This case confirms the potential of extrinsic materials under the ‘modern approach’ to influence meaning12.
What Edelman J said in Harvey is important for many reasons. (1) Access to extrinsic materials is driven by the contextual focus of our system. (2) The statutory and common law paths into those materials exist side-by-side13. (3) It will be rare that the two paths produce differing results in practice. (4) But different extrinsic materials may exert different weight. (5) The further we move from the text, the less weight those materials may naturally bear14. (6) EMs may attract greater weight as they are ‘more reflective of government intent’. (7) Ordinary words ‘may wear a very different appearance’ when read in the light of their purpose as evidenced by extrinsic materials15.
This principle is from Episode 106 of interpretation NOW!
Footnotes:
12 Though their quality is ‘not uniform’ – Mondelez [2020] HCA 29 [67].
13 Sydney Seaplanes [2021] NSWCA 204 [41], BDM [24.4] generally.
14 Think of a ‘target’ with text at the centre moving outwards into exmats.
15 SZTAL [2017] HCA 34 [14], A2 [2019] HCA 35 [37] illustrate.