Legislative intention

Duro Felguera v Samsung C&T [2018] WASCA 28

Legislative intention is always slippery.  This case (at [141-142]) repeats that it is no more than the meaning of the words parliament ‘is taken to have intended them to have’ after application of interpretive principles.  It has nothing to do with any ‘collective psychanalysis’6.  The High Court tells us that it is a ‘fiction which serves no useful purpose’7

Some still maintain that the notion of ‘real’ intention is useful and necessary8.  The debate is complex9, but one thing is clear.  In our system, legislative intention is merely a conclusion about what the law means.  iTip – whatever may actually motivate legislators in Australia is a road leading nowhere.

This case is from Episode 36 of interpretationNOW!


6 Hayne & Gordon Statutes in the 21st Century, introduction (at 7).

7 Lacey [2011] HCA 10 (at [43]), cf Cole [2018] FCAFC 66 (at [42]).

8 Ekins & Goldsworthy (2014) 36 Sydney Law Review 39, for example.

9 Duxbury Elements of Legislation Ch 4, Blaker (2017) 43 Monash ULR 238.