Episode 25 30 June 2017
interpretation NOW! is best viewed in PDF format.
interpretation NOW! is an internal ATO initiative aimed at improving awareness about statutory interpretation. It is not a public ruling or legal advice and is not binding on the ATO.
Its tax time again! As a result, there is more focus on ATO public guidance and the need to make calls on tax issues and outcomes. Sometimes, this will raise the need for interpretation. Where this occurs, remember to apply ordinary purposive principles. Start and finish with the statutory text this is fundamental. In between, consult context in the widest sense you dont need to first find ambiguity or some other problem. Look at legislative history, extrinsic materials, policy and the mischief. Be careful, however, not to substitute what the explanatory memorandum says for the Act. And dont decide the policy first, then read the statutory words through that lens. Past iNOW! episodes will help you sort out most interpretational issues at tax time.
Gorana Kolundzic Tax Counsel Network
Purpose and text
Justice Susan Glazebrook (2015) article
Purpose is king (or is it?) this is the question posed by Glazebrook J of New Zealand in a recent article1. After referring to the modern purposive approach2, the judge says that (A) purpose is there to help ascertain the meaning of text and not to override or dominate it, and (B) the text is the starting point with purpose as a cross-check. The judge concludes that text should be the starting point ( and thus is king ). The same is true in Australia where the correct approach is text > context > text3. If you start with purpose, there is a risk of distorting the meaning. iTip this is key.
Greater Shepparton CC v Clarke  VSCA 107
Ejusdem generis4 (of the same kind) is an old rule limiting general words, like other, by reference to some common feature (genus) for example, railway, road, pipeline or other facility is confined to facilities on or through which goods move5. Clarke (at [67-69]) notes some limitations however (A) the rule doesnt displace ordinary principles, (B) it conflicts with a trend against reading down general words6, (C) it is not to be applied in an abstract or mechanical way7, and (D) its rarely justified. There is also the problem of correctly identifying the genus (if one exists)8. iTip always consider this rule, but with an eye to caution.
Aubrey v R  HCA 18
The traditional rule says that doubt in penal provisions is resolved in favour of the accused. However, Pearce & Geddes (at [9.8]) call this a somewhat naive approach and, as far back as 1976, it was described as one of last resort9. The true position is more nuanced, with penal consequences being part of the context to which regard must be had10. In Aubrey (at ), the majority said penal statutes are to be construed in accordance with ordinary rules of construction. This continues a consistent message from the High Court that all statutes are to be approached in the same general way for interpretation purposes.
LM Investment Management v EY  QSC 73
This case (at ) refers to a common law rule that, where a repeal is followed by a re-enactment in substantially the same terms, the new provision may be construed to apply retrospectively11. This rule is essentially remedial in nature. It protects the validity of things done under repealed provisions an important thing in practice. Legislation in most jurisdictions nowadays deals with the problem directly for example, s 7 of the Acts Interpretation Act 1901, which applies since 2011 to both repeals and amendments12. However, the common law rule can still be relevant in some state contexts.
§ Writers Gordon Brysland & Gorana Kolundzic.
§ Special thanks Ivica Bolonja & Jeremy Geale.
1 Glazebrook J (2015) 14 Otago Law Review 61.
2 s 5(1) of the Interpretation Act 1999(NZ).
3 Episodes 2, 4 and 7.
4 Apologies for the use of Latin in 2017.
5 Canwan Coals (1974) 4 ALR 223 (at 228).
6 Mattinson  1 NSWLR 368 (at 373), Gas & Fuel  VR 617 (at 620).
7 Clark  NSWCA 91 (at ), Vella  FCAFC 53 (at ).
8 Pearce & Geddes (at [4.28]), Episode 18.
9 Beckwith (1976) 135 CLR 569 (at 576).
10 Alcan  HCA 41 (at ), R v A2 (No 24)  NSWSC 737 (at ).
11 SEQACLS  QSC 88 (at ), Marquet  HCA 67 (at ).
12 Pearce & Geddes (at [6.9]).