Episode 37 29 June 2018
is best viewed in PDF format.
interpretation NOW! is an internal ATO initiative aimed at improving awareness about statutory interpretation. It is not a public ruling or legal advice and is not binding on the ATO.
The Possum Case is a classic application of constructional choice principles in a practical setting1. At issue was the scope of an exemption2 from prohibitions on forestry operations found detrimental to the critically endangered marsupial. Mortimer J (at [44-51]) quotes the High Court3 on constructional choice, emphasising that evaluation of the relative coherence of the alternatives with identified statutory objects or policies is the central criterion against which meaning is determined. The judge also points out that the nature of the provision (in this case, an exemption from criminality) is important, and that an interpretation which promotes clarity will generally be preferred4. iTip Possum Case is a masterclass on how to do constructional choice.
Gordon Brysland Tax Counsel Network (from Bormio)
In deciding what a provision means, we invariably test things against hypothetical facts. The rationale is that the outcomes produced will shine a light on which construction best fits the statutory purpose. A natural inclination in this process is to frame our examples at the outer limits of speculation in order to make the choice involved as stark as possible. This case (at ) cautions that construction of legislation is not to be tested by reference to extreme examples or distorting possibilities5. By all means, test your hypothesis against a variety of assumed facts. Be aware, though, that extreme examples may produce false or unreliable results.
Courts have long been reluctant to interfere in the discipline, administration or management of prisoners6. This case says (at ) that, as a matter of statutory interpretation, a judicial officer should be slow to interfere with administrative decisions taken by those tasked with running prisons7. This policy bias against review applies only to the extent that bad faith, improper purpose or extreme unreasonableness are not shown. Although non-interference with operational decisions belongs more to the zone of administrative law, this case shows how prisons legislation is read down similarly.
Parts of speech
Interpretation statutes invariably say something like, where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings8 - s 18A of the Acts Interpretation Act 1901, for example9. This case (at [56-57]) describes how the Northern Territory provision10 works in practice. One, it extends to a noun where the verb is defined. Two, it yields to contrary intent. Three, it does not apply where the derivative word is being used in a different sense11 (three is merely a subset of two). iTip it will usually be context and purpose which demonstrates a contrary intent or different usage.
Sometimes even the most obvious things have to be spelt out. Legislation commonly adopts the format Any person who (a) lives in Sydney, or (b) has red hair, must register. The appeal court in this case (at ) pointed out (continuing our simplified example) that someone who lives in Sydney, but who does not have red hair, must still register12. The argument was that the obligation to register only bound the closest referent - anyone with red hair. Pearce & Geddes describe the basic principle as concluding words qualifying all paragraphs13. This is no more than a common-sense grammatical reading of the provision >>> interpretation 101 .
§ Writer Gordon Brysland. Producer Suna Rizalar.
1 Friends of Leadbeaters Possum Inc v VicForests  FCA 178.
4 Powell  FCAFC 89 (at ) quoted.
6 Modica (1994) 77 A Crim R 82 (at 88), Fyfe  SASC 84 (at ).
8 cf Catterall  AATA 691 (at ).