Episode 39 30 August 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.
Sometimes even the most basic things can be overlooked things like whether purposive interpretation is mandatory. As we know, a daunting range of common law rules and canons may impact statutes. Into this mix, parliament legislated s 15AA of the Acts Interpretation Act, first in 1981 to say that a construction that would promote the purpose or object shall be preferred, then in 2011 to say that the interpretation that would best achieve the purpose or object is to be preferred. Statutes ordinarily shut down inconsistent common law1, but some saw s 15AA more as useful help than something you must apply.2 An American academic, however, wrote that s 15AA arguably mandates purposivism uber alles .3 Leaving aside the language, this pretty much sums it up. Section 15AA involves an unqualified statutory instruction.4
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When a common law term appears in a legislative code, do we read the code as if it were the common law merely expressed in a different medium? In this case, a statutory code definition included the term assault.5 Was common law intention necessary? The court cautioned against any idea that the statute was simply retelling the common law story.6 Reference to common law notions is okay of course as part of the context. But, consistent with the language and this context, assault did not require any element of intention to be shown. iTip if a common law term is used in a statute, dont blandly assume that the common law meaning must apply.
Retrospectivity describes a law that changes legal rights linked to past events.7 Gordon J (at ) noted it is somewhat distasteful, more so when it takes away accrued rights.8 It was held, however, that parole rules9 were not retrospective. Also, parole is a privilege not a right.10 There was nothing the prisoner could rely on, therefore, nor could those rules upset otherwise settled expectations.11 This case shows the subtle difference between a law which is retrospective and one which merely takes account of past events as the basis for how a future law applies. iTip in all retrospectivity situations, first refresh your understanding of the concept.12
Episode 11 explains that the old rule about reading remedial legislation liberally still survives, but it has its limits.13 Geason J in this case (at ) said it is unsound to interpret statutes of this kind with meticulous literalism. On the other hand, no beneficial construction can enlarge the operation of an Act beyond the actual words used. It is the text that controls how far an Act goes in achieving its underlying purpose remedial or otherwise. In this victims of crime case14, the term violence was read as always speaking and extending to infliction of harm by coercion and intimidation, emotional abuse and intimidation, and economic abuse.
and & or (again)
This case (at ) reinforces that and and or are to be given their ordinary meanings unless context indicates otherwise. The defendant argued that the proper construction of a lease termination clause required and to be read as or for the contract to make commercial sense. The court held that the leasing context and consistent use of and and or throughout the lease defeated this argument. As Episode 15 discusses, the words and and or all but invariably take their ordinary meanings, given the clearly understood distinction between them.15 iTip or is a form of disjunctive and creates alternatives >>> interpretation 101 , Episode 37.
§ Writers Gordon, Joseph, Suna & Emma. Producer Joseph
8 Quoting Hill J in Boral Windows (1998) 83 FCR 215 (at 221).