Episode 29 27 October 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.
When does failure to comply with statutory conditions invalidate some formal act? In Forrest & Forrest 1, a mineralisation report had not been provided with the application for a mining lease2. It was provided later, however, and it was before the minister3. Whether lateness was fatal depended on purpose, language and consequences. No decisive rule applies, nor is there even a ranking of relevant factors4. Relying also on the need for strict compliance with state resource regimes, a majority held the lease invalid. This was despite a wide irregularities power, lessee prosecution risks, and public confidence angles. The result is surprising, with uncertain consequences inside and beyond the mining sector5. iTip this is an important case.
Gordon Brysland Tax Counsel Network
Koundouris v Owners Unit Plan  ACTCA 36
Planning laws commonly impose warranties for work quality on builders. It was argued that explanatory statements with the Act meant a builder had to be party to the sale contract for warranties to apply6. Here there was an interposed entity. The appeal court said (at ) the explanatory statements were not sufficient to displace the ordinary grammatical meaning, particularly where the position contended for by the builder would neuter the regime. This case is an unsurprising example of the basic principle that extrinsic materials cannot leverage otherwise clear statutory words see Episode 27. iTip remember this!
Joseph v Worthington  VSC 501
A cardinal rule of interpretation has always been to give effect to legislative intent7. This case (at ) reminds us that discovering intention is an objective process ascertained by interpreting the statute. It is not any subjective intention of the legislature which is relevant, but rather the objective meaning of the provisions8. Though some commentators disagree9, the High Court has settled the issue by stating many times that legislative intent is an outcome arising from the application of accepted rules of construction10. iTip the words of the Act itself are the surest guide to legislative intent11.
Ghamrawi v R  NSWCCA 195
Constructional choice is one thing, but statutory words, even when read in their widest context, only stretch so far. Ghamrawi was convicted of break and enter to commit assault12. He had permission to enter, however, and used no trick or threat. Law reform elsewhere had extended the meaning of break, but the position in NSW was governed by general law principles. The court allowed the appeal and ordered a retrial. Extending the meaning of break, it said (at ), should await legislative intervention. Change to stable law like this is best resolved by legislative processes rather than by any extreme exercise in statutory interpretation13.
Oreb v ASIC (No 2)  FCAFC 49
The court (at ) referred to the massive and over complex verbiage of the 2500 page Corporations Act, where professionals and judges must navigate tortuous, mind-numbingly detailed, cascading provisions. These telephone books enacted at huge cost to the community14 raise the need for more principles-based drafting, the court said. This debate has long raged in tax circles, where telephone books are the norm. The reasons here are many historical, legal and cultural. The best way to understand these telephone books is by the correct application of interpretive rules. iTip these rules help ensure you dont get the wrong number.
§ Writers Gordon Brysland and Suna Rizalar.
§ Thanks to Jo Stewart.
1 Forrest & Forrest Pty Ltd v Wilson  HCA 30.
2 s 74(1)(ca)(ii) of the Mining Act 1978 - t hese are often filed late.
3 Forrest & Forrest (at [34-42]).
4 Project Blue Sky  HCA 28 (at ).
5 Ingram AFR (17/8/17), Garvey The Australian (18/8/17).
6 s 58C(1) of the Building Act 1972, s 88(1) of the Building Act 2004.
7 See Episodes 1 and 18.
8 Strano v ACT  ACTSC 4 (at ).
9 Ekins & Goldsworthy (2014) 36 Sydney Law Review 39.
10 Congoo  HCA 17 (at ), Momcilovic  HCA 34 (at ).
11 Alcan  HCA 41 (at ).
12 s 112(1) of the Crimes Act 1900.
13 Roadshow Films  HCA 16 (at ), quoted.
14 cf Rares J  FedJSch 10.