Statutory interpretation in Australia [Ninth edition.] 9780409350586, 0409350583

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Statutory Interpretation in Australia Ninth Edition

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Previous Editions Statutory Interpretation in Australia, D C Pearce, Butterworths, Sydney, 1974 Statutory Interpretation in Australia, 2nd ed, D C Pearce, Butterworths, Sydney, 1981 Statutory Interpretation in Australia, 3rd ed, D C Pearce & R S Geddes, Butterworths, Sydney, 1988 Statutory Interpretation in Australia, 4th ed, D C Pearce & R S Geddes, Butterworths, Sydney, 1996 Statutory Interpretation in Australia, 5th ed, D C Pearce & R S Geddes, Butterworths, Sydney, 2001 Statutory Interpretation in Australia, 6th ed, D C Pearce & R S Geddes, LexisNexis Butterworths, Sydney, 2006 Statutory Interpretation in Australia, 7th ed, D C Pearce & R S Geddes, LexisNexis Butterworths, Sydney, 2011 Statutory Interpretation in Australia, 8th ed, D C Pearce & R S Geddes, LexisNexis Butterworths, Sydney, 2014

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Statutory Interpretation in Australia Ninth Edition

(previous editions by D C Pearce and R S Geddes) Emeritus Professor Dennis C Pearce AO, FAAL LLB (Adelaide), LLM (ANU), PhD (ANU) Barrister and Solicitor of the Supreme Courts of South Australia and Australian Capital Territory and the High Court Solicitor, Supreme Court of New South Wales Emeritus Professor of Law, Australian National University Consultant, HWL Ebsworth, Lawyers

LexisNexis Butterworths Australia 2019

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LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

ISBN:

9780409350562 (hbk). 9780409350579 (pbk). 9780409350586 (ebk).

© 2019 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Garamond MT Std and Univers LT Std. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Contents Prefacexv Table of Cases xvii Table of Statutes xci Abbreviationsci Chapter 1 Introduction 1 Background 1 Interpretation1 Legislation Defined 1 3 Magnitude of the Task Difficulties for Drafters and Interpreters of Legislation 4 Interpretation of Other Documents 5 Duties of the Courts in Relation to Legislation 6 Court Not Bound by Counsel’s Argument on Interpretation 7 Binding Precedent and the Interpretation of Legislation 8 10 Persuasive Authority of Decisions Interpreting Legislation Factors Influencing Adherence to Previous Interpretations 13 Persuasive Authority of Decisions Interpreting Commonwealth Legislation 14 Persuasive Authority of Previous Interpretations of Uniform Legislation16 Uniform Interpretation of Legislation Enacted to Give Effect to International Agreements 21 Prospective Overruling 22 Relationship Between Legislative Innovation and 23 the Common Law Duty of Executive to Follow Court’s Interpretation of Legislation 25 Preliminary Matters 25 Classification of Acts 25 Parts of a Statute 29 Drafting Style 32 Chapter 2 Approaches to the Interpretation of Legislation 33 Contemporary Approach 33 Discovering the Meaning of Documents 34 Intention of the Legislature 35 Common Law Approaches 38 Background38 Literal Approach 38 v

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Golden Rule 39 Purposive Approach 40 Interpretation in Context 42 Constructional Choice 44 Statutory Requirements 45 Introduction45 Section 15AA and Equivalent Provisions 46 Meaning and Operation of s 15AA and Equivalent Provisions 48 Statements of Purpose in Legislation 50 Inferences of Purpose in Legislation 51 Limitations of Interpretation by Reference to Purpose 53 ‘Strained Construction’ 53 Section 15AA, its Equivalents and Legislative Drafting 55 Australian Capital Territory Equivalent of s 15AA 55 Queensland Equivalent of s 15AA 56 56 South Australian Equivalent of s 15AA Australian Capital Territory, Queensland and Victorian Equivalents of s 15AA and Compatibility with Human Rights 57 Interpretation and International Agreements 57 Interpretation of Legislation Giving Effect to International Agreements57 International Law Interpretive Principles 59 Taxation Cases and International Law 63 65 Interpretation of International Agreements Specific Common Law Principles of Interpretation 66 Status of Common Law Principles 66 General Words to be Given their Primary and Natural Significance 66 General Words to be Given their Legal Meaning 67 67 All Words Have Meaning and Effect Words of Limitation to be Given Effect 69 Correction of Printing and Drafting Errors 69 Modification of ‘and’ and ‘or’ 70 Words Used in Error 70 Disjunctive Interpretation of ‘and’ and Conjunctive Interpretation of ‘or’ 71 Statutory Affirmation that ‘or’ is to be Interpreted Disjunctively 73 Implying Words in Legislation 73 High Court Decision in Taylor v Owners — Strata Plan No 1156475 Consequences of a Particular Interpretation 77 Limits of Argument by Reference to Consequences 80 Interpretation Permitting a Person to Take Advantage of His or Her Own Wrong Resisted 81 Interpretation to Ensure Validity and Attainment of Object of Legislation: Ut Res Magis Valeat Quam Pereat82 Plain English Drafting 83 Interpretation of Legislation Drafted in Plain English 83 vi

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Chapter 3 Extrinsic Aids to Interpretation

85

Interpretation by Reference to Other Documents United States’ Use of Legislative History

Parliamentary, Executive and Related Materials

85 86

87

Common Law Principles Governing Reference to Parliamentary and Executive Materials 87 Uses of Extrinsic Materials in the Interpretive Process 92 Constitutional Convention Debates and Referendum Materials 93 Common Law Principles Governing Reference to International Agreements 94 Section 15AB and Equivalent Provisions 97 Operation of s 15AB and Equivalent Provisions 99 Interpretation by Reference to International Agreements Under s 15AB and Equivalent Provisions 103 104 Australian Capital Territory Equivalent of s 15AB Victorian Equivalent of s 15AB 105 Limitations on the Uses of Extrinsic Material 106 Practice Directions Relating to Proposed Reliance on Extrinsic Material 110 Other Extrinsic Materials 110 Possible Application of s 15AB and Equivalent Provisions to Other Extrinsic Materials 110 Dictionaries110 Prior Statutory Provisions 113 Repealed Provisions 115 Subsequent Amending Acts 116 Interpretation where Parliament Takes View of Meaning of Act 118 Similar Acts — General 119 Definitions in Like Legislation 121 122 Reference to Legislative Scheme Legislation Enacted Pursuant to Cooperative Federalism Schemes 124 Reference to Delegated Legislation for Purpose of Interpreting Act 124 Reference to Regulations that are to be Treated as if Enacted in Act 127 Re-Enactment of Provision After Judicial Decision as to Meaning 127 Chapter 4 Intrinsic or Grammatical Aids to Interpretation Introduction Act to be Read as a Whole Context where Act Divided into Parts Order in which Sections to be Read Words are Assumed to be used Consistently Words to be Interpreted in Accordance with their Ordinary and Current Meaning Interpretation of Composite Phrases

136

136 136 140 140 141 146 148

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Legislation Deemed to be Always Speaking 149 Interpretation of Legal Technical Words 156 Interpretation of Non-Legal Technical Words 158 Words to be Interpreted in Accordance with their Customary Usage 162 Interpretation Having Regard to Nature of Instrument 163 De Minimis Non Curat Lex: The Law Does Not Pay Heed to Trifling Matters 165 Syntactical Presumptions 165 Introduction165 Noscitur a Sociis: The Meaning of a Word or Phrase is to be Derived from its Context 166 Ejusdem Generis: General Matters are Constrained by Reference to Specific Matters 167 Superior Class Limitation 174 Expressio Unius Est Exclusio Alterius: An Express Reference to One Matter Indicates that Other Matters are Excluded 174 Expressum Facit Cessare Tacitum178 Generalia Specialibus Non Derogant: Where there is a Conflict between General and Specific Provisions, the Specific Provisions Prevail 181 Later Section Prevails over Earlier 183 Reddendo Singula Singulis: Where Two or More Subjects are Qualified by Two or More Matters, the Qualifications Attach to the Subjects in the Order in which they Appear 184 Hendiadys184 Device of ‘Deeming’ 185 Framework of the Act 188 Introduction188 Long Title 189 Short Title 190 Preamble191 Statement of Intention or Objects Clause 192 Part and Division Headings 194 Schedules196 Provisos197 Marginal Notes and Headings to Sections 199 Notes Generally 201 Examples203 Punctuation203 Paragraphing of Sections 205 Tenses206 Chapter 5 Legal Assumptions: Principle of Legality Introduction Application and Displacement of Legal Assumptions Rights Falling within Principle of Legality

207

207 211 214

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Fundamental Rights and Principles Presumption that Law is Constitutional Legislation is Presumed Not to have Extraterritorial Effect General Words are Presumed Not to Extend to Cases Governed by Foreign Law Crown Presumed Not to be Bound by Statutes Legislation is Presumed Not to Limit Prerogative Powers or Property Rights of Crown Legislation is Presumed Not to Impose Penal Sanctions on the Crown Legislation is Presumed Not to Interfere with Equality of Religion Legislation is Presumed Not to Violate the Rules of International Law Legislation is Presumed Not to Alienate Vested Proprietary Interests without Adequate Compensation Legislation is Presumed Not to Interfere with Vested Proprietary Interests Statutory Rights and Presumption Against Interference with Vested Proprietary Interests Statutory Exemption for Government Bodies Narrowly Construed Conferral of Power Carries Power of Performance Minister May Delegate Power: The Carltona Principle Legislation is Presumed Not to Operate Retrospectively Legislation is Presumed Not to Alter Common Law Doctrines: Legislation is Presumed Not to Invade Common Law Rights Statements of Presumption Against Alteration of Common Law Doctrines Statements of Presumption Against the Invasion of Common Law Rights Upholding of Statutory Rights Legal Representation Legislation is Presumed Not to Oust Established Jurisdictions Investment of a Court with Jurisdiction is Intended to Include all the Procedure of the Court If Legislation Includes a Remedy for Breach No Other Remedy is Available The Future of the Principle of Legality Human Rights Acts Introduction Relationship Between Human Rights and Presumptions

Table of Principles, Rights and Privileges Recognised by Courts

216 217 218 221 223 227 227 227 227 229 230 232 233 234 236 236

236 237 243 245 246 246 248 250 250

252 252 253

255

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Chapter 6 Interpretation Acts and Sections 261 Introduction 261 Contrary Intention 261 Interpretation Sections 262 Interpretation of Definitions 262 General Issues 263 Use of Expressions ‘Means’ and ‘Includes’ 265 Other Definitional Forms 270 Derivatives of Definitions 271 Definitions to Apply ‘Unless the Contrary Intention Appears’ 271 Definitions Not to be Treated as Substantive Provisions 274 Amendment of Definitions 274 Chapter 7 Interpretation of Repealing Acts, Amending Acts and Acts Incorporating Other Legislation 275 Repealing Acts 275 Distinction Between Repealing and Amending Provisions 275 Classification of Provision that Limits Section Amended 277 Effect of Classifying Provision as ‘Repealing’ or ‘Amending’ 278 Invalidity of Repealing Legislation 279 Repeal of Imperial Act 280 Date of Effect of Repealing Statute 280 Expired Act 281 Reference to Repealed Legislation for Interpretation Purposes 281 Implied Repeal By Later Statute 281 Later Acts Repeal Earlier Inconsistent Acts 281 Reference to ‘Repeal’ 282 Limitation on Implication of Repeal 283 Test of Inconsistency 285 Application of Implied Repeal Approach: Different Penalties 285 Test of Reading Competing Acts Together 286 Attempts to Limit Later Legislation 287 Implied Repeal of Imperial Act 287 Implied Repeal: Delegated Legislation 288 Overriding of State Act by Commonwealth Act 288 General Provision Does Not Impliedly Repeal Specific Provision: Generalia Specialibus Non Derogant 289 Amending Acts 292 Introduction 292 Reference to ‘this Act’ 295 Statute Law Revision Acts 295 Amendment of Imperial Act 296 Acts Incorporating Other Statutory Provisions 296 Introduction 296 Unnecessary for Incorporated Act to be in Force for the Incorporating Provision to be Effective 297 Incorporation of Unconstitutional Provisions 297 Date of Effect of Incorporation 298 x

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Incorporated Provisions May Have to be Adapted to Fit into Incorporating Act Problems of Interpretation in Incorporated Acts Interpretation of Incorporated Definitions Chapter 8 Interpretation of Consolidating, Reprinted and Codifying Acts Consolidating Acts Introduction Consolidating Act Assumed Not to Change Law Date of Effect of Consolidating Act Reference to Earlier Acts for Purpose of Interpreting Consolidation Reprinted Acts Codifying Acts Introduction Reference to Prior Law Authority for Differing Approaches to Interpretation of Codes Application of Differing Approaches to Interpretation of Codes Developments in Law Since Enactment of Code Code to be Read by Citizens

298 298 300 301

301 301 301 302 303

305 306 306 307 307 309 310 311

Chapter 9 Interpretation of Remedial, Penal and Fiscal Provisions312 Introduction 312 Remedial or Beneficial Provisions 313 Remedial or Beneficial Provisions to be Interpreted Liberally 313 Intended Subject of Benefit 319 Excepting Provisions 320 320 Difficulties where Act both Beneficial and Penal Protective Provisions 321 Penal Provisions 322 Former Approach to Interpretation of Penal Provisions 322 Present Approach to Interpretation of Penal Statutes 323 Words of Penal Provision Strictly Adhered to 325 Inability to Comply with Penal Provision 326 Penal Jurisdiction 327 Construction of Penal Provision Does Not Have to Favour Defendant 327 Provisions Imposing Pecuniary/Civil Penalties 328 Subsidiary Rules Relating to Penal Statutes 328 Extraterritorial Operation 328 Crown Not Liable to Criminal Penalty 329 Second or Subsequent Offences 329 Corporations and Crimes 330 Offender Not to be Punished Twice for Same Offence 331 xi

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Retrospective Operation of Penal Provisions Self-Incrimination Absolute Offences Meaning of ‘Not Less Than’ Penalty Meaning of ‘Liable to’ Failure to Specify Penalty Multiple Offenders Fixed or Mandatory Penalties Continuing Offences and Penalties Length of Concurrent Sentences Proof Provisions Penal Provisions and Civil Actions

332 335 336 336 337 337 337 337 337 339 340 340

Interpretation of Other Acts Affecting Rights and  Liberties of Subject

341

General Search Warrants Provisions Relating to the Forfeiture of Goods Taxing or Fiscal Provisions Approach to Interpretation of Taxing Provisions Application of Approach to Interpretation of Taxing Acts Generally Tax Must Not be ‘Arbitrary’ Tax Must be Contestable Retrospectivity and Tax Acts GST Legislation Provisions Relating to Tax Avoidance Schemes Assumption that Words are Used Consistently Meaning of Words in Tax Legislation Similar Acts Discretion in Assessment of Tax Exemption and Exception Provisions Objection and Review Provisions Obligation to Pay Implies Right of Recovery

341 342 343

344 344 347 348 348 349 349 350 353 353 353 353 354 356 356

Chapter 10 Retrospective Operation of Legislation General Assumption that Legislation is Not Retrospective Distinction between Commencement and Retrospective Operation of Legislation Meaning of Retrospective Operation Future Operation Based on Past Events Rights or Obligations Must be Affected before Presumption can Arise Result of Holding Act to have Retrospective Operation Rationale of Presumption Against Retrospectivity Power of Parliament to Pass Retrospective Legislation Retrospectivity of Delegated Legislation Presumption Against Retrospectivity Rebuttable

357

357 357 359 359 360 363 364 364 365 367 368

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Retrospectivity in Relation to Particular Classes of Act

369

Declaratory Acts Validating Acts Amending Acts: General Amending Acts Expressed to Operate ‘After the Commencement of this Section’ Definitions International Treaties Penal Provisions Tax Legislation Procedural Statutes Summary Effect of Procedural Statute that Revives Cause of Action Interpretation Act Provisions

369 371 373 374 374 375 375 375 375 385 385 386

Chapter 11 Obligatory and Discretionary Provisions General Problems of Classification Discussion of Cases Duties And Powers Consequences of Interpretation to be Considered Provisions May be Discretionary in One Respect but Obligatory in Another Affirmative Words Prima Facie Impose a Duty: Permissive Words Prima Facie Grant a Discretion Investment of Public Officers Including Courts with a Discretion Power Granted to Public Officer May be Discretionary Power Granted to Court: Authority to Exercise Jurisdiction Usually Obligatory Power Granted to Court: General Powers Discretionary Exercise of Power to Grant Relief Usually Discretionary Factors Affecting Decision Whether Obligatory or Discretionary Interpretation Act Provisions Examples of Rulings of Court Obligation to Exercise Discretion Consequences of Breach of Obligatory Provisions Necessity for Compliance with Procedural Requirements Consequences Determine Interpretation Provisions May Produce Invalidity in One Respect but Not in Another Affirmative Words Less Likely to Produce Invalidity for Non-Compliance than Negative Words Private Actions More Likely to Produce Invalidity than Public Actions

387

387 387 388

388 388 389 390 390 392 393 394 395 395 396 396 399

400 400 400 402 402 403

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Ability to Control Procedure May Determine Whether Non-Compliance Produces Invalidity Provisions Setting Out Protections for Persons Affected Usually Result in Invalidity if Not Complied with Enactments Relating to Court Procedure Time Limits Compliance with Requirements for Making Legislation Impossibility of Compliance Defence to Obligatory Requirement Waiver of Rights Under Obligatory Provision Compliance with Forms Nature of Compliance with Procedural Requirements Summary of Present Position De Minimis Approach

403

404 405 407 408 408 409 410 410 415 416

Chapter 12 Drafting Conventions and Expressions Drafting Conventions Drafting Conventions Which May Affect Understanding of Legislation Drafting Expressions Expressions Denoting Connection or Relationship Temporal Expressions Miscellaneous

417

Annexure 

437

417 417

419 419 429 431

Index469

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Preface Three matters have been significant to the production of this new edition. First, and most importantly, my dear friend and co-author for the previous six editions, Professor R S (Harry) Geddes, has retired. As a result I have written this edition on my own. I have greatly missed Harry’s personal contribution to the text, his input to the production of the book overall and his wide knowledge of statutory interpretation. Second, in 2018 I published Interpretation Acts in Australia. The extended treatment in that book of the content and operation of the nine Interpretation Acts that condition the interpretation of legislation in the various Australian jurisdictions incorporated some material formerly included in this book. That material has accordingly been omitted from this edition and reference made to the relevant consideration of the topics in the Interpretation Acts book. Chapter 6 as appearing in the previous editions of this book has been much reduced. Third, the number of judicial decisions involving a statutory interpretation issue continues to grow. I had become aware that the need to provide users with reference to these decisions was affecting the readability of the text. To deal with this issue I have added an Annexure to the book setting out citations of cases and relevant writings. As a rule of thumb, where there are more than three citations relating to a topic they are set out in the Annexure rather than in the text. Writing on statutory interpretation, particularly by academics and by present and former judges, has increased markedly in the last decade. From being a neglected area of law, it has moved to the forefront of consideration. Regrettably it is still not given the prominent place that it deserves in most Law School curricula. I have included references to many more articles and other writings on the topic in this edition than previously appeared. Nonreference should not be seen as a judgment on the merit of a contribution so much as a failure on my part to identify the piece. As in the past, I am greatly indebted to people who have drawn my attention to cases and other material that warrant inclusion in the book. The difficulty of identifying what are often passing but valuable references to interpretation issues is endemic to the subject. I should like to mention in particular, Assistant Commissioner Gordon Brysland, FAAL, who, together with his team in the Australian Taxation Office who produce the publication ‘Interpretation Now’, has provided much useful and insightful commentary. For their kindness in drawing my attention to valuable material and providing xv

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me with comments on the last edition I wish to thank Jacinta Dharmananda, Deane Jarvis and Stephen Argument. Mary-Jane Oliver has provided her customary professional editorial assistance that I have come to depend on. And once again I acknowledge Diana’s patience, forbearance and support for me in bringing this, my 20th book, to completion. The law is stated as available to me on 20 June 2019. D C Pearce ANU College of Law Australian National University July 2019

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Table of Cases References are to paragraphs References with the prefix ‘A’ refer to the Annexure

2 Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 7394 (2014) 88 NSWLR 488; 324 ALR 142; [2014] NSWCA 409 …. 3.33 4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 …. 4.30

A A v Boulton (2004) 136 FCR 420; 207 ALR 342; [2004] FCAFC 101 …. 5.38 A Legal Practitioner v Law Society of Tasmania (2005) 13 Tas R 448; [2005] TASSC 28 …. A2.43 A2 v Australian Crime Commission (2006) 155 FCR 456; 235 ALR 264; [2006] FCAFC 147 …. 9.40 AAT Case 21/96; No 10,716 (1996) 32 ATR 1132 …. 4.31 AB v Western Australia (2011) 244 CLR 390; 281 ALR 694; [2011] HCA 42 …. 9.2, 9.5 AB an Infant, Re [1950] VLR 1 …. 4.79 AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296; 107 ALD 591; [2009] FCA 119 …. 5.60 Abblitt v Anti-discrimination Commissioner (2016) 24 Tas R 18; [2016] TASSC 12 …. 9.5 Abdi v Release on Licence Board (1987) 10 NSWLR 294; 31 A Crim R 436 …. 3.46 Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 60 ALJR 190; 63 ALR 161 …. 7.17 Abletone Pty Ltd v Bonview (Tas) Pty Ltd [2008] TASSC 59 …. A2.47

Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565; 139 ALR 577 …. 4.64 Accident Compensation Commission v Murphy [1988] VR 444 …. 11.2, A11.23, 11.25, A11.35 Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 …. A3.38, A9.3 Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 …. 1.8, A3.48, 4.9 Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; 114 ALR 355 …. 9.5 Achurch v R (2014) 253 CLR 141; 306 ALR 566; [2014] HCA 10 …. 5.60 ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161 …. 2.60 Adams v Lambert (2006) 228 CLR 409; 225 ALR 396; [2006] HCA 10 …. 11.24 Adan v Secretary of State for the Home Department [1999] 1 AC 293; [1998] 2 All ER 453 …. 1.23 AD v Commissioner of Australian Federal Police [2018] NSWCA 89; (2018) 357 ALR 148 ….A9.36 ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; 308 ALR 213; [2014] HCA 18 …. 10.1, 9.3, 10.4 Adler v George [1964] 2 QB 7 …. 2.8 Administrator-General of Bengal v Prem Lal Mullick (1895) LR 22 Ind App 107 …. 8.4 Aerial Capital Group Ltd v Australian Capital Territory (2013) 217 FCR 153; 308 ALR 394; [2013] FCA 1411 …. 5.29 xvii

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Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 …. 9.53 Agripower Australia Ltd v J & D Rigging Pty Ltd [2013] QSC 164 …. 9.5 AGU v Commonwealth (No 2) (2013) 86 NSWLR 348; 306 ALR 42; [2013] NSWCA 473 …. 5.12, 5.18, 5.19 Agua Marga Pty Ltd v Minister of State for the Interior (1973) 22 FLR 136 …. 4.49 Ah Hing v Hough (1926) 28 WALR 95 …. 10.31 Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; 272 ALR 417; [2010] HCA 42 …. 4.16 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; [1992] HCA 10 …. 4.45, 4.46, 5.6 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; 167 ALR 392; [1999] HCA 62 …. 12.9, A12.7 — v Monarch Airlines Ltd (1998) 152 ALR 656 …. 4.56 AIT18 v Australian Information Commissioner (2018) 363 ALR 281; [2018] FCAFC 192 …. 5.5, A9.3 Ajinomoto Co Inc v NutraSweet Australia Pty Ltd (2008) 166 FCR 530; 247 ALR 552; [2008] FCAFC 34 …. A2.43, A3.39 Akar v Attorney-General of Sierra Leone [1970] AC 853 …. 7.33 Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 241; 73 ALD 609; [2003] FCAFC 70 …. A3.12 Alcan Australia Ltd, Re; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; 123 ALR 193; [1994] HCA 34 …. 3.52, 3.58 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; 260 ALR 1; [2009] HCA 41 …. 2.38, 3.6, 3.7, 9.12, 9.43, A2.22 Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority (2007) 18 VR 146; [2007] VSCA 210 …. 3.24

Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 …. A3.5 Alfonso v Northern Territory (1999) 131 NTR 8; 153 FLR 286; [1999] NTSC 117 …. 3.43 Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253; 194 ALR 37; [2001] FCA 1884 …. 1.12 Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 …. 3.13, 5.3, 5.5, 5.24, 9.39, A3.14 Allen v Emmerson [1944] KB 362 …. 4.37 — v Feather Products Pty Ltd (2008) 72 NSWLR 597; 216 FLR 263; [2008] NSWSC 259 …. 12.26 Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25; 94 LGERA 330 …. A5.31 Alinta Asset Management Pty Ltd v Essential Services Commission (2008) 22 VR 275; [2008] VSCA 273 …. A2.19, A2.20 Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 …. A3.45 Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090 …. 3.48 — v GSF Australia Pty Ltd (2005) 221 CLR 568; 215 ALR 385; [2005] HCA 26 …. 6.3, 12.16 Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203; 99 ALR 295 …. 3.39, 3.40 Allman v Country Roads Board [1957] VR 581 …. 10.26 Altrincham Union v Cheshire Lines Committee (1885) 15 QBD 597 …. 1.29 Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164 …. 9.5 — v Novek [2009] NSWCA 50 …. 3.30 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129; [1920] HCA 54 …. 2.6, 2.11

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Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409; 54 ALR 57 …. 7.36 — v — (1989) 88 ALR 287 …. 5.60, 11.24 Amalgamated Wireless (A’sia) Ltd v Philpott [1961] HCA 31; (1961) 110 CLR 617 …. A3.38 Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527; 92 ALR 601 …. 12.19 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; 112 ALR 1; [1993] HCA 16 …. 4.60, A4.60 American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; 37 ALR 613; [1981] HCA 65 …. 5.35, 5.60 Amerind Pty Ltd, Re (2017) 320 FLR 118; 121 ACSR 206; [2017] VSC 127 …. 1.17, 3.36 Ametex Fabrics Inc v C & F Fabrics Pty Ltd (1992) 38 FCR 415; 111 ALR 565 …. 3.21 Amohanga v Minister for Immigration and Citizenship (2013) 140 ALD 68; [2013] FCA 31 …. 3.13 Amos v Brisbane City Council [2006] 1 Qd R 300; [2005] QCA 433 …. 3.18 Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (2018) 351 ALR 436; [2018] FCAFC 6 …. 11.7 Anderson v Building Appeals Board [2017] VSC 415 …. A4.44 — v Commissioner of Taxes (Vic) (1937) 57 CLR 233; [1937] HCA 24 …. 9.42 — v Inland Revenue Commissioners [1939] 1 KB 341 …. 9.45 Anglican Care v NSW Nurses and Midwives’ Association (2015) 231 FCR 316; [2015] FCAFC 81 …. 2.15 Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 …. 5.6 Anstis v Secretary, Department of Social Security (1999) 94 FCR 421; 59 ALD 706; [1999] FCA 1176 …. 4.10 Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 …. 4.47, 7.23



Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (Maurice) (1987) 15 FCR 565; 74 ALR 77 …. 5.27 Antico v Fielding Australia Pty Ltd (1997) 188 CLR 652; 146 ALR 385; [1997] HCA 35 …. 9.5 Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40; 303 ALR 406; [2013] FCAFC 95 …. 6.12 Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (Maurice) (1987) 15 FCR 565; 74 ALR 77 …. A4.44 Apache Northwest Pty Ltd v Agostini (2009) 177 FCR 449; 256 ALR 56; [2009] FCA 534 …. 5.60 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; [1997] HCA 4 …. 2.33, 2.37 Application by Carl Zeiss Pty Ltd, Re [1969] HCA 17; (1969) 122 CLR 1 …. A3.59 Application of Fourth South Melbourne Building Society, Re (1883) 9 VLR (E) 54 …. 6.12 Applications of Foster, Re [1982] 2 NSWLR 481 …. 9.5 Applications of Shephard, Re [1983] 1 NSWLR 96 …. 7.12 Arachchi v Orlowski [2003] VSC 161 …. 9.39 Archbishop of Canterbury’s Case (1596) 2 Co Rep 46a; 76 ER 519 …. 4.42 Armitage v Stewart (1907) 7 SR (NSW) 645 …. 9.5 Armstrong v Edgecock [1984] 2 NSWLR 536 …. 3.36, A3.36 Armstrong, Ex parte; Fahey, Re (1902) 2 N & S (Tas) 104 …. 4.16 Armstrong, Ex parte; Hughes, Re (1963) 80 WN (NSW) 566 …. 4.58 Armytage v Wilkinson (1878) 3 App Cas 355 …. 9.56 Arnold v Neilsen (1976) 9 ALR 191 …. 9.24 Asciano Services Pty Ltd v Commissioner of Taxation (2009) 174 FCR 140; [2009] FCAFC 28 …. 9.4 xix

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Ashe v Sorrento Hotel Pty Ltd [1951] VLR 214 …. 8.4 Ashfield Municipal Council v Joyce [1978] AC 122 …. A4.21 Assaf v Australian Electoral Commission [2004] FCAFC 265; (2004) 139 FCR 370; 212 ALR 337 …. A11.20 Assam Railways and Trading Co Ltd v Inland Revenue Commissioners [1935] AC 445; [1934] All ER Rep 646 …. 3.4 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638; [2013] HCA 7 …. 5.49 Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353; [1974] 1 NSWLR 681 …. 2.41, 7.22, 7.24 Associated Newspapers Ltd v Wavish (1956) 96 CLR 526; [1956] HCA 69 …. 2.49 Associated Pulp and Paper Mills Ltd v Bramich [1960] Tas SR 165 …. 10.16 Associated Steamships Pty Ltd v Hore (1995) 61 FCR 506; 132 ALR 619 …. 7.31 Athlumney, Re; Ex parte Wilson [1898] 2 QB 547 …. 10.1 Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1987) 13 FCR 199; 70 ALR 613 …. 12.27 Attorney-General v Brown [1920] 1 KB 773 …. 4.35 — v Kernahan (1981) 28 SASR 313 …. 5.52 — v Lamplough (1878) 3 Ex D 214 …. 1.48, 3.37 — v Prince Ernest Augustus of Hanover [1957] AC 436; [1957] 1 All ER 49 …. 2.19, 3.5, 4.2, 4.62 — v Tichy (1982) 30 SASR 84 …. 9.35 Attorney-General (Cth) v Foster (1999) 84 FCR 582; 161 ALR 232 …. 1.7 — v Oates (1999) 198 CLR 162; 164 ALR 393; [1999] HCA 35 …. 12.4 Attorney-General (Cth), Re; Ex parte Skyring (1996) 135 ALR 29; [1996] HCA 4 …. 5.49

Attorney-General (NSW) v Brewery Employees Union of New South Wales (1908) 6 CLR 469; [1908] HCA 94 …. 4.21 — v Hill and Halls Ltd (1923) 32 CLR 112; [1923] HCA 22 …. 8.2 — v Tillman [2007] NSWCA 119 …. 11.10 — v XY [2014] NSWCA 466 …. 4.3 Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 …. 4.46 Attorney-General (NT) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 …. A5.44 Attorney-General (Qld) v Lawrence (2013) 306 ALR 281; [2013] QCA 364 …. 7.26 Attorney-General (SA) v Bell (2013) 117 SASR 482; 303 ALR 644; [2013] SASCFC 88 …. A3.8 — v Corporation of the City of Adelaide (2013) 295 ALR 197; [2013] HCA 3 …. 5.60 Attorney-General (Vic) v Commonwealth (‘Pharmaceutical Benefits Case’) (1945) 71 CLR 237; [1945] HCA 30 …. 5.11 — v Craig [1958] VR 34 …. 10.26 Attorney-General (Vic); Ex rel Black v — (1981) 146 CLR 559; 33 ALR 321; [1981] HCA 2 …. 5.23 Attorney-General (Vic) (Ex rel McKellar) v — (1977) 139 CLR 527; 12 ALR 129; [1977] HCA 1 …. 7.4 Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67 …. 7.1 Attorney General for New South Wales dated 4 April 2014, The Application of the (2014) 341 ALR 340; [2014] NSWCCA 251 …. 5.60 Attorney-General for Tasmania v L, C [2018] TASFC 6 …. 4.18, 9.3, 9.5 Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; 223 ALR 346; [2005] NSWCA 261 …. 10.1, 10.8, 10.34, 10.14 Attorney-General; Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 …. 11.23 xx

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Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1 …. 10.27, 10.31 Attorney-General’s Reference No 1 of 2004, Re (2005) 13 Tas R 395; [2005] TASSC 10 …. 10.31 Aubrey v R (2017) 260 CLR 305; 343 ALR 538; [2017] HCA 18 .... 4.18, 4.20, 9.11 Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1; 115 ALR 14 …. A3.38 Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 …. A3.14 Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 40 FCR 59; 111 ALR 671 …. 4.2 Australia & New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268; 119 ALR 727 …. 3.29, A3.5 Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135 …. 2.43 Australian and Department of Families, Community Services and Indigenous Affairs, Re (2006) 92 ALD 179; [2006] AATA 755 …. 12.14 Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311; [1910] HCA 53 …. 2.8 Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; 84 ALR 199; [1989] HCA 15 …. 11.34, A11.23 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; [1990] HCA 33 …. 4.33, 9.5 — v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; 60 ALR 756 …. 12.31 Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242; 114 ALR 50 …. 2.15 Australian Capital Territory v Pinter (2002) 121 FCR 509; 134 A Crim R 1; [2002] FCAFC 186 …. 10.10 Australian Capital Territory (Chief Minister’s Department) v Coe (2007) 208 FLR 448; [2007] ACTSC 15 …. 3.56, 3.58



Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199; 258 ALR 254; [2009] FCA 754 …. A9.17 Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission (2005) 146 FCR 413; 224 ALR 344; [2005] FCAFC 221 …. 12.8 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512; [2007] HCA 38 …. 5.17 — v Daniels Corporation International Pty Ltd (2001) 108 FCR 123; 182 ALR 114; [2001] FCA 244 …. 4.16 — v Metcash Trading Ltd (2011) 198 FCR 297; 284 ALR 662; [2011] FCAFC 151 …. 12.31 — v P T Garuda Indonesia Ltd (2010) 269 ALR 98; [2010] FCA 551 …. 12.9 — v PRK Corporation Pty Ltd [2009] FCA 715 …. A9.17 — v Qantas Airways Ltd [2008] FCA 1976; (2008) 253 ALR 89 …. A9.17 — v Telstra Corporation Ltd (2009) 176 FCR 203; 256 ALR 615; [2009] FCAFC 68 …. 4.25 — v Wordplay Services Pty Ltd [2004] FCA 1138; (2004) 210 ALR 562 …. A9.8 — v Yazaki Corporation (2018) 357 ALR 55; [2018] FCAFC 73 …. 9.17 Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540; 88 ALD 642; [2006] FCAFC 30 …. A2.43 — v Marrapodi (2012) 42 WAR 351; [2012] WASCA 103 …. 1.17 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; 285 ALR 27; [2012] HCA 3 …. 2.23, 3.27, A3.27 — v General Manager of Fair Work Australia (2012) 246 CLR 117; 286 ALR 625; [2012] HCA 19 …. 10.1, 10.9, 10.13 — v Victoria (2015) 239 FCR 461; 333 ALR 1; [2015] FCA 119 …. 10.9 xxi

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— v Department of Education and Children’s Services (2012) 248 CLR 1; 285 ALR 27; [2012] HCA 3 …. 10.1 Australian Federation of Construction Contractors, Re; Ex parte Billing (1986) 68 ALR 416; [1986] HCA 74 …. 3.17 Australian Forge and Engineering Co Ltd v Wollaston (1900) 26 VLR 414 …. A9.56 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCAFC 183; [2013] 130 FCR 524 …. 2.13, A2.19 Australian Investment and Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69 …. 2.12, 9.44 Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13 …. 10.25 Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 …. 10.23 Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 46 …. 4.11 Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; 321 ALR 155; [2015] FCAFC 45 …. 12.29 Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 363 ALR 343; [2018] FCAFC 223 …. 2.1, A2.22, A2.43 Australian Mutual Provident Society v Commissioner of Taxes [1917] St R Qd 117 …. A9.45 Australian National Airlines Commission v Newman (1987) 162 CLR 466; 70 ALR 275; [1987] HCA 9 …. 5.30 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29; [1945] HCA 41 …. 7.4 Australian Native Landscapes Pty Ltd v Collector of Customs (1997) 44 ALD 531 …. 4.27

Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 …. 7.14 Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; 143 LGERA 218; [2005] VSCA 295 …. A2.43 Australian Postal Corporation v Forgie (2003) 130 FCR 279; 202 ALR 63; [2003] FCAFC 223 …. 9.2, 9.5 — v Sinnaiah (2013) 213 FCR 449; 136 ALD 536; [2013] FCAFC 98 …. 4.4, 5.46, A2.22 Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521; [2000] FCA 579 …. 4.65 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; 228 ALR 28; [2005] FCA 1707 …. 4.25 Australian Retirement Homes Ltd v Ash [2013] QCA 355 …. 4.64 Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; 263 ALR 411; [2009] FCAFC 185…. 4.52 — v Banovec (No 2) (2007) 214 FLR 33; [2007] NSWSC 961 …. A5.31 — v Chats House Investments Pty Ltd (1996) 71 FCR 250; 142 ALR 177 …. 4.52 — v Citrofresh International Ltd (2007) 164 FCR 333; 245 ALR 47; [2007] FCA 1873 …. 12.9 — v DB Management Pty Ltd (2000) 199 CLR 321; 169 ALR 385; [2000] HCA 7 …. 5.25 — v Healey (No 2) (2011) 196 FCR 430; 284 ALR 734; [2011] FCA 1003 …. A9.17 Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93; 138 ALR 655 …. 9.9 — v Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531; 139 ALR 527 …. A12.7 — v Bell (1991) 32 FCR 517; 104 ALR 125 …. A5.31 — v Kippe (1996) 67 FCR 499; 137 ALR 423 …. 5.38, 9.9 xxii

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— v MacLeod (No 2) (1993) 40 FCR 461 …. 12.21 — v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627; [1993] HCA 15 …. 1.16, 1.18, 1.19, 1.20, 1.22 — v Nomura International PLC (1998) 89 FCR 301; 160 ALR 246 …. 12.30 Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; 70 ALD 1; [2002] FCA 1127 …. 2.57, 2.60, 4.30 Australian Telecommunications Commission v Bartley (1988) 20 FCR 475; 84 ALR 261 …. 11.8, 11.15 — v Colpitts (1986) 12 FCR 395; 67 ALR 301 …. A4.9 — v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 …. 12.30 Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 …. 2.10, 2.23, 3.29 Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 …. 4.33 Awada v Linknarf Ltd (in liq) (2002) 55 NSWLR 745; [2002] NSWSC 873 …. 4.65 Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 …. A3.10 Azzopardi v South Johnstone Co-operative Sugar Milling Association Ltd [1953] St R Qd 120 …. 10.30

B B v B [1961] 2 All ER 396 …. 11.2, 11.19 — v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 …. A11.22, A11.35 — v T [2008] 1 Qd R 33; [2007] QSC 55 …. 5.14 Baba v Parole Board of New South Wales (1985) 5 NSWLR 338 …. 4.45 Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; 71 ALR 225; [1987] HCA 19 …. 1.12, 1.14, 1.15, 1.24, 4.15 Bahar v R (2011) 45 WAR 100; 255 FLR 80; [2011] WASCA 249 …. 1.17



Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; 286 ALR 421; [2012] HCA 14 .... 12.32 Bail by Islam, Re Application for (2010) 175 ACTR 30; [2010] ACTSC 147 …. 5.57 Bailey v Bailey (1884) 13 QBD 855 …. 5.52 Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569; 113 ALD 70; [2010] FCAFC 2 …. 7.25 Baini v R (2012) 246 CLR 469; 293 ALR 472; [2012] HCA 59 …. 3.6, 3.7, A3.52 Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 …. 10.8, 10.12 — v Markellos (2012) 114 SASR 379; [2012] SASCFC 114 …. A4.57 — v R (2012) 245 CLR 632; 289 ALR 614; [2012] HCA 27 …. 1.25 — v Stewart [1980] VR 17 …. 9.24, 9.26, 10.5 Baldwin, Re (1891) 12 LR (NSW) 128 …. A4.71 Balog v Independent Commission Against Corruption (1990) 169 CLR 625; 93 ALR 469; [1990] HCA 28 …. 4.46, 5.35, 5.60 Bank of England v Vagliano Bros [1891] AC 107 …. 8.9 Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233; 125 ALR 605 …. A1.12 Bank Officials Association (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276; [1923] HCA 25 …. A7.20 Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391; [1932] HCA 52 …. 5.12, 5.15 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; [2011] FCAFC 14 …. A4.64, 9.5, 12.11 Barker v Barker (1976) 13 ALR 123 …. 2.47 Barnfield v Calandro [1964] VR 162 …. 9.37

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Barns v Barns (2003) 214 CLR 169; 196 ALR 65; [2003] HCA 9 …. 3.57, 9.5 Barraclough v Brown [1897] AC 615 …. 4.47, 5.50 Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 …. 3.52 Barratt v Howard (1999) 165 ALR 605; [1999] FCA 1132 …. 4.45 — v — (2000) 96 FCR 428; 170 ALR 529; [2000] FCA 190 …. 5.60 Barrenger v Coward [1965] Tas SR 243 …. 11.15 Barrett v Thurling [1984] 2 NSWLR 683 …. 4.11 Barry R Liggins Pty Ltd v ComptrollerGeneral of Customs (1991) 32 FCR 112; 103 ALR 565 …. 3.22 Barten v Williams (1978) 20 ACTR 10 …. 5.51 Barton v Commonwealth (1974) 131 CLR 477; [1974] HCA 20 …. 5.21 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 …. 5.20, A4.44 Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243; [1963] HCA 51 …. 3.19 Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378 …. 4.3, A9.36 Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 1 NSWLR 479 …. 7.33 Baverstock and Repatriation Commission, Re (2008) 102 ALD 682; [2008] AATA 467 …. 9.5 Bawn Pty Ltd v Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823 …. 10.14 Baxter v Commissioners of Taxation, NSW (1907) 4 CLR 1087; [1907] HCA 76 …. 5.21 Bayliss, Re; Ex Parte Hadotone Pty Ltd v Official Trustee in Bankruptcy (1987) 15 FCR 91; 75 ALR 57 …. 5.60 Beal, Ex parte (1868) LR 3 QB 387 …. 9.13 Beaumont v Yeomans (1934) 34 SR (NSW) 562 …. 7.1, 7.2, 7.3, A3.37

Beckwith v R (1976) 135 CLR 569; 12 ALR 333; [1976] HCA 55 …. 9.11, A2.43, A3.36 Bell v Australian Securities Commission (1991) 31 FCR 184; 103 ALR 689 …. 5.47 — v Day (1886) 2 QLJ 180 …. 4.7 Bennett v Bennett (2001) 28 Fam LR 231 …. 5.49 — v Minister for Public Works (NSW) (1908) 7 CLR 372; [1908] HCA 50 …. 4.65, 8.3, 8.4 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 …. 4.73, A4.65 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; 38 A Crim R 412 …. 2.24, 2.53 Betella v O’Leary [2001] WASCA 266 …. 6.12 Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 …. 4.66 BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; 155 ALD 450; [2017] FCAFC 72 …. 2.13, A4.80 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; 249 ALR 418; [2008] HCA 45 …. 6.9, A6.9 BHP Billiton Ltd v Parker (2012) 113 SASR 206; [2012] SASCFC 73 …. 11.16 BHP Billiton Petroleum Pty Ltd and Chief Executive Officer of Customs, Re (2002) 69 ALD 453; [2002] AATA 705 …. 6.8 Bice v Cunningham [1961] SASR 207 …. 7.14 BIL (NZ Holdings) Ltd v Era House Ltd (1991) 23 NSWLR 280 …. 5.35 Bill Express Ltd (in liq), Re (2010) 238 FLR 329; 77 ACSR 556; [2010] VSC 101 …. 12.34 Bin Radimin v R (2013) 235 A Crim R 244; [2013] NSWCCA 220 …. 1.17 Binetter v Deputy Commissioner of Taxation (2012) 206 FCR 37; [2012] FCAFC 126 …. 5.37 xxiv

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Birch v Allen (1942) 65 CLR 621; [1942] HCA 17 …. 4.60 — v Taubmans Ltd (1959) 77 WN (NSW) 133 …. 10.27 Bird v Commonwealth (1988) 165 CLR 1; 78 ALR 469; [1988] HCA 23 …. 9.5 — v John Sharp & Sons Pty Ltd (1942) 66 CLR 233; [1942] HCA 27 …. 7.1 Bishop v Chung Bros (1907) 4 CLR 1262; [1907] HCA 23 …. 5.35 — v Deakin [1936] Ch 409 …. 4.55 Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Goldfields NL (1935) 35 SR (NSW) 400 …. A5.25 Bistricic v Rokov (1976) 135 CLR 552; 11 ALR 129; [1976] HCA 54 …. A2.58, 3.44, 7.30 Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA 1 …. 3.4, 3.59 Black v Director-General of Education [1982] 2 NSWLR 714 …. 4.53, 7.6 Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1975] AC 591; [1975] 1 All ER 810 …. 3.9, 5.35 Bland Bros and the Council of the Borough of Inglewood (No 2), Re [1920] VLR 522 …. 12.4 Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96 …. 4.9 Blunn v Cleaver (1993) 47 FCR 111; 119 ALR 65 …. 2.63, A2.57 BMG Resources Ltd v Beaconsfield Municipal Council [1988] Tas R 142 …. 5.19 Boaler, Re [1915] 1 KB 21 …. 4.61 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961] HCA 71 …. 5.30 Bodanski v Jones (1986) 11 NSWLR 677 …. 8.7 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 …. 12.8



Boehm v Director of Public Prosecutions [1990] VR 494 …. 7.26, A3.38 Bolton, Re; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225; [1987] HCA 12 …. 1.14, 3.6, 3.26, A4.60 Bond v Foran (1934) 52 CLR 364; [1934] HCA 53 …. 4.37 — v R (2000) 201 CLR 213; 169 ALR 607; [2000] HCA 13 …. A5.42 Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49 …. 12.33, 12.34 Booth v R [2016] NZSC 127; [2017] 1 NZLR 223 …. 1.24 Boughey v R (1986) 161 CLR 10; 65 ALR 609; [1986] HCA 29 …. 8.10, 8.13 Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 …. 4.33 Bowes v Chaleyer (1923) 32 CLR 159; [1923] HCA 15 …. 12.19 Bowling v General Motors Holdens Ltd (1980) 50 FLR 79; 33 ALR 297 …. 11.16 Bowmaker Ltd v Tabor [1941] 2 KB 1 …. 11.29 Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444; [1905] HCA 60 …. 2.41, 3.18, 4.62, A2.59 Boxvale Holdings Pty Ltd v Federal Commissioner of Taxation [1989] 2 ATC 4,927 …. 2.62 BP Australia Ltd v South Australia (1982) 31 SASR 178 …. A2.47 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; 16 ALR 363 …. 9.44 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9; [1979] HCA 15 …. 5.17 Bradley v Commonwealth (1973) 128 CLR 557; 1 ALR 241; [1973] HCA 34 …. 4.71, 5.24, 11.3 Brambles Australia Ltd v Commissioner of Taxes (NT) (1993) 92 NTR 1 …. 6.8 Brashs Pty Ltd, Re (1994) 15 ACSR 477 …. 1.17 Bratic v Motor Accidents Authority of New South Wales [2010] NSWSC 1244 …. A3.48

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Braysich v R [2009] WASCA 178; (2009) 260 ALR 719 .... A3.39 Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; [1985] HCA 20 …. 3.49 Break O’Day Council v Resource Management and Planning Appeal Tribunal (2009) 19 Tas R 94; [2009] TASSC 59 …. 6.12 Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615 …. 1.9, 3.28, A1.8 — v R (1936) 55 CLR 253; [1936] HCA 24 …. 8.9, 8.11 Bretherton v United Kingdom Totalisator Co Ltd [1945] KB 555 …. 4.69 Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 …. 4.41, 4.42 Brewster v BMW Australia Ltd [2019] NSWCA 35 …. 5.8, 5.51 Bridal Fashions Pty Ltd v ComptrollerGeneral of Customs (1996) 17 WAR 499; 140 ALR 681 …. 5.40 Bridge v Bowen (1916) 21 CLR 582; [1916] HCA 38 …. 8.5 — v Mattis [1953] AR (NSW) 49 …. 3.38 Briffa v Hay (1997) 75 FCR 428; 147 ALR 226 …. 9.5 Brisbane City Council v Attorney-General (Qld) (1908) 5 CLR 69; [1908] HCA 85 …. 2.43 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; [1996] HCA 25 …. 11.10 British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44 …. 4.76 British Railways Board v Pickin [1974] AC 765 …. 11.27 Broadhurst v Paul [1954] VLR 541 …. 5.14 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; [1937] HCA 4 …. 2.8 Brooks v Commissioner of Taxation (2000) 100 FCR 117; 173 ALR 235; [2000] FCA 721 …. 3.28, 4.21, 4.75, 12.9

Brookton Co-operative Society Ltd v Federal Commissioner of Taxation (1981) 147 CLR 441; 35 ALR 293; [1981] HCA 28 …. 4.80 Bropho v Human Rights and Equal Opportunity Commission (2002) 72 ALD 321; [2002] FCA 1510 …. 9.7 — v — (2004) 135 FCR 105; 204 ALR 761, [2000] FCAFC 16 …. 4.69 — v Western Australia (1990) 171 CLR 1; 93 ALR 207; [1990] HCA 24 …. 5.6, 5.9, 5.17, 5.19, 5.35 Brown v Classification Review Board (1998) 82 FCR 225; 154 ALR 67 …. 5.24, 5.60 — v Green (1951) 84 CLR 285; [1951] HCA 76 …. 7.33 — v Minister for Immigration and Citizenship (2010) 183 FCR 113; 265 ALR 668; [2010] FCAFC 33 …. 9.36 — v Petrie (No 2) [1998] TASSC 142 …. 10.14 — v Tasmania (2017) 261 CLR 328; 349 ALR 398; [2017] HCA 43 …. A.16, 5.60, A2.43 — v Tyrer [1999] TASSC 19 …. 10.14 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 …. 5.14 Brownsea Haven Properties Ltd v Poole Corporation [1958] Ch 574 …. 1.14, 4.36 Brunton v Acting Commissioner of Stamp Duties (NSW) [1913] AC 747 …. A2.59 Buck v Comcare (1996) 66 FCR 359; 137 ALR 335 …. 5.46 Buckle v Josephs (1983) 47 ALR 787; 9 A Crim R 336 …. 6.8 Buckman v Button [1943] KB 405 …. 9.24 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616; 14 ALR 174; [1976] HCA 62 …. 5.51 Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60 …. 9.2

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Bupa HI Pty Ltd v Andrew Chang Services Pty Ltd [2018] FCA 2033 …. 4.30 Burch v South Australia (1998) 71 SASR 12 …. 2.28 Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382 …. 1.15 Burns v Minister for Health (2012) 45 WAR 276; [2012] WASCA 267 …. A10.35 Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163 …. 1.25 Burridge v Chief Magistrate of Magistrates Court of Australian Capital Territory (No 2) (2018) 86 MVR 117; [2018] ACTCA 43 …. A4.51 Burswood Management Ltd v AttorneyGeneral (Cth) (1990) 23 FCR 144; 94 ALR 220 …. 12.10 Burt v Federal Commissioner of Taxation (1912) 15 CLR 469; [1912] HCA 74 …. 9.56 Busby v Australian Telecommunications Commission (1988) 20 FCR 463; 83 ALR 67 …. A4.2 Bushell v Hammond [1904] 2 KB 563 …. 4.72 — v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; [1992] HCA 47 …. 3.36, 3.51 Butler v Attorney-General (Vic) (1961) 106 CLR 268 …. 7.12, 7.13 Butler (or Black) v Fife Coal Co [1912] AC 149 …. 9.2, 9.8 Butterworths Pty Ltd and Minister for Business and Consumer Affairs, Re (1979) 2 ALD 612 …. 9.5 Byrne v Gray [1956] VLR 520 …. 10.16 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 …. 3.5 — v R (1999) 199 CLR 1; 164 ALR 520; [1999] HCA 38 …. 2.20, A3.8, A5.42 BZAAH v Minister for Immigration and Citizenship (2013) 213 FCR 261; [2013] FCAFC 72 …. 2.36

C C v Commonwealth (2015) 234 FCR 81; 327 ALR 195; [2015] FCAFC 113 …. A4.21



— v Director-General, Department of Youth and Community Services [1982] 1 NSWLR 65 …. 3.40 C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 …. 12.4 — v — [1975] 1 WLR 413 …. 9.44 Cabell v Markham 148 F 2d 737 (1945) …. 3.33 Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation (1944) 70 CLR 362; [1944] HCA 31 …. 7.31 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; 269 ALR 204; [2010] HCA 27 …. 5.21 Cain v Doyle (1946) 72 CLR 409; [1946] HCA 38 …. 9.19 Cairns Shelfco No 16 Pty Ltd v Queensland [1998] 1 Qd R 228 …. A3.26 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606; [2009] HCA 47 …. 1.18 Calman and John Fairfax and Sons Pty Ltd, Re (1953) 54 SR (NSW) 86 …. 11.15 Caltex Australia Petroleum Pty Ltd v Town of Vincent [2010] WASAT 79 …. 4.30 Camden Park Estate Pty Ltd v O’Toole (1969) 72 SR (NSW) 188; [1969] 1 NSWR 784 … 1.18 Cameron v Cole (1944) 68 CLR 571; [1994] HCA 5 …. 5.51 Campbell v Epping [1970] Tas SR 215 …. 2.17 — v Robins [1959] NZLR 474 …. 9.24 Campbell College, Belfast (Governors) v Commissioner of Valuation (Northern Ireland) [1964] 1 WLR 912 …. 4.15 Campbell, Ex parte (1870) LR 5 Ch App 703 …. 3.52 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; 235 ALR 342; [2006] NSWCA 284 …. 4.45 Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32 …. 4.55

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Canonba Pastures Protection Board v Leigh (unreported, 26 July 1985) …. 4.11 Canterbury Municipal Council v Moslem Alawy Society Ltd [1985] 1 NSWLR 525 …. 5.23 Canwan Coals Pty Ltd v Federal Commissioner of Taxation (1974) 1 NSWLR 728; 4 ALR 223 …. 4.35, A9.56 Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403 …. 3.41 Capital Airport Group Pty Ltd v DirectorGeneral of Department of Planning (2010) 171 LGERA 440; [2010] NSWLEC 5 …. A2.45 Cappello v Roads and Maritime Services [2019] NSWSC 439 …. 4.63 Capricorn Quarries Pty Ltd v Inline Communication Construction Pty Ltd [2012] QSC 388; [2013] 2 Qd R 1 …. 9.5 Caratti v Commissioner of Australian Federal Police (2017) 352 ALR 631; [2017] FCAFC 177 …. 9.40 Carey v Australian Securities and Investments Commission (2008) 169 FCR 311; 247 ALR 772; [2008] FCA 963 …. A4.73 Carmody v McKellar (1997) 76 FCR 115; 148 ALR 210 …. 5.41 Carpenter and Comcare, Re (2010) 116 ALD 190; [2010] AATA 62 …. 4.70, 6.14 Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139; 42 ALR 29; [1982] HCA 43 …. 4.44, 7.3, 10.6, 10.33, 10.37 — v Western Australia (2007) 232 CLR 138; 239 ALR 415; [2007] HCA 47 …. 2.22, 9.43 Carroll v Secretary to the Department of Justice [2015] VSCA 156 …. 4.7 Carter v Bradbeer [1975] 3 All ER 158; [1975] 1 WLR 1204 …. 1.9 — v Denham [1984] WAR 123 …. 9.20 Casey v Alcock (2009) 165 ACTR 1; 226 FLR 437 1; [2009] ACTCA ….2.26

Cash Converters Ontario Pty Ltd and Australian Trade Commission, Re [1999] AATA 86 …. 9.5 Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (2012) 201 FCR 209; 287 ALR 297; [2012] FCA 21 …. 10.23 Castles v Secretary of Department of Justice (2010) 28 VR 141; [2010] VSC 310 …. 9.5 Cavanagh v Nominal Defendant (1958) 100 CLR 375; [1958] HCA 57 …. 12.17 CBFC Ltd v Pearce (1993) 112 FLR 478 …. 3.20 CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue 2013 ATR 20-409; [2013] NSWSC 1072 …. 3.49 CDJ v VAJ (1998) 197 CLR 172; 157 ALR 686; [1998] HCA 67 …. 5.50 Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89; 252 ALR 168; [2008] SASC 371 …. 9.5, A3.42 Central Queensland Land Council Aboriginal Corporation v AttorneyGeneral (Cth) (2002) 116 FCR 390; 188 ALR 200; [2002] FCA 58 …. 1.2 Centronics Systems Pty Ltd v Nintendo Co Ltd (1992) 111 ALR 13 …. 5.27 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; 293 ALR 412; [2012] HCA 56 …. 3.46 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; 293 ALR 412; [2012] HCA 56 …. 2.3, 2.23, 4.59, 6.4 Chakera v Kuzamanovic [2003] VSC 92 …. 4.4 Chalmers v Thompson (1913) 30 WN (NSW) 161 …. 4.67 Chan v Cresdon Pty Ltd (1989) 168 CLR 242; 89 ALR 522; [1989] HCA 63 …. 12.13, 12.14 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; [1989] HCA 62 …. 2.33

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Chandler and Co v Collector of Customs (1907) 4 CLR 1719; [1907] HCA 81 …. A9.11 Chang v Laidley Shire Council (2007) 234 CLR 1; 237 ALR 482; [2007] HCA 37 …. 5.29, 10.3 Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629; [1959] HCA 40 …. 10.25 Channel Pastoral Holdings Pty Ltd v Commissioner of Taxation (2015) 232 FCR 162; 321 ALR 261; [2015] FCAFC 57 …. 4.3, 9.44 Channel Seven Brisbane Pty Ltd v Australian Communications and Media Authority (2014) 227 FCR 162; 145 ALD 318; [2014] FCAFC 179 …. 4.30 Chappell and Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350 …. 4.14 Charlesworth v M J Sterling Pty Ltd [1943] VLR 67 …. 4.65 — v Winsor [1948] VLR 54 …. 8.5 Charlie v R (1999) 199 CLR 387; 162 ALR 463; [1999] HCA 23 …. 8.10, 8.11 Charlton Shire v Ruse (1912) 14 CLR 220; [1912] HCA 33 …. 4.76 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; 272 ALR 750; [2010] NSWCA 190 …. 11.32 Cheadle v Higginson (1919) 36 WN (NSW) 58 …. 3.50 Cheatley v R (1972) 127 CLR 291; [1972] HCA 63 .... 9.41, 11.15 Chelfco Ninety-four Pty Ltd v Road Traffic Authority [1985] VR 1 …. 4.55 Chen v VWA [2001] VCAT 1695 …. A2.52 Cherwell District Council v Thames Water Board [1975] 1 WLR 448 …. 1.7 Chesterfield Tube Co Ltd v Thomas [1970] 1 WLR 1483 …. 4.26 Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (2017) 251 FCR 40; 345 ALR 570; [2017] FCAFC 62 …. 3.7



Chew v R (1992) 173 CLR 626; 107 ALR 171; [1992] HCA 18 …. 4.77, A9.11 Chief Commissioner of State Revenue v Platinum Investment Management Ltd (2011) 80 NSWLR 240; [2011] NSWCA 48 …. 9.44 Chief Environmental Regulator of the Environment Protection Authority v Forestry Corp of New South Wales [2018] NSWLEC 10 …. A9.11 Chief Examiner v Brown (a pseudonym) (2013) 44 VR 741; [2013] VSCA 167 …. 5.38 Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 …. 1.24 Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147; 207 ALR 687; [2004] FCAFC 183 …. 3.17, 9.5, 9.7 Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159; 218 ALR 457; [2005] HCA 35 …. 9.37 Chikonga v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 49 …. 4.3 Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347; 135 ALR 471 …. 3.40, 5.52, 8.7 Christie v Neaves (2001) 113 FCR 279; [2001] FCA 1401 …. A2.59 — v Permewan, Wright & Co Ltd (1904) 1 CLR 693; [1904] HCA 35 …. 5.60 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; [1992] HCA 64 …. 2.62, 3.12, A2.43 Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 …. 1.13 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; 95 ALR 481; [1990] HCA 41 …. 2.15 Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120; 49 ALR 65; [1983] HCA 40 …. 5.23

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Ciaglia v Ciaglia [2010] NSWSC 341 …. 2.61 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618; [1997] HCA 2 …. 2.11, 2.19, 3.5, 3.6, 3.7, 3.9, 3.10, 3.19, 3.30, 4.2, A2.57 Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 …. 9.39 Citigroup Pty Ltd v Mason (2008) 171 FCR 96; 250 ALR 7; [2008] FCAFC 151 …. A1.12 City of Ballarat v Perovic (2001) 4 VR 1; [2001] VSCA 222 …. 5.30 City of Hobart v Chen [1966] Tas SR 271 …. A4.57 City of Ottowa v Hunter (1900) 31 Can SCR 7 …. 3.38 City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22; [1999] SASC 73 …. 11.33 City of Swan v Lehman Bros Australia Ltd (2009) 179 FCR 243; 260 ALR 199; [2009] FCAFC 130 …. 5.60 CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400; [1968] HCA77 …. 5.25 Clancy v Butchers Shop Employees’ Union (1904) 1 CLR 181; [1904] HCA 9 …. 5.6 Clarke v Bailey (1993) 30 NSWLR 556 …. A2.58 — v Tasmania (2013) 24 Tas R 384; [2013] TASCCA 11 .... A1.8 Clarke & Kann v Deputy Commissioner of Taxation (Qld) (1983) 15 ATR 42 …. A7.31 Clayton v Heffron (1960) 105 CLR 214; [1960] HCA 92 …. 11.19, 11.22, 11.34 Clayton’s case (1816) 1 Mer 572; 35 ER 781 …. 5.27 Clement v Comcare (2011) 194 FCR 24; [2011] FCA 404 …. 4.74 Clerk, Re (1871) 2 VR (M) 11 …. 4.68 Clissold v Perry (1904) 1 CLR 363; [1904] HCA 12 …. 5.25, 5.26 Clubb v Edwards (2019) 93 ALJR 448; [2019] HCA 11 …. 5.60

Clunies-Ross v Commonwealth (1984) 155 CLR 193; 55 ALR 609; [1984] HCA 65 …. 5.26, A4.60 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 …. 1.13 Clyne v Cardiff (1965) 65 SR (NSW) 213 …. 12.34 — v Deputy Commissioner of Taxation (1981) 150 CLR 1; [1981] HCA 40 …. 9.52 — v Director of Public Prosecutions (1984) 154 CLR 640; [1984] HCA 56 …. 9.31 — v Federal Commissioner of Taxation (1980) 49 FLR 25 …. 9.45 Coates v Commissioner for Railways (1961) 78 WN (NSW) 377 …. 4.57 — v South Loch Fyne Gold Mining Co NL (1900) 26 VLR 117 …. 8.3 Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26 …. 7.22 Coca-Cola Amatil (Australia) Pty Ltd v Northern Territory (2013) 300 ALR 476; [2013] FCA 154 …. 4.5 Cockle v Isaksen (1957) 99 CLR 155; [1957] HCA 85 …. 12.29 Coco v R (1994) 179 CLR 427; 120 ALR 415; [1994] HCA 15 …. 5.2, 5.5, 5.6, 5.35, 5.60 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17 …. 2.41, 4.34, 4.41 Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508; 24 ALR 658 …. 6.8, A6.7 Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 …. 2.10, 4.60, 9.5, A9.7 — v Esanda Ltd [1982] Tas SR 130 …. 11.15 — v Whitfield [1988] HCA 18; (1988) 165 CLR 360; 78 ALR 42 …. A3.11 Coleman v Director of Public Prosecutions (2000) 49 NSWLR 371; [2000] NSWSC 275 …. 3.34 xxx

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— v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 …. 1.8, 3.13, 5.60, A3.12 — v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 …. 10.4, 10.7, 10.36 Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1 …. 5.24 Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; 141 ALR 59; [1996] HCA 36 …. 3.33, 4.13, 4.24, 4.26, 4.27 — v Bell Basic Industries Ltd (1988) 20 FCR 146; 83 ALR 251 …. 4.24 — v Cliffs Robe River Iron Associates (1985) 7 FCR 271 …. 9.57, 12.10 — v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 …. 12.10 — v Savage River Mines (1988) 79 ALR 258 …. 3.30 Collett v Repatriation Commission (2009) 178 FCR 39; 114 ALD 511; [2009] FCA 667 …. 4.35 Collins, Re; Ex parte Hockings (1989) 167 CLR 522; 87 ALR 656; [1989] HCA 42 …. 4.77 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418; 154 ALR 417 …. 10.27 Colonial Sugar Refining Co Ltd v Attorney-General (Qld) [1916] QSR 278 …. 5.27 — v Irving [1905] AC 369 …. A10.28 — v Melbourne Harbour Trust Commissioners [1927] AC 343 …. 5.6, 5.25 Colquhoun v Brooks (1887) 19 QBD 400 …. 4.45 Comcare Australia v Pires (2005) 143 FCR 104; 86 ALD 592; [2005] FCA 747 …. 9.3 Comcare v Commonwealth (2007) 163 FCR 207; [2007] FCA 662 …. 9.17 — v — [2009] FCA 700; (2009) 257 ALR 462 …. A9.17 — v — [2012] FCA 1419; (2012) 132 ALD 480 …. A9.17



— v Lilley (2013) 216 FCR 214; 136 ALD 569; [2013] FCAFC 121 …. 4.30 — v Martinez (No 2) (2013) 212 FCR 272; 302 ALR 608; [2013] FCA 439 …. 3.33 — v Mooi (1996) 69 FCR 439; 137 ALR 690 …. 6.13 — v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; (2012) 207 FCR 178; 294 ALR 747 …. A9.17 — v Subsee Explorer Pty Ltd (2011) 210 IR 322; [2011] FCA 837 …. A9.17 — v Thompson [2000] FCA 790; (2000) 100 FCR 375; 175 ALR 163 …. A2.20 Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761 …. 2.61 Commercial Bank of Australia Ltd, Re (1893) 19 VLR 333 …. 4.4 Commercial Banking Co of Sydney Ltd v Federal Commissioner of Taxation (1983) 14 ATR 142; 70 FLR 433 …. 1.17 Commercial Oil Refiners Pty Ltd v South Australia (1974) 9 SASR 88 …. 10.36 Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47; 66 ALR 217; [1986] HCA 42 …. 4.51, 9.14 Commissioner for ACT Revenue v Dataflex Pty Ltd (2011) 5 ACTLR 271; 252 FLR 50; [2011] ACTCA 14 …. A2.41 Commissioner for Corporate Affairs v X and Y [1987] VR 460 …. 10.4 Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449; 14 ALR 485; [1977] HCA 38 …. 3.4 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 …. 4.2 Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407; 102 ALR 579 …. A5.18 Commissioner for Superannuation v Bayley (1979) 41 FLR 385; 28 ALR 293 …. 12.21 — v Hastings (1986) 70 ALR 625 …. 11.8, 11.16, A10.12 xxxi

