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 …
SZOXP v Minister [2015] FCAFC 69
This case (at [17]) repeats the High Court mantra that the task of interpretation must begin and end with the text of the law2. Rules of interpretation about context and purpose are ‘mediated through the text of the statute’. This means that, although extrinsic materials may be relevant, they ‘cannot displace the …
interpretation NOW! is a reinvention initiative to drive awareness on what is happening on the statutory interpretation front. It responds to a one-ATO need to have sharp tools ready at all times when working with tax legislation. As French CJ says in Pearce & Geddes – ‘The centrality of statutory interpretation in our legal system must be reflected in legal …
ICAC v Cunneen [2015] HCA 14
Statutory definitions often create problems, and our tax laws are littered with them. A common issue, discussed (at [33]), is the circuity involved in trying to construe the definition by reference to the actual term defined4. iTip – don’t do this!
Another issue is the principle that statutory definitions are generally not …
Uelese v Minister [2015] HCA 15
Nettle J in this case (at [100]) was against a reading of migration obligations that would make them ‘impossible or impractical’ to comply with. He referred to previous cases about this, and to the textbook Pearce & Geddes (at [2.38-2.39]) on ‘Consequences of a particular interpretation’.
iTip – care needs to be exercised in …
Queensland v Congoo [2015] HCA 17
Some people may still think legislative intention has something to do with what the collective called parliament subjectively intended a provision to mean. Nothing could be more wrong, as the High Court has again reminded us (at [36])2.
Legislative intention is really no more than a constitutional courtesy – that is, an …
