Sources of policy

Certain Lloyd’s v Cross [2012] HCA 56 

Where can you search for policy?  Hill J said it was ‘enshrined’ in the provisions and in the ‘legislative context, so far as it casts light upon the proper interpretation’10.  Later comments suggest it may be derived only from the Act11.  This case (at [23-25]) favours the first approach – policy resides in the text and structure of the Act, but it may be inferred from extrinsic materials ‘where appropriate’12

Extrinsic materials occasionally may assist construction, but they provide no help in the face of clear words.  iTip – (A) look for policy first of all in the Act itself, (B) next look in the wider permitted context, (C) then see if the words can properly bear a meaning consistent with the resolved policy.

This case is from Episode 6 of interpretationNOW!


10  HP Mercantile [2005] FCAFC 126 (at [43-44]).

11  MeridienAB [2013] QCA 121 (at [19]).

12  FCT v Zammit [2014] NSWCA 104 (at [67]).