NNXF v NDIA [2019] AATA 5552
Episode 55 includes a case where 2 pieces of legislation were not a scheme3. Here the AAT said there was a scheme, comprising national disability & AAT Act provisions4. These were to be construed ‘harmoniously and justly’5 as ‘beneficial legislation’ and to ensure correct and preferable decisions. The meaning …
Hogg v R [2019] NSWCCA 323
In this sexual assault appeal, the accused said the principle of legality should prevent his right to silence during official questioning being eroded by any adverse inference drawn under s 89(1) of the Evidence Act 1995. This was rejected (at [100]).
The principle of legality requires clear words in legislation to adversely impact …
Crotty v Minister for Immigration [2020] AATA 39
A person born overseas can become a citizen if a parent was a citizen at the time of birth and that person has been in Australia for a total of 2 years10. Crotty’s mother fell short by 65 days. He argued this was made up by her residing at an …
Blacktown CC v Concato (No 4) [2020] NSWSC 9
Can an official change a statutory decision already made? Here, ‘yes’. The Valuer-General sought to amend a determination of compensation on a compulsory acquisition. Subject to contrary intention, common-form provisions say statutory functions may be exercised ‘from time to time as occasion requires’14. It was held there was nothing …
R v Hicks [2019] ACTSC 331
This case (at [15-29]) sets out the law on ejusdem generis (‘of the same kind’)5. Hicks argued that words he wrote in an exercise book were not ‘child exploitation material’6 as they did not ‘represent’ the sexual content in question. ‘Represent’ was defined to mean ‘depict or otherwise represent on or …
DBE17 v Commonwealth [2019] HCA 47
A major theme in interpretation over the past decade has been the development of constructional choice theory. Consider the text in its widest context and select the alternative which best achieves the legislative purpose. Nettle J in this case shows how to do it. Did reference to ‘all proceedings’ extend to proceedings of any …
Herbert v NSW [2019] NSWSC 1703
Coherence is an emerging buzzword9. This case (at [69]) says the modern approach to interpretation ‘permits regard to be had to how a related statute deals with a particular topic to arrive at a coherent view of the body of law’. Coherence of this kind is at a level above coherence merely …
BMW Australia Ltd v Brewster [2019] HCA 45
Can a court make a ‘common fund order’ in class actions under the general power to make any order it ‘thinks appropriate or necessary to ensure that justice is done’?12 – ‘no’ said the majority.
Edelman J (at [171]) restates the principle about open-textured words ‘always speaking’13 so the essential …
Caltex Australia v FCT [2019] FCA 1849
Instruments forming part of a legislative scheme are generally read together for interpretational purposes5. For 2 or more Acts to form a scheme, they must be interdependent in a meaningful way6. It is not enough that they merely have some wider common purpose or some incidental connection.
Davies J …
Owners v Ternes [2019] NSWSC 1579
As an interpretational baseline, applied by the High Court from the very start8, all words in legislation are to be given meaning and effect whenever possible9. Arguments based on redundancy, however, have a utopian flavour and are rarely decisive in isolation.
In this case, it was argued (at [29-31]) that …