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Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240; 55 ALR 697 …. 3.17 — v Kalimuthu (No 2) [2018] WASCA 192 …. A2.56 — v McMillan (1987) 13 FCR 7; 70 ALR 203 …. 5.43 — v Vo (2015) 302 FLR 209; [2015] NSWSC 1523 …. A2.61 Commissioner of Police v Eaton v Eaton (2013) 252 CLR 1; 294 ALR 608; [2013] HCA 2 …. 7.9, 7.12 — v Tanos (1957–58) 98 CLR 383; [1958] HCA 6 …. 5.6 — v Kennedy [2007] NSWCA 328 …. 6.3 Commissioner of Police New South Wales v Gray (2009) 74 NSWLR 1; [2009] NSWCA 49 …. 5.60 Commissioner of Stamp Duties v Attwill [1973] AC 558 …. 4.69 — v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 …. 3.45, 3.46 Commissioner of Stamp Duties (NSW) v Simpson (1917) 24 CLR 209; [1917] HCA 69 …. 9.42 Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; 133 ALR 130; [1995] HCA 44 …. 4.3, 7.25, 9.47 Commissioner of Stamps (Qld) v Weinholt (1915) 20 CLR 531; [1915] HCA 49 …. 9.48 Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 341 ALR 46; [2017] HCA 6 …. 11.7 — v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314; [2015] VSCA 269 …. 2.12 — v Purdale Holdings Pty Ltd [2003] VSC 289 …. 11.5 — v Westnet Rail Holdings No 1 Pty Ltd (2013) 45 WAR 140; [2013] WASCA 110 …. 6.4 Commissioner of State Revenue (Vic) v Challenger Listed Investments Ltd (2011) 34 VR 617; [2011] VSCA 272 …. 1.13

— v Landrow Properties Pty Ltd (2010) 79 ATR 800; [2010] VSCA 197 …. A2.43 — v Royal Insurance Australia Ltd (1994) 182 CLR 51; 126 ALR 1; [1994] HCA 61 …. 11.7 Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400; 276 ALR 231; [2011] FCAFC 37 …. 12.26 — v BHP Billiton Ltd [2019] FCAFC 4 …. 4.13 — v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 …. 3.7 — v De Vonk (1995) 61 FCR 564 …. 5.37 — v Hacon Pty Ltd (2017) 253 FCR 355; 158 ALD 231; [2017] FCAFC 181 …. 4.13 — v Hart (2004) 217 CLR 216; 206 ALR 207; [2004] HCA 26 …. 9.51 — v Hornibrook (2006) 156 FCR 313; 236 ALR 468; [2006] FCAFC 170 …. 7.23 — v Hunger Project Australia (2014) 221 FCR 302; 314 ALR 333; [2014] FCAFC 69 …. 4.16 — v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; 239 ALR 85; [2007] FCAFC 16 …. 1.26 — v Macoun (2014) 227 FCR 265; 145 ALD 16; [2014] FCAFC 162 …. 2.36, 3.48 — v Ostwald Bros Civil Pty Ltd (2008) 167 FCR 588; [2008] FCAFC 99 …. 9.4, 9.5 — v Sharpcan Pty Ltd (2018) 362 ALR 123; [2018] FCAFC 163 …. 2.13 — v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74 …. 2.37 — v Stone (2005) 222 CLR 289; 215 ALR 61; [2005] HCA 21 …. 4.10 — v Tomaras (2018) 362 ALR 253; [2018] HCA 62 …. 5.17 — v Unit Trend Services Pty Ltd (2013) 297 ALR 190; [2013] HCA 16 …. 9.51 — v Word Investments Ltd (2008) 236 CLR 204; 251 ALR 206; [2008] HCA 55 …. 9.57

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Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655; 286 ALR 206; [2012] HCA 11 …. 9.56 — v Multiflex Pty Ltd (2011) 197 FCR 580; 284 ALR 279; [2011] FCAFC 142 …. A9.49 Commissioner of Taxation v Energy Resources of Australia Ltd (2003) 135 FCR 346; 204 ALR 487; [2003] FCAFC 314 …. A3.38 — v Eskandari (2004) 134 FCR 569; [2004] FCA 8 …. A4.74 — v Reliance Carpet Co Pty Ltd (2008) 236 CLR 342; 246 ALR 448; [2008] HCA 22 …. A9.49 — v Verzyden (1988) 20 FCR 137; 82 ALR 232 …. A3.39 Commissioner of Taxes v Executors of the Estate of Rubin (1930) 44 CLR 132; [1930] HCA 21 …. A9.45 Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579; [1921] HCA 44 …. 4.9 Commissioner of the Australian Federal Police v Hart (2018) 351 ALR 1; [2018] HCA 1 …. 11.7 — v Oke (2007) 159 FCR 441; [2007] FCAFC 94 …. 9.40 Commissioner of Water Resources and Leighton Contractors Pty Ltd, Re [1991] 1 Qd R 549; (1990) 96 ALR 242; …. 5.18, 5.19 Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457; 25 ALR 221 …. 12.31 Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410; [1925] HCA 25 …. 4.76, 5.60 Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85; 248 ALR 494; [2008] FCAFC 104 …. 5.18, 5.19, A9.3 — v Baume (1905) 2 CLR 405; [1905] HCA 11 …. 2.43 — v Dixon (1988) 13 NSWLR 601; 82 ALR 359 …. A10.35 — v Ford (1986) 65 ALR 323 …. 9.5



— v Hamilton (2000) 108 FCR 378; 180 ALR 635; [2000] FCA 1854 …. 1.23 — v Hazeldell Ltd (1918) 25 CLR 552; [1918] HCA 75 …. 5.25 — v — [1921] 2 AC 373 …. 5.25 — v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; 152 ALR 182 …. 9.5, 9.7 — v — (1999) 95 FCR 218; 167 ALR 268; [1999] FCA 1052 …. 12.15 — v John Fairfax & Sons Ltd (1980) 147 CLR 39; 32 ALR 485; [1980] HCA 44 …. 5.60 — v McEvoy (1999) 94 FCR 341; 58 ALD 15; [1999] FCA 105 …. 12.11, 12.15 — v Orr (1981) 58 FLR 219; 37 ALR 653 …. 10.13 — v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457; [1910] HCA 28 …. 5.60 — v SCI Operations Pty Ltd (1998) 192 CLR 285; 152 ALR 624; [1998] HCA 20 …. 4.47, 10.4, A5.52 — v Tasmania (Franklin Dam case) (1983) 158 CLR 1; 46 ALR 625; [1983] HCA 21 …. 2.39 — v Vance (2005) 158 ACTR 47; 224 FLR 243; [2005] ACTCA 35 …. A1.16, 10.22 — v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 …. 5.18, 5.20, 5.21 — v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 …. 10.10 Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; 125 ALD 181; [2012] FCAFC 21 …. 4.53, 4.75, 6.4, 6.8 Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272; 212 ALR 452; [2004] FCAFC 299 …. 12.10 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 …. 5.49 Compass Airlines Pty Ltd, Re (1992) 35 FCR 447; 109 ALR 119 …. 5.41 Comptroller-General of Customs v Disciplinary Appeals Committee (1992) 35 FCR 466; 107 ALR 480 …. 5.38

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— v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237 …. 4.11 — v Zappia (2018) 361 ALR 194; [2018] HCA 54 …. 4.13 Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294; 90 LGERA 232 …. 12.34 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193; [1990] HCA 17 …. 4.66 Conde v Gilfoyle [2010] QCA 109 …. 6.12 Conigrave v Tanner [1978] WAR 225 …. 4.77 ConnectEast Management Ltd v Federal Commissioner of Taxation (2009) 175 FCR 110; [2009] FCAFC 22…. 2.60 Connor Hunter (A Firm) v Keencrest Pty Ltd [2009] QCA 156 …. A2.19 Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1; 107 ALR 456 …. 9.6 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; 320 ALR 61; [2015] FCAFC 25 …. A4.74 — v Clarke (2007) 156 FCR 291; 239 ALR 107; [2007] FCAFC 8 …. A5.51 — v Director of the Fair Work Building Industry Inspectorate (2013) 209 FCR 464; 296 ALR 443; [2013] FCAFC 25 …. 7.12 — v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009; [2013] HCA 36 …. A2.22 — v Hadgkiss (2007) 169 FCR 151; 248 ALR 169; [2007] FCAFC 197 …. 4.7, 4.44, 5.60 Construction, Forestry, Mining and Energy Union (CFMEU) v Mammoet Australia Pty Ltd (2013) 248 CLR 619; 300 ALR 460; [2013] HCA 36 …. 9.17 Cook’s Hotel Pty Ltd v Pope (1983) 33 SASR 240 …. 10.28 Cooper v Howard (2012) 61 MVR 56; [2012] TASSC 24 …. 3.41, A2.18 — v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481; 56 ALD 387; [1999] FCA 180 …. 9.5

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; [1981] HCA 26 …. 2.8, 2.53, 2.57, 2.60, 3.5, 4.2, 9.42, 9.51, A3.36 Corkery v Carpenter [1951] 1 KB 102 …. 4.2 Corlette v Mackenzie (1995) 62 FCR 584; 39 ALD 10 …. 9.57, 11.16 — v — (1996) 62 FCR 597 …. 9.57, 11.16 Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 …. 1.19 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; 100 ALR 609; [1991] HCA 28 …. 2.3, 4.16, 5.35, 5.41, 8.7, 8.12 Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; 61 ALR 236; [1985] HCA 64 …. 6.8 Corporation of Campbelltown v Johnson [1954] SASR 247 …. 4.9 Corporation of City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5 …. 11.32 Corruption and Crime Commission v Stokes [2013] WASC 282 …. A1.10 Cosco Holdings Pty Ltd v Thu (1997) 79 FCR 566; 150 ALR 127 …. 12.15 Coulton v Holcombe (1990) 20 NSWLR 138 …. 7.1 Council of Law Society of New South Wales v Bouzanis [2017] NSWCA 330 …. 6.3 Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636 …. 2.22 Cozens v Brutus [1973] AC 854; [1972] 2 All ER 1297 …. 3.35, 4.11 CPB Contractors Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 …. 2.20, 3.18 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514; 316 ALR 1 …. A4.74 Crafter v De Lucia [1935] SASR 45 …. 9.22

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— v Kelly [1941] SASR 237 …. 5.37 — v Wise [1934] SASR 404 …. 9.28 Craig, Re; Ex parte Zietsch (1944) 44 SR (NSW) 360 …. 9.10 Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 …. 4.7 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 …. 6.7 Creer v Estate of Peters [2007] NSWSC 1291 …. A2.45 Crichton v Kiewa Co-operative Distribution Society Ltd [1957] VR 589 …. A9.45 Crime and Misconduct Commission v Wilson [2012] QCA 314 …. A5.51 Cronulla Sutherland Leagues Club Ltd v Federal Commissioner of Taxation (1990) 23 FCR 82 …. 4.80 Crowe v Graham (1969) 121 CLR 375; [1969] HCA 6 …. 4.39 Crowley v Murphy (1981) 52 FLR 123 …. 5.60 Csidei, Re; Ex parte Andrew (1979) 28 ALR 381 …. 11.16 CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165; 311 ALR 547; [2014] FCAFC 10 …. A3.27, 4.61, 4.64, A3.10 — v — (No 3) (2012) 297 ALR 289; [2012] FCA 1261 …. 4.63 CSR Ltd, Re  [2010] FCAFC 43; (2010) 183 FCR 358; 265 ALR 703 .... A2.22 CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 .... 5.60 Culleton, Re (No 2) [2017] HCA 4; (2017) 341 ALR 1 …. A4.80 Cullimore v Lyme Regis Corporation [1962] 1 QB 718 …. 11.33 Curnow v O’Sullivan (No 2) (1976) 11 ALR 465 …. 9.5 Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 …. A4.80 Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163 …. 9.46 CXXXVIII v Commonwealth [2019] FCAFC 54 …. 12.21



D D & R Henderson (Manufacturing) Pty Ltd v Collector of Customs (NSW) (1974) 48 ALJR 132 …. 3.12, 4.23 D & W Livestock Transport v Smith (No 2) (1994) 117 FLR 264 …. 10.30 Dahlia Mining Co Ltd v Collector of Customs (1989) 17 NSWLR 688; 90 ALR 193 …. 5.50 Dainford Ltd v Smith (1985) 155 CLR 342; 58 ALR 285; [1985] HCA 23 …. 4.53 Daire v Stokes (1982) 32 SASR 402 …. 9.24 Dale’s case (1881) 6 QBD 376 …. 11.25 Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129; 327 ALR 670; [2015] FCA 317 …. 4.10 Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246; 64 ALR 321; [1986] HCA 15 …. 11.24 Daly v Thiering (2013) 303 ALR 188; [2013] HCA 45 …. 5.5, A5.44 Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390; [1968] HCA 42 …. 1.9 Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 …. 3.44, A3.42 Danae Investment Trust PLC v Macintosh Nominees Trust PLC (1993) 61 SASR 341 …. A5.13 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2002) 213 CLR 543; 192 ALR 561; [2002] HCA 49 …. 4.16, 5.41, 8.12 Danziger v Hydro-Electric Commission [1961] Tas SR 20 …. 3.42 Darling Casino Ltd v New South Wales Casino Authority (1997) 191 CLR 602; 143 ALR 55; [1997] HCA 11 …. 5.6 Datt v Law Society of New South Wales (1981) 148 CLR 319; 35 ALR 523; [1981] HCA 44 …. 4.69 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; 131 ALR 353; [1995] HCA 43 …. 11.32, A4.47

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— v — [1995] 2 VR 495 …. A1.18 Davies v Taylor (1996) 134 FLR 394; 140 ALR 245 …. 7.12 — v Western Australia (1904) 2 CLR 29; [1904] HCA 46 …. 2.62 — v Wylie (1992) 1 Tas SR 73 …. 9.26 Davies and Jones v Western Australia (1904) 2 CLR 29; [1904] HCA 46 …. A4.21 Davis, Re (1947) 75 CLR 409; [1947] HCA 53 …. 8.2, 11.16 Dawson v Commonwealth (1946) 73 CLR 157; [1946] HCA 41 …. 4.62 — v Hoffman Brick and Potteries Ltd [1924] VLR 208 …. 12.10 Day and Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Ltd (1982) 150 CLR 85; 40 ALR 399; [1982] HCA 20 …. 9.9 Day (No 2), Re [2017] HCA 14 …. 9.11 De Gelder v Motor Accidents Authority of New South Wales [2009] NSWSC 1173 …. A3.48 De Jager, Re [2012] SASC 236 …. 4.74 De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640; 139 ALR 417; [1996] HCA 5 …. A2.32 De L v Director-General, Department of Community Services (NSW) (1997) 190 CLR 207; 143 ALR 171; [1997] HCA 14 …. 7.18 De Marco v Chief Commissioner of State Revenue (2013) 83 NSWLR 445; [2013] NSWCA 86 …. 2.61 Dean v Attorney-General (Qld) [1971] Qd R 391 …. 4.38, 4.39 Dean-Willcocks v Commissioner of Taxation (No 2) (2004) 49 ACSR 325; [2004] NSWSC 286 …. A1.18 Debtor, Re a [1964] 1 WLR 807 …. A2.61 Delaney v Celon (1980) 24 SASR 443 …. A2.47 Delaware & Hudson Co v Commissioner of Internal Revenue 65 F 2d 292 …. 9.44 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; 50 ALR 1; [1983] HCA 44 …. 9.11

Dempster v National Companies and Securities Commission (1993) 9 WAR 215; 10 ACSR 297 …. 5.12 Department for Health and Ageing v Li [2018] SASCFC 52 …. A2.56 Deposit & Investment Co Ltd v Greenaway [1969] VR 714 …. 10.26, 10.33 Deposit Protection Board v Barclays Bank plc [1994] 2 AC 367 …. A3.48 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 …. 4.14, 4.37, 4.41, A4.18 — v Craddock (2006) 204 FLR 274; [2006] VSC 408 …. A2.61 — v De Vonk (1995) 61 FCR 564; 133 ALR 303 …. 5.38 — v Dick (2007) 242 ALR 152; 226 FLR 388; [2007] NSWCA 190 …. 4.33, 4.48, 7.12, 7.23, 12.9 — v Ganke [1975] 1 NSWLR 252; (1975) 25 FLR 98 …. A2.52 — v Lincoln Industrial Cleaners Pty Ltd (1975) 7 ALR 118; [1975] 2 NSWLR 499 …. 4.44 — v Woodhams (2000) 199 CLR 370; 169 ALR 503; [2000] HCA 10 …. 11.24 Deputy Commissioner of Taxation (NSW) v Access Finance Corporation Pty Ltd (1987) 8 NSWLR 557; 18 ATR 871 …. A1.16 — v Mutton (1988) 12 NSWLR 104; 79 ALR 509 …. 6.13 Deputy Federal Commissioner of Land Tax v Hindmarsh (1912) 14 CLR 334; [1912] HCA 27 …. A4.21 Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32; [1958] HCA 2 …. 9.47 — v Carpenter [1959] VR 470 …. 4.76 — v Chant (1991) 24 NSWLR 352; 103 ALR 387 …. 9.43 — v Sheehan (1986) 86 ATC 4718 …. 9.43 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735; [1939] HCA 27 …. 4.62

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Deputy Federal Commissioner of Taxation (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64 …. 3.41 Derisi v Vaughan [1983] 3 NSWLR 17 …. 11.16 Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380; [2003] NSWLEC 90 …. A1.8 Determination of the Country Councils’ Wages Board, Re a [1943] Tas SR 16 …. 2.41 Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; 99 ALR 275; [1991] HCA 7 …. 9.9 DFJ v Secretary to the Department of Justice (2012) 36 VR 66; [2012] VSCA 177 …. A2.45 Di Carlo v Kashani-Malaki [2013] 2 Qd R 17; [2012] QCA 320 …. 5.60 Di Paola v Salta Constructions Pty Ltd [2015] VSCA 230 …. 2.49, A2.56 Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation (1993) 44 FCR 450; 116 ALR 420 …. 9.57 Dietrich v R (1992) 177 CLR 292; 109 ALR 385; [1992] HCA 57 …. 2.30, 3.12 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171; [1975] HCA 23 …. 3.9 Dilworth v Stamps Commissioner [1899] AC 99 …. 6.7, 6.9 Dimella Constructions v Stocker (1976) 14 SASR 215 …. 9.41 Dimozantos v R (No 2) (1993) 178 CLR 122; 116 ALR 411; [1993] HCA 52 .... A3.36 Dionisatos v Acrow Formwork and Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 …. A4.7 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 …. 4.47 Director General, Department of Industry and Investment NSW v Mato Investments Pty Ltd (2014) 87 NSWLR 465; [2014] NSWCCA 132 …. 11.24



Director of Consumer Affairs Victoria v Glenvill Pty Ltd (2009) 31 VAR 64; [2009] VSC 76 …. 3.48 — v Scully (2013) 303 ALR 168; [2013] VSCA 292 …. 1.13, A1.18 Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 …. 3.44 Director of Public Prosecutions v Acme Storage Pty Ltd (a pseudonym) (2017) 264 IR 215; [2017] VSCA 90 …. 4.11 — v Ali [2008] VSC 167 …. 4.77 — v — (2009) 23 VR 203; [2009] VSCA 162 …. A2.18 — v Brown (1998) 100 LGERA 181 …. 7.32 — v Byron (No 4) [2011] WASC 199 …. 5.31 — v Chatters (2011) 218 A Crim R 156; [2011] TASCCA 8 …. 1.19 — v Corybutiak (2004) 40 MVR 442; [2004] VSC 3 …. 11.24 — v El Mawas (2006) 66 NSWLR 93; 233 ALR 163; [2006] NSWCA 154 …. 3.46 — v George (2008) 102 SASR 246; 251 ALR 658; [2008] SASC 330 …. 9.17, 11.16, A2.57 — v Korybutiak (2004) 40 MVR 442; [2004] VSC 3 …. 9.39 — v Lamb [1941] 2 KB 89 …. 9.24 — v Leys (2012) 44 VR 1; 296 ALR 96; [2012] VSCA 304 …. 2.25, 2.54, A2.12, A2.19 — v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118; 132 ALR 449 …. 5.24 — v Mattiuzzo (2011) 29 NTLR 189; [2011] NTSC 60 …. 4.63 — v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81; 296 ALR 156; [2012] VSCA 300 …. 1.13, 1.20, 1.21 — v Priestley [2013] NSWSC 407 …. 9.11 — v Walters (2015) 49 VR 356; [2015] VSCA 303 …. 3.10, 4.74 Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33; 156 ALR 110 …. 11.5, A10.12

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Director of Public Prosecutions (Cth) v Bayly (No 2) (1994) 75 A Crim R 575 …. 11.33 — v Chan (2001) 52 NSWLR 56; [2001] NSWCA 249 …. A2.59 — v Haidari (2013) 230 A Crim R 134; [2013] VSCA 149 …. 1.17 — v Helou (2004) 185 FLR 378; [2004] NSWSC 803 …. A4.73, A9.36 — v Kaba (2014) 44 VR 526; [2014] VSC 52 …. A5.58 — v Keating (2013) 248 CLR 459; 297 ALR 394; [2013] HCA 20 …. 9.17, 9.23, 10.2 — v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118; 132 ALR 449 …. A9.36 — v MN [2009] VSCA 312; (2009) 26 VR 563 …. A3.37 — v Pirone (1997) 68 SASR 106; 143 ALR 369 …. 10.4 Director of Public Prosecutions for Victoria v Khodi Ali (2009) 23 VR 203; [2009] VSCA 162 …. 4.77 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; 55 ALR 175; [1984] HCA 48 …. 2.45 Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 …. 7.37 Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43; 210 ALR 276; [2004] HCA 47 …. 8.9 Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; 240 ALR 204; [2007] HCA 52 …. 5.7 — v Rayment [2018] VSC 663 …. A5.58 Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828 …. A4.74 — v McCullough [2016] FCA 1291 …. A4.74 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648; 42 IR 38 …. 4.66, A3.36 Director-General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242; [2003] NSWCCA 361 …. 9.11, 9.12 — v Jackson (2003) 125 LGERA 304; [2003] NSWLEC 81 …. A1.8

Disher v Disher [1965] P 31 …. 11.4 Distribution Group Ltd v Commissioner of Taxation [2000] VSC 418 …. 9.57 DL & L Cameron Pty Ltd v Webster 1964 64 AR (NSW) 297 …. 4.36 Dodd v Executive Air Services Pty Ltd [1975] VR 668 …. 9.5 — v Taylor [1979] VR 228 …. 11.11 Dodds v Noldart [1955] Tas SR 58 …. 7.29 Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 …. A2.45 Dominish v Cavallaro [1980] WAR 205 …. A4.65 Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525 …. 9.39 Donaldson, Re (1889) 23 SALR 141 …. 3.36 Donoghue v Director of Public Prosecutions (WA) (2011) 215 A Crim R 1; [2011] WASCA 239 …. A3.45 Donovan v Repatriation Commission (1985) 58 ALR 634 …. 4.49 Doro v Victorian Railways Commissioners [1960] VR 84 …. 10.3, 10.12 Dorsman v Nichol (1978) 20 ALR 231 …. 12.21 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; 202 ALR 428; [2003] HCA 69 …. 7.1, 7.12 Doughty v Martino Developments Pty Ltd (2010) 27 VR 499; [2010] VSCA 121 …. A3.39 Douglas v Tickner (1994) 49 FCR 509; 34 ALD 192 …. A6.5 Douglas-Brown v Furzer (1994) 13 ACSR 184 …. 11.15 Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243 …. 5.16 Dowler v Princes Securities Pty Ltd (1971) 1 SASR 578 …. 10.23 Dowling v Commissioner of Water Resources (1991) 74 LGRA 420 …. A3.48 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; 99 ALR 402; [1991] HCA 11 …. 3.39, A4.47 Doyle (dec’d), Re; Ex parte Brien v Doyle (1993) 41 FCR 40; 112 ALR 653 …. 5.15

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Drake v Thornton (1883) 1 QLJ 159 …. 4.62 Drewit v Resource Management and Planning Appeal Tribunal (2008) 163 LGERA 222; [2008] TASSC 70 …. 4.48 Driscoll v J Scott Pty Ltd (1976) 8 ALR 593; 36 LGRA 159 …. 4.29 Dubbo Base Hospital v Jones [1979] 1 NSWLR 225 …. 10.5 Duffy and Comcare, Re [2016] AATA 546 …. 4.70 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; 22 ALR 439; [1978] HCA 54 …. 3.2 — v — (1979) 142 CLR 583; 22 ALR 439; [1979] HCA 66 …. 4.72 — v Parramore (1993) 2 Tas R 442 …. 8.2 Duke Group Ltd v Pilmer (1994) 15 ACSR 255 …. 11.15 Duncan, Ex parte; Re Minister of Lands (1938) 55 WN (NSW) 37 …. 11.15 Dunkel v Commissioner of Taxation (1990) 27 FCR 524; 99 ALR 776 …. 5.31 Dunlop v Milton Timber and Hardware Co Ltd [1960] NZLR 1096 …. A2.43 Dunne, Ex parte (1875) 13 SCR (NSW) 210 …. 7.6 Dunsborough Districts Country Club Inc, Re [1982] WAR 321 …. 11.15 Dupas v R (2012) 40 VR 182; [2012] VSCA 328; …. 1.20, 1.21 Duperouzel v Cameron [1973] WAR 181 …. 6.12 Duralla Pty Ltd v Plant (1984) 2 FCR 342 …. 10.28 Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340; 166 ALR 500; [1999] NSWCA 324 …. 5.6, 5.25 Dyson v Pharmacy Board of New South Wales (2000) 50 NSWLR 523; [2000] NSWSC 981 …. 4.12

E East End Real Estate Pty Ltd v C E Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400 …. 9.5



East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 …. 4.57 Eastern Counties Railway Co v Marriage (1860) 9 HLC 32; 11 ER 639 …. 1.45 Eastman v Commissioner for Superannuation (1987) 74 ALR 221 …. 4.44 Eckett v Eckett (2010) 237 FLR 324; [2010] FamCAFC 39 …. 3.21 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754 …. 12.4 Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 …. 9.5 Edelsten v Health Insurance Commission (1990) 27 FCR 56; 96 ALR 673 …. 12.31 Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd [2010] WASC 257 …. 1.18 Edwards v Attorney-General (2004) 60 NSWLR 667; [2004] NSWCA 272 …. 2.22 Edwards and Secretary, Department of Primary Industries and Energy, Re (1990) 21 ALD 174 …. 4.74 Effort Shipping Co Ltd v Linden Management SA (‘The Giannis NK’) [1998] 1 All ER 495 …. 7.21 Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 …. 5.31 EHT18 v Melbourne IVF [2018] FCA 1421 …. A2.56 Einfeld v HIH Casualty and General Insurance Ltd (1999) 166 ALR 714; [1999] NSWSC 867 …. A1.18 — v R (2008) 71 NSWLR 31; 252 ALR 375; [2008] NSWCCA 215 …. 9.13 El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA (2004) 140 FCR 296; 209 ALR 448; [2004] FCAFC 202 …. A2.32 Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86; 125 ALR 663 …. 3.49

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Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554; [1956] HCA 22 …. 5.51 Electricity Supply Association (Aust) Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; 189 ALR 109; [2001] FCA 1296 …. 12.13 Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540; 123 ALR 202 …. A2.50 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 329; 209 ALR 116; [2004] HCA 40 …. 3.58, 4.21, 5.3, 5.8 Ellis v Ellis [1896] P 251 …. 9.34 — v Minister for Lands (1985) 37 NTR 29 …. 7.3 Ellison v Sandini (2018) 354 ALR 484; [2018] FCAFC 44 …. 4.57, A4.57 Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576; 118 ALR 357 …. 12.13 Empire Waste Pty Ltd v District Court of New South Wales (2013) 86 NSWLR 142; [2013] NSWCA 394 …. A3.26, A3.49 Energetech Australia Pty Ltd v Sides Engineering Pty Ltd (2005) 226 ALR 362; [2005] NSWSC 1143 …. 5.52 Energy Ltd v Commissioner of Taxation [2009] FCAFC 12 …. A12.7 Energy Resources of Australia Ltd v Federal Commissioner of Taxation (2003) 52 ATR 120; 2003 ATC 4024; [2003] FCA 26 …. A12.13 English Sewing Cotton Co Ltd v Inland Revenue Commissioners [1947] 1 All ER 679 …. 9.45 Enman v Enman [1942] SASR 131 …. 7.12, 7.23 Entech Printed Circuits Pty Ltd and Chief Executive Officer of Customs, Re (1999) 55 ALD 244 …. 9.5

Envestra Ltd v Federal Commissioner of Taxation (2008) 169 FCR 300; [2008] FCA 249 …. 4.80 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392; [1993] HCA 74 …. 5.38, 5.60 Envy Trading v Queensland [1998] 1 Qd R 413 …. A2.45 Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450; 57 ALR 167 …. 3.12 Equitable Life Assurance of the United States v Bogie (1905) 3 CLR 878; [1905] HCA 55 …. 11.29 Equity Trustees Executors & Agency Co Ltd v Commissioner of Probate Duties (Vic) (1976) 135 CLR 268; 10 ALR 131; [1976] HCA 34 …. 12.21 Ergon Energy Corporation Ltd v Commissioner of Taxation (2006) 153 FCR 551; 232 ALR 652; [2006] FCAFC 125 …. 9.5 Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577; [1992] HCA 20 …. 10.28 Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300; 145 ALR 6 ….A2.43 Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1; [2014] FCA 1019 …. 5.31, 5.40 Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 …. 11.29 Esso Australia Pty Ltd v Australian Workers’ Union (2017) 350 ALR 404; 92 ALJR 106; [2017] HCA 54 …. 2.13, 2.23, A4.80 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 …. A1.12 — v Federal Commissioner of Taxation (1998) 83 FCR 511; 159 ALR 664 …. 2.60 — v — (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 …. 1.25, 2.60 xl

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Esso Australia Resources Pty Ltd v Commissioner of Taxation (2011) 199 FCR 226; [2011] FCAFC 154 …. 6.4 — v Commissioner of Taxation (No 1) (2011) 196 FCR 560; [2011] FCAFC 134 …. 1.7 Estate of Groos, In the [1904] P 269 …. 4.60 Estate of Rangi Kerehoma, In the [1924] NZLR 1007 …. 4.21 Evans v Marmont (1997) 42 NSWLR 70; 21 Fam LR 760 …. 12.17 — v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306; 203 ALR 320; [2003] FCAFC 276 …. 12.34, A4.73 — v New South Wales (2008) 168 FCR 576; 250 ALR 33; [2008] FCAFC 130 …. 5.60, A5.5 — v Stevens (1791) 4 TR 224; 100 ER 986 …. 4.33 Excel Finance Corporation Ltd (rec & mgr appt’d), Re; Worthley v England (1994) 52 FCR 69; 34 ALD 85 …. A1.18 Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd (2012) 113 SASR 341; [2012] SASCFC 84 …. 9.5 Exicom Pty Ltd v Futuris Corporation Ltd (1995) 18 ACSR 404; 123 FLR 394 …. 9.9 Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119; [1981] 3 All ER 241 …. 3.33



— v Wongtass Pty Ltd (2011) 195 FCR 55; [2011] FCA 633 …. 4.74 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; 293 ALR 384; [2012] NSWCCA 125 …. 5.60 Fairfield City Council v Taouk (1998) 100 LGERA 110 …. 7.12 Falconer v Pedersen [1974] VR 185 …. 3.35 Falkner v Barba [1971] VR 332 …. 9.22 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 232 ALR 209; [2007] HCA 22 …. 1.13, 1.18, 1.20, 1.21, 1.22 Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125; 142 ALR 322 …. 4.31 Farrell v Alexander [1977] AC 59; [1976] 2 All ER 721 …. 3.57, A8.5 Farrington v Thomson [1959] VR 286 …. 9.20 Favelle Mort Ltd v Murray (1976) 133 CLR 580; 8 ALR 649; [1976] HCA 13 …. 6.7 Fearnley v Finlay [2014] QCA 155; [2014] 2 Qd R 392 …. A4.60 Federal Commissioner of Taxation v A Taxpayer (2006) 91 ALD 335; [2006] FCA 888 …. 9.57, 11.16 — v Applegate (1979) 38 FLR 1; 27 ALR 114 …. 4.33 — v Bill Wissler (Agencies) Pty Ltd (1985) 16 ATR 952; 81 FLR 471 …. A3.38 — v Citibank Ltd (1989) 20 FCR 404; 85 ALR 588 …. 5.34 — v Clyne (1958) 100 CLR 246; [1958] HCA 10 …. 7.4, 7.33 — v Comber (1986) 10 FCR 88; 64 ALR 451 …. 4.57 — v Cripps & Jones Holdings Pty Ltd (1987) 17 FCR 55; 76 ALR 619 …. 9.45 — v Energy Resources of Australia Ltd (2003) 204 ALR 487; [2003] FCAFC 314 …. A1.12 — v Gulland (1985) 160 CLR 55; 62 ALR 545; [1985] HCA 83 …. 9.51 — v Henderson (1943) 68 CLR 29; [1943] HCA 48 …. 3.44

F F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; [2013] SASCFC 1 …. 2.28, A2.18 Fabre v Ley [1972] ALR 885 …. 4.28 Fair Trading Administration Corporation v Owners Corporation, Sp 43551 [2002] NSWSC 624 …. 4.75 Fair Work Ombudsman v Pocomwell Ltd (No 2) (2013) 218 FCR 94; [2013] FCA 1139 …. A2.43 Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428; 295 ALR 129; [2012] FCAFC 193 …. 7.19 xli

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— v Holmes (1995) 58 FCR 151; 138 ALR 59 …. 12.8 — v ICI Australia Ltd (1972) 127 CLR 529; [1972] HCA 75 …. 3.42, 3.44, 4.17, 9.53 — v Industrial Equity Ltd (2000) 98 FCR 573; 171 ALR 1; [2000] FCA 420 …. A2.50 — v Lamesa Holdings BV (1997) 77 FCR 597; 157 ALR 290 …. 2.37 — v Munro (1926) 38 CLR 153; [1926] HCA 58 …. 5.11 — v Murray (1990) 21 FCR 436; 92 ALR 671 …. 3.21 — v — (1998) 193 CLR 605; 155 ALR 67; [1998] HCA 42 …. 9.57 — v Northumberland Development Co Pty Ltd (1995) 59 FCR 103; 138 ALR 89 …. 11.7, A5.25 — v Peabody (1994) 181 CLR 359; 123 ALR 451; [1994] HCA 43 …. 9.51 — v Reid (1927) 40 CLR 196; [1927] HCA 54 …. 10.15 — v Reynolds Australia Alumina Ltd (1987) 18 FCR 29; 77 ALR 543 …. A9.56 — v Ryan (2000) 201 CLR 109; 168 ALR 704; [2000] HCA 4 …. 3.19 — v Scully (2000) 201 CLR 148; 169 ALR 459; [2000] HCA 6 …. 4.21, 12.9 — v Smorgon (1977) 16 ALR 721 …. 2.59 — v Spotless Services Ltd (1996) 186 CLR 404; 141 ALR 92; [1996] HCA 34 …. 9.51 — v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR 210; 19 ALR 1; [1978] HCA 10 …. A6.7 — v Trustees of Walsh Trust (1983) 69 FLR 240; 48 ALR 253 …. 9.43 — v Verzyden (1988) 19 ATR 974 …. A3.39 — v Westraders Pty Ltd (1979) 24 ALR 139; 38 FLR 306 …. 9.50, 9.51 — v Westraders Pty Ltd (1980) 144 CLR 55; 30 ALR 353; [1980] HCA 24 …. 9.50 Fenton v Dry (1864) 1 WW & A’B (Vic) 64 …. 7.31

— v Hampton (1858) 11 Moo 347; 14 ER 727 …. 5.31, 9.14 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; 224 ALR 238; [2006] HCA 5 …. 7.9, 7.11, 7.12 Fergusson v Union Steamship Co of New Zealand Ltd (1884) 10 VLR (L) 279 …. 5.60 Fernando v Minister for Immigration (2000) 97 FCR 407; 58 ALD 91; [2000] FCA 324 …. 11.23, A11.22 Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262; [2004] FCA 594 …. 9.4 Fettell, Re (1952) 52 SR (NSW) 221 …. 11.15 Field v Gent (1996) 67 SASR 122 …. 4.37 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12 …. 11.5, 11.7, 11.8, 12.2 Firebird Global Master Fund II Ltd v Republic of Nauru (2014) 89 NSWLR 477; 316 ALR 497; [2014] NSWCA 360 …. 7.12 Firm (Australia) Pty Ltd, The v South Sydney Council [1999] NSWLEC 5 …. A2.61 Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 185 FCR 52; [2010] FCA 441 …. 2.63 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; 227 ALR 241; [2006] HCA 22 …. 3.57 Fisher v Bell [1961] 1 QB 394; [1960] 3 All ER 731 …. 2.42 Fisher v Hebburn Ltd (1960) 105 CLR 188; [1960] HCA 80 …. 10.1 Fitzgerald v Champneys (1861) 2 J & H 31 …. 7.21 Fitzgerald, Ex parte; Gordon, Re (1945) 45 SR (NSW) 182 …. 9.13 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 …. 4.20 FJKH and National Disability Insurance Agency, Re [2018] AATA 1294 …. 12.20 xlii

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Flaherty v Girgis (1987) 162 CLR 574; 71 ALR 1; [1987] HCA 17 …. 3.57 Flanagan v Murdoch Community Services Inc (2010) 188 FCR 300; 115 ALD 697; [2010] FCA 647 …. A3.39 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 …. 3.6 Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 …. 9.4 Flinn v Flinn [1951] St R Qd 117 …. 8.5 Foley, Re; Channell v Foley (1952) 53 SR (NSW) 31 …. 4.68 Fonteio v Morando Bros Pty Ltd [1971] VR 658 …. 7.22 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; 317 ALR 421; [2015] HCA 10 …. A3.58 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; 241 ALR 32; [2007] HCA 56 …. 3.57 Footscray City College v Ruzicka (2007) 16 VR 498; [2007] VSCA 136 …. 2.8 Forbes (Collector of Customs, NSW) v Traders’ Finance Corporation Ltd (1971) 126 CLR 429; [1972] ALR 653; [1971] HCA 60 …. 9.41 Ford v National Parole Board (1976) 73 DLR (3d) 630 …. 10.33 Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 81 ALR 687 …. 11.20, 11.35 Forrest & Forrest Pty Ltd v Wilson (2017) 346 ALR 1; [2017] HCA 30 …. 11.15, 11.19, 11.32 Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; 233 ALR 254; [2007] HCA 8 …. 4.15 Foster v Aloni [1951] VLR 481; [1952] ALR 18 …. 3.50 Fothergill v Monarch Airlines Ltd [1981] AC 251; [1980] 2 All ER 696 …. 2.31, 2.39 Fox v Commissioner for Superannuation (No 2) (1999) 88 FCR 416; 167 ALR 197; [1999] FCA 372 …. A2.12, A2.19 Franklins Stores Pty Ltd case [1977] 2 NSWLR 955 …. 11.35



Franks v Secretary, Department of Family and Community Services (2002) 125 FCR 212; 72 ALD 418; [2002] FCAFC 436 …. 6.4 Frauenfelder v Reid (1963) 109 CLR 42; [1963] HCA 3 …. 4.33, A4.71 Freeman v Medical Practitioners Board of Victoria (2000) 17 VAR 106; [2000] VSC 547 …. 4.9 Frendo v Secretary, Department of Social Security (1987) 77 ALR 682 …. A4.21 Friends of Leadbeater’s Possum Inc v Vicforests (2018) 228 LGERA 255; [2018] FCA 178 …. 2.13 Frost v Collector of Customs (Qld) (1985) 9 FCR 174; 63 ALR 297 …. 12.7

G G C Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 …. 6.6 Galanos and Department of Immigration and Citizenship, Re (2010) 128 ALD 382; [2010] AATA 1004 …. 12.17 Galloway v Galloway [1956] AC 299; [1955] 3 All ER 429 …. 3.57 Galvin v Forests Commission of Victoria [1939] VLR 284 …. 10.24 Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45; [2012] VSCA 322…. 2.62 Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 …. 4.22 — v — (1987) 163 CLR 236; 72 ALR 321; [1987] HCA 30 …. 4.22, 8.9 Ganter v Whalland (2001) 54 NSWLR 122; [2001] NSWSC 1101 …. A2.58, 2.60 Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106 …. A3.38 Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554; 123 ALR 29 …. 12.33, 12.34 Gardiner, Re [1938] SASR 6 …. 10.13

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Gardner v R [2003] NSWCCA 199; (2003) 39 MVR 308 …. A.65 Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377 …. 3.17, 3.22 Gas & Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617 …. 4.41 Geaghan v D’Aubert (2002) 36 MVR 542; [2002] NSWCA 260 …. A2.49, A3.36 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576; 2 ALR 362 …. 1.15 Geltzinis v T & R (Murray Bridge) Pty Ltd (2009) 103 SASR 194; [2009] SASC 61 …. 4.35 General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (1982) 42 ALR 365; [1982] 2 NSWLR 52 …. 4.12, 4.25 George v Rockett (1990) 170 CLR 104; 93 ALR 483; [1990] HCA 26 …. 5.60, 9.40 George Hudson Ltd v Australian Timber Workers’ Union (1923) 32 CLR 413; [1923] HCA 38 …. 10.8 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; 119 ALR 629; [1994] HCA 6 …. 10.9, 10.10 Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179 …. 3.53, A2.43 Georgoussis v Medical Board of Victoria [1957] VR 671 …. 7.36, 7.37 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379; 13 ALR 17; [1977] HCA 17 …. 10.1 Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70; 57 ALR 472 …. A2.32 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 …. 10.4 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 …. 1.10, 1.13 Ghali v Chief Commissioner of State Revenue (2013) 85 NSWLR 378; [2013] NSWCA 340 …. 4.33

Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 …. 6.14 Gibson v Western Sydney Area Health Service [2003] NSWIRComm 465 …. A1.8 Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139; 154 ALR 550 …. 4.3, A6.13 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100; [2003] HCA 33 …. 5.44, 5.60 Gill v Department of Industry, Technology and Resources [1987] VR 681 …. 2.50 — v Donald Humberstone & Co Ltd [1963] 3 All ER 180 …. 4.29 Gill and Department of Industry, Technology and Resources, Re (1985) 1 VAR 97 …. 3.25 Gillespie v Ford (1978) 19 ALR 102; 46 FLR 297 …. A2.49 Girardi v Commissioner of State Taxation (2013) 93 ATR 822; [2013] SASC 43 …. 4.5 Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365; [1969] HCA 5 …. 9.47 Gladstone v Armstrong [1908] VLR 454 …. 5.60 Gleeson, Ex parte [1907] VLR 368 …. 11.5, 11.16 Glenister v Dillon [1976] VR 550 …. 6.7 Glover v McDougall [1976] 2 NSWLR 359 …. A9.8 Gold Coast City Council v Satellite & Wireless Pty Ltd (2014) 220 FCR 412; 143 ALD 19; [2014] FCAFC 51 …. 12.9 — v Sunland Group Ltd [2019] QCA 118 …. A6.3 Gold v Fisher’s Food Pty Ltd [1954] AR (NSW) 19 …. 3.46 Gold Coast City Council v Sunland Group Ltd [2019] QCA 118 …. 10.28 Goldsbrough, Mort and Co Ltd v Larcombe (1907) 5 CLR 263; [1907] HCA 58 …. 8.5

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Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11; [2000] FCA 1164 …. A9.7 Goodlen Pty Ltd v BP Australia Pty Ltd (2004) 141 FCR 325; 213 ALR 516; [2004] FCAFC 331 …. 11.24 Goodman v Mayor, etc of Melbourne (1861) 1 W & W (L) 4 …. 4.68 Goodrich v Paisner [1957] AC 65; [1956] 2 All ER 176 …. 1.11 Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 …. 7.9, 7.11, 7.20 Goodwin, Ex parte; Re Carruthers (1967) 86 WN (Pt 1) (NSW) 313 …. 11.16 Gordon v Commissioner of Police (2011) 210 IR 448; [2011] WASCA 168 …. A3.26 Gorry v McKenzie [2009] WASC 326 …. 7.18 Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300 …. A9.7 Government Railways, No 1 Award, Re 1918 AR (NSW) 213 Gracie and Secretary, Department of Family and Community Services, Re (2005) 83 ALD 289; [2005] AATA 179 …. 12.17 Graham v Deputy Chief of Air Force [2004] FCA 1377 …. 7.22 — v Niness (1985) 65 ALR 331 …. A2.59 Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13 …. 3.38, 3.39, 3.40, 3.41 Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 …. 9.11 Graovac v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 709 …. 6.12 Gray, Re; Ex parte Marsh (1985) 157 CLR 351; 62 ALR 17; [1985] HCA 67 …. 6.8 Grazier’s Association of New South Wales v Durkin (1930) 44 CLR 29; [1930] HCA 22 …. A5.52 Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR



161; 158 ALR 1; [1998] HCA 65 …. A2.33 Great Fingall Consolidated Ltd v Sheehan (1905) 3 CLR 176; [1905] HCA 43 …. 3.48 Great Northern, Piccadilly and Brompton Railway Co v Attorney-General [1909] AC 1 …. 1.29 Grech v Heffey (1991) 34 FCR 93; 106 ALR 570 …. 11.10, A10.12 Green v Burgess [1960] VR 158 …. 5.14 — v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 …. 2.45 — v R (2000) 133 NTR 1; [2000] NTCCA 1 .... 2.47 — v Redcliffs Hotel Pty Ltd [1933] VLR 84 …. 8.2 Green and Public Lending Right Committee, Re [1999] AATA 490 …. 9.5 Greenway v Abishara [1964] VR 587 …. A4.71 Gregory v Fearn [1953] 1 WLR 974 …. 4.39 Greville v Williams (1906) 4 CLR 694; [1906] HCA 97 …. 5.28, 5.29 Grey v Pearson (1857) 6 HLC 61; 10 ER 1216 …. 2.8 Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78; 78 ALD 289; [2002] FCA 859 …. 11.24 Griffin v Pantzer (2004) 137 FCR 209; 207 ALR 169; [2004] FCAFC 113 …. 5.38 Griffith Morgan Jones v Mortgage Acceptance Nominees Ltd [1995] FCA 1654 …. 9.5 — v — [1996] FCA 1255 …. 9.5 Griffith University v Tang (2005) 221 CLR 99; 213 ALR 724; [2005] HCA 7 …. 12.13 Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232; 246 ALR 218; [2008] HCA 20 …. 12.23 Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 45 FCR 445; 117 ALR 669 …. 4.52 Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 …. 11.5 xlv

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GTK Trading Pty Ltd v Export Development Grants Board (1981) 40 ALR 375; 56 FLR 292 …. 2.15 Gulf Air Company GSC v Fattouh (2008) 251 ALR 183; 230 FLR 311; [2008] NSWCA 225 …. A2.32 Gunner v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 507 …. 4.52 Guppy v Australian Postal Corporation (2013) 134 ALD 82; [2013] FCA 489 …. 9.5 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 …. 5.60

H H Lundbeck A/S v Commissioner of Patents (2017) 249 FCR 41; 154 ALD 471; [2017] FCA 56 …. A3.48 Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355; [1997] HCA 34 …. 1.24, 9.23 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 …. 3.9 Hack v Minister for Lands (NSW) (1906) 3 CLR 10; [1906] HCA 37 …. 7.11 Halal Certification Authority Pty Ltd v Quality Kebab Wholesalers Pty Ltd (No 2) (2014) 223 FCR 540; 107 IPR 540; [2014] FCA 840 …. 10.23 Hall v Jones (1942) 42 SR (NSW) 203 …. 2.41, 2.58, 2.60, 4.3, 6.12 — v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387; 59 ALD 458; [2000] FCA 415 …. 11.33 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; 261 ALR 741; [2009] NSWCA 372 …. 12.17 Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 …. 2.63 Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20; 35 ALD 205 …. 4.73, 11.35

Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113 …. 1.17 Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95; [2000] FCA 1830 …. 10.28 Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 …. 6.10 Hanlon v Law Society [1981] AC 124 …. A3.48 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 …. A1.16 Hanson v Barwise [1930] St R Qd 285 …. 4.65 Harding v Coburn [1976] 2 NZLR 577 …. 12.4 — v Commissioner of Stamps (Qld) [1898] AC 769 …. 10.13 Harding, Re; Thornton v Perpetual Trustees WA Ltd [1983] WAR 266 …. 4.11 Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 All ER 309; [1966] 1 WLR 287 …. 3.34 Harofam Pty Ltd v Scherman (2013) 42 VR 372; [2013] VSCA 104 …. 1.20 Harris v Federal Commissioner of Taxation (2001) 189 ALR 611; [2001] FCA 1689 …. 12.8 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 …. 3.30, 3.42, A2.22, A5.9, A5.44 Hart v Commissioner, Australian Federal Police (2002) 124 FCR 384; 196 ALR 1; [2002] FCAFC 392 …. 9.40 Harty v Harcourt; Ex parte Harcourt [1936] St R Qd 1 …. A7.31 Harvey v Harvey (1951) 68 WN (NSW) 241 …. 11.4 — v Mutsaers (2012) 35 VR 389; [2012] VSCA 69 …. 11.4 Hassan v Secretary, Department of Family and Community Services (1999) 95 FCR 26; 57 ALD 643 …. A3.39

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Hassell, Re; Ex parte Norman & Pride (No 2) (1984) 2 FCR 319; 55 ALR 219 …. 11.9, 11.12 Hassell, Re; Ex parte Pride (1984) 1 FCR 387; 52 ALR 181 …. 10.23 Hastings Co-Operative Ltd v Port Macquarie Hastings Council (2009) 171 LGERA 152; [2009] NSWCA 400 …. 6.4, A6.3 Hastings Point Progress Assoc Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 …. 4.64 Hatfield v Health Insurance Commission (1987) 15 FCR 487; 77 ALR 103 …. A12.7 Hatfield Enterprises Pty Ltd & Companies Act, Re (1982) 40 ALR 513; [1982] 1 NSWLR 430 …. 9.51 Hatton v Beaumont [1977] 2 NSWLR 211 …. 11.18, 11.25, 11.35 — v Beaumont (1978) 52 ALJR 589; 20 ALR 314 …. 11.25, 11.33 Haureliuk v Furler (2012) 6 ACTLR 151; 259 FLR 28; [2012] ACTCA 11 …. 2.26, A2.45 Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18 …. 10.13, 10.17 Hawthorn Pty Ltd v State Bank of South Australia (1993) 40 FCR 137; 112 ALR 691 …. A5.18 Hayes v Cable (1961) 78 WN (NSW) 735; [1962] SR (NSW) 1 …. 5.60, A3.38 Hayman v Cartwright [2018] WASCA 116 …. 8.10 Hazelwood v Webber (1934) 52 CLR 268; [1934] HCA 62 …. 7.17 He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449; [1985] HCA 43 …. 9.28 Health Insurance Commission v Peverill (1994) 179 CLR 226; 119 ALR 675; [1994] HCA 8 …. 10.10 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; 14 ALR 519; [1977] HCA 39 …. 4.43



Heffernan v Comcare (2014) 218 FCR 1; 141 ALD 506; [2014] FCAFC 2 …. 6.4 Helvering v Gregory (1934) 69 F 2d 809 …. 9.44 — v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276; 29 ALR 597 …. A12.7 Henderson v Read [1993] 1 VR 537 …. 10.31 Henwood v Municipal Tramways Trust (1938) 60 CLR 438; [1938] HCA 35 …. 9.38 Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1; 94 ALR 81 …. 6.9 — v — (1991) 173 CLR 492; 102 ALR 497; [1991] HCA 39 …. 3.39, 9.44 Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal (2006) 24 VAR 174; [2006] VSCA 7 …. 2.62 Herbert Adams Pty Ltd v Federal Commissioner for Taxation (1932) 47 CLR 222; [1932] HCA 27 …. 2.41, 4.23 Heublein Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153; [1962] HCA 97 …. 4.49 Heward v R (1905) 3 CLR 117; [1905] HCA 48 .... A9.45 Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FCR 206; 203 ALR 51; [2003] FCAFC 256 …. A1.18, A3.52 Heydon v Gell (1900) 21 LR (NSW) (Eq) 265 …. 10.27 Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637 …. 1.3, 2.9 HFM043 v Republic of Nauru (2018) 359 ALR 176; [2018] HCA 37 …. 2.56, A2.56 Higgon v O’Dea [1962] WAR 140 …. 2.7 Hill v Villawood Sheet Metal Pty Ltd (1970) 72 SR (NSW) 33 …. 7.1 Hillingdon London Borough Council v Cutler [1968] 1 QB 124 …. 12.21 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2002) 55 NSWLR 446; [2002] NSWCA 301 …. 7.9

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Hills v Stanford (1904) 23 NZLR 1061 …. 3.50 Hilton v Commissioner of Taxation (1992) 38 FCR 170; 110 ALR 167 …. A2.59 Hinterland Marine Pty Ltd v Maritime Global Pty Ltd [2010] FCA 683 …. 4.41, 4.75 Hinton Demolitions Pty Ltd v Lower (No 2) [1971] 1 SASR 512 …. 2.62 HJA Holdings Pty Ltd and ACT Revenue Office [2011] ACAT 91 …. A3.36 Ho v King (1994) 34 ALD 510 …. 9.5 Hobbs v Brisbane Municipality (1876) 4 QSCR 214 …. 4.28 Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12 …. 2.12, A3.10 — v Western Australian Bank (1909) 9 CLR 738 …. 5.35 Hodges v Kovacs Estate Agency Pty Ltd [1961] WAR 19 …. 5.27 Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148 …. 7.14, 7.21, A4.51 Hogan v Hinch (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4 …. 5.60 Hogg v Parochial Board of Auchtermuchty (1880) 7 R (Ct of Sess) 986 …. 9.56 Holden v Nuttall [1945] VLR 171 …. 2.61 Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; [1932] HCA 1 …. 9.5 Holzberger v Secretary, Department of Health and Ageing (2007) 158 FCR 586; [2007] FCAFC 68 …. A3.49 Hooker v Gilling [2007] NSWCA 99 …. 3.39, 3.41 Hore v Albury Radio Taxis Co-Operative Society Ltd (2002) 56 NSWLR 210; [2002] NSWSC 1130 …. 3.46, A4.18 Horgan v Sieber; Ex parte Horgan [1976] Qd R 25 …. 5.14 Horne v Dalgety & Co Ltd (1913) 33 NZLR 405 …. A3.37 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639; [1978] HCA 11 …. 4.66

Hoskin v Greater Bendigo City Council (2015) 48 VR 715; [2015] VSCA 350 …. 5.23 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 111 ALR 1 …. A2.52, A2.57 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; 134 ALR 469; [1996] HCA 44 …. 12.4 Hotel Esplanade Pty Ltd v City of Perth [1964] WAR 51 …. 7.18 Hoult & Hoult (2013) 276 FLR 412; [2013] FamCAFC 109 …. 1.13 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440; [2000] NSWCA 44 …. 3.33 Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; 38 ALR 577; [1982] HCA 2 …. 4.45, 5.51 Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 …. 4.47 — v Bodington (1877) 2 PD 203 …. 11.1 — v Bondfield (1974) 3 ACTR 62 …. A10.28 Howell v O’Brien [2009] NSWSC 538 …. 9.9 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; 184 LGERA 104; [2011] NSWCA 349 …. 11.32 HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553; 219 ALR 591; [2005] FCAFC 126 …. 9.49, A3.10 HR Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 …. 4.26 Hudson v Minister for Immigration and Citizenship (2010) 188 FCR 393; 272 ALR 605; [2010] FCAFC 119 …. 3.44, 4.64, 9.4 Hughes v Winter [1955] SASR 238 …. 4.39 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301; 118 ALR 80 …. 12.11, 12.15

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— v Secretary, Department of Immigration and Multicultural Affairs (1996) 67 FCR 83; 137 ALR 207 …. A4.47 Humphreys v Smith; Ex parte Smith [1963] Qd R 67 …. 3.59 Humphries v Poljak [1992] 2 VR 129 …. 3.24 Hunter v Hunter [1919] VLR 153 …. 11.29 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49; [1970] HCA 63 …. 4.58 Hunter Resources Ltd v Melville (1988) 164 CLR 234; 77 ALR 8; [1988] HCA 5 …. 3.27, 3.48, 11.22, A3.38, A3.48 Hunter’s Hill Council v Minister for Local Government (2017) 346 ALR 31; [2017] NSWCA 188 …. 3.33 Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429; [2011] NSWCA 378 …. 4.40 Huntsman Chemical Co of Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 …. A1.18 Hursey v Taylor [1971] Tas SR 212 …. 9.28 Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308; [2003] NSWCA 179 …. 6.14 Husky Injection Molding Systems Ltd v Commissioner of Patents (1990) 26 FCR 45; 98 ALR 133 …. 9.5 Hutchinson v Jauncey [1950] 1 KB 574 …. 10.14 Hyland v Commissioner for Railways (1887) 8 LR (NSW) 212 …. 4.28

I Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 …. 11.26, A2.56, A11.23 Ibrahim v Pham [2004] NSWSC 650 …. A1.10 ICI (Australia) Ltd v Federal Commissioner of Taxation (1972) 127 CLR 529; [1972] HCA 75 …. 4.26



ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564; 106 ALR 257 …. 3.17 — v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47 …. 11.10 ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966 …. A4.64 Iliafi v Church of Jesus Christ of LatterDay Saints Australia (2014) 221 FCR 86; 311 ALR 354; [2014] FCAFC 26 …. A2.32 IMC Aviation Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303; 282 ALR 717; [2011] VSCA 248 …. 1.23 IMF (Australia) Ltd v Sons of Gwalia Ltd (admin appt’d) (2005) 143 FCR 274; 222 ALR 109; [2005] FCAFC 75 …. A4.73 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; 318 ALR 391; [2015] HCA 14 …. 6.4 Industry Research and Development Board v Phai See Investments Pty Ltd (2001) 112 FCR 24; [2001] FCA 532 …. 9.5 Informax International Pty Ltd v Clarins Group Ltd (2012) 207 FCR 298; 294 ALR 691; [2012] FCAFC 165…. A3.58 Ingham v Hie Lee (1912) 15 CLR 267; [1912] HCA 66 …. 2.58 Inland Revenue Commissioners v Joiner [1975] 1 WLR 1701 …. 10.13, A8.5 — v Westminster (Duke) [1936] AC 1 …. 9.42 Inline Courier Systems Pty Ltd v Walker [1999] 1 VR 405; [1998] VSCA 131 …. 3.25 Innes-Irons v Forrest [2016] VSC 782 …. A4.44 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; 276 ALR 497; [2011] HCA 16 …. 5.14, 5.16 Institute of Patent Agents v Lockwood [1894] AC 347 …. 3.50 xlix

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Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; 206 ALR 335; [2004] HCA 24 …. 1.5, 12.12 Interhealth Energies Pty Ltd v Commissioner of Taxation (2012) 209 FCR 33; [2012] FCAFC 185 …. 10.4 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; 111 ALR 577 …. 3.39 International Litigation Partners Pte Ltd v Chameleon Mining NL (2012) 246 CLR 455; 292 ALR 233; [2012] HCA 45 …. 6.9 International Writing Institute Inc v Rimila Pty Ltd (1993) AIPC 39,736 …. 2.60 IR Commrs v Gittus [1920] 1 KB 563 …. 4.68 Ireland v Johnson, CEO Department of Corrective Services (2009) 189 IR 135; [2009] WASCA 162 …. A2.41 Irving v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 423; 38 ALD 529 …. A3.27 Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 …. 3.5 Iskra, Re; Ex parte Mercantile Transport Co Pty Ltd [1963] SR (NSW) 538 .... 5.13 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 …. 7.13 IW v City of Perth (1997) 191 CLR 1; 146 ALR 696; [1997] HCA 30 …. 2.21, 2.24, 9.3, 9.5

J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632 …. 9.5 Jaber v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 506; [2001] FCA 1878 …. 2.50 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51; 180 ALR 569 …. A1.10 Jack v Fairymead Sugar Co Ltd; Ex parte Fairymead Sugar Co Ltd (1917) 11 QJPR 109 …. 4.28 Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 …. 10.24 Jackson v Harrison (1978) 138 CLR 438; 19 ALR 129; [1978] HCA 17 …. 9.38 Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289 …. 1.9 Jacobsen v Rogers (1995) 182 CLR 572; 127 ALR 159; [1995] HCA 6 …. 5.17, 5.18 James v Keogh (2008) 102 SASR 51; [2008] SASC 273 …. A10.35 James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 …. 2.31 James Hardie Industries NV v Australian Securities and Investments Commission (2010) 43 NSWLR 312; 274 ALR 85; [2010] NSWCA 332 …. 9.9 Jankovic v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 261 …. 4.12 Jasaitis, Ex parte (1970) 91 WN (NSW) 444 …. 8.4 Jellyn Pty Ltd v State Bank of South Australia [1996] 1 Qd R 271; (1995) 129 ALR 521…. 5.17 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257; [2011] HCA 19 …. 5.27 Jennings Constructions Pty Ltd v Workers’ Rehabilitation and Compensation Corporation (1998) 71 SASR 465 …. 12.9

J J & G Knowles and Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402; [2000] FCA 196 …. 12.8 J & P Lemming Holdings Pty Ltd v O’Keefe [1984] VR 1005 …. 10.30 J J Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297; 218 IR 454; [2012] FCAFC 53 …. 2.8, A2.20 J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532; [2000] FCA 365 …. A9.17 l

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Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5 …. 7.9 Jennings v Kelly [1940] AC 206 …. 4.69 Jilani v Wilhelm (2005) 148 FCR 255; 227 ALR 93; [2005] FCAFC 269 …. 9.40 Joffe v R; Stromer v R (2012) 82 NSWLR 510; [2012] NSWCCA 277 …. 3.7, 9.44 John v Federal Commissioner of Taxation (1989) 166 CLR 417; 83 ALR 606; [1989] HCA 5 …. 1.14, 9.51, A4.47 John Burke Ltd v Insurance Commissioner [1963] Qd R 587 …. 3.36, 3.48 John Danks & Son Pty Ltd v Collector of Imposts [1944] VLR 172 …. A9.45 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; 235 ALR 402; [2007] HCA 28 …. 11.15 John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11 …. 10.30 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625; [2000] HCA 36 …. 10.22, A10.35 John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21 …. 7.19 Johns v Australian Securities Commission (1993) 178 CLR 408; 116 ALR 567; [1993] HCA 56 …. 5.60 — v Connor (1992) 35 FCR 1; 107 ALR 465 …. A5.31 Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92; 9 ALR 343; [1976] HCA 19 …. 5.49 Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544; [1948] HCA 46 …. 1.14 Johnston, Fear & Kingham v Commonwealth (1943) 67 CLR 314; [1943] HCA 18 …. A5.25 Jol v New South Wales (1998) 45 NSWLR 283; 104 A Crim R 516 …. 11.33 Jolly v District Council of Yorketown (1968) 119 CLR 347; [1968] HCA 55 …. 12.33, 12.34 Jomal Pty Ltd v Commercial and Consumer Tribunal [2009] QCA 326; [2010] 2 Qd R 409 …. A2.22



Jones v Daniel (2004) 141 FCR 148; 212 ALR 588; [2004] FCA 1500 …. 1.12 — v Territory Insurance Office (1988) 55 NTR 17 …. A11.26 — v White (2005) 43 MVR 530; [2005] WASC 40 …. 3.49 Jones and Hannan v Commissioner of Taxes [1942] Tas SR 1 …. A7.31 Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451; [2003] NSWSC 815 …. 9.5 Joseph v Worthington [2018] VSCA 102 …. 9.34 Joseph Suche and Co Ltd, Re (1875) 1 Ch D 48 …. 10.14 Josephson v Walker (1914) 18 CLR 691; [1914] HCA 68 …. A5.51 Joyce v Grimshaw (2001) 105 FCR 232; 182 ALR 602; [2001] FCA 52 …. 1.16, 4.15 — v Paton (1941) 58 WN (NSW) 88 …. 4.72 Julius v Bishop of Oxford (1880) 5 App Cas 214 …. 11.6, 11.8 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; [1908] HCA 95 …. 5.12, 5.24

K K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; 60 ALR 509; [1985] HCA 48 …. 2.19, 3.5, 4.2, 4.67 Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 …. A4.47 Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295; 110 ALR 38 …. 3.39 Kanak v Minister for Land and Water Conservation (2000) 106 FCR 31; 180 ALR 489; [2000] FCA 1105 …. A12.10 — v National Native Title Tribunal (1995) 61 FCR 103; 132 ALR 329 …. 9.5 Kaporonowski v R (1973) 133 CLR 209; 1 ALR 296; [1973] HCA 35 …. 8.9 Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348 …. 12.26, A1.6, li

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Karim v R (2013) 83 NSWLR 268; 274 FLR 388; [2013] NSWCCA 23 …. 1.17 Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473; 96 ALR 629 …. 9.40 Karounos v Flavel (1984) 2 ACLC 394 …. 4.49 Karounos, Re; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177; 89 ALR 580 …. 12.34 Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 …., 5.6, 7.1, A3.11, A3.12, A3.14 Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117; 16 ALR 535; [1977] HCA 55 …. 12.31 Kavalee v Burbidge (1998) 43 NSWLR 422 …. 9.3, 9.5 Kay v Goodwin (1830) 6 Bing 576; 130 ER 1403 …. 3.37 Kay’s Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79 …. 5.16 Kaye v Attorney-General for Tasmania (1956) 94 CLR 193; [1956] HCA 3 …. 5.19 Keating v Calas [1974] VR 381 …. 10.31 Kelly v R (2004) 218 CLR 216; 205 ALR 274; [2004] HCA 12 …. 2.24, 6.3 — v Saadat-Talab (2008) 72 NSWLR 305; 251 ALR 398; [2008] NSWCA 213 …. 4.46, 4.48 Kenneally v New Zealand (1999) 91 FCR 292; 166 ALR 625; [1999] FCA 1320 …. 4.16 Kennedy v Anti-Discrimination Commission of the Northern Territory (2006) 226 FLR 34; 92 ALD 134; [2006] NTCA 9 …. 6.13, 9.7 — v Australian Fisheries Management Authority (2009) 182 FCR 411; [2009] FCA 1485 …. 9.4 — v Australian Securities and Investments Commission (2005) 142 FCR 343; 218 ALR 224; [2005] FCAFC 32 …. A1.18 Kenny v Maher (1993) 70 A Crim R 333 …. 9.26, 10.14

