Words of judgments

Military Rehabilitation v May [2016] HCA 19 

This case (at [52]) reminds us that when a judge explains what statutory words mean, their reformulation cannot be substituted for those words and construed as if it were the statutory text3.  Unlike statutes, the meaning of judgments isn’t found by analysing the specific words used by the judge.  Instead, read …

Express references

Duffy v Authority [2016] NSWSC 1062

If a provision refers to a specific thing, it may implicitly exclude other things of that type, especially if similar parts of the Act do mention those other things5.  Here (at [41-42]), notice had to be given to ‘the licensee’.  This meant no-one else needed to be notified, since different provisions did …

Giving all words meaning

H v Commissioner of Police [2016] SADC 64

Always search for an interpretation that gives all the words of a provision some meaning and effect and doesn’t make any of them redundant10.  This doesn’t mean every word has to change the provision’s scope or operation – some could have a limited effect, and Parliament may have intended others …

Episode 15

In Episode 6, iNOW! noted the particular challenges of statutory interpretation for administrators. In Service Delivery, we try to find interpretative solutions that are administratively workable for the broader tax system, not just for an individual client.  These solutions need to be creative and practical, and keep up with the rapidly changing digital environment.  If you know the rules of …

Common law & statute

The purposive revolution was actually a parallel shift in both common law and statute.  One week before s 15AA of the Acts Interpretation Act 1901 commenced, the High Court said that ‘[t]he fundamental object of statutory construction … is to ascertain the legislative intention by reference to the language of the instrument [and] legitimate aids to construction’1.

Since …

Extrinsic materials

Chapman-Davis v NSW [2015] NSWIC 10

Extrinsic materials, such as second reading speeches and explanatory memoranda, can be helpful but should be used with care.  This case (at [144-148]) notes that extrinsic materials may help you find the purpose or object of a provision3, although this must also be supported by the words of the statute4.   …

‘And’ & ‘or’

Onebev v Encore Beverages [2016] VSC 284

‘And’ and ‘or’ usually take their plain meaning.  ‘And’ is conjunctive and combines items in a provision, while ‘or’ is disjunctive and creates alternatives.  However, ‘and’ is sometimes read as ‘or’ (and vice versa) if there is a clear drafting or printing error, or if context shows the other meaning was intended7

‘Must’ and ‘shall’

AS v Minister [2016] VSC 351

Words like ‘must’, ‘shall’ or ‘required’ normally impose a mandatory duty and remove discretion8, but as always, this is subject to contrary intention9.  While there is no fixed formula, consider whether failing to comply would defeat the Act’s purpose.  If so, the provision may be compulsory10.

In this …

Episode 14

iNOW! began as a way to address the need – recognised by top judges – for those working with legislation to get better at reading it.  Yet, stand-alone interpretation courses are still not taught in universities and, of course, reading statutes is not just the playground of the legally trained.  Instead, people pick up the skills by osmosis, by …

Status of tax laws

Traditionally, there was a view that tax Acts ‘should receive a strict construction’1.  Hill J said it would be ‘a sad day’ if the rule were abandoned, as this could lead to ‘sloppy drafting’2. Kirby J disagreed, famously saying that a tax Act is ‘just another statute’3.

Where are we now on this?  With …