Legislative codes

Namoa v The Queen [2021] HCA 13

Namoa and her husband were convicted for conspiring to do acts in preparation for a terrorist act8.  She argued spouses can’t be guilty of conspiracy due to an old common law rule.  Gleeson J (at [11])9 said codes take their natural meaning with no presumption that they merely restate the common law10.  Unless the code is ambiguous or uses an undefined word with an established technical meaning, its ordinary meaning will prevail11.

Whatever the historical position, there is no longer any principle in our common law regarding the ‘single legal personality of spouses’12iTip – codes are not read through the lens of the common law.

This principle is from Episode 73 of interpretation NOW!


8 s 11.5(1) of the Criminal Code (Cth), Namoa [2020] NSWCCA 62.

9 All 6 other judges said – ‘I agree with Gleeson J’, cf AAM17 [2021] HCA 6.

10 Pickett [2020] HCA 20 (at [22-23]), Episodes 39, 51 & 63.

11 Mellifont (1991) 173 CLR 289 (at 309), LK [2010] HCA 17 (at [97]) resp.

12 Magill [2006] HCA 51 (at [55]), Tooth & Co (1956) 95 CLR 605 (at 615-616).