Kerr v Verran (1989) 88 ALR 125 …. 3.42 Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 79 ALR 534 …. 4.58 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 …. A5.5, 5.60, A3.8 Kheir v Department of Justice and Regulation [2019] VSC 76 …. 9.5 Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104; 122 ALR 453 …. 11.7 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; 54 ALR 639 …. 9.3, 9.6 Kierath, Minister for Heritage, Re; Ex parte City of Fremantle (2000) 22 WAR 342; [2000] WASCA 156 …. A4.73 Kiernan v Lipman [1920] VLR 81 …. 8.2 Killeen, Re [1959] Tas SR 66 …. 8.6 Killen and Crown Lands Act, Re (1981) 8 NTR 8 …. 10.37 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 …. 2.24 Kiriwina Investment Company Pty Ltd v Green Lees Developments Pty Ltd [2018] NSWCA 210 …. A2.56 Kirkness (Inspector of Taxes) v John Hudson & Co Ltd [1955] AC 696; [1955] 2 All ER 345 …. 3.39, 3.41 Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533 …. 4.26 Kitt v Tourism Commission (1987) EOC 92-196; 64 ALJ 116 …. 4.56 Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71; 79 ALR 161; [1988] HCA 34 …. 11.24 Kline v Official Secretary to the Governor-General [2012] FCAFC 184; (2012) 208 FCR 89; 295 ALR 398 …. A2.22 KMJ v Tasmania (2011) 20 Tas R 425; [2011] TASCCA 7 …. 1.21 Knight v FP Special Assets Ltd (1992) 174 CLR 178; 107 ALR 585; [1992] HCA 28 …. 5.51, 9.5 lii

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Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24; 33 ALD 759 …. A3.39 Konestabo v Brown [2001] TASSC 152 …. 4.46 Koop v Bebb (1951) 84 CLR 629; [1951] HCA 77 …. A5.13 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417; [1982] HCA 27 …. 2.31 Korczynski v Wes Loftus (Aust) Pty Ltd (1985) 10 FCR 348; 62 ALR 225 …. 4.11 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110; 148 ALR 498 …. A2.32 Kouraim v Minister for Immigration and Multicultural Affairs [2001] FCA 1824 …. 2.50 Koutsoukos v Loader (1991) 109 FLR 114 …. 9.25 Kozel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 181; 82 ALD 73; [2004] FCA 658 …. 4.30 KP Welding Construction Pty Ltd v Herbert (1995) 102 NTR 20 …. 2.10, A2.43 Krakouer v R (1998) 194 CLR 202; 155 ALR 586; [1998] HCA 43 …. 9.13 Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647; [1945] HCA 29 …. 10.30 Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126; [1997] HCA 27 …. 5.60 Kumagai Gumi Co Ltd v Federal Commissioner of Taxation (1999) 90 FCR 274; 161 ALR 699; [1999] FCA 235 …. 5.13 Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 …. 3.35 Kunakool v Boys (1987) 14 FCR 489; 77 ALR 435 …. 8.11 Ku-ring-gai Municipal Council v AttorneyGeneral (NSW) (1957) 99 CLR 251; [1957] HCA 61 …. 7.1



Kuru v New South Wales (2008) 236 CLR 1; 246 ALR 260; [2008] HCA 26 …. 5.60 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334; 35 ALR 186 …. 11.29 Kutlu v Director of Professional Services Review (2011) 197 FCR 177; 280 ALR 428; [2011] FCAFC 94 …. 11.15, 11.32

L L, G v Minister for Families and Communities (2012) 113 SASR 152; [2012] SASCFC 72 …. 3.13 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 …. 9.23, 10.4 La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151; 113 ALR 137 …. 12.14 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; 275 ALR 646; [2011] HCA 10…. 2.3, 5.50, A3.26, A5.42 Lai v Chamberlains [2007] 2 NZLR 7 …. 1.24 Laird v Municipality of Portland [1958] Tas SR 90 …. 7.29 Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327; [1971] ALR 362; [1970] HCA 32 …. 2.59, 4.17, 4.18, 4.20 Lake Macquarie Shire Council v Ades [1977] 1 NSWLR 126 …. 4.37 Lamb v Moss (1983) 76 FLR 296; 49 ALR 533 …. 11.5, 11.9, 11.11 Lambe v Director-General of Social Services (1981) 4 ALD 362 …. 4.60 Lamont v Keenan (2003) 38 MVR 381; [2003] WASCA 82 …. 4.12 — v Commissioner for Railways (1963) 80 WN (NSW) 1242 …. 6.6, 6.7 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96; [1997] HCA 25 …. 5.60 Langford v Commissioner of Corrective Services (1993) 31 NSWLR 662 …. A5.13 liii

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Lardil Peoples v Queensland (2001) 108 FCR 453; 185 ALR 513; [2001] FCA 414 …. 11.18 Latham (dec’d), Re [1962] Ch 616 …. 4.35 Law Society of the ACT & Treasury Directorate and NRMA Insurance [2013] ACAT 36 …. 5.58 Lawrence, Re; Ex parte Westpork Pty Ltd (2012) 226 A Crim R 393; [2012] WASC 487 …. A11.25 Lawrie and Secretary, Department of Family and Community Services, Re  (1998) 54 ALD 483 …. A2.45 Le Cornu Furniture and Carpet Centre Pty Ltd v Parsons (1990) 54 SASR 108 …. A2.58 Le Grand v Federal Commissioner of Taxation (2002) 124 FCR 53; 195 ALR 194; [2002] FCA 1258 …. 12.12 Leach v R (2007) 230 CLR 1; 232 ALR 325; [2007] HCA 3 …. 11.7 Leah v Two Worlds Publishing Co Ltd [1951] 1 Ch 393 …. 4.69 Leask v Commonwealth (1996) 187 CLR 579; 140 ALR 1; [1996] HCA 29 …. 4.63 Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62 …. 4.3 — v New South Wales Crime Commission (2013) 251 CLR 196; 302 ALR 363; [2013] HCA 39 …. 2.3, 5.3, 5.8 — v R (2014) 253 CLR 455; 308 ALR 252; [2014] HCA 20 .... 5.38, 5.39 — v Showmen’s Guild of Great Britain [1952] 2 QB 329; [1952] 1 All ER 1175 …. 3.33 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; 300 ALR 430; [2013] HCA 35 …. A2.57 Lemair (Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167 …. A3.5 Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 …. 4.33 Lennon v Gibson and Howes Ltd (1919) 26 CLR 285; [1919] AC 709 …. 3.42

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513; [1979] HCA 26 …. 4.52, 4.53, 12.31, A2.43, A4.47 Leonard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306; 159 LGERA 420; [2008] NSWCA 121 …. A2.57 Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27; 203 ALR 420; [2003] FCAFC 285 …. 4.58, A2.57 Leue v Reynolds (1986) 4 NSWLR 590 …. A3.48 Leveridge v Kennedy [1960] NZLR 1 …. 4.69 Lewis v French [1962] Tas SR 138 …. 7.3, 9.24 Licensing Ordinance, Re (1968) 13 FLR 143 …. 2.49 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; [1992] HCA 64 …. 5.11, 5.24 Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612 …. 9.5 Lindner v Wright (1976) 14 ALR 105 …. 2.45 Ling v Commonwealth (1994) 51 FCR 88; 123 ALR 65 …. 5.21 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560; 56 ACSR 263; [2005] FCA 1812 …. 1.5 Lionsgate Australia Pty Ltd v Macquarie Private Portfolio Management Ltd (2007) 210 FLR 106; 240 ALR 385; [2007] NSWSC 318 …. 5.60 Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65 .... 5.12 Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 …. 12.21 Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135 …. 9.52 Liversidge v Anderson [1942] AC 206 …. 1.1 Liyanage v R [1967] 1 AC 259 …. 10.9 Llewellyn v Resource Management and Planning Appeal Tribunal [2007] TASSC 21 …. A3.35 liv

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Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 …. 4.72 Lloyd v Commissioner of Taxation (1955) 93 CLR 645; [1955] HCA 645 …. 4.13 LM v K Lawyers (No 2) [2015] WASC 245 …. 4.7 Logan City Shopping Centre Pty Ltd v Retail Shop Lease Tribunal [2006] QSC 172; [2007] 1 Qd R 246 …. A3.39 Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31; 117 FLR 135 …. 9.5, 12.21, A4.57 London Transport Executive v Betts [1959] AC 213; [1958] 2 All ER 636 …. 1.11 London & West Australian Exploration Co Ltd v Ricci (1906) 4 CLR 617; [1906] HCA 72 …. A3.37 Lord v Blake (1918) 35 WN (NSW) 2 …. 7.14 Lordianto v Commissioner of Australian Federal Police [2018] NSWCA 199 …. A2.56 Lorimer v Smail (1911) 12 CLR 504; [1911] HCA 44 …. 4.13 Low v Performance Finance Ltd (recs & mgrs apptd) (2004) 28 WAR 512; 185 FLR 9; [2004] WASC 80 …. 3.36 LP v R [2013] NSWCCA 330 …. 1.21 Lugg v Wright [1941] SASR 106 …. 11.11 Luke v Inland Revenue Commissioners [1963] AC 557 …. 2.24 Lukey v Edmunds (1916) 21 CLR 336; [1916] HCA 25 …. A7.20 Lumsden v Inland Revenue Commissioners [1914] AC 877 …. 9.42 Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24; 197 ALR 433; [2002] FCAFC 369 …. A3.12 Lyford v Commonwealth Bank of Australia (1995) 130 ALR 267 …. 4.44 Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474 …. 9.52



Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ….,4.63, 4.64, A4.60 Lyons v Registrar of Trade Marks (1983) 50 ALR 496 …. 4.52, 4.54 — v Smart (No 1) (1908) 6 CLR 143; [1908] HCA 34 …. A9.11 Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158 …. 1.20

M M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 …. 11.26 M Collins & Son Pty Ltd v Bankstown Municipal Council (1958) 3 LGRA 216 …. 3.44 M, Re (1924) 26 WALR 115 …. 11.3, 11.5 Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202; 159 ALR 465 …. 12.11 Macalister v R (1990) 169 CLR 324; 92 ALR 39; [1990] HCA 15 …. 2.24 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; [2001] WASCA 61 …. 10.14 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; 52 ALR 53; [1984] HCA 20 …. 9.46, 9.47 Macdougall v Paterson (1851) 11 CB 755; 138 ER 672 …. 11.7, 11.9 Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8; 160 ALR 489 …. 12.15 MacFarlane v Burke; Ex parte Burke [1983] 2 Qd R 584 .... A6. Machin v Board of Trustees (2010) 189 FCR 85; 272 ALR 508; [2010] FCA 969 …. 9.5 MacKaness and Avery Pty Ltd, Ex parte; Royce, Re (1943) 43 SR (NSW) 239 …. 4.25 MacKay v Davies (1904) 1 CLR 483; [1904] HCA 20 …. 3.55 lv

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Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287; 191 ALR 543; [2002] HCA 37 …. 3.47 MacManaway, Re; House of Commons (Clergy Disqualification) Act 1801, Re [1951] AC 161 …. 3.39 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 …. 4.58 Macquarie Media Holdings Ltd v Australian Communications and Media Authority (2009) 173 FCR 582; [2009] FCAFC 1 …. 7.2 Maddalozzo v Maddick (1992) 84 NTR 27; 108 FLR 159 …. 12.20, A2.43 Magaming v R (2013) 302 ALR 461; [2013] HCA 40 …. 9.33 Magic Australia Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 19 FCR 389; 84 ALR 483 …. 9.9 Magor and St Mellons RDC v Newport Corp [1952] AC 189 …. 2.51 Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121; [1932] HCA 10 …. 5.6, 5.48 Maher v Hamilton [1990] Tas R 199 …. 9.26 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; 310 ALR 113; [2014] NSWCA 184 …. 4.77 Makucha v Albert Shire Council (1993) 81 LGERA 243 …. 5.50 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; 178 ALR 218; [2001] HCA 14 …. 5.8, 5.9 Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66; [1920] HCA 51 …. 9.59 Mamote-Kulang of Tamagot v R (1964) 111 CLR 62; [1964] HCA 21 …. 8.9 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409; 262 ALR 614; [2010] HCA 2 …. 5.26 Manly Council v Malouf t/as Fusion Fashion (2004) 61 NSWLR 394; [2004] NSWCA 299 …. 3.33, 6.4, 9.5 Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186 …. 4.31

Manningham City Council [2010] VSC 267; (2010) 27 VR 643 …. A3.37 Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; 228 ALR 214; [2006] HCA 38 …. 5.51, 11.16 Maple v Kerrison (1978) 18 SASR 513; 19 ALR 152 …. 9.22 Marbury v Madison 5 US 87 (1803) …. 1.26 Marina Bay Developments Pty Ldt v Pittwater Council [2007] NSWLEC 41 …. 4.30 Marine Board of Strahan v Kirkpatrick [1967] Tas SR 179 …. 4.79 Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 …. 4.26 Marino v Police [2017] NZHC 1348 …. 1.24 Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180 …. 12.17 Maritime Union of Australia; Ex parte CSL Pacific Inc, Re (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 …. 5.24 Markell v Wollaston (1906) 4 CLR 141 …. 4.23 Maroondah City Council v Fletcher (2009) 29 VR 160; [2009] VSCA 250 …. 4.47, A2.12, A2.43, A3.45, A3.49 Marrone v Employers Mutual Ltd (as an Agent for Workcover Corporation of South Australia) (2013) 116 SASR 501; [2013] SASCFC 67 …. A3.48 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; 180 ALR 351; [2001] HCA 37 …. 1.10, 1.19, 1.21, 5.26 — v Watson (1972) 124 CLR 640; [1972] HCA 27 …. 2.51 Martin v Comcare (2016) 258 CLR 467; 339 ALR 1; [2016] HCA 43 …. 4.70 — v Commonwealth (1975) 7 ACTR 1 …. 12.20 Martinez v Minister for Immigration and Citizenship (2009) 117 FCR 337; 256 ALR 32; [2009] FCA 528 …. 10.14, A4.57 lvi

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Masson v Parsons [2019] HCA 21 …. 3.41 Massy v Yass Municipal Council (1922) 22 SR (NSW) 494 …. 11.16 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38 …. 11.34, A3.48, A3.49 Master Retailers’ Association of New South Wales v Shop Assistants Union of New South Wales (1904) 2 CLR 94; [1904] HCA 39 …. 9.1 Masters v McCubbery [1996] 1 VR 635 …. 3.25 Mathews v Foggitt Jones Ltd (1925) 37 CLR 455; [1925] HCA 13 …. 9.8 — v Health Insurance Commission (2006) 90 ALD 49; [2006] FCA 195 .… 11.15 Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4 …. 7.2, 7.3, 10.1 Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 …. 9.38 — v Tap Inn Pty Ltd [2015] SADC 108 …. A4.57 Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4 …. A3.37 Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 …. 4.41 Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145 …. 4.10 Maunsell v Olins [1975] AC 373 …., 5.34, A2.41, A8.5 Maurice’s Application, Re; Ex part Attorney-General (NT) (1987) 18 FCR 163; 77 ALR 27 …. 3.9 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 …. 10.1, 10.3, 10.7, 10.8, 10.9, 10.21, 10.22, 10.26, 10.31, 10.32, 10.34 May and Commissioner for Superannuation, Re (1979) 2 ALD 951 …. 7.26 Maybury v Plowman (1913) 16 CLR 468; [1913] HCA 43 …. 7.21, 8.3, 8.4 Mayor, etc of Geelong v Geelong Harbour Trust Commissioners [1923] VLR 652 …. 4.76 MBD Management Pty Ltd v Butcher [2010] FCA 1071 …. A3.42



McAusland v Deputy Commissioner of Taxation (1993) 47 FCR 369; 118 ALR 577 …. 9.9 McCaskill v Marzo (1944) 46 WALR 64 …. 11.9 McCloy v New South Wales (2015) 257 CLR 178; 325 ALR 15; [2015] HCA 34 …. 5.60 McComb, Re [1999] 3 VR 485 …. 9.2 McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation (2005) 142 FCR 134; 219 ALR 346; [2005] FCAFC 67 …. 2.37 McDonald v Bojkovic [1987] VR 387 …. 9.18 — v Hanselmann (1998) 28 ACSR 49; [1998] NSWSC 171 …. 12.25 McEvoy v Incat Tasmania Pty Ltd (2003) 130 FCR 503; 46 ACSR 392; [2003] FCA 810 …. A3.36 McGavin, Ex parte; Re Berne (1945) 46 SR (NSW) 58 …. 11.9 McGee v Gilchrist-Humphrey (2005) 92 SASR 100; [2005] SASC 254 …. 3.13 — v Chitty [2010] WASC 67 …. A4.44 McGillivray v Piper (2000) 157 FLR 196; 182 ALR 282; [2000] WASCA 245 …. A7.31 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; 24 ALR 175; [1979] HCA 19 …. 4.9 McIntosh v Federal Commissioner of Taxation (1979) 45 FLR 279; 25 ALR 557 …. 12.12 McIntosh and Anderson (2013) 49 FamLR 316; [2013] FamCA 164 …. A3.52 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257; [1991] HCA 56 …. 10.22, A10.35 McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 …. A3.48 McKenzie v Secretary, Department of Social Security (1989) 18 ALD 1 …. 1.50, 10.15 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 …. 4.75 lvii

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— v Fosbery (1904) 1 CLR 546; [1904] HCA 55 …. 9.39 — v Westgarth (1906) 6 SR (NSW) 664 …. 4.45 McLean v Kowald (1974) 9 SASR 384 …. 7.22 McLeish v FT Eastment and Sons Pty Ltd (1970) 91 WN (NSW) 268 …. 4.7 McLennan v Collier Moat Ltd [1960] VR 132 …. 5.14 McMahon v Permanent Custodians Ltd [2013] NSWCA 275 …. 9.3 McMillan v Pryce (1997) 115 NTR 19 …. 4.7 — v Territory Insurance Office (1988) 57 NTR 24; 91 FLR 436 …. 12.20 McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; 221 ALR 285; [2005] HCA 55 …. 1.10, 1.14, 5.18 McNeill v R (2008) 168 FCR 198; 248 ALR 710; [2008] FCAFC 80 …. 7.12 MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16; 80 ALR 53 …. 10.31 McRae v Coulton (1986) 7 NSWLR 644 …. 5.60, 11.35 Medical Board v Du Maurier; Ex parte Du Maurier [1927] St R Qd 169 …. 9.12 Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 …. 1.7 Melbourne City Council v Melbourne Port Corporation [2003] VSC 200 …. 4.55 Melbourne City Link Authority v Telford Pty Ltd (2001) 113 LGERA 102; [2001] VSCA 54 …. 2.49 Melbourne Corporation v Barry (1922) 31 CLR 174; [1922] HCA 56 …. 3.54, 5.43, 5.60 Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230; [1925] HCA 15 …. 5.25 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 27 ALR 275 …. 9.27 Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 …. 4.30

Melbourne University Student Union (in liq) v Sherriff [2004] VSC 266 …. A1.18 Melbourne Water Corporation v Domus Design Pty Ltd (2007) 16 VR 539; [2007] VSC 114 …. 12.9 Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289; 104 ALR 89; [1991] HCA 53 …. 8.9 Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; 178 ALR 253; [2001] HCA 13 …. 9.5 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; 112 ALR 463 …. 12.13, 12.31 Mere Ngareta v Davy (1894) 13 NZLR 533 … 5.51 Meridien AB Pty Ltd v Jackson [2013] QCA 121; [2014] 1 Qd R 142 …. A2.61, A3.39 Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 …. 4.13 Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 …. 2.21 Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees’ Federation (1917) 24 CLR 85; [1917] HCA 64 …. 11.8, A2.59 Metropolitan Film Studios Ltd’s Application, Re [1962] 3 All ER 508; [1962] 1 WLR 1315 …. 3.43 Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 44; [1924] HCA 469 …. 4.2 Meyer Heine Pty Ltd v China Navigation Co Ltd (1996) 115 CLR 10; [1966] HCA 11 …. 5.24 Michael, Re; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511; [2002] WASCA 231 …. 4.25 Michelotti v Roads Corporation (2009) 26 VR 609; [2009] VSC 195 …. 5.51 Mijatovic v Legal Practitioners Complaints Committee (2008) 37 WAR 149; [2008] WASCA 115 …. 10.23 Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd (1972) 127 CLR 617; [1972] HCA 69 …. A.4.80

lviii

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Military Rehabilitation and Compensation Commission v Perry (2007) 164 FCR 307; 98 ALD 638; [2007] FCA 1586 …. 10.4 Mill v R (1988) 166 CLR 59; 83 ALR 1; [1988] HCA 70 …. 9.35 Miller v Commonwealth (1904) 1 CLR 668; [1904] HCA 34 …. 2.18 — v Lamb (1910) 29 NZLR 873 …. 8.5 Millner v Raith (1942) 66 CLR 1; [1942] HCA 21 …. 10.9, 10.12 Mills v Baitis [1968] VR 583 … 9.38 — v Meeking (1990) 169 CLR 214; 91 ALR 16; [1990] HCA 6 .... 2.3, 2.9, 2.18, 2.19, 2.20 Mine Subsidence Board v Jemena Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465 …. A7.31 — v Wambo Coal Pty Ltd (2007) 154 LGERA 60; [2007] NSWCA 137 …. 3.48 Minister Administering the Crown Lands Act v New South Wales Aboriginal Lands Council (2008) 237 CLR 285; 249 ALR 602; [2008] HCA 48 …. 3.6, 9.5 Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298; 112 ALR 529 …. 2.30, A2.32 Minister for Health v Thomson (1985) 8 FCR 213; 60 ALR 701 …. 11.33 Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213; 289 ALR 644; [2012] HCA 28 …. 2.38 Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; [1924] HCA 41 …. 10.23 Minister for Immigration and Border Protection v CQW17 (2018) 162 ALD 427; [2018] FCAFC 110 …. 2.48 — v Kumar (2017) 260 CLR 367; 343 ALR 33; [2017] HCA 11 …. A3.57 — v SZVFW (2018) 357 ALR 408; [2018] HCA 30 …. 2.13 Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497; 299 ALR 280, [2012] FCA 1440 …. 2.30 — v Haneef (2007) 163 FCR 414; 243 ALR 606; [2007] FCAFC 203 …. 5.60, 12.6, A5.5



— v Khadgi (2010) 190 FCR 248; 274 ALR 438; [2010] FCAFC 145 …. 12.17 — v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 …. 11.33 — v SZJGV (2009) 238 CLR 642; 259 ALR 595; [2009] HCA 40 …. A2.45, A3.10 — v SZKTI (2009) 238 CLR 489; 258 ALR 434, [2009] HCA 30 …. 4.53 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 153 ALR 463 …. A2.50 — v Sciascia (1991) 31 FCR 364; 103 ALR 307 …. 4.10, 5.60, A9.36 — v Tang Jia Xin (1994) 125 ALR 203; [1994] HCA 31 …. A3.26 — v Teoh (1995) 183 CLR 273; 128 ALR 353; [1995] HCA 20 …. 2.30, 3.12, 3.13, 5.24 Minister for Immigration and Multicultural Affairs v Dhingra (2000) 98 FCR 19; 61 ALD 65; [2000] FCA 406 …. 9.12, 9.39 — v Lim (2001) 112 FCR 589; [2001] FCA 512 …. 4.30 — v Savvin (2000) 98 FCR 168; 171 ALR 483; [2000] FCA 478 …. 1.23, 4.78 — v Sharma (1999) 90 FCR 513; 161 ALR 53; [1999] FCA 31 …. A3.37 — v Singh (2000) 98 FCR 469; 175 ALR 503; [2000] FCA 845 …. 12.10 — v WABQ (2002) 121 FCR 251; 197 ALR 35; [2002] FCAFC 329 …. 3.9, A2.32 Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 …. 3.19 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; 197 ALR 241; [2003] FCAFC 70 …. 5.11, A5.9 — v Ball [2004] FCAFC 91; (2004) 138 FCR 450; 81 ALD 277 …. A9.36 — v Hicks (2004) 138 FCR 475; 81 ALD 588; [2004] FCAFC 114 …. A1.12, A9.36 — v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 …. 4.47, 7.11, 7.12, 7.14, 7.24 lix

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— v QAAH of 2004 (2006) 231 CLR 1; 231 ALR 340; [2006] HCA 53 …. 2.36, 2.37 — v SZAYW [2005] FCAFC 154; (2005) 145 FCR 523; 223 ALR 1 …. A4.7 — v VFAD (2002) 125 FCR 249; 196 ALR 111; [2002] FCAFC 390 …. A3.12, A5.9 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 …. 3.13 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993; [2004] FCAFC 72 …. A9.17 Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 …. 5.36 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; 116 ALR 54 …. 2.43, 3.49 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 …. 4.63 Minister of Health v R; Ex parte Yaffe [1931] AC 494 …. 3.50 Minister of State for Customs and Excise v Aunger Accessories Pty Ltd [1969] SASR 441 …. 9.32 Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] HCA 4 …. 4.69 Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 …. 2.30 Mir Bros Development Pty Ltd v Atlantic Constructions Pty Ltd [1985] 1 NSWLR 632 …. 9.5 Mitchell v Bailey (2008) 168 FCR 370; 101 ALD 535; [2008] FCA 426 …. 2.23 — v R (1996) 184 CLR 333; 134 ALR 449; [1996] HCA 45 …. 11.7, 11.10 — v Scales (1907) 5 CLR 405 …. 7.9 Mitchell Sillar McPhee (A Firm) v First Industries Corporation (2006) 32 WAR 1; [2006] WASCA 24 …. A3.59 MLC Ltd v Deputy Commissioner of Taxation (2002) 126 FCR 37; 196 ALR 502; [2002] FCA 1491 …. 3.29

Mohamed v Minister for Immigration and Citizenship (2007) 161 FCR 408; 96 ALD 114; [2007] FCA 1004 …. A12.13 Moloney v Motor Accident Commission (2013) 117 SASR 189; [2013] SASCFC 58 …. 3.8, A3.8 Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 .... 5.57, 5.58 Monadelphous Engineering Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 …. A2.43 Monier Ltd v Szabo (1992) 28 NSWLR 53 …. A3.26 Monk, Re [1961] ALR 883 …. 10.33 Montreal Street Railway Co v Normandin [1917] AC 170 …. 11.23 Moody v French (2008) 36 WAR 393; [2008] WASCA 67 …. 3.17 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170; 81 ALD 565; [2004] FCA 1590 …. 3.19 Moran v Motor Accidents Authority of New South Wales (2013) 64 MVR 380; [2013] NSWSC 1135 …. A3.48 Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; 329 ALR 179; [2016] HCA 7 …. 6.14 Morgan v 15 Bannerman Street Pty Ltd [1971] 1 NSWLR 601 …. 7.6 — v Goodall (1985) 2 NSWLR 655 …. 5.13, 5.14 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; 247 ALR 714; [2008] FCAFC 70 …. 9.35 Morrison v Peacock (2002) 210 CLR 274; 192 ALR 173; [2002] HCA 44 …. A2.32 Mort v Bradley [1916] SALR 129 …. 4.9 Mount Barker Properties Ltd v District Council of Mount Barker (2001) 80 SASR 449; [2001] SASC 249 …. 12.14 MSP Nominees Pty Ltd v Commissioner of Stamps (SA) (1999) 198 CLR 494; 166 ALR 149; [1999] HCA 51 …. A3.8 Mt Isa Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 629 …. 4.54 Mudginberri Station Pty Ltd v Langhorne (1985) 7 FCR 482; 68 ALR 613 …. 5.60 lx

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Table of Cases

Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67 …. 4.57 Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs (1999) 166 ALR 449; [1999] FCA 1232 …. 1.23 — v — (2000) 97 FCR 284; [2000] FCA 357 …. 1.23 Mulpha Australia Ltd v Central Sydney Planning Committee [2018] NSWLEC 179 …. 2.15 Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275; 244 ALR 600; [2007] FCAFC 200 …. 9.5 Municipal District of Lambton (No 2), Re the (1899) 20 LR (NSW) (L) 378 …. 11.15 Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129; 37 ALR 559 …. 4.63 Murphy v Farmer (1988) 165 CLR 19; 79 ALR 1; [1988] HCA 31 …. 9.41, A4.9 Murphy, Re; Ex parte School Board of London (1877) 2 QBD 397 …. 7.12 Murray v R [1962] Tas SR 170 …. 8.11 Mustac v Medical Board of Western Australia [2007] WASCA 128 …. 1.17 MyEnvironment Inc v VicForests (2013) 42 VR 456; 306 ALR 624; [2013] VSCA 356 …. 2.21, A2.22 Myer Emporium Ltd v Commissioner of Stamp Duties (1967) 85 WN (Pt 2) (NSW) 115 …. 5.15 Myer Melbourne Ltd v Hammond [1984] VR 40 …. 10.28



Nanaimo Community Hotel Ltd, Re [1944] 4 DLR 638 …. 12.10 Napier v Sholl [1904] SALR 73 …. 1.45, 4.67 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 …. 3.17, 3.18, 3.19 Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353; [1959] HCA 7 …. 9.2 NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 133 FCR 506 …. A1.12 National Mutual Life Association of Australasia Ltd v Commissioner of Taxation (Cth) (2008) 69 ACSR 250; [2008] FCA 1871 …. A3.35 — v Godrich (1909) 10 CLR 1; [1909] HCA 93 …. 3.59 National Parks and Wildlife Service v Haig (1990) 21 NSWLR 482 …. 8.5 National Phonograph Co of Australia Ltd v Menck (1908) 7 CLR 481; [1908] HCA 96 …. A3.59 National Roads and Motorists’ Association v Whitlam (2007) 25 ACLC 688; [2007] NSWCA 81 …. 4.33 National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147; 289 ALR 27; [2012] FCAFC 59 …. 3.29, 4.19 National Trustees Executors and Agency Co of Australasia Ltd v R (1893) 19 VLR 132 …. A9.56 Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Ltd (2018) 363 ALR 717; [2018] FCA 1936 …. 4.13 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52; 231 ALR 380; [2006] HCA 54 …. 2.30, 2.36, 2.37 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 …. 1.25, A2.61 Nelson Tobacco Pty Ltd v Commissioner of Business Franchises [1994] 1 VR 498 …. 10.12

N N & D Ridolfo Pty Ltd v Mayer (1974) 7 SASR 530 …. 4.77 NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; 66 ALD 545; [2002] FCAFC 64 …. 12.34 Nafi v R (2012) 32 NTLR 124; 269 FLR 1; [2012] NTCCA 13 …. 9.26 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 …. 12.17 lxi

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Nemer v Holloway (2003) 87 SASR 147; [2003] SASC 372 …. A3.8 Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453; 160 ALR 184 …., 12.2, A1.1 Neumann Dredging Co Ltd v Collector of Customs (1987) 79 ALR 588 …. 6.8 New South Wales v Commonwealth (1990) 169 CLR 482; 90 ALR 355; [1990] HCA 2 …. A3.11 — v Corbett (2007) 230 CLR 606; 237 ALR 39; [2007] HCA 32 …. 9.40 — v Kable (2013) 298 ALR 144; [2013] HCA 26 …. 9.23 — v McMullin (1997) 73 FCR 246; 153 ALR 473 …. 10.29 — v Williamson (2012) 248 CLR 417; 293 ALR 440; [2012] HCA 57 …. 6.4 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; 339 ALR 367; [2016] HCA 50 …. 9.3 — v Minister Administering the Crown Lands Act (the Nelson Bay Claim) (2014) 88 NSWLR 125; 318 ALR 161; [2014] NSWCA 377 …. 5.32 New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71; [2003] NSWCA 245 …. 2.45, A2.45 New South Wales Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; 253 ALR 133; [2008] NSWCCA 252 …. 5.60 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Gosford City Council [2011] NSWIRComm 1026 …. A1.8 New Zealand and Australian Land etc Co v McIntyre (1901) 11 QLJ 68 …. 3.42 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; 149 ALR 623; [1997] HCA 53 …. 2.24, 3.5, 9.8, 9.11, A9.8, A2.20 Newcrest Mining Ltd v Thornton (2012) 248 CLR 555; 293 ALR 493; [2012] HCA 60 …. 1.19, 2.23

Newell v R (1936) 55 CLR 707; [1936] HCA 50 .... 10.31 Newmarch v Atkinson (1918) 25 CLR 381; [1918] HCA 53 …. 11.5, 11.9, 11.11 News Corporation Ltd, Re (1987) 15 FCR 227; 70 ALR 419 …. 4.74, A4.57 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; 203 ALR 33; [2003] FCA 1263 …. 1.12 Nichol v Thompson (1976) 12 ALR 528 …. 11.20, 11.33 Nicholas v Commissioner for Corporate Affairs [1988] VR 289 …. 10.8 Nicklin Election Petition; Turner v R, Re [1993] 1 Qd R 513 …. A11.20 Nicovations Australia Pty Ltd v Secretary, Department of Health (2016) 338 ALR 429; [2016] FCA 394 …. 12.14 Nigro v Secretary to Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 …. A5.58 Nikolaidis v Legal Services Commissioners [2007] NSWCA 130 …. A2.43 Nikolovsky v Government Insurance Office of New South Wales (1992) 28 NSWLR 549 …. A2.20 Nilant v Macchia (2000) 104 FCR 238; 178 ALR 371; [2000] FCA 1528 …. 9.2 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134; 121 ALR 577; [1994] HCA 27 …. 5.27 NM Superannuation Pty Ltd v Young (1993) 41 FCR 182; 113 ALR 39 …. 9.5 No 20 Cannon St Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 …. 4.52, 4.60 Nolan v Clifford (1904) 1 CLR 429; [1904] HCA 15 …. 8.2 NOM v Director of Public Prosecutions (2012) 38 VR 618; [2012] VSCA 198 …. 11.10 Nominal Defendant v Bagot’s Executor and Trustee Co Ltd [1971] SASR 346 …. A5.13 lxii

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— v GLG Australia Pty Ltd (2006) 228 CLR 529; 225 ALR 643; [2006] HCA 11 …. 12.16 — v Uele (2012) 82 NSWLR 308; [2012] NSWCA 271 …. A2.19 Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312; 153 ALR 439 …. 1.16, 9.9 Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc (2012) 38 VR 569; [2012] VSCA 91 …. A5.58 Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454; 161 ALR 120; [1999] FCA 10 …. 12.8 Norfolk Estates Ltd v Cadiz Corporation Pty Ltd (1978) 9 ATR 252 …. 9.42 Norrie v New South Wales Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 …. 3.33, 3.35, 3.42, 4.14, A4.7 Northern Land Council v Olney (1992) 34 FCR 470; 105 ALR 539 …. 4.27 Northern Suburbs General Cemetery Reserve Trust v Commonwealth; (1993) 176 CLR 555; 112 ALR 87; [1993] HCA 12 …. A4.60 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; 248 ALR 195; [2008] HCA 29 …. 5.60 — v Couzens (2004) 187 FLR 1; [2004] NTSC 50 …. 9.5 — v Griffiths (2019) 364 ALR 208; [2019] HCA 7 …. 5.60 Northrope v City of Hawthorn [1941] VLR 178; [1941] ALR 200 …. 3.56 Norton v Long [1968] VR 221 …. 2.62, 9.45 — v Norton [2009] FamCA 359 …. 1.7 Norvill v Chapman (1995) 57 FCR 451; 133 ALR 226 …. 12.34 NRMA Insurance Ltd v Motor Accidents Authority of New South Wales (2004) 61 NSWLR 264; [2004] NSWSC 567 …. 3.48 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80 …. 4.11



NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; 253 ALR 133; [2008] NSWCCA 252 …. 8.7, 10.1, 10.22, A5.9 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; 306 ALR 585; [2014] HCA 11 …. 4.14, 9.5 NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359 …. A1.18 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640 …. A9.17

O Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; 257 ALR 558; [2009] NSWCA 183 …. A3.30 Obeid v Victorian Urban Development Authority (2012) 188 LGERA 56; [2012] VSC 251 …. 5.26 O’Brien v Gillies (1990) 69 NTR 1 …. 4.45, 5.60 Occidental Life Insurance Co of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444; 111 ALR 261 …. A2.58 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276; [1963] HCA 22 …. 7.28 Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 154 FLR 129; 168 ALR 211; [1999] NSWCA 416 …. 12.9 O’Connell v Nixon (2007) 16 VR 440; [2007] VSCA 131 …. 3.49, 7.18, A4.44 O’Connor v Argus & Australasian Ltd [1957] VR 374 …. A10.28 — v Bini [1908] VLR 567 …. 9.20 Office of the Premier v Herald and Weekly Times Pty Ltd (2013) 38 VR 684; [2013] VSCA 79 …. 6.4, 12.8 Official Trustee in Bankruptcy v Buffier (2005) 54 ACSR 767; [2005] NSWSC 839 …. 6.12 Ogden Industries Pty Ltd v Lucas (1969) 118 CLR 32; [1970] AC 113; [1969] 1 All ER 121 …. 1.10

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O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; 92 ALR 213; [1990] HCA 16 …. 12.8 O’Hara v Harrington [1962] Tas SR 165 …. 9.20 Olbers Co Ltd v Commonwealth (2004) 143 FCR 449; 212 ALR 325; [2004] FCAFC 262 …. 9.41 Oliveri Transport Services Pty Ltd v Department of Transport [2001] NSWSC 45 …. 7.27, 7.29 Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 …. 3.17 — v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 …. 4.32, 4.51, 5.30, 7.22, A4.51 — v Moroney [1983] 1 NSWLR 317 …. 4.72 O’Neill v O’Connell (1946) 72 CLR 101; [1946] HCA 59 …. 8.6 — v Reid [1959] NZLR 331 …. 9.24 O’Neill and Smith, Marriage of (1994) 17 Fam LR 386; 121 FLR 222 …. A2.50 One.Tel Ltd (in liq) v Rich (2005) 190 FLR 443; 53 ACSR 623; [2005] NSWSC 226 …. 4.74 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1; 44 ALR 27; [1983] HCA 47 …. 5.32 O’Reilly, Re; Ex parte Australena Investments Pty Ltd (1984) 58 ALJR 36; 50 ALR 577 …. A2.52 Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 …. 5.47 Ormerod v Blaslov (1989) 52 SASR 263 …. A2.50 Ormond Investment Co v Betts [1928] AC 143 …. 3.41 Ory v Betamore Pty Ltd (1990) 54 SASR 331 …. 3.42 Osborne v Commonwealth (1911) 12 CLR 321; [1911] HCA 19 …. 7.32 Oscalt Pty Ltd v Minister for Mineral Resources and Energy (2012) 115 SASR 298; [2012] SASC 166 …. 10.8 Oser v Felton (1966) 83 WN (Pt 1) (NSW) 472 …. 11.16

Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422; [2004] HCA 30 …. 8.10 O’Sullivan v Barton [1947] SASR 4 …. 4.7 — v Farrer (1989) 168 CLR 210; 89 ALR 71; [1989] HCA 61 …. 4.45 — v Friebe [1956] SASR 89 …. 9.22 OV v Members of the Board of Wesley Mission Council (2010) 79 NSWLR 606; 270 ALR 542; [2010] NSWCA 155 …. A4.80 Ovens and King Traders Pty Ltd, Re [1949] VLR 16 …. 10.36 Overend v Commissioner of Police [2014] VSC 424 …. 1.8, A9.36 Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327; (2012) 293 ALR 571 …. A6.5 — v South Australia (1996) 66 SASR 251; 87 A Crim R 213 …. 3.8, 3.9 Owen, Re; RiverCity Motorway Pty Ltd v Madden (No 3) (2012) 201 FCR 360; 288 ALR 190; [2012] FCA 313 …. 6.13 Owens v Australian Building Construction Employees’ and Builders Labourers’ Federation (1978) 46 FLR 16; 19 ALR 569 …. 11.11 — v Builders’ Registration Board of Western Australia [2006] WASC 272 …. 5.31 Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1; [1994] HCA 54 …. 5.51 Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation (2006) 94 SASR 269; [2006] SASC 91 …. 11.15

P Pacific Film Laboratories Pty Ltd and Collector of Customs, Re (1979) 2 ALD 144 …. 4.23 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; 321 ALR 584; [2015] FCAFC 50 …. 4.15 Page v Winkler (1975) 12 SASR 126 …. 9.26

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Paisner v Goodrich [1955] 2 QB 353 …. 1.11 Palace Gallery Pty Ltd v Liquor and Gaming Commissioner (2014) 118 SASR 567; 309 ALR 423; [2014] SASCFC 26 …. 10.14 — v WorkCover Premium Review Panel (2014) 119 SASR 408; [2014] SASCFC 60 …. 3.36, 4.2 Palais Parking Station Pty Ltd v Shea (1977) 16 SASR 350 …. 7.27 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; 215 ALR 253; [2005] HCA 28 …. A3.36, A4.21 Palling v Corfield (1970) 123 CLR 52; [1970] HCA 53 …. 9.33 Palmer v Snow [1900] 1 QB 725 …. 4.39 Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 …. 4.3, A6.13 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 …. 2.10 Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93 …. 10.6 PanBio Pty Ltd, Re (2000) 35 ACSR 458; [2000] QSC 366 …. 1.17 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405; [1994] HCA 20 …. A5.52 Panochini v Jude [2000] 2 Qd R 322; [1999] QCA 444 …. 12.26 Papazoglou v Republic of the Philippines (1997) 74 FCR 108; 144 ALR 42 …. 5.60 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 …. A3.11, 9.59 Park v Brady [1976] 2 NSWLR 329 …. 8.11 Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325 …. 4.74 — v — (2012) 205 FCR 415; [2012] FCAFC 94 …. 4.74, 7.3 Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365; [2004] FCA 820 …. 1.2



Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186; 122 ALD 103; [2011] FCA 760 …. 6.3, A4.7 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 …. 2.51 — v Stauffer Chemical Co (Aust) Pty Ltd [1973] 1 NSWLR 229 …. A7.24 Parramore v Duggan (1994) 4 Tas SR 64 …. 8.2 — v — (1995) 183 CLR 633; [1995] HCA 21 …. 2.53 Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299; 69 ALD 359; [2002] FCA 716 …. 3.17, A3.18 Partington v Attorney-General (1869) LR 4 HL 100 …. 9.42 Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 …. 4.5 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 …. A3.37 Patterson v Public Service Board of New South Wales [1984] 1 NSWLR 237 …. 5.51 Paul Fishlock v Campaign Palace Pty Ltd (2013) 234 IR 1; [2013] NSWSC 531 …. 3.58 Pavic v Magistrates Court (Vic) (2003) 140 A Crim R 113; [2003] VSC 99 …. 3.41 Pearce v Cocchiaro (1977) 137 CLR 600; 14 ALR 440; [1977] HCA 31 …. 2.58 — v Florenca (1976) 135 CLR 507; 9 ALR 289; [1976] HCA 26 …. 5.12 — v Kitchin (1931) 26 Tas LR 38 …. A3.59 — v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57 …. 9.35 Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 FLR 162 …. A9.36 — v Richards (2012) 21 Tas R 461; [2012] TASSC 71 …. 5.27 Peat Resources of Australia Pty Ltd, Re; Ex parte Pollock (2004) 181 FLR 454; [2004] WASCA 122 …. 2.49 lxv

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Peninsula Group Pty Ltd v RegistrarGeneral of the Northern Territory (1996) 136 FLR 8 …. 2.10, A2.45 Penny v Penny [1965] NSWR 495 …. 5.28, 5.29 Pepper v Hart [1993] AC 593; [1993] 1 All ER 42 …. 3.30 Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289; 132 ALR 632 …. 4.12, 4.25 Perejmibida v Skelcher (2002) 127 A Crim R 549; [2002] WASCA 2 .... A9.36 Perpetual Custodians Ltd v IOOF Investment Management Ltd (2013) 278 FLR 49; 304 ALR 436; [2013] NSWCA 231 …. 4.32 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; [1948] HCA 24 …. 4.51, A7.20 Perpetual Trustee Co Ltd v Wittscheibe (1940) 40 SR (NSW) 501 …. A7.31 Perpetual Trustees (Australia) Ltd v Valuer-General (1999) 102 LGERA 324 …. 9.48, 10.1 Perrett v Commissioner for Superannuation (1991) 29 FCR 581; 23 ALD 257 …. 12.10 — v Robinson (1988) 169 CLR 172; 80 ALR 441; [1988] HCA 41 …. 12.4 Perth Local Board of Health v Maley (1904) 1 CLR 702; [1904] HCA 28 …. 3.59 PGA v R (2012) 245 CLR 355; 287 ALR 599; [2012] HCA 21 …. 8.12 Phoenix International Group Pty Ltd v Resources Combined No 2 Pty Ltd [2009] VSC 425 …. A3.38 Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 195 CLR 158; 154 ALR 211; [1998] HCA 39 …. 6.4 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; 277 ALR 282; [2011] FCAFC 58 …. 4.25

Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107; 79 ALD 1; [2004] FCA 955 …. 2.50 Pilkington (Aust) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; 71 ALD 301; [2002] FCAFC 423 …. 2.31, A2.32, A3.12 Pillar v Arthur (1912) 15 CLR 18; [1912] HCA 51 …. 3.52, 3.53 Pipe Networks Pty Ltd v Commonwealth Superannuation Corporation (2013) 212 FCR 542; [2013] FCA 444 …. 3.49, A3.48, A3.49 Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 …. 9.39, 12.4 Pirri and Secretary, Department of Family and Community Services, Re (2000) 59 ALD 531; [2000] AATA 231 …. 12.l30 Pitt, Son & Badgery Ltd v Sydney Municipal Council (1908) 24 WN (NSW) 203 …. 4.60 Plaintiff B9/2014 v Minister for Immigration and Border Protection (2014) 227 FCR 494; [2014] FCAFC 178 …. 7.25, A4.57 Plaintiff M47–2012 v Director-General of Security (2012) 251 CLR 1; 292 ALR 243; [2012] HCA 46 …. 3.48 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 280 ALR 18; [2011] HCA 32 …. 4.50, A4.47 Plaintiff M150 of 2013 v Minister for Immigration and Border Protection (2014) 255 CLR 199; 309 ALR 225; [2014] HCA 25 …. A3.36, A4.51 Plaintiff S10/2011 v — (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 …. 5.60 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 …. 5.43, 9.39, A3.12, A5.9 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; 309 ALR 209; [2014] HCA 24 …. 3.36

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Platz v Osborne (1943) 68 CLR 133; [1943] HCA 39 …. 3.53, 4.16 Plummer v Needham (1954) 56 WALR 1 …. 4.37 Plunkett v Smith (1911) 14 CLR 76; [1911] HCA 58 …. 4.46 PM v R (2007) 232 CLR 370; 240 ALR 1; [2007] HCA 49 .... 11.25 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; 131 ALR 377; [1995] HCA 36 …. 6.4, 9.5 Pointon v Police (SA) (2004) 143 A Crim R 416; [2004] SASC 4 …. 9.20 Police v Conway (2006) 95 SASR 83; [2006] SASC 186 …. 9.27, 11.15, 11.24 — v Novak (2000) 76 SASR 551; [2000] SASC 82 …. 3.53 — v Stevenson (2008) 192 A Crim R 1; [2008] SASC 143 .... A3.49 — v Thompson [1966] NZLR 813 …. 2.41, 4.3 — v Whitehouse (2004) 90 SASR 457; [2004] SASC 371 …. 9.20 — v — (2005) 92 SASR 81; [2005] SASC 220 …. 9.20 Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3 …. 3.12, 5.24 Polo/Lauren Co LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266; 80 IPR 531; [2008] FCAFC 195 …. 3.33 Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545; [1991] HCA 32 …. 10.9 Pope v W S Walker & Sons Pty Ltd (2006) 14 VR 435; [2006] VSCA 227 …. A3.37 Popular Pastimes Pty Ltd v Melbourne City Council (2007) 19 VR 1; [2007] VSCA 188 …. A2.12, A4.64 Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales (2009) 226 FLR 464; [2009] NSWCA 70 …. 12.4 Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446 …. 3.41 Port MacDonnell Professional Fishermen’s Association Inc v South



Australia (1989) 168 CLR 340; 88 ALR 12; [1989] HCA 49 …. A3.11 Port of Melbourne Authority v Melbourne City Council (No 2) (2004) 133 LGERA 322; [2004] VSC 217 …. 9.57 Portland Smelter Services Pty Ltd and Comptroller-General of Customs, Re (1990) 12 AAR 270 …. A3.38 Potier v Attorney-General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 …. 7.9 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 …. 5.35, 5.42, 5.60 Powell v Cleland [1948] 1 KB 262 …. 3.43 — v Evreniades (1989) 21 FCR 252; 87 ALR 117 …. 9.57, 11.16 Powers v Maher (1959) 103 CLR 478; [1959] HCA 52 …. 12.7 Povey v Qantas Airways Ltd (2005) 223 CLR 189; 216 ALR 427; [2005] HCA 33 …. A2.33 Prabowo v Republic of Indonesia (1995) 61 FCR 258; 133 ALR 701 …. 4.41 President, etc of Shire of Arapiles v Board of Land and Works (1904) 1 CLR 679; [1904] HCA 33 …. 2.8 Preston v Commissioner of Fair Trading (2011) 80 NSWLR 35; [2011] NSWCA 409 …. A3.30 Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 …. 12.4 — v McCabe; Ex parte Price [1985] 2 Qd R 510; (1984) 55 ALR 319 …. 5.38, 5.40 Price Brent Services Pty Ltd v Commissioner of State Revenue (1993) 26 ATR 560 …. 4.18 Priebbnow, Re [1941] St R Qd 143 …. 9.5 Prior v Sherwood (1906) 3 CLR 1054; [1906] HCA 29 …. 4.33, A9.11 Privacy Commissioner v Telstra Corp Ltd (2017) 249 FCR 24; 347 ALR 1; [2017] FCAFC 4 …. A6.3 Producers’ Co-operative Case Producers’ Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523; [1944] HCA 39 …. 6.4, 7.38

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Productivity Partners Pty Ltd v Commonwealth (2018) 162 ALD 154; [2018] FCA 1562 …. 9.59 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 …. 2.6, 2.38, 2.43, 4.2, 4.3, 4.5, 4.53, 11.1, 11.19, 11.34, 11.35, A2.19, A2.43 Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 …. 5.17 Przetak v Metropolitan (Perth) Passenger Transport Trust [1961] WAR 2 …. 10.30 PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 …. 3.42 Public Prosecutor v Oie Hee Koi [1968] AC 829 …. 11.25 Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132; 102 ALR 161; [1991] HCA 33 …. 5.6 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; 6 ALR 271; [1975] HCA 28 …. 2.59 Public Trustee v Ferguson (1940) 57 WN (NSW) 63 …. 5.27 — v O’Donnell (2008) 101 SASR 228; [2008] SASC 181 …. A2.18 Public Trustee (WA) v State Energy Commission; Re McPherson (dec’d) (1979) 142 CLR 211; 23 ALR 129; [1979] HCA 4 …. A3.36 Pullos v Gifford Enterprises Pty Ltd [1990] 2 Qd R 251 …. 10.15 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575; 165 ALR 337; [1999] HCA 45 …. 5.30 Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652; [1985] HCA 54 …. 4.52 Purcell, Ex parte (1907) 7 SR (NSW) 432 …. 9.10 Purdon v Dittmar [1972] 1 NSWLR 94 …. 4.39 Purdy and the Queen, Re (1972) 28 DLR 3d 720 …. 7.35

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609; [1983] HCA 9 …. 5.6, 5.37, 5.38, 5.43

Q Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43; 136 ALR 510; [1996] HCA 12 …. 9.5 — v Chief Commissioner of State Revenue [2008] NSWSC 1049 …. 6.12 QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270; 110 ALR 301 …. 4.25 Quality Bakers v ALHMWU [2004] NSWIR 318 …. 3.53 Quarmby v Keating (2008) 18 Tas R 284; [2008] TASSC 71 …. A4.18 Quazi v Quazi [1980] AC 744 …. 4.37 Queensland v Commonwealth (1989) 167 CLR 232; [1989] HCA 36 …. 1.23 — v Congoo (2015) 256 CLR 239; 320 ALR 1; [2015] HCA 17 …. A4.57 — v Forrest (2008) 168 FCR 532; 249 ALR 1445; [2008] FCAFC 96 …. A4.7 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 …. 12.17 Queensland Rail v Commissioner of Taxation (2006) 153 FCR 524; [2006] FCA 816 …. 9.5 Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; 312 ALR 254; [2014] FCAFC 70 …. 3.7, 4.73, 9.44

R R v Adams (1935) 53 CLR 563; [1935] HCA 62 …. 9.11, 9.12 — v Alif [2012] QCA 355; [2013] 2 Qd R 140 .... A1.16 — v Armitage (1872) LR 7 QB 773 …. 11.28 — v Arundel [2003] VSCA 69 …. 9.23 — v Aubrey (2012) 82 NSWLR 748; [2012] NSWCCA 254 …. 3.54, A3.27, A3.58 — v Australasian Films Ltd (1921) 29 CLR 195; [1921] HCA 5 …. 9.21

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Table of Cases

— v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45; 27 ALR 321; [1979] HCA 62 …. 4.45 — v B, MA [2007] SASC 384; (2007) 99 SASR 384 …. A3.8 — v Barlow (1997) 188 CLR 1; 144 ALR 317; [1997] HCA 19 …. 8.9, 8.10, 8.11 — v Berchet (1794) [1 Show 106] …. 2.43 — v Bilick and Starke (1984) 36 SASR 321 …. 4.57 — v Bober (No 3) (2010) 107 SASR 165; [2010] SASC 31 .... A3.10 — v Bolton; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225; [1987] HCA 12 …. 5.7, 5.60 — v Boucher [1995] 1 VR 110; (1995) 70 A Crim R 577 …. 3.24, A2.18 — v Bracknell Justices; Ex parte Griffiths [1976] AC 314 .... 4.60 — v Bradley (1986) 40 NTR 6 …. A3.36 — v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 …. 5.50 — v Brown [1996] AC 543 …. 4.33 — v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 …. 1.21 — v Cain [1985] 1 AC 46 …. 5.46 — v — [2010] QCA 373 …. 1.19 — v Carr-Briant [1943] KB 607 …. 9.37 — v Central Cane Price Board; Ex parte Colonial Sugar Refining Co Ltd [1917] St R Qd 1 …. 4.7 — v Chalak [1983] 1 NSWLR 282; (1983) 47 ALR 600 …. 7.9, 7.12 — v Chandra Dharma [1905] 2 KB 335 .... 10.36 — v Chard [1984] AC 279; [1983] 3 All ER 637 …. 3.57 — v Clarke (2008) 100 SASR 363; [2008] SASC 100 .... A3.8 — v Cleary [1914] VLR 571 …. 9.22 — v Cleworth (1864) 4 B & S 927; 122 ER 707 …. 4.39 — v Clyne; Ex parte Harrap [1941] VLR 200 .... A12.13 — v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; 14 ALR 257; [1977] HCA 34 …. 4.63



— v Croydon Justices; Ex parte Lefore Holdings Ltd [1980] 1 WLR 1465 …. A11.25 — v Curran [1976] 1 WLR 87 .... A8.5 — v D, WD (2013) 116 SASR 99; [2013] SASCFC 32.... 2.6 — v Daher (1981) 40 ALR 70; [1981] 2 NSWLR 669 …. 1.16 — v Dibdin [1910] P 51 …. 4.69 — v Dunn [1973] 2 NZLR 481 …. 3.35 — v El Rifai [2012] SASCFC 98 .... A3.10 — v Epsom and Ewell Corporation; Ex parte RB Property Investments (Eastern) Ltd [1964] 1 WLR 1060 …. 11.19 — v Fearnside (2009) 165 ACTR 22; 228 FLR 77; [2009] ACTCA 3 .... 2.26, 5.57 — v Ford [1945] SASR 118 …. 2.41 — v Fowler [2006] SASC 18 …. A1.10 — v Franke [1929] VLR 285 …. 9.18 — v Galvin; Ex parte Bara (1983) 24 NTR 22 …. 9.27 — v Gardiner (1979) 27 ALR 140; [1981] Qd R 394 .... A1.16 — v Gee (2003) 212 CLR 230; 196 ALR 282; [2003] HCA 12 .... 4.14 — v Glennan (1970) 91 WN (NSW) 609 …. 9.16 — v Hall [1891] 1 QB 747 …. 9.31 — v Hallam (1998) 102 A Crim R 546 …. 9.26, 9.33 — v Hamilton Knight; Ex parte Commonwealth Steamship Owners Association (1952) 86 CLR 283; [1952] HCA 38 …. 2.15 — v Harrop [1979] VR 549 …. 3.41 — v Holley; Ex parte Attorney-General (1996) 90 A Crim R 37; [1997] 2 Qd R 407 …. 11.9 — v Holmes; Ex parte Altona Petrochemical Co Ltd (1972) 126 CLR 529; [1972] HCA 20 .... 2.43, A1.6 — v Home Secretary; Ex parte Pierson [1998] AC 539 …. 5.3 — v Hookham (1993) 31 NSWLR 381 …. 1.16 — v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 …. A4.57

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— v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; 25 ALR 497 …. 12.17 — v Independent Broad-based Anticorruption Commissioner (2016) 256 CLR 459; 329 ALR 195; [2016] HCA 8 …. 5.5, 5.6, 5.39 — v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 …. 9.34 — v Industrial Appeals Court; Ex parte Metropolitan Fire Brigades Board [1959] VR 345 …. A7.24 — v Ireland [1998] AC 147 …. 4.18 — v Irvine (2009) 25 VR 75; [2009] VSCA 239 …. 9.8 — v Janceski (2005) 64 NSWLR 10; 223 ALR 580 …. 11.32 — v Jimmy Governor (1900) 21 LR (NSW) 278 …. 8.5 — v Johnson [1962] QWN 37 …. 9.15 — v Justices of Berkshire (1878) 4 QBD 469 …. 12.21 — v Karabi (2012) 220 A Crim R 338; [2012] QCA 47 …. 1.17 — v Kean & Mills [1985] VR 255 …. 3.25 — v Kearney; Ex parte Jurlama (1984) 158 CLR 426; 52 ALR 24; [1984] HCA 14 …. 9.2, 9.5 — v Khazaal (2012) 246 CLR 601; 289 ALR 586; [2012] HCA 26 …. 12.10 — v Kidman (1915) 20 CLR 425; [1915] HCA 58 .... 10.2, 10.9, 10.12 — v Kiltie (1986) 41 SASR 52 …. 9.39 — v Knutsen [1963] Qd R 157 …. 8.11 — v Kola (2002) 83 SASR 477; [2002] SASC 203 …. 5.60 — v Kruger (1977) 17 SASR 214 …. 8.2 — v L (1994) 49 FCR 534; 122 ALR 464 …. 2.20 — v Lavender (2005) 222 CLR 67; 218 ALR 521; [2005] HCA 37 …. 3.37, A9.11 — v Leicestershire Justices (1850) 15 QB 88; 117 ER 391 …. 11.28 — v Lieschke (1987) 162 CLR 447; 69 ALR 647; [1987] HCA 4 …. 5.6

— v LK (2010) 241 CLR 177; 266 ALR 399; [2010] HCA 17 …. 8.10 — v London County Council [1893] 2 QB 454 …. 1.29 — v Mailes (2001) 53 NSWLR 251; 26 A Crim R 20; [2001] NSWCCA 155 …. 3.46 — v Marshall; Ex parte Baranor Nominees Pty Ltd [1986] VR 19 .... 10.2 — v Martyr [1962] Qd R 398 …. 8.11 — v McKeown [1940] St R Qd 202 …. A10.28 — v McN [1963] SR (NSW) 186 …. 6.5, 6.6 — v McNicol [1916] VLR 350 …. 9.22 — v Melville (2003) 27 WAR 224; [2003] WASCA 124 …. 9.26 — v Miah [1974] 1 WLR 683 …. 9.23 — v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 …. 9.24 — v Momcilovic (2010) 25 VR 436; 265 ALR 751; [2010] VSCA 50 …. 5.57, 5.58, 5.59 — v Morton [1986] VR 863 …. 9.26 — v Murray (1886) 7 LR (NSW) (L) 361 .... 10.27 — v Novakovic (2007) 17 VR 21; [2007] VSCA 145 .... A6.7, A12.10 — v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 …. 9.22 — v O’Neill (1985) 58 ACTR 26 …. A2.47 — v Oakes [1959] 2 QB 350; [1959] 2 All ER 92 …. 2.47 — v Oliver (1944) 29 Cr App R 137 …. 9.24 — v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356 …. 9.13, A12.10 — v Parsons (1983) 53 ALR 568; [1983] 2 VR 499 …. A1.16 — v Pearson; Ex parte Sipka; (1983) 152 CLR 254; 45 ALR 1; [1983] HCA 6 …. A3.11 — v Peters (1886) 16 QBD 636 …. 3.33 — v Peterson; Ex parte Hartmann [1969] VR 411 …. 1.14 — v Pinder (1989) 155 LSJS 65 …. 9.25 lxx

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— v PJ [2017] NSWCCA 290 …. 12.8 — v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 …. 9.12 — v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353 …. 3.53 — v Quick (2004) 148 A Crim R 51; [2004] VSC 270 …. 3.24, 3.25 — v Rademeyer (1985) 1 NSWLR 285; 59 ALR 141 …. A5.13 — v Refshauge (1976) 11 ALR 471 …. 4.33 — v Registrar of Titles; Ex parte John Wolbers Constructions Pty Ltd [1973] VR 723 …. 11.15 — v Regos (1947) 74 CLR 613; [1947] HCA 19 .... 4.34, 4.37, 4.41 — v Reynhoudt (1962) 107 CLR 381; [1962] HCA 23 …. 3.54, 3.57 — v Roach (1987) 31 A Crim R 302; [1988] VR 665 …. 2.63 — v Roussety (2008) 24 VR 253; [2008] VSCA 259 …. 9.22 — v Scarlett; Ex parte McMillan (1972) 20 FLR 349 …. 12.3 — v Scarth [1945] St R Qd 38 …. 8.11 — v Schildkamp [1971] AC 1 …. 4.72 — v Schultz [1976] VR 325 …. 9.30 — v Scott (1990) 20 NSWLR 72; 49 A Crim R 96 …. 3.44 — v Scott & Downland Publications Ltd [1972] VR 663 …. 6.7 — v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 …. 5.3 — v Seller (2013) 273 FLR 155; [2013] NSWCCA 42 …. 7.26 — v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 …. 1.20, 1.21 — v Sharma (2002) 54 NSWLR 300 …. 3.18, A3.18 — v Sieders (2008) 72 NSWLR 417; [2008] NSWCCA 187 …. 3.40 — v Skurray (1967) 86 WN (Pt 1) (NSW) 1 …. 2.52 — v Slade [1995] 1 Qd R 390 .... 4.72 — v Slator (1881) 8 QBD 267 .... 4.21 — v Smith (1873) LR 8 QB 146 …. 7.31, 7.32



— v — [1974] 2 NSWLR 586 …. A2.43 — v — [2009] 1 Qd R 239; [2008] QCA 406 …. 6.8 — v Snow (1915) 20 CLR 315; [1915] HCA 90 …. 5.42 — v Stevenson (1891) 24 SALR 105 …. 4.60 — v Strawthorn (2008) 19 VR 101; [2008] VSCA 101 …. 4.26 — v Tannous (2012) 227 A Crim R 251; [2012] NSWCCA 243 .... A3.49 — v Tawill [1974] VR 84 …. 1.16 — v Taylor and Curtis (1863) 2 W & W (L) 23 …. 4.68 — v Tennant (No 2) [2010] SASCFC 26 …. A3.45 — v Thomas [1950] 1 KB 26 …. 9.22 — v Tkacz (2001) 25 WAR 77; [2001] WASCA 391 …. 12.13 — v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374; 28 ALR 27; [1980] HCA 2 …. 9.5 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; 44 ALR 63; [1982] HCA 69 …. 12.17 — v Toohey; Jungarrayi v Olney (1992) 34 FCR 496; 105 ALR 527 …. 9.5 — v Trebilco; Ex parte F S Falkiner and Sons Ltd (1936) 56 CLR 20; [1936] HCA 63 …. 9.57, 11.16 — v Truong [1999] QCA 21; [2000] 1 Qd R 663 …. 9.26 — v Turner (No 4) (2001) 10 Tas R 81; [2001] TASSC 51 .... A4.21 — v — (No 16) [2002] TASSC 17 …. A3.38 — v Urbanowski [1976] 1 WLR 455 …. A11.25 — v Vaughan (2009) 105 SASR 532; [2009] SASC 395 …. 2.44 — v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 52; [1949] HCA 309 …. 4.47 — v Wheeldon (1978) 33 FLR 402; 18 ALR 619 …. 7.26, 7.31 — v White (1899) 20 LR (NSW) 12 …. 4.60

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— v Willingham (No 2) [2012] SASCFC 104 .... 2.50 — v Workers’ Compensation Board of Queensland; Ex parte Heffernan [1979] Qd R 563 …. 11.16 — v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 …. 1.20, 1.21, 1.22 — v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 …. A3.26 — v Zotti (2002) 82 SASR 554; [2002] SASC 164 .... A1.16 — v Zuber (2010) 175 ACTR 1; 242 FLR 416; [2010] ACTSC 107…. 6.4, 10.4, 10.27, A4.44 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; 254 ALR 1; [2009] HCA 12 …. 5.26 RACQ Insurance Ltd v Wilkins [2010] 2 Qd R 552; [2009] QSC 365 …. A6.13 Ragless v Prospect District Council [1922] SASR 299 …. 4.67 Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318; [2012] NSWCA 296 …. A4.73, A11.26 Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 69 FLR 328; 43 ALR 535 …. 12.14 Ralph M Lee (WA) Pty Ltd v Fort (1991) 22 ALD 465 …. 9.6 Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49; [1920] HCA 70 …. 3.42 Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230; [1935] HCA 75 …. 1.7 — v Menso [2018] FCAFC 55 …. 9.40, 11.24 Rana v Human Rights and Equal Opportunity Commission (1997) 74 FCR 451; 155 ALR 128 …. A4.44 Rands v Oldroyd [1959] 1 QB 204 …. 4.38 Randwick Corporation v Rutledge (1959) 102 CLR 54; [1959] HCA 63 …. 2.44 Randwick Municipal Council v Rutledge (1959) 102 CLR 54 …. 6.14 Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; 49 ALD 619 …. 5.60, 9.39

Rapp and Commissioner of State Revenue (2006) 63 ATR 15; 43 SR (WA) 203; [2006] WASAT 135 …. 2.51 Rashleigh v Environment Protection Authority (2005) 155 ACTR 16; [2005] ACTSC 18 …. 5.60 Rathborne v Abel (1964) 38 ALJR 293 …. 12.17 Realty Development & Mortgage Co Ltd v Londish (1967) 87 WN (Pt 1) (NSW) 92 …. 10.23 Reardon v Deputy Commissioner of Taxation (2013) 275 FLR 9; [2013] QCA 46 …. 3.41, A3.39 Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 …. A4.57 Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 29 ALR 333 …. 4.51 Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 …. 9.5, A3.42 Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302 …. A2.59 Regis v Secretary, Department of Health (Cth) (2018) 161 ALD 471; [2018] FCA 177 …. 2.56 Registrar of Motor Vehicles v Vu (2013) 115 SASR 385; [2013] SASCFC 10 …. 12.19 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; 7 ALR 383 …. A4.7 Registrar-General v Harris (1998) 45 NSWLR 404 …. 9.5 — v — [1998] NSWSC 449 …. 8.2 Reid v Fitzgerald (1926) 48 WN (NSW) 25 …. 7.17 — v Reid [1979] 1 NZLR 572 …. 2.6 — v Secretary, Department of Family and Community Services (2001) 109 FCR 477; 65 ALD 108; [2001] FCA 794 …. 10.4 Reid Murray Development (Queensland) Pty Ltd v Lynwood Holdings Pty Ltd [1964] QWN 1 …. 9.5

