Principles

Object/purpose/intention

WHA v Outback Ballooning [2019] HCA 2

Did NT work safety laws ‘alter, impair or detract’ from federal provisions?  In this context, Gageler J commented on the nature of legislative intention.  It is what parliament is taken to intend the words to mean after the interpretation process is complete5

The judge referred to ‘emergent scepticism’ about the very …

Prisoner rights

Kheir v Dept of Justice and Regulation [2019] VSC 76

Should provisions conferring ‘rights and privileges on a prisoner in return for good behaviour’ be read ‘liberally and beneficially towards the prisoner’? Prisoner rights are interpreted in line with the standard rules of construction – that is, having regard to purpose and context8

Prisoner rights exist in a …

Statutory definitions

SZTVU v Minister of Home Affairs [2019] FCAFC 30

In this case, the court considered the Migration Act definition of ‘fast track applicant’.  It held (at [71]) that the ordinary meaning of ‘applicant’ could not be used as an interpretative aid in construing the definition.  To do otherwise would introduce circuity into the process, as the High Court has ruled…

Meaning of ‘revoke’

FCT v Armstrong Scalisi [2019] NSWSC 129

Did a notice of tax estimate saying it ‘replaces’ another mean the earlier notice is ‘revoked’ as the act required?  Ward CJ (at [151]) said ‘no’.  Ordinarily, there is a difference between ‘revoke’ [to take away or cancel] & ‘replace’ [to substitute or refresh].

The former meaning is more consistent with context and …

Statutory purpose (again)

Unions NSW v NSW [2019] HCA 1

Episode 44 commented that purpose and context are to be considered ‘at the same time’ as the text when interpreting provisions.  In this electoral funding case (at [169]), Edelman J makes important observations about statutory purpose and context. 

The search for purpose, ‘involves a construct used to determine the meaning of the words’.  …

Legislative instruments

Bupa HI v Andrew Chang Services [2018] FCA 2033

The same principles as apply in the interpretation of statutes apply to legislative instruments – in this case, the Medicare Benefits Schedule.  Because the MBS ‘prescribes technical matters’, it is to be construed ‘in light of practical considerations to achieve the most reasonably practicable result’2

The court also …

Superiority of s 15AA

Mulpha Australia v CSPC [2018] NSWLEC 179

This case, about an old Sydney building, raised the meaning of ‘land’ in heritage legislation5.  The NSW interpretation provision required ‘a construction that would promote the purpose or object underlying the Act …’6.  Section 15AA was in this form until amended in 2011 to require a construction ‘that would …

Food glorious food

Comptroller v Pharm-A-Care [2018] FCAFC 237

Food classification cases are arid forensic exercises9.  Question – are vitamin gummies (1) ‘medicaments’ (free from duty) or (2) ‘food supplements’ (subject to duty) for customs tariff purposes?10  Answer – (1).

The following points are important – (A) the meaning of ordinary words (like ‘food’) is a question of law11

Purpose and context

Country Carbon v CER [2018] FCA 1636

This case considers the relationship between purpose and context.  Mortimer J (at [118-119]) said there was a ‘contradiction inherent’ in determining purpose, because (A) purpose is the ‘governing tool’ in fixing meaning, (B) purpose resides in the text and structure of the Act, and (C) the text ‘must be given meaning before purpose …

Composite expressions

Nature’s Care v AMCL [2018] FCA 1936

Whether fish oil capsules could be described as ‘made in Australia’ depended on whether foreign processing made them fundamentally different in ‘identity, nature or essential character’ to their ingredients5.  Was this expression a composite one to which the principles in Sea Shepherd applied?6 

‘No’ said Perram J (at [32-34]).  As …