Act ‘always speaking’

Paciocco v ANZ Banking Group [2015] FCAFC 50

The relatively simple idea of an Act ‘always speaking’ is often over-complicated with obscure Latin maxims and seemingly endless cases.  Words have a meaning either fixed at the time of enactment or which may evolve over time and is ‘always speaking’ in the present6.  This case is an example of …

Constructional choices

Garrett v FCT [2015] FCA 665

The great tax judge, Hill J, often stressed the ‘considerable room for creative interpretation’3, under which more options naturally open up to the diligent reader.  It is not some mono-lineal exercise – see above.  The description used by the High Court nowadays is ‘constructional choices’4

Kenny J in this case …

Importance of the text

SZOXP v Minister [2015] FCAFC 69

This case (at [17]) repeats the High Court mantra that the task of interpretation must begin and end with the text of the law2.  Rules of interpretation about context and purpose are ‘mediated through the text of the statute’.  This means that, although extrinsic materials may be relevant, they ‘cannot displace the …

Episode 1

interpretation NOW! is a reinvention initiative to drive awareness on what is happening on the statutory interpretation front. It responds to a one-ATO need to have sharp tools ready at all times when working with tax legislation. As French CJ says in Pearce & Geddes – ‘The centrality of statutory interpretation in our legal system must be reflected in legal …

Statutory definitions

ICAC v Cunneen [2015] HCA 14

Statutory definitions often create problems, and our tax laws are littered with them. A common issue, discussed (at [33]), is the circuity involved in trying to construe the definition by reference to the actual term defined4. iTip – don’t do this!

Another issue is the principle that statutory definitions are generally not …

Impractical obligations

Uelese v Minister [2015] HCA 15

Nettle J in this case (at [100]) was against a reading of migration obligations that would make them ‘impossible or impractical’ to comply with. He referred to previous cases about this, and to the textbook Pearce & Geddes (at [2.38-2.39]) on ‘Consequences of a particular interpretation’.

iTip – care needs to be exercised in …

Legislative intention

Queensland v Congoo [2015] HCA 17

Some people may still think legislative intention has something to do with what the collective called parliament subjectively intended a provision to mean. Nothing could be more wrong, as the High Court has again reminded us (at [36])2.

Legislative intention is really no more than a constitutional courtesy – that is, an …

Hierarchy & harmony

Channel Pastoral v FCT [2015] FCAFC 57

What should we do when provisions in different sectors of the tax system collide? Answer – apply the hierarchy/harmony principles the High Court told us about in Project Blue Sky1. The provisions as a whole are presumed to be intended to produce harmonious goals. Conflict is alleviated by adjusting the meaning …