The recent ‘ankle bracelet’ challenge in the High Court is an example of the ‘textcontextpurpose’ protocol in practice1. At issue was the validity of punitive curfew restrictions on aliens awaiting deportation, enforced by an ‘electronic monitoring device affixed to the person’2. This applied unless the Minister was satisfied it was not necessary ‘for the …
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 …
A judge in the US has asked what possible relevance generative AI may have in determining the ordinary meaning of words in legal texts – Snell v United Specialty Insurance Co1. A landscaper installed an in-ground trampoline in a backyard. A young girl was injured falling from the trampoline. The owner sued the landscaper who was insured against …
Edelman J uses the term ‘textual fundamentalism’ to describe a mode of interpretation ‘that divorces the words from their context and purpose’1. The term has a long history with scriptural texts. It also resonates with the New Textualism approach to statutes in America2. Textual fundamentalism, notes the judge, drives narrow literalism and the isolation of words …
The US Supreme Court has struck down a ban on bump stocks on the basis they do not convert assault rifles into machineguns1. Bump stocks use the recoil energy of these rifles, enabling them to fire up to 800 rounds a minute2. Legislation defines ‘machinegun’ by an ability to shoot more than one shot ‘by a …
The legal ‘person’ is the sun around which the planets of the law revolve. Only a thing with legal personality can have rights and obligations or bear criminal sanctions1. To which category of ‘person’ a statute applies poses perennial puzzles for judges, as a recent High Court case illustrates2. The issue was whether the corporatised Director …
Punctuation often provokes passion. The Guardian online reports that a council in England has decreed that street names will drop the possessive apostrophe – eg St Marys Walk. Residents and linguists are outraged. One said it was just more evidence of ‘everything going downhill’. The council defended itself on the basis of global website standards and avoidance of uncertainty. In …
Proportionality is a large and nuanced legal concept. While not often cited in interpretation, the core idea – the balance between the degree of departure from a baseline and the importance or clarity of the departure’s purpose – is useful in resolving interpretation questions. Under the ‘modern approach’, legal meaning usually corresponds with grammatical meaning, ‘but not always’1. …
Edelman J in Harvey v Minister [2024] HCA 1 comments on the ‘why, when and how’ regarding the role of extrinsic materials in interpretation. This arose in the context of whether granting a mineral lease1 expanding the McArthur River Project onto Aboriginal land gave the native title holders formal objection rights. It was held that it did. The legal …
Statutory interpretation in Australia and New Zealand is very similar. In both places, the process is based on text, purpose, and context1 – the systems differ little in substance2. Both require evolving meanings3, prospectivity4, coherence and workability5, and consistency with international obligations6. Each permits limited remediation7. New …
