Matthews v The Tap Inn [2015] SADC 108
Phrases in legislation like ‘is taken to be’ create a deeming provision, as this case notes (at [19]). Deeming provisions usually involve a ‘statutory fiction’ – a legal version of ‘let’s pretend’ – but only where the facts required are first made out7. They come in various guises – ‘deemed …
Gordon has passed me the pen for Episode 3 (Rebecca Smith next month). One point resonating from Episode 2 is that interpretation usually involves selecting the best answer from among ‘constructional choices’. Computers cannot do that, nor can mathematical algorithms – not yet anyway.On the production front, we now have business line input on tone and content. One thing we …
Plaintiff B15a v Minister [2015] HCA 24
If words of an Act are in the singular, they are presumed to include the plural (and vice versa) unless a contrary intention appears – see s 23 of the Acts Interpretation Act 19011.
In this High Court case, however, Kiefel J (at [8]) rejected the idea that ‘a parent’ should …
Task Technology v FCT [2014] FCAFC 113
This case, which is about software royalties under the Canadian double tax agreement, makes 4 key points – (1) take a ‘holistic’ approach to DTA interpretation2; (2) give primacy to the written text; (3) context, object and purpose ‘must also be considered’3; and (4) the OECD commentary and related …
Carroll v Secretary [2015] VSCA 156
Does a word used many times in an Act always have the same meaning? Not necessarily. The presumption that words are used consistently depends on context6. In this case (at [22]) the presumption was applied, consistent with the clear meaning of the text and its structure.
The presumption is given less weight …
In Episode 2, we emphasised that interpretation must always start with the text. However, black letter approaches [that is – narrow, acontextual or literalistic ones] are inconsistent with the purposive approach required by parliament8 and the High Court since 1981. Changes made at that time sounded the death knell for the black letter literalism of the Barwick era9…
Thanks for all the positive feedback on Episode 1 – we may have hit a nerve! One point I often make in presentations is that, as we all get better at statutory interpretation, so our technical decision-making will improve also – it’s unavoidable. Interpretation, however, almost invariably does not involve some singular bright shining answer just awaiting our discovery1…
Merrick Tyler v Main Roads [2015] WASCA 82
Despite what many people may think, dictionaries are not decisive on the meaning of statutory words and are to be treated with caution (at [40]). They are a ‘reasonably authoritative source’ for the range of available meanings, but ‘they do not speak with one voice’ and they say nothing about context8…
Paciocco v ANZ Banking Group [2015] FCAFC 50
The relatively simple idea of an Act ‘always speaking’ is often over-complicated with obscure Latin maxims and seemingly endless cases. Words have a meaning either fixed at the time of enactment or which may evolve over time and is ‘always speaking’ in the present6. This case is an example of …
Garrett v FCT [2015] FCA 665
The great tax judge, Hill J, often stressed the ‘considerable room for creative interpretation’3, under which more options naturally open up to the diligent reader. It is not some mono-lineal exercise – see above. The description used by the High Court nowadays is ‘constructional choices’4.
Kenny J in this case …
