As the ‘circle of meaning’ diagram in Episode 66 illustrates, the process of interpretation begins and ends with the text of the law. A recent case shows why this is important – Minister v ERY191. Two options were available on how to read a migration ‘character test’, neither of which was clearly correct. The plurality (at [77]) said …
Moorcroft is a High Court migration decision about when a person is ‘removed from Australia’1. Given the issues raised, there was some expectation the case would delve into various interpretation areas, perhaps providing new perspectives or extended analysis. This didn’t happen. In a unanimous judgment, the court merely said (at [15]) the provision had ‘to be interpreted by …
iNOW! aims to boost awareness of principle and developments in statutory interpretation. Although iNOW! is produced within the ATO, each episode contains a disclaimer – ‘iNOW! is not a public ruling or legal advice and is not binding on the ATO’. iNOW! maintains a disinterested yet rigorous approach to what it reports. An article in the Weekly Tax Bulletin…
A recent migration case rejects the idea that translation mistakes in visa interview situations give rise to jurisdictional error1. Putting this context to one side, two comments in the case illustrate key things about ‘interpretation’ more generally. First, from Edelman J (at [51]) – The art of interpreting is the art of explaining meaning. Statutory interpretation involves …
iNOW! has many times dealt with extrinsic materials and their uses within the interpretive process. A recent case makes a key point here1. Thawley J said of an interpretation advanced by one party that it ‘does not give primary effect to the statutory language read in context: rather, it looks to the extrinsic material and presumes that to …
Recent appeal cases stress 4 related propositions – ■ purpose is to be considered throughout the interpretive process1, ■ harmony between provisions must be sought2, ■ we must try to ensure the legislative target is hit not missed3, and ■ a purposive answer may rule over ordinary meaning4. These propositions wrap up …
Looking back over the span of iNOW! operations, one theme dominates – stability of our interpretation system. Courts regularly proclaim that the basics are now well-established – a ‘settled approach of some clarity’1. No longer is it right to talk about interpretation as a ‘fashion industry’, if indeed it ever really was. The idea we are merely awaiting …
The reach of extrinsic materials in the world of statutory interpretation can be misunderstood. A good place to start for guidance is a High Court case last year1. Two key principles are that extrinsic materials cannot displace the meaning of the text, nor may they be substituted for it2. A related point is that these materials …
Two points made in Episode 66 – Circle of Meaning– were that the law ‘needs to work’, and that we are to finish with the text (at least to ensure that the meaning chosen is ‘open on the words’). A superannuation case just decided illustrates both points1. One problem was that a particular ‘income stream’ was to …
Interpretation involves a process of working out what legislation means. It’s not intuition, it’s not revelation, and it’s not working back from some desirable outcome. The basic process under our ‘modern approach’ is directed by the High Court1. Start with the text, consider context up-front in the ‘widest sense’2, choose between open meanings firstly by reference …
