Many tax provisions confer power on the Commissioner to make decisions on being personally ‘satisfied’ that some factual precondition or other has been met1. In the same-sex marriage case, the High Court re-stated some basic principles regarding ‘official satisfaction’2. They said (at [109]) that the ‘satisfaction must be formed reasonably and on a correct understanding of …
Dinov v Allianz Australia [2017] NSWCA 270
This case (at [65-67]) tells us to construe the text of the law, not language ‘used in the second reading speech or in some explanatory memorandum.’ Statements in explanatory materials about intention ‘cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.7’
In this case, …
NW Melbourne Recycling v CSR [2017] VSC 647
In this land tax refund case, it was said (at 41]) that the provisions in question were the ‘alpha and omega of the judicial task of statutory construction’8. The phrase ‘alpha and omega’ has biblical overtones9, but in this context means no more than ‘the beginning and the …
Keris Pty Ltd v DFCT [2017] FCAFC 164
This security deposit case illustrates how examples in legislation can impact on interpretation. An example said the Commissioner could require additional security in certain cases. The court observed (at [28]) that the example was consistent with the forward-looking aspect of the power.
Section 15AD12 says that an example is not exhaustive …
Tomvald v Toll Transport [2017] FCA 1208
Although industrial agreements are generally to be construed with a degree of latitude or generosity, a court is not free to read into them preconceived notions of fairness. Nor, said Flick J (at [37-38]), are awards to be read ‘in a vacuum divorced from industrial realities’15. Context is important.
The issue …
When does failure to comply with statutory conditions invalidate some formal act? In Forrest & Forrest1, a mineralisation report had not been provided with the application for a mining lease2. It was provided later, however, and it was before the minister3. Whether lateness was fatal depended on purpose, language and consequences. No decisive rule …
Koundouris v Owners Unit Plan [2017] ACTCA 36
Planning laws commonly impose warranties for work quality on builders. It was argued that explanatory statements with the Act meant a builder had to be party to the sale contract for warranties to apply6. Here there was an interposed entity.
The appeal court said (at [41]) the explanatory statements…
Joseph v Worthington [2017] VSC 501
A cardinal rule of interpretation has always been to give effect to legislative intent7. This case (at [31]) reminds us that discovering intention is ‘an objective process ascertained by interpreting the statute’.
It is not any subjective intention of the legislature which is relevant, but rather the ‘objective meaning’ of the provisions…
Ghamrawi v R [2017] NSWCCA 195
Constructional choice is one thing, but statutory words, even when read in their widest context, only stretch so far. Ghamrawi was convicted of ‘break and enter’ to commit assault12. He had permission to enter, however, and used no trick or threat.
Law reform elsewhere had extended the meaning of ‘break’, but the …
Oreb v ASIC (No 2) [2017] FCAFC 49
The court (at [54]) referred to the ‘massive and over complex verbiage’ of the 2500 page Corporations Act, where professionals and judges ‘must navigate tortuous, mind-numbingly detailed, cascading provisions’. These ‘telephone books’ enacted ‘at huge cost to the community’14 raise the need for more principles-based drafting, the court said.
This …
