interpretation NOW!
Episode 113 – 31 October 2024
interpretation NOW!
is best viewed in PDF format.
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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. |
A flier from Maddocks says – ‘It is a little known fact that the answers to life, the universe and everything related to statutory interpretation can be found in the magical text known as the Acts Interpretation Act 1901 ’. While this may overplay things a little, the AIA does provide many answers to statutory life and navigation of our interpretation universe. The AIA was the second statute passed after federation. With its constitutional overtones, it remains a key part of the system. It has been amended many times, most prominently in 1981 when s 15AA was inserted to formally require a purposive approach. As Gleeson CJ once noted, the AIA does ‘not compete for attention’ with other statutes, nor do they ‘rank in any order of priority. They work together’1. The AIA indeed may provide the magic which resolves your interpretation puzzle. iTip – always check the AIA2.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au
Rules of construction
Forrest v WA (No 2) [2024] FCA 729
Jackson J (at [139-140]) comments on how we are to apply ‘rules of construction’ under our system of interpretation3. We tend to assume parliament is some perfect machine and that the legislation it produces is also perfect. This is a false starting point, however, and not how things work out in practice. Reality intrudes in the form of ‘cumbersome, labyrinthine and frequently amended’ statutes. Rules of construction which assume a ‘rigorous linguistic logic and consistency’ are always to be applied with caution4. The reality of modern statutes ‘often of byzantine complexity’ means that arguments based on rules of construction are ‘often perilous’.
Building codes
Storty [2024] NSWLEC 1397, Salisbury [2024] SASC 92
In Storty , it was said that development consents, as statutory instruments, are interpreted the same way as statutes5. They are to be read in the standard ‘text>context>purpose’ way6, as a whole, and so as not to undermine the statutory scheme in question7. In Salisbury , it was said planning codes are not to be construed by ‘slavish adherence’ to interpretation principles8. This is because they adopt the language of planning objectives ‘not legal mandates’. How are these statements to be reconciled? The iNOW! answer is that the ordinary interpretation principles always apply, but that the building code context influences how they are applied in practice.
Insurance contracts
Capral Ltd v CGU Insurance [2024] FCA 775
Jackman J (at [63-71]) provides a convenient guide on how insurance contracts are to be read. ( 1 ) Meaning is determined objectively. ( 2 ) The perspective of the reasonable businessperson is to be adopted. ( 3 ) It is assumed parties intend to ‘produce a commercial result’9. ( 4 ) Clauses are to be read harmoniously. ( 5 ) Exclusion clauses are read by reference to ordinary meaning and against party interest when ambiguous10. ( 6 ) Attention must be given to the purpose of insurance contracts – ie, the sharing of risk arising from a contingency. ( 7 ) Courts try to follow settled positions in other jurisdictions where the same or similar language is used11.
Human rights
After Smith was charged with child sex offences, the judge convened a ‘ground rules hearing’ from which Smith was excluded12. He argued that this infringed his right to a fair and public hearing. This was rejected. It was held there is no absolute rule that an accused must be present throughout their trial. One issue was the effect of the human rights charter13 on the ‘ground rules hearing’ provisions. All Victorian laws are to be read in a way compatible with the charter. Where more than one view is open, the one compatible with the charter is preferred14. The charter, however, ‘does not authorise a court to do anything which it cannot already do’15.
§ Thanks – Oliver Hood, Agnes Liu, Jeremy Francis & Philip Borrell.
[1] AIRC [2002] HCA 42 [7-8], Forrest [2024] FCA 729 [83], Episodes 17 & 73 .
[2] And consult the leading textbook – Pearce Interpretation Acts in Australia .
[3] Here, expressio unius – express mention of one thing excludes others.
[4] Dollisson [2020] NSWCA 58 [47-48], O’Sullivan (1989) 168 CLR 210 (215).
[5] Hitchcock [2022] NSWLEC 81 [63 ], Kovacevic [2016] NSWCA 346 [83].
[6] Omaya [2020] NSWLEC 9 [31], SZTAL [2017] HCA 34 [14].
[7] Taylor [2014] HCA 9 [39], cf Episode 5 .
[8] Lakshmanan [2010] SASCFC 15 [6] cited.
[9] Mount Bruce [2015] HCA 37 [46-47] generally.
[10] Darlington (1986) 161 CLR 500 (510), Selected Seeds [2010] HCA 37 [29].
[11] McCann [2000] HCA 65 [74], Eather (1986) 6 NSWLR 390 (394) cited.
[12] s 389E(1) of the Criminal Procedure Act 2009 (Vic).
[13] Charter of Human Rights and Responsibilities (Vic), cf Episode 107 .
[14] Plurality [57], R v DA (2016) 263 A Crim R 429 [44] cited.
[15] Plurality [60], Momcilovic [2011] HCA 34 [18] quoted.
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