]), quoted.