An old nuclear test compensation case was mentioned at a recent conference1. Despite the remedial nature of the statute in question2, the High Court denied relief to a RAAF airman who had unloaded contaminated planes. As the statutory meaning was clear, the majority refused to read the extra words ‘of a kind’ into the provisions. Stephen J was quoted – ‘To read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing’3. Although the High Court has derived more particular criteria for adding words into legislation4, the statement of Stephen J remains an accurate compression of the law. In view of the red flag against judicial legislation, however, it is the rare case that passes the test in practice. More usually, ‘clear necessity’ cannot be made out, the words suggested are out-of-line with statutory purpose, or the adjustment is simply ‘too big’5.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 Bird v Commonwealth (1988) 165 CLR 1, British Montebello tests 3/10/52.
2 s 30 Compensation (Commonwealth Government Employees) Act 1971 (Cth).
3 WA v Commonwealth 134 CLR 201 (251), cf Azimitabar [2024] FCAFC 52 [38].
4 Taylor [2014] HCA 9 [35-40], HFM043 [2018] HCA 37 [24].
5 cf Coleman [2021] QSC 125 [39], AusNet [2025] FCAFC 21 [138-141].