Burgess v Commonwealth [2020] FCA 670
When it is argued that a provision is constitutionally invalid4, a presumption of validity applies on the basis that parliament ‘did not intend to pass beyond constitutional bounds’5 – see Episode 7.
This presumption, said Besanko J (at [96]), is not to be pushed beyond its ‘proper limits’. Courts should not …
Meyrick v Home Affairs [2020] FCA 677
Statutes are generally read in line with Australia’s international obligations. In this visa cancellation case8, however, the decision-maker failed to have regard to a convention to which Australia was party but parliament had not yet legislated for9.
Unenacted treaties may guide the common law10, but failing to …
Taylor v The Queen [2020] VSCA 50
This is a rare case where contrary intention rebuts the presumption that the singular includes the plural12. T was charged with trafficking in a ‘drug of dependence’13 – ‘anabolic or steroid agents’, which is a class of drugs rather than an individual drug. The question was whether a class of …
Universal Property v BCC [2020] NSWCA 106
The old idea that parliament does not intend to contradict itself14 finds modern emphasis in the ‘principle of harmonious operation’15. Brought to attention in Project Blue Sky, this requires harmony to be sought for warring provisions within and between statutes of the same legislature. Implied repeal only occurs where …
Peter Greensill Family Co v FCT [2020] FCA 559
The meaning of connecting words depends very much on context. Were certain capital gains to be disregarded as being ‘from’ a CGT event?6 That word indicates a causal connection7 but as Thawley J found (at [52]) ‘causation is not the exclusive criterion’.
It requires a stronger degree of …
Hamzy v Commissioner [2020] NSWSC 414
A number of restrictions were placed on prisoner Hamzy – monitoring phone calls, security-checking his lawyers and denying audio-visual access. He said his right to legal representation had been infringed, and that security-checking was unreasonable.
Bellew J disagreed saying (at [73-77]) that prison rules can be applied to take account of particular circumstances. Authorities …
BWP Management v Ipswich [2020] QCA 104
The long-held High Court position on statutory definitions is that, for circularity reasons, the term defined has no influence on the meaning of the definition10. Other courts have questioned this on the basis the term defined is part of the Act and available to be used in construing the definition11…
Corliss v R [2020] NSWCCA 65
The High Court position is that legislative intention is an output of the interpretative process – that is, what parliament is objectively taken to have intended by the words used13. 2 judges in this case now add their names to others who doubt this14.
Johnson J said that to reduce …
Lawson v Minister [2020] NSWSC 186
This case, dealt with in Episode 59, also contains a punctuation issue3 – that being, whether a semicolon separated 2 discrete things within a schedule; or required them to be read together. Ward CJ (at [80]) observed that semicolons may replace ‘and’ as a ‘hierarchically superior punctuation mark if the reader is not …
R v IB (No 3) [2020] ACTSC 103
How might a 1215 UK statute affect territory COVID-19 laws?7 IB sought a jury trial on sexual offences, but ‘trial by judge alone’ was ordered under those laws. IB said clause 29 of Magna Carta, always part of ACT law, guaranteed trial by jury – ‘No freeman shall be taken …
