As noted in Episode 55, the High Court in The Queen v A2 states that no recent cases ‘suggest a return to a literal approach to construction’1. That approach ‘has long been eschewed by this Court’, it was said. Judges and tribunals around the land rushed to quote these words2. What is interesting is why the High Court felt the need to spell this out. Part of the problem has been an inclination to read judgments as if they were legislation, often reading too much into chance or subtle phraseology3. The overthrow of literalism in Australia dates from 19814, the last 2 decades only confirming the triumph of purpose/context. That approach will often produce a literal answer, just as parliament intends. However, we are not to pre-confine the process by seeking only the literal outcome. That is the fundamental point of which we are now reminded.
Gordon Brysland – Tax Counsel Network
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In this episode:
Writer – Gordon Brysland. Producer – Cameron Anderson-Smith.
Footnotes:
1 A2 [2019] HCA 35 (at [37]), noted in Episode 55.
2 CCJ [2019] QSC 267 (at [33]), Ribbon [2019] SASCFC 130 (at [128]).
3 cf Gayle [2019] NSWCA 172 (at [238]), Lazarus [2017] NSWCA 37 (at [87]).
4 Cooper Brookes (1981) 147 CLR 297 (at 319-321), s 15AA of the AIA 1901.