ANMF v Barwon Health [2024] FedCFamC2G 376
This case states the interpretation principles which apply to enterprise agreements8. (1) The starting point is ordinary meaning read in context, including the industrial context and history. (2) A generous construction is preferred to a literal one. (3) Words are not to be construed in a vacuum ‘divorced from industrial realities’, …
Two opposing perspectives
Episode 106 focussed on comments by Edelman J on the status of extrinsic materials10. It was said EMs are ‘important and weighty sources of information that invite the available implication that these materials are more reflective of government intent’.
This was applied directly in R v RB11. We should not expect that all …
EXV v Uniting Church [2024] NSWSC 490
Weinstein J refused to set aside under new laws deeds of settlement already concluded between child sex abuse victims and the church14. Similar laws had been enacted elsewhere at the same time. What impact should decisions under those laws have?
The judge (at [166]) drew attention to comments by Gageler J …
Punctuation often provokes passion. The Guardian online reports that a council in England has decreed that street names will drop the possessive apostrophe – eg St Marys Walk. Residents and linguists are outraged. One said it was just more evidence of ‘everything going downhill’. The council defended itself on the basis of global website standards and avoidance of uncertainty. In …
Tigers Realm v Commonwealth [2024] FCA 340
Was movement of coal within Russia a ‘sanctioned import’ under regulations?4 That term included where a ‘person … transports goods … and … the goods are import sanctioned goods for a country …’ The coal was ‘import sanctioned goods’ by declaration.
Tigers said ‘transports’ only extended to coal imported into Australia or …
Azimitabar v Commonwealth [2024] FCAFC 52
This case dismissed an appeal from the decision discussed in Episode 997. It confirms that the idea definitions are not read as a source of substantive power is no more than a ‘general principle’8.
Many cases, in fact, have not observed this ‘principle of good drafting’. One of them states …
Ex parte Northern Land Council [2024] NTSC 34
Episode 1 drew attention to comments by Nettle J about statutory obligations which are ‘impossible or impracticable’ to comply with10. This case (at [26-27]) says that impracticable consequences should be avoided where the provisions ‘are susceptible to an alternative construction’11. Further, it was not to be inferred that …
Liquorland v Director [2024] WASC 128
This liquor licencing appeal is an important reminder about what ‘legislative intention’ is and what it isn’t. Lemonis J (at [35]) quoted High Court authority for the point that legislative intention is ‘something of a fiction’15, and that there is never the attribution of some collective mental state to any legislators.
Findings …
Proportionality is a large and nuanced legal concept. While not often cited in interpretation, the core idea – the balance between the degree of departure from a baseline and the importance or clarity of the departure’s purpose – is useful in resolving interpretation questions. Under the ‘modern approach’, legal meaning usually corresponds with grammatical meaning, ‘but not always’1. …
Johnston v Carroll [2024] QSC 2
Many jurisdictions require their statutes to be interpreted in a way that is compatible with human rights6. This case is about whether directions to police and ambulance workers in Queensland to be COVID vaccinated were invalid for breaching human rights. It was held that, while the directions were unlawful, they were not …
