NAAJA v Northern Territory [2015] HCA 41
When provisions can be read so as to invalidate them but may also be read in a way that does not, ‘a court must always choose the latter course when it is reasonably open’1. Gageler J in this case (at [75-78]) provides extra insight into this rule2. He points …
Chevron Australia v FCT (No 4) [2015] FCA 1092
This case raised whether Div 815-A transfer pricing provisions were invalid by reason of textual uncertainty. Robertson J said ‘no’. Legislation can never be void or invalid due to uncertainty5. However difficult the exercise, a statute always has a meaning and a singular meaning at that.
Neither a court …
AEU v Victoria [2015] FCA 1196
Acts are presumed not to operate retrospectively7 – it’s all about fairness. Bromberg J explains (at [237-262]) that ‘retrospectivity’ has 2 senses – (A) changing legal rights concerning past events8, and (B) merely taking account of past events as the basis for how a future law will operate9.
The …
Di Paolo v Salta Constructions [2015] VSCA 230
There is a growing jurisprudence about when and how practical consequences properly influence interpretation10 – this is a controversial area! In 1981, it was said that results which are absurd, extraordinary, capricious, irrational or obscure might drive an alternative construction11. Section 15AB was legislated for soon after.
The High …
The relationship between law and policy has always been difficult. Nowhere is this felt more deeply than at the interpretation stage, and particularly where an administrator is involved. The key rules here are – (A) to apply the law not the policy1, (B) to start and finish with the text, and (C) to apply purposive principles. These simple …
FCT v Unit Trend Services [2013] HCA 16
In 1998, the High Court began emphasising that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’3. Last month, this was described as ‘one of the most telling statements of …
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 …
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 …
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 …
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 …