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Table of Cases

Reilly, Re; Ex parte The Debtor (1979) 23 ALR 357 …. 11.16 Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 433; 240 ALR 464; [2007] FCAFC 99 …. 9.49, 9.51, A9.49 Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 …. 1.12 — v Hawkins (1993) 45 FCR 205; 117 ALR 225 …. 9.5 — v Hayes (1982) 64 FLR 423; 43 ALR 216 …. 9.5 — v Keeley (2000) 98 FCR 108; 60 ALD 401; [2000] FCA 532 …. 10.28, 10.29 — v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; 171 ALR 523; [2000] NSWCA 65 …. 2.9, A2.19, A3.18, A6.13 Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 …. 10.21 Republic of Croatia v Snedden (2010) 241 CLR 461; 265 ALR 621; [2010] HCA 14 …. 12.11 Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45; 6 ALR 642; [1975] HCA 38 …. 4.52, 12.12 Reserve Bank of Australia v Commissioner of Pay-roll Tax (Vic) (1985) 16 ATR 404 …. 9.54 Residential Tenancies Tribunal of New South Wales and Henderson, Re; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495, [1997] HCA 36 …. A5.18 Resource Capital Fund III LP v Commissioner of Taxation (2013) 95 ATR 504; [2013] FCA 363 …. 2.38 Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 …. A6.5 Return to Work Corporation v Robinson (2018) 130 SASR 394; [2018] SASCFC 32 …. A2.56 Revenue and Customs Commissioners v DCC Holdings (UK) Ltd [2010] UKSC 58 …. A4.57



Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 …. 4.69 Rice v Henley (1914) 19 CLR 19; [1914] HCA 75 …. 9.5 Rich v Australian Securities and Investments Commission (2003) 203 ALR 671; 183 FLR 361; [2003] NSWCA 342 …. 5.40 — v — (2004) 220 CLR 129; 209 ALR 271; [2004] HCA 42 …. 5.40, 9.9, 9.17 Richardson v ACT Health & Community Care Service (2000) 100 FCR 1; [2000] FCA 654 …. 9.5, A9.7 — v Austin (1911) 12 CLR 463; [1911] HCA 28 …. 4.33, A9.11 — v Brennan [1966] WAR 159 …. 9.24 — v Commissioner of Taxation (1997) 80 FCR 58; 150 ALR 167 …. A2.57 — v Shipp [1970] Tas SR 105 …. 10.31 Riddle v R (1911) 12 CLR 622; [1911] HCA 33 …. 8.1, 8.2 Riley v Commonwealth (1985) 159 CLR 1; 62 ALR 497; [1985] HCA 82 …. 5.24, 4.44, A2.45 Rimmer v Nissen; Ex parte Nissen (1993) 113 ALR 502 …. A3.38 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 …. 3.46, 5.60 Riordan v Australian Sports Drug Agency (2002) 120 FCR 424; 69 ALD 344; [2002] FCA 858 …. 6.8 Rippingale Farms Ltd v Black Sluice Internal Drainage Board [1963] 1 WLR 1347 …. 11.28 Rivera v Maher (1992) 1 Tas R 228 …. 9.20 Riverstone Parade Pty Ltd v Blacktown City Council [2015] NSWLEC 137 …. 4.31 RJE v Secretary, Department of Justice (2008) 21 VR 526; [2008] VSCA 265 …. 1.19, 5.60, 12.30 Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 …. A3.14 Roads and Maritime Services v Desane Properties Pty Ltd (2018) 358 ALR 785; [2018] NSWCA 196 …. 5.8

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Robb v Transport Accident Commission [2004] VCAT 983 …. 4.55 Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research (2011) 197 FCR 374; [2011] FCA 1133 …. 4.9 Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92; [2012] FCAFC 117 …. 3.33, 3.42 Roberts v Collector of Imposts [1919] VLR 638 …. A3.37 Roberts and Repatriation Commission, Re (1992) 27 ALD 408 …. A11.26 Robertson v City of Nunawading [1973] VR 819 …. 10.4, 10.27, 10.37 Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 …. 6.7 Rocklea Spinning Mills Pty Ltd v AntiDumping Authority (1995) 56 FCR 406; 129 ALR 401 …. 1.23 Rodda v Repatriation Commission (2006) 156 FCR 227; 93 ALD 541; [2006] FCA 1689 …. 11.12 Rodgers v Revenue SA, Department of Treasury and Finance (2014) 240 IR 202; [2014] SASCFC 2 …. 10.34 Rodriguez v United States 480 US 522 (1987) …. 2.21 Rodway v R (1990) 169 CLR 515; 92 ALR 385; [1990] HCA 19 …. 10.6, 10.22, 10.27, 10.31 Rogers v Chief of Army (2004) 185 FLR 414; [2004] ADFDAT 1 …. 9.25 Rohde v Director of Public Prosecutions (1986) 161 CLR 119; 66 ALR 593; [1986] HCA 50 …. A5.42 Roper v Ecksjay Nominees Pty Ltd (1982) 31 SASR 398; 48 LGRA 241 …. 4.26 Rose v Hvric (1963) 108 CLR 353; [1963] HCA 13 …. 7.9, 7.16 — v Secretary, Department of Social Security (1990) 21 FCR 241; 92 ALR 521 …. 9.5, 9.7, A2.20 Ross v R (1979) 141 CLR 432; 25 ALR 137; [1979] HCA 29 …. 4.3, 4.54

Rothercroft Pty Ltd and Companies (NSW) Code 1981, Re (1986) 4 NSWLR 673; 76 ALR 345 …. 1.17 Roy v Riverland and Fruit Cooperative Ltd (in liq) [2006] SASC 116 …. A2.58 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; 181 ALR 307; [2001] HCA 49 …. 5.51 Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 …. 4.51, 7.6, 7.22 Royal South Australian Yacht Squadron v Attorney-General [1938] SASR 430 …. 4.79 RPA Properties Pty Ltd v Robina Syndicate Pty Ltd [2009] QSC 339 …. 4.33 RSAYS Ltd v Commissioner of State Taxation (2007) 100 SASR 448; [2007] SASC 398 …. 9.57 Ruckschloss v Simmons (2014) 292 FLR 155; [2014] ACTSC 340 …. 5.60 Russell v Commissioner of Taxation (2011) 190 FCR 449; 274 ALR 545; [2011] FCAFC 10 …. 2.37 — v Russell (1976) 134 CLR 495; 9 ALR 103; [1976] HCA 23 …. 5.60 — v Stephen (2013) 237 A Crim R 56; [2013] WASCA 2849 …. A3.45 Russo v Aiello (2003) 215 CLR 643; 201 ALR 231; [2003] HCA 53 …. 4.64 Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 …. A11.23 Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; 23 ALR 41; [1978] HCA 58 …. 4.77 Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161 …. 4.45

S S v Australian Crime Commission (2005) 144 FCR 431; 225 ALR 123; [2005] FCA 1310 …. 4.63 — v White [2005] TASSC 27 …. 10.4 S Kidman & Co v Lowndes CM (2016) 314 FLR 358; [2016] NTCA 5 …. 1.18 Saad v Baron [2012] WASC 507 …. A4.7

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SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 …. 11.32 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 …. 3.6, 5.2, 5.7, 5.60, A2.43 Saffron v Director of Public Prosecutions (Cth) (1989) 87 ALR 151 …. A9.11 Saga Holidays Ltd v Commissioner of Taxation (2006) 156 FCR 256; 237 ALR 559; [2006] FCAFC 191 …. 9.49 Saggers v Sydney Market Authority (1988) 66 LGRA 42 …. 2.16, 3.16 Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198; [1978] 3 All ER 1033 …. 1.8 Salemi v MacKellar (No 2) (1977) 137 CLR 396; 14 ALR 1; [1977] HCA 26 …. 4.43 Saliba v Aziz (2013) 278 FLR 278; [2013] ACTCA 41 …. 7.14 Salton v Commonwealth Superannuation Corporation (2013) 209 FCR 349; 133 ALD 327; [2013] FCA 12 …. 4.57 Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159; [1952] HCA 4 …. 3.57 Samad v District Court of New South Wales (2002) 209 CLR 140; 189 ALR 1; [2002] HCA 24 …. 11.8 Samsonidis v Commissioner of Australian Federal Police (No 2) (2007) 163 FCR 111; 243 ALR 709; [2007] FCAFC 159 …. A12.10 Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306 …. 11.19, 11.33 Samuels v Songaila (1977) 16 SASR 397 …. 9.24, 9.26 San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 …. 6.14 Sanderson v Fotheringham (1885) 11 VLR 190 …. 4.65, A4.71 Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71; [2001] FCA 1237 …. 3.28



Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 45; [2009] SASC 2152 …. A3.38 Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213 …. 11.24, A2.45 Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494; 296 ALR 625; [2012] FCA 940 …. 12.20 Santos v Western Australia [2011] WASCA 216 …. A3.45 Santos Resources Pty Ltd and Collector of Customs (Qld), Re (1988) 18 ALD 11 …. 9.5 Saraswati v R (1991) 172 CLR 1; 100 ALR 193; [1991] HCA 21 .... 2.25, 3.17, 4.52, 7.11, A4.47 Sargood Bros v Commonwealth (1910) 11 CLR 258; [1910] HCA 45 …. 5.43 Sarina, Re; Ex parte Wollondilly Shire Council (1980) 48 FLR 372; 32 ALR 596 …. 11.11, 11.12 Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801 …. 7.22 SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55 …. 2.11 Saunders v Borthistle (1904) 1 CLR 379; [1904] HCA 13 …. 4.65 Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 137 ALD 507; [2013] FCA 827 …. 12.17 Schaeffer v Schaeffer (1994) 36 NSWLR 315 …. 9.3 Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186; 170 ALR 42; [2000] FCA 202 …. 4.21 Schlieske v Federal Republic of Germany (No 2) (1987) 26 A Crim R 341; 76 ALR 417 …. 10.33 Schneider v Caesarstone Australia Pty Ltd [2012] VSC 126 …. 1.23 Schoombee, Re Her Honour Judge; Ex parte Attorney-General for Western Australia (2011) 58 MVR 315; [2011] WASCA 129 …. 3.56, A3.57

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Scott v Cawsey (1907) 5 CLR 132; [1907] HCA 80 …. 9.11, 9.42, A9.11 — v Commercial Hotel Merbein Pty Ltd [1930] VLR 75 …. 4.7 — v Dunstone [1963] VR 579 …. 9.27 — v Federal Commissioner of Taxation (1966) 117 CLR 514; [1966] HCA 48 …. 4.2 — v Moses (1957) 75 WN (NSW) 101 …. 1.6, 2.43 Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282; 287 ALR 186; [2012] FCAFC 19 …. 4.12 Scrymgour v Moore (2006) 206 FLR 347; [2006] NTSC 98 …. 10.13 Scurr v Brisbane City Council (1973) 133 CLR 242; 1 ALR 420; [1973] HCA 39 …. 11.24, 11.32 Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68 …. 4.13 — v Western Australia (2014) 313 ALR 184; [2014] WASC 66 …. 4.72, A3.42 Seabay Properties Pty Ltd v Galvin Construction Pty Ltd [2011] VSC 183 …. 3.20 Seaegg v R (1932) 48 CLR 251; [1932] HCA 47 …. 7.19 Seafarers’ Retirement Fund Pty Ltd v Oppenheimer (1999) 94 FCR 594; [1999] FCA 1683 …. 12.26 Seay v Eastwood [1976] 1 WLR 1117 …. 4.11 Secretary of State for Defence v Warn [1970] AC 394 …. 11.25 Secretary, Department of Defence v Fox (1997) 24 AAR 171 …. 12.17 Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426; 147 ALR 295 …. 12.27 Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett (1998) 82 FCR 524; 52 ALD 499 …. 12.30 — v Gray (1999) 91 FCR 254; 57 ALD 67; [1999] FCA 1150 …. A2.49

Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous (2013) 213 FCR 532; [2013] FCAFC 75 …. 2.33, A2.33 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal, Re (2009) 50 AAR 40; [2009] AATA 635 …. 4.8, 4.9 Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67; (2002) 116 FCR 348; 68 ALD 357 …. A4.57 — v Draper (2003) 79 ALD 394; [2003] FCA 1409 …. 2.63 Secretary, Department of Family and Community Services and Lind, Re (2003) 36 AAR 498; [2003] AATA 242 …. 7.37 Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367; 108 ALR 77 …. 9.5 Secretary, Department of Health v DLW Health Services Pty Ltd (2016) 246 FCR 456; 152 ALD 454; [2016] FCAFC 108 …. 4.30 Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd (2012) 288 ALR 702; [2012] FCA 42 …. A9.17 — v Pagasa Australia Pty Ltd [2008] FCA 1545 …. A9.17 Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416; 122 ALR 577 …. A3.48 Secretary, Department of Social Security v Cooper (1990) 26 FCR 13; 97 ALR 364 …. 9.5 — v Ekis (1998) 85 FCR 382; 52 ALD 246 …. 4.13 — v Knight (1996) 72 FCR 115; 44 ALD 283 …. A9.3 — v Lowe (1999) 92 FCR 26; 56 ALD 609; [1999] FCA 705 …. 2.63 — v Rurak (1990) 26 FCR 1; 99 ALR 17 …. A2.43

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— v Secara (1998) 89 FCR 151; 51 ALD 481 …. 12.27 — v SRA (1993) 43 FCR 299; 118 ALR 467 …. 9.5 Secretary, Department of Transport (Vic) v Commissioner of Taxation (Cth) (2009) 261 ALR 39; [2009] FCA 1209 …. 9.59, A9.44, A9.49 Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595; [2001] VSCA 246 …. 9.51 Secretary, Department of Social Security and Diepenbroeck, Re (1992) 27 ALD 142 …. 2.63 Secretary, Department of Social Security and Mathias, Re (1991) 22 ALD 655 …. 6.14 Secretary, Department of Social Security and Underwood, Re (1991) 25 ALD 343 …. 2.63 Seeto v R [2008] NSWCCA 227 …. A2.19 Selim v Lele (2008) 167 FCR 61; 246 ALR 61, [2008] FCAFC 13 …. A3.11 Sevdalis v Director of Professional Services Review [2017] FCAFC 9 …. 4.30 Seven Cable Television Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 89; [2000] FCA 350 …. 5.30 Seven West Media Ltd v Commissioner, Australian Federal Police (2014) 223 FCR 234; 315 ALR 103; [2014] FCA 263 …. 9.40 SFS Projects Australia Pty Ltd v Registrar of Personal Property Securities (2014) 226 FCR 188; [2014] FCA 846 …. 9.5 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; 344 ALR 355; [2016] NSWCA 379 …. 5.6 Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 …. 3.17 Shaw v Yarranova Pty Ltd (2006) 15 VR 289; [2006] VSCA 291 …. 7.25, A3.45 Shearer, Re (1891) 12 LR (NSW) 24 …. 5.60



Shell Co of Australia Ltd v City of Melbourne (1995) 88 LGERA 326; [1997] 2 VR 615 …. A2.43 Shell Company of Australia Ltd v Commissioner of State Revenue [2011] VSC 147 …. A6.9 Shell’s Self Service Pty Ltd v Deputy Commissioner of Taxation (1989) 98 ALR 165 …. A9.56 Shephard v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76 …. A3.52 Shepherd v Hills (1855) 11 Exch 55; 156 ER 743 …. 9.59 Shergold v Tanner (2002) 209 CLR 126; 188 ALR 302; [2002] HCA 19 …. 5.49, 7.12 Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342; (1976) 10 ALR 441 …. A6.5 Sherwood v O’Brien (1922) 39 WN (NSW) 68 …. 8.2 Shields v Chief Commissioner of Police (2008) 19 VR 33; [2008] VSC 2 …. 7.25, 7.26 Ship ‘Gem of Safaga’ v Euroceanica (UK) Ltd (2010) 182 FCR 27; 265 ALR 88; [2010] FCAFC 14 …. 3.9 Ship, ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1; [1994] HCA 54 …. 6.4 Shipping Corporation of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142; 32 ALR 609 …. A2.32 Shire of York v Rosmill Pty Ltd [2010] WASC 189 …. A3.49 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 …. 2.63 Shuster v Minister for Immigration and Citizenship (2008) 167 FCR 186; 100 ALD 340; [2008] FCA 215 …. 4.74 Sifam Electrical Investment Co Ltd v Sangamo Weston Ltd [1971] 2 All ER 1074 …. 10.27 Siganto v R (1998) 194 CLR 656;159 ALR 94; [1998] HCA 74 …. 9.26 Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2 …. 4.65, 4.66, 7.4

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Sillery v R (1981) 180 CLR 353; 35 ALR 227; [1981] HCA 34 …. 9.33 Simon v Condran (2013) 85 NSWLR 768; [2013] NSWCA 388 …. 5.60, 7.26 Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 …. A10.35 Simpson v Attorney-General [1955] NZLR 271 …. 11.19, 11.34 — v Nominal Defendant (1976) 13 ALR 218 …. 6.12 Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 …. 2.12, A3.11 — v Minister for Immigration and Citizenship (2102) 125 ALD 149; [2012] FCAFC 12 …. 4.62 — v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389 …. 12.17 Sinnapan v Rizkalla [1993] 1 VR 547 …. 9.5 Skase, Re (1991) 32 FCR 212; 104 ALR 229 …. 5.14 Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 …. A3.36 Slaveski v Smith [2012] VSCA 25; (2012) 24 VR 206 …. A5.58 Sloggett v Adams (1953) 70 WN (NSW) 206 …. 9.34 SM v R (2013) 46 VR 464; [2013] VSCA 342 …. 3.6 Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 …. 1.45, 4.2 Smith v Calder [1941] SASR 263 …. 10.15 — v Commissioner of Corrective Services [1978] 1 NSWLR 317 …. 3.59 — v Corrective Services Commissioner (NSW) (1980) 147 CLR 134; 33 ALR 25; [1980] HCA 49 …. 9.39 — v Federal Commissioner of Taxation (1987) 164 CLR 513; 74 ALR 411; [1987] HCA 48 …. 12.7, 12.8 — v Papamihail (1998) 88 FCR 80; 158 ALR 451 …. 2.46, 2.49

— v R (1994) 181 CLR 338; 125 ALR 385; [1994] HCA 60 …., 5.42, 7.21, 7.23, A4.51 — v Watson (1906) 4 CLR 802; [1906] HCA 80 …. 11.16 Smith, Ex parte; Workers’ Compensation Commission, Re (1930) 31 SR (NSW) 152 …. 10.27 Smith’s Estate, Re; Clements v Ward (1887) 35 Ch D 589 …. 7.21 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287; 125 ALR 577 …. 4.11 Snedden v Minister for Justice for the Commonwealth of Australia (2014) 315 ALR 352; [2014] FCAFC 156 …. 9.44, 12.20 Sobczuk and Carnarvon Medical Service Aboriginal Corporation, Re (1999) 58 ALD 727; [1999] AATA 864 …. 12.14 SOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170; 218 ALR 617; [2005] FCAFC 56 …. A1.12 Solicitor for the Northern Territory v Moketarinja (1996) 111 NTR 4 …. 7.22 Solicitor’s Clerk, Re [1957] 1 WLR 1219 …. 9.23, 10.4 Solicitors’ Trust v Oxenbould (2013) 22 Tas R 235; [2013] TASFC 2f …. 9.5 Solomons v District Court of New South Wales (2002) 211 CLR 119; 192 ALR 217; [2002] HCA 47 …. 5.12 Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558; 208 ALR 328; [2004] NSWCA 200 …. A2.43, A4.2 Sonenco (No 87) Pty Ltd v Federal Commissioner of Taxation (1992) 38 FCR 555; 111 ALR 131 …. 9.51 Sorbello v Whan [2007] NSWSC 951 …. A2.61 Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237; [1983] HCA 10 …. 5.43 South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 …. 2.28

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South Australian Banking Co v Horner (1868) 2 SALR 263 …. 4.68 South Australian River Fishery Association Inc v South Australia (2003) 85 SASR 373; [2003] SASC 174 …. 5.29 South Australian Unit Trusts Pty Ltd, Re [1954] SASR 227 …. A9.45 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; [1939] HCA 40 …. 7.15, 7.16 Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246; 27 ALR 59; [1979] HCA 59 …. 4.62 Southwark & Vauxhall Water Co v Wandsworth District Board of Works [1898] 2 Ch 603 …. 11.8 Spautz v Dempsey [1984] 1 NSWLR 449 …. 8.2 Sportsbet Pty Ltd v Victoria (2011) 282 ALR 423; [2011] FCA 961 …. 7.25 Springhall v Kirner [1988] VR 159 …. 5.29 SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 …. 11.29, A11.22 SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631 …. 2.58 Staltari v Pharmacy Restructuring Authority (1995) 36 ALD 555 …. 4.12, 4.25 STAN Constructions Pty Ltd v Williams (1981) 55 ALJR 466; 35 ALR 316 …. 7.33 Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449 …. 9.5 Starkey v South Australia (2011) 111 SASR 537; [2011] SASCFC 164 …. 9.5 Staska v General Motors-Holden’s Pty Ltd (1970) 123 CLR 673 …. 10.3 State Authorities Superannuation Board v Commissioner of State Taxation for Western Australia (1996) 189 CLR 253; 140 ALR 129; [1996] HCA 32 …. 5.17, A9.19 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579; 53 ALR 625; [1984] HCA 41 …. 4.47



State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161; [1987] HCA 38 …. 3.34 State Government Insurance Commission v Wagner (1993) 62 SASR 175 …. 12.12 State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511; 101 ALR 259 …. 5.17 State Government Insurance Office (Queensland) v Crittenden (1966) 117 CLR 412; [1966] HCA 56 …. 12.7, 12.9 State Revenue (Vic), Commissioner of v Price Brent Services Pty Ltd [1995] 2 VR 582 …. 4.18 State Transport Authority v Corporation of City of Adelaide (1980) 24 SASR 481 …. 9.56 Sterling Guardian Pty Ltd v Federal Commissioner of Taxation (2005) 220 ALR 550 …. 9.49 Sterling Nicholas Duty Free Pty Ltd v Commonwealth [1971] 1 NSWLR 353 …. 2.42 Sterling, Re; Ex parte Esanda Ltd (1980) 44 FLR 125; 30 ALR 77 …. 5.31 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; 221 ALR 448; [2005] HCA 58 …. 9.12 Stewart v Lizars [1965] VR 210 …. 4.37 Stingel v Clarke (2006) 226 CLR 442; 228 ALR 229; [2006] HCA 37 …. 4.14 Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231; [1978] 1 All ER 948 …. 2.3 Strachan v Brown (2000) 9 Tas R 291; [2000] TASSC 142 …. 3.59, A3.42 Stuart v R (1974) 134 CLR 426; 4 ALR 545; [1974] HCA 54 …. 8.9 Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 …. 5.30 Subway Systems Australia Pty Ltd v Ireland (2014) 46 VR 49; [2014] VSCA 142 …. A2.32 Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528; 148 ALR 447 …. A3.39

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Sun World International Inc v Registrar, Plant Breeders’ Rights (1998) 87 FCR 405; 158 ALR 98 …. 4.22 Sungravure Pty Ltd v Middle East Airlines Airliban Sal (1975) 134 CLR 1; 5 ALR 147; [1975] HCA 6 …. 8.9, 8.11 Sunshine Management Services Pty Ltd v Russo (1991) 4 ACSR 192 …. 2.44 Suntory (Aust) Pty Ltd v Commissioner of Taxation (2009) 177 FCR 140; [2009] FCAFC 180 …. 4.80 Surtees v Ellison (1829) 9 B & C 750; 109 ER 278 …. 3.37 Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] 1 Ch 174 …. 2.24 Sutherland Shire Council, Ex parte; Cahill, Re [1969] 2 NSWR 437 …. A7.24 Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73 …. 3.45, 7.25 — v Volunteer Marine Rescue Inc [2000] QCA 455 …. 1.13 Sweet v Parsley [1970] AC 132 …. A9.11 Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661; [2000] NSWCA 37 …. 4.47 Sydney Local Health Network v QY and QZ (2011) 83 NSWLR 321; [2011] NSWCA 412 …. 3.6, A3.30, A6.3 Symington v Port Adelaide City Corporation (1974) 8 SASR 209 …. 9.42 Syndicate Club Pty Ltd v Queensland [2003] QSC 104; [2005] 1 Qd R 209 …. A9.8 Szelagowicz v Stocker (1994) 35 ALD 16 …. 4.16, 4.22 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; 299 ALR 246; [2013] FCAFC 71 …. 6.8 SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260; 239 ALR 734; [2007] FCAFC 39 …. A11.26 SZOFE v — (2010) 185 FCR 129; 115 ALD 519; [2010] FCAFC 79 …. 11.19 SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; 91 ALJR 936; [2017] HCA 34…. 2.1, 2.13, 2.31, 3.7, 4.12

SZTVU v Minister for Home Affairs [2019] FCAFC 30 …. 6.4

T T v T (2008) 216 FLR 365 ; [2008] FamCAFC 4 …. 2.43, A2.43 Tabcorp Holdings Ltd v Treasurer of Victoria [2013] VSC 324 …. A2.43 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285; 131 ALR 319 …. 5.60, 12.10, A12.10 Taikato v R (1996) 186 CLR 454; 139 ALR 386; [1996] HCA 28 .... 5.35 Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25; 153 ALR 377 …. A1.12 Tal Life Ltd v Shuetrim (2016) 91 NSWLR 439; 332 ALR 507; [2016] NSWCA 68 …. 3.33 Talacko v Talacko (2010) 183 FCR 311; 268 ALR 266; [2010] FCAFC 54 …. 5.43 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; 305 ALR 547; [2013] FCAFC 139 …. 12.8 Tasbulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd (2012) 22 Tas R 85; [2012] TASSC 87 …. A4.7 Tasker v Fullwood [1978] 1 NSWLR 20 …. 11.2, 11.28, 11.35 Tasker, Ex parte; Re Hannan [1971] 1 NSWLR 804 …. 11.19, 11.25 Tasmania v Commonwealth (1904) 1 CLR 329; [1904] HCA 11 …. 4.44 — v L (2013) 232 A Crim R 123; [2013] TASSC 47 …. 1.21 — v QRS (2013) 22 Tas R 180; [2013] TASSC 7 .... A3.52 Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications, Re (1992) 29 ALD 395 …. A3.5 Tassell v Hayes (1987) 163 CLR 34; 71 ALR 480; [1987] HCA 21 …. 5.60 Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 …. A1.12 Taylor v Anstis [1940] VLR 300 …. 10.14

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— v Goodwin (1879) 4 QBD 228 …. 4.2, 9.13 — v Owners — Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547; [2014] HCA 9 …. 2.53, 2.56, A12.7 — v Public Service Board (1976) 137 CLR 208; 10 ALR 211; [1976] HCA 36 …. 4.3 — v Territory Insurance Office (1991) 77 NTR 13 …. 11.28 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; 311 ALR 387; [2014] FCAFC 83 …. A2.32 TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 62 FLR 366; 42 ALR 496 …. 12.34 Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264; [1999] FCA 111 …. 3.53 Te Kloot v Te Kloot (1894) 15 LR (NSW) D 1 …. 3.37 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 273 ALR 134; 85 ALJR 316; [2010] HCA 49 …. 4.21 Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45; 85 ALR 173; [1989] HCA 24 …. 12.7 Telstra Corp Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153; 107 ALD 474; [2008] FCA 1758 …. 4.25, 4.30 — v Treloar (2000) 102 FCR 595; [2000] FCA 1170 …. 1.12 — v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 …. A9.19 Teo and Minister for Immigration and Citizenship, Re (2007) 95 ALD 165; [2007] AATA 1118 …. 11.26 The Banco; Owners of the Motor Vessel Monte Ulia v Owners of the Ship Banco [1971] P 137; [1971] 1 All ER 524 …. 3.12 Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338; 94 ALR 647; [1990] HCA 37 …. 2.37



Thiess v Collector of Customs (2014) 250 CLR 664; 306 ALR 594; [2014] HCA 12 …. 3.33 Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53; [2009] VR 1 …. 4.9 Thomas v Davies [1937] VLR 217 …. 8.5 — v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 …. 6.6 Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 …. 4.22 Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513; 127 ALR 317 …. 5.35 — v Byrne (1999) 196 CLR 14; 161 ALR 632; [1999] HCA 16 …. 1.15, 3.20 — v Goold & Co [1910] AC 409 …. 2.52 — v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72; [2003] NTCA 5 …. A2.61 — v JT Fossey Pty Ltd (No 1) (1978) 20 ALR 496 …. 3.39 — v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 …. 5.42, A9.11 — v Nixon [1966] 1 QB 103 …. 4.16 — v Smith (1976) 135 CLR 102; 12 ALR 513; [1976] HCA 56 …. 3.53 Thorn EMI Pty Ltd v Federal Commissioner of Taxation (1987) 13 FCR 491; 71 ALR 728 …. A3.49 Thornton v Newcrest Mining Ltd [2011] WASCA 92 …. 1.19 Thwaites v O’Sullivan [1965] SASR 34 …. 5.14 Tickner v Bropho (1993) 40 FCR 183; 114 ALR 409 …. 9.5, A4.64 Tilbury & Lewis Pty Ltd v Marzorini [1940] VLR 245 …. 11.21 Tillman v Attorney-General for New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 …. 1.19 Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331; 27 ALR 367 …. 12.30 Timothy v Munro [1970] VR 528 …. 4.9, 9.5, A3.38

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TJM Products Pty Ltd v Industry Research and Development Board (1998) 83 FCR 379; 55 ALD 183 …. 10.10 Tjungarrayi v Western Australia [2019] HCA 12 …. 6.12 Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265; 142 ALR 1 …. 12.17 Toben v Jones (2003) 129 FCR 515; 199 ALR 1; [2003] FCAFC 137 …. 4.65 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2014) 218 FCR 461; 307 ALR 1; [2014] FCAFC 22 …. 5.60 Todhunter v United States of America (1995) 57 FCR 70; 129 ALR 331 …. A2.32 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 …. 2.41 Tonkin v Brand [1962] WAR 2 …. 11.15 Toronto City Corporation v Russell [1908] AC 493 …. 11.29 Totalisator Administration Board of Queensland, Re [1989] 1 Qd R 215; (1988) 80 ALR 73 …. 5.50, 5.52 Totalizator Agency Board v Federal Commissioner of Taxation (1996) 69 FCR 311; 139 ALR 644 …. 4.8, 9.57 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 …. 4.30, 6.3, 6.4, 6.14 Towney v Minister for Land and Water Conservation for New South Wales (1997) 76 FCR 401; 147 ALR 402 …. A1.12 Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306; [1914] HCA 33 …. A3.59 Tozer v Walker [1961] VR 254 …. 5.14 Tracy v Repatriation Commission (2000) 101 FCR 149; 61 ALD 361; [2000] FCA 779 …. 9.2, 9.5 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; 123 ALR 503 …. 5.38 — v BP Australia Ltd (1985) 7 FCR 499; 62 ALR 151 …. 7.12

— v Collings Construction Co Pty Ltd (1994) 53 FCR 137; 130 ALR 115 …. 3.46 — v CSR Ltd (1991) ATPR 41-076 …. 9.17 — v Gillette Company (1993) 45 FCR 466; 118 ALR 280; [1993] FCA 496 …. A9.8 — v TNT Management Pty Ltd (1985) 6 FCR 1; 58 ALR 423 …. 9.12. 9.17 Trade Practices Tribunal, Re; Ex parte Tooheys Ltd (1977) 16 ALR 609 …. 2.47 Traders Prudent Insurance Co Ltd v Registrar of Workers’ Compensation Commission of New South Wales [1971] 2 NSWLR 513 …. 4.56 Trajkowski v Director of Public Prosecutions (WA) (2010) 41 WAR 105; [2010] WASCA 119 …. A3.45 Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 …. 9.43, A3.10, A4.65, A9.36 Transport Accident Commission v Clarke [1994] 1 VR 117 …. A3.27 — v Hogan (2013) 41 VR 112; [2013] VSCA 335 …. A6.5, A6.9 — v Kymantas (2012) 26 VR 19; [2012] VSCA 1353 …. A3.52 — v Lanson (2001) 3 VR 250 ; [2001] VSCA 84 …. 10.5 — v Sweedman (2004) 10 VR 31; 210 ALR 140; [2004] VSCA 162 …. A4.21 — v Treloar [1992] 1 VR 447 …. 6.12, A2.43 Transport Workers Union of Australia v Qantas Airways Ltd (2012) 199 FCR 190; 287 ALR 236; [2012] FCAFC 10 …. 9.5 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108; 245 ALR 458; [2008] FCAFC 26 …. 5.31, A2.49, A5.31 Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; 270 ALR 253; [2010] HCA 33 …. 12.8, A9.49

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Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14 …. 7.16 Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 …. 2.60, 9.55, A4.9 Trenerry v Bradley (1997) 115 NTR 1 …. 9.33, A2.43, A4.65 Treneski and Comcare, Re (2004) 80 ALD 760; [2004] AATA 98 …. 4.14 Trengove v Repatriation Commission (1994) 50 FCR 453; 122 ALR 271 …. 11.15 Trevisan v Federal Commissioner of Taxation (1991) 29 FCR 157; 101 ALR 26 …. 2.20 Trevorrow v Council of City of Gold Coast [2017] QSC 12 …. A2.56 Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of New South Wales (1905) 2 CLR 509; [1905] HCA 20 …. 5.31 Trustees Executors & Agency Co Ltd v Gleeson (1959) 102 CLR 334; [1959] HCA 53 …. 10.16 — v Reilly [1941] VLR 110 …. 12.7 Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80; [2013] NSWCA 37 …. 12.9, A3.39 Trustees of the Walsh Trust v Federal Commissioner of Taxation (1983) 13 ATR 861 …. 9.42, 9.51 Tsang v Director of Public Prosecutions (2011) 35 VR 240; [2011] VSCA 336 …. 5.14 TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199 …. 1.19 Tu v University of Sydney (2003) 57 NSWLR 376; [2003] NSWCA 170 …. 11.29 Tuck v Priester (1887) 19 QBD 629 …. 9.10 Tuitupou v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 361; [2000] FCA 197 …. 10.4, 10.9 Tuohey v Freemasons Hotel (2012) 37 VR 180; [2012] VSCA 80 …. A5.44



Turner v Ciappara [1969] VR 851; Dodd v Executive Air Services Pty Ltd [1975] VR 668 …. A2.59 — v George Weston Foods Ltd t/a Tip Top Bakeries (Newcastle) [2007] NSWCA 67 …. 2.58, 2.60 — v Kowloon Holdings Pty Ltd [2003] WASCA 276 …. A4.65 — v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180; 35 ALR 388 …. 12.17 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172; 60 ALR 687 …. 4.67 Twist v Randwick Municipal Council (1976) 136 CLR 106; 12 ALR 379; [1976] HCA 58 …. 4.45

U Ul-Haque v R [2006] NSWCCA 241 .... A3.39 Uber B V v Commissioner of Taxation (2017) 247 FCR 462; [2017] FCA 110 …. 3.33, 4.13, 4.26 Uddin v Minister for Immigration and Multicultural Affairs [1999] FCA 1041; (1999) 165 ALR 243 …. A1.12 Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; 319 ALR 181; [2015] HCA 15 …. 2.58 Uittenbosch v Department of Corrective Services [2006] 1 Qd R 565; [2005] QCA 300 …. 5.60 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; 82 ALR 43; [1988] HCA 55 …. 5.12, 11.27 Unions New South Wales v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 …. 5.60 Unions NSW v New South Wales [2019] HCA 1 …. 3.10 United Airlines Inc v Sercel Australia Pty Ltd (2012) 289 ALR 682; [2012] NSWCA 24 …. 4.4 United Society v Eagle Bank (1829) 7 Conn 457 …. 3.43

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Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 …. A2.50 Universal Press Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 332 …. A9.56 University of Adelaide v Mitcham District Council [1937] SASR 288 …. 3.55 University of Western Australia v Gray (No 20) (2008) 246 ALR 603; [2008] FCA 498 …. 5.29 — v — (2009) 179 FCR 346; 259 ALR 224; [2009] FCAFC 174 …. 5.29 University of Wollongong v Metwally (1984) 158 CLR 447; 56 ALR 1; [1984] HCA 74 …. A4.57 Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41 …. 12.9

V Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 …. 4.61 Valantine v Technical and Further Education Commission (2007) 97 ALD 447; [2007] NSWCA 208 …. 5.40, 5.41 Vale Press Pty Ltd v Deputy Commissioner of Taxation (1992) 34 FCR 238; 105 ALR 207 …. 9.46 Vallance v R (1961) 108 CLR 56; [1961] HCA 42 …. 8.9, 8.11 Van der Feltz v City of Stirling (2009) 167 LGERA 236; [2009] WASC 142 …. A3.35 Van Essen & Van Essen (2000) 26 Fam LR 456; [2000] FamCA 775 …. 1.7 Van Lieshout v City of Fremantle (No 2) (2013) 276 FLR 199; [2013] WASC 176 …. 2.30 Van Reesema v Official Receiver in Bankruptcy (1983) 69 FLR 424; 50 ALR 253 …. A11.35 Vanit v R (1997) 190 CLR 378; 149 ALR 1; [1997] HCA 51 …. 1.16, A1.6, A2.20, A3.26, A7.20 Vanstone v Clark (2005) 147 FCR 299; 224 ALR 666; [2005] FCAFC 189 …. 12.34

VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; [2003] NSWCA 297 …. 11.24 Vella v Commissioner of Australian Federal Police (1985) 9 FCR 81; 61 ALR 210 …. 9.39 Venice Nominees Pty Ltd (in liq), Re (1992) 108 FLR 237; [1992] ACTSC 56 …. 9.41 Venturex Resources Ltd, Re (2009) 177 FCR 391; [2009] FCA 677 …. A4.51 VFAY v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 402; 204 ALR 152; [2004] FCA 14 …. 9.5 Vickers v Queensland Building and Construction Commission [2019] QCA 66 …. 6.4, 6.12, 6.14, A6.3 Victims Compensation Fund v Brown (2002) 54 NSWLR 668; [2002] NSWCA 155 …. 2.21 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; 201 ALR 260; [2003] HCA 54 …. 2.21, 4.56, 4.64, 9.3 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (No 2) (1982) 152 CLR 179; 43 ALR 693; [1982] HCA 57 …. 11.12 — v Commonwealth (1975) 134 CLR 81; 7 ALR 1; [1975] HCA 39 …. 11.27, 11.34, 11.35 — v Intralot Australia Pty Ltd [2015] VSCA 358 …. 4.73 — v Macedonian Teachers Association of Victoria Inc (1999) 91 FCR 47; 56 ALD 333; [1999] FCA 1287 …. 12.15 — v R [2014] VSCA 311 …. 2.59 — v Robertson (2000) 1 VR 465 …. 10.12 Victorian Police Toll Enforcement v Taha (2013) 49 VR 1; [2013] VSCA 37 …. A5.58, A4.2 Victorian Public Service Board v Wright (1986) 160 CLR 145; 64 ALR 206; [1986] HCA 16 …. 5.51 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34 …. 9.23

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Victorian WorkCover Authority v Elsdon [2013] VSCA 235 …. 4.25 Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595; 131 ALR 465; [1995] HCA 51 …. 10.18, 10.22, 10.30 Vidler v Federal Commissioner of Taxation (2010) 183 FCR 440; [2010] FCAFC 59 …. A3.52 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 …. 4.69 Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; 173 ALR 518; [2000] FCA 797 …. A9.7 Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 …. 4.25, A6.9 Vulcan Australia Pty Ltd and Comptroller General of Customs, Re (1994) 34 ALD 773 …. 12.30

W WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training, Re (2018) 159 ALD 186; [2018] AATA 1312 …. 4.38, 4.40 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 …. 9.27 Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; [1978] HCA 30 …. 2.18, 6.4 Wacando v Commonwealth (1981) 148 CLR 1; 37 ALR 317; [1981] HCA 60 …. 4.62, 4.63, 4.71 WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; 210 ALR 190; [2004] HCA 50 …. A11.26 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177; [1969] HCA 28 …. 5.27 Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32 …. 4.73 Wainer v Rippon (1979) 29 ALR 643; [1980] VR 129 …. A4.57



Walker v McLaren (1884) 2 NZLR 262 …. 8.5 — v Midlink Nominees Pty Ltd (2000) 22 WAR 318; [2000] WASC 112 …. 1.17 — v Shire of Flinders (1984) 53 LGRA 285; [1984] VR 409 …. 2.60 Walker Corp Pty Ltd v Director-General, Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210 …. 6.10 — v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; 242 ALR 383; [2008] HCA 5 …. 1.10, 1.19, 1.21 Wall v R; Ex parte King Won (No 1) (1927) 39 CLR 245; [1927] HCA 4 …. 5.42 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9 …. A3.48 Wallace v Debs [2009] VSC 355 …. 9.39 Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; 285 ALR 41; [2012] HCA 4 …. 3.21 Walsh v Alexander (1912) 16 CLR 293; [1912] HCA 24 …. 5.49 — v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 …. 3.36 Walton v Baffsky [1975] 2 NSWLR 565 …. 10.33 Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; 151 ALR 717 …. A2.57, A11.26 Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; [1934] HCA 3 …. 5.15, 5.16 Ward v Commissioner of Police (1998) 80 FCR 427; 151 ALR 604 …. 3.49 — v Williams (1955) 92 CLR 496; [1955] HCA 4 …. 11.5, 11.8, 11.11 Warnecke v Equitable Life Assurance Society of the United States [1906] VLR 482 …. 3.59 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 …. 9.28 Warnink v J Townshend & Sons (Hull) Pty Ltd [1979] AC 731 …. 1.25

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Warumungu Land Claim, Re; Ex parte Attorney-General (NT) (1987) 77 ALR 27 …. 3.30 Waterhouse v Pas (1998) 103 A Crim R 511 …. 4.38 Waters v Public Transport Corporation (1991) 173 CLR 349; 103 ALR 513; [1991] HCA 49 …. 9.2, 9.5 Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 …. 9.39 Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; [1986] HCA 12 …. 9.5, 9.8, 9.11 Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390 …. 12.9, A3.30, A3.48 WBM v Chief Commissioner of Police (2012) 43 VR 446; [2012] VSCA 159 …. 10.1, 12.11, 12.16 Webb v Harris (1983) 47 ACTR 17 …. 9.12 — v McCracken (1906) 3 CLR 1018; [1906] HCA 45 …. 4.21, A9.45 Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15; 117 ALR 321; [1993] HCA 61 …. 9.5 Webster v Bread Carters Union of NSW (1930) 30 SR (NSW) 267 …. 5.49, 5.50 — v McIntosh (1980) 32 ALR 603; 3 A Crim R 455 …. 3.48 Weinstock v Beck (2013) ALR 1; [2013] HCA 14 …. 5.51 Wellbridge v Jackson [1990] VR 689 …. A3.38 Wentworth v New South Wales Bar Association (1992) 176 CLR 239; 106 ALR 624; [1992] HCA 24 …. 4.45, 5.6, 5.51 Wentworth Securities Ltd v Jones [1980] AC 74 …. 2.53 West Australian Field & Game Association Inc v Pearce (1992) 8 WAR 64; 27 ALD 38 …. 11.17 Western Australia v AH [2010] WASCA 172; (2010) 41 WAR 431 …. A3.10 — v BLM (2009) 40 WAR 414; 256 ALR 129; [2009] WASCA 88 …. A2.12 — v G (a child) (2009) 201 A Crim R 1; [2009] WASC 234 …. 3.44

— v Olive [2011] WASCA 25; (2011) 57 MVR 269 …. A3.45 — v Richards (2008) 37 WAR 229; 185 A Crim R 413; [2008] WASCA 134 …. 10.28 — v Wallam [2008] WASCA 117(S) …. 1.50 — v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28 …. 4.21 — v Wilsmore (1982) 149 CLR 79; 40 ALR 213; [1982] HCA 19 …. 4.69 Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities (2012) 291 ALR 52; [2012] FCA 226 …. 11.15 Western Australian Newspapers Pty Ltd v Warren (1994) 56 IR 340 ….A2.43 Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; 341 ALR 70; [2017] HCA 7 …. 2.43 — v Temwood Holdings Pty Ltd (2004) 221 CLR 30; 211 ALR 472; [2004] HCA 63 …. 5.27 Western Australian Trustee Executor & Agency Co Ltd v Commissioner of Taxation (WA) (1980) 147 CLR 119; 32 ALR 639; [1980] HCA 50 …. 9.44 Western Pastoral Co v Eyeington (1971) 125 CLR 342; [1971] HCA 73 …. 10.32 Westpac Banking Corporation v Australian Securities and Investments Commission (2009) 181 FCR 379; [2009] FCA 1506 …. 9.11, 9.12, A4.74 Whelan v Australian Securities Commission (No 2) (1994) 58 FCR 352; 33 ALD 53 …. 3.39 Whelan and Department of Defence, Re (1997) 47 ALD 383 …. 3.30 Whiley Investments (Qld) Pty Ltd v Pet’s Paradise Franchising (Qld) Pty Ltd [2009] VSC 144 …. A3.45 White v Bettali (2007) 71 NSWLR 381; [2007] NSWCA 243 …. 4.48 — v Mason [1958] VR 79 …. 4.51 Whittaker v Comcare (1998) 86 FCR 532 …. A1.6, A2.20 Whitton v Falkiner (1915) 20 CLR 118 …. 4.23

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Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas SR 460 …. A7.24 Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129; [1996] HCA 40 …. 5.60 Wilcox, Re; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511; 137 ALR 47 …. 4.48, A3.38 Wilde v Morgan [2013] VSCA 250 …. 12.2 Williams v Chief Executive Officer, Housing (2013) 33 NTLR 88; [2013] NTSC 28 …. 11.11 — v Commonwealth (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 …. A3.11 — v Dunn’s Assignee (1908) 6 CLR 425; [1908] HCA 27 …. 3.54, 3.55 — v Ellis (1880) 5 QBD 175 …. 4.2 — v Oataway (2005) 11 VR 529; [2005] VSCA 137 …. 3.53, 3.56, A3.57 — v R (1986) 161 CLR 278; 66 ALR 385; [1986] HCA 88 …. 5.60 — v Town of Claremont [1976] WAR 125 …. 4.58 Williamson v New South Wales [2010] NSWSC 229 …. 4.2 Willoughby v Eland (1985) 59 ALR 147 …. 4.21 Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77 …. 4.18 — v McDonald [2009] WASCA 39; (2009) 253 ALR 560 …. A3.52 — v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 …. 3.9 — v White [2007] WASCA 87 …. 2.30 — v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328; [1960] HCA 63 …. 9.5 Windsor v National Mutual Life Association of Australasia Ltd (1992) 106 ALR 282 …. 1.18 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 …. 4.30 Winkley v Paton (1943) 60 WN (NSW) 162 …. 2.45, 4.72 Winneke, Re; Ex parte Gallagher (1982) 152 CLR 211; 44 ALR 577 …. 9.22



Winstone v Kelly (1987) 46 SASR 461; 75 ALR 293 …. 10.9 Wiseman v Department of Fisheries [2013] WASC 86 …. 9.12 Witheyman v Simpson [2011] 1 Qd R 170; [2009] QCA 388 …. A2.22 WMC Resources Ltd v Lane (1997) 73 FCR 366; 143 ALR 200 …. 11.19 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; [2004] FCA 51 …. A4.73 Wood v Riley (1867) LR 3 CP 26 …. 4.54 Woodcock v South Western Electricity Board [1975] 2 All ER 545; [1975] 1 WLR 983 …. A2.61 Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 …. A1.8 Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213; 139 ALR 127 …. 5.17 Woodlock v Commissioner of Land Tax (NSW) (1974) 2 NSWLR 411; 5 ATR 57 …. 4.57 Woodrange Pty Ltd v Le Grande Broadwater Body Corporate [2004] QDC 215 …. 4.10 Woods v Bate (1987) 7 NSWLR 560 …. A11.25 Woodward v Repatriation Commission (2003) 131 FCR 473; 200 ALR 332; [2003] FCAFC 160 …. 4.25 — v Sarsons (1875) LR 10 CP 733 …. 11.20, 11.31 Worldplay Services Pty Ltd v Australian Competition & Consumer Commission (ACCC) (2005) 143 FCR 345; 219 ALR 363; [2005] FCAFC 70 …. A9.8 Work Health Authority v Outback Ballooning Pty Ltd (2019) 363 ALR 188; [2019] HCA 2…. 2.4, 7.19 Workcover Authority of New South Wales (Inspector Belley) v Freight Rail Corporation (2002) 117 IR 99; [2002] NSWIRComm 28 …. 3.58 Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; 81 ALR 260; [1988] HCA 49 …. 12.7

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WorkPac Pty Ltd v Skene (2018) 362 ALR 311; [2018] FCAFC 131 …. 4.21, 4.24, 4.28, A3.52, A4.7 Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45 …. 9.5 Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28; [1917] HCA 67 …. 10.12, 10.28 Worsley v Crawford (1994) 4 Tas R 78 …. 7.3, 9.24 Worsley Timber 2000 Pty Ltd (in liq) v Commissioner of State Revenue (2007) 69 ATR 771; [2007] WASC 155 …. 3.19, A3.38 WP Keighery Pty Ltd v Federal Commissioner of Taxation (1957) 100 CLR 66; [1958] ALR 97; [1957] HCA 2 …. 9.51 Wright v Mansell (2001) 116 FCR 46; 187 ALR 508; [2001] FCA 1519 …. A1.18 — v Walford [1955] 1 QB 363 …. 1.11 Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; 135 ALR 583 …. A11.20, A11.35 Wulaign Association Inc v Minister for Racing and Gaming (1991) 78 NTR 1 …. 9.41 Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 …. A3.14, A9.19

X X v Australian Prudential Regulation Authority (2007) 226 CLR 630; 97 ALD 241; 232 ALR 421; [2007] HCA 4 …. 4.55, 4.72 X7 v Australian Crime Commission (2013) 248 CLR 92; 298 ALR 570; [2013] HCA 29 …. 5.6, 5.38, 5.39 XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 …. 3.33, 4.13

Y Yager v R (1977) 139 CLR 28; 13 ALR 247; [1977] HCA 10 …. 3.12, 3.44 Yanner, Re (2000) 100 FCR 551; 176 ALR 1, [2000] FCA 975 …. 4.63

Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 36 FCR 478; 108 ALR 107 …. A11.35 Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; 98 ALR 68 …. 7.22, 11.34, A11.23, A11.35 — v — (1990) 98 ALR 21 …. 7.22 Yates, Re; Ex parte Walsh (1925) 37 CLR 36; [1925] HCA 53 …. 5.3 YBL v Director of Public Prosecutions (2013) 45 WAR 432; 303 ALR 374; [2013] WASCA 221 …. 5.12 Ydun, The [1899] P 236 …. 10.36 Yeo v Attorney-General (Qld) [2012] 1 Qd R 276; [2011] QCA 170 …. A3.12 Yesodei Hatorah College Inc v Trustees of Elwood Talmud Torah Congregation; (2011) 38 VR 394; [2011] VSC 622…. A2.43 Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 …. 10.6, 10.22, A10.35 Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155; 144 ALR 695 …. 5.49 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 …. 9.28 Yougarla v Western Australia (1998) 146 FLR 128 …. 3.17 Young v Owners of Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135 …. 5.28, 5.29 Yrttiaho v Public Curator (Qld₎ (1971) 125 CLR 22; [1971] HCA 298 …. 10.34 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12 …. 6.5, 6.6, 6.7

Z Zainal bin Hashim v Government of Malaysia [1980] AC 134 …. 10.12 Zangzinchai v Milanta (1994) 53 FCR 35; 125 ALR 265 …. 9.2 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469; [2003] FCA 327 …. 11.24

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Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 …. 12.17 — v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 …. A2.12 — v Zemin (2010) 78 NSWLR 513; 243 FLR 299; [2010] NSWCA 255 …. A3.12 Zheng v Cai (2009) 239 CLR 446; 261 ALR 481; [2009] HCA 52 …. 2.3 Zhu v R (2013) 232 A Crim R 51; [2013] NSWCCA 163; …. 1.21 Zibillari v R (1980) 31 ALR 693; [1981] WAR 40 …. A1.16



Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; 140 ALR 156; [1996] HCA 31 …. A3.57, A6.9 Zietsch, Ex parte; Re Craig (1944) 44 SR (NSW) 360 …. 12.13 Zollner Ltd v Sydney Municipal Council (1917) 17 SR (NSW) 164 …. 10.23 Zoological Parks Board of New South Wales and The Australian Workers’ Union, New South Wales [2004] NSWIRComm 85 …. A1.8 Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323 …. 4.56

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Table of Statutes References are to paragraphs

s 15AB(1)(b)(i) …. 3.18, 3.19 s 15AB(1)(b)(ii) …. 3.18, 3.19 s 15AB(2) …. 3.17, 3.23, 3.29 s 15AB(2)(d) …. 2.35, 2.36 s 15AC …. 4.10, 9.52 s 15AD …. 4.75 s 33(3) …. 12.34 s 33(3B) …. 4.45 s 46 …. 2.15, 2.50, 3.15 s 46(2) …. 12.34 s 46B …. 10.11

Commonwealth A New Tax System (Goods and Services Tax) Act 1999 …. 9.49 Aboriginal Land Rights (Northern Territory) Act 1976

s 11 …. 3.30 s 12 …. 3.30 ACIS Administration Regulations 2000 …. 4.9 Acts Interpretation Act 1901 …. 1.45, 2.15, 2.16, 3.15, 3.17, 3.22, 3.44, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 9.24, 9.30, 9.52, 10.37, 11.13, 11.30, 12.34

Acts Interpretation Amendment Act 1984

s 2 …. 3.15 s 7 …. 3.1 Acts Interpretation Amendment Act 2011 …. 1.49, 2.15, 4.75

s 11B …. 7.25 s 12 …. 4.2 s 13 …. 4.61, 4.62, 4.64, 4.67, 4.71, 4.74, 4.78 s 13(1) …. 1.45, 1.47, 1.48, 1.49, 2.30 s 13(2)(d) …. 1.45 s 14AD …. 4.75 s 15 …. 7.25 s 15A …. 2.62, 5.11 s 15AA …. 2.14, 2.15, 2.16, 2.17, 2.18, 2.19, 2.20, 2.21, 2.22, 2.25, 2.26, 2.27, 2.28, 2.29, 2.40, 2.50, 2.57, 3.1, 3.7, 3.18, 3.19, 9.12, 9.43 s 15AA(1) …. 2.20, 2.36 s 15AB …. 2.35, 3.1, 3.3, 3.5, 3.8, 3.15, 3.16, 3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 3.24, 3.25, 3.26, 3.27, 3.28, 3.29, 3.30, 3.32, 4.74 s 15AB(1) …. 2.36, 3.22 s 15AB(1)(a) …. 3.17, 3.19

Sch 1 …. 2.15 Administrative Decisions (Judicial Review) Act 1977 …. 11.9, 12.13

s 9…. 5.50 Amending Acts 1901–1969 Repeal Act 2014 …. 7.27

s 3(2) …. 7.27 Australia Act 1986 …. 7.30

s 1 …. 7.5 Australia (Request and Consent) Act 1985 …. 7.5 Australian Citizenship Act 2007 …. 3.44, 9.4 Australian Securities Commission Act 1989 …. 3.36

s 50 …. 3.36 Australian Sports Drug Agency Regulations 1990

reg 17(1) …. 2.50 reg 17(2) …. 2.50 xci

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Broadcasting and Television Act 1942 …. 7.36 Broadcasting Services Act 1992 …. 4.30 Builders Labourers’ Federation (Cancellation of Registration — Consequential Provisions) Act 1986 …. 3.17 Bankruptcy Act 1966 …. 5.14, 9.2

Customs Tariff Act 1967 …. 3.22 Death Penalty Abolition Act 1973 …. 7.26 Defence Act 1941 …. 10.9 Defence (Visiting Forces) Act 1963

Pt III …. 5.7 s 19(1) …. 1.14 Evidence Act 1995 …. 1.25

s 118 …. 2.60 s 119 …. 2.60 s 143(3) …. 1.29 s 187 …. 5.38, 5.40

s 81 …. 11.16 s 86 …. 9.9 s 150(7) …. 11.16 Conciliation and Arbitration Act 1904 …. 11.16 Constitution …. 2.54, 3.11, 3.14, 4.21, 5.11, 5.25, 5.42, 5.60, 10.9, 11.27

Ch II …. 1.26 Ch III …. 1.26 s 51 …. 9.46 s 51(xxxi) …. 5.25 s 51(xxxix) …. 10.9, 10.10 s 57 …. 11.18, 11.27 s 61 …. 1.26 s 73 …. 5.42 s 92 …. 4.44 s 93 …. 4.44 s 93(i)(a) …. 4.44 s 109 …. 7.13, 7.19

Extradition Act 1988 …. 4.41

s 22(2) …. 2.38 Family Law Act 1975 …. 3.44

s 75(2)(l) …. 2.47 Freedom of Information Act 1982 …. 3.56

s 3 …. 4.63 Immigration Restriction Act 1901 …. 5.35 Income Tax and Social Services Contribution Assessment Act 1936 …. 7.33 Income Tax and Social Services Contribution (Individuals) Act 1956 …. 7.33 Income Tax Assessment Act 1936 …. 3.29, 3.39, 3.42, 3.44, 4.17, 9.43, 9.44

Copyright Act 1912 …. 4.14 Copyright Act 1968 …. 4.2 Corporations Act 2001 …. 2.16, 2.21, 2.22, 3.47, 4.74

s 5C …. 2.16, 3.15 s 207 …. 2.21 s 256A …. 2.21 Corporations Law …. 1.17 Crimes Act 1914 …. 5.18, 10.9

s 4B …. 9.21 s 4C …. 9.22 s 4F …. 9.24 s 16G …. 1.16 Criminal Code …. 8.7 Criminal Code Act 1995

s 270.6(2) …. 3.40 Customs Act 1901 …. 1.23

Pt IVA …. 9.51 s 46(3) …. 11.7, 12.2 s 123A(1) …. 4.35 s 260 …. 9.51 Income Tax Assessment Act 1997 …. 9.44 Income Tax Assessment (Amendment) Act 1936

s 204 …. 3.19 Income Tax (International Agreements) Act 1953

s 11E …. 2.37 Sch 15 …. 2.37 Industrial Relations Act 1988 …. 3.58 International Arbitration Act 1974 …. 1.23, 10.23 International Tax Agreements Act 1953 …. 2.37

Sch 4 …. 2.37

Pt XVB …. 1.23 xcii

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s 251 …. 2.63 s 729(2) …. 2.63

Judiciary Act 1903 …. 10.23

s 33A …. 10.23 s 39B …. 10.23 s 79 …. 7.19 Lands Acquisition Act 1955 …. 5.26 Legislation Act 2003

s 12 …. 10.11 s 13 …. 2.15, 3.15 Legislative Instruments (Transitional and Consequential Amendments) Act 2003 …. 2.16 Matrimonial Causes Act 1959 …. 5.28

s 87(1) …. 11.16

Statute Law Revision Act 1981

s 115 …. 2.14, 3.1 Statute of Westminster Adoption Act 1942 …. 7.5 Telecommunications (Interception) Act 1979 …. 5.41 Television Stations Licence Fees Act 1964 …. 7.36 Trade Marks Act 1955 …. 4.58

s 28 …. 12.2 Trade Practices Act 1974 …. 5.17, 9.9

Pt IIIA …. 4.25 Pt V …. 4.66 s 52 …. 4.66 s 75(1) …. 4.63 s 155(1) …. 5.37

Migration Act 1958 …. 2.33, 2.36, 3.13, 3.36, 4.43

s 4 …. 2.33 s 5 …. 2.36 s 36 …. 2.36 s 51A(1) …. 3.19 s 200 …. 7.12 s 201 …. 7.12 s 501 …. 9.36 s 501(2) …. 7.12 National Security Act 1939 …. 5.24 National Security (Aliens Service) Regulations …. 5.24 National Security (Fair Rents) Regulations …. 4.65 National Security (Landlord and Tenant) Regulations …. 1.18 Navigation Act 1958 …. 7.14 Petroleum and Minerals Authority Act 1973 …. 11.27 Post and Telegraph Act 1901 …. 11.3 Privacy Act 1988 …. 5.5 Racial Discrimination Act 1975 …. 9.7 Repatriation Act 1920 …. 11.9 Rules Publication Act 1903

s 6A(1) …. 8.6 Safety Rehabilitation and Compensation Act 1988 …. 4.30, 4.70 Social Security Act 1947 …. 3.39, 4.60 Social Security Act 1949



Workplace Relations Act 1996 …. 3.58

Australian Capital Territory Credit Act 1985

s 5 …. 3.20 Criminal Code …. 7.35, 8.7 Evidence (Miscellaneous Provisions) Act 1991 …. 10.4, 10.27

s 40F …. 10.4, 10.27 Freedom of Information Act 1989 …. 3.56 Human Rights Act 2004 …. 2.29, 5.1, 5.55, 5.56, 5.57, 5.59

s 28 …. 5.56 s 30 …. 5.56 s 30(1) …. 2.29 Interpretation Act 1967

s 11A …. 2.26 Legislation Act 2001 …. 1.45, 3.16, 3.23, 4.2, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.9, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 9.21, 9.24, 9.30, 9.52, 10.37, 11.13, 11.30, 12.34

s 4 …. 2.16 s 4(1) …. 3.16 s 5 …. 5.38, 5.41 s 6 …. 5.38, 5.41

s 52 …. 2.63 Social Security Act 1991 …. 2.63 xciii

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Legislation Act 2001 – cont’d

Conveyancing Act 1919 …. 11.15

s 6(2) …. 5.9 s 6(3) …. 5.9 s 7(3) …. 2.26 s 76 …. 10.11 s 82 …. 7.1 s 84A …. 9.24 s 89 …. 7.27 s 90 …. 7.25 s 126 …. 4.67 s 126(1) …. 1.45, 4.62 s 126(2) …. 1.47 s 126(4) …. 4.75 s 126(5) …. 1.48 s 126(6) …. 4.78 s 127(1) …. 1.49 s 132 …. 4.75 s 136 …. 2.16, 3.16 s 138 …. 2.26, 3.23 s 139 …. 2.16, 2.26 s 139(1) …. 2.26 s 140 …. 4.3 ss 141–143 …. 3.16, 3.23 s 141(1) …. 3.23 s 142 …. 3.23, 4.74 s 143 …. 3.23 s 147 …. 4.10 s 161 …. 9.21 s 170 …. 5.38, 5.40 s 171 …. 5.41 s 191 …. 9.22

s 66G …. 3.45 Crimes Act 1900 …. 3.37, 3.54, 6.5

s 18 …. 3.37 s 18(2)(a) …. 3.37 s 173 …. 3.44 s 376 …. 3.37 Crimes (Sentencing Procedure) Act 1999 …. 9.21

s 16 …. 9.21 s 19 …. 9.24 s 20 …. 9.22 Criminal Appeal Act 1912

s 5B …. 11.9 Criminal Assets Recovery Act 1990

s 24(1) …. 2.45 Criminal Law Amendment Act 1883 …. 8.3 Crown Lands Act of 1895 …. 9.2 Electricity Development Act 1945 …. 4.7 Environmental Planning and Assessment Act 1979 …. 7.9 Evidence Act 1898 …. 4.60 Evidence Act 1995

s 84 …. 3.9 s 90 …. 1.20 s 137 …. 1.20 Gaming and Betting Act 1912 …. 2.10, 7.22 Inclosed Lands Protection Act 1854 …. 8.3 Inclosed Lands Protection Act 1901 …. 8.3 Industrial Arbitration Act 1912 …. 10.23 Insurance Act 1902 …. 9.6 Interpretation Act 1987 …. 1.45, 2.16, 3.16, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 9.24, 9.30, 9.52, 10.37, 11.13, 11.30, 12.34

New South Wales Annual Holidays Act 1944

s 3 …. 4.5 s 4 …. 4.5 Children’s Protection Act 1902 …. 4.67 Civil Liability Act 2002 …. 3.46

s 5N …. 5.14 Common Law Procedure Act 1899 …. 10.27 Companies (New South Wales) Code 1981 …. 3.44, 8.7

s 5 …. 3.44

s 5(1) …. 2.16, 3.16 s 8 …. 7.1 s 21 …. 7.1 s 30C …. 7.27 s 33 …. 2.16, 9.3, 9.12 s 34 …. 3.16, 3.17, 3.21, 4.74 s 34(1) …. 3.30

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Table of Statutes

s 35 …. 4.67 s 35(1)(a) …. 1.45 s 35(2) …. 1.47 s 35(2)(c) …. 1.49 s 35(3) …. 1.47 s 35(4) …. 1.47, 4.74 s 35(5) …. 4.74 s 39 …. 10.11 s 64 …. 4.2 s 64A …. 1.48, 4.68 s 73 …. 1.29 Landlord and Tenant (Amendment) Act 1948 …. 1.18, 1.19, 7.2, 7.22 Legal Profession Act 1987 …. 3.46 Liquor Act 1912 …. 11.19 Married Women’s Property Act 1901

s 22 …. 11.4 Matrimonial Causes Act (48 Vic No 3)

Sydney City Council (Disclosure of Allegations) Act 1953 …. 11.15 Trustee Act 1915 …. 3.45 Workers’ Compensation Act 1926 …. 6.6, 10.7, 10.25 Workers’ Compensation (Amendment) Act 1964

s 3 …. 6.7 Northern Territory Crimes (Victims Assistance) Act 1989 …. 3.43 Criminal Code …. 3.43, 8.7

ss 18–20 …. 9.22 Interpretation Act 1987 …. 1.45, 3.16, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 9.24, 9.30, 9.52, 10.37, 11.30, 12.34

s 3(1) …. 2.16, 3.16 s 4 …. 2.16, 3.16 s 18 …. 6.12 s 38B …. 9.21 s 54 …. 4.2 s 55 …. 4.67 s 55(1) …. 1.45 s 55(2) …. 1.47 s 55(4) …. 4.74, 4.75 s 55(5) …. 1.48 s 55(6) …. 1.49 s 58 …. 7.25 s 62A …. 2.16 s 62B …. 3.16, 4.74 s 62C …. 4.10 s 62D …. 4.75 s 63 …. 10.11

s 6 …. 3.37 s 7 …. 3.37 Metropolitan Traffic Act 1900 …. 7.14 Moneylenders and Infants Loans Act 1941 …. 6.5

s 24 …. 6.5 Motor Accidents Compensation Act 1999

s 44 …. 3.48 s 69(1) …. 3.48 Motor Traffic Act 1909 …. 9.16 Public Health Act 1902 …. 11.8 Real Property Act 1900 …. 3.45, 5.49, 7.9 Road Maintenance (Contribution) Act 1958 …. 5.13 Sale of Goods Act 1923 …. 4.22

s 28 …. 4.22 Stamp Duties Act 1920

s 65 …. 3.45 Sch 2 …. 3.45 Statute Law (Miscellaneous Provisions) Act (No 2) 1999 …. 7.27 Stock Diseases Act 1923 …. 2.41 Strata Schemes Management Act 1996 …. 5.28 Supreme Court Act 1970



