Episode 38 31 July 2018
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.
Episode 37 presented the Possum Case1 as a practical illustration of how to do constructional choice. We emphasised that interpretation turns on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. Two more recent cases progress the learning in this space. The first makes the point that the choice between alternatives is not to be made by recourse to norms external to the statute, like fairness for example2. The second observes that, in legislative scheme situations, the choice should favour promotion of harmony between the statutory texts3. We should endeavour to produce a rational, sensible, efficient and just operation4. iTip these points are valuable further guides for us all.
Gordon Brysland Tax Counsel Network
Aregar v Cox  NTCA 3
When an Indonesian national was prosecuted for fishing in Australian waters, proof of boat location became critical. This turned on a proclamation defining our exclusive economic zone. As a legislative instrument, the proclamation was to be interpreted as if it was an Act of parliament5. This meant context and purpose were central and that every effort should be made to avoid invalidity. It was also to be read to produce the greatest harmony and the least inconsistency6. Applying these principles, the vessel was found to have been in Australian waters. This case shows how context and harmony rules apply to legislative instruments7.
Extent of policy
APRA v TMeffect Pty Ltd  FCA 508
We know that legislation rarely pursues some singular policy at all costs8. It follows that the duty generally to align meaning with legislative purpose9 may be of little help when provisions strike a subtle balance between competing policy objectives. Perry J (at ) says that the question is often not about identifying some general object. It is about how far particular provisions go in pursuit of that object. When bedrock tax law pursues a range of economic and social objectives, the answer can never simply be to tie your answer to the notion that tax laws are there to raise revenue10. iTip not only is this wrong in principle; it can also mask bias.
Commissioner v CLP Power HK  HKCFA 18
Parliament requires constructional choice by reference to best achievement of legislative purpose11. Courts sometimes express concern, however, that this may be taken too far. In this case (at ), a HK court warned against an exorbitantly purposive approach under which the text was given a meaning it was incapable of bearing12. Similarly, our High Court in Esso said that you cannot overcome unintended consequences by giving a provision a meaning parliament did not intend it to have13. Care needs to be taken in determining (A) what meanings are open on the text, and (B) how statutory purpose is to be characterised.
Cole v Minister  FCAFC 66
This case (at ) repeats the caution that digging into legislative history might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers14. It may seem natural enough to want to interrogate the inner motivations of the named policy advisers who conceived and drove the architecture of new provisions. You should resist this temptation.
It is now far beyond argument in Australia that legislative intention has nothing to do with what anybody (or any body) actually intended or believed15. iTip asking policy advisers what was on their mind will only distract you from the real task.
§ Writers Gordon Brysland & Joseph Tranzillo. Producer Suna Rizalar.
1 Friends of Leadbeaters Possum Inc v VicForests  FCA 178.
2 Return to Work Corporation v Robinson  SASCFC 32 (at ).
3 Mohammadi v Bethune  WASCA 98 (at ).
4 Trajkoski WASCA 119 (at [51-52]) cited, cf Episode 9.
5 s 13(1) of the Legislation Act 2003,Agfa-Gevaert (1996) 186 CLR 389 (at 398).
6 Australian Alliance SR Qd 135 (at 161), Pearce & Geddes (at [2.26]).
7 cf Episodes 9, 13 & 28.
8 Nicholls HCA 1 (at ),Palgo  HCA 28 (at ).
9 s 15AA of Acts Interpretation Act 1901.
10 Carr  HCA 47 (at ),Alcan  HCA 41 (at ), cf Episode 6.
11 Generally - Brysland & Rizalar Constructional choice 2018) 92 ALJ 81.
12 China Field (2)  HKCFA 95 (at ),Wai  HKCFA 84 (at ).
13 Esso HCA 54 (at ), cfUFUA VCAT 631 (at ).
14 Wilson  NSWCA 198 (at ), cfAxiak  NSWCA 311 (at ).
15 Episodes 1, 18, 29 & 36.