QBE Insurance v Mordue [2015] NSWCA 380
This case (at [92]) makes the point that delegated legislation gives way to the statute under which it is made where the two are ‘irreconcilably incompatible or inconsistent’12. Delegated legislation includes regulations, rules, by-laws, determinations and instruments made under an Act.
Regulations cannot control what an Act means, but they may …
DPP v Walters [2015] VSCA 303
Legislation in Victoria had introduced ‘baseline sentencing’ but was ‘wholly silent’ on the means by which it was to be implemented. The majority said (at [57]) that extrinsic materials could not be used to fill the gap15, and that any judicial action in this regard ‘would be to legislate, not interpret’.
The …
Fortress Credit v Fletcher [2015] HCA 10
What happens when parliament re-enacts words already judicially construed? As this case explains (at [15]), parliament ‘is taken to have intended the words to bear the meaning … judicially attributed to [them]’2. This presumption does not bite in all situations3, but it was applied in this case to provisions …
Hoskin v Bendigo City Council [2015] VSCA 350
Ever had to consider how fundamental rights affect interpretation? One issue in this mosque case was how the phrase ‘significant social effect’ in planning laws should be read. The court said (at [29]) that religious equality is of fundamental concern in a multi-religious society like Australia7.
If a law ‘is …
Australian Building Systems [2015] HCA 48
Episode 3 of iNOW! dealt with consistent usage. This case, on liquidator tax obligations, provides more insight (at [27]). It was pointed out that a High Court decision on a provision ‘is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes and uses identical or …
Commonwealth v Sanofi [2015] FCAFC 172
Determining if provisions involve an exhaustive code which excludes common law remedies is often hard. In this case, the court (at [101-102]) held that there was ‘no inconsistency or incompatibility’ in allowing therapeutic goods provisions to coexist with a damages remedy12, adding that the contrary would be ‘inconvenient and unjust’ (at [96]). …
NAAJA v Northern Territory [2015] HCA 41
When provisions can be read so as to invalidate them but may also be read in a way that does not, ‘a court must always choose the latter course when it is reasonably open’1. Gageler J in this case (at [75-78]) provides extra insight into this rule2. He points …
Chevron Australia v FCT (No 4) [2015] FCA 1092
This case raised whether Div 815-A transfer pricing provisions were invalid by reason of textual uncertainty. Robertson J said ‘no’. Legislation can never be void or invalid due to uncertainty5. However difficult the exercise, a statute always has a meaning and a singular meaning at that.
Neither a court …
AEU v Victoria [2015] FCA 1196
Acts are presumed not to operate retrospectively7 – it’s all about fairness. Bromberg J explains (at [237-262]) that ‘retrospectivity’ has 2 senses – (A) changing legal rights concerning past events8, and (B) merely taking account of past events as the basis for how a future law will operate9.
The …
Di Paolo v Salta Constructions [2015] VSCA 230
There is a growing jurisprudence about when and how practical consequences properly influence interpretation10 – this is a controversial area! In 1981, it was said that results which are absurd, extraordinary, capricious, irrational or obscure might drive an alternative construction11. Section 15AB was legislated for soon after.
The High …
