interpretation NOW!

Episode 95 – 28 April 2023

interpretation NOW! 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.

Episode 90 observed that ‘always speaking’ is a baseline assumption in our system, but that how to apply it is often problematic. A recent UK case – News Corp UK – throws more light on this.1 The issue was whether ‘newspapers’ in older VAT provisions extended to cover digital editions – answer ‘no’. The court confirmed that always speaking is ‘merely an aspect of purposive interpretation’.2 It involves ‘taking into account changes in our understanding of the natural world, technological changes, changes in social standards and … changes in social attitudes’.3 The aim is to apply the purpose of the original provisions to the present situation. VAT exemptions are construed strictly and a ‘standstill provision’ restricted expansion of zero-rated categories. Legislative purpose, therefore, narrowed any role for ‘always speaking’ and prevented digital editions being ‘newspapers’.

Gordon Brysland – Tax Counsel Network

Examples in legislation 4

R v Clark [2023] SASCA 15 (at [14])

Section 20 of the Legislation Interpretation Act 2021 (SA) says that an example included in legislation ‘is not exhaustive’ and ‘may extend, but does not limit, the meaning of the provision …to which it relates’.5 The word ‘may’ allows a court to assess if an example in fact extends a provision. It also caters to situations where parliament intends a provision to cover the example ‘whether or not it strictly falls within the scope of the provision’.6 Older versions of these sections say that ‘if the example is inconsistent with the provision, the provision prevails’.7 Examples in legislation (A) are increasingly common, (B) have more influence, and (C) enjoy strong user support.8

Super documents

Application by Ellasil Pty Ltd [2023] VSC 69

This case (at [88]) explains how superannuation trust deeds are to be interpreted. Unsurprisingly, they are to be read in the same practical, objective and purposive way as all commercial documents.9 McMillan J said that attention must to be paid to the language used, commercial circumstances, operational context, and the objectives to be secured.10 Words are to be given their ‘ordinary and fair meaning’, approached in a ‘practical and realistic way’. Overly fine or theoretical approaches are to be avoided. iTip – super deeds as commercial documents are always to be understood objectively and not by reference to subjective intentions.11

Delegated legislation

NL v Chief Executive DFCP [2023] SASCA 20

Delegated legislation is invalid if it is inconsistent with the statute under which it is made.12 As the court explained (at [118-123]), inconsistency may involve direct collision between the two, or may arise where the statute is ‘plainly intended’ to ‘cover the field’13 – that is, where the statute is objectively intended as a complete statement of the law. Applying this, the court held (at [168]) that s 60 of the Safety Act 14 involved an ‘exhaustive statement’ of situations where a youth court may make an order for costs against the Crown. Various factors showed that the provision conferred only a limited discretion that could not be extended by delegated legislation.

Preconception

Attorney General v FJG [2023] NSWCA 34

In this case, Bell CJ (at [1]) observes that interpretation should never start from some preconceived policy outcome considered desirable then 'work backwards'. Preconception may be unconscious just as much as deliberate. Within our purposive system, it is a particular problem that appellate courts have been concerned to call out15. Could the NSW marriage register be changed retrospectively as to name and sex in a way that contradicted the federal marriage certificate? This was not possible because the respective laws were to be construed harmoniously. If this outcome was considered harsh, the remedy is via parliament.

§ Thanks – Cheryl D’Amico, Matt Snibson, Philip Borrell & Patrick Boyd.

^[1] News Corp UK & Ireland Ltd v CRC [2023] UKSC 7, iTip – read this case.

^[2] plurality (at [37]) quoting Owens v Owens [2018] UKSC 41 (at [38]).

^[3] plurality (at [35]) citing Test Claimants [2020] UKSC 47 (at [218-219]).

^[4] Episodes 17 & 30 , Pearce 9th edition (at [4.75]).

^[5] cf s 15AD Acts Interpretation Act 1901 , FTAC [2002] NSWSC 624 (at [17]).

^[6] cf EM to the Bill inserting current s 15AD (at 19).

^[7] cf Mondelez [2020] HCA 29 (at [72]), Gold [2022] WASCA 134 (at [265]).

^[8] Barnes Dharmananda & Moran (at [20.12]), Quiggin (2011) 1 Loophole 96.

^[9] Byrnes [2011] HCA 26 (at [102]), cf Episode 34 .

^[10] Eastaugh [2017] VSCA 218 (at [61]), cf Butler [2022] VSCA 102 (at [27]).

^[11] Woodside [2014] HCA 7 (at [35]), Laundy [2023] HCA 6 (at [27]).

^[12] White [1899] 2 QB 34 (at 37), Webster (1980) 49 FLR 317 (at 320-321).

^[13] Cullis (1914) 18 CLR 540 (at 543), Pearce & Argument (at [19.23]).

^[14] s 60 of the Children and Young People (Safety) Act 2017 (SA).

^[15] Certain Lloyd’s [2012] HCA 56 (at [26]), Greensill [2021] FCAFC 99 (at [70]).

ISSN 2651-9518