Episode 37 presented the Possum Case1 as a practical illustration of how to do constructional choice. We emphasised that interpretation turns on ‘evaluation of the relative coherence of the alternatives with identified statutory objects or policies’. Two more recent cases progress the learning in this space. The first makes the point that the choice between alternatives is not to …
Aregar v Cox [2018] NTCA 3
When an Indonesian national was prosecuted for fishing in Australian waters, proof of boat location became critical. This turned on a proclamation defining our ‘exclusive economic zone’. As a legislative instrument, the proclamation was to be interpreted as if it was an Act of parliament5.
This meant context and purpose were central …
APRA v TMeffect Pty Ltd [2018] FCA 508
We know that legislation rarely pursues some singular policy at all costs8. It follows that the duty generally to align meaning with legislative purpose9 may be of little help when provisions strike a subtle balance between competing policy objectives.
Perry J (at [30]) says that the question is often …
Commissioner v CLP Power HK [2017] HKCFA 18
Parliament requires constructional choice by reference to best achievement of legislative purpose11. Courts sometimes express concern, however, that this may be taken too far. In this case (at [34]), a HK court warned against an ‘exorbitantly purposive’ approach under which the text was given a meaning it was ‘incapable of …
Cole v Minister [2018] FCAFC 66
This case (at [40]) repeats the caution that digging into legislative history ‘might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers’14. It may seem natural enough to want to interrogate the inner motivations of the named policy advisers who conceived and drove the …
The Possum Case is a classic application of constructional choice principles in a practical setting1. At issue was the scope of an exemption2 from prohibitions on forestry operations found detrimental to the ‘critically endangered’ marsupial. Mortimer J (at [44-51]) quotes the High Court3 on constructional choice, emphasising that ‘evaluation of the relative coherence of the alternatives …
Minister v Aboriginal Land Council [2018] NSWLEC 26
In deciding what a provision means, we invariably test things against hypothetical facts. The rationale is that the outcomes produced will shine a light on which construction best fits the statutory purpose. A natural inclination in this process is to frame our examples at the outer limits of speculation in order to …
Bernard-Ross v NSW [2018] NSWSC 182
Courts have long been reluctant to interfere ‘in the discipline, administration or management of prisoners’6. This case says (at [41]) that, as a matter of statutory interpretation, a judicial officer ‘should be slow to interfere with administrative decisions taken by those tasked with running prisons’7.
This policy bias against review …
Territory Resources v Secretary [2018] NTSC 12
Interpretation statutes invariably say something like, where a word or phrase is defined, ‘other parts of speech and grammatical forms of that word or phrase have corresponding meanings’8 – s 18A of the Acts Interpretation Act 1901, for example9.
This case (at [56-57]) describes how the Northern Territory provision10…
City of Ryde v Haddad [2018] NSWCA 35
Sometimes even the most obvious things have to be spelt out. Legislation commonly adopts the format – ‘Any person who – (a) lives in Sydney, or (b) has red hair, must register’. The appeal court in this case (at [20]) pointed out (continuing our simplified example) that someone who lives in Sydney, …
