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 …
DPP v Walters [2015] VSCA 303
Legislation in Victoria had introduced ‘baseline sentencing’ but was ‘wholly silent’ on the means by which it was to be implemented. The majority said (at [57]) that extrinsic materials could not be used to fill the gap15, and that any judicial action in this regard ‘would be to legislate, not interpret’.
The …
As flagged in Episode 7, interpretation NOW! goes public this month in response to growing external interest – find it under ‘miscellaneous papers’ in the ATO Legal Database. iNOW! is a TCN initiative to improve awareness about what courts are saying in this increasingly important field. iNOW! is not legal advice or a public ruling, nor is it a substitute …
Fortress Credit v Fletcher [2015] HCA 10
What happens when parliament re-enacts words already judicially construed? As this case explains (at [15]), parliament ‘is taken to have intended the words to bear the meaning … judicially attributed to [them]’2. This presumption does not bite in all situations3, but it was applied in this case to provisions …
Hoskin v Bendigo City Council [2015] VSCA 350
Ever had to consider how fundamental rights affect interpretation? One issue in this mosque case was how the phrase ‘significant social effect’ in planning laws should be read. The court said (at [29]) that religious equality is of fundamental concern in a multi-religious society like Australia7.
If a law ‘is …
Australian Building Systems [2015] HCA 48
Episode 3 of iNOW! dealt with consistent usage. This case, on liquidator tax obligations, provides more insight (at [27]). It was pointed out that a High Court decision on a provision ‘is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes and uses identical or …
