Terms in another Act

Metricon v CCSR (No 2) [2016] NSWSC 332 

When a court decides the meaning of a word in one statutory context, it is not precedent for what the same word may mean in a different context2.  This case (at [47]) mentioned the ‘inherent flexibility’ of language, and said that decisions of this kind are of ‘persuasive influence’ only…

Objects and long-title

Lynn v NSW [2016] NSWCA 57

This case makes the point (at [54]) that the objects clause and long title of an Act can be taken into account as aids to construction – you knew that!  The first rule, however, is that these things cannot be used ‘to contradict any clear and unambiguous language’, although they may assist in resolving …

When ‘may’ means ‘must’

Stanizzo v Secretary [2016] NSWSC 348

Books could be written about this.  In federal laws, subject to contrary intention, ‘may’ signifies discretion7.  But, where a statute says an official ‘may’ confer some benefit subject to preconditions, their satisfaction can create a legal duty to act8

In this case, the legislation said the official ‘may’ determine costs …

Episode 11

Finding the latest learning on an interpretation issue is not that hard.  Go to the standard text1 and/or past episodes of iNOW! and locate the leading case or core passage.  Select some keywords and run a ‘Boolean query’ through AustLII.  If there are too many hits, add keywords.  Review your catch under ‘by date’, clicking the ‘latest first’ …

Statutory definitions

Moreton Bay RC v Mekpine[2016] HCA 7

The High Court again points to the limited role that statutory definitions play.  The issue was whether a definition of ‘common areas’ in one Act applied to another – answer ‘no’3.  The court said (at [61]) that statutory definitions do ‘no more than define the meaning to be assigned to …

Beneficial legislation

Abblitt v ADC [2016] TASSC 12

Are all statutes interpreted the same way, or does the old rule about reading beneficial provisions liberally still apply?  The judge here (at [29]) said it did – the Act was to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’7

The High Court confirmed …

Taking advantage of own wrong

AFP v Vo [2015] NSWSC 1523

This ancient rule still exerts an influence in modern times.  In this proceeds of crime case, it was held (at [17]) that an interpretation which allows a person to take advantage of their own wrong must be resisted. 

The principle reflects public policy and illustrates an impact of practical consequences on interpretation.  It applies …

Commanding the impossible

SCC Plenty v Construction [2015] VSC 631

This case on adjudication mechanisms in building industry laws makes the point (at [98]) that ‘laws must not command the impossible’.  Unless flexibility was applied, said the judge, the legislation ‘could not be made to work’. 

The notion of impossibility driving interpretation is another aspect of taking practical implications into account12.  …

Episode 10

Senior judges routinely draw attention to the complex nature of interpretation within which constructional choices are all but ‘inescapable’1.  One observation is that the choice between open alternatives for the ‘best contextual interpretation’ is more art than science2.  The more skilled and perceptive the reader, the more apparent and abundant the choices based on the text …

Meaning of ‘person’

Plaintiff M68 v Minister [2016] HCA 1

In the offshore detention case, the High Court held the Republic of Nauru to be a ‘person or body’ under regional processing amendments4.  Section 2C(1) of the Acts Interpretation Act 1901 presumes that expressions used to denote persons generally ‘include a body politic or corporate as well as an individual’.  Provisions …