Omitting words

CGX20 v Minister [2021] FCAFC 69

What happens when you find a simple drafting error in a provision?  A ministerial direction under migration law required regard to be had to ‘impact on victims’ in visa revocation situations4.  Clause 14.4(1) begins – ‘Impact of a decision not to revoke on members of the Australian community [etc] …’  The word ‘not’ in this context looks wrong and is problematic.

The court said (at [19-20]) that it was okay to eliminate words where the literal meaning did ‘not conform to the legislative intent’5.  The word ‘not’ in clause 14.4(1) was anomalous and ‘should be ignored’.  Comment – these issues are more usually resolved under principles confirmed by the High Court in 20146.

This principle is from Episode 74 of interpretation NOW!


4 clause 14.4(1) Ministerial Direction 79 under s 499(2A) Migration Act 1958.

5 Cooper Brookes 147 CLR 297 (at 321), Weedon (1907) 4 CLR 895 (at 904-905).

6 Taylor [2014] HCA 9 (at [35-40]), cf PQ (No 3) [2021] NSWSC 420 (at [26]).