The recent ‘ankle bracelet’ challenge in the High Court is an example of the ‘text>context>purpose’ protocol in practice1. At issue was the validity of punitive curfew restrictions on aliens awaiting deportation, enforced by an ‘electronic monitoring device affixed to the person’2. This applied unless the Minister was satisfied it was not necessary ‘for the protection of any part of the Australian community’. The Minister said the words ‘from the risk of harm arising from future offending’ were to be implied. The court rejected this and held the restriction invalid. The extra words were inconsistent with the text, context and purpose. The provision could not be read ‘more narrowly than the ordinary grammatical meaning of its language’3. Adding words would create uncertainty, did not produce a ‘reasonably open’ construction4, and would involve unauthorised policy-making.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au
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Footnotes:
1 YBFZ v Minister [2024] HCA 40 [67-76] – cf Episode 66 ‘Circle of Meaning’.
2 clause 070.612A(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).
3 s 3A(1) Migration Act 1958 (Cth), s 15A Acts Interpretation Act 1901 (Cth).
4 Ruhani [2005] HCA 42 [148-149], NAAJAL [2015] HCA 41 [76-79] cited.