Mischief rule

ABCC v Powell [2017] FCAFC 89

The mischief rule is an ancient precursor to the purposive approach we apply today in selecting between constructional choices7.  What parliament was seeking to remedy is part of the context. 

What happens, however, when the words chosen go beyond mere remediation of the mischief?  This case (at [46-47]) tells us that general words are ‘not necessarily’ to be read down in these situations8.  But, where general words would create some ‘disproportionate counter-mischief’, the position may well be different – see Episode 229iTip – context and purpose are key factors to deciding how general words in a statute are properly to be read10.    

This case is from Episode 26 of interpretationNOW!


7 Heydon’s Case (1584) 76 ER 637 (at 638), Bennion (Part XIX).

8  Commonwealth Custodial Services [2007] NSWCA 365 (at [16]).

UNSW Global [2016] NSWSC 1852 (at [47-50]).

10  cf Watts v APC [2014] FCA 370 (at [61-64]).