Michael Kirby has described interpretation as ‘an art not a science’1. As readers of statutes, we may forget that the exercise cannot be reduced to a scientific calculation or mechanistic formula2. It is not something a robot can do … yet. Interpretation involves a sympathetic quest for meaning, where context in the widest sense is …
Resource Capital is a decision of Pagone J, now on appeal, about the tax treatment of limited partnership profits1. One issue was whether the judge was bound by a superior court decision that the partnership in question was a legal entity2. Pagone J said (at [6]) that, while he was bound by precedent, there was no …
Justice Pagone of the Federal Court has given a paper on the continuing need for tax academics to provide assistance to judges1. After discussing core interpretation principles, the judge said that academics can assist courts in ‘resolving ambiguities in legislation’, and are most useful in ‘exploring and explaining context’. The knowledge of a judge unaided in this regard …
Justice Kirby spoke at Cambridge University in 2002 on movement ‘towards a grand theory of interpretation’ for statutes and contracts1. He noted a ‘need for caution’ in embracing any grand theory, but pointed to trends which narrow the differences. Two of these were a greater appreciation of the choices available2, and moves towards wider contextual analysis. …
iNOW! is a modest initiative from the ATO built on a simple idea – ‘anyone who reads legislation and writes down what it means needs to know this stuff’. Over 140 cases and 31 episodes later, iNOW! is an accessible toolkit of principle and practice. This year alone, AustLII will record over 2500 cases dealing with the subject in one …
Many tax provisions confer power on the Commissioner to make decisions on being personally ‘satisfied’ that some factual precondition or other has been met1. In the same-sex marriage case, the High Court re-stated some basic principles regarding ‘official satisfaction’2. They said (at [109]) that the ‘satisfaction must be formed reasonably and on a correct understanding of …
When does failure to comply with statutory conditions invalidate some formal act? In Forrest & Forrest1, a mineralisation report had not been provided with the application for a mining lease2. It was provided later, however, and it was before the minister3. Whether lateness was fatal depended on purpose, language and consequences. No decisive rule …
If you read only one case on interpretation in 2017, make it this one – SZTAL v Minister1. The majority (at [14]) state the basics, but it is Gageler J (at [34-43]) who digs deeper into the problem-solving2. The issue was the meaning of ‘intention’ in a protection visa context3. Gageler J stressed the …
Tony Slater QC has retired after decades as a giant of the tax bar. Working both sides of the fiscal divide, he leaves a legacy of excellence few may equal. Long-remembered will be his work on numerous high-profile cases – MBI Properties is my favourite1. In a Tax Institute interview2, Tony recommended 3 things all tax …
For diverse policy, economic and historical reasons, our tax law is complex1. At his recent Press Club address2, Chris Jordan said part of his job is to help taxpayers by ‘hiding the complexity’ of our tax system. One way the ATO tries to make it easier for taxpayers is by engaging with the community on simpler …
