SCC Plenty v Construction [2015] VSC 631
This case on adjudication mechanisms in building industry laws makes the point (at [98]) that ‘laws must not command the impossible’. Unless flexibility was applied, said the judge, the legislation ‘could not be made to work’.
The notion of impossibility driving interpretation is another aspect of taking practical implications into account12. …
Senior judges routinely draw attention to the complex nature of interpretation within which constructional choices are all but ‘inescapable’1. One observation is that the choice between open alternatives for the ‘best contextual interpretation’ is more art than science2. The more skilled and perceptive the reader, the more apparent and abundant the choices based on the text …
Plaintiff M68 v Minister [2016] HCA 1
In the offshore detention case, the High Court held the Republic of Nauru to be a ‘person or body’ under regional processing amendments4. Section 2C(1) of the Acts Interpretation Act 1901 presumes that expressions used to denote persons generally ‘include a body politic or corporate as well as an individual’. Provisions …
ACCC v P T Garuda Indonesia [2016] FCAFC 42
Geography is often important in the application of legislation, especially where ‘Australia’ is used. This case was about whether an air cargo market existed ‘in Australia’. There is a general definition of ‘Australia’ in s 2B of the Acts Interpretation Act 1901, but many federal statutes have their own definitions…
Endeavour v Precision [2015] NSWCA 169
What happens when a statutory provision cross-refers to a provision in another Act and the latter is amended? In this case, the second provision was amended after an accident to increase the liability cap. The court held (at [76]) that the first provision picked up the second as amended from time to time. Crucially, …
Roden v Bandora Holdings [2015] NSWLEC 191
Pearce & Geddes (at [6.64]) say that using ‘means and includes’ in definitions ‘ought to be eschewed by drafters’. This case shows why. The issue was whether wedding venues were ‘tourist facilities’, in turn defined in the ‘means X and includes Y’ form with no reference to weddings whatsoever.
Two general problems may …
The late Justice Antonin Scalia of the US Supreme Court had a massive influence on interpretation1. At a 2011 conference, Pagone J said it was a ‘daunting privilege’ to introduce the American judge2. His ‘originalist’ ideas on how the US constitution should be read3 – what framers meant at the time – now dominates debate. …
R v Host [2015] WASCA 23
When different statutes of the same legislature form a ‘legislative scheme’, courts will try to construe them ‘to produce a sensible, efficient and just operation’6. Driven by the need for a ‘rational integration of the legislation’, this is exactly what the court did in this sentencing case (at [111]).
As Pearce & …
Australian Building Systems [2015] HCA 48
When interpreting statutes, we are to start and finish with the statutory words8, not to substitute what a minister may say for those words9. In the ABS case (at [227]), Gordon J observed that judicial decisions ‘are not substitutes for the text of legislation’ either, something that follows from the …
QBE Insurance v Mordue [2015] NSWCA 380
This case (at [92]) makes the point that delegated legislation gives way to the statute under which it is made where the two are ‘irreconcilably incompatible or inconsistent’12. Delegated legislation includes regulations, rules, by-laws, determinations and instruments made under an Act.
Regulations cannot control what an Act means, but they may …
