Statutory issue

Esso v Australian Workers’ Union [2017] HCA 54

In Esso (at [52]), another High Court majority said the ability to depart from ordinary meaning is limited to construing the provision in a way ‘which, despite its terms, it is plain that parliament intended it to have’.  Courts cannot overcome unintended consequences of the intended operation by adopting a meaning that parliament did not intend – to do so would be to enter the ‘legislative realm’6.   

These comments stand in odd contrast to SZTAL.  They set a darker tone; they cite old cases decided in radically different circumstances; and they pay no regard to the modern role of legislative intention.  Does Esso suggest a turning back towards the past?   

This case is from Episode 32 of interpretationNOW!


6 Magor [1952] AC 189 (at 191), Marshall (1972) 124 CLR 640 (at 644, 649).