Weight to be attributed

Edelman J said that the fact that some extrinsic materials are weighty does not deny that others will have little influence.  This is only natural.  An EM, for instance, may be ‘an important and weighty extrinsic source of information’.  Given the central role of ministers and departments in their drafting, it ‘invites the available implication that these materials are more reflective of “government intent”’7.

The view of Edelman J was that the EM was ‘crystal clear’ that the definition of ‘infrastructure facility’ was not exhaustive.  The ‘clarity and specificity’ of the EM here meant that the ‘text and context must be understood in the manner expressed in the joint reasons’.  The plurality (at [75-82]) held that the term also bore its ordinary meaning, as the EM suggested8.

This principle is from Episode 106 of interpretation NOW!


7 [116], Dharmananda (2018) 41(1) UNSWLJ 4 (34), cf BDM Ch 24. 

8 cf South Australia v Slipper [2004] FCAFC 164 [77-85].