Hayman v Cartwright [2018] WASCA 116
When a common law term appears in a legislative code, do we read the code as if it were the common law merely expressed in a different medium? In this case, a statutory code definition included the term ‘assault’ 5. Was common law ‘intention’ necessary?
The court cautioned against any idea that the …
Minogue v Victoria [2018] HCA 27
Retrospectivity describes a law that changes legal rights linked to past events7. Gordon J (at [111]) noted it is ‘somewhat distasteful’, more so when it takes away accrued rights8. It was held, however, that parole rules9 were not retrospective. Also, parole is a privilege not a right10. …
L v Commissioner [2018] TASSC 32
Episode 11 explains that the old rule about reading remedial legislation liberally still survives, but it has its limits13. Geason J in this case (at [25]) said it is unsound to interpret statutes of this kind ‘with meticulous literalism’. On the other hand, no beneficial construction can enlarge the operation of an …
Oxanda Childcare v MAAG [2018] VSC 370
This case (at [36]) reinforces that ‘and’ and ‘or’ are to be given their ordinary meanings unless context indicates otherwise. The defendant argued that the proper construction of a lease termination clause required ‘and’ to be read as ‘or’ for the contract to make commercial sense. The court held that the leasing context …
Aregar v Cox [2018] NTCA 3
When an Indonesian national was prosecuted for fishing in Australian waters, proof of boat location became critical. This turned on a proclamation defining our ‘exclusive economic zone’. As a legislative instrument, the proclamation was to be interpreted as if it was an Act of parliament5.
This meant context and purpose were central …
APRA v TMeffect Pty Ltd [2018] FCA 508
We know that legislation rarely pursues some singular policy at all costs8. It follows that the duty generally to align meaning with legislative purpose9 may be of little help when provisions strike a subtle balance between competing policy objectives.
Perry J (at [30]) says that the question is often …
Commissioner v CLP Power HK [2017] HKCFA 18
Parliament requires constructional choice by reference to best achievement of legislative purpose11. Courts sometimes express concern, however, that this may be taken too far. In this case (at [34]), a HK court warned against an ‘exorbitantly purposive’ approach under which the text was given a meaning it was ‘incapable of …
Cole v Minister [2018] FCAFC 66
This case (at [40]) repeats the caution that digging into legislative history ‘might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers’14. It may seem natural enough to want to interrogate the inner motivations of the named policy advisers who conceived and drove the …
Minister v Aboriginal Land Council [2018] NSWLEC 26
In deciding what a provision means, we invariably test things against hypothetical facts. The rationale is that the outcomes produced will shine a light on which construction best fits the statutory purpose. A natural inclination in this process is to frame our examples at the outer limits of speculation in order to …
Bernard-Ross v NSW [2018] NSWSC 182
Courts have long been reluctant to interfere ‘in the discipline, administration or management of prisoners’6. This case says (at [41]) that, as a matter of statutory interpretation, a judicial officer ‘should be slow to interfere with administrative decisions taken by those tasked with running prisons’7.
This policy bias against review …
