Policy advisers

Cole v Minister [2018] FCAFC 66

This case (at [40]) repeats the caution that digging into legislative history ‘might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers’14.  It may seem natural enough to want to interrogate the inner motivations of the named policy advisers who conceived and drove the architecture of new provisions.  You should resist this temptation. 

It is now far beyond argument in Australia that legislative intention has nothing to do with what anybody (or any body) actually intended or believed15iTip – asking policy advisers what was on their mind will only distract you from the real task.

This case is from Episode 38 of interpretationNOW!


14 Wilson [2010] NSWCA 198 (at [12]), cf Axiak [2012] NSWCA 311 (at [57]).

15 Episodes 1, 18, 29 & 36.