Sentencing Act 1995

s 121 …. 9.24 Queensland Acts Interpretation Act 1954 …. 1.45, 3.16, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.19, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.27, 7.34, 9.24, 9.30, 9.52, 10.37, 11.13, 11.18, 11.30, 12.34

s 2 …. 3.16

s 81 …. 11.18 xcv

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Acts Interpretation Act 1954 – cont’d

s 2(1) …. 2.16 s 6 …. 3.16 s 10 …. 4.2 s 11 …. 1.29 s 12 …. 1.29 s 12A …. 1.29 s 13 …. 5.19 s 14 …. 4.67 s 14(1) …. 1.45 s 14(2) …. 1.47 s 14(3) …. 4.75 s 14(4) …. 4.74 s 14(5) …. 1.45 s 14(6) …. 4.78 s 14(7) …. 1.49 s 14A …. 2.16, 2.27 s 14A(1) …. 2.27 s 14A(2) …. 2.27 s 14B …. 3.16, 4.74 s 14C …. 4.10 s 14D …. 4.75 s 19 …. 7.27 s 20C …. 9.24 s 22 …. 7.25 s 22C …. 7.27 s 32A …. 6.12 s 36 …. 2.27, 7.1 s 45 …. 9.22 s 46 …. 9.21 s 74 …. 1.29

Legislative Standards Act 1992 …. 5.1 State Transport Acts 1938 to 1943

s 22 …. 4.38 Statutory Instruments Act 1987

s 32 …. 10.11 s 34 …. 10.11 Statutory Instruments Act 1992

s 14 …. 2.16 s 14(1) …. 3.16 s 15 …. 3.16 Vagrants, Gaming and Other Offences Act 1931

s 7(1)(d) …. 3.13 South Australia Acts Interpretation Act 1915 …. 1.45, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 8.2, 9.24, 9.30, 9.52, 10.37, 11.13, 11.30, 12.34

s 3A …. 2.16 s 5 …. 1.29 s 6 …. 4.2 s 10A …. 10.11 s 16 …. 9.24 s 18 …. 3.53 s 19 …. 4.62, 4.67, 4.74, 4.78 s 19(1) …. 4.75 s 19(1)(a) …. 1.48 s 19(1)(b) …. 1.45 s 19(2) …. 1.49 s 19(2)(a) …. 1.47 s 19(3) …. 1.49 s 19A …. 4.75 s 20 …. 5.19 s 21 …. 4.14 s 22 …. 2.9, 2.16, 2.28 s 22(1) …. 2.28 s 22A(1) …. 2.28 s 24 …. 7.1 s 50 …. 9.22

Arbitration Act 1973 …. 5.18 City of Brisbane Town Planning Act 1964 …. 11.32 Criminal Code 1899 …. 8.7, 8.10, 8.11

s 16 …. 9.22 Criminal Law Amendment Act 1945

s 18(6) …. 9.15 Criminal Organisation Act 2009 …. 5.49 Human Rights Act 2019 …. 2.29, 5.1, 5.55, 5.56, 5.57, 5.59

s 13 …. 5.56 s 48 …. 2.29, 5.56 Justices Act 1886 …. 3.53

Companies (South Australia) Code …. 11.15 Criminal Law Consolidation Act 1935 …. 8.2 xcvi

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s 35 …. 9.21 s 47 …. 10.11

Education Act 1972 …. 3.27

Pt II …. 2.23 Pt III …. 2.23 Pt IV …. 2.23

Anti-Discrimination Act 1988 …. 5.18 Criminal Code 1924 …. 8.7, 8.9, 8.10

s 156(2) …. 8.13 s 157(1) …. 8.13

Evidence Act 1929

s 69(1)(d) …. 5.52 s 69(1)(e) …. 5.52 s 71(2) …. 5.52 Interstate Destitute Persons Relief Act 1910 …. 7.23 Licensing Act 1932

s 114 …. 4.79 Local and District Criminal Courts Act 1926 …. 10.23 Local Government Act 1934 …. 4.9 Maintenance Act 1926 …. 7.23 Real Property Act 1886 …. 7.16 Road Traffic Act 1961 …. 7.22 Royal Commissions Act 1917 …. 3.13 Subordinate Legislation Act 1978

s 10AA …. 10.11 Wills Act 1936 …. 4.74

Tasmania Acts Interpretation Act 1931 …. 1.45, 3.16, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.19, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.29, 7.34, 9.24, 9.30, 9.52, 10.37, 11.13, 11.30, 12.34

s 4 …. 2.16 s 4(1) …. 2.16, 3.16 s 6 …. 4.2, 4.67 s 6(2) …. 1.45 s 6(3) …. 1.48 s 6(4) …. 1.47 s 6(4)(b) …. 1.49 s 6(6) …. 5.19 s 6(7) …. 1.29 s 8 …. 7.25 s 8A …. 2.16 s 8B …. 3.16, 4.74 s 10A …. 1.43 s 16(1) …. 7.3 s 32 …. 9.22



Evidence Act 2001 …. 1.21 Family Violence Act 2004 …. 10.4

s 12(1) …. 10.4 Fisheries Act 1959 …. 11.15 Local Government Act 1906 …. 7.29 Racing and Gaming Commission Act 1952 …. 4.43 Sentencing Act 1997

s 99 …. 9.24 Traffic Act 1925 …. 9.20 Victims of Crime Assistance Act 1976 …. 4.18 Workers’ Compensation Act 1927 …. 10.16

Victoria Crimes Act 1958 …. 3.57 Charter of Human Rights and Responsibilities Act 2006 …. 1.19, 2.29, 5.1, 5.55, 5.56, 5.57, 5.59

s 7 …. 5.56, 5.58 s 7(2) …. 5.57 s 32 …. 5.57 s 32(1) …. 2.29, 5.56, 5.57, 5.58 Environment Protection Act 1970 …. 4.9 Fisheries Act 1928 …. 5.14 Health Act 1956 …. 4.51 Interpretation of Legislation Act 1984 …. 1.45, 3.16, 3.24, 3.25, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 5.58, 6.1, 6.2, 6.4, 6.11, 7.3, 7.27, 7.34, 9.24, 9.30, 9.52, 11.13, 11.30, 12.34

s 3 …. 7.1 s 4(1) …. 3.24 s 4(1)(a) …. 2.16, 3.16 s 7 …. 4.2 s 14(2) …. 4.55 s 15 …. 7.27 s 35 …. 2.18, 3.24, 3.25, 4.74 xcvii

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Interpretation of Legislation Act 1984 – cont’d

s 35(a) …. 2.15, 2.16, 2.18, 3.24, 3.25 s 35(b) …. 3.16, 3.25 s 36 …. 4.67, 4.75 s 36(1)(a) …. 1.45 s 36(2A) …. 1.47 s 36(2) …. 1.48 s 36(3) …. 1.49 s 36(3A) …. 4.74 s 36(3B) …. 4.78 s 36(4) …. 4.74 s 36A …. 4.75 s 45 …. 7.26 s 51 …. 9.22 s 51(1) …. 9.22

Town and Country Planning Act 1961 …. 11.29 Transport Regulation Act 1933 …. 5.14 Workers Compensation Act 1958 …. 1.14, 1.19, 1.44

Western Australia Criminal Code …. 8.7, 8.9 Electoral Distribution Act 1947.… 7.1 Equal Opportunity Act 1984 …. 9.3 Interpretation Act 1984 …. 3.16, 4.10, 4.13, 4.45, 4.49, 4.59, 4.61, 5.13, 5.15, 5.32, 6.1, 6.2, 6.4, 6.11, 7.3, 7.25, 7.34, 9.24, 9.30, 9.52, 11.13, 11.30, 12.34

s 3 …. 2.16 s 3(1) …. 2.16, 3.16 s 3(3) …. 2.51 s 5 …. 7.1 s 8 …. 4.14 s 17 …. 2.51 s 18 …. 2.16 s 19 …. 3.16, 4.74 s 28 …. 1.29 s 29 …. 4.2 s 31 …. 4.62, 4.74 s 31(2) …. 1.48 s 32 …. 4.67 s 32(1) …. 1.45 s 32(2) …. 1.47, 1.49 s 41 …. 10.11 s 50 …. 5.31 s 69 …. 9.21

Legislation Act 1984 …. 5.57 Licensing Act 1928 …. 8.4, 10.16 Local Government Act 1874 …. 3.54 Local Government Act 1946 …. 3.57 Marriage Act 1915 …. 9.18, 11.29

s 97(1) …. 9.18 Mental Health Act 1959 …. 9.39 Mines Act 1928 …. 3.44 Money Lenders Act 1958

s 23 …. 10.33 Motor Car Act 1958 … 5.14 Planning and Environment Act 1987 …. 2.63 Police Offences Act 1928 …. 7.1

s 126(2) …. 7.1 s 169 …. 2.49 Public Service Act 1946 …. 7.13 Railways Act 1928 …. 10.3, 10.12 Road Safety Act 1986

Pt 5 …. 2.18 Sentencing Act 1991

s 113D …. 9.21 s 114 …. 9.24 Stamps Act 1958 …. 4.41 Subordinate Legislation Act 1994

s 16 …. 10.11 Supreme Court (General Civil Procedure) Rules 2015 …. 10.33

Land and Income Assessment Act 1907

s 30 …. 9.56 Police Act 1892

s 84 …. 2.7 Police Act Amendment Act 1963

s 3 …. 2.7 Sentencing Act 1995

s 10 …. 9.24 s 11 …. 9.22 United Kingdom Colonial Laws Validity Act 1865

s 5 …. 7.16 xcviii

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Customs Consolidation Act 1876

s 43 …. 4.35 Factories Act 1937 …. 4.29 Finance Act 1894

s 8(4) …. 4.35 Highways Act 1835 …. 4.2 Interpretation Act 1889 …. 9.22 Law of Property Act 1925 …. 3.43 Leasehold Property Repairs Act 1938 …. 3.43 Licensing Act 1872 …. 4.2 Local Government Act 1933 …. 4.55

s 16 …. 4.38 Mental Health Act 1959 …. 4.60 Merchant Shipping Act 1894 …. 7.14 Official Secrets Act 1920 …. 2.47 Solicitors Act 1941 …. 10.4 Statute of Frauds …. 2.61 Statute of Westminster 1931 …. 7.5 Sunday Observance Act 1677 …. 4.39 Turnpike Act …. 4.2 Wills Act 1861 …. 4.60

s 3 …. 4.60 New Zealand Bill of Rights Act 1990

s 6 …. 5.59 Constitution …. 11.19 Poultry Act 1968

United States Constitution …. 10.9

International Convention on Nomenclature for the Classification of Goods in Customs Tariffs 1950 …. 3.22 Convention Relating to the Status of Refugees 1951 …. 2.36, 2.50, 3.9

Art 1 …. 2.33 Art 1(D) …. 2.50, 3.9 Art 1A(2) …. 1.23 Countervailing Code.… 1.23 General Agreement on Tariffs and Trade …. 1.23 International Covenant on Civil and Political Rights 1966 …. 3.13 Protocol Relating to the Status of Refugees 1967 …. 2.36

Art 1 …. 2.33 Treaty on Extradition between Australia and the Republic of Hungary 1995

Art 2.5(a) …. 2.38 Universal Declaration of Human Rights …. 5.24, 5.26 Vienna Convention on the Law of Treaties 1969 …. 2.33, 2.35, 2.36, 2.37, 2.39

Art 31 …. 2.31, 2.33, 2.34, 2.35, 2.36, 2.37, 2.38, 2.39, 3.1 Art 32 …. 2.33, 2.34, 2.35, 2.36, 2.37, 2.38, 2.39, 3.1

s 2 …. 4.57 Malaysia Geneva Conventions Act 1962 …. 11.25



Warsaw Convention …. 11.19 World Heritage Convention …. 2.39

xcix

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Abbreviations This book is to be read with Dennis Pearce, Interpretation Acts in Australia, Lexis Nexis Butterworths, Sydney, 2018. There are numerous cross references to that work in the text. The work is referred to simply as ‘Interpretation Acts’. The Interpretation Acts of the various Australian jurisdictions that are referred to in this book are: Commonwealth: Acts Interpretation Act 1901 Australian Capital Territory: Legislation Act 2001 New South Wales: Interpretation Act 1987 Northern Territory: Interpretation Act Queensland: Acts Interpretation Act 1954 South Australia: Acts Interpretation Act 1915 Tasmania: Acts Interpretation Act 1931 Victoria: Interpretation of Legislation Act 1984 Western Australia: Interpretation Act 1984. Where provisions of Interpretation Acts are referred to collectively, the jurisdiction only is nominated, in abbreviated form, and the relevant section number. ‘Annexure’ refers to the ‘Annexure: Supplementary Cases and Articles’ to this book.

ci

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CHAPTER 1

Introduction BACKGROUND

Interpretation 1.1  Lord Mansfield said in 1773: ‘Most of the disputes in the world arise

from words.’ This has become even more true as we have moved into what is often called the age of statutes. Judges, lawyers, decision-makers and persons who find themselves having to deal with the law are obliged to read and place meaning on legislation. This is never an easy task as it requires an understanding of what someone else has written. In Liversidge v Anderson [1942] AC 206 at 245 Lord Atkin famously quoted the following excerpt from Lewis Carroll’s Alice Through the Looking Glass: ‘When I use a word’, Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is’, said Alice, ‘whether you can make words mean so many different things.’ ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all.’

However, the interpreters of legislation cannot be their own master. They have to determine what it is that the maker of the legislation intended it to mean. The achievement of this has over the years led to the development by courts of various approaches to arriving at this meaning. These approaches and their method of application are given the generic title ‘statutory interpretation’. This book aims to provide guidance to the interpretation of legislation as determined by courts in Australia. Legislation Defined 1.2  Although the title of this book refers to the interpretation of statutes, its

scope is broader. It is concerned not just with the interpretation of statutes, but with the interpretation of legislation. The act of legislating may conveniently be defined as the creation and promulgation of a general rule of conduct without reference to particular

1

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cases.1 In Australia, legislation takes several forms. The primary legislative instrument, and that which gives authority for the making of any other legislative instrument, is the Act of Parliament. It is introduced into parliament first as a bill for an Act. When this bill, either in its original or amended form, has received the approval of both houses of the parliament and has been assented to by the Governor-General, the Governor or the Administrator as the Queen’s representative2 it becomes an Act. However, as Wilcox J explained in Central Queensland Land Council Aboriginal Corporation v  Attorney-General (Cth) [2002] FCA 58; (2002) 116 FCR 390; 188 ALR 200 at [89], it is only when an Act commences operation that it can be considered to exist for any purpose affecting the legal position of parties. This is so even when the date of future commencement is known, as when an Act has been proclaimed to commence on a particular day that has not yet arrived.3 An Act may authorise the making of other forms of legislation by officeholders or other bodies. This type of legislation, which is known collectively as delegated or subordinate legislation, may appear under various titles — regulations, rules, by-laws, statutory instruments and so on.4 Delegated legislation is not an inferior form of legislation — it carries out its maker’s commands as effectively as does an Act of Parliament. Other documents issued by various authorities may also affect members of the public. A  governor may issue a proclamation, a minister an order, a departmental officer a rule or an instrument of delegation. These are all commands of various kinds that will have to be complied with. While they may be regarded strictly as executive orders rather than legislation, it is difficult to draw a line between the two. The courts will, in any case, endeavour to ascertain the meaning of a document, whether it is legislative or executive in origin, by adopting broadly the same approach. In Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365 at [87] Goldberg J made a comment in relation to a particular form of executive document that may be considered applicable to executive documents generally. He said: … an instrument of delegation is not legislation but, in principle, the manner in which it is construed is guided by the authorities regarding statutes. There is no reason to construe an instrument of delegation more strictly. 1. Compare Report of Committee on Ministers’ Powers (UK) Cmd 4060, pp 15–20; Administrative Review Council, Rule Making by Commonwealth Agencies, Report No 35, AGPS, Canberra, 1992, Ch 3. 2. Except in Queensland and the Northern Territory where there is only one house, and in the Australian Capital Territory which lacks both an upper house and a vice-regal representative. 3. On the commencement of Acts generally, see  Dennis Pearce, Interpretation Acts in Australia, LexisNexis Butterworths, Sydney, 2018, Chapter 2. 4. For a full discussion of this form of legislation, see D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017 and note that such legislation is to be interpreted in the same manner as Acts: see particularly Chapter 30. 2

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1.3

Government-related documents that are not legislative in character but which are nevertheless intended to influence decision-making, such as sets of standards and guidelines, are commonly designated ‘soft law’. Despite the non-legislative nature of such documents, many of the interpretive principles that are discussed in this book are applied in their interpretation.5 Magnitude of the Task 1.3  Judges and lawyers in common law countries were once accustomed to

finding the law in cases decided by higher-placed courts in judicial hierarchies. Statutes tended to be of secondary significance.6 Those days are long past. Today, it is much more likely that legislation will be the starting point in the search for the law. In 1950 the Commonwealth Parliament passed 80 Acts which were published in one slim volume of 281 pages. There was a steady increase in the number and length of Commonwealth Acts for the next 50 years. In 2000, 372 Commonwealth Acts were passed and published in five volumes taking up 4,383 pages. Similar increases were experienced in the states and territories. Since 2000, legislatures have continued to pour out a steady flow of legislation that affects all our activities. In 2001 the Commonwealth gave up consecutive numbering of the pages of its annual volumes of statutes. For 2001, seven volumes of Commonwealth Acts were published and each year since then has been represented by a similar number of volumes. Against this background Gleeson CJ of the High Court of Australia observed: One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now found in Acts of Parliament rather than judge-made principles of common law (in  which I  include equity). A federal judge devotes almost the whole of his or her judicial time to the application of an Act of the federal parliament, whether it be about corporations law, or bankruptcy, or family law, or migration.7

A similar comment could be made about the work of judges of state and  territorial courts. Few modern judicial decisions completely lack legislative content. There is also a multiplicity of tribunals in the Commonwealth, the states and the territories set up under legislation and charged with the task of administering legislation. One of the common characteristics of tribunals is 5. For a discussion of the nature, origins and use of soft law in Australia see Greg Weeks, Soft Law and Public Authorities: Remedies and Reform, Hart Publishing, Oxford, 2015. 6. See, for example, the statement of the ‘mischief rule’ of interpretation in Heydon’s Case, quoted at 2.9. 7. M Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’, Victoria Law Foundation Oration, Melbourne, 31 July 2008, p 1. See also the comments of J J Spigelman AC, ‘The Poet’s Rich Resource: Issues in Statutory Interpretation’ (2001) 21 Aust Bar Rev 224. 3

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that they apply legislation and settle disputed interpretations of legislation. While those interpretations are not authoritative in the way that judicial interpretations are, they none the less direct the way in which legislation applies, at least until there is a relevant judicial interpretation. To the interpretations of courts and tribunals might be added the interpretations that government departments and agencies regularly place upon the Acts and regulations that they administer. In all these cases it is the principles of statutory interpretation formulated by the courts that are to be applied in ascertaining the meaning of the legislation. One of the difficulties flowing from this plethora of legislation is the maintenance of consistency in interpretation between the various entities upon whom that task falls. This issue is discussed later in this chapter when considering the effect of the doctrine of precedent in relation to statutory interpretation. Difficulties for Drafters and Interpreters of Legislation 1.4  The inherent uncertainties associated with the use of language make

written documents an imperfect means of communication. Successful communication in writing is contingent upon clarity of thought and of expression on the part of the writer. It also depends on the ability of the recipient to comprehend material that may be unfamiliar or complex. Frequently, communication depends upon both background knowledge and goodwill on the part of the recipient. Written communications that are addressed to a small known audience permit the author to make assumptions in relation to these matters. Documents addressed to the public at large are necessarily more problematical. Drafters of legislation face real difficulties of communication. As well as being applicable to the general public, or at least to a large group within it, legislation often deals at length with complex matters. The chance of not foreseeing every possible contingency or circumstance that might arise is therefore vastly increased. Another important difference between legislative and other documents is that a drafter cannot assume that a reader will approach legislation sympathetically. In fact, the reader will often try to place a possible meaning on legislation that suits the reader, regardless of what the drafter intended. A further constraint on drafters of legislation is that they are not expressing private thoughts, or even representing in legislative form the thoughts of another individual. Indeed, there are likely to be different opinions as to the true authorship of legislation. Depending on how one looks at it, responsibility for the content of legislation may rest with or be shared by parliament, the government, the Cabinet, the minister responsible for the introduction of the legislation, the legislative drafters, the instructing officers of the relevant department, the political party which is in government, or even pressure groups which have lobbied for the legislation. The courts have tried to overcome this 4

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1.5

conundrum by adopting the omnibus expression ‘intention of the legislature’ to subsume arguments about responsibility: see 2.3. The complexity of the subject matter, the large and potentially unsympathetic audience and the existence of several parties with an authorial role may force the legislative drafter to set out the matters with which the legislation is concerned at greater length and in greater detail than would otherwise be necessary. The drafter must attempt to foresee all the vagaries of human conduct and must try to forestall destructive arguments as to its meaning. The content of legislation may also be dictated by political influences. Often its content is a compromise adopted to win support for its approval. Such compromises are likely to be reflected in the choice of language that is not as clear cut as it could be. Sometimes the drafter may attempt to bypass these difficulties by stating the terms of the legislation in general language, perhaps deliberately using indeterminate language the meaning of which must be settled by litigation. This is sometimes called ‘fuzzy law’ but in drafter’s parlance it is referred to as ‘principled drafting’ – the principles are laid down in the primary legislation and the detail is contained in other instruments or left to judicial decision. Such an approach to drafting, while not much used in this country, has some advocates, particularly in relation to legislation concerned with commercial activities. See the commentary referred to in the Annexure. The legislative drafter also labours under another difficulty. Writers of other documents are at liberty to set their work out in the form that best suits the task of conveying their intention. However, the legislative drafter is obliged to follow a form that enables the bill as drafted to be debated in accordance with the standing orders of the parliament that is to consider it. This means that the bill must be divided into separate clauses and that, for the most part, material that is illustrative of the intended effect of the legislation is not included. While this continues to be a significant restraint on the structure and content of legislation, in recent years examples and flow charts have come to be accepted as permitted in legislation as an aid to greater understanding.8 Interpretation of Other Documents 1.5  Although the legislative drafter’s task is a complex one, the drafting skills

it requires and the interpretive techniques employed are by no means unique to the drafting and interpretation of legislation. Professional drafters of legal documents such as contracts and wills must also think and write clearly. Interpreters of those documents use similar techniques to those employed by interpreters of legislation. The starting points are essentially the same. It is assumed that the words of these documents should be interpreted according 8. As to the use of these types of aids in the interpretation process, see Chapter 4. 5

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to their plain and ordinary meaning, that words and clauses should be interpreted in the context of the rest of the document and that the interpreter must strive to make sense of the words used. The importance of context and of purpose or object in the interpretation of both legislation and legal documents such as contracts and wills has increasingly been recognised. Furthermore, collections of presumptions, based on shared understandings or values, are used in the interpretation of legislation and of contracts and wills. For example, the following common assumptions are made when an ambiguous provision is encountered: • in the interpretation of an Act, that parliament did not intend to interfere with fundamental rights; • in the interpretation of a tenant’s contractual obligations, that the obligations should be interpreted in the tenant’s favour; • in the interpretation of wills, that a will was not intended to create a partial intestacy. The similarities and differences between the tasks of interpreting legislation and other legal documents were considered in M Kirby, ‘Towards a Grand Theory of Interpretation: The Case of Statutes and Contracts’ (2003) 24 Stat LR 95. See also Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89; 206 ALR 335 at [97]–[99] per Kirby J; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; (2005) 223 ALR 560; 56 ACSR 263 at [79] per Finn J; Jacinta Dharmananda and Leon Firios, ‘Interpreting Statutes and Contracts: A Distinction Without a Difference?’ (2015) 89 ALJ 580. Duties of the Courts in Relation to Legislation 1.6  The complexity of the task of the legislative drafter in turn presents

problems for the courts in interpreting legislation. However, no matter how obscure an Act or other legislative instrument might be, it is the inescapable duty of the courts to give it some meaning: Scott v Moses (1957) 75 WN (NSW) 101 at 102. See further the cases referred to in the Annexure. This issue is discussed in greater detail at 2.43. 1.7  This duty cannot be abrogated by agreement between the parties that

involves, expressly or by implication, some assumption as to the meaning of the legislation. The constitutional function of a court as the interpreter of the written law compels it to reach its own unfettered decision: Cherwell District Council v Thames Water Board [1975] 1 WLR 448. The task is exercisable by the courts alone. See also 1.8. Of course, the legislature may declare that the meaning given to an Act by the courts is wrong. It may even proceed to set aside the interpretation with retrospective effect, but it is the courts that are empowered to pronounce on the meaning of legislation and the legislature is bound to await such a ruling and then either to accept it or pass legislation to negate it. It follows, therefore, 6

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that a ministerial announcement of an intention to secure the amendment of legislation that is before a court is not a basis on which to grant a contested application for an adjournment of the proceedings: Meggitt Overseas Ltd v  Grdovic (1998) 43 NSWLR 527 at 531 per Mason P; Attorney-General (Cth) v Foster (1999) 84 FCR 582 at 585; 161 ALR 232 at 234–5; Van Essen & Van Essen [2000] FamCA 775; (2000) 26 Fam LR 456. In Esso Australia Resources Pty Ltd v Commissioner of Taxation (No 1) [2011] FCAFC 134; (2011) 196 FCR 560 the same principle was applied to an amending bill which had been introduced by the responsible minister and read a second time, following which the second reading debate had been adjourned. These cases give effect to the dictum of Starke J in Ramsay v  Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253: ‘Courts of law … can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.’ See also Norton v Norton [2009] FamCA 359 at [30]–[32]. For a detailed discussion of this and other related principles, see D Pearce, ‘Anticipating Legislation’ (2008) 58 AIAL Forum 8. Court Not Bound by Counsel’s Argument on Interpretation 1.8  McGarvie J in Accident Towing & Advisory Committee v  Combined Motor

Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212; [1978] 3 All ER 1033 at 1037: ‘Judges are more than mere selectors between rival views — they are entitled to and do think for themselves.’ The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was referred to and adopted in the cases referred to in the Annexure. For a another statement of the principle spelt out by McGarvie J, see Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; 209 ALR 182, in which Kirby J observed, at [243]: It is not the judicial obligation to put specifically to parties … every rule of statutory construction relevant to the performance of the judicial task. Subject to considerations of procedural fairness, this Court may adopt a construction of legislation that has not been argued by the parties, and a fortiori it is not restricted to the interpretive principles argued by their representatives.

Note should be taken of the procedure followed by Cavanough J in Overend v Commissioner of Police [2014] VSC 424 whereby a memorandum was sent to the parties setting out the court’s provisional view as to the proper construction of the relevant provisions which had not been argued by the parties. The memorandum suggested that there should be a further hearing on a date to be fixed to enable the parties to be heard in relation to the court’s 7

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provisional view and also to enable them to make such further submissions as they chose in relation to two recent appellate decisions relevant to the matter. The procedure suggested by the court was adopted by the parties. Binding Precedent and the Interpretation of Legislation 1.9  The doctrine of binding precedent has a different significance in this

area of the law than in other areas: Carter v Bradbeer [1975] 3 All ER 158 at 161; [1975] 1 WLR 1204 at 1206 per Lord Diplock. In Brennan v Comcare (1994) 50 FCR 555 at 572–3; 122 ALR 615 at 634 Gummow J observed: The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments. The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.

The distinction is usefully expressed in the following passage from Judge Posner’s work The Problems of Jurisprudence (Harvard University Press, Cambridge, MA, 1990), p 248: Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways. We are not afraid that we would lose the meaning of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept. Statutory law differs in that the statutory context — the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision-making — is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute — that is, interpret the statute. (There is a sense in which common law judges ‘interpret’ common law, but it is the sense in which ‘interpretation’ means ‘understanding’.)

This passage was quoted with approval in Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289 at [11]. See also Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; (1968) 117 CLR 390 at 408–9 per Windeyer J. 1.10  The result flowing from this difference is that if a court is seeking

the meaning of a particular piece of legislation, it cannot be bound by the interpretation placed on like words in other legislation by another court. Since the latter court was only saying what the words before it meant, its decision cannot be conclusive as to the meaning of another similar provision. Other decisions may be of assistance, but they cannot remove from a court 8

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the obligation to seek the meaning of an Act under consideration for itself. The Privy Council discussed this issue in Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121; (1969) 118 CLR 32. Lord Upjohn, delivering the advice of the Judicial Committee, said (at 127; 126; 39): It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.

Their Lordships’ statement was cited with approval in the cases referred to in the Annexure. The Judicial Committee’s view is especially applicable if the provision that has been judicially interpreted was contained in a different statute. In McNamara (McGrath) v Consumer Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646; 221 ALR 285 at [40] McHugh, Gummow and Heydon JJ commented that: It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions.

See  also Walker Corp Pty Ltd v  Sydney Harbour Foreshore Authority [2008] HCA  5; (2008) 233 CLR  259; 242 ALR 383 at [31] where Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ endorsed a comment of McHugh J in Marshall v  Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603; 180 ALR 351 at [62] that judicial decisions on the interpretation of similar or even identical legislation in other jurisdictions should not be followed slavishly and must give way to interpretations based on the purpose of the legislation interpreted. However, in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [289] the New South Wales Court of Appeal referred to the comment of McHugh J in Marshall and suggested that if within a short period two Australian legislatures had adopted similar or identical language in pursuit of a common statutory purpose ‘the coherent development of the law within Australia would not be promoted by the courts of one jurisdiction adopting a different construction to those of another’. See also 1.12. 1.11  The precedent value of earlier decisions relating to particular legislation

is also affected by the fact that two steps are involved in statutory interpretation decisions — first, a meaning must be given to the legislation; second, the legislation must be applied to the facts before the court. It is possible to take the view that an earlier decision is only binding if the particular provision has to be applied again to like facts as were before the court in the earlier decision. This issue resulted in Denning LJ in Paisner v Goodrich [1955] 2 QB 353 at 358 drawing an admittedly fine distinction between the decision of a court as to 9

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the meaning of certain words in an Act and the words that the judges used in giving the decision. The decision itself was binding if the same material facts came before the court, but the words used by the judges were not. Four years later Lord Denning reasserted this approach in a dissenting judgment in the House of Lords in London Transport Executive v Betts [1959] AC 213; [1958] 2 All ER 636. That case concerned the question whether a depot in which vehicles might be reconditioned was used for their ‘maintenance’. A previous decision of the House had treated a paint shop as used for the ‘maintenance’ of vehicles within the meaning of the relevant legislation, and in Betts’ case the majority held that this previous decision meant that the depot should be similarly treated. In the course of his dissenting judgment, Lord Denning said (at 246–7; 654–5): That is, to my mind, a decision on the particular facts of the paint shop and nothing else. The decision may be binding on your Lordships if there is another such paint shop anywhere, but it is not, in my opinion, binding for anything else. If your Lordships were to elevate that particular precedent into a binding decision on the meaning of ‘maintenance’ you would, I believe, carry the doctrine of precedent farther than it has ever been carried before.

See  also Wright v  Walford [1955] 1 QB 363 at 374–5 per Lord Evershed MR. Compare Lord Reid in Goodrich v Paisner [1957] AC 65 at 88; [1956] 2 All ER 176 at 185. Persuasive Authority of Decisions Interpreting Legislation 1.12  The preceding paragraphs were concerned with the binding effect

of prior decisions of the courts. It hardly needs to be stated that previous decisions concerning the same legislative provision or a similar one may have strong persuasive authority on the interpretation to be placed on a provision. The courts have frequently reiterated that earlier decisions should be followed unless it is apparent that the previous decision is clearly wrong. French J in Nezovic v  Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190; 203 ALR 33 at [52] described the position: … Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not lightly to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

This view has been restated many times: see the cases cited in the Annexure for some examples. However, as the statement of French J acknowledged, there may be instances where a court does not feel that it can follow a previous interpretation. 10

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In Telstra Corp Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595 the Full Court of the Federal Court considered the circumstances in which the court might be prepared to depart from one of its own previous decisions on a matter concerning the interpretation of a statute. Branson and Finkelstein JJ said (at [28]): The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest that it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see  Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive  treatment less favourable than that received by others under the same statute and additional cost and expense. In this case, the number of individuals who will be relevantly affected by the construction of the statute may be assumed to be, by reason of the passage of time, relatively small.

This passage has been relied on by the Full Court of the Federal Court on numerous occasions. For example, see Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 at [25]–[41] per Heerey J and at [56]–[61] per Allsop J; Algama v  Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253; 194 ALR 37 at [54]–[55] per Whitlam and Katz JJ. In Jones v Daniel [2004] FCA 1500; (2004) 141 FCR 148; 212 ALR 588 at [15], Moore J assembled 11 authorities, including Gorton’s and Algama’s cases, in support of the proposition that: ‘There is a comparatively settled approach in this court that on questions of statutory construction, a Full Court should follow a construction adopted by an earlier Full Court unless it considers the earlier construction to be clearly wrong.’ For further examples see the cases referred to in the Annexure. 1.13  The approach set out by the Federal Court is that which has been

adopted in other intermediate appellate courts. In Chubb Insurance Company of Australia Ltd v  Moore [2013] NSWCA 212; (2013) 302 ALR 101 at [98], Emmett JA and Ball J explained when departure from an earlier interpretation by another appellate court of coordinate jurisdiction was permissible: In general, where a question concerns the meaning of unclear statutory language, and the view expressed in an earlier decision is well and truly open, a mere preference for a different view will not justify overruling the earlier decision. The later court must have a strong conviction as to the incorrectness of the earlier decision before it overrules an earlier decision (see Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100). Before an 11

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intermediate appellate court will depart from, or overrule, an earlier decision of that court, it must have a strong conviction that the earlier decision was erroneous and the nature of the error of the earlier court must be one that can be demonstrated with a degree of clarity by the application of correct legal analysis (see  Gett v  Tabet  (2009) 254 ALR 504; [2009] NSWCA 76 at [294] and [295]).

Although at [88]–[104] Emmett JA and Ball J preferred an alternative interpretation of the New South Wales legislation in question to that applied by a previous Court of Appeal, they were unable to conclude that the previous Court of Appeal’s interpretation was plainly wrong. Bathurst CJ, Beazley P and MacFarlan JA agreed with the judgment of Emmett JA and Ball J. The Victorian Court of Appeal has taken a similar approach. In Commissioner of State Revenue (Vic) v Challenger Listed Investments Ltd [2011] VSCA 272; (2011) 34 VR 617 at [21]–[25] Sifris AJA, like Emmett JA and Ball J in Chubb Insurance, adopted the test set out by the New South Wales  Court of Appeal in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]–[295] and posed the question whether the decision and reasoning in a previous case decided by the court was ‘plainly wrong’, concluding at [27]–[31] that it was not. Buchanan and Tate JJA agreed. The test articulated by the New South Wales Court of Appeal in Gett v Tabet was also referred to by the Victorian Court of Appeal in Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81; 296 ALR 156 at [115]–[116]. It added at [128]: In our opinion, an intermediate appellate court such as our own, faced with conflicting decisions of other intermediate appellate courts, is not bound to follow any one of its decisions. The position might be different if, post Farah [Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89], an intermediate appellate court had said that an earlier decision of that court, or of another intermediate appellate court, was plainly wrong. In such circumstances, this court might be bound to follow the later decision unless we took the view that the later decision was ‘plainly wrong’. Failing that, this court is at liberty to state the law as it thinks appropriate.

As to the Victorian Court of Appeal’s reference to Farah Constructions Pty Ltd v Say-Dee Pty Ltd, see 1.18. See also Director of Consumer Affairs Victoria v Scully [2013] VSCA 292; (2013) 303 ALR 168 at [13]–[19] per Santamaria JA. This approach was also applied by the Full Court of the Family Court in Hoult & Hoult [2013] FamCAFC 109; (2013) 276 FLR 412 per Thackray J at [167] and by the Queensland Court of Appeal in Sweeney v  Volunteer Marine Rescue Inc [2000] QCA 455. See  also 1.16–1.17 relating to state courts’ interpretation of Commonwealth legislation and 1.18–1.22 relating to the interpretation of uniform legislation. 12

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Factors Influencing Adherence to Previous Interpretations 1.14  There is a strong influence constraining a court to adhere to a previously

stated interpretation of an Act. Unlike the common law, which is largely left to the courts to develop with only occasional forays by the legislature, legislation emanates from the parliament and can be altered somewhat more easily than the common law. Accordingly, if a legislature has chosen not to make any change in an Act following upon its interpretation by the judiciary, that may be regarded as strong ground for thinking that the legislature is satisfied with the court’s ruling: see the discussion in 3.51–3.59. This argument applies with particular force if the choice is between an established interpretation that is consistent with individual liberty, and a new interpretation that is not. In Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; 70 ALR 225 the High Court decided, by a majority, that s 19(1) of the Defence (Visiting Forces) Act 1963 (Cth) applied only to persons who deserted from a visiting military force while in Australia. It could not apply to the defendant who was alleged to have deserted before coming to Australia. In reaching that conclusion, the court followed a Victorian Supreme Court decision: R v Peterson; Ex parte Hartmann [1969] VR 411. Deane J, who was one of the Justices in the majority in Re Bolton; Ex parte Beane, said (at 531; 238): In a case such as the present … where neither dictates of general principle nor considerations of general policy, individual justice or practical inconvenience (cf Johnsons Tyne Foundry Pty Ltd v Maffra Corporation [1948] HCA 46; (1948) 77 CLR 544 per Dixon J at 565; Brownsea Haven Properties Ltd v Poole Corporation [1958] Ch  574 per Lord Evershed MR at 603–5) militate in favour of the overruling of a long-established and arguably correct decision upholding the liberty of the individual on a question of the construction of the words of a statutory provision, the considerations of practical justice and judicial responsibility which underlie the doctrine of stare decisis are likely to all but compel acceptance of the earlier decision as having settled the narrow question of the construction of those particular words in their particular statutory context.

However, if the High Court is not satisfied that the existing interpretation is correct it is not constrained to follow it. In Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1; 71 ALR 225 the High Court, by a majority, overruled a 34-year-old Victorian decision interpreting a provision in the Workers Compensation Act 1958 (Vic) on the basis that the provision was unambiguous and that the earlier interpretation was plainly erroneous. Mason J said (at 13–14; 232): The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute … It is no part of a court’s function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention … The  fact 13

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that Parliament can, if it so chooses, displace an erroneous interpretation does not provide a justification for the court’s refusal to give effect to the law as declared by Parliament.

Compare the contrary view of Brennan and Deane JJ at 32–3; 247. For a reiteration of Mason J’s approach see John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 at 439–40; 83 ALR 606 at 621; McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646; 221 ALR 285 at [42]. 1.15  This approach of the High Court, particularly in the last sentence

quoted from Babaniaris, might be thought to reflect an activist approach to the court’s relationship with the legislature. This should be contrasted with statements by Lord Diplock in Geelong Harbour Trust Commissioners v  Gibbs Bright & Co (1974) 129 CLR 576 at 582–5; 2 ALR 362 at 368–70. In Lord Diplock’s words, when considering departing from an existing interpretation the court should be influenced by ‘the underlying political philosophy of the particular nation as to the appropriate limits of the lawmaking function of a non-elected judiciary’. Lord Diplock’s view was that, if a decision as to the meaning of an Act has stood for a long time and the legislature, being an active law-making body, has chosen not to alter that legislation, a court should be slow to take action that, in effect, amends the legislation. For an example of a case that illustrates this approach see Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382 at 393–4 per Debelle J with whom King CJ and Cox J agreed. See also Thompson v Byrne [1999] HCA 16; (1999) 196 CLR 14; 161 ALR 632 at [53]–[55] per McHugh J. Persuasive Authority of Decisions Interpreting Commonwealth Legislation

1.16  Legislation enacted by the Commonwealth Parliament often comes

before state and territorial courts for interpretation. In R v  Daher [1981] 2 NSWLR 669 at 672; (1981) 40 ALR 70 at 73, Street CJ, speaking for the New South Wales Court of Criminal Appeal, expressed his agreement with the decision of the Full Court of the Victorian Supreme Court in R v Tawill [1974] VR 84 and continued: … it is a decision of the ultimate appellate court of Victoria upon a question of construction of a Commonwealth statute, and there are strongly persuasive reasons in favour of recognising that decision as resolving the point at issue at all levels in Australia below the Full High Court.

In Australian Securities Commission v  Marlborough Gold Mines Ltd  [1993] HCA 15; (1993) 177 CLR 485; 112 ALR 627 at 492; 629 Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that, in considering a federal law or a uniform national law: … an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation 14

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by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

This approach has been followed by other courts and in other jurisdictions: see the cases referred to in the Annexure. Occasional conflicting decisions of state and territorial courts on the interpretation of Commonwealth legislation are inevitable, as the New South Wales Court of Criminal Appeal acknowledged in R v Hookham (1993) 31 NSWLR 381 at 391 per Priestley JA. In Vanit v R [1997] HCA 51; (1997) 190 CLR 378; 149 ALR 1 the High Court dismissed an appeal against a decision of the Court of Criminal Appeal of the Northern Territory in which the court had adopted an interpretation of s  16G of the Crimes Act 1914 (Cth) that was inconsistent with the interpretation adopted in several New South Wales decisions. Kirby J commented at 398; 15: ‘The court reached its conclusion with proper attention to the desirability of adopting a uniform interpretation of federal legislation such as the Act.’ If a court is persuaded that the decision of another jurisdiction is clearly wrong, it is not obliged to follow it. See further Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312; 153 ALR 439 per Cole JA at 314; 441 and per Stein JA at 323;  449, with Sheppard AJA dissenting at 333; 459; Joyce v Grimshaw [2001] FCA 52; (2001) 105 FCR 232; 182 ALR 602 at [45]–[48], [79]. 1.17  Some decisions of intermediate appellate courts in cases involving sentencing under federal legislation have also raised issues of precedent. In  Bahar v  R [2011] WASCA 249; (2011) 45 WAR 100; 255 FLR 80 in the Western Australian Court of Appeal McClure P, with whom Martin CJ and Mazza  J agreed, disagreed with the approaches that had been taken to sentencing pursuant to federal legislation in three Northern Territory Supreme Court decisions. The reasoning in Bahar v R was followed by the Queensland Court of Appeal in R v  Karabi [2012] QCA 47; (2012) 220 A Crim R 338. In  that case Muir JA said, at [35], that the court was obliged to follow the decision of another intermediate appellate court unless persuaded that it was plainly wrong, adding that in her opinion the statements of principle relied on in Bahar were correct.

Bahar has been followed in several cases, including Karim v  R [2013] NSWCCA 23; (2013) 83 NSWLR 268; 274 FLR 388, in which Allsop P observed at [44]: ‘In my view, no argument was put that undermined or threw into sufficient doubt the reasoning of McClure P on what is, essentially, a question of statutory construction.’ See  also Australian Crime Commission v  Marrapodi [2012] WASCA 103; (2012) 42 WAR 351; Director of Public Prosecutions (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134; Bin Radimin v R [2013] NSWCCA 220; (2013) 235 A Crim R 244. As is illustrated by the decision of the Western Australian Court of Appeal in Bahar v R, appellate courts sometimes refuse to follow decisions of single judges involving the interpretation of federal legislation. Some single judges 15

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are also less reluctant to depart from a persuasive decision when it is that of another single judge. In Hamilton Island Enterprises Pty Ltd v  Commissioner of Taxation [1982] 1 NSWLR 113 at 119 Rogers J suggested that, in the interests of uniformity in the interpretation of Commonwealth legislation, a decision of another judge of coordinate authority should be followed unless it was ‘clearly wrong’. See  also Mustac v  Medical Board of Western Australia [2007] WASCA 128 at [38] per Martin CJ, with whom Wheeler and Buss JJA agreed. However, Hunt J in Commercial Banking Co of Sydney Ltd v Federal Commissioner of Taxation (1983) 14 ATR 142 at 152; 70 FLR 433 at 443 disagreed with this view, commenting that: It is not always the case that single judges feel obliged to follow decisions even of other judges within the one Supreme Court unless considered to be clearly wrong; and I see no distinction in relation to the decisions of judges of other Supreme Courts merely because all may be exercising Federal jurisdiction.

See Walker v Midlink Nominees Pty Ltd [2000] WASC 112; (2000) 22 WAR 318 at [23] per Owen J for a like view. In contrast, Kearney J in Re Rothercroft Pty Ltd and Companies (NSW) Code 1981 (1986) 4 NSWLR 673 at 679; 76 ALR 345 at 351 endorsed the approach of Rogers J in the Hamilton Island case, above, where the Full Court of the Supreme Court of another state had dealt with the issue of interpretation in question; likewise Robson J in Re Amerind Pty Ltd [2017] VSC 127; (2017) 320 FLR 118; 121 ACSR 206 at [292]–[293] in regard to a decision of a single judge stressing the significance of judicial comity. See also Re PanBio Pty Ltd [2000] QSC 366; (2000) 35 ACSR 458 at [12] where Byrne J quoted Hayne J in Re Brashs Pty Ltd (1994) 15 ACSR 477 at 483: ‘… sitting alone, I should be very slow indeed to depart from the decision of a single judge in relation to the Corporations Law …’. It can be seen that the position is far from settled. However, the advantage of coherent and consistent interpretation of Commonwealth legislation throughout the country should weigh heavily in favour of following previous decisions unless a court simply cannot bring itself to do so. Fine points of interpretation should not override the societal advantages. Persuasive Authority of Previous Interpretations of Uniform Legislation Uniform interpretation favoured 1.18  The federal system in Australia has given rise to a strong desire on the

part of the courts for uniform legislation to be interpreted uniformly in the various jurisdictions: Edward Brewer Homes Pty Ltd v  Home Builders Australia Pty Ltd [2010] WASC 257 at [13]. Camden Park Estate Pty Ltd v O’Toole [1969] 1 NSWR 784; (1969) 72 SR (NSW) 188 is an early example. There the New South Wales Court of Appeal had to interpret the Landlord and Tenant (Amendment) Act 1948 (NSW), which stemmed from the National Security 16

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(Landlord and Tenant) Regulations (Cth). The court held that for the sake of comity it should follow two Victorian decisions that were supported by obiter dicta of the High Court in preference to an earlier New South Wales decision. The court said (at 785; 190): ‘It is highly desirable that there be conformity of decision between States where legislative provisions are identical.’ In Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; 112 ALR 627 the High Court commented on the failure of a state court to follow a decision of the Full Court of the Federal Court on the Corporations Law, the first of the so-called National Scheme Laws. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said (at 492; 629): It is somewhat surprising that the Full Court of the Supreme Court of Western Australia, and more particularly that Mr Commissioner Ng, declined to follow what was said by the Full Court of the Federal Court in Windsor [Windsor v National Mutual Life Association of Australasia Ltd (1992) 106 ALR 282]. Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the [Corporations] Law is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

These principles have been routinely applied. For examples see the cases referred to in the Annexure. The High Court affirmed the guiding principle it had laid down in Marlborough Gold Mines in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; 232 ALR 209 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ who added that the same principle applied in relation to non-statutory law (as to which, see the comments of Gummow, Heydon and Crennan JJ in CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390; 260 ALR 606 at [51]). However, note the qualification expressed in S Kidman & Co v Lowndes CM [2016] NTCA 5; (2016) 314 FLR 358 at [42]: … [I]t is one thing to say that analogue legislation should be construed consistently in operation, but quite another to say in the absence of any authority establishing an accepted or uniform construction for a particular provision that a word appearing in the provision — in this case ‘inquiry’ — should take its meaning from legislation which does not form part of the uniform scheme — in this case the coroners legislation in other jurisdictions.

Position where law applicable in some jurisdictions only 1.19  There is a question whether the Marlborough Gold Mines principle applies

to the interpretation of uniform legislation that has been enacted only in some states or territories. In Tillman v  Attorney-General for New South Wales  [2007] NSWCA 327; (2007) 70 NSWLR 448, Giles and Ipp JJA purported to apply 17

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the principle to legislation that was uniform in New South Wales and Victoria only. They concluded at [110] that, as they had not been persuaded that in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 the Victorian Court of Appeal’s interpretation of certain words in the equivalent Victorian Act was ‘plainly wrong’, they should adopt that interpretation of those same words in the New South Wales  Act under consideration. At  [46]–[50] Mason P disputed this, declaring that such an application of the Marlborough Gold Mines principle was neither obligated nor desirable. The conclusion in Tillman’s case was followed in Cornwall v Attorney-General for New South Wales [2007] NSWCA 374. The following year, in RJE v  Secretary to the Department of Justice [2008] VSCA  265; (2008) 21 VR 526, a Victorian Court of Appeal constituted differently from that in TSL drew strength from the approach taken in the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Walker Corp Pty Ltd v  Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259; 242 ALR 383. As is noted at 1.10, in that case the High Court Justices applied a comment of McHugh J in Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603; 180 ALR 351 at [62] cautioning against treating decisions on the interpretation of similar or even identical legislation in other jurisdictions as binding. In RJE at [36]–[48] Maxwell P and Weinberg JA concluded that on ordinary principles of interpretation TSL was ‘clearly wrong’. Notwithstanding that it had been followed by the New South Wales Court of Appeal on two occasions, they declined to follow the court’s previous decision. On the other hand, Nettle JA, the third judge in RJE, concluded at [104] that in the circumstances and ‘without a compelling reason to do so’ the interpretation arrived at in TSL should not be departed from (although he reached the same conclusion on the outcome of the case as the other judges by relying on the Charter of Human Rights and Responsibility Act  2006 (Vic)). Maxwell P and Weinberg JA also added, at [53]: ‘Given that the majority judgment in Tillman [above] was itself based on the decision in TSL, and was contrary to the expressed preference of all three judges in that case, we likewise decline to follow Tillman.’ Perhaps unsurprisingly, in R v Cain [2010] QCA 373 the Queensland Court of Appeal suggested that the question of the application of the Marlborough Gold Mines principle to the interpretation of uniform legislation enacted by only some states and territories ‘may not have been finally resolved’ at [21] per Fraser  JA. However, in the following year the approach that had been taken by Giles and Ipp JJA in Tillman was applied by the Tasmanian Court of Criminal Appeal to similarly worded provisions of the Tasmanian and Western Australian criminal codes, the Western Australian provision having been interpreted and applied by that state’s Court of Criminal Appeal: see  Director of Public Prosecutions v  Chatters [2011] TASCCA 8; (2011) 218 A Crim R 156 at  [42]–[47]. See  also Thornton v  Newcrest Mining Ltd [2011] 18

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WASCA  92 at [15]–[16] in which the Western Australian Court of Appeal applied the Marlborough Gold Mines principle to uniform legislation that had been enacted by four states and territories. An appeal to the High Court was dismissed: Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 87 ALJR 198; 295 ALR 493. Conflicting prior decisions 1.20 At 1.13 it was noted that in Director of Public Prosecutions v Patrick Stevedores

Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81; 296 ALR 156 at [128] the Victorian Court of Appeal concluded that an intermediate appellate court, faced with conflicting decisions of courts of coordinate jurisdiction, was not bound to follow either of those decisions. The court added that this freedom might be denied if, after the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; 232 ALR 209 (see 1.18), the court itself, or another intermediate appellate court, had concluded that one of those decisions was plainly wrong. Then, the court might have to follow the later decision, unless it was able to conclude that it was the later decision that was plainly wrong. In Harofam Pty Ltd v Scherman [2013] VSCA 104; (2013) 42 VR 372 at [30] the Victorian Court of Appeal concluded that it was ‘bound to follow a decision of another intermediate appellate court concerning the meaning of legislation which is in pari materia even if not altogether uniform, unless persuaded that the decision is plainly wrong’. Marlborough Gold Mines Ltd and Director of Public Prosecutions v  Patrick Stevedores Pty Ltd, above, were cited in support. See also Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at [27] per Warren CJ and Nettle JA. The issue of the application of the Marlborough Gold Mines principle to uniform but non-national legislation also arose in R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363. In this complex case involving the interpretation of ss 90 and 137 of the Evidence Act 1995 (NSW), a New South Wales Court of Criminal Appeal constituted by five judges considered the correctness of a ruling of a trial judge that had been made pursuant to those provisions. Section 137 in particular had previously been interpreted by the court in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228. However, the Victorian Court of Appeal had placed a different interpretation upon an equivalent provision in Victorian legislation in Dupas v  R [2012] VSCA 328; (2012) 40 VR 182, a unanimous decision of five judges who held, at [63], that the approach taken in R v Shamouil was ‘manifestly wrong and should not be adopted’. The trial judge in R v XY followed Dupas but on the appeal it was held that R v Shamouil correctly stated the law of New South Wales and should be followed.

1.21 In R v XY Basten JA at [23]–[39] considered how conflicts of this kind should be resolved. He noted the importance of maintaining public respect for the courts and the court system, stating at [34]:

Whilst the hierarchical structure of courts is posited upon the need for an appellate system to correct error in courts lower in the hierarchy, the 19

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categorisation of a decision of another court at the same level of the hierarchy as plainly or clearly wrong on a point of law is the antithesis of treating courts of equal status with courtesy and civility. That is true whether the earlier decision was decided by the same court or a different court, although it is more likely to appear as a gratuitous insult when applied to another court. The phrase is an awkward and inappropriate way of indicating the need for restraint on the part of an appellate court when refusing to follow an earlier decision of its own or of another intermediate appellate court.

At [37]–[39] Basten JA considered the approach of the Victorian Court of Appeal in Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd quoted at 1.13 and advanced two reasons for not following that approach. The first reason was that the Victorian Court appeared to have treated the High Court’s statement in Farah Constructions as its last word on the precedent issue despite the later endorsement by the court in Walker Corp Pty Ltd v  Sydney Harbour Foreshore Authority of an inconsistent statement of McHugh  J in Marshall v Director-General, Department of Transport, as to which, see 1.10. The second reason was that characterising judgments of colleagues in other jurisdictions as plainly wrong was not conducive to the orderly administration of justice. Basten JA concluded at [40] that in the circumstances the court should ‘determine for itself the correct approach to the statutory provision, giving proper consideration to the reasoning and conclusions of earlier authorities both in this Court and in the Victorian Court of Appeal’. He subjected R v Shamouil and Dupas v R to detailed analysis at [41]–[65], concluding that there was ‘no compelling reason to depart from the general approach adopted in Shamouil’. The other judges of the court except Price J also followed the decision in Shamouil: see Hoeben CJ at CL at [86]–[89]; Simpson J at [159], [162]–[174] and Blanch J at [207]. Price J joined with the other members of the court in dismissing the appeal but at [224]–[225] noted that, although on his analysis it had not been necessary to reach a final conclusion on the interpretation of the relevant legislation, he preferred the approach of the Victorian court in Dupas. Reference should also be made to the more recent cases Zhu v  R [2013] NSWCCA 163; (2013) 232 A Crim R 51; LP v R [2013] NSWCCA 330 and R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238. At [185]–[201] in the last case Simpson J, with whom R A Hulme J and Barr AJ agreed, revisited R v XY, observing at [189] that the judgments in that case ‘give little comfort to any seeking resolution of the conflict in the NSW authorities, represented by Shamouil, and the Victorian decision in Dupas’. Simpson J went on to explain that Basten JA had not found any reason to depart from Shamouil because he had taken the view that the differences between the general approaches in Shamouil and Dupas were ‘more apparent than real’. In Tasmania v L [2013] TASSC 47; (2013) 232 A Crim R 123 Pearce J in the Supreme Court of Tasmania considered an issue of interpretation that 20

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arose under that state’s version of the uniform evidence law, the Evidence Act 2001. At [43] Pearce J noted the conflict that the New South Wales Court of Criminal Appeal had faced in R v XY, above, and observed: Although I am faced with the apparently conflicting approaches adopted by the intermediate appellate court in New South Wales and Victoria I am bound to follow KMJ [see below] and other decisions of single judges in Tasmania who have followed that line of authority since then.

In KMJ v Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425, which had been decided before the Victorian Court of Appeal’s decision in Dupas v  R, the Tasmanian Court of Criminal Appeal had followed R v Shamouil. 1.22  The position cannot be described as other than unsettled. There is

clearly no hard and fast rule that decisions in other jurisdictions must be followed. While appreciating Basten JA’s reservations in R v  XY about the form of language, the best one can probably do is to say that decisions, at the very least of appeal courts, in other jurisdictions should be followed unless the court cannot be persuaded in all conscience that the decision is correct. The same approach should be applied to the decisions of single judges in order to avoid the inconsistency between jurisdictions which was the very point of the adoption of uniform law. For the various reasons set out above from Marlborough Gold Mines Ltd, Farah Constructions and R v XY it seems that a significant onus should lie on a litigant seeking to persuade a court not to follow decisions of coordinate courts on uniform legislation. Uniform Interpretation of Legislation Enacted to Give Effect to International Agreements 1.23  The consideration that an increasing amount of domestic legislation is enacted to give effect to Australia’s international obligations adds another dimension to the issue of uniform interpretation of like legislation. In Rocklea Spinning Mills Pty Ltd v  Anti-Dumping Authority (1995) 56 FCR 406; 129 ALR 401 the Full Court of the Federal Court had to interpret a provision of the Customs Act 1901 (Cth) contained in Pt XVB of the Act which was a portion of a scheme intended to give effect to international obligations contained in the General Agreement on Tariffs and Trade (GATT) and the Countervailing Code. In a joint judgment the court made the following comments (at 421; 415):

As the case law points out, an important consideration in examining legislation intended to implement international agreements is to give weight to the construction which the international community would attribute to the relevant instrument or concept: see Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232 at 240. In the present case the decisions of the European Court of Justice and the views of the GATT Panel should be accorded substantial weight in the light of this principle. Moreover, as a broad principle, it is obviously desirable that expressions used in international agreements should be construed, so far as possible, in a uniform and consistent manner by both 21

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municipal courts and international courts and panels to avoid a multitude of divergent approaches in the territories of the contracting parties on the same subject matter.

The approach by the court described above was endorsed and applied in Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478; (2000) 98 FCR 168; 171 ALR 483 at [133]–[134] per Katz J. That case concerned the meaning of Art 1A(2) of the Convention relating to the Status of Refugees (1951). Although Drummond J expressed general agreement (at [24]) with the reasoning of Katz J, he doubted that the House of Lords decision in Adan v Secretary of State for the Home Department [1999] 1 AC 293; [1998] 2 All ER 453 was entitled to the weight that Katz J gave to it. Spender J, the third judge of the Full Court of the Federal Court hearing the appeal in Savvin, did not expressly address this issue. Katz J also made some comments (at [135]) as to the desirability of taking account of legislation enacted by other parties to a treaty for the purpose of giving effect to it, in the interests of promoting uniformity in the operation of the treaty. See  also Mullins Wheels Pty Ltd v Minister for Customs and Consumer Affairs [1999] FCA 1232; (1999) 166 ALR 449 at [12] and the cases cited there (appeal against this decision dismissed: [2000] FCA 357; (2000) 97 FCR 284); Commonwealth v Hamilton [2000] FCA 1854; (2000) 108 FCR 378; 180 ALR 635 at [43]–[45]. In IMC Aviation Solutions Pty Ltd v  Altain Khuder LLC [2011] VSCA 248; (2011) 38 VR 303; 282 ALR 717 the Victorian Court of Appeal heard an appeal involving the interpretation of the International Arbitration Act 1974 (Cth). At [35], Warren CJ noted that both parties had made many references to international authorities and continued: ‘Insofar as the Act implements an international treaty, Australian Courts will, as far as they are able, construe the Act consistently with the international understanding of that treaty.’ At [130] Hansen JA and Kyrou AJA said: ‘Apart from promoting comity, there are obvious advantages in consistency in the interpretation of legislation that gives effect to an international convention.’ Rocklea Spinning Mills was cited as the authority for both observations. See also Schneider v Caesarstone Australia Pty Ltd [2012] VSC 126 at [11]–[12]. See also 2.30–2.32. Prospective Overruling 1.24  The uncertainty and indeed unfairness that can flow from the reversal

of an established interpretation of an Act has in the past led in Australia to some flirtation with the technique of prospective overruling. Under this approach the court does not immediately set aside an existing interpretation but announces its intention to do so. This gives the legislature an opportunity to amend the relevant legislation if this is not the outcome that it desires. However, there are problems with the idea — among others that the party that has persuaded the court of the inadequacy of the existing interpretation does not secure a benefit from so doing.

22

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The technique was recognised, although not adopted, by Mason J in the Babaniaris case, 1.14 above. It was rejected by the High Court in the constitutional case of Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 503–4; 146 ALR 355 at 371–2 per Brennan CJ, McHugh, Gummow and Kirby JJ and at 515; 381 per Dawson, Toohey and Gaudron JJ. For an extensive discussion of prospective overruling that refers to decisions in several jurisdictions and includes references to secondary sources see Lai v Chamberlains [2007] 2 NZLR 7 at 56–61 per Tipping J. See also the New Zealand cases Booth v R [2016] NZSC 127; [2017] 1 NZLR 223; Marino v  Police [2017] NZHC 1348; Chief Executive of the Department of Corrections v  Gardiner [2017] NZCA 608 where the courts rejected arguments that an interpretation of the relevant legislation should operate prospectively having regard to the fact that the decision-maker had properly applied existing authority and had acted in good faith and that the decision would expose the Crown to numerous actions for wrongful imprisonment. Relationship Between Legislative Innovation and the Common Law 1.25  Roscoe Pound, in ‘Common Law and Legislation’ (1908) 21

Harv LR 383 at 385, described four ways in which courts in a common law system might deal with a legislative innovation: Four ways may be conceived of in which courts in such a legal system as ours might deal with a legislative innovation. (1) They might receive it fully into the body of the law as affording not only a rule to be applied but a principle from which to reason, and hold it, as a later and more direct expression of the general will, of superior authority to judge-made rules on the same general subject; and so reason from it by analogy in preference to them. (2) They might receive it fully into the body of the law to be reasoned from by analogy the same as any other rule of law, regarding it, however, as of equal or co-ordinate authority in this respect with judge-made rules upon the same general subject. (3) They might refuse to receive it fully into the body of the law and give effect to it directly only; refusing to reason from it by analogy but giving it, nevertheless, a liberal interpretation to cover the whole field it was intended to cover. (4) They might not only refuse to reason from it by analogy and apply it directly only, but also give to it a strict and narrow interpretation, holding it down rigidly to those cases which it covers expressly. The fourth hypothesis represents the orthodox common law attitude toward legislative innovations. Probably the third hypothesis, however, represents more nearly the attitude toward which we are tending. The second and first hypotheses doubtless appeal to the common law lawyer as absurd. He can hardly conceive that a rule of statutory origin may be treated as a permanent part of the general body of the law. 23

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Pound’s four categories were examined in a modern Australian context by P D Finn, ‘Statutes and the Common Law’ (1992) 22 UWAL Rev 7 at 18–30. In Finn’s view (at 20) ‘all four of Pound’s categories have an appropriate place in our law, but … no one has any claim to exclusive sway’. Pound’s first category is the analogical use of statutes instead of the use of common law principles. Finn commented (at 19) that ‘while a significant contemporary issue in our law relates to Pound’s second category (the analogical use of statutes in the development of the common law) … it seems very much the case that judicial treatment of statutes in this country falls into Pound’s third and fourth categories (liberal interpretation but without analogical use, and strict and narrow interpretation)’. Finn made the general observation (at 23–4) that in Australia the analogical use of statutes by the courts in the development of common law principles depended on whether the statute (or statutory provision) was consistent with or built upon a fundamental theme of the common law. In Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [22]–[27] Gleeson CJ, Gaudron and Gummow JJ suggested that the analogical use of statutes in the development of common law principles should be limited to situations in which there was a relevant federal statute or where there was consistent relevant legislation in force in the states. It was suggested that only in those circumstances could there be a pattern of legislative policy to which the common law could be adapted. See Finn J’s criticisms of this approach in his chapter entitled ‘Statutes and the Common Law: The Continuing Story’ in S Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Sydney, 2005, pp 61–2. In Baker v R [2012] HCA 27; (2012) 245 CLR 632; 289 ALR 614 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ identified several reasons for declining counsel’s invitation to adapt the common law of evidence by reference to the uniform Evidence Act, in addition to the consideration that the legislation had not been adopted in three states. See the discussion at [115]–[119]. However, compare Lord Diplock in Warnink v J Townshend & Sons (Hull) Pty Ltd [1979] AC 731 at 743: Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed on a parallel rather than a diverging course.

See  also the comments of Edelman J in the course of considering an argument invoking ‘the equity of the statute’ in Burragubba v Queensland [2015] FCA 1163; (2015) 236 FCR 160 at [15]–[22]. That approach to interpretation has been raised from time to time but rejected since the middle of the 19th century: see  the discussion in Nelson v  Nelson [1995] HCA 25; (1995) 184 CLR 538 at 552–4 per Deane and Gummow JJ. The issue is dissected with his usual incisive skill by Sir Anthony Mason in ‘The  Interaction of Statute and Common Law’ (2016) 90 ALJ  324. 24

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He  emphasises the role of coherence as a relevant consideration in statutory interpretation where it is necessary to choose between competing interpretations. For some of the many commentaries on this topic see the Annexure. Duty of Executive to Follow Court’s Interpretation of Legislation 1.26 In Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; (2007) 158 FCR 325; 239 ALR 85 the Full Court of the Federal Court expressed disapproval of the possibility that the Commissioner had been administering a revenue statute in a manner contrary to a Federal Court decision. At [3]–[4] Allsop J said:

If [the Commissioner] has the view that the courts have misunderstood the meaning of a statute, steps can be taken to vindicate the perceived correct interpretation on appeal or by prompt institution of other proceedings; or the executive can seek to move the legislative branch of government to change the statute. What should not occur is a course of conduct whereby it appears that the courts and their central function under Ch III of the Constitution are being ignored by the executive in the carrying out of its function under Ch II of the Constitution, in particular its function under s 61 of the Constitution of the execution and maintenance of the laws of the Commonwealth … It is the function of the courts exercising federal jurisdiction to declare the meaning of statutes of the Commonwealth Parliament in the resolution or quelling of controversies.

Allsop J quoted Marshall CJ in Marbury v Madison (1803) 5 US 87 at 111 and several Australian authorities in support of the general principle underlying this statement. For general discussion of the principles involved here see the commentaries in the Annexure. PRELIMINARY MAT TERS 1.27  Before considering the approaches adopted by the courts in relation

to the interpretation of legislation, it is desirable to set out some preliminary matters.9 Classification of Acts Classification of Acts by scope 1.28  Acts may be classified in two different ways: by scope and by object.

