Episode 106 – extrinsic materials

Edelman J in Harvey v Minister [2024] HCA 1 comments on the ‘why, when and how’ regarding the role of extrinsic materials in interpretation.  This arose in the context of whether granting a mineral lease1 expanding the McArthur River Project onto Aboriginal land gave the native title holders formal objection rights.  It was held that it did.  The legal …

Focus on context

Edelman J stresses the importance of context, saying that trying to understand speech without context is like trying ‘to understand the meaning of a painting before the paint is applied to the canvas’4.  But only in the last 50 years have extrinsic materials been seen as part of that context for interpretation purposes. 

Edelman J referred to the …

Weight to be attributed

Edelman J said that the fact that some extrinsic materials are weighty does not deny that others will have little influence.  This is only natural.  An EM, for instance, may be ‘an important and weighty extrinsic source of information’.  Given the central role of ministers and departments in their drafting, it ‘invites the available implication that these materials are more …

Two paths, one destination

Edelman J explains that s 15AB was enacted before the ‘modern approach’ had solidified9.  Section 15AB regulates how extrinsic materials may be used by providing gateways, conditions and processes.  But the differences between statutory and common law paths ‘should not be overstated’.  There ‘will very rarely be a difference in practice’ between them10.

Each path …

iNOW! observations

This case confirms the potential of extrinsic materials under the ‘modern approach’ to influence meaning12

What Edelman J said in Harvey is important for many reasons.  (1) Access to extrinsic materials is driven by the contextual focus of our system. (2) The statutory and common law paths into those materials exist side-by-side13. (3) It will be …

Episode 105

Statutory interpretation in Australia and New Zealand is very similar.  In both places, the process is based on text, purpose, and context1 – the systems differ little in substance2.  Both require evolving meanings3, prospectivity4, coherence and workability5, and consistency with international obligations6.  Each permits limited remediation7.  New …

Appellate deference

Pritchard v M 6:8 Legal [2024] WASCA 4

The appeal court in this case makes an important point about the manner in which views of the court below on interpretation are to be approached.  It was said (at [35]) – ‘This court applies the correctness standard in reaching its own view as to the proper construction of the provisions, without …

High Court mantra

Munkara v Santos NA Barossa (No 3) [2024] FCA 9

This gas pipeline case was fought over the meaning of ‘significant new environmental impact’ in federal regulations.  Charlesworth J (at [135]) said the regulation was to be read in accordance with the Acts Interpretation Act 1901 and ‘well established principles’, quoting SZTAL [2017] HCA 34 (at [14]) –

Extrinsic materials

Harvey v Minister [2024] HCA 1

As the first case decided by the High Court this year, Harvey v Minister for Primary Industry & Resources makes important points about extrinsic materials and our ‘modern approach’ more generally.

The issue was whether a mineral lease involved a right to mine for the sole purpose of constructing an ‘infrastructure facility … associated …

Professor Pearce

Statutory Interpretation in Australia

Dennis Pearce has published the 10th edition of his classic text, a monumental achievement15.  For half a century, this book has guided courts, academics and practitioners with authority, style and perspective.  As LexisNexis says, it is the ‘most cited text on Australian law’.  The slim volume which appeared in 1974 has grown in line …