Generalised policy

BH Apartments v Sutherland [2015] VSC 381

The High Court repeatedly warns us against simplistic characterisation of policy at levels too general to be useful.  Most legislation invariably reflects political compromise, the correct question being how far the legislation goes in pursuit of its general purpose6.  Gleeson CJ illustrated this via reading all provisions of the tax laws …

Preconceived policy

AEU v DECS [2012] HCA 3

Listen up – ‘In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose’ – so said the High Court (at [28]).  This instruction applies to everyone, including agencies and administrators of the …

Sources of policy

Certain Lloyd’s v Cross [2012] HCA 56 

Where can you search for policy?  Hill J said it was ‘enshrined’ in the provisions and in the ‘legislative context, so far as it casts light upon the proper interpretation’10.  Later comments suggest it may be derived only from the Act11.  This case (at [23-25]) favours the first approach …

Episode 5

One theme from Episode 2 is reflected in a recent paper from Helen Symon QC1‘One’s best guide is always the text of the provision in question.  One cannot return to the text often enough, asking “What does the section say?”  One may travel through context, purpose, extrinsic materials or legislative history.  However, it is always necessary to

Composite expressions

Sea Shepherd v FCT [2013] FCAFC 68 

Composite expressions must be read as a whole, not pulled apart word-by-word against a dictionary then re-assembled out of context.  Gordon J (at [35]) cautioned against this kind of ‘atomised analysis’ in remarks which were later drawn to attention in her swearing in as a High Court judge3

The point about …

Adding words

Taylor v Owners Strata Plan [2014] HCA 9

Reading words into statutes used to be right up there next to heresy7.  With the movement to purposive interpretation, however, things began to change – first in the UK8, then later here9

The High Court in Taylor (at [35-40]) confirms that words can be read into …

Status of notes

Director v Adams [2015] FCA 828

For general purposes, notes are now part of the Act10, as this case reminds us (at [30-31]).  Notes in tax legislation, however, may be subject to special rules11.  They are part of the Act, but do not have the status of ‘explanatory sections’ or ‘guides’.  This begs the question – …

Refresher course

GHP 104 160 689 v FCT [2014] AATA 515

iNOW! has now covered a range of important interpretation themes.  This little R&D case on ‘feedstock expenditure’ conveniently discusses several of them (at [166]) – importance of the text; the Act as a whole; context and purpose; policy issues (especially preconceived policy); composite expressions (see above); and statutory definitions. 

A good …

Episode 4

iNOW! has business line input these days, which is already making the product better – thanks everyone.  As new High Court judge Michelle Gordon and ex-High Court judge Ken Hayne put it, ‘the proper construction and application of statutes always has been, but now more than ever is, an essential legal skill’ – we agree.  The theme we want …

Text context text

Skyy Spirits v Lodestar [2015] FCA 509

In 2010, the High Court said you shouldn’t look at extrinsic materials ‘before exhausting the application of the ordinary rules of statutory construction’2.  Perram J took this as signalling some shift away from the settled idea that we are to look at context in the widest sense upfront. 

Now, in Skyy