The first division may be further subdivided by reference, first, to the persons

9. It is not proposed to deal with some of the more basic issues such as numbering and citation of Acts, finding legislation, etc. This is sufficiently dealt with in R Creyke, D Hamer, P O’Mara, B Smith and T Taylor, Laying Down the Law, 10th ed, LexisNexis Butterworths, Sydney, 2017, Part 3. 25

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to whom the Act is to apply and, second, to the area within which the Act is to operate. Thus Acts may be classified as: • public or private; and • general, local or personal. 1.29  Public or private  This classification is largely of historical interest.

Public Acts are generally worded and applicable to the public at large. They may not affect each and every citizen all the time but they will apply to any persons who conduct themselves in such a way as to come within their fields of operation. It is unusual for a public Act to refer specifically to any individual person or body corporate. The Interpretation Acts of all the states, except New South Wales  and Victoria, contain a provision stating that the Acts passed in that state are to be taken to be public Acts unless the contrary is shown.10 The Commonwealth, Australian Capital Territory and Northern Territory Acts do not recognise a distinction between public and private Acts. A private Act of Parliament is one that is concerned only with a club, a company, an organisation and so on. Its scope does not extend to the public at large, although particular members of the public may be affected in some way by the Act. For example, the control of church property may be governed by a private Act establishing a trust and directing the trustees how to manage the property. Members of the particular church are affected in one aspect of their lives by such an Act. However, its scope is limited and it does not deal with a topic in which all members of the public have an interest. Sometimes private Acts dealt with an estate or a trust, or with utilities such as cattle sale yards, railways or gasworks. In New South Wales, although there are more than 500 private Acts in force, all but a handful were enacted during the 19th century. Perhaps the most important distinctions between public and private Acts concern the principles of interpretation that are applied to them. Section 73 of the Interpretation Act 1987 (NSW) and s 12 of the Acts Interpretation Act  1954 (Qld) provide that private Acts shall not be construed so as to prejudicially affect the pre-existing rights of, or to impose liabilities on, any person other than a person at whose instance or for whose special benefit the Act was passed. Sections  74 and 12A of those Acts provide that the amendment of a private Act by a public Act does not make it a public Act. Although these provisions are not to be found in the Interpretation Acts of the other states, similar principles apply at common law: Altrincham Union v Cheshire Lines Committee (1885) 15 QBD 597 at 603; Great Northern, Piccadilly and Brompton Railway Co v Attorney-General [1909] AC 1 at 6; R v London County Council [1893] 2 QB 454. At an earlier time, an important difference between public and private Acts was that the courts took judicial notice of the former

10. Qld s 11; SA s 5; Tas s 6(7); WA s 28. 26

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but not, in the absence of some special provision, of the latter. This difference has been removed by s 143(3) of the Evidence Act 1995 (Cth). Another difference between public and private Acts is that different procedures are required for their passage under parliamentary standing orders. 1.30  General, local or personal  This classification is also primarily of historical interest. A general Act is one that applies to all members of the public and to all places within the jurisdiction of the legislature. A local Act is one that is applicable to all persons within a particular locality, for example, an Act dealing with a particular local government authority. A personal Act is one that is applicable to a particular individual. A general Act will always be a public Act. A local Act may be either a public or a private Act. A personal Act will usually be a private Act.

Classification of Acts by object 1.31  The classification of Acts by their object is of some importance as

the courts have adopted slightly different approaches to the interpretation of some types of Acts. Not all the categories of Acts here set out are recognised by the  legislature. Special parliamentary procedures are adopted, either formally or informally, in relation to the passage of consolidating and statute law revision Acts and some fiscal Acts, but in the main the division is judicially inspired. 1.32  Consolidating Acts  These are Acts which gather together and combine in one Act all other Acts in force relating to a particular topic. Since the earlier Acts are superseded, they may then be repealed, thereby reducing the size of the statute book and making it unnecessary for a person to search through many different Acts for the legislative pronouncements on the subject. A consolidating Act is passed by the legislature in the same way as any other Act, but being a mere restatement of the existing law, it will normally have its passage expedited, with debate limited to the desirability or otherwise of the particular law being subjected to consolidation. However, it is possible for changes in the previous law to be made in a consolidating Act and it must therefore not be too readily assumed that the Act is only a convenient restatement of the previous position: see further Chapter 7. 1.33  Reprinted or incorporated Acts  In Australia, consolidation as a means of presenting legislation in a more usable form has been largely superseded by the process of reprinting Acts. Amending Acts in all Australian jurisdictions are drafted in what is termed the textual style as distinct from the referential style: see 1.50. This enables the amendments to be ‘slotted in’ to the principal or original Act to produce a readable text. All jurisdictions have empowered appropriate bodies to produce versions of principal Acts incorporating all amending Acts. Unlike consolidating Acts, these reprinted or incorporated Acts are not passed by the parliament but are the work of a government officer acting with a view to achieving the same effect as a consolidating Act. 27

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However, one important difference between the two types of legislation must be borne in mind. If a mistake should be made in a consolidating Act, the court is bound by the text of that Act as it has been passed by the parliament. If a mistake is made in a reprinted or incorporated Act, the court must ignore the text of that Act and look to the original Acts to see what it was the legislature said. See further the legislation of the relevant jurisdiction as to the status and evidentiary value of the legislation register and official reprints. As to the interpretation of reprinted legislation, see 8.6. Most legislation is now incorporated and reprinted electronically on government legislation websites. Persons seeking legislation should use such sites as their first point of inquiry. 1.34  Statute law revision Acts  It is usual, before a general consolidation or

reprinting of all the Acts of a particular jurisdiction is undertaken, for an Act to be passed that is intended to cure anomalies, correct minor errors, repeal obsolete provisions and generally tidy up the statute book. Such an Act is very similar to a consolidating Act in that it is not expected to make any substantive change in the law. But once again it can. If it does, it has the authority of parliament and must be put into effect: see 7.29. The Commonwealth regularly enacts statute law revision Acts relating to particular subject areas of legislation. The amendments made by these Acts when included on the legislation register provide a means of keeping legislation in up-to-date form. 1.35  Codifying Acts  A consolidating Act gathers together and re-enacts all legislation on a particular topic: a codifying Act does that but also incorporates all the relevant common law principles on the topic into the Act. A code thus becomes a complete statement of all the law on the particular issue with which it deals. It is enacted in the same way as any other Act of Parliament and has the same status as such an Act. This means that it supersedes the existing common law to the extent that the code and the common law conflict. Codes are the accepted form of law in civil law countries but are comparatively rare in Australia and other common law countries. The difficulties that the courts have had in interpreting them are discussed in Chapter 8. 1.36  Fiscal or revenue or taxing Acts  Procedures adopted by parliaments

for the passage of legislation usually include special provisions relating to bills that appropriate public moneys or impose taxes. These procedures are required by the constitutions11 of the various jurisdictions that give statutory effect to the longstanding constitutional convention that the legislature cannot expend public revenue without the Crown’s consent and its complementary 11. Compare Commonwealth Constitution s  56; Australian Capital Territory (SelfGovernment) Act 1988 (Cth) s 65; Constitution Act 1902 (NSW) s 46; Northern Territory (Self-Government) Act 1978 (Cth) s 11; Constitution of Queensland Act 2001 (Qld) s 68; Constitution Act 1934 (SA) s 59; Constitution Act 1934 (Tas) s 38; Constitution Act 1975 (Vic) s 63; Constitution Acts Amendment Act 1899 (WA) s 46. 28

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rule that the Crown may not raise taxes without parliamentary approval. But these conventions are not matters with which the courts are concerned. They recognise this category of Acts because the approach that has been adopted in relation to the interpretation of taxing Acts is that, in some circumstances, ambiguities should be resolved in favour of the taxpayer: see Chapter 9. 1.37  Penal Acts  This category of Acts (and all those referred to

in 1.38–1.40) is a judicial division and is not recognised by the legislature. The courts have adopted the same broad approach to Acts imposing a penalty for non-compliance with its terms as they have in relation to taxing Acts. To over-simplify somewhat, an ambiguity in a penal Act may, in some circumstances, be construed in favour of the defendant: see Chapter 9. The recognition of a penal Act is not normally difficult, but problems can arise where the Act can also be classified under the next heading. 1.38  Remedial or beneficial Acts  The courts have adopted the broad approach that, where an Act is curing some ‘mischief ’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit: see Chapter 9. Again, little difficulty arises in identifying what is beneficial legislation — compensation Acts, pension Acts, etc. Nor is it usually a problem to see what conduct is regarded as improper or unfair by the legislature and thereby the subject of remedial legislation. What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches. This problem is discussed in Chapter 9. 1.39  Declaratory Acts  Acts that do not change an existing Act, but merely make clear what it means, fall within this category. They are fairly rare. Their main importance is in regard to the problems of retrospectivity: see Chapter 10. 1.40  Enabling Acts  In effect, this category covers all those Acts that do not fall within any of the previous divisions. All legislation enables something to be done, so the Acts falling within all prior categories can be described as ‘enabling’ Acts also. But as particular approaches apply to those categories of Acts, the courts have found it convenient, if of little practical effect, to invent this final ‘catch-all’ grouping.

Parts of a Statute Act made up of different parts 1.41  The use that can be made of the various parts of an Act for the

purposes of interpreting the whole Act is set out in Chapter 4 and see also Interpretation Acts, Chapter  3. For the present, it is sufficient simply to note the following components. 1.42  Preambles  Preambles usually commence with the word ‘Whereas’.

They are commonly found in old Acts. There the intention was to provide a 29

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reader with some information relating to the reason for the enactment of the legislation. So it is common to find in those Acts a reference to the conduct that the Act was intended to proscribe or to actions of government that needed parliamentary approval. As these matters could only be background and were not essential to the validity of the Act, the practice of including them in a preamble was gradually discontinued. For many years, preambles were included only occasionally in Australian statutes. In recent years they have been included in statutes a little more frequently. However, more commonly used now is a statement of the objectives of the legislation: see 1.44. As to the use to be made of preambles in the interpretation of the legislation, see 4.62. 1.43  Titles or names  In most jurisdictions each Act has a long title and a

short title. For example, the Tasmanian Acts Interpretation Act has the long title ‘An Act to provide certain rules for the interpretation of Acts of Parliament; to define certain terms commonly used therein; and to facilitate the shortening of their phraseology’. Its short title is the ‘Acts Interpretation Act  1931’. In Victoria, the practice of including a long title in an Act was discontinued in 1986. The long title is intended to describe in a general way the purpose or object of the Act. Its importance really lies in parliamentary procedure. It is the long title that forms the basis of the resolution whether the bill for an Act should be given a first, second, etc, reading. When the bill is read a first, etc, time, it is the long title only that is read. More importantly, debate is confined by the title. Thus, if the title is ‘An Act to amend s 10A of the Acts Interpretation Act 1931’, debate on other sections of the Act is precluded. The short title is necessary simply because the long title would be too cumbersome a way in which to refer to the Act. It is nothing more than a convenient method of identifying the legislation. Current practice in New South Wales and the Australian Capital Territory is to give Acts names rather than short titles. As to the use to be made of titles in the interpretation of the legislation, see 4.60–4.61. 1.44  Purpose or objects clauses  Since 1985 the first section of each Victorian

Act has contained a statement of the purpose(s) of the Act. In the other jurisdictions a statement of the purpose(s) or object(s) is included in some Acts. As to the use to be made of purpose or objects clauses in the interpretation of an Act, see 4.63. 1.45  Headings to Chapters, Parts and Divisions  Acts may be divided into

Chapters, Parts and Divisions and, if needs be, a Division can be divided into Subdivisions. In Smalley v  Motor Accident Authority of New South Wales  [2013] NSWCA 318; (2013) 85 NSWLR 580 at [2] Barrett JA drew attention to an account of the evolution of this practice in Napier v  Sholl [1904] SALR 73 at 93ff per Way CJ. 30

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It is usual for a Chapter, Part, Division or Subdivision to have a heading that gives an indication of its subject matter. These are but drafting devices that are used for the better presentation of the Act to its readers and to make the task of understanding it a little easier. The Interpretation Acts of the Commonwealth and each of the states and territories contain a provision to the effect that any of those headings are part of an Act.12 Such headings are also part of an Act at common law: Eastern Counties Railway Co v Marriage (1860) 9 HLC 32 at 41; 11 ER 639 at 643. As to the use to be made of headings to Chapters, Parts and Divisions in the interpretation of an Act, see 4.65. 1.46  Sections  An Act is made up primarily of sections. This is the traditional

division of an Act and it stems from the practice of parliament debating bills clause by clause. This in turn arose from the fact that each clause used to be formally enacted and was preceded by the enacting words that now appear only at the beginning of an Act. (The clause in a bill changes on its passing into the section of an Act.) A section should be able to stand on its own although obviously it will be only part of the tale being set out in the Act. It usually, although not invariably, contains only one sentence. It may be subdivided successively into subsections, paragraphs, subparagraphs, clauses and subclauses. If the latter stages are reached it is likely that the Act will have become complex and difficult to follow. 1.47  Headings to sections  Each section of an Act is accompanied by a brief note that is intended to indicate its subject matter. The Interpretation Acts in some jurisdictions provide that marginal notes and headings to sections are not part of an Act.13 In the other jurisdictions it is provided that some headings to sections are part of an Act.14

As to the use to be made of headings to sections in the interpretation of an Act, see 4.71–4.73. 1.48  Schedules  Most Acts contain in a schedule matters that are subsidiary

to the main purpose of the Act, such as transitional arrangements, forms, the names of repealed Acts, formal amendments and so on. These are usually items that can more conveniently be set out in tabular form or which are consequential upon the issues dealt with by the sections of the Act and do not raise matters of principle. However, the contents of a schedule may be debated and amended. There is no hard and fast rule about what should or should not be included in a schedule. Current Commonwealth drafting style is to set out the amendments to a principal Act in a schedule to the amending Act. Again, the primary consideration will be the drafter’s wish to present an 12. Cth s 13(1), (2)(d); ACT s 126(1); NSW s 35(1)(a); NT s 55(1); Qld s 14(1); SA s 19(1)(b); Tas s 6(2); Vic s 36(1)(a); WA s 32(1). 13. NSW s 35(2); SA s 19(2)(a); Tas s 6(4); WA s 32(2). 14. Cth s 13(1); ACT s 126(2); NSW s 35(3), (4); NT s 55(2); Qld s 14(2); Vic s 36(2A). 31

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Act in the most intelligible form. The Interpretation Acts in all jurisdictions provide that a schedule is part of an Act.15 In any case, at common law a schedule is regarded as part of an Act: Attorney-General v  Lamplough (1878) 3 Ex D 214 at 229. The ordinary principles of interpretation apply to the interpretation of schedules. As to the use to be made of schedules in the interpretation of an Act, see 4.68. 1.49  Footnotes and other explanatory material  Most amending Acts contain

footnotes or endnotes setting out references to the principal Act and other amending Acts. They are added solely for the convenience of the reader. In like vein are the extensive notes relating to the legislative history of the legislation that is often found in reprints of Acts. Except in Commonwealth legislation this material is usually not part of the Act and is not amended by parliament.16 However, more use is now being made by legislative drafters of notes and other explanatory material such as examples as part of the substantive legislation. The status thus afforded to this material means that it can be used for interpretation purposes: see 4.74. Drafting Style 1.50  All Australian jurisdictions routinely adopt the textual style of

amendment rather than the referential style that is favoured in England. The difference in style should be borne in mind when considering United Kingdom legislation. The distinction between the two is that the textual style actually requires that words, etc, be omitted from the principal Act and others inserted in their stead while the referential style leaves the principal Act notionally intact but requires it to be read as if it were in different terms. With the referential system, each later Act forms, as it were, a gloss on its predecessors and they must all be read together to ascertain the law. As to this, see the observations of McLure JA in the Supplementary Decision in Western Australia v Wallam [2008] WASCA 117(S) at [31]. With the textual amendment system, the principal Act and the amending Acts have to be actually pieced together to be able to understand the current law. The main practical difference between the two is that the textual amendment system facilitates the reprinting of Acts whether in hard copy or electronically. An effect of the textual style of amendment is that if an amendment is made retrospective the whole provision in its amended form is given retrospective effect: McKenzie v Secretary, Department of Social Security (1989) 18 ALD 1 at 4.

15. Cth s 13(1); ACT s 126(5); NT s 55(5); Qld s 14(5); SA s 19(1)(a); Tas s 6(3); Vic s 36(2); WA s 31(2). As to NSW, however, see s 64A. 16. ACT s 127(1); NSW s 35(2)(c); NT s 55(6); Qld s 14(7); SA s 19(2), (3); Tas s 6(4)(b); Vic s 36(3); WA s 32(2). However, as to Commonwealth Acts see s 13(1), which was introduced by the Acts Interpretation Amendment Act 2011 (Cth). 32

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CHAPTER 2

Approaches to the Interpretation of Legislation CONTEMPORARY APPROACH 2.1  In a statement that has come to be quoted as the present basis for

interpreting legislation, the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v  Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936 at [14] said: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

The courts recognise that the application of this approach will in most cases lead a court to having to make what is commonly referred to as a ‘constructional choice’. The following observations of Gageler J in SZTAL at [37]–[39] are important to the making of this choice:1 … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’. The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice

1. Citations omitted. 33

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‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’. Integral to making such a choice is discernment of statutory purpose. …

This chapter is concerned with how the courts arrived at this approach to statutory interpretation and the application of the approach in practice. As was noted in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 363 ALR 343 at [79] ‘the task of statutory construction can be assisted by a wide range of more specific principles of statutory construction, many of which have been developed by the courts, while others are now expressed in legislation’. The court observed that: Some caution is required in selecting and applying the non-statutory or common law principles. They are not inflexible rules and their application in particular circumstances can be nuanced. Moreover, there can be tension between some of the principles. They are not masters, but should be viewed as servants and tools of analysis in the task of statutory construction.

The various Australian legislatures have also intervened in the process for making the constructional choice that a court must determine. This intervention is discussed after the common law approaches are outlined. DISCOVERING THE MEANING OF DOCUMENTS 2.2  As was observed in Chapter 1, the inherent uncertainties of language

make debate concerning the meaning of particular documents inevitable. That debate leads inexorably to more general concerns as to how possible it is to be certain in the interpretation of texts. Over the last 30 years or so there has been unprecedented interest in these broader questions. Much of this interest stems from the writings of philosophers and literary theorists such as Michel  Foucault, Jacques Derrida, E  D  Hirsch and Wolfgang Iser. Practising lawyers, who in their work may be called upon to draft and to interpret documents such as contracts and wills, and drafters of legislation, have by and large continued to go about their daily tasks without reference to these discussions. However, many legal writers, particularly in Europe and the United States of America, but also in the United Kingdom, Australia and other countries, have participated in the wider debate. In Australia, around the courts and in lawyers’ offices, it is probably correct to say that references to the interpretive theories of legal writers such as Stanley Fish, Ronald Dworkin and Richard Posner are infrequent. But most Australian legal practitioners who have graduated from law school in the last 30 years will have studied the contributions of at least some of these writers and attempted to relate them to lawyers’ work. Although the importance of that wider debate is recognised, this book does not purport to contribute to it. Instead, the aim is to bring certain matters to the attention of courts, tribunals, legal practitioners and students. 34

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These matters fall into two categories. First, there are the enactments of the Australian legislatures referred to above that direct the courts, tribunals and other bodies charged with the responsibility of interpreting and applying legislation as to how they should go about that task. Second, there are the statements of these courts, tribunals and other bodies as to the approaches, assumptions and techniques of interpretation that they apply in their work, and how they apply them. When the first edition of this book was published in 1974 such statements were much less plentiful than they are today. It has become a common practice of courts and other bodies to articulate the interpretive principles on which they rely. It  has  also become much more common for senior members of the judiciary to speak and write about techniques of statutory interpretation. Although these are welcome changes, when coupled with the proliferation of reports of cases in print form and on the internet, they make the choices of inclusion and exclusion of material in this book more difficult than ever before. Of course, there are sound reasons for fostering legal practitioners’ understanding of these matters. Communication between legislators and citizens will improve if courts and tribunals develop more consistent attitudes to the interpretation of legislation as a consequence of obedience to the commands of the legislature and better understanding of their own interpretive practices. For a consideration of these underlying assumptions by a legal philosopher, see T D Campbell, The Legal Theory of Ethical Positivism, Dartmouth Publishing, Aldershot, 1996, Chapter  6. See  also T Campbell’s chapter, ‘Ethical Interpretation and Democratic Positivism’ in S Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Sydney, 2005. For readers who wish to acquaint themselves with the wider theoretical debate referred to above, the articles and other writings referred to in the Annexure may be of assistance. INTENTION OF THE LEGISLATURE 2.3  An approach commonly stated in cases that involve the application

of legislation to particular facts is the need to establish the intention of the legislature to ascertain the way in which the legislation is to be applied to those facts. Viscount Dilhorne observed in Stock v  Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 234; [1978] 1 All ER 948 at 951: It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the seventeenth century that it is the task of the judiciary in interpreting an Act to seek to interpret it ‘according to the intent of them that made it’ (Coke 4 Inst 330).

The value of any attempt to identify the intention of the maker of legislation and indeed the value of the use of the expression itself is much debated. It is asked how can the intention of a group of divers persons be 35

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identified? How can it be suggested that such a group would have a common intention? How can it be demonstrated that the group as a whole, let alone individual members, addressed the matter now under consideration? Dawson J in Mills v  Meeking [1990] HCA 6; (1990) 169 CLR 214 at 234; 91 ALR 16 at 29–30 acknowledged this conundrum saying: The difficulty has been in ascertaining the intention of Parliament rather than in giving effect to it when it is known. Indeed, as everyone knows, the intention of Parliament is somewhat of a fiction. Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament.

See  also Gaudron J in Corporate Affairs Commission (NSW) v  Yuill [1991] HCA 28; (1991) 172 CLR 319 at 339–40; 100 ALR 609 at 623–4. A more recent characterisation of the expression is to be found in Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446; 261 ALR 481 at [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ: It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. … [T]he preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. [citations omitted]

For subsequent High Court discussion see  Lacey v  Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; 275 ALR 646 at [43]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v  Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412 at [24]–[25]; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196; 302 ALR 363 at [45]. 2.4  Perhaps the most valuable recent statement is that of Gageler J in Work

Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188 at [74]–[77]: Contributing to the overall difficulty in more recent times has been a tendency to downplay the centrality of legislative intention to the determination of the operation of the Commonwealth law. The tendency can be seen to have been the outworking of emergent scepticism about the very existence of legislative intention. That scepticism cannot be allowed to distort the understanding or application of established constitutional doctrine. ‘Those who regard the search for “intention” as fictitious must content themselves with an acceptance that it is the function of the courts, ultimately this Court, to specify what 36

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the purpose and effect (and hence the imputed intention) of the competing legislation is.’ Groups acting deliberatively according to established procedures can meaningfully be seen to have intentions, distinct from the subjective intentions of their constituent individuals, both as to what collectively they seek to achieve and as to how collectively they seek to achieve it. Legislative assemblies in representative democracies are the paradigm of groups acting deliberatively, as courts in representative democracies have for the most part done well to recognise when construing legislative output. ‘[O]ne of the surest indexes of a mature and developed jurisprudence’ is ‘to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning’. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly ‘to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. That a finding of purpose can involve a ‘contestable judgment’ only heightens that responsibility. ‘The words “intention”, “contemplation”, “purpose”, and “design” are used routinely by courts in relation to the meaning of legislation’ and ‘are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked’. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to ‘the constitutional relationship between courts and the legislature’. [citations omitted]

In a paper entitled ‘The Principle of Legality and Legislative Intention’, 11 May 2018, Cambridge University, the Hon Robert French AC said: Although it has long been integral to the rhetoric of statutory construction, [legislative intention] does not denote a state of anybody’s mind. It is invoked as an assertion that the court’s constructional choice lies within the constitutional boundaries of the judicial function. It has been called a constitutional courtesy.

If this approach to the use of the expression is understood, it can be seen that reference to ‘the intention of the legislature’ is a convenient way of describing the judicial role in statutory interpretation. However, much has been written on the topic: see the Annexure for some sources. 37

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2.5

COMMON LAW APPROACHES

Background 2.5  In the Australian common law tradition there are two general approaches

to the interpretation of legislation: the literal approach and the purposive approach. It is necessary to have an understanding of these approaches for two reasons. The first reason is that these approaches provide the setting in which the statutory requirements in relation to the interpretation of legislation that exist in all Australian jurisdictions can be understood. The second reason is that they have not been entirely superseded by these statutory provisions. Literal Approach 2.6  The literal approach (sometimes called a rule) was defined and explained

by Higgins J in Amalgamated Society of Engineers v  Adelaide Steamship Co Ltd (Engineers’ Case) [1920] HCA 54; (1920) 28 CLR 129 at 161–2 as follows: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.

Stated in this uncompromising form, the possibility of applying any other approach than the literal to interpretation was excluded, however unsatisfactory the result. Later it was accepted that this approach complemented the purposive approach. ‘The natural and ordinary meaning of what is actually said in the Act must be the starting point’, Cooke J said in Reid v Reid [1979] 1 NZLR 572 at 594. Although the literal approach had a simplicity about it that was attractive, it suffered from a major defect in that it assumed that a word or phrase, read in its textual context, always has just one meaning. In fact, there may be no single, unambiguous, ordinary meaning: a view cited with approval in R v D, WD [2013] SASCFC 32; (2013) 116 SASR 99 at [63] per Nicholson J. The Engineers’ Case was decided over 90 years ago. More recent statements of the literal approach allow for possible alternative approaches. For example, in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78] McHugh, Gummow, Kirby and Hayne JJ said: … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons

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of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

The ‘canon of construction’ instanced was the presumption that parliament does not interfere with fundamental rights, discussed in 5.35–5.36. 2.7  Higgon v O’Dea [1962] WAR 140, a decision of the Full Court of the

Western Australian Supreme Court, is a good illustration of the problem inherent in the literal approach. The court had to consider the effect of s 84 of the Police Act 1892 (WA), which provided: Every person who shall have or keep any house, shop, or room, or any place of public resort, and who shall wilfully and knowingly permit drunkenness or other disorderly conduct in such house, shop, room, or place, or knowingly suffer any unlawful games or any gaming whatsoever therein, or knowingly permit or suffer persons apparently under the age of sixteen years to enter and remain therein, or knowingly permit or suffer prostitutes or persons of notoriously bad character to meet together and remain therein, shall, on conviction for every such offence, be liable to a penalty of not more than five pounds.

The defendant was charged with permitting persons under 16 years to be in his amusement arcade. It was clear that the arcade did not offend the other parts of the section relating to gaming, drunkenness or the meeting together of undesirable persons. The court held that though the effect of the section was absurd — it was pointed out that it would make every shopkeeper who admitted children into a shop liable to prosecution — the words of the section were clear and therefore the offence had been committed. (As a result of the decision and the strong criticism made by the judges, the Act was amended to prohibit the entry of children onto premises where they might be exposed to moral danger: Police Act Amendment Act 1963 s 4.) Golden Rule 2.8  Although often stated as a separate ‘rule’ the golden rule is properly

to be seen as a gloss on or rider to the literal rule. It was first formally enunciated in Grey v  Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234 where Lord Wensleydale placed a limitation on the literal approach. He said: I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.

This qualification of the literal approach is usually called the golden rule. The rule contemplates the modification of the literal meaning of the words used to overcome an error or defect perceived in the text. 39

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Lord Wensleydale’s statement was quoted with approval by Higgins J in Australian Boot Trade Employees’ Federation v  Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341–2. The same rule was referred to by Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 at 371. It would seem that the ‘absurdity’ referred to by Lord Wensleydale was an absurdity appearing on the face of the Act from the words that had been used. His Lordship did not contemplate that the court would review the policy underlying the Act and modify the language of the Act on the basis that it considered the result to be ‘absurd’. Put shortly, the golden rule contemplated that a mistake had been made in the wording of the Act: President, etc of Shire of Arapiles v  Board of Land and Works [1904] HCA 33; (1904) 1 CLR 679 at 687 per Griffith CJ. The term ‘linguistic absurdity’ might be used to describe the nature of the absurdity referred to in the paragraphs above as bringing into play the golden rule. Several examples are discussed at  2.45–2.50. In Footscray City College v  Ruzicka [2007] VSCA 136; (2007) 16 VR 498 at [16] Chernov JA acknowledged this application of the golden rule, adding ‘the rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results’.2 See also J J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297; 218 IR 454 at [50] per Flick J. Adler v  George [1964] 2 QB 7, a decision of the English Queen’s Bench Division, illustrates this extended application of the golden rule. In that case the court had to interpret an Act that made it an offence to obstruct a member of Her Majesty’s forces ‘in the vicinity of ’ a prohibited place. The defendant had actually carried out the obstruction in the prohibited place. The court considered that the failure of the legislature to proscribe this latter conduct was clearly an oversight that could have led to an absurd result. Instead, the golden rule was applied and the court treated the Act as if it read ‘in or in the vicinity of ’. The alternative would have been to conclude that an offence had only been committed if the obstruction occurred near, not when it occurred in, a prohibited place. Purposive Approach 2.9  The other general approach to the interpretation of legislation at

common law was the purposive approach. This approach had its origins in the so-called ‘mischief rule’, which was set out in Heydon’s Case (1584) 3 Co Rep 7a at 7b; 76 ER 637 at 638: In this case all of the judges met. And it was resolved by them, that for the sure and true interpretation of all statutes in general, (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: — 2. The authority cited was Cooper Brookes (Wollongong) Pty Ltd v  Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304 per Gibbs J. See further 2.57. 40

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1st What was the common law before the making of the Act. 2nd What was the mischief and defect for which the common law did not provide. 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth. And, 4th The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

The purposive approach was applied by determining the purpose of the Act, or the particular provision in question (or the ‘mischief ’ with which it was intended to deal) and by adopting an interpretation of the words that was consistent with that purpose. Whatever the position in relation to the mischief rule may have been (as to which see the discussion of s 22 of the Acts Interpretation Act 1915 (SA) at 2.28), it was generally accepted that at common law the purposive approach applied only when an attempt to apply the literal approach produced an ambiguity: see Dawson J in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235; 91 ALR 16 at 30–1 and 2.18. See also the cases referred to below. Spigelman CJ observed, in Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548; 171 ALR 523 at [116]: The use of the word ‘ambiguity’ in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful. [citations omitted]

See also 3.18. 2.10  Occasionally, particularly in more recent times, it was suggested that the purposive approach should simply be used in preference to the literal approach: see, for example, Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 549 per McHugh JA and the authorities there cited. In the Northern Territory, the last Australian jurisdiction in which a legislative requirement in relation to statutory interpretation was enacted, it was suggested that the common law purposive approach could be used even when the meaning of the statute seemed clear on its face: KP Welding Construction Pty Ltd v Herbert (1995) 102 NTR 20 at 40–1; Peninsula Group Pty Ltd v Registrar-General of the Northern Territory (1996) 136 FLR 8 at 12.

When the purposive approach was applied, the purpose was usually deduced by looking at the statute as a whole. The history of the statute also sometimes assisted. In Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410 Samuels JA commented that ‘it has always been open to the court to have regard to the historical setting of a statute and by that means to ascertain what 41

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the object of the legislature was’. See also Kirby P at 394. For other sources see 3.3–3.14. Of course, a search for the purpose of a legislative provision may not always be successful. In Avel Pty  Ltd v  Attorney-General for New South Wales (1987) 11 NSWLR 126, for example, the New South Wales Court of Appeal considered provisions contained in the much-amended Gaming and Betting Act 1912 (NSW). Kirby P commented (at 127): The legislation relevant to the present appeal … does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread running through it all, it would seem to be nothing more than revenue-raising. This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.

Interpretation in Context 2.11  Before considering the statutory requirements that have succeeded the common law purposive approach to the interpretation of legislation, it is appropriate to mention a closely related principle: contextual. interpretation. This is discussed in detail in Chapter  3 in conjunction with consideration of what is ‘context’ together with the statutory regimes identifying the context to which a court may have regard. At this point it is worth noting an address given in 2007 by Chief Justice Spigelman of the Supreme Court of New South Wales in which his Honour observed:

Law is a fashion industry. Over the last two or three decades the fashion in interpretation has changed from textualism to contextualism. Literal interpretation — a focus on the ordinary meaning of particular words  — is no longer in vogue. Purposive interpretation is what we do now … In constitutional, statutory and contractual interpretation there does appear to have been a shift from text to context.3

It should be noted that even the most basic statement of the literal approach such as that quoted from the judgment of Higgins J in the Engineers’ Case at 2.6 did not dictate an exclusive focus just on the words to be interpreted. According to Higgins J, the intention of the legislature ‘has to be found by an examination of the language used in the statute as a whole’. Thus the literal approach required words to be placed at least in their overall legislative context. The influential common law ‘modern approach’ to statutory interpretation, outlined by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance 3. Chief Justice Spigelman, ‘From Text to Context: Contemporary Contractual Interpretation’, address delivered at the Risky Business Conference, Sydney, 21 March 2007, p 1. 42

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Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 634 and discussed at 3.7 elevates interpretation in context to the primary approach to statutory interpretation. There it was said: ... [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy.

For a rationalisation of context and text see  Edelman J in SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206 at [64]: … [T]his Court [has] said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where ‘the clearer the natural meaning the more difficult it is to justify departing from it’, so too in statutory interpretation ‘questions of degree arise’ and it will be more difficult to displace an interpretation that ‘has a powerful advantage in ordinary meaning and grammatical sense’. [citations omitted]

This approach has been adopted as the approach that courts should take independently from any statutory obligation — although its adoption has been clearly influenced by the statutes referred to later in this chapter and in Chapter 3. For that reason it is convenient to discuss the modern common law approach in conjunction with consideration of the statutory requirements: see Chapter 3. 2.12  In the present context it should be noted that the modern common

law approach has three aspects. First, it provides that the statutory context is to be considered from the beginning of the interpretive process, not merely when ambiguity has been observed. This approach therefore has a broader application than the statutory provisions concerning the uses of extrinsic materials that were introduced into the Commonwealth, states (apart from South Australia) and territories from 1984, which are discussed at 3.15–3.31. Second, ‘context’ has a wide meaning, including the ‘mischief ’ that is discoverable by the legitimate use of extrinsic materials.

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Third, context extends beyond the usual field of relevant documents to include also ‘time, place and any other circumstances that could rationally assist understanding of meaning and may encompass the facts and circumstances which were within the knowledge or contemplation of the legislature. Hence, regard may be had to the matrix of facts in which the statute was enacted’ (citations omitted): Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269; (2015) 209 LGERA 314 at [52] citing Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322; 209 ALR 355 at [12]. See also Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12 at [47]; Australian Investment and Development Pty Ltd v  Commissioner of State Revenue [2019] VSCA 69 at [60]. Despite being couched in the language of the common law mischief rule (see 2.9), the modern approach to statutory interpretation is often accompanied by a reference to the relevant statutory provision relating to interpretation such that it is not always clear whether it is the common law or the statutory approach which is being followed. It usually matters little in terms of final outcome. See the Annexure for some of the many cases illustrative of this position. See also Jeffrey Barnes, ‘Contextualism: “The Modern Approach to Statutory Interpretation”’ (2018) 41 UNSW Law Journal 1083. Although the modern approach to statutory interpretation is central to the techniques associated with contextual interpretation, it does not tell the whole story. The matters discussed in the following chapters of this book all touch upon aspects of the contextual approach to interpretation. Constructional Choice 2.13  As noted in 2.1, the task of a court and indeed any interpreter of legislation is to make a choice as to the construction of the legislation that is to be adopted. The term ‘constructional choice’ was perhaps first used in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCAFC 183; [2013] 130 FCR 524 at [33]. For the development of its use thereafter see the note by Basten JA, ‘Constructional Choice’ (2018) 92 ALJ 81.

The description of that choice as enunciated by Gageler J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347  ALR  405; 91 ALJR 936 at [37]–[39] is set out at 2.1. His Honour returned to the issue in Esso Australia Pty Ltd v  Australian Workers’ Union [2017] HCA 54; (2017) 350 ALR 404; 92 ALJR 106 at [71] saying: Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are

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important. More important is the ‘purpose and policy’ reasonably attributed to the provision within the statutory scheme.

This passage was followed in Friends of Leadbeater’s Possum Inc v  Vicforests [2018] FCA 178; (2018) 228 LGERA 255 at [44]. For factors that might guide that choice see  BGM16 v  Minister for Immigration and Border Protection [2017] FCAFC 72; (2017) 252 FCR 97; 155 ALD 450 at [53]–[54]. It seems that the expression ‘constructional choice’ (particularly as expounded by Gageler J) has, in the words of Basten JA, above, ‘become part of the idiom for discourse on statutory interpretation’. See further Gordon Brysland and Sunar Rizalar, ‘Constructional Choice’ (2018) 92 ALJ 81. However, whatever making the choice may involve, there is only one answer that must be reached. The obligation that is placed on the court is to arrive at the interpretation that is ‘unique’ per Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54] and the ‘one right answer’ per Edelman J at [127] (applied in Commissioner of Taxation v Sharpcan Pty Ltd [2018] FCAFC 163; (2018) 362 ALR 123 at [216]). STATUTORY REQUIREMENTS

Introduction 2.14  In 1969 the Law Commission for England and Wales, together with the Scottish Law Commission, produced a report entitled The Interpretation of Statutes (Law Com No 21). The report contained a recommendation that interpretation legislation be enacted containing a provision in these terms: ‘that a construction which would promote the general legislative purpose underlying the provision in question is to be preferred to a construction which would not’. The recommendation was not enacted into United Kingdom law.

A separate development occurred in the 1970s and into the 1980s when Australian courts, including the High Court, came under public criticism for what were considered to be strictly literal approaches to the interpretation of legislation, particularly anti-avoidance provisions contained in taxation legislation: see  further 9.50–9.51. In 1981 the Commonwealth Attorney-General’s Department held a seminar at which these matters were addressed: see Another Look at Statutory Interpretation, AGPS, Canberra, 1982. A few months later, the Commonwealth Parliament enacted s 15AA of the Acts Interpretation Act  1901 (Cth), which was inserted into the principal Act by s 115 of the Statute Law Revision Act 1981 (Cth). In due course, each of the states and territories enacted provisions based on s 15AA. At 2.15–2.25 there are general observations as to the operation and impact of s 15AA of the Acts Interpretation Act 1901 (Cth) and its state and territory equivalents. These are followed at 2.26–2.28 by commentary on particular aspects of those specific provisions.

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Section 15AA and Equivalent Provisions Commonwealth 2.15  In its original form, s 15AA of the Acts Interpretation Act 1901 (Cth) provided:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249; 95 ALR 481 concerned s 35(a) of the Interpretation of Legislation Act 1984 (Vic) which was based on the Commonwealth s 15AA. Dawson, Toohey and Gaudron JJ at 262; 489 drew attention to a limitation on s 35(a), observing that: The choice directed by s  35(a) … is not as to the construction that ‘will best achieve’ the object of the Act. Rather, it is a limited choice between ‘a construction that would promote the purpose or object [of the Act] and one that would not promote that purpose or object’.

In 2011 the Acts Interpretation Amendment Act 2011 (Cth) was passed. Schedule 1 contains several amendments to the parent Act, including a new version of s 15AA, which provides: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The Explanatory Memorandum relating to the amending Act expressly said that the new version of the section was directed to overcoming the deficiency in the previous version of the section pointed to in Chugg’s case. This was achieved by recognising the possibility of a choice between two or more interpretations each of which would promote the Act’s purpose or object. In  such an event the interpretation that would best achieve that purpose or object must be chosen. See the comments of Molesworth AJ in Mulpha Australia Ltd v Central Sydney Planning Committee [2018] NSWLEC 179 at [113] recognising the effect of the change in language. The other differences between the current section and the previous provision are best understood as an updating of the language without any change in meaning. See  also M Kirby, ‘The Never-Ending Challenge of Drafting and Interpreting Statutes — A Meditation on the Career of John  Finemore QC’ (2012) 36 Melb Univ L Rev 140 at 168–72. However, compare Hilary Penfold QC, formerly Commonwealth First Parliamentary Counsel and later a Judge of the Supreme Court of the ACT, raising doubts as to the wisdom of the change on the basis that it invites courts to engage in policy determination: ‘Legislation in the Courts’ (2019) 94 AIAL Forum 15. Section 15AA applies in the interpretation of legislative instruments made under a Commonwealth Act, as well as to Commonwealth Acts themselves, 46

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by  virtue of the operation of s  13 of the Legislation Act  2003  (Cth). Section  15AA had previously applied to such legislation under the Acts Interpretation Act  1901 (Cth) s  46. However, it was held that s  46 was confined to subordinate legislation and did not include executive instruments: R v Hamilton Knight; Ex parte Commonwealth Steamship Owners Association [1952] HCA 38; (1952) 86 CLR 283 at 319–20; Australian Capital Equity Pty Ltd v  Beale (1993) 41 FCR  242 at 252–4; 114 ALR 50 at 59–62. Section  46 of the Acts Interpretation Act has now been re-enacted. The current section applies the Acts Interpretation Act to all instruments that are not legislative instruments, thereby seeming to ensure that s 15AA applies to executive as well as legislative instruments. Section 15AA also applies to legislation enacted or made before or after the date of commencement of the section: GTK Trading Pty Ltd v  Export Development Grants Board (1981) 40 ALR 375; 56 FLR 292. Further, ‘These principles apply as much to individual provisions of an Act  as to the Act as a whole’: Anglican Care v  NSW Nurses and Midwives’ Association [2015] FCAFC 81; (2015) 231 FCR 316 at [49] per Jessup J. State and territory 2.16  The state and territorial provisions based on s 15AA are as follows:

• • • • • • • •

Legislation Act 2001 (ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act 1987 (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18.

As with s  15AA, all of these provisions apply in the interpretation of delegated legislation made under Acts as well as to Acts themselves,4 and to all laws, whether enacted or made before or after the date of commencement of each provision.5 Although the Interpretation Act  1987 (NSW) generally applies to instruments (s 5(1)), s  33 is limited in its operation to Acts and statutory rules. It thus does not apply to instruments that are not statutory rules. Their interpretation is therefore governed by the common law: Saggers v Sydney Market Authority (1988) 66 LGRA 42 at 44. 4. ACT s 136; NSW s 33; NT s 4; Qld Statutory Instruments Act 1992 s 14; SA s 3A; Tas s 4; Vic s 35(a); WA s 3. 5. ACT s  4; NSW s  5(1); NT s  3(1); Qld s  2(1); SA s  3A; Tas s  4(1); Vic s  4(1)(a); WA s 3(1). 47

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With the exception of the Australian Capital Territory, Queensland and South Australian provisions, these state and territorial equivalents are in substantially identical terms to s  15AA in its original form. The Australian Capital Territory, Queensland and South Australian provisions are discussed in 2.26–2.28. Section 5C of the Corporations Act 2001 (Cth) indicates the amendments to the Acts Interpretation Act  1901 (Cth) that apply to the interpretation of the Corporations Act. It appears that the amended version of s  15AA is not applicable as it occurred after the commencement of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (Cth) which is specified as the cut-off date for amendments to apply to the Corporations Act: 1 January 2005. Meaning and Operation of s 15AA and Equivalent Provisions 2.17  On the introduction of s 15AA of the Acts Interpretation Act 1901 (Cth) and its state and territorial equivalents, given the subject matter of those provisions, it is not surprising that there was no unanimity as to how they should be interpreted. Some judges assumed that the provisions were nothing more than a statutory recognition of the common law purposive approach to interpretation dealt with earlier in this chapter. Others saw it as stating a new direction for statutory interpretation.

Although the common law purposive approach to interpretation had been increasingly used in the years leading up to the enactment of s 15AA (see, for example, the comment in Campbell v Epping [1970] Tas SR 215 at 225), it was generally accepted that it should only be resorted to if there was an ambiguity or doubt as to meaning: see  2.9. Section  15AA, however, requires the purpose or object to be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act, is clear. When the purpose or object is brought into account, an alternative interpretation of the words may become apparent. And if one interpretation does not promote the purpose or object of an Act and another interpretation does, the latter interpretation must be adopted. 2.18  This interpretation of s  15AA was expounded by Dawson J in the

High Court in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16 at  [19]. In that case, Dawson J offered the following explanation of the effect of s 35(a) of the Interpretation of Legislation Act 1984 (Vic) and, by implication, s 15AA and the other provisions based on it: [T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act [1986 (Vic)] are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, 48

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but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth [1904] HCA 34; (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 at 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes. [emphasis added]

For further discussion and application of this statement see  the cases referred to in the Annexure. 2.19  The first of the two points made by Dawson J in the extract from his

judgment in Mills v Meeking suggests that s 15AA and its counterparts displaced the two common law approaches outlined in 2.6 and 2.9. There is, however, a statement of general principle whose origins lie in the speech of Viscount Simonds LC in Attorney-General v  Prince Ernest Augustus of Hanover  [1957] AC 436 at 461; [1957] 1 All ER 49 at 53, as quoted and amplified by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315; 60 ALR 509 at 514, that captures the spirit of s 15AA and its equivalents. Viscount Simonds had said: So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense … as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.

This statement continues to be much relied on. One of its manifestations is in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 634–5 in the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ, quoted in 2.11 and 3.6. Although couched in the language of the mischief rule and ‘context’, that passage calls for consideration of these matters at the initial stage of interpretation, rather than after a determination that the provision in question is ambiguous. In that important respect Brennan  CJ, Dawson, Toohey and Gummow JJ, without referring to s 15AA or its equivalents, were saying essentially what Dawson J had said about s 15AA in Mills v Meeking. For like views see the cases referred to in the Annexure. 49

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2.20  The second point made by Dawson J in the above extract from his

judgment in Mills v Meeking is also an important one. Section 15AA and equivalent provisions do not permit the courts to ignore the actual words of a statute. This was illustrated by the acknowledgment of Kirby P in several cases in the New South Wales Court of Appeal that he was bound to give effect to the clear language of a statute although in his own opinion the result was anomalous or unfair.6 Dawson J’s second point was also echoed in the decision of the Full Court of the Federal Court in R v L (1994) 49 FCR 534; 122 ALR 464. In that case, Burchett, Miles and Ryan JJ commented (at 538; 468): The requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan v Federal Commissioner of Taxation (1991) 29 FCR 157 at 162; 101 ALR 26 at 31 per Burchett J.

See further the cases referred to in the Annexure and the recent valuable exposition of interpretation in context by a Full Court of the Federal Court in CPB Contractors Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [44]ff. Statements of Purpose in Legislation 2.21  The task of the court under s 15AA and its equivalents is to seek to discover the underlying purpose or object of the Act or other legislation in which a provision is contained and, if possible, to adopt an interpretation of the provision that furthers the purpose or object. Since 1985 the first section of each Victorian Act has contained a statement of the purpose (or purposes) of the Act. This also occurs in some Commonwealth and in other state and territory legislation. In some Acts a statement of purpose or of object applies only to a portion of the Act. Several examples of these more limited statements of purpose or of object are contained in the Corporations Act 2001 (Cth). See, for example, ss 207, 256A.

A statement of purpose either applicable to the whole of an Act or, more particularly, to a discrete provision in an Act can be of value in enabling the requirement contained in s  15AA to be performed. However, general statements contained in legislation as to its purpose or object need to be treated with caution. As Brennan CJ and McHugh J observed in IW v  City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12; 146 ALR 696 at 702, such statements should be understood by reference to other provisions contained in the legislation. In other words, like any other provision in legislation, a purpose or objects clause must be interpreted in its context.

6. M Kirby, ‘Statutory Interpretation and the Rule of Law — Whose Rule, What Law?’ in D St L Kelly (ed), Essays on Legislative Drafting, Adelaide Law Review Association, Law School, University of Adelaide, 1988, p 94. See also the comments of Kirby J in Byrnes v R [1999] HCA 38; (1999) 199 CLR 1; 164 ALR 520 at [78]. 50

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A general statement of purpose may be qualified by specific provisions contained in the legislation. This point was made by Spigelman CJ in his dissenting judgment in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668. His Honour cited the Supreme Court of the United States in Rodriguez v United States 480 US 522 (1987) at 525–6: … No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.

On appeal the High Court endorsed the reasoning of Spigelman CJ: see Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201  ALR 260. Heydon J delivering the leading judgment said of the legislation before the court that it was ‘difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language’. In addition to serving as a reminder of the importance of interpreting purpose or objects clauses in context, the case illustrates the point that the level of specificity with which purpose is articulated can be critical to the outcome of a case. In this regard, see  also Metal Manufacturers Pty  Ltd v  Lewis (1988) 13 NSWLR 315 at 326; MyEnvironment Inc v  VicForests [2013] VSCA 356; (2013) 42 VR 456; 306 ALR 624 at [2]–[18]; R S Geddes, ‘Purpose and Context in Statutory Interpretation’ in Statutory Interpretation, Principles and Pragmatism for a New Age, Judicial Commission of NSW, Education Monograph 4, June 2007, 127 at 153. On the interpretation of objects clauses generally, see 4.63. Inferences of Purpose in Legislation 2.22  Although the inclusion of purpose or objects clauses is common, most statutes do not contain such a clause. In these instances the challenge is to deduce the relevant purpose of the Act, or of the provision being interpreted, without that explicit starting point. This can usually be achieved by a reading of the rest of the Act. In the interpretation of an Act a balance sometimes has to be struck between purposes that are general and those that are specific to particular provisions. This point was made in Edwards v Attorney-General [2004] NSWCA 272; (2004) 60 NSWLR 667 in relation to the Corporations Act 2001 (Cth) by Young CJ in Eq, whose judgment also contains an example of a statement of general purpose derived from an understanding of an Act in its historical setting. Young CJ in Eq said at [76]–[77]:

The purpose of the Corporations Act and its predecessor was for permitting the economy to be advantaged by such entrepreneurial ventures with limited liability and to regulate the rights of members inter se, the rights between members and creditors of corporations. 51

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As time went on, it was realised that fraudsters could manipulate the system so as to perpetuate fraud and exceptions were placed against limited liability such as liability for trading while insolvent. Nevertheless the essential purpose of the Act remains and whenever one is construing any particular provision one must be careful not to take one’s gaze off the essential purpose and pay overmuch attention to technical details of wording of individual provisions.

The limitations of a general statement of purpose contained in legislation were considered at 2.21. In relation to an Act containing no such statement, its general purpose may be obvious but nevertheless unhelpful. In the High Court’s decision in Carr v  Western Australia [2007] HCA 47; (2007) 232 CLR  138; 239 ALR 415 at [5] Gleeson CJ explained that the purposive approach: … may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which legislation achieves a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

By way of illustration Gleeson CJ added at [6]: To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s  15AA of the Acts Interpretation Act [1901 (Cth)] has the result that all federal income tax legislation has to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose.

See also the cases referred to in the Annexure. For a detailed discussion of Carr v  Western Australia [2007] HCA 47; (2007) 232 CLR 138; 239 ALR 415, see M Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35 Melb Univ L Rev 113. See  also the comments of Mortimer J in Country Carbon Pty Ltd v  Clean Energy Regulator [2018] FCA 1636 at [118]–[119] referring to the inherent contradiction in determining purpose from the text and structure of an Act when it is the text which must be given meaning before the purpose can be articulated. Seeking the purpose or object of a provision in material which is extrinsic to the legislation containing the provision is discussed at 3.6 and 3.18.

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Limitations of Interpretation by Reference to Purpose 2.23  The foregoing discussion assumes that the underlying purpose or object of a provision is discoverable; that may not always be the case. In Mitchell v Bailey [2008] FCA 426; (2008) 168 FCR 370; 101 ALD 535 at [31] the court observed that, in the absence of any clear identification of the purpose intended to be served by the words under consideration, the safe approach was to interpret the words literally: ‘A court should not speculate about the legislature’s intention.’ In reaching this conclusion the court relied on the remarks of Kirby P in Avel Pty Ltd v  Attorney-General for New South Wales, as to which see 2.10. Courts should also refrain from projecting their own policy views into the interpretive process. In Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1; 285 ALR 27 at [28] French CJ, Hayne, Kiefel and Bell JJ observed:

In construing a statute it is not for a court to construct its own idea of a desirable  policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case was to be derived from a consideration of the scheme of the Act as a whole, the respective functions of Pts II and III of the Act, and the regulatory requirements of Pt IV of the Act.

This statement was reiterated in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v  Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412 at [26] per French CJ and Hayne J; Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555; 293 ALR 493 at [93] per Crennan and Kiefel JJ. In Esso Australia Pty Ltd v  Australian Workers’ Union [2017] HCA 54; (2017) 350 ALR 404 at [52] Kiefel CJ, Keane, Nettle and Edelman JJ said: The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.

‘Strained Construction’ 2.24  Even if the purpose or object is clear, there may be an issue as to whether the language of the provision is susceptible to an interpretation that furthers it. In other words, how far can a court go in straining the ordinary

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meaning of words to achieve the desired result? This issue has been addressed by the courts many times. In Luke v Inland Revenue Commissioners [1963] AC 557 at 577 Lord Reid said: The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.

In Macalister v R [1990] HCA 15; (1990) 169 CLR 324 at 330; 92 ALR 39 at 43 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ endorsed and applied this principle. In Newcastle City Council v  GIO General Ltd [1997]  HCA  53; (1997) 191 CLR 85  at  113; 149 ALR 623 at 642 McHugh J addressed the question as follows: If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12, even when a court adopts a purposive construction to remedial legislation it ‘is not at liberty to give it a construction that is unreasonable or unnatural’. Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision ‘a strained construction’ [Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422 per McHugh JA] to achieve that purpose provided that the construction is neither unreasonable nor unnatural.

In earlier consideration of the expression McHugh JA (as he then was) had taken the term ‘strained construction’ from the judgment of MacKinnon LJ in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] 1 Ch 174. There, MacKinnon LJ said (at 201): When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the Legislature.

McHugh JA had repeated his endorsement of the term ‘strained construction’, and his reference to its origins, in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302; 38 A Crim R 412 at 421–2. Later, when a member of the High Court, his Honour endorsed the term in Kelly v R [2004] HCA 12; (2004) 218 CLR 216; 205 ALR 274 at [98]. If McHugh J’s analysis is accepted, the line between what is and what is not acceptable is that a court may ‘strain’ the ordinary meaning of words, although not to produce an interpretation that is ‘unreasonable or unnatural’. This is helpful in that it emphasises the necessity of interpreting the actual words of the provision, while allowing that a less obvious interpretation may be adopted, so long as that interpretation is a credible one. The question of the limits of what is reasonable or natural is of course open-ended. The related issue of reading words into legislation is discussed in 2.52–2.56. 54

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Section 15AA, its Equivalents and Legislative Drafting 2.25  Generally speaking, it is only when the legislative drafter has fallen short of his or her ideal that the dominance of the purposive approach as dictated by these provisions assumes significance. If the drafter has achieved what he or she set out to do, applications of the literal and the purposive approaches will ordinarily produce the same result. In the words of McHugh J in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 21; 100 ALR 193 at 207: ‘In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the “ordinary meaning” to be applied.’

The point was made more strongly by the Victorian Court of Appeal in Director of Public Prosecutions v Leys [2012] VSCA 304; (2012) 44 VR 1; 296 ALR 96 at [45]. The court said: ‘In ordinary circumstances, the literal interpretation of a statutory provision will give effect to its purpose’, adding in a footnote: ‘In those circumstances the construction adopted is both the “literal” and the “purposive” construction.’ In some instances, however, the complexity of the subject matter is such that the drafter will rely on a statement of purpose or object to assist in conveying the meaning intended. Australian Capital Territory Equivalent of s 15AA 2.26  In 1982 the Australian Capital Territory legislature enacted s 11A of the Interpretation Act 1967, which was closely based on s 15AA. It was replaced with s 139 of the Legislation Act 2001, which provides:

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act.

Section 139 is to be read together with s 7(3), which provides that a reference to an Act includes a reference to a provision of an Act. Section 138 provides that the term ‘working out the meaning of an Act’ means: (a) resolving an ambiguous or obscure provision of the Act; or (b) confirming or displacing the apparent meaning of the Act; or (c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or (d) finding the meaning of the Act in any other case.

As to the use of the term ‘best achieve the purpose of the Act’ in s 139(1), see  the comments on the current version of s  15AA at 2.15. Section  139, when read with s 138, makes it clear that a meaning that is compatible with purpose is to be preferred to a meaning that would otherwise be clear on the face of the provision in question. See  also the comments of Besanko J in Casey v Alcock [2009] ACTCA; (2009) 165 ACTR 1; 226 FLR 437 1 at [103], repeated in R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22; 228 FLR 77 55

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at [60] and in Haureliuk v  Furler [2012] ACTCA 11; (2012) 6 ACTLR 151; 259 FLR 28 at [21]. Refer also to 2.29. Queensland Equivalent of s 15AA 2.27  Section 14A of the Acts Interpretation Act 1954 (Qld) provides:

(1) In the interpretation of a provision of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act. (3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Section 36 of the Queensland Act provides that ‘“purpose”, for an Act, includes policy objective’. As to the use of the term ‘best achieve the purpose of the Act’ in s 14A(1), see the comments on the current version of s 15AA at 2.15. Subsection (2) of s 14A is to be found only in this legislation and in that of South Australia: see 2.28. Its scope is somewhat uncertain. See the detailed analysis in James Duffy and John O’Brien, ‘When Interpretation Acts Require Interpretation: Purposive Statutory Interpretation and Criminal Liability in Queensland’ (2017) 40 UNSW Law Journal 952. South Australian Equivalent of s 15AA 2.28  Section 22 of the Acts Interpretation Act 1915 (SA) provides:

(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. (2) This section does not operate to create or extend any criminal liability.

Notwithstanding its similarity to the original version of s 15AA, before 2010 it was arguable that s 22(1) had a more limited operation. The words included in s  22(1) ‘where a provision of an Act is reasonably open to more than one construction’ are absent from s  15AA. That could have meant that a construction that would promote the purpose or object of the Act must be preferred only if the provision being interpreted was ambiguous on its face. However, the position was clarified by the Full Court of the South Australian Supreme Court in South Australia v  Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331. The court observed at [207]: Section  22 of the Acts Interpretation Act  1915 (SA) should not be read as permitting a reference to the purpose of an Act only if it is first shown that 56

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the relevant provision ‘is reasonably open to more than one construction …’: see Burch v South Australia (1998) 71 SASR 12 at 18–19 Cox J, at 28 Lander J and at 40 Bleby J. Consistently with contemporary approaches to interpretation, s 2 can and should be read as permitting a consideration of the purpose of the legislation from the outset of the process of statutory construction.

See  also F, BV v  Magistrates Court of South Australia [2013] SASCFC 1; (2013) 115 SASR 232 at [12] per Kourakis CJ: ‘Section  22A(1) of the AIA [Acts  Interpretation Act  1915 (SA)] was intended to give greater latitude than the common law to depart from the literal meaning of a statute in order to give effect to its purpose. It should not be applied in a way which is more restrictive.’ Australian Capital Territory, Queensland and Victorian Equivalents of s 15AA and Compatibility with Human Rights 2.29  Three Australian jurisdictions have enacted bills of rights: see Human Rights Act 2004 (ACT), Human Rights Act 2019 (Qld) and Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 30(1) of the Human Rights Act 2004 (ACT) provides: ‘So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is consistent with human rights.’ In this amended form the Australian Capital Territory provision closely resembles s 32(1) of the Victorian Act, which provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’ Section 48 of the Queensland Act is directed to achieving a like outcome.

For a discussion of the impact of these provisions, see 5.55–5.59. INTERPRETATION AND INTERNATIONAL AGREEMENTS

Interpretation of Legislation Giving Effect to International Agreements 2.30  An international convention or treaty can be ratified by executive act. The act of ratification does not make such an agreement part of domestic law: Minister for Foreign Affairs and Trade v  Magno (1992) 37 FCR 298 at 303; 112 ALR 529 at 534 per Gummow J; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286–7; 128 ALR 353 at 361 per Mason CJ and Deane J.

Notwithstanding that under s  13(1) of the Acts Interpretation Act  1901 (Cth) a schedule is part of an Act, a treaty that has been set out in a schedule to an Act does not thereby become part of Australian domestic law: Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 at [21]–[25] per Ryan, Merkel and Goldberg JJ, following Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at  305; 109 ALR 385 at 391 per Mason CJ and McHugh J and at 359–60; 434 per Toohey J. See also Wilson v White [2007] WASCA 87 at [23] per Buss JA; Van Lieshout v City of Fremantle (No 2) [2013] WASC 176; (2013) 276 FLR 199. See also 1.23. 57

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In NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52; 231 ALR 380 at [61] Callinan, Heydon and Crennan JJ gave the following advice as to the approach courts should take when an international convention or treaty has been referred to in, or wholly or partly adopted by, domestic legislation: The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid law adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires.

For an illustration of this approach, see Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497; 299 ALR 280 at [30]ff. 2.31 In Pilkington (Aust) Ltd v Minister for Justice and Customs [2002] FCAFC

423; (2002) 127 FCR 92; 71 ALD 301 at [25]–[28], the Full Court of the Federal Court set out the applicable principles of statutory construction in the context of a legislative scheme that gave effect to an international agreement and the rationale for the approach adopted. The following extract from the judgment while lengthy usefully sets out the principles to be followed. The court said: … To the extent that the Parliament has passed … legislation dealing with the subject matter of [an international] Agreement, that legislation will be interpreted and applied, as far as its language permits, so that it is in conformity, and not in conflict, with Australia’s international obligations. Where a statute is ambiguous (the conception of ambiguity not being viewed narrowly) the court should favour a construction consistent with the international instrument and the obligations which it imposes over another construction … The ascertainment of the meaning of, and obligations within, an international instrument … is to be ascertained by giving primacy to the text of the international instrument, but also by considering the context, objects and purposes of the instrument … The manner of interpreting the international instrument is one which is more liberal than that ordinarily adopted by a court construing exclusively domestic legislation; it is undertaken in a manner unconstrained by technical local rules or precedent, but on broad principles of general acceptation … The reasons for this approach were described by Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251at 281–2, as follows: The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine 58

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and jurisprudence as extraneous aids to the interpretation of the legislative text. The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it, in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 at 152, ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation’. The need for a broad or liberal construction is reinforced by the matters which can be taken into account under Art 31 of the Vienna Convention on the Law of Treaties … in accordance with which Australian courts interpret treaties. [citations omitted]

Accordingly, where legislation gives effect to an international convention or treaty or portion thereof by adopting the words of the convention or treaty, in the interests of certainty and uniformity it has been recognised in many cases that those provisions should be interpreted using the interpretive principles which are applied to the convention or treaty: see 2.33. ‘[W]hen Parliament implements a treaty into domestic law by using the same words as the treaty, “it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty”’: per Edelman J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [83] citing Brennan J in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265; 39 ALR 417 at 491–2. 2.32  For some of the many examples of the application of international treaties in determining Australian cases see  the decisions referred to in the Annexure.

For a general discussion of the relationship between international law (including international agreements and international customary law) and the Australian legal system, see  H Charlesworth, M Chiam, D Hovell and G  Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Syd LR 423; Wendy Lacey, ‘Confluence or Divergence? The Principle of Legality and the Presumption of Consistency with International Law’ in Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand, Federation Press, Sydney, 2017, Chapter 12. International Law Interpretive Principles 2.33  Subject to any contrary intention disclosed in the relevant Australian legislation, the applicable international law interpretive principles are those which are recognised by international law. These principles are codified in Arts 31 and 32 of the Vienna Convention on the Law of Treaties (1969) 59

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(the  ‘Vienna Convention’) which are set out below. Those interpretive principles also apply when the legislation contains an explicit provision that has the effect of making an international agreement part of Australian law. For some examples of the application of these principles see  the cases in the Annexure. The principles contained in the Vienna Convention apply to both multilateral and bilateral treaties: Secretary, Department of Families, Housing, Community and Indigenous Affairs v  Mahrous [2013] FCAFC 75; (2013) 213 FCR 532 at [55], together with the authorities referred to in that paragraph. Sometimes legislation provides that a particular word, phrase or provision contained in it shall have the same meaning as it has in an international convention or treaty. See, for example, Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; 87 ALR 412; Applicant A  v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; 142 ALR 331. In Applicant  A, the High Court discussed the interpretive principles embodied in Arts  31 and 32 of the Vienna Convention. It had to decide whether the appellant was a ‘refugee’ as defined by s  4 of the Migration Act 1958 (Cth). Section 4 defined ‘refugee’ as having the same meaning as it had in Art 1 of the Convention Relating to the Status of Refugees (1951) or in Art 1 of the Convention as amended by the Protocol Relating to the Status of Refugees (1967). Neither the Convention nor the Protocol had been enacted into Australian domestic law. None the less the effect of s 4 was that ‘refugee’ in the Migration Act  1958 (Cth) had to be interpreted in accordance with Art 31 of the Vienna Convention. 2.34  Article 31 is as follows:

General rule of interpretation 1 2

3

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

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2.35

(c) any relevant rules of international law applicable in the relations between the parties. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 provides: Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. 2.35  For a detailed discussion of the operation of Art 31 together with an explanation of how it should be applied by Australian courts, see McHugh J in Applicant A (above 2.33–2.34) at 251–6; 349–52. McHugh J considered the alternative interpretations of Art 31 that had been offered by international lawyers. He concluded that the correct approach was to interpret Art 31 in a holistic manner, so that the text of a treaty provision should be given primacy, but that courts should, as part of the process of interpretation, look to the context, object and purpose of the provision. Brennan CJ agreed with McHugh J’s explanation of the operation of Art 31 and added his own more general comment (at 230–1; 332–3):

If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way. In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather … it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.

