Policy and context

Klemweb Nominees v BHP [2019] FCAFC 107

The key quote from this class action case on common fund orders (at [138]) is that policy ‘divorced from law has no voice in the courts’9.  It was argued that the policy behind another provision in a different statute controlled interpretation of federal class action provisions – rejected. 

Policy can be a ‘difficult magic’.  The court drew attention to the ‘danger of decontextualising the underlying rationale for a penal provision operating in a quite different area’10.  The point being made is short but important.  Policy derived from a different statutory context is false magic and has no voice in interpretation.  iTip – always be careful with policy.   

This case is from Episode 51 of interpretation NOW!


9 French CJ Dolores Umbridge (2008) 82 ALJ 322 (at 323) quoted.

10 cf Zammit [2014] NSWCA 104 (at [67]), Episode 6.