Dawson J (at 240; 339–40) offered an interpretation of Art 31 that was consistent with that of Brennan CJ and McHugh J. Gummow J (at 277; 369–70) 61

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also agreed with McHugh J’s explanation of the operation of Art 31. Kirby J (at 294; 383) took a slightly different approach from that of the other Justices. He applied both s 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth), as to which see 3.15, and the Vienna Convention. In doing so he remarked on the similarity between Art 32 of the Vienna Convention and s 15AB. 2.36 In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH

of 2004 [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340 which was heard at the same time as NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52; 231 ALR 380 (see  below), the High  Court considered the relationship of the Convention relating to the Status of Refugees (1951), together with the Protocol relating to the Status of Refugees (1967) (‘the Convention’) to Australian law. At [34] Gummow ACJ, Callinan, Heydon and Crennan JJ explained: The relevant law of Australia is found in the [Migration Act 1958 (Cth)] and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. One of those principles is s 15AA(1) of the Acts Interpretation Act 1901 (Cth). Another is s 15AB(2)(d) of that Act. The Convention has not been enacted as part of the law of Australia … Section  36 of the Act is the only section (apart from the interpretation section, s 5) which refers in terms to the Convention. That does not mean that thereby the whole of it is enacted into Australian law … … [B]y reason of s 15AB(2)(d) of the Acts Interpretation Act, the Convention may be considered for the purposes described in s 15AB(1). Further, Australian courts will endeavour to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention … The Convention will also be construed by reference to the principles stated in the Vienna Convention on the Law of Treaties (the ‘Vienna Convention’) [The  Justices referred to Arts 31 and 32 of the Convention, as to which, see 2.34.] … But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern. [citations omitted]

The Justices went on to consider the construction of s 36 of the Migration Act  1958 (Cth), which concerned protection visas, according to those principles of interpretation. Reference should also be made to NBGM v  Minister for Immigration and Multicultural Affairs, above, which also involved protection visas and in which Callinan, Heydon and Crennan JJ noted at [37] that their reasons should be read with the reasons in QAAH of 2004. They added, at [68]–[69]: … Section  36 of the Act must be considered in context. The context is provided by other provisions of it … The Convention does not provide any of the framework for the operation of the Act. The contrary is the case. That does not mean that the Convention in and to the extent of its application to Australia should be narrowly construed. It simply means that Australian law is determinative, and it is that which should be clearly ascertained before attention is turned to the Convention. 62

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At [1] Gummow ACJ agreed generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and particularly with their conclusion, at [67], that on the reasoning in QAAH of 2004 the appeal must fail. Kirby J dissented. For a more recent case arising under the Migration Act  1958 (Cth), concerning protection visas and applying the interpretive principles set out in QAAH of 2004 and in NBGM, see BZAAH v Minister for Immigration and Citizenship [2013] FCAFC 72; (2013) 213 FCR 261. For an example of a case where the Australian law prevailed over international obligations, see  Commissioner of Taxation v  Macoun [2014] FCAFC 162; (2014) 227 FCR 265; 145 ALD 16. Taxation Cases and International Law 2.37  Taxation matters with international content have also raised complex issues of legislative interpretation. Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338; 94 ALR 647 concerned an appeal with respect to the avoidance of double taxation on income. Section 11E and Sch 15 of the Income Tax (International Agreements) Act 1953 (Cth) gave effect to an agreement with Switzerland for the avoidance of double taxation with respect to taxes on income. So far as they affected Australian tax the provisions of the Swiss Agreement had the force of law. In Thiel the High Court held that the interpretive principles set out in the Vienna Convention, later explained in Applicant A, as to which see 2.35, were applicable: see 349; 653 per Dawson J and 356; 658–9 per McHugh J. Also see  Federal Commissioner of Taxation v  Lamesa Holdings BV (1997) 77 FCR 597 at 604; 157  ALR 290 at 296 per Burchett, Hill and Emmett JJ; McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67; (2005) 142 FCR 134; 219 ALR 346 at [37]–[38].

Several years later, in Russell v Commissioner of Taxation [2011] FCAFC 10; (2011) 190 FCR 449; 274 ALR 545 it was argued that in the decision appealed from there had been a failure properly to apply the International Tax Agreements Act 1953 (Cth) and the New Zealand Agreement contained in Sch 4 of that Act. The court below had observed that as the New Zealand  Agreement generally followed the OECD model it was settled that regard could be had to the OECD commentary on its model agreement. Thiel v Federal Commissioner of Taxation had been cited as authority for that proposition and McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation had also been mentioned. Dowsett J noted that both of those cases had preceded the High  Court decisions in QAAH of 2004 and NBGM. At  [26] he referred to the High  Court decisions and observed: ‘In both cases the Court emphasized the primary position of the words used in Australian legislation and the Australian rules of statutory interpretation in construing legislation which gives effect to international obligations, including treaties.’ At [30] he said: ‘Whilst I remain bound by the actual decision in Thiel, the approach adopted in QAAH and NGBM appears to require care in referring to material concerning 63

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international instruments. I see no reason for applying a different approach to model agreements.’ However, in the event Dowsett J rejected the argument that in the court below reliance had been placed on the OECD commentary at the expense of the terms of the Act and the Agreement. A few months later, in Commissioner of Taxation v  SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149, a Full Court of the Federal Court considered the relevance of OECD Transfer Pricing Guidelines and Arts 31 and 32 of the Vienna Convention to the interpretation of three double taxation treaties and to domestic legislation. As to these matters, see the discussion and the restrictive conclusions reached at [112]–[118]. Then, at  [119], the court observed: [I]t is crucial to observe that the whole text of each treaty has been given domestic effect. In cases where the exact text of a whole treaty has been given effect by domestic legislation it would be surprising if it were interpreted without keeping that fact in mind. It should be noted that these taxation treaties stand in a very different position to, for example, the Refugee Conventions whose text is not given the force of law. Where parliament implements a treaty using its expressions and its provisions then naturally enough one must begin with the words Parliament has used. But where Parliament expressly decides to incorporate the whole text of a treaty in domestic law and makes it plain, as here, that it is doing so, then it is appropriate to construe the provisions in accordance with the ordinary principles governing the interpretation of treaties. This is because the Parliament’s use of the treaty shows its intention to fulfil its international obligations. This has been accepted by the High Court in respect of the double taxation treaties: Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR; 94 ALR 647. 2.38  There is a more recent consideration of the interpretive issues in these double taxation cases in Resource Capital Fund III LP v Commissioner of Taxation [2013] FCA 363; (2013) 95 ATR 504 at [46]–[50] per Edmonds J. At [51] Edmonds J noted that in argument the Commissioner had referred to Minister for Home Affairs of the Commonwealth v Zentai [2012] HCA 28; (2012) 246 CLR 213; 289 ALR 644, in which the High Court considered a determination made by the minister pursuant to s 22(2) of the Extradition Act 1988 (Cth). Its validity depended on the interpretation of a proviso in Art 2.5(a) of the Treaty on Extradition between Australia and the Republic of Hungary 1995. At [65] Gummow, Crennan, Kiefel and Bell JJ had said: ‘The meaning of the limitation set out in Art 2.5(a) is to be ascertained by the application of ordinary principles of interpretation.’

The High Court’s decisions in Project Blue Sky Inc v  Australian Broadcasting Authority and Alcan  (NT) Alumina Pty Ltd v  Commissioner of Territory Revenue, as to which see 3.6–3.7, were cited in support. However, in Resource Capital Fund III LP, above, at [52] Edmonds J observed that he did not regard the Justices’ observation as a rejection of the general principles of interpretation

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of double tax treaties set out in Thiel and the subsequent cases referred to above. He added that French  CJ had reached the same conclusion as Gummow, Crennan, Kiefel and Bell JJ ‘by recourse to the correct principles of construction starting with Arts 31 and 32 of the Vienna Convention and referring to the principles embraced by Dawson J and McHugh J (with whom Brennan CJ agreed) in Applicant A’, as to which, see 2.33. Heydon J had dissented. See also the comments in Chloe Burnett, ‘Interpretation in the French High Court’ (2017) 44 Aust Bar Rev 95 at 103. Interpretation of International Agreements 2.39  Sometimes courts must interpret international conventions and treaties that have not become part of the domestic law. This occurred in Commonwealth v Tasmania (Franklin Dam case) [1983] HCA 21; (1983) 158 CLR 1; 46 ALR 625, in which one of the issues was whether the World Heritage Convention, to which Australia was a party, imposed legal obligations on Australia to protect the Western Tasmania Wilderness National Parks from damage. Although the Vienna Convention, to which Australia was also a party, was not in force when the World Heritage Convention entered into force in 1972, both Gibbs CJ (at 93; 663) and Brennan J (at 222; 774) considered that its interpretation was governed by the principles set out in Arts 31 and 32 of the Vienna Convention (set out in 2.34), because those articles merely endorsed existing practice: Fothergill v  Monarch Airlines Ltd [1981] AC  251 at  282; [1980] 2 All ER 696 at 706–7 per Lord Diplock. Murphy J assumed (at 177; 734) that the interpretation principles in those articles applied.

Each of the dissenting Justices referred to the travaux préparatoires of the World Heritage Convention. Gibbs CJ concluded (at 96; 666) that ‘the travaux préparatoires confirm the meaning which the words of the Convention themselves reveal’. This was that no relevant legal obligation was imposed on Australia by the Convention. Wilson J reached a similar conclusion (at 191–2; 747–9), while Dawson J merely referred (at 307–8; 845–6) to some of the travaux préparatoires as background. Of the majority Justices, Mason J found the travaux unhelpful (at 134; 699), while Brennan J refused to refer to them, stating (at 223; 775): It accords with the Vienna Convention and with the consistent practice of the International Court of Justice and, earlier, of the Permanent Court of International Justice, generally to decline reference to travaux préparatoires, for ‘there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself ’: Conditions of Admission of a State to Membership in the United Nations, ICJ Reports, 1948, p 56 at p 63.

For a more detailed discussion of the principles that govern the interpretation of international conventions and treaties in Australian domestic law, see 2.30–2.32.

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SPECIFIC COMMON LAW PRINCIPLES OF INTERPRETATION

Status of Common Law Principles 2.40  In this chapter it has been suggested that the formal effect of s 15AA of the Acts Interpretation Act 1901 (Cth) is to override both the common law literal approach to interpretation and the purposive approach to interpretation in its common law form, as to which see 2.6–2.12. Of course, this approach also applies to the equivalents of s 15AA in the interpretation legislation of the states and territories. However, as observed in 2.25, in many instances applying the literal approach on one hand and s 15AA or an equivalent on the other will produce the same result. Notwithstanding the dominance of the purposive approach as laid down in these statutory provisions, there are a number of common law principles of interpretation of a specific nature that are still useful, to the extent that they do not impinge upon the statutory approach. These principles are discussed below.

General Words to be Given their Primary and Natural Significance 2.41  As is discussed fully in Chapter  4, words take colour from their surroundings and, accordingly, words of wide signification may well be limited by their context. But at the same time, the courts have tended to require such a limitation to be demonstrated. If general words are used, they will be given their plain and ordinary meaning unless the contrary is shown: Cody v  J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 at 647 per Dixon J. For further examples of this approach see the cases in the Annexure.

In Herbert Adams Pty Ltd v Federal Commissioner for Taxation [1932] HCA 27; (1932) 47 CLR 222 at 228–9 Dixon J said that it is always less difficult to show that a word has a wider meaning than it is to establish a specialised use: ‘[A]n extension of meaning involves no abandonment of the use in respect of things to which it would in any case apply.’ Many examples of this approach to the interpretation of general words can be found. Some illustrations follow. In R v Ford [1945] SASR 118, which concerned a discretion given to a judge to order the transfer of a criminal trial from a circuit court to a city sitting of the court, Mayo J said (at 121): It is a well-known principle that where a discretion is given in the widest language, there is no justification for being at pains to interpolate some artificial limit not implicit anywhere in the context.

In Re a Determination of the Country Councils’ Wages Board [1943] Tas SR 16 Morris CJ held that a reference in a regulation to ‘the plaint, reference or application’ should not be interpreted technically where in practice no formal application to a wages board was made. His Honour considered that the intention of the legislature in using general language was to refer to all claims made to wages boards even though not technically described as ‘applications’. The Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 1 NSWLR 681; (1974) 4 ALR 353 said at 688; 361 that when considering 66

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whether mining activities should be regarded as an ‘existing use’ of land, ‘a broad and businesslike approach must be adopted’. See also the examples in the Annexure. While these cases indicate that courts will be slow to cut down the operation of general words, this presumption is of course rebuttable. As mentioned previously, the context in which the general words are used will usually have a limiting effect. So, in Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, the words ‘act of trespass’ in the Act limiting the time within which actions for trespass could be brought were held inapplicable to an action for trespass for mesne profits. The words meant a distinct and isolated trespass, whereas an action for trespass for mesne profits from its very nature contemplated a continuing course of conduct. Likewise, the result of giving a wide meaning to an expression (albeit one that accords with the definition of the expression in the Act) may lead to an absurd result. In Hall v Jones (1942) 42 SR (NSW) 203, for example, ‘stock’ was given a very wide meaning by the Stock Diseases Act 1923 (NSW) — not only covering the conventional cattle, sheep and so on but also ‘cockatoos, starlings and wild birds of prey’. The minister, in exercise of a power given him under the Act to require the treatment of ‘stock’ for cattle tick, specified the relevant ‘stock’ as cattle, horses, sheep and goats. It was held that the Act allowed him to do this. Although ‘stock’ was defined widely, it would lead to absurd results if this meaning could not be limited in particular cases. (But  compare Police v Thompson [1966] NZLR 813, discussed in 4.3.) The approach of the court in Hall v Jones was followed in Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275. On the interpretation of technical words, see 4.21–4.27. General Words to be Given their Legal Meaning 2.42  The courts will start from the position of giving general words their accepted legal meaning. So, in Sterling Nicholas Duty Free Pty Ltd v Commonwealth [1971] 1 NSWLR 353 Hope J turned to sale of goods legislation and to case law to determine the meaning of the words ‘sell’ and ‘supply’. But this approach may not always bring about the result that would generally be expected. For example, in Fisher v Bell [1961] 1 QB 394; [1960] 3 All ER 731 the exposure of a flick knife in a shop window with a price tag on it was held by the application of the rules of contract law not to constitute an ‘offer of sale’ but was an invitation to treat: see also 4.21–4.22.

All Words Have Meaning and Effect 2.43  As a general principle, the courts have pointed out that they are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per Griffith CJ:

[In] The King v Berchet [1 Show 106] a case decided in 1688, it was said to be a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, 67

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void, or insignificant, if by any other construction they may all be made useful and pertinent.

This statement was endorsed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA  28; (1998) 194 CLR 355; 153 ALR 490 at [71] per McHugh, Gummow, Kirby and Hayne JJ. The general principle has been reiterated many times. See the Annexure for some of the many examples. This principle is more compelling if the word (or phrase) in question has been added by amendment: see the cases referred to in the Annexure. Nor can a court declare a section of an Act void for uncertainty no matter how difficult it is to interpret. In R v Holmes; Ex parte Altona Petrochemical Co Ltd [1972] HCA 20; (1972) 126 CLR 529 at 562 Windeyer J said ‘[c]ourts must wrestle, and are accustomed to wrestle, with difficult language. They are required to find its meaning, not permitted to abandon the task’. Perhaps most frequently cited is Scott v Moses (1957) 75 WN (NSW) 101 at 102 where the New South Wales Court of Criminal Appeal said: ‘Whatever the difficulties of construction may be, [a] [c]ourt is bound to give some meaning to the section, and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used.’ See also the cases referred to in the Annexure. However, these matters are subject to the overriding consideration that it may be impossible to give a full and accurate meaning to every word. This was recognised early in the life of the High Court: see Brisbane City Council v Attorney-General (Qld) [1908] HCA 8; (1908) 5 CLR 695 at 720 per O’Connor J citing English authority extending well back in the 19th century. In Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106; 341 ALR 70 at [55] the plurality said: [W]hilst it must be accepted that words chosen by the legislature should be given meaning and endeavours should be made to avoid them being seen as redundant, they should not be given a strained meaning, one at odds with the scheme of the statute. Moreover, it has been recognised more than once that Parliament is sometimes guilty of ‘surplusage’ or even ‘tautology’. The possibility that Parliament may not have appreciated that the reference in … was not necessary, and was liable to confuse, is not a reason for giving it a literal interpretation. [citations omitted]

See also the cases referred to in the Annexure. In such cases the duty of the court is to give the words the construction ‘that produces the greatest harmony and the least inconsistency’: Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135 at 161 per Cooper CJ; T v T [2008] FamCAFC 4; (2008) 216 FLR 365 at [82]. See further Dennis Pearce, ‘The Uncertainty of Certainty in Legislation’ in Greg Weeks and Matthew Groves (eds), Administrative Redress In and Out of the Courts: Essays in Honour of Robin Creyke and John McMillan, Federation Press, Sydney, 2019, Chapter 14. 68

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Where there are two provisions in a single piece of legislation which initially appear to be in conflict, since it is ‘improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result’: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43  FCR  565 at 574; 116 ALR 54 at  63 per Gummow J. See  also the cases referred to in the Annexure. To achieve this outcome regard should be had to the grammatical aids to interpretation discussed in Chapter 4. Words of Limitation to be Given Effect 2.44  This principle is a particular application of the proposition discussed above. Provisions that are intended to limit the scope of words that might otherwise have an ambulatory effect can be found in legislation. Examples are ‘land used solely for public purposes’ and ‘appliance used exclusively or primarily or principally’ for a designated purpose. The addition of the adverb is intended to avoid arguments that the thing in question may come within the operation of the legislation if it is used in part for the purpose stated. Such provisions are common in fiscal and rating legislation. Windeyer J in Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 94 observed: ‘The presence of “exclusively”, “solely”, or, “only”, always adds emphasis; and is not to be disregarded.’ See also Sunshine Management Services Pty Ltd v Russo (1991) 4 ACSR 192 at 195 (‘if and only if ’); R v Vaughan [2009] SASC 395; (2009) 105 SASR 532 at [19]–[21] per Gray and Sulan JJ (‘alone’).

Correction of Printing and Drafting Errors 2.45  If it is obvious that a simple mistake in the form of a printing or a drafting error has been made in the text of legislation, the courts will read the legislation in its correct form. For example, in Winkley v Paton (1943) 60 WN (NSW) 162, Street J was prepared to read the phrase ‘sample or fertilizer’ as if it said ‘sample of fertilizer’. It was obvious that this was what should have appeared in the text having regard to the intended operation of the section and to other provisions of the Act. In Lindner v Wright (1976) 14 ALR 105 a cross-reference in a section of an Act to subs (3) should have been to subs (4). Muirhead J was prepared to read it accordingly.

In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627; 55 ALR 175 it was concluded that the word ‘either’ appeared in the wrong place in a subsection as the result of a simple drafting error. If the strict grammatical sense of the words had been adhered to, it would have led to an absurdity. The court avoided this by applying the golden rule. (See 2.8.) For other examples of the correction of an apparent drafting oversight, see the cases referred to in the Annexure. Although the golden rule is still relied on to correct printing and drafting errors, it may also be possible to achieve that result by resorting to the modern approach to interpretation, which permits the court to take account initially 69

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of underlying purpose and context: see 3.7. In that regard, see New South Wales Crime Commission v Kelly [2003] NSWCA 245; (2003) 58 NSWLR 71 at [21]–[22] per Sheller JA in which the New South Wales Court of Appeal read the phrase ‘dependant of the person who will forfeit an interest in property under the order’ in s 24(1) of the Criminal Assets Recovery Act 1990 (NSW) as ‘dependant of the person who has an interest in property under the order’ to ensure that the purpose of the section was not defeated. See also Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 at [8], where a contextual analysis of the provisions of a legislative scheme led to the word ‘since’ being interpreted as meaning ‘prior to’. Modification of ‘and’ and ‘or’ 2.46  A common example of the interpretive problem referred to in 2.45

occurs in relation to the use of the words ‘and’ and ‘or’. In ordinary speech the word ‘and’ is used conjunctively and the word ‘or’ disjunctively. However, one quite often finds arguments being put to the courts that items connected by the word ‘and’ should be treated as alternatives and that items connected with ‘or’ should be treated as being cumulative. In some instances these arguments have been successful. Most of the cases fall into two groups. In one group the court has decided that there are compelling reasons for concluding that there is a printing or drafting error and that, in line with the golden rule, the provision should be interpreted as if the word that had been intended had been used. As mentioned in 2.45, it may be possible to correct some errors of this kind by relying on the purposive approach and taking account of the context in which the provision appears. That could include reading ‘and’ for ‘or’ and vice versa if the underlying purpose or object and the context of the provision suggests such an interpretation. As to this see  Smith v  Papamihail (1998) 88 FCR 80 at 88–9; 158 ALR 451 at 458–9 where this analysis was endorsed. In the second group of cases the court has not decided that ‘and’ or ‘or’ was used in error. Instead, it has concluded, usually by reference to the context in which the word appears, that the cumulative or disjunctive effect of the provision should not be dictated by the presence of the word in question. Words Used in Error 2.47  R v Oakes [1959] 2 QB 350; [1959] 2 All ER 92 is a frequently cited example of ‘and’ being used when it was clear that ‘or’ should have been used. In that case the court held that the word ‘and’, where it appeared in a section of the Official Secrets Act  1920 (UK) providing ‘Any person who aids or abets and does any act preparatory to the commission of an offence’, was a mistake for ‘or’. There were traditionally two offences, one of aiding or abetting and the other of doing an act preparatory to the commission of an offence, and it was highly unlikely that the legislature had intended them to be combined into one new offence. 70

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Other examples of cases in which the court concluded that ‘and’ or ‘or’ had been included in error and that the oversight could be corrected are Barker v Barker (1976) 13 ALR 123 at 133 (reference to ‘as a wife and mother’ in s 75(2)(l) of the Family Law Act 1975 (Cth) should be read disjunctively); Re Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609 at 616–17 (power to make an order for proceedings to be in private or to restrict publication of evidence could be used to order both); Green v  R [2000] NTCCA 1; (2000) 133 NTR 1 at [15]–[16] per Angel J and at [51] per Mildren J (‘and/or’ interpreted as ‘and’). See also the cases referred to in the Annexure. For a rejection of the use of the expression ‘and/or’ see  Liam Boyle, ‘“And/or”: Condemnations, Uses and Misuses’ (2013) 87 ALJ 349. Disjunctive Interpretation of ‘and’ and Conjunctive Interpretation of ‘or’ 2.48  The starting point in any consideration of the effect of ‘and’ and ‘or’ are that they are to be given their usual meaning: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 162 ALD 427 at [27], [36]. However, as indicated in 2.46, there is also a group of cases in which the court did not conclude that there had been a printing or drafting error, but in which the court’s reasoning produced a disjunctive effect despite the presence of the word ‘and’, or a conjunctive effect in spite of the presence of ‘or’.

‘And’ to be read as ‘or’ 2.49 In Re Licensing Ordinance (1968) 13 FLR 143 at 147 Blackburn J spoke

of cases: … in which there was a list of items, the items being joined by ‘and’ and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word ‘and’, which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorize the class, as a whole, as a class of alternatives … the word ‘and’ inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect.

Blackburn J cited Associated Newspapers Ltd v  Wavish [1956] HCA 69; (1956)  96 CLR 526 as an example. Section  169 of the Police Offences Act  1928  (Vic) provided that ‘ “obscene” … includes — (a) tending to deprave and corrupt persons whose minds are open to immoral influences; and (b) unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror’. The High Court held that an article could be obscene if the conditions of either para (a) or (b) were fulfilled. The result was that the word ‘and’ gave a cumulative effect to the definition — all the matters mentioned in the paragraphs indicated what was obscene — but a disjunctive or ‘dispersive’ effect was given to the paragraphs by the word ‘includes’. For further examples see the cases referred to in the Annexure. 71

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Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454 illustrates the reasoning that may be employed to give the word ‘and’ disjunctive or dispersive effect. The Full Court of the Supreme Court of Western Australia had to decide whether an Australian Securities and Investments Commission (ASIC) authority purporting to ‘authorise the National Australia Bank Limited and the Receivers … to make an application  … in relation to … Companies in Receivership’ required an application to be made by the bank and the receivers jointly. Malcolm CJ concluded that, as the interests of the bank and the receivers would not necessarily coincide, the ASIC authority should be interpreted as authorising them to apply separately or together (at [53]–[54]). His Honour observed that ‘the purposive approach to interpretation in a statute includes reading “and” for “or” and vice versa if the purpose of the legislation suggests such an interpretation’ (at [23]). The other judges also took account of both context and purpose in concluding that the authority should be interpreted disjunctively, so that either the bank or the receivers could apply: Steytler J at [98]–[99] and McKechnie J at [112]–[115]. In Smith v Papamihail (1998) 88 FCR 80 at 88–9; 158 ALR 451 at 458–9 under a power for a Commission to require a person to give to the Commission all reasonable assistance in connection with the investigation and to appear before a specified member or staff member for examination on oath and to answer questions it was held that the Commission could choose to require a person to do either or both of these activities. Contrast Melbourne City Link Authority v  Telford Pty Ltd [2001] VSCA  54; (2001) 113 LGERA 102 at  [16] per Batt JA where ‘and’ meant ‘and’. But see  also Di Paolo v  Salta [2015] VSCA 230 where the Court of Appeal at [53] noted as a contextual guide whether ‘or’ had been used elsewhere in the legislation under consideration in a disjunctive sense. ‘Or’ to be read as ‘and’ 2.50  Pileggi v  Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107; 79 ALD 1 provides an example of circumstances which compel a conjunctive interpretation of the word ‘or’. In that case reg 17(1) of the Australian Sports Drug Agency Regulations 1990 (Cth) provided that the agency may ask a competitor for a sample ‘orally or by written notice’. Subreg  (2) provided that such a request must state the place and time for provision of the sample. It was argued on behalf of Pileggi that the request for a sample from her, which had been made partly in oral form and partly by written notice, did not comply with reg 17(1). Kenny J of the Federal Court rejected that interpretation of reg 17(1). She stated (at [37]):

… a purposive approach to interpretation would support reading the word ‘and’ for the word ‘or’: and, having regard to … ss 15AA and 46 of the Acts Interpretation Act 1901 (Cth), this approach is to be preferred. 72

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Kenny J did not discern any error or oversight in the language of reg 17(1). Instead, she adopted an interpretation which, rather than being a literal reading of the provision, gave effect to the provision’s underlying purpose. This was that reg 17(1) required that objectively speaking the competitor must have been informed of a request to provide a sample for a drug test at a specified time and place. That requirement had been fulfilled in this instance. For other examples of cases in which the word ‘or’ was held not to have been intended to be confined to a disjunctive meaning, see the cases referred to in the Annexure. In these cases the court reached its conclusion more by reference to context than by any explicit application of the purposive approach. In one case in which it was argued that the word ‘or’ should be interpreted conjunctively, the court refused to do so because it appeared from early drafts of the legislation that the word ‘and’ had been used and that the change to ‘or’ had been deliberate: Gill v Department of Industry, Technology and Resources [1987] VR 681 at 686. In R v  Willingham (No  2) [2012] SASCFC 104 at [35]–[38] it was concluded that the presence of the words ‘or both’ in numerous other South Australian penalty provisions reinforced an initial view that the presence of the word ‘or’ separating two  penalties disclosed an intention to make them alternatives. In Jaber v  Minister for Immigration and Multicultural Affairs [2001] FCA 1878; (2001) 114 FCR 506 at [25] the court read ‘or’ in Art 1(D) of the Convention Relating to the Status of Refugees 1951 as ‘and’, having concluded that not to do so would be contrary to the purpose of the Convention. See also Kouraim v Minister for Immigration and Multicultural Affairs [2001] FCA 1824 at [16]. Statutory Affirmation that ‘or’ is to be Interpreted Disjunctively 2.51  Section 17 of Western Australia’s Interpretation Act 1984 provides:

In relation to a written law passed or made after commencement of this Act, but subject to section 3(3), ‘or’, ‘other’, and ‘otherwise’ shall be construed disjunctively and not as implying similarity unless the word ‘similar’ or some other word of like meaning is added.

Section 3(3) excludes the application of s 17 to provisions made after the commencement of the Act which continue or directly amend, but do not repeal entirely, the text of an existing written law. See  Rapp and Commissioner of State Revenue [2006] WASAT 135; (2006) 63 ATR 15; 43 SR (WA) 203 for an example of an application of the section. Implying Words in Legislation 2.52  There has long been a controversy as to whether implying words into the text of legislation can be a legitimate interpretive technique. If the task of the courts is just to interpret what the legislature has said, there is no room for their adding to, subtracting from, or modifying the words used. There are clear 73

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dicta that indicate that the courts must eschew such an approach. Stephen J commented in Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649: Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no [part] of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons RDC v Newport Corp [1952] AC 189 at 191, ‘If a gap is disclosed, the remedy lies in an amending Act’ and not in a ‘usurpation of the legislative function under the thin disguise of interpretation’.

Lord Simonds’ view was also cited with approval by Gibbs J in Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 12. Slightly qualifying this approach, Lord Mersey, in an oft-cited passage from Thompson v Goold & Co [1910] AC 409 at 420, said: ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’ The notion that there can be circumstances of ‘clear necessity’ has been recognised by courts. For example, if a provision requires something to be done but does not specify the time for doing it, it is sometimes concluded that it is to be done ‘within a reasonable time’: R v  Skurray (1967) 86 WN (Pt 1) (NSW) 1: see  further the cases referred to in the Annexure and Interpretation Acts, 4.44. 2.53  If it is permissible to imply words into legislation as part of the interpretation process, there is also an issue as to the circumstances in which that can be done. This is different from correcting obvious printing or drafting errors, as discussed in 2.45. In those cases, it is apparent on its face that the text does not accurately conform to the actual intentions of the drafter. The more difficult issue that has arisen is where the actual intentions of the drafter have been fulfilled, but the text falls short on giving effect to the underlying purpose or object of the legislation.

In Cooper Brookes (Wollongong) Pty Ltd v  Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151 there are observations that a court may depart from the literal meaning of the words in question where that literal meaning would ‘lead to an incongruous result’ (Gibbs J at 305; 157) or would defeat the objects of the Act (Stephen J at 311; 162) or would be ‘capricious’ or ‘irrational’ (Mason and Wilson JJ at 321; 170). These comments were referred to in Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633 at 644; 132 ALR 40 at 48 per Toohey J, with whom Dawson J agreed at 638; 44. This acceptance that there could be a departure from the words of the legislation where, to use the words of Lord Mersey, there was a ‘clear necessity’ was further developed both in English and Australian courts. Most influential in this development was a statement of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105–6 in which his Lordship 74

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posited that a court might modify the words of an Act if three conditions were satisfied: First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

This statement attracted the particular attention of McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; 38 A Crim R 412. McHugh JA suggested an approach that took account of the contemporary emphasis on legislative purpose. After suggesting that it could be legitimate to give words used inadvertently a ‘strained construction’ to produce an interpretation that was consistent with the purpose of the legislation(see 2.24), McHugh JA commented (at 302; 422): [I]t is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.

The debate that followed from this point both in cases and extra-judicially is set out in detail in previous editions of this book. That debate has now been largely superseded by the decision of the High Court in Taylor v  Owners — Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531; 306 ALR 547 and it is that decision which now determines the Australian position in regard to the implication of words in legislation. High Court Decision in Taylor v Owners — Strata Plan No 11564 2.54 In Taylor v Owners — Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531; 306 ALR 547 the High Court, by a majority of 3–2 (French CJ, Crennan and Bell JJ; Gageler and Keane JJ dissenting), overturned a decision of the New South Wales Court of Appeal that, applying the Diplock approach set out in 2.53, had read additional words into the legislation under consideration. As to the interpretive principles to be applied in reaching this conclusion, French CJ, Crennan and Bell JJ said at [37]–[38]:

Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction … it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or  omitted words) with the effect of expanding its field of operation. … [I]t is possible to point to decisions in which courts have adopted a purposive construction having that effect. … [T]he question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot.

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The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision … It is answered against a construction that fills ‘gaps disclosed in legislation’ … or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’. [citations omitted]

Having made these observations, French CJ, Crennan and Bell JJ added at [39]: … [I]t is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ (Director of Public Prosecutions v Leys [2012] VSCA 304; (2012) 44 VR 1; 296 ALR 96 at 126 [96]) because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise.

French CJ, Crennan and Bell JJ also noted at [40] that in Australian law too great a departure from the statutory text ‘may violate the separation of powers in the Constitution’. 2.55  In their dissenting judgment Gageler and Keane JJ reached the same conclusion as the majority in the New South Wales  Court of Appeal, but without relying on its analysis of earlier Australian decisions or on Lord Diplock’s three conditions. Their Honours said at [65]–[66] in a passage that has come to be frequently cited even though they dissented in the outcome of the case:

Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.’ Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. [citations omitted] 2.56  The decision of the High Court in Taylor appears to have constituted some retreat from the increasingly bolder approach that had manifested itself 76

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with application of the Diplock test. The court did not deny that at times a strained approach to the words used in legislation might have to be adopted to give effect to its purpose (see 2.24). However, it seems to have drawn the line at reading words into or out of an Act in order to give the Act what a court perceives to be its purpose. The words of Gageler and Keane JJ that ‘construction is not speculation, and it is not repair’ summarise the position. This was repeated by Kiefel CJ, Gageler and Nettle JJ in HFM043 v Republic of Nauru [2018] HCA 37; (2018) 359 ALR 176 at [24]: ‘The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.’ Courts must recognise that they are not legislators and if legislation is to be amended the task falls on the legislature not the courts by way of construction of the legislation. Taylor’s case has been referred to very frequently since the judgment was given. For a sample of the more recent of those decisions see  the cases included in the Annexure. When considering the operation of Taylor’s case, it is necessary always to be aware of the issue with which the interpreter is dealing. Mortimer J pointed this out in Regis v Secretary, Department of Health (Cth) [2018] FCA 177; (2018) 161 ALD 471 at [130]: This is not a construction question which presents a need for the addition of words into a statutory provision. Rather, it concerns choices about the scope and operation of an express provision.

Consequences of a Particular Interpretation 2.57  There are numerous cases that show that the courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act. For examples in a particular area of interpretation see the cases discussed in 11.19 relating to determining whether a provision imposes an obligation or is discretionary. In fact, it could be said that it is unusual to find a case in which the court has not taken that approach. However, the language of the statute may prove so intractable that the court is unable to give effect to what it considers to be the evident purpose or object of the legislation. The case that is most frequently cited in support of this general approach is Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151. Mason and Wilson JJ commented (at 320–1; 169–70):

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. The rules [of construction], as D C Pearce says in his Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives 77

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emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the Legislature. On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

The decision in the Cooper Brookes case was given a few days before s 15AA of the Acts Interpretation Act 1901 (Cth) came into operation. Since then the statement of Mason and Wilson JJ has frequently been cited and relied on: see the cases in the Annexure. In considering the application of this approach it is important to bear in mind the caution stated by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at [44] that ‘the likelihood of the absurd or unreasonable consequence actually occurring should also be a consideration’. There is a tendency to postulate an absurdity if a particular interpretation is adopted that can itself be absurd. 2.58  Interpretation by reference to consequences is essentially a shorthand

version of the purposive approach to interpretation. (In Turner v  George Weston Foods Ltd t/a Tip Top Bakeries (Newcastle) [2007] NSWCA 67 at [56] this statement was cited with approval by Campbell JA.) When a court uses one of the adjectives identified by Mason and Wilson JJ to describe a possible interpretation of a statute, it is saying, in effect, that whatever the purpose of the statute, it cannot have been intended to carry that particular meaning. In the words of Jordan CJ in Hall v Jones (1942) 42 SR (NSW) 203 at 208: ‘[A] Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense.’ See also the cases referred to in the Annexure. The approach is applied most obviously in those cases where one interpretation would render a section ineffectual while another would give it a field of operation. The requirement that the court endeavour to give some effect to all provisions of an Act thereby demands that the latter alternative be 78

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adopted: see 2.43 and compare Pearce v Cocchiaro [1977] HCA 31; (1977) 137 CLR 600 at 607; 14 ALR 440 at 445 per Gibbs J. Of much greater significance, however, are the cases in which the choice is between an interpretation that will result in inconvenience, or even injustice or absurdity, and another that avoids such a result. For example, in Ingham v  Hie Lee [1912] HCA 66; (1912) 15 CLR 267, a  Victorian Act was directed at limiting the hours of work of Chinese in factories, laundries, etc, as a protectionist measure for the benefit of other industries. Ah  Chook was found ironing his own shirt in the respondent’s laundry during the proscribed hours. The respondent was charged but acquitted. The court ruled that, where the language of an enactment is susceptible of two constructions, regard must be had to the general object and purpose of the Act, and, if the act done is not within the general purview of the statute, regard may be had to the consequences of either construction. Nettle J in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181 at [100] rejected an interpretation proposed on the basis that ‘[i]t is not to be inferred that the provision was intended to require something which may prove to be impossible or impracticable’. See also SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631 at [98]. 2.59  If one construction will do manifest injustice and the other avoid it, the latter construction should be adopted. As Gibbs J in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350; 6 ALR 271 at 282 put it, ‘where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust’. In Federal Commissioner of Taxation v Smorgon (1977) 16 ALR 721 at 729 Stephen J pursued the same line in suggesting that ‘a construction of a statute which interferes with the legal rights of a subject to a lesser extent and produces the less hardship is to be preferred to another, having the opposite effect’. The approach was encapsulated by the Victorian Court of Appeal in Victoria v R [2014] VSCA 311 at [61]:

… [T]he rules of statutory construction require that statutory text be examined to see if it allows for an interpretative choice which avoids manifest unfairness, legislative redundancy and expropriation of vested rights. High authority makes clear that, in order for legislation to be interpreted as resulting in the expropriation of rights or other manifest unfairness, the legislation must be expressed in terms which unmistakably and unambiguously require that conclusion. The result must be unavoidable. Hence, if at all possible consistently with established principles of statutory construction, interpretative choices must be made which avoid expropriation and other unfair outcomes.

In Lake Macquarie Shire Council v  Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327; [1971] ALR 362 Windeyer J was prepared to set aside his doubts on the question whether the word ‘gas’ in the relevant legislation included liquefied gas in view of the great inconvenience that such a ruling 79

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would cause to local government bodies. Other cases in which this approach to interpretation has been stated include those set out in the Annexure. See also 11.3. Limits of Argument by Reference to Consequences 2.60  Of course, arguments by reference to unsatisfactory consequences are on shaky ground unless a more attractive alternative interpretation of the words used in the legislation is available. See, for example, Walker v Shire of Flinders [1984] VR 409; (1984) 53 LGRA 285; International Writing Institute Inc v Rimila Pty Ltd (1993) AIPC 39,736 at 39,749. In Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 at [6]–[7] the court said:

… In our view, Parliament’s intention was expressed with unambiguous clarity in the language used. The Treasurer was bound to determine the tax payable in accordance with the prescribed formula. The statutory language permits of no other interpretation. Specifically, the language does not permit of an interpretation giving the Treasurer a discretionary power of adjustment of the tax liability. Any unfairness which might be thought to have resulted was the inescapable consequence of the provision as enacted. …

Another difficulty that is sometimes encountered when it is argued that the literal interpretation would produce unsatisfactory and unintended results is that this may be a matter on which opinions can differ. In Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 83 FCR 511; 159 ALR  664, which involved the interpretation of ss  118 and 119 of the Evidence Act 1995 (Cth), Black CJ and Sundberg J expressed those concerns in these words (at 518–19; 670): In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the parliament … [W]e are unable to conclude that the operation of ss 118 and 119 on a literal reading does not conform to the legislative purpose.

(The court’s decision was reversed by the High Court on other grounds: Esso  Australia Resources Ltd v  Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123.) In what circumstances should a court refuse to adopt an interpretation of a legislative provision that is otherwise acceptable on the basis that such an interpretation could also produce an anomalous result? In Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 Campbell J supplied an answer

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to this question. At [36] he referred to the language of Mason and Wilson JJ in the Cooper Brookes case, quoted in 2.57, and the words of Jordan CJ in Hall v Jones in 2.58 and suggested that: From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, it must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.

This comment was reiterated by Campbell JA in Turner v George Weston Foods Ltd t/a Tip Top Bakeries (Newcastle) [2007] NSWCA 67 at [59] and in ACQ Pty Ltd v Cook [2008] NSWCA 161; (2008) 72 NSWLR 318 at [127] with the other members of the Court of Appeal in each case concurring. It was also cited in ConnectEast Management Ltd v Federal Commissioner of Taxation [2009] FCAFC 22; (2009) 175 FCR 110 at [41]. Regard should be had in relation to this approach also of the caution stated by Stone J in  Australian Tea Tree Oil Research Institute v  Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at [44] referred to in 2.57. Interpretation Permitting a Person to Take Advantage of His or Her Own Wrong Resisted 2.61  It is reasonably clear that the courts will resist strongly an interpretation

of an Act that will permit a person to take advantage of his or her own wrong. For example, in Holden v Nuttall [1945] VLR 171 the court was required to take into account, upon an application for possession of leased premises, the question whether an order would cause the lessee  ‘hardship’. Evidence showed that the lessee had acted in a manner specifically designed to enable him to take the benefit of this ‘hardship’ provision. Herring CJ held (at 178) that the word ‘hardship’ should be limited as a matter of construction so as to avoid attributing to the lawmaker the intention of bringing about an injustice or allowing a person to benefit from his or her own wrong. See  also the cases referred to in the Annexure. However, note the limitations on the scope of the approach alluded to by McColl JA in De Marco v  Chief Commissioner of State Revenue [2013] NSWCA 86; (2013) 83 NSWLR 445 at [31]–[41]. In Ciaglia v Ciaglia [2010] NSWSC 341 at [65]–[84] and Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761 at [208]–[209] the court refused to allow a person to invoke the Statute of Frauds to avoid the effect of their own misconduct.

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Interpretation to Ensure Validity and Attainment of Object of Legislation: Ut Res Magis Valeat Quam Pereat 2.62  This approach is used extensively by the courts in the interpretation of deeds and wills. Its application to legislation arises most notably in regard to an interpretation that could render an Act unconstitutional. In such cases the courts will endeavour, where more than one interpretation is possible, to adopt that interpretation which will ensure the validity of the Act: Davies v  Western Australia [1904] HCA 46; (1904) 2 CLR 29 especially at 43 per Griffith CJ. As Mason CJ noted, in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 14; 110 ALR 97 at 103, that approach finds statutory form in s 15A of the Acts Interpretation Act 1901 (Cth).

The effect of s 15A and its equivalents in the Interpretation Acts of the states and territories in relation to the operation of delegated legislation is discussed in D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, [29.6]–[29.7]. The ut res magis valeat quam pereat approach will also result in the courts declining to interpret an Act in such a way that its operation will be negated if there is an alternative interpretation available that will carry out the purpose of the Act: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1022; [1940] 3 All ER 549 at 553–4 per Lord Simon. In Norton v Long [1968] VR 221 Winnecke CJ considered a section of an Act that provided: ‘If any boat to which this Part applies is used as a motor boat upon any Victorian waters — (a) without being registered as required by this Part … the person using the boat as a motor boat shall be guilty of an offence.’ He held that the section should be interpreted as impliedly imposing an obligation to register motor boats. The alternative view that there was no obligation to register would have rendered the prohibition nugatory, thereby defeating the purpose of the Act. See also Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174 at [24] per Maxwell P; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45 at [29]. The same approach will be adopted if the suggested interpretation would produce an obligation that is impossible of performance, thereby vitiating the operation of the Act: Hinton Demolitions Pty Ltd v  Lower (No 2) [1971] 1 SASR 512 at 528 per Wells J. On the other hand, ‘the fact that a particular statutory provision is not easy of application, or that it admits of disputes in its application to the facts of particular cases, is not a reason for saying that it is so unworkable that it should be, in effect, disregarded’: Boxvale Holdings Pty Ltd v Federal Commissioner of Taxation [1989] 2 ATC 4,927 at 4,931 per Wilcox J. For the operation of the ut res magis valeat quam pereat approach generally to delegated legislation, see D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, [30.7]. 82

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PLAIN ENGLISH DRAFTING

Interpretation of Legislation Drafted in Plain English 2.63  In the Commonwealth, the states and the territories, legislative drafting has been influenced, in varying degrees, by the plain English movement. Some statutes have been drafted or redrafted in language that has been deliberately chosen to make them more accessible to users. It can be expected that in time this emphasis on drafting in plain English will have some effect on the techniques that are brought to bear when such statutes have to be interpreted.

For example, in Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343 at 347 it had been argued for the applicant department that ‘payable’ in s  729(2) of the Social Security Act  1991 (Cth) should be read as implying that the person seeking the benefit was qualified for some other benefit which was for some reason not ‘payable’ under the Act. O’Connor J refused to accept this limitation on the language of the subsection. Noting that the Act was drafted in a ‘clear English’ style, she commented: ‘An implication of this policy is that exclusions should not be read in where they are not explicitly stated.’ Similar comments were made by O’Connor J in Re Secretary, Department of Social Security and Diepenbroeck (1992) 27 ALD 142 at 145. See also the comments on the plain English drafting of the Social Security Act 1991 in Blunn v Cleaver (1993) 47 FCR 111 at 127–8; 119 ALR 65 at 81–3; Secretary, Department of Family and Community Services v Draper [2003] FCA 1409; (2003) 79 ALD 394 at [64]; Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at [64]. In Secretary, Department of Social Security v Lowe [1999] FCA 705; (1999) 92 FCR 26; 56 ALD 609 the Full Court of the Federal Court interpreted s 251 of the Social Security Act 1991, which contained an ambiguous expression, by reference to s 52 of the Social Security Act 1949 (Cth) which had been replaced by s 251 and which was unambiguous. The court commented (at [8]): Since it is clear s 251 was not intended to amend the law, but only, ironically enough, to make it simpler to read, the original form of the section may be used to confirm its construction; cf Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518–519 and 523.

In R v Roach [1988] VR 665 at 669–70; (1987) 31 A Crim R 302 at 306–7 Tadgell J made some critical comments concerning the use of plain English in drafting and in legal practice generally. He suggested (at 670; 306–7): Plain English alone achieves nothing. To be useful it must run in tandem with clear thought … The attempted simplification of long-standing, long-understood legislation and ideas contained in it carries its own special difficulties. Thought, ideas and language all feed on their context. The use of ‘plain English’ to amend an existing statute of ancient lineage cannot absolve the draftsman from a careful study of context, both philological and historical. 83

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Tadgell JA repeated some of these comments in Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 445–6, in which he also discussed some of the difficulties associated with the use of ‘must’ and ‘must not’ instead of ‘shall’ and ‘shall not’ in the Planning and Environment Act  1987 (Vic). Ormiston JA was less critical of the plain English movement. Although he agreed with almost all of the specific drafting criticisms made by Tadgell JA, he suggested (at 452) that: The vice, so far, of plain English is not so much in the concept as in its execution. It is no use redrafting statutes unless the person responsible for the redrafting has a complete understanding of what it is that has to be achieved. It is difficult enough to amend existing laws let alone to rephrase and reorganise statutory concepts which have been understood in a particular way over many years. To achieve a satisfactory end a very deep knowledge of the legal concepts is required, in order to achieve simplification of language which does not defeat the objects of the legislature. Moreover ‘plain English’ cannot simplify complex concepts and it is more frequently the need to simplify the concepts that is required rather than the use of ‘modern’ language. Again, well instructed minds can achieve that end but if the concepts are not to be changed, clarity will not always lead to brevity.

The judgment of the third judge, Brooking JA, can be set out in full. He said (at 440): ‘For the reasons given by Tadgell JA this appeal must (I hope I may say without solecism) be dismissed.’ During the 1990s an attempt was made to redraft Australia’s income tax law into plain English. The ‘Tax Law Improvement Project’ did not achieve the results originally intended. As the project progressed it became clearer that the source of the problem was not so much poor drafting as the complex and irrational policy on which the income tax law was based. See R Krever, ‘Taming Complexity in Australian Income Tax’ (2003) 25 Syd LR 467 at 491–7. For some comments on aspects of plain English drafting, see the reports and articles referred to in the Annexure.

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CHAPTER 3

Extrinsic Aids to Interpretation INTERPRETATION BY REFERENCE TO OTHER DOCUMENTS 3.1  It is commonplace to interpret documents by reference to other

documents. Anyone who has studied literature or history is familiar with the process. So are administrators; they know that it can be useful, in the course of interpreting a document, to refer to related documents, or perhaps to the original if the document under scrutiny is a revised version. Unlike many documents, however, there is a wealth of other material relating to legislation. Bills are debated in parliament and records of those debates, especially with the advent of the internet, are readily available. Often an Act has its origins in a report of a committee or other body. The Act in question may have come into existence to enable the government to meet its obligations under an international agreement. It may have been one of many Acts dealing with the same or similar subject matter. A question arises as to the extent to which this extrinsic material can be resorted to in an attempt to resolve difficulties in the interpretation of legislation. This is an issue of considerable significance, since the material may resolve an ambiguity or doubt as to meaning. It may also establish the purpose or object underlying an Act or a provision in an Act and so assist in the interpretation of a provision in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth) and equivalent provisions: see 2.15. The extent to which courts should be permitted to take account of extrinsic aids to interpretation, like the process of interpretation itself, has been widely discussed in Australia. Early in 1983 the Commonwealth Attorney-General’s Department organised a seminar on the interpretation of legislation which followed on from the seminar which it had held two years earlier: see 2.14. Following that first seminar, s 15AA was inserted into the Acts Interpretation Act 1901 (Cth) by s 115 of the Statute Law Revision Act 1981 (Cth). The second seminar focused on the use which should be made of extrinsic materials, such as Hansard, explanatory memoranda and international agreements, in the interpretation of legislation: see  Symposium on Statutory Interpretation, AGPS, Canberra, 1983. Section  15AB of the Acts Interpretation Act  1901, which deals with these matters, was inserted into the principal Act by s 7 of the Acts Interpretation Amendment Act 1984 (Cth). 85

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Both in its underlying philosophy and in its drafting, the section owes something to Arts 31 and 32 of the Vienna Convention on the Law of Treaties (1969): see 2.34. In the years that followed, all states (except South Australia) and the territories enacted provisions based on s  15AB. More recently, the courts have refocused their attentions on the common law principles governing the circumstances in which extrinsic materials may be taken into account as part of the process of interpretation: see 3.5. As a consequence of this and perhaps also as a result of the greater accessibility of extrinsic materials, over the last few years the judgments of courts and tribunals have frequently included references to these materials. For the most complete research and discussion of the use of extrinsic materials for interpretation purposes in Australia see  Jacinta Dharmanda, ‘Outside the Text: Inside the Use of Extrinsic Materials in Statutory Interpretation’ (2014) 42 FL Rev 333; and ‘Using Parliamentary Material in Interpretation: Insights from Parliamentary Process’ (2018) 41 UNSWLJ 4. See also Matthew T Stubbs, ‘From Foreign Circumstances to First Instance Considerations: Extrinsic Material and the Law of Statutory Interpretation’ (2006) 34 FL Rev 103. United States’ Use of Legislative History 3.2  Before turning to the principles that govern the use of extrinsic materials

in Australian courts, a matter of a preliminary nature should be mentioned — the relevance of the United States experience of the use of legislative histories to Australian practice. The use of legislative history in the interpretation of legislation has been the subject of lively debate in the United States for many years. Although extensive use is made of legislative history in the United States, the practice is also the subject of vigorous criticism. Before the more recent development of the use of such material in Australian interpretation practice, Stephen J in Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583 at 600; 22 ALR 439 at 452 observed: The important place which legislative history has assumed this century in the United States seems to me likely to mislead if sought undiscriminatingly to be applied to our own legislation, the product of a legislature operating on the Westminster model.

Although the fundamental differences between the legislative processes of the two countries remain, over the last 30 years or so more often than not governments at both Commonwealth and state levels have lacked upper house majorities. This has meant that governments have had to be more prepared to compromise on the details of bills and to accept opposition and minor parties’ proposals for amendments. Australian legislative processes therefore bear a closer resemblance to United States legislative processes than formerly. For readers who wish to become better acquainted with United States practice on the use of legislative history in the interpretation of legislation, the articles referred to in the Annexure may be of assistance. 86

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PARLIAMENTARY, EXECUTIVE AND RELATED MATERIALS

Common Law Principles Governing Reference to Parliamentary and Executive Materials 3.3  Prior to the enactment of s  15AB of the Acts Interpretation

Act 1901 (Cth) in 1984 and the subsequent enactment of similar provisions in the states (except South Australia) and the territories, there was a degree of uncertainty as to the extent to which, and the purposes for which, reports of parliamentary debates, executive materials such as explanatory memoranda, and reports of commissions and committees, could be used in the interpretation of legislation. These materials were referred to sparingly, and not at all in some courts. The introduction of s  15AB and provisions based on it has resulted in steady increases in the use of parliamentary and executive materials by courts and tribunals, in many instances without express reference to the relevant statutory provision. Common law principles applied in earlier cases 3.4  Prior to the enactment of the provisions relating to use of extrinsic

materials for interpretation purposes, the approach of the courts had been broadly to allow reference to be made to such materials for discovering the purpose of an Act, or the mischief with which it was intended to deal, but not to establish parliament’s intention in relation to a particular provision in order to resolve an ambiguity or doubt as to its meaning. The general view was that such materials might be referred to for the former, but not for the latter, purpose: Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 following Assam Railways and Trading Co Ltd v Inland Revenue Commissioners [1935] AC 445; [1934] All ER Rep 646. However, that view was not universally accepted and there were instances where no reference for any purpose was allowed and other instances where a wider ambit was given to the material. The highpoint of this refusal to take account of material other than the text of the Act was the decision of the High Court in Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 CLR 449; 14 ALR 485. There the court stated that courts would not refer to reports of parliamentary debates for any purpose to aid the construction of a statute. See the comments of Barwick CJ at 457; 490, Gibbs J at 461–2; 493–4, Stephen J at 476–8; 500, Mason J at 470; 505–6 and compare the comments of Murphy J at 479–81; 507–9. This decision resulted in the court placing a meaning on an Act that was directly at odds with what had been said in the parliament was its purpose. This conclusion was influential in the enactment of the legislation requiring courts to have regard to material of the kind vetoed by the court. Despite the ruling in the Charles Moore case, courts in all jurisdictions, even before the legislative changes mentioned above, had regard on occasions to parliamentary materials such as explanatory memoranda and second reading speeches to ascertain the mischief with which legislation was intended to deal. 87

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Reports of law reform commissions, royal commissions, parliamentary committees, interdepartmental committees and other governmental committees sometimes suggest the enactment of legislation to deal with the matters they have investigated. There were many examples of cases in which, without legislative sanction, courts admitted such reports, primarily for the purpose of discovering the mischief or defect for which the law did not provide. For a detailed overview of these earlier decisions reference should be made to earlier editions of this book. Current application of common law principles: ‘the modern approach to statutory interpretation’ 3.5  With the enactment, in all jurisdictions except South Australia, of

statutory provisions governing the use of parliamentary and executive materials in the interpretation of legislation, the focus shifted to the operation of those provisions: see  3.15–3.25. However, the common law principles dealing with the use of such materials continued to have a role, notwithstanding the enactment of those provisions. See the examples set out in the Annexure. In 1997 the High Court affirmed that the common law permits the courts to refer to extrinsic materials such as reports of law reform bodies to ascertain the mischief to be remedied by a statute. In a much-quoted passage in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 634–5 Brennan CJ, Dawson, Toohey and Gummow JJ observed that: … the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, 315]. Instances of general words in a statute being so construed by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320–1].

Following the High Court’s decision in the CIC Insurance case, Australian courts and tribunals have regularly treated these principles, characterised as ‘the modern approach to statutory interpretation’, as encapsulating their 88

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fundamental responsibilities in relation to the interpretation of legislation. An early example that is often cited is Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85; 149 ALR 623, in which an explanatory memorandum was consulted to disclose the particular mischief the legislation was enacted to remedy: at 99–100; 631–2 per Toohey, Gaudron and Gummow JJ and at 112–13; 641–2 per McHugh J. Second reading speeches of ministers are commonly relied on to identify the mischief, which in turn has supplied the context for the application of the modern approach. The usual way in which courts deal with the interpretation of legislation is to recite the passage above from CIC Insurance and then proceed to analyse and apply the legislation. The recitation of examples serves no useful purpose but see the articles referred to in the Annexure for further analysis. In the years since the High Court’s decision in the CIC Insurance case, Australian courts and tribunals have become accustomed to readily admit extrinsic materials tendered by parties to litigation. In Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [97] Heydon and Crennan JJ observed that such materials were routinely examined as part of the process of legislative interpretation. Section 15AB of the Acts Interpretation Act 1901 (Cth) and its equivalent state and territorial provisions were cited in support: see 3.15–3.25. More commonly in recent years, however, the CIC Insurance case has been cited in support, or ‘the modern approach to statutory interpretation’ has been mentioned, or no authority has been relied on in support of the practice at all. The move to textualism — and back 3.6  Another development since the decision in CIC Insurance Ltd

v  Bankstown Football Club Ltd has been greater willingness on the part of Australian courts and tribunals to articulate the principles of legislative interpretation upon which they rely. When the High Court did this in Alcan (NT) Alumina Pty Ltd v  Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1 a question arose as to whether any modification of the principles set out in the CIC Insurance case had occurred. In the course of their reasoning Hayne, Heydon, Crennan and Kiefel JJ observed at [47]: This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself … Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text … The language which has actually been employed in the text of legislation is the surest guide to legislative intention … The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision …, in particular the mischief … it is seeking to remedy. [citations omitted]

In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204 the High Court re-emphasised the importance of the statutory text in the interpretive process. At [33] French CJ and Gummow, 89

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Hayne, Crennan and Kiefel JJ concluded that, in the decision appealed from, the Full Court of the Federal Court had taken account of what had been said in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; 70 ALR 225 (see  3.26), but had not considered the actual terms and operation of an applicable statutory provision, adding ‘it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation’. In Baini v  R [2012] HCA 59; (2012) 246 CLR 469; 293 ALR 472 at [14] French CJ, Hayne, Crennan, Kiefel and Bell JJ observed: As the [High] Court said in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [12], ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘there is no substitute for giving attention to the precise terms’ in which that provision is expressed.

These various dicta led to a view being advanced that the High Court was retreating from the broad contextualist approach that underlay the modern approach to statutory interpretation as set out in CIC Insurance. See, for example, the discussion in Minister Administering the Crown Lands Act v  New South Wales  Aboriginal Lands Council [2008] HCA 48; (2008) 237 CLR 285; 249 ALR  602 at [7] per Kirby J; Sydney Local Health Network v  QY and QZ [2011] NSWCA 412; (2011) 83 NSWLR 321 at [64]–[72] per Campbell JA; SM v R [2013] VSCA 342; (2013) 46 VR 464 at [50] per Weinberg JA. And see  the analysis of the position by J J Spigelman, ‘The Intolerable Wrestle: Developments in Statutory Interpretation’ (2010) 84 ALJ 822 and the description of the development of the textualism approach in the 8th edition of this book. 3.7  Later dicta do not support the view canvassed in these decisions. The

passages quoted from SZTAL v Minister for Immigration and Border Protection at 2.1 make it clear that the ‘modern approach’ is that which should be followed. The position is encapsulated by Allsop CJ in the following passage from Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62; (2017) 251 FCR 40; 345 ALR 570 at [3]: In reaching a view about the meaning of these words and this phrase and how they operate in a coherent and cohesive way, it is paramount to recognise the fiscal and commercial context in which the provisions … are operating. This is not to put to one side or to diminish the necessity to begin and end with the words of the statute. Nor is it to seek to find a purpose of the Division outside its words. To begin and end with the words of the statute does not reflect a call to narrow textualism; it is the recognition that, ultimately, it is the words used by Parliament which frame the question of meaning, and which will provide the answer to that question of meaning. Context, however, is indispensable, whether as an explicit or implicit consideration. It gives the place, the wholeness and the relational reality to words; it helps prevent linear thinking and sometimes beguilingly simple and attractive logic with words driving meaning to unrealistic and impractical ends; and it helps ascribe 90

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meaning conformable with commonsense and convenient purpose gained from the relevant part of the statute as a whole …

A similar view had been stated by Allsop CJ, White and Wigney JJ earlier in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; (2014) 222 FCR 13; 312 ALR 254 at [75]: … Often, the relationship between context (including pre-enactment history), purpose and text will be illuminated by the subject matter of the statute, as well as by the approach to expression by the drafter. Statutes drafted in broad simple language that set a principled framework for a well-known body of law may well be approached with an eye to context, and especially pre-existing law. On the other hand, in legislation that is closely structured and finely worded, the importance of the text may be paramount: Joffe v  R; Stromer v  R [2012] NSWCCA 277; (2012) 82 NSWLR 510 at 518 [36]. Nevertheless, even in closely structured and finely worded legislation …, context and purpose may be important. Nothing in Alcan [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27] or [Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257] requires a decision about the clarity of meaning of text without reference to context and purpose. What was said in CIC Insurance Ltd v Bankstown Football Club Ltd [[1997] HCA 2; (1997) 187 CLR 384; 141 ALR 618] … remains binding authority.

None of that is to say that the words of the legislation are not to be the guiding principle. The interpretation must end with the text. In Baini v  R, above 3.6, the point was made at [14] that ‘[p]araphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text’. It was mentioned at 2.12 that references to the modern approach to statutory interpretation are often accompanied by a reference to s 15AA of the Acts Interpretation Act  1901 (Cth) or a state or territorial equivalent. See  the examples there cited. As discussed at 2.17, s  15AA requires the application of a purposive construction at the initial stage of interpretation, rather than when it has been determined that more than one construction is open. This is a characteristic that is shared with the modern approach to statutory interpretation. Common law principles applied in South Australian courts 3.8  The common law practice in South Australia in relation to extrinsic

materials deserves particular mention as that state does not have a provision equivalent to s 15AB of the Acts Interpretation Act 1901 (Cth). For many years, until 1996, the picture was somewhat confused. However, the current position in South Australia is that, in accordance with the decision of the Full Court of the Supreme Court in Owen v South Australia (1996) 66 SASR 251, reference may be made to reports of parliamentary debates both to ascertain the mischief and to discern the underlying purpose of the legislation 91

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in question: see  the judgment of Cox  J at 255–6 (with whose conclusions Prior J concurred at 257). In Owen Cox J treated ‘mischief ’ and ‘purpose’ as interchangeable concepts. In Moloney v Motor Accident Commission [2013] SASCFC 58; (2013) 117 SASR 189 at [89]–[90] reference was made to the minister’s statement of purpose although it was made in Committee, rather than in the course of the minister’s second reading speech, as is more common: see [91]. See further the decisions following a similar approach that are set out in the Annexure. Uses of Extrinsic Materials in the Interpretive Process 3.9  In their joint judgment in the CIC Insurance case quoted in 3.5,

Brennan CJ, Dawson, Toohey and Gummow JJ instanced two common law uses of extrinsic materials in the interpretive process: • to assist with establishing the state of the law before the enactment of the legislation; • to discover the mischief intended to be remedied. Allsop P, in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] put it as follows: … [A]s is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions of the Act, as a whole, are to be understood.

As to the first use of extrinsic materials, in Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1975] AC 591 at 646; [1975] 1 All ER 810 at 843 Lord Simon of Glaisdale observed that courts could refer to those materials to ascertain the ‘matrix of facts’ upon which legislation was based. That interpretive principle was expressly endorsed in Re Maurice’s Application; Ex parte Attorney-General (NT) (1987) 18 FCR 163 at 171; 77 ALR 27 at 35 by Beaumont J. Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329; (2002) 121 FCR 251; 197 ALR 35 illustrates the application of the principle. In that case the Full Court of the Federal Court considered evidence of historical events concerning Palestinian refugees at the time of the making of the Convention Relating to the Status of Refugees 1951, to assist it in the interpretation of Art 1(D) of the Convention. Another example of this first use of extrinsic materials is Habib v Nationwide News Pty Ltd [2010] NSWCA 34. At [180] the court explained that to set in context s 84 of the Evidence Act 1995 (NSW), which dealt with the inadmissibility of confessions, it was 92

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appropriate to refer to the common law position on the admissibility of confessions. See  also The Ship ‘Gem of Safaga’ v  Euroceanica (UK) Ltd [2010] FCAFC 14; (2010) 182 FCR 27; 265 ALR 88 at [76]–[77] per Besanko J. Although Brennan CJ, Dawson, Toohey and Gummow JJ in the CIC Insurance case countenanced the use of extrinsic materials to discover the mischief with which the legislation is concerned they made no mention of using such materials to ascertain the underlying purpose or object of a provision. Discovery of the mischief involves a more limited inquiry than ascertainment of the purpose or object, but there is of course a great deal of overlap between the two interpretive processes. Sometimes they have been treated as interchangeable concepts. For example, see Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; (1975) 132 CLR 323 at 332; 6 ALR 171 at 179 per Murphy J; Owen v South Australia (1996) 66 SASR 251 at 255–6; 87 A Crim R 213 at 217–18 per Cox J, discussed in 3.8. It is therefore a small step for courts to ascertain the purpose or object of a provision by the use of extrinsic materials. 3.10  Since the CIC Insurance case, extrinsic materials have come to be regularly used to identify the purpose or object of a provision. In Unions NSW v New South Wales [2019] HCA 1 the judgments of the court referred to an independent panel’s report, a parliamentary committee’s report and the minister’s second reading speech in the process of seeking the purpose of the legislation. For other examples of making reference to the second reading speech of a minister and an explanatory memorandum to identify the purpose of a provision, see the cases referred to in the Annexure.

In using context it is of use to have regard to the statement of Edelman J in the Unions NSW case above at [169]: A search for the purposes or intended aims of the legislature involves a construct used to determine the meaning of the words used by that legislature. It is not a search for subjectively held purposes of any or all of the members of the Parliament that passed the law. Rather, it is a construct that accords with our conventions for understanding language, which are the techniques by which we understand words. The same language techniques require a concurrent consideration of the meaning of words used in their context together with the purpose for which the words are used, in the sense of their intended aim. Hence, purpose must be identified by the same context, and hence the same extrinsic materials, that elucidate the meaning of the words. [citations omitted]

However, it is also important to bear in mind that extrinsic materials cannot be relied upon to fill a gap in a statute itself: Director of Public Prosecutions v Walters [2015] VSCA 303; (2015) 49 VR 356 at [57]. Constitutional Convention Debates and Referendum Materials 3.11  The use of Convention Debates and referendum materials in the interpretation of the Commonwealth Constitution has been considered in several cases and has been the subject of some commentary. See  the Annexure. 93

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Common Law Principles Governing Reference to International Agreements General approach: Teoh’s case 3.12  The common law principles governing the interpretation of domestic legislation that incorporates the text of an international agreement or part thereof are discussed in 2.30–2.32. In the interests of certainty and uniformity, Australian courts have consistently applied the principles that would govern the interpretation of the international agreement to the incorporated provisions.

There is a longstanding common law principle that if an Act purports to give effect to an international agreement, the court is at liberty to look at that agreement in an endeavour to resolve any uncertainty or ambiguity in the Act itself: Yager v R [1977] HCA 10; (1977) 139 CLR 28 at 43–4; 13 ALR 247 at 257 per Mason J; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450 at 458; 57 ALR 167 at 181. An agreement may be referred to although not mentioned in the Act to be interpreted: The Banco; Owners of the Motor Vessel Monte Ulia v Owners of the Ship Banco [1971] P 137 at 151; [1971] 1 All ER 524 at 531–2 per Lord Denning MR, at 157; 537 per Megaw LJ, at 161; 540 per Cairns LJ. It can also be referred to when the statute has been enacted before ratification of the agreement: D & R Henderson (Manufacturing) Pty Ltd v Collector of Customs (NSW) (1974) 48 ALJR 132 at 135 per Mason J. See further 3.22. More recently, the courts have also taken international agreements into consideration in the process of interpreting legislation even though the legislation is not directed to giving effect to the agreement. International obligations may arise under agreements that Australia has signed, but which have not been enacted into Australian domestic law: Dietrich v  R [1992] HCA 57; (1992) 177 CLR 292 at 305; 109 ALR  385 at 391 per Mason CJ and McHugh J, at 360; 434 per Toohey J. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; 110 ALR 97 at 123, citing English authority, Brennan, Deane and Dawson JJ said: We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty. [citation omitted.]

Mason CJ and Deane J referred to this comment when, in Minister for Immigration and Ethnic Affairs v  Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287; 128 ALR 353 at 362, they said: … Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law. 94

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It is accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with the established rules of international law [Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68–9, 77, 80–1]. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the previous paragraph should be stated so as to require the courts to favour a construction, as far as the language of the statute permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

This important principle of interpretation has since been accepted in many cases. For examples see the cases in the Annexure. See also M Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes’ (1993) 16 UNSWLJ 363; and 5.24. The application of the Teoh principle 3.13 The Teoh principle of interpretation was given extra-judicial support by

the Chief Justice of New South Wales: see J J Spigelman, ‘Access to Justice and Human Rights Treaties’ (2000) 22 Syd LR 141. It was suggested at 149 that the concept of ambiguity in this context applied ‘to any case of doubt as to the proper construction of a word or phrase’. In contrast, in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 at [65], which concerned the mandatory administrative detention of unlawful non-citizens under the Migration Act 1958 (Cth), McHugh J expressed serious reservations about the Teoh principle of interpretation. He said: Given the widespread nature of the sources of international law under modern conditions, it is impossible to believe that, when parliament now legislates, it has in mind or is even aware of all the rules of international law … In Minister for Immigration and Ethnic Affairs v Teoh, counsel for the minister told this court that Australia was ‘a party to about 900 treaties’.

However, McHugh J added that the Teoh principle of interpretation ‘is too well established to be repealed now by judicial decision’. Kirby J countered (at [167]): … McHugh J appears to adopt an interpretation of detention legislation that implies that the subjective intentions of the legislators must prevail … I would reject such an approach. Today, legislation is construed by this court to give effect, so far as its language permits, to its purpose … This is an objective construct. The meaning is declared by the courts after the application of relevant interpretive principles.

A few days after the Al-Kateb decision, in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; 209 ALR 182 Gleeson CJ and Kirby J considered the 95

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relevance of the International Covenant on Civil and Political Rights (1966) (ICCPR) and the First Optional Protocol to the interpretation of s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The ICCPR had been signed by Australia in 1972 and ratified in 1980. The Protocol had been acceded to in 1991. Gleeson CJ concluded that the qualification referred to in the first paragraph of the extract from the judgment of Mason CJ and Deane J in Teoh, above, applied, with the effect that s 7(1)(d) of the Act should not be interpreted by reference to the ICCPR. He observed (at [19]): The proposition that the ICCPR can control or influence the meaning of an Act of the Queensland Parliament of 1931 is … difficult to reconcile with the theory that the reason for construing a statute in the light of Australia’s international obligations, as stated in Teoh, is that Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

Kirby J disagreed. He stated (at [245]): The notion that Acts of Parliament in Australia are read in accordance with the subjective intentions of the legislators who voted on them is increasingly seen as doubtful … It does not represent the purposive approach to legislation now followed by this court. The purpose postulated in that meaning is an objective one, derived from the living language of the law as read today. It is not derived from the subjective intentions of parliamentarians held decades earlier, assuming that such intentions could ever be accurately ascertained. [cf 2.3]

The other Justices did not enter the debate. In McGee v  Gilchrist-Humphrey [2005] SASC 254; (2005) 92 SASR 100 the Full Court of the Supreme Court of South Australia had to interpret the Royal Commissions Act 1917 (SA). At [64]–[77] Perry J considered whether reference should be made to the ICCPR. He concluded at [78]–[79] that, if the underlying rationale of the Teoh principle of interpretation was as stated by Mason CJ and Deane J in their joint judgment in that case, it was difficult to justify reference to the ICCPR in the interpretation of the earlier Act. See further L, G v Minister for Families and Communities [2012] SASCFC 72; (2012) 113 SASR 152 at [105]–[109] per Stanley J; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; 195 ALR 502; Amohanga v Minister for Immigration and Citizenship [2013] FCA 31; (2013) 140 ALD 68 at [32]. The matter cannot be regarded as settled when regard is had to the decisions referred to in 3.12 that follow the Teoh decision. See further W Lacey, ‘A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam’ (2004) 26 Syd LR 131. Constitution and international agreements 3.14  As to the interpretation of the Commonwealth Constitution by reference to international treaties and principles of international law, it seems that international law cannot direct that interpretation but it is open to have regard to it: see the cases and commentary in the Annexure. 96

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Section 15AB and Equivalent Provisions 3.15  The Commonwealth, each of the states (except South Australia) and the territories enacted legislation substantially altering the common law rules as to the use of parliamentary and executive materials and international conventions in the interpretation of statutes and delegated legislation as extant prior to 1984. Section  2 of the Acts Interpretation Amendment Act 1984 (Cth) makes s 15AB applicable to all Acts, whether passed before or after the commencement of that Act. The section applies in the interpretation of delegated legislation made under a Commonwealth Act, as well as to Commonwealth Acts themselves: Legislation Act  2003 (Cth) s  13; Acts Interpretation Act 1901 (Cth) s 46; and see 2.15.

Section 15AB provides: (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer; (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted; (c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted; (d) any treaty or other international agreement that is referred to in the Act; (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; (f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House; 97

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(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. (3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Section 15AB applies specifically to the Corporations Act 2001 (Cth): see s 5C of the 2001 Act. Since 1985 the dates of the minister’s second reading speech in the House of Representatives and the Senate (see para (2)(f) above) have been given in a note at the end of each Act. 3.16  The state and territorial provisions based on s 15AB are as follows:

• • • • • • •

ACT: Legislation Act 2001 ss 141–143; NSW: Interpretation Act 1987 s 34; NT: Interpretation Act 1987 s 62B; Qld: Acts Interpretation Act 1954 s 14B; Tas: Acts Interpretation Act 1931 s 8B; Vic: Interpretation of Legislation Act 1984 s 35(b); WA: Interpretation Act 1984 s 19.

Except for the Australian Capital Territory and Victorian provisions, which are dealt with in 3.23–3.25, these sections are in substantially identical terms to s 15AB. They apply to all laws, whether enacted or made before or after the date of commencement of each provision.1 They also apply in the interpretation of delegated legislation made under Acts, as well as to Acts themselves.2 The New South Wales provision, however, does not apply to an instrument that is not a statutory rule, the interpretation of which is still governed by the common law: Saggers v Sydney Market Authority (1988) 66 LGRA 42 at 44. For the purposes of applying s 14B of the Queensland Act to statutory instruments, see the special definition of ‘extrinsic material’ in the Statutory Instruments Act 1992 (Qld) s 15. 1. ACT s 4(1); NSW s 5(1); NT s 3(1); Qld ss 2, 6; Tas s 4(1); Vic s 4(1)(a); WA s 3(1). 2. ACT Legislation Act  2001 s  136; NSW s  34; NT s  4; Qld Statutory Instruments Act 1992 s 14(1); Tas s 4(1); Vic s 35(b); WA s 19. 98

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Operation of s 15AB and Equivalent Provisions Circumstances in which the section may be used 3.17  Under s  15AB and its counterparts, any material outside the Act (including the various kinds of material listed in subs (2)) may be used to discover the underlying purpose or object and then to confirm that the ordinary meaning was intended. In other words, extrinsic aids may be taken into account even where the provision is ‘clear on its face’: Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 at 250; 55 ALR 697 at 706–7 per Wilcox J; NAQF v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456 at [67]–[69]. This approach was also adopted by the Full Court of the Federal Court in Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377, which was an appeal against a decision of the Administrative Appeals Tribunal. The Full Court commented (at 383–4):

The argument that the Tribunal was in error in giving consideration to the explanatory notes was based on the applicant’s contention that the words ‘or otherwise modified’ in item 15.08 were not ambiguous or obscure nor, if given their ordinary meaning, would it lead to a result that was manifestly absurd or unreasonable. But it is plain that, to limit the use of extrinsic material to such circumstances — circumstances obviously referable to para (1)(b) of s 15AB of the Acts Interpretation Act 1901 — is to deprive para (l)(a) of that section of any operation.

However, the wording of s  15AB(1)(a) indicates that if the provision under consideration is clear on its face, extrinsic materials may only be used to confirm the ordinary meaning. In other words, extrinsic materials may be referred to, but they cannot alter the interpretation that the court, without reference to those materials, would place upon the provision. This was confirmed by Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416 at 420, in which all members of the High Court in a joint judgment said: Reliance is also placed on a sentence in the second-reading speech of the Minister when introducing the [Builders Labourers’ Federation (Cancellation of Registration – Consequential Provisions) Act 1986 (Cth)], but that reliance is misplaced. Section  15AB of the Acts Interpretation Act  1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case.

See also ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564 at 568; 106 ALR 257 at 261–3; Moody v  French [2008] WASCA 67; (2008) 36 WAR 393 at [49]. A similar comment was also made in relation to s  34 of the Interpretation Act 1987 (NSW), the New South Wales equivalent of s 15AB, in Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 at 396. 99

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As McHugh J, with whose judgment Toohey J agreed, pointed out in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 21; 100 ALR 193 at 207, the terms of s 34 and, by implication, those of s 15AB and other equivalent provisions require that, for the purpose of consideration of any material not forming part of the Act, the ‘ordinary meaning’ of a provision is the ordinary meaning conveyed by the text, taking account of its context and its underlying purpose or object. See also Yougarla v Western Australia (1998) 146 FLR 128 at 143–4. A view of the effect of s  15AB(1)(a) contrary to that offered here was expressed by Madgwick J in Parrett v Secretary, Department of Family and Community Services [2002] FCA 716; (2002) 124 FCR 299; 69 ALD 359 at [32]. The view of Madgwick J was referred to in Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 at 286. For an example of a case in which extrinsic materials were referred to in support of a conclusion independently arrived at, see Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147; 207 ALR 687 at [121]–[124] per Tamberlin, Sackville and Finn JJ. The issue forms less importance now in view of the modern approach to statutory interpretation discussed previously and the broad approach taken by the courts to the material that may be used in determining the context in which an Act is to operate. Provision must be ambiguous 3.18  Under the statutory provisions, in order that a reference to extrinsic

materials may have the potential to change an interpretation of legislation which would otherwise have been arrived at, it is necessary for a court to conclude that one of the conditions in s 15AB(1)(b)(i) or (ii) has been met. That means the court must conclude, without taking account of any materials not forming part of the Act, that the provision in question is ‘ambiguous’ or ‘obscure’ or that, taking account of its context and underlying purpose or object, the ordinary meaning leads to a result that is ‘manifestly absurd’ or ‘unreasonable’: NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456 at [67]–[72]. This is a limitation on the operation of s 15AB compared with s 15AA: see 2.17–2.20. It is also a greater limitation than the common law now requires. In some cases the court has considered the extrinsic material and then concluded that it cannot assist because the words are not ‘ambiguous’ or ‘obscure’ and that giving the words their ordinary meaning does not lead to a ‘manifestly absurd’ or ‘unreasonable’ result. See, for example, Amos v Brisbane City Council [2005] QCA 433; [2006] 1 Qd R 300 at [28]–[32] per Muir J. However, there are cases where the term ‘ambiguous’ has been broadly interpreted and regard has been had to material beyond the legislation: see the cases referred to in the Annexure. It is suggested that too much should not be made of the requirement that there be ambiguity before regard can be paid to extrinsic materials. As long 100

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ago as 1905 O’Connor J in Bowtell v Goldsbrough Mort & Co Ltd (1905) 3 CLR 444 at 456–7 said: It has been contended in this case that an ambiguity must appear on the face of a Statute before you can apply the rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a Statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter.

This passage was referred to by Spigelman CJ in R v  Sharma (2002) 54 NSWLR 300 at [55] which was in turn cited by a Full Court of the Federal Court in CPB Contractors Pty Ltd v  Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [49]. If a court finds assistance in the interpretation process by having regard to extrinsic materials, s 15AB and its counterparts are unlikely to constrain it. Extrinsic material and purpose 3.19  Section 15AB makes no explicit mention of use of extrinsic materials

to ascertain the purpose or object of a provision. Indeed, s  15AB(1)(a) and (b)(ii) both contain an inference that the underlying purpose or object will have already been established when the possible application of those provisions is considered. However, the purpose or object of a provision may be sought in extrinsic materials. In Federal Commissioner of Taxation v  Ryan [2000] HCA 4; (2000) 201 CLR 109; 168 ALR 704 the respondent taxpayer presented certain extrinsic materials in support of arguments which were not accepted by the majority of the High Court. Kirby J, who dissented as to the result of the appeal, observed at [80]: In the time of Batagol [[1963] HCA 51; (1963) 109 CLR 243], it would have been unthinkable for the parties to have referred to, let alone relied on, the Ligertwood Committee’s report which interposed itself between the date of the decision of the Taxation Board of Review and the decision of this Court. Receiving the Second Reading Speech of the Treasurer in 1954 to help understand the purpose of the amendment to s 204 of the Act would have been rejected out of hand. Yet nowadays courts, including this Court, regularly accept and consider such materials. That action has legislative endorsement.

In Moradian v  Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590; (2004) 142 FCR 170; 81 ALD 565 at [35] Gray J explained how s 15AB permits the use of extrinsic materials to ascertain the purpose or object underlying a provision: It may … be accepted that the purpose or object of s 51A(1) of the Migration Act [(1958 (Cth)] was that identified by the second reading speech in support of the bill by which the Minister sought to introduce s  51A(1) as being to 101

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overcome the decision of the High Court in [Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57]. It may be accepted that s  51A(1) is an ambiguous provision … and that therefore resort can be had to extrinsic materials pursuant to s  15AB of the Acts Interpretation Act.

This analysis is strictly in accordance with the terms of s  15AB. Unlike s 15AB(1)(a) and (b)(ii), which suggest that the underlying purpose or object will have been taken into account before they come into play, s 15AB(1)(b)(i), which permits consideration of extrinsic material to resolve an ambiguity or obscurity, makes no reference to underlying purpose or object. In contrast, when s  15AB(1)(b)(i) is applicable, the purposive approach mandated by s 15AA is brought into play later in the interpretive process so that, by reference to an underlying purpose or object disclosed by the extrinsic material, the ambiguity or obscurity may be resolved. This analysis notwithstanding, it has been suggested that s 15AB does not permit reference to extrinsic material to establish the purpose or object of a provision: NAQF v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456 at [65]–[72]. See the comments in Worsley Timber 2000 Pty Ltd (in liq) v Commissioner of State Revenue [2007] WASC 155; (2007) 69 ATR 771 at [349]–[354]. The reasoning in the previous paragraph depends upon a conclusion that the provision in question is ‘ambiguous or obscure’. In contrast, at common law under the principle in the CIC Insurance case, extrinsic material is admissible at the initial stage of the interpretive process. This includes using such material to establish the purpose or object of a provision: see 3.9–3.10. Uniform legislation 3.20  If a statute under consideration was enacted as part of a uniform scheme with legislation in other jurisdictions, it may be useful to refer to reports of parliamentary debates and explanatory memoranda from the other jurisdictions in addition to those of the particular jurisdiction. Subject to meeting one of the preconditions to admissibility as described above, this is permitted by the open-ended definition of material not forming part of the Act which may be considered under s 15AB and equivalent provisions.

In CBFC Ltd v Pearce (1993) 112 FLR 478, for example, Gallop J of the Australian Capital Territory Supreme Court, faced with an ambiguous term in s 5 of the Credit Act 1985 (ACT), referred to an explanatory statement which accompanied the Australian Capital Territory legislation and found that, together with New  South Wales and Victorian legislation, the Australian Capital Territory Act was part of a uniform credit laws scheme. In consequence, in the interpretation of the Australian Capital Territory legislation, his Honour was able to derive assistance from reports of statements made by the New South Wales Minister to the New South Wales Parliament. See also Thompson v Byrne [1999] HCA 16; (1999) 196 CLR 141; 161 ALR 632 102

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at 642–3 where Gleeson CJ, Gummow, Kirby and Callinan JJ referred to a report of the Law Reform Commission that was concerned with Australian Capital Territory laws, in the process of interpreting Victorian legislation and Seabay Properties Pty Ltd v Galvin Construction Pty Ltd [2011] VSC 183 at [119](g) where the court concluded that the second reading speech of a New South Wales minister provided useful insights into the operation of a Victorian Act. Other comments on the section 3.21  Wilcox J observed of s 15AB in Ametex Fabrics Inc v C & F Fabrics Pty Ltd (1992) 38 FCR 415 at 424; 111 ALR 565 at 574 that ‘the cases referred to in subs (2) are mere particularisations of the general principle enunciated in subs (1)’. In Federal Commissioner of Taxation v Murray (1990) 21 FCR 436 at 448–9; 92 ALR 671 at 684 Hill J made a similar comment.

In Waller v  Hargraves Secured Investments Ltd [2012] HCA 4; (2012) 245 CLR 311; 285 ALR 41 Heydon J noted at [61] that the trial judge had relied on a statement in a minister’s second reading speech on a bill which, when enacted, amended the section under consideration. The minister’s comments related to the meaning of the provision that the bill was amending. Heydon J observed: Remarks by a Minister after legislation has been enacted, if receivable at all under s 34 of the Interpretation Act 1987 (NSW) [the equivalent of s 15AB], must have very little weight compared with those made before the legislature enacted it.

It should be noted that the list of material to which regard might be had that is set out in s 15AB and its counterparts is not expressed to be exclusive. It is thus open to a court to seek guidance from whatever might seem to it to be an appropriate source. Relevance and authority will, of course, be important considerations in choice of assistance. It is suggested in Jacinta Dharmananda, ‘Drafting Statutes and Statutory Interpretation: Express or Assumed Rules?’ (2019) Monash ULR (forthcoming) that additional items to which reference can on occasion usefully be made are the manuals and directions issued by the Offices of Parliamentary Counsel in the various jurisdictions. These set out assumptions and rules that are followed by drafters when preparing legislation. See the reference to such material by a Full Court of the Family Court of Australia in Eckett v  Eckett [2010] FamCAFC 39; (2010) 237 FLR 324 at [73]. Interpretation by Reference to International Agreements Under s 15AB and Equivalent Provisions 3.22  Under s  15AB, if the Act refers to a treaty or other international agreement, and if the provision under consideration is ‘ambiguous’ or ‘obscure’ or, taking into account its context and the underlying purpose or object of the Act, leads to a ‘manifestly absurd’ or ‘unreasonable’ result, 103

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consideration may be given to the text of the agreement under para (2)(d) to determine the meaning of the provision under para (1)(b). The text of the agreement is also admissible to confirm the ordinary meaning conveyed by the provision, taking into account both its context and the underlying purpose or object of the Act: para (1)(a). As discussed in 3.12–3.14, at common law reference may be made to an international agreement to ensure that, so far as its language permits, legislation is interpreted in conformity with Australia’s international legal obligations. The common law principle applies although no reference has been made to the agreement in the Act and even when the statute was enacted before ratification of the agreement. That is also the case under s 15AB. If no reference is made in the Act to the agreement, but the circumstances are otherwise as described in the previous paragraph, the agreement may be referred to under the terms of s 15AB(1). In Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112; 103 ALR 565 the Full Court of the Federal Court considered whether it was permissible to use the Brussels Notes as an aid to interpretation of the Customs Tariff Act 1967 (Cth). These were explanatory notes that had been prepared by a committee established by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs, Brussels, 1950. Neither the Brussels Notes nor the 1950 Convention was mentioned in the 1967 Act. Beaumont J, with whose judgment Lockhart and Gummow JJ agreed, held (at 120; 573) that, although it might be permissible to refer to the Brussels Notes if the statute was ambiguous, the Notes could not be used to create an ambiguity in the text of the statute and then to resolve it. See also Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377 (another case involving the use of the Brussels Notes). Australian Capital Territory Equivalent of s 15AB 3.23  The Australian Capital Territory equivalent of s  15AB of the Acts Interpretation Act  1901 (Cth) — ss  141–143 of the Legislation Act  2001 (ACT) — shares most of the features of s 15AB, with the important difference that there are no limits as to the circumstances in which extrinsic material may be considered. Compare 3.17–3.19.

Section 141(1) provides: ‘In working out the meaning of an Act, material not forming part of the Act may be considered.’ See the definition of ‘working out the meaning of an Act’ in s 138 at 2.26. Another difference between the two provisions is that, instead of a single non-exhaustive list of material that may be considered (s 15AB(2)), two non-exhaustive lists are provided, one for Acts and the other for statutory instruments: s 142. It is also provided that a specific reference to material that may or must be considered in working out the meaning of an Act or instrument is not to preclude consideration of other material of the same or similar kind: s 143. 104

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Victorian Equivalent of s 15AB 3.24  In Victoria, s 35 of the Interpretation of Legislation Act 1984 provides:

In the interpretation of a provision of an Act or subordinate instrument — (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and (b) consideration may be given to any matter or document that is relevant including but not limited to — (i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

This provision applies to all laws whether enacted or made before or after the commencement of each provision: Interpretation of Legislation Act 1984 s 4(1). It makes clear that it is possible for a court to consider extrinsic material not merely to ascertain the general purpose or object of an Act, but also to determine the purpose and scope of a particular provision: R v Boucher [1995] 1 VR 110 at 125–6; (1995) 70 A Crim R 577 at 593. In Humphries v Poljak [1992] 2 VR 129 at 136 Crockett and Southwell JJ in the Appeal Division of the Supreme Court of Victoria stated that: [Section] 35(a) … requires a construction to be given to legislation ‘that would promote the purpose or object underlying the Act’. That ‘purpose or object’ may not be ascertainable without reference to the parliamentary debates. Accordingly, the better view would appear to be that, even if it be thought that the language is clear and unambiguous, it was not improper to have had recourse to the parliamentary debates in order to ensure that to apply the ordinary and grammatical meaning of the words used would not give the statute a meaning which obviously was not intended.

Despite an early view that in the absence of ambiguity or doubt on the face of the statute reference should not be made to extrinsic materials, as to which see the discussion at 3.5, there is general support for the contrary view expressed by Crockett and Southwell JJ. See, for example, R v  Quick [2004] VSC 270; (2004) 148 A Crim R 51 and Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority [2007] VSCA 210; (2007) 18 VR 146 at [39] per Chernov JA. 3.25  Since the enactment of the Interpretation of Legislation Act  1984, litigants in Victorian courts and tribunals have increasingly sought to rely on s 35 to persuade them to refer to extrinsic materials as part of the interpretive 105

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process. In Masters v McCubbery [1996] 1 VR 635 at 646 in the Victorian Court of Appeal Winneke P said of s 35: Resort to this section has become almost common place as parties strive to find support for the proposition which they seek to make. In my view the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself. So commonly is the court asked to refer to the speeches in Hansard, pursuant to the authority conferred by this section, that it is necessary to keep reminding ourselves of the caution referred to by the court in R v Kean & Mills [1985] VR 255 at 259: ‘We were urged to refer to the Attorney-General’s second reading speech in the Legislative Council on the Bill … It was said that we were entitled to do so pursuant to s 35(1) of the Interpretation of Legislation Act 1984. It is unnecessary to attempt the interpretation of that section. It is sufficient to say that apparently the Court is not obliged to refer to the Minister’s speech. It “may” do so. The criteria for the exercise of such a power seems, however, not to be specified.’

These strictures were repeated in the Victorian Court of Appeal’s decision in Inline Courier Systems Pty Ltd v Walker [1998] VSCA 131; [1999] 1 VR 405 at [37] per Chernov JA. Section  35(b) provides that consideration may be given to any relevant ‘matter or document’, while s  15AB of the Acts Interpretation Act  1901 (Cth) and equivalents employ the narrower term ‘material’. In what may well be regarded as the extreme use of the section, it was held, by the Victorian Administrative Appeals Tribunal, that it was permissible, under s  35(b), to receive oral evidence from a former member of parliament who sponsored the legislation, to ascertain the intention of parliament: Re Gill and Department of Industry, Technology and Resources (1985) 1 VAR 97 at 105. Victorian courts and tribunals have followed the lead of the High Court in assuming that the common law principles governing the use of parliamentary and executive materials in the interpretation of legislation coexist with s 15AB and s 35(b). See, for example, R v Quick [2004] VSC 270; (2004) 148 A Crim R 51 at [44]–[47]. For a discussion of the common law practices, see 3.5. Since 1986 it has been the practice to give the dates of the minister’s second reading speech in the Victorian Legislative Assembly and Legislative Council in a note at the end of each Act. Limitations on the Uses of Extrinsic Material Statements of intention of legislation 3.26  As was noted at 3.5, the practice of introducing extrinsic material and arguing its relevance to the interpretive process has become widespread in courts and tribunals at all levels. In consequence, warnings are regularly issued as to the fundamental limitations on the permissible uses of such material. The  High Court drew attention to a substantial limitation on the use of s 15AB and its state and territorial equivalents in Re Bolton; Ex parte 106

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Beane [1987] HCA 12; (1987) 162 CLR 514; 70 ALR 225. After acknowledging that regard could be had to the minister’s second reading speech, Mason CJ, Wilson and Dawson JJ issued this salutary warning (at 518; 227–8): The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.

These remarks are equally applicable to second reading speeches admitted in reliance on s 15AB or its state or territorial equivalents or on the basis of principles derived from the common law. The sentiments there expressed are regularly repeated. For some of the many examples where the courts have declined to take account of ministerial or other statements as to the effect of legislation under consideration see the Annexure. Statements of existing law 3.27  Another limitation on s  15AB and its counterparts which has been identified by the High Court is that extrinsic materials should not be taken into account where they merely indicate a view as to the meaning of legislation which is already in existence at the time when the view is expressed: Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 241; 77 ALR 8 at 11 per Mason CJ and Gaudron J; cf Dawson J at 254; 21–2.

In Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1; 285 ALR 27, which involved interpretation of the Education Act  1972 (SA), French CJ, Hayne, Kiefel and Bell JJ observed at [33]: ‘There is no basis at common law or otherwise for resorting to a ministerial statement, about the effect of a law in force at the time of the statement, as an aid to the interpretation of that law.’ See also the cases referred to in the Annexure. Reference to extrinsic material not obligatory 3.28  The language of s 15AB and equivalent provisions permits, and does

not oblige, a court to refer to extrinsic materials which counsel seek to place before it: Brennan v Comcare (1994) 50 FCR 555 at 573; 122 ALR 615 at 634 per Gummow J. See also 3.30. It has also been pointed out that there are examples of explanatory memoranda containing incorrect statements of the law: Brooks v Commissioner of Taxation [2000] FCA 721; (2000) 100 FCR 117; 173 ALR 235 at [68]. In Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71 at [45] Gray J commented: ‘Unless an explanatory memorandum gives a clear guide as to the intention behind the drafting of legislation, it is an unsafe guide.’ 107

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Material must be in existence and relevant 3.29  The non-exhaustive list of material referred to in s 15AB(2) that may be referred to in accordance with subs (1) includes only material that was in existence when the provision in question was enacted. However, in Australia & New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 at 291–2; 119 ALR 727 at 751–2 Hill J observed that although material not in existence at the date of enactment was outside the scope of s 15AB, such material could be admitted at common law to disclose the mischief with which the provision was intended to deal: see  3.5. He referred to the Explanatory Handbook to the Income Tax Assessment Act  1936 (Cth), which was published after the 1936 Act came into operation, for this purpose. See also MLC Ltd v Deputy Commissioner of Taxation [2002] FCA 1491; (2002) 126 FCR 37; 196 ALR 502 at [37].

Care must also be taken to ensure that the bill which has been the subject of parliamentary comment or an explanatory memorandum has not been  relevantly amended before it has passed into law. In Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 128–9 Kirby P warned: It is important to compare the Bill to which the Parliamentary remarks are addressed with the Bill as finally enacted. The remarks may be addressed to quite different, and even contrary, language. The Bill may have been substantially amended after the second-reading speech.

See also National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59; (2012) 201 FCR 147; 289 ALR 27 at [81] per Finn, Emmett and Bennett JJ. Value of extrinsic material 3.30 In Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 the

Court of Appeal commented on the usefulness to interpretation of reports of parliamentary debates sought to be tendered in reliance on s 15AB and equivalent provisions. At [12] Spigelman CJ commented: Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, ‘capable of assisting in the ascertainment of the meaning of the provisions’ within s 34(1) of the Interpretation Act 1987 [the New South Wales version of s  15AB]. I only refrain from using the word ‘never’ to allow for a truly exceptional case, which I am not at present able to envisage.

However, at [13] Spigelman CJ acknowledged the usefulness of the second reading speech of a minister on matters such as purpose. At [162] Mason P also indicated where the line should be drawn: Statements in Parliament, even by ministers during the Second Reading debate, will … seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another. 108

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Mason P added at [162]–[164] that, to the extent that the House of Lords decision in Pepper v Hart [1993] AC 593; [1993] 1 All ER 42 contained views contrary to those he had expressed, it should be treated with caution. Spigelman CJ made similar comments at [12]. Beazley and Giles JJA agreed with Mason P at [191] and [192] respectively. In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [74]–[77] in a judgment with which Giles and Tobias JJA agreed at [1] and [2], Campbell JA quoted the views expressed in Harrison v Melhem, adding at [78]: Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister’s understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision.

As the minister’s second reading speech indicated an understanding of how the provision in question would operate, Campbell JA proceeded to interpret the provision without relying on it. See also the comments in the cases referred to in the Annexure. In some cases second reading speeches have been put to more direct use. See, for example, Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) 77 ALR 27, in which the Full Court of the Federal Court relied in part on the second reading speech of the minister, which implied that the word ‘roads’ in ss 11 and 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) had not been intended to apply to stock routes. Although in these cases the courts were primarily concerned with the uses to be made of extrinsic materials pursuant to s  15AB and equivalent provisions, it seems the result would have been the same if reliance had been placed on the CIC Insurance principle, as to which see the discussion at 3.9. If it is accepted that a second reading speech can rarely, if ever, assist in the ascertainment of the meaning of a provision it cannot matter how the speech is introduced into consideration. Is the evidence of a public servant of any use in the interpretation of a statute? The Full Court of the Federal Court suggested, in Collector of Customs v Savage River Mines (1988) 79 ALR 258 at 263: Direct evidence from a public servant as to the policy of legislation is unlikely to be helpful in the process of statutory construction. It is difficult to envisage any circumstances in which such evidence could rise above the level of one person’s opinion on the matter.

This principle was followed in Re Whelan and Department of Defence (1997) 47 ALD 383 at 393. It might also be questioned whether such evidence is ‘material’ under s 15AB. 109

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Practice Directions Relating to Proposed Reliance on Extrinsic Material 3.31  Several Australian courts have made practice directions requiring parties to judicial proceedings to give notice specifying any extrinsic material on which they intend to rely. See, for example, the High Court’s Practice Direction No 1 of 2013, Authorities, which sets out the responsibilities of a party intending to refer to ‘any case, text book, article, statute, regulation or any other material, including extrinsic material’ in relation to a matter set down for hearing in the High Court.

OTHER EXTRINSIC MATERIALS

Possible Application of s 15AB and Equivalent Provisions to Other Extrinsic Materials 3.32  In the general debate that preceded the enactment of s  15AB

of the Acts Interpretation Act  1901 (Cth), no mention was made of using dictionaries, other legislation and reports of previous cases in the interpretation of legislation. Such materials were already freely admitted in judicial proceedings at that time. Although the language of s 15AB and its counterparts is broad enough to apply to these other forms of extrinsic materials, there is no need for them to be so applied as those materials would be admissible under the common law principles that predate the introduction of those provisions. Just as the common law principles that permit the use, for specific purposes, of parliamentary and executive materials have survived the introduction of s 15AB and equivalents (see 3.3, 3.5), so too have the principles governing the uses of these other extrinsic materials. Those principles are considered below. Dictionaries Circumstances in which to use 3.33  If a word or phrase is not defined in the definition section or the dictionary of an Act it may be helpful to refer to a dictionary for its popular meaning (or meanings) or, where appropriate, its technical meaning (or meanings). For the latter, specialist dictionaries such as legal or medical dictionaries may be of assistance. However, it must never be overlooked that a dictionary is the starting point for the ordinary meaning of a word. It is not concerned with statutory language.

The law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance. In R v Peters (1886) 16 QBD 636 at 641, Lord Coleridge said: I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books. 110

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Lord Coleridge’s comment was quoted in Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [84] per Beazley ACJ. In House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; 106 LGERA 440 at [28] Mason P made this comment on the usefulness and the limitations of dictionaries: A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.

Subsequently, in Polo/Lauren Co LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; (2008) 173 FCR 266; 80 IPR 531 at [24]–[25] the court observed that the parties’ capacity to find a definition of the word ‘label’ that supported their opposing arguments illustrated the difficulty to which Mason P had referred. The observations of Mason P were quoted with approval in Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FLR 92 at [68]. In Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272; 302 ALR 608 at [68] Robertson J said: [I]n statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context.

When considering the use of dictionary definitions, it is always necessary to bear in mind the oft quoted caution of Learned Hand J in Cabell v Markham 148 F 2d 737 at 739 (1945) that: … it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

This statement was endorsed by the High Court in Thiess v  Collector of Customs [2014] HCA 12; (2014) 250 CLR 664; 306 ALR 594 at [23] and by Leeming JA in Tal Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439; 332 ALR 507 at [80] who added: Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context.

This passage was in turn endorsed by Basten JA in Hunter’s Hill Council v Minister for Local Government [2017] NSWCA 188; (2017) 346 ALR 31 at [77]. 111

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Leeming JA in 2 Elizabeth Bay Road Pty Ltd v  The Owners — Strata Plan No 7394 [2014] NSWCA 409; (2014) 88 NSWLR 488; 324 ALR 142 at [82] cautioned particularly against using dictionaries to define basic conjunctions such as, in that case, ‘unless’. He said that ‘“unless” is merely the ordinary word used to introduce a negative condition’. Notwithstanding these cautions, a dictionary definition may assist in establishing the meaning of a term which has been defined in the Act. In Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; (2004) 61 NSWLR 394 at [8] Handley JA noted: … Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court.

Somervell LJ in Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 at 338; [1952] 1 All ER 1175 at 1178 counselled that care must be taken when considering a compound expression not to look up the meaning of each word and from that construct the meaning of a phrase which may, in fact, have acquired a special meaning. Comments to similar effect were made by Oliver LJ in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 at 144; [1981] 3 All ER 241 at 249 and those comments were endorsed by the High Court in Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 399–400; 141 ALR 59 at 66–7. See also XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532; 227 ALR 495 at [19] per Gleeson CJ; Uber BV v Commissioner of Taxation [2017] FCA 110; (2017) 247 FCR 462 at [131]. Choice of dictionary 3.34  A court is free at common law to consult whichever dictionaries it pleases. In Coleman v Director of Public Prosecutions [2000] NSWSC 275; (2000) 49 NSWLR 371 at [9]–[11] the plaintiff referred the court to definitions of ‘solicit’ in five dictionaries and the court referred to those dictionaries and to a further six dictionaries. Reference is usually made to Australian or English dictionaries: see the rejection by Davies LJ in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287 at 310; [1966] 1 All ER 309 at 323 of Webster’s Third New International Dictionary (1961) on the basis that it provided the American usage of the term ‘poultry’ not the British. But if a word has, as it were, an international meaning, reference can be made to other dictionaries.

References to the Macquarie Dictionary are common in Australian cases. For example, in State Chamber of Commerce and Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 at 348; 73 ALR 161 at 170–1, five Justices of the High  Court in a joint judgment referred to the Macquarie Dictionary for assistance with the meaning of the term ‘fringe benefit’ in the Commonwealth’s fringe benefits legislation. The Oxford English Dictionary, in both its longer and shorter versions, and the Australian Oxford Dictionary are also referred to from time to time, as are various other dictionaries. Reference is also sometimes made to H W Fowler’s Modern English Usage. 112

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Limitations on use 3.35  The use of a dictionary to assist in the understanding of words used in an Act must not, however, result in the words of the Act being abandoned in favour of synonymous expressions. See Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [85] per Beazley ACJ. The legislature will have chosen a particular word and it follows that other like words have been considered and rejected. A dictionary will enable common use, the ordinary meaning, of a word to be identified. It will do this by describing the meaning through other words. It is a misuse of the dictionary to explore the meaning of these other words and interpret the Act in the light of the meaning so discovered.

So in Cozens v Brutus [1973] AC 854; [1972] 2 All ER 1297 the House of Lords refused to substitute the words used in dictionaries to define ‘insult’ when determining whether certain conduct constituted ‘insulting behaviour’. This approach was expressly followed by the New Zealand Court of Appeal in R v Dunn [1973] 2 NZLR 481. See also Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 in which the Federal Court set aside a decision of the Immigration Review Tribunal, on the basis that the tribunal had substituted a dictionary definition of the word ‘extreme’ in applying the phrase ‘extreme hardship’ to the circumstances before it, thereby introducing notions not contained in the legislation itself. Nor should it be overlooked that words take their meaning from the context in which they appear: see 4.33. So a dictionary meaning of a word that is clearly not applicable in the context in which the word is used in the legislation under consideration is of no assistance. ‘One must interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions’: Falconer v Pedersen [1974] VR 185 at 187. See also the cases referred to in the Annexure. In Norrie’s case, above, at [85] Beazley ACJ made the point in the following way: ‘Nor can the meaning of a word as a matter of ordinary English usage override the necessity to construe the statutory language in context.’ In the United States, the use of dictionaries in statutory interpretation has been associated with the so-called plain meaning approach to interpretation. For a discussion of this practice, see the Note, ‘Looking It Up: Dictionaries and Statutory Interpretation’ (1994) 107 Harv LR 1437, and the articles there cited. Prior Statutory Provisions 3.36  Courts are prepared to look at prior statutory provisions dealing with the same subject matter in order to enable them to interpret a current statute. This is slightly different from looking at statutes in pari materia (see 3.42–3.44) where current statutes in the same terms are looked at for interpretation purposes. The intention here is that the court will have regard to the history of the legislative scheme in order to enable it to work out what the legislation 113

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was intended to achieve. An example of this approach is provided by John Burke Ltd v  Insurance Commissioner [1963] Qd R 587. In that case Hanger J was prepared to have regard to the workers’ compensation legislation that had been the law prior to the enactment of the Act that he had to interpret. In Re Donaldson (1889) 23 SALR 141 the legislation past and present relating to the protection of life assurance policies on bankruptcy was considered. For more recent examples see the cases set out in the Annexure. The good sense of this approach is obvious. If one views the whole scheme of the legislation, it may be possible to see the way in which the legislature is dealing with the subject matter: whether it is extending or contracting benefits; whether it is increasing penalties and so on. Such information is likely to be of use to a court in its endeavour to understand the legislature’s wishes. These comments were quoted with approval in Low v Performance Finance Ltd (recs & mgrs apptd) [2004] WASC 80; (2004) 28 WAR 512; 185 FLR 9 at  [40]–[42]; Re  Amerind Pty Ltd [2017] VSC 127; (2017) 320 FLR 118; 121 ACSR 206 at [198]. In Plaintiff S297/2013 v  Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179; 309 ALR 209 Crennan, Bell, Gageler and Keane JJ said at [25]: The numerous amendments that have been made to the [Migration] Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together ‘as a combined statement of the will of the legislature’. The timing of amendments might assist in determining the ‘hierarchy’ of apparently conflicting provisions of the Act as amended, but notions of ‘implied repeal’ have no place [citations omitted].

However, prior statutory provisions must be used with caution. Hutley AP in Armstrong v Edgecock [1984] 2 NSWLR 536 at 540 reminded that ‘[t]he first step in the construction of [a] new provision is to construe it according to its terms and not to approach it through the fog of authorities on its predecessor’. An equivalent prior statutory provision will not be taken into account to produce a result that is not apparent on the face of the later provision under consideration, particularly where there is a rational explanation of the change of wording in the later provision: Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 at 215. In that case it was argued that a breach of trust was not covered by the phrase ‘default, breach of duty, or other misconduct’ in s  50 of the Australian Securities Commission Act  1989 (Cth) because the words ‘breach of trust’ had been included in equivalent phrases used in earlier companies and securities legislation. Brownlie J pointed out that there was judicial authority to the effect that a breach of trust was a form of breach of duty, adding (at 215): It can hardly be right to construe a statute, particularly one as complete as the Australian Securities Commission Act 1989 by reference to its precursors, thereby concluding that because it omits an expression from an otherwise clear provision, that clear provision means something not apparent on its face. 114

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Another possibility is that a statutory provision under consideration has been substituted for a provision that was interpreted so as to produce an unsatisfactory result. Where that has occurred, the current provision ‘must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor’: Bushell v  Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425; 109 ALR 30 at 43 per Brennan J. However, the reverse also applies: a later amendment cannot be used to place a meaning on an Act that it would not have had prior to the amendment: Palace Gallery Pty Ltd v WorkCover Premium Review Panel [2014] SASCFC 60; (2014) 119 SASR 408 at [26]–[27]. See further the discussion of the ‘change the word — change the meaning’ approach in 4.8. For a general discussion of the issues see James Steele, ‘Statutory Forebears: Legislative Evolution as a Means of Statutory Interpretation’ (2018) 39 Statute Law Review 303. Repealed Provisions 3.37  In several 19th-century cases it was stated that an enactment once repealed was to be treated as never having existed. Examples are Surtees v Ellison (1829) 9 B & C 750 at 752; 109 ER 278 at 279 per Lord Tenterden CJ; Kay v Goodwin (1830) 6 Bing 576 at 582–3; 130 ER 1403 at 1405 per Tindal CJ; cf Attorney-General v Lamplough (1878) 3 ExD 214 at 227–8 per Bramwell LJ. If such were the case it was difficult to claim that regard could be had to the repealed provision for interpretation purposes. So in Te Kloot v Te Kloot (1894) 15 LR (NSW) D 1 at 4 the New South Wales Supreme Court held that, as s 6 of the Matrimonial Causes Act (48 Vic No 3) (NSW) had been repealed, s 7 of the Act must be interpreted as if s 6 had never existed.

During the 20th century there was a retreat from the approach that had prevailed in the previous century. It was accepted that it was permissible to look at repealed provisions to assist in determining the scope of unrepealed provisions. See the cases referred to in the Annexure for early examples. More recently, in R v  Lavender [2005] HCA 37; (2005) 222 CLR 67; 218 ALR 521, in which the High Court allowed an appeal from a judgment of the New South Wales Court of Criminal Appeal, Gleeson CJ, McHugh, Gummow and Hayne JJ incorporated this newer principle into the contextual approach to interpretation. The issue was whether malice was an element of the offence of involuntary manslaughter by virtue of the Crimes Act 1900 (NSW) s 18(2)(a). Gleeson CJ, McHugh, Gummow and Hayne JJ observed (at [31]) that s 376, which had been part of the Crimes Act 1900 as originally enacted, but which had been repealed, shed light on this issue. They suggested (at [31]) that the Court of Criminal Appeal had erred in failing to take this repealed section into account: It appears that s 376 was not drawn to the attention of the Court of Criminal Appeal in this case. That was a significant omission. The charge against the respondent was that he did feloniously slay the deceased. Section 376 of the 115

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Crimes Act … consistently with the common law, distinguished between the  forms of indictment for murder and manslaughter by reference to the need, or the absence of need, to allege malice. That provision formed part of the statutory context in which s 18 appeared when first enacted. Nobody suggests that s 18 changed its meaning when s 376 was repealed in 1951.

R v  Lavender is often cited as authority for the proposition that when determining the meaning of a continuing provision it is permissible to refer to its legislative history, including any provisions that have been repealed: see the examples in the Annexure. Subsequent Amending Acts General principle 3.38 In Bridge v Mattis [1953] AR (NSW) 49 at 56–7 the New South Wales

Arbitration Commission approved a statement in Craies on Statute Law, 5th ed, Sweet & Maxwell, London, 1952, p 133: When we see in Acts in pari materia by the very same Legislature words added to those used in a prior enactment, it would be setting at nought the clear intention of the Legislature to give the later enactment the construction judicially placed on the earlier enactment. To do so would be to read out of the statute expressions which must be held to have been deliberately inserted to make the new Act differ from the old.

The statement had its origins in a judgment of the Canadian Supreme Court, in City of Ottowa v Hunter (1900) 31 Can SCR 7 at 10. The commission added that this statement was equally applicable to an amendment of a statute whether by way of addition, alteration or withdrawal of words. See also the cases referred to in the Annexure. The cases mentioned above concerned the interpretation of an amending provision, but the same principle has been applied where the original words, prior to the addition, alteration or omission, have to be interpreted. In fact, the practice of making regular amendments to certain Acts has meant that the question whether an original provision should be interpreted in the light of an amendment to it has become a common one. Perhaps the best-known and most cited example of the application of the principle in this context is provided by Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70. The question that arose in that case was whether the board was subject to rates. One point taken was that, after the fixing of the rate, a limited exemption from rates was given to the board by an amendment of the Act establishing it. Dixon J considered that it was proper to take this amendment into account but, as it did not cover the situation before the court, the board was liable to pay rates. His Honour remarked (at 86) that it would have been a strange result if the court had interpreted the prior legislation as giving a wider exemption than that conferred by the amendment so that the express exemption it made would have been unnecessary. Latham CJ (at 77) gave this view qualified support. 116

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See  also the cases referred to in the Annexure. But see  the authorities questioning the approach in Grain Elevators Board discussed in 3.39. Doubts about principle 3.39  Although the principle in the Grain Elevators Board case has been applied

in the cases referred to in 3.38, some doubts have been expressed about it on occasions. In Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 at 212; 99 ALR 295 at 303 the Full Court of the Federal Court warned of a limitation on the operation of the principle. It said: There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts: see Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1801 [1951] AC 161 at 177–8; Kirkness (Inspector of Taxes) v John Hudson & Co Ltd [1955] AC 696; [1955] 2 All ER 345 especially per Viscount Simonds at 712–13; and Thompson v JT Fossey Pty Ltd (No 1) (1978) 20 ALR 496 per Franki J at 501–2; Pearce & Geddes, Statutory Interpretation in Australia, 3rd ed, 1988, para 3.25.

In the Allina case the court had to interpret a provision of the Income Tax Assessment Act 1936 (Cth) as it stood prior to its amendment by a later Act. Not discerning any ambiguity in the words in question, it declined to interpret them by reference to the amending words. Similar concerns were expressed in the cases referred to in the Annexure. However, the Full Federal Court applied the principle to a provision of doubtful meaning in another frequently amended Commonwealth Act, the Social Security Act  1947, in Kalwy v  Secretary, Department of Social Security (1992) 38 FCR 295 at 299; 110 ALR 38 at 43. See also Whelan v Australian Securities Commission (No 2) (1994) 58 FCR 352 at 360; 33 ALD 53 at 60. Gummow J was one of the judges of the Full Court of the Federal Court that decided the Allina case. In Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382; 111 ALR 577 at 612 he repeated the comment that care must be taken to ensure that the amending words were not included to remove possible doubts as to the meaning of the original provision. He added, of the principle: ‘It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision.’ McHugh J expressed similar misgivings in Hepples v Federal Commissioner of Taxation [1991] HCA 39; (1991) 173 CLR 492 at 539–40; 102 ALR 497 at 532. See further the cases in the Annexure. It may of course be possible to obtain an insight into the reasons for the amendment of a provision by referring to Hansard, as in Downey v Trans Waste Pty Ltd [1991] HCA 11; (1991) 172 CLR 167 at 177–8; 99 ALR 402 at 409 per Dawson J, or to the Explanatory Notes, as in Hooker v Gilling [2007] NSWCA 99 at [41]–[42] per McColl JA. 117

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Limits on use 3.40  The limits of the Grain Elevators Board principle were considered in

R v  Sieders [2008] NSWCCA 187; (2008) 72 NSWLR 417. At [126]–[127] Campbell JA quoted the statement from the judgment in Allina Pty Ltd v Federal Commissioner of Taxation, set out above, and noted that the sentiments it expressed were consistent with decisions of the High Court to which he had referred. As to the construction of s  270.6(2) of the Criminal Code Act 1995 (Cth), Campbell JA said at [134]: In my view, there is no ambiguity in the wording of section 270.6(2) that needs to be clarified by reference to the later legislation. The earlier and the later legislation do not deal with the same topic. The later legislation had not come into operation at the time of the events to which the present charge relates. The later legislation has ample work to do that is independent of the work done by the earlier legislation.

Campbell JA added that for all of those reasons the later legislation did not establish that s 270.6(2) had the meaning contended. See also C v Director-General, Department of Youth and Community Services [1982] 1 NSWLR 65 in which it had been held that the Grain Elevators Board principle was inapplicable where the amending Act was not yet in operation at the time of the events in question. Nor can the approach of Dixon J be applied if there was an amending bill that was not enacted: Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347 at 360; 135 ALR 471 at 484 per Tamberlin J and at 369; 492–3 per Lehane J. For a general discussion of the issues see James Steele, ‘Statutory Forebears: Legislative Evolution as a Means of Statutory Interpretation’ (2018) 39 Statute Law Review 303. Interpretation where Parliament Takes View of Meaning of Act 3.41  If one adopts the notion that the legislature is speaking by means of its legislation, then the approach referred to in the Grain Elevators Board case has some merit. It can be argued that, if in a subsequent Act the legislature indicates that in an earlier Act it meant X, then the court should not say that it meant Y —  even if, in the absence of the later Act, Y would have been the meaning put on the words. The courts have not, however, accepted this argument.

In Deputy Federal Commissioner of Taxation (SA) v Elder’s Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610 at 625–6 Dixon, Evatt and McTiernan JJ adopted the following principles from English law: An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it’ (Maxwell, Interpretation of Statutes, 6th ed, 1920, p 544), and, per Lord Atkinson, Ormond Investment Co v Betts [1928] AC 143 at 164: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’. 118

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The Justices also referred to Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403 at 414 per Lord Sterndale MR; Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446 at 493 per Lawrence LJ. See also R v Harrop [1979] VR 549 in which, in the absence of an ambiguity in the words of the earlier statute, Gobbo J (at 553–4) did not need to take account of what he considered to be an erroneous view of the law in a later statute. The approach taken by the High Court in Deputy Federal Commissioner of Taxation (SA) v  Elder’s Trustee and Executor Co Ltd, above, was reiterated in Masson v Parsons [2019] HCA 21 at [28] and applied in Pavic v Magistrates Court (Vic) [2003] VSC 99; (2003) 140 A Crim R 113 at [37]. See also Cooper v Howard [2012] TASSC 24; (2012) 61 MVR 56 at [18]; Reardon v Deputy Commissioner of Taxation [2013] QCA 46; (2013) 275 FLR 9 at [32] per Holmes JA. In contrast with a statement by the parliament of the meaning of an Act, it is also possible that a later Act may amend or purport to declare the meaning of an earlier Act. In that event, the position is governed by the later Act which operates directly, by its own force: Kirkness (Inspector of Taxes) v John Hudson & Co Ltd [1955] AC 696 at 735; [1955] 2 All ER 345 at 365–6 per Lord Reid; Hooker v Gilling [2007] NSWCA 99 at [41]–[42] per McColl JA. Similar Acts — General 3.42  It is not difficult to find statements to the effect that reference may be made to similar statutes within the same jurisdiction in ascertaining the meaning of an Act before the court. This is often referred to as the in pari materia (literally: in an analogous case) principle. For example, in Lennon v Gibson and Howes Ltd [1919] AC 709 at 711–12; (1919) 26 CLR 285 at 287 the Privy Council, on appeal from the High Court, said:

In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.

This principle was reiterated more recently in Harrison v  Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 where Mason P at [131] stated: There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection.

This statement was expressly applied in Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [117] per Beazley ACJ. See also New Zealand and Australian Land etc Co v McIntyre (1901) 11 QLJ 68 at 76 per Griffith CJ on behalf of the Full Court of the Queensland Supreme Court; Ramaciotti v Federal Commissioner of Taxation [1920] HCA 70; (1920) 29 CLR 49 at 53 per Knox CJ. However, the principle is not helpful if the statutory language has been used in different and dissimilar contexts: Robert Bosch (Australia) Pty Ltd v Secretary, 119

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Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92 at [71]: ‘But given the different and dissimilar statutory contexts considered in the cases cited by the appellant as to the words “conduct” or “conducted” …, those cases are of no present assistance.’ The in pari materia principle can be used for the interpretation of statutes even though the statutes may have been made in different jurisdictions. For example, in Danziger v Hydro-Electric Commission [1961] Tas SR 20 at 24 Crisp J took the view that a Tasmanian Act was intended to achieve the same result as an English Act and should be construed accordingly. Similarly, in Federal Commissioner of Taxation v ICI Australia Ltd [1972] HCA 75; (1972) 127 CLR 529 Walsh J at 541 considered that the expression ‘mining operation’ in the Income Tax Assessment Act 1936 (Cth) should be interpreted having regard to like expressions when used in state Mining Acts, a viewpoint that was repeated on appeal in that case by Gibbs J at 581. See also the cases referred to in the Annexure. The in pari materia principle has particular force if the legislation under consideration and that with which it is compared had their origins in the same source. In Kerr v Verran (1989) 88 ALR 125 at 136–7 Jenkinson J concluded that provisions in Commonwealth Public Service Acts in which the word ‘seniority’ was used were in pari materia with a provision of an Australian Capital Territory Ordinance dealing with employment of a particular group of Australian Capital Territory public servants, in which the same term appeared. See also Ory v Betamore Pty Ltd (1990) 54 SASR 331 at 345; PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 at 252. 3.43  There has been little discussion in Australia as to what statutes are to be regarded as in pari materia. Reference is sometimes made to an American case, United Society v Eagle Bank (1829) 7 Conn 457 where Hosmer J at 470 said: ‘Statutes are in pari materia which relate to the same person or thing or to the same class of persons or thing.’ He then went on to suggest that similarity of subject matter is not sufficient to make statutes in pari materia. The dividing line between what is the same and what is only similar is very fine and this may well be the reason why our courts have not attempted to define precisely the statutes that are to be treated as in pari materia.

Single instances of the courts holding that statutes can or cannot be so regarded are readily found. For example, the Leasehold Property Repairs Act 1938 (UK) was held to be in pari materia with certain provisions of the Law of Property Act 1925 (UK): see Re Metropolitan Film Studios Ltd’s Application [1962] 1 WLR 1315; [1962] 3 All ER 508, but the Rent Restrictions Acts were not considered to be in pari materia with the latter Act: Powell v Cleland [1948] 1 KB 262. The courts in these earlier cases did not set out any detailed reasoning for reaching conclusions such as these. The result seems to have been arrived at intuitively. In Alfonso v  Northern Territory [1999] NTSC 117; (1999) 131 NTR 8; 153 FLR 286 at [9]–[10], Mildren J considered the underlying purposes of two 120

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Acts to reach the conclusion that they were not in pari materia. He considered that the Crimes (Victims Assistance) Act 1989 (NT) was aimed at providing compensation for victims of crime, while the Criminal Code (NT) purported to be a codification of the criminal law. It followed from this that there was no justification for giving the expression ‘bodily harm’ in the definition of ‘injury’ in the former Act the limited meaning that it had in the Code. Definitions in Like Legislation 3.44 In M Collins & Son Pty Ltd v Bankstown Municipal Council (1958) 3 LGRA 216, Sugerman J cast doubts on the use that could be made of the definition of a word or phrase in a statute in the interpretation of that word or phrase when interpreting a similar statute in which it was not defined. He considered that the attachment of a meaning to a word in the interpretation clause of a statute very commonly involved some artificial extension or limitation of the natural meaning of the word for the purposes of that statute. Accordingly, statutory definitions depended so much upon context that little, if any, benefit was to be derived in the consideration of the meaning of the defined word for the purposes of another statute.

It is undoubtedly correct that defined terms must be read in their context. But this is not to say that the courts should ignore defined terms in an Act in pari materia. If a statute is in pari materia to the extent of being markedly similar to an Act that has to be interpreted, the definition of words used in that other statute may indicate the problems that the legislature contemplated could have been caused by the word if used undefined. If the word is defined in one statute in an unusual manner and not in another and the statutes are in pari materia, this would tend to indicate that the legislature intended the word to have a different meaning in the two statutes. For example, in R v Scott (1990) 20 NSWLR 72 at 77; 49 A Crim R 96 at 100 in the New South Wales Court of Criminal Appeal, Gleeson CJ, with whom Hunt and Allen JJ agreed, concluded that the broad definition of ‘officer’ in s 5 of the Companies (New South Wales) Code 1981 (NSW) should not be applied in the interpretation of the phrase ‘officer or member of any body corporate or public company’ in s 173 of the Crimes Act 1900 (NSW). Gleeson CJ commented that the definition of ‘officer’ in the Code was one that did not reflect its ordinary and natural meaning. On the other hand if, by following the definition that appears in the other Act, a coherent and consistent use may be given to an expression, it would seem desirable to pay heed to the definition. Support for this approach is provided by Federal Commissioner of Taxation v Henderson [1943] HCA 48; (1943) 68 CLR 29. In that case the court was concerned with the meaning of the word ‘mine’ in the Income Tax Assessment Act 1936 (Cth). Latham CJ referred to the defined meaning of the word in the Mines Act 1928 (Vic) and continued (at 44): Definitions enacted for the purpose of a State statute cannot control the interpretation of a Federal statute, but these definitions show that it would not 121

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be inconsistent with the use of those terms in state legislation to hold [that the treatment concerned in the case was a mining operation].

This view was repeated in the ICI Australia case both at first instance and on appeal (see 3.42, 4.17) and Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 at 509–10 (affd Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108). Thus, while definitions of terms in like Acts must be viewed with caution, they should not be entirely disregarded. This is particularly the case where an Act provides that it is to be read together with another Act: Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552 at 558; 11 ALR 129 at 133 per Mason J. In Hudson v  Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393; 272 ALR 605 at [38]–[39] the Full Court of the Federal Court rejected an argument that the Australian Citizenship Act  2007 (Cth) and the Family Law Act 1975 (Cth) were essentially in pari materia. The court considered that the express adoption in the Citizenship Act of some Family Law Act provisions meant that other provisions should not be relied on to inform the meaning of Citizenship Act provisions. If, however, the word or phrase under consideration is defined in both Acts in pari materia, a court cannot seek to define or extend its meaning in one Act by reference to the definition in the other Act. In the words of Mason J in Yager v R [1977] HCA 10; (1977) 139 CLR 28 at 43; 13 ALR 247 at 256–7: A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act … There is, therefore, no legitimate foundation for resorting to the definitions contained in [an Act] for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.

This principle applies with greater force if the phrases are not identical: Western Australia v G (a child) [2009] WASC 234; (2009) 201 A Crim R 1 at [53]. Reference to Legislative Scheme 3.45  Reference has already been made to the use that a court may make of prior Acts for the purpose of interpreting current legislation: see  3.36. In Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726 Griffith CJ indicated that it is proper where a number of Acts form a scheme of legislation to look at all the Acts comprising that scheme for the purpose of construing the expressions in any one of those Acts.

For example, in Commissioner of Stamp Duties v  Permanent Trustee Co Ltd (1987) 9 NSWLR 719 the New South Wales  Court of Appeal considered whether an order made under s 66G of the Conveyancing Act 1919 (NSW) appointing trustees of property held by co-owners and vesting the property in the trustees was a ‘conveyance’ under s 65 of the Stamp Duties Act 1920 (NSW) or an ‘appointment of a trustee’ under the Second Schedule of that Act. A decision on this question was necessary to determine the amount of 122

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duty payable on the transaction. The Real Property Act 1900 (NSW) and the Trustee Act 1915 (NSW) contained provisions that were also relevant. The transaction would be a ‘conveyance’ only if the term ‘vested’ was given a different meaning in s 65 of the Stamp Duties Act 1920 from that given to it in the relevant sections of the other three Acts. The court decided that the transaction was not a ‘conveyance’ but an ‘appointment of a trustee’, so that a nominal sum was payable. In reaching this conclusion, Kirby P commented (at 722; 723–4): Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand … [I]n construing the legislation under consideration here, I prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.

For other cases in which this approach has been followed see the Annexure. 3.46  The principle enunciated by Kirby P in Commissioner of Stamp Duties v Permanent Trustee Co Ltd has special significance when the bills for two Acts were introduced together and assented to on the same day: Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137; 130 ALR 115. This approach was picked up and applied also where two Acts were assented to, and commenced on, the same day: R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251; 26 A Crim R 20 at [108] per Wood CJ at CL; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; 233 ALR 163 at [56]–[58] per McColl JA.

In Abdi v Release on Licence Board (1987) 10 NSWLR 294 at 295; 31 A Crim R 436 at 437, Kirby P indicated that the approach to the interpretation of legislative schemes should also be applied when interpreting reciprocal legislation of different states. This view was followed in Hore v Albury Radio Taxis Co-Operative Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 at [39]. For an example of an instance in which another statute which could be described as forming part of a legislative scheme was not taken into account, the statute to be interpreted having been considered unambiguous, see Gold v Fisher’s Food Pty Ltd [1954] AR (NSW) 19. 123

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In Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412 consideration was given to whether certain provisions in the Legal Profession Act  1987 (NSW) and the Civil Liability Act  2002 (NSW) formed part of a legislative scheme. Although the relevant provisions of the earlier Act had been inserted into that Act by the later Act and those provisions possessed some similarities, it was decided that the Acts did not enact a legislative scheme. Important factors leading to this conclusion were that the relevant provisions did not have identical areas of operation (see [9] per French CJ and Hayne J), or interdependent characteristics (see [97]–[99] per Kiefel J). Nor did the Acts contain common exclusionary provisions (see  [9]–[12] per French CJ and Hayne J and [101] per Kiefel J). As a consequence, there was no justification for interpreting the earlier Act by reference to the later Act. (Crennan and Bell JJ dissented.) In Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [150] Young JA concluded that it was permissible to look at a statute enacted before the Act under consideration as part of a legislative scheme even though the earlier Act had not commenced. Legislation Enacted Pursuant to Cooperative Federalism Schemes 3.47  Cooperative federalism refers to the capacity of the Commonwealth

and the states to exercise complementary legislative powers to produce a result that would have been beyond the authority of any of them acting alone. The Corporations Law as in force in the various jurisdictions, which operated for 10 years until replaced with the Corporations Act 2001 (Cth), is an example. In Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287; 191 ALR 543 at [82]–[84] Kirby J suggested that in a federal system like the Australian system: A court may be inclined … towards upholding as valid and effective the cooperative legislative enactments of all constituent parts of the federation. Ultimately, however, the court will reach a boundary fixed either by the limits of the propounded constitutional power or by the terms in which the applicable legislation has been expressed … In the competition between the principle of interpretation that approaches constructively the derivation of the meaning of interlocking legislation which constitutes a cooperative national legislative scheme and the principle of construction that protects individual liberties and rights, especially in penal laws, the outcome will in each case depend on an analysis of the legislation in question. The starting point for the task of construction is always the statutory language itself.

As to the need for uniformity in the interpretation of uniform national legislation, see 1.18. Reference to Delegated Legislation for Purpose of Interpreting Act General rule 3.48  In Australia the general rule has been that delegated legislation made under an Act should not be taken into account for the purposes of 124

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interpretation of the Act itself. Frequently cited is Mine Subsidence Board v  Wambo Coal Pty Ltd [2007] NSWCA 137; (2007) 154 LGERA 60 at [41] where Tobias JA said: [I]n my opinion it is well established that as a general rule it is impermissible to call in aid in the construction of an Act delegated legislation made under that Act: Pearce and Geddes, Statutory Interpretation in Australia 6th ed (2006) [3.41] pp 104–5 and the cases there cited.

In Plaintiff M47–2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 243 at [56] French CJ observed: Generally speaking an Act which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations: Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron J.

To act otherwise is to engage in bottom up interpretation rather than top down: Commissioner of Taxation v Macoun [2014] FCAFC 162; (2014) 227 FCR 265; 145 ALD 16 at [40]. In John Burke Ltd v Insurance Commissioner [1963] Qd R 587 Hanger J refused to take into account an order-in-council that amended the schedule to an Act, the schedule being part of the Act as passed by the parliament. His Honour said that he could not see how provisions made by the Governor-in-Council subsequent to an Act of Parliament could be used to ascertain the intention parliament had when it passed the Act. In Great Fingall Consolidated Ltd v  Sheehan [1905] HCA 43; (1905) 3 CLR 176 Griffith CJ had expressed the same opinion with regard to a regulation made by the Governor under the Act to be interpreted. In Webster v McIntosh (1980) 32 ALR 603 at 606; 3 A Crim R 455 at 457 Brennan J, with whose judgment Deane and Kelly JJ agreed, commented that ‘the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised’. Other cases in which the general rule was affirmed include NRMA Insurance Ltd v Motor Accidents Authority of New South Wales [2004] NSWSC 567; (2004) 61 NSWLR 264 at [28] (Motor Accidents Authority (MAA) Medical Guidelines issued under s 44 of the Motor Accidents Compensation Act 1999 (NSW), characterised as delegated legislation); Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266 at [17] (MAA Claims Assessment Guidelines issued under s 69(1) of the 1999 Act, also characterised as delegated legislation). There are innumerable cases where the approach set out above has been reiterated. A sample of those cases is set out in the Annexure. The court held, in Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76; (2009) 31 VAR 64 at [29]–[30], that the general rule identified above applied with greater force when the delegated legislation relied on had been made under a different statute from the statute that was being interpreted. 125

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Exceptions to general rule 3.49  There are exceptions to the general rule stated above that it is not possible to have regard to delegated legislation to interpret the Act under which it is made. If there are regulations that, together with the principal Act, form part of a legislative scheme, it may be useful to refer to them to ascertain the nature of the scheme. Mason J in the course of argument and reproduced in Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA  20; (1985) 156 CLR 651 at 652 observed that: ‘One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.’

There are a number of examples where the court has been prepared to look at Acts and sets of regulations which together make a legislative scheme: see the cases referred to in the Annexure. It will also usually be necessary to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision where an Act and a set of regulations have been drafted and promulgated together to establish an interdependent regime: Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86; 125 ALR 663; Jones v White [2005] WASC 40; (2005) 43 MVR 530 at [40]; Pipe Networks Pty Ltd v  Commonwealth Superannuation Corporation [2013] FCA 444; (2013) 212 FCR 542 at [93]. In Ward v Commissioner of Police (1998) 80 FCR 427 at 437–8; 151 ALR 604 at 614 Moore J suggested another exception to the general rule: if a statutory provision permits exceptions to be made to it by regulations, it may be permissible to refer to the regulations as an aid to the interpretation of the provision. In O’Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 at [28] Nettle JA referred to these exceptions to the general rule and mentioned another exception. He said: [W]hen a section of an Act of Parliament expresses itself as subject to regulations it may be taken as meaning that the latter is to some extent to prevail. Most importantly, however, the fundamental question is whether the regulations are within the scope of the section: Minister for Resources v  Dover Fisheries (1993) 43 FCR 565 at 577, and as a matter of common sense and logic one can hardly come to a view about that without first looking to the regulations to which the section expresses itself to be subject.

In CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072 at [120]–[123] Bergin CJ in Eq considered and rejected the possible application of one of these exceptions to the rule that delegated legislation made under an Act should not be considered in the interpretation of the Act itself. The reason was that the relevant regulation did not come into operation until several years after the parent Act. At [122] she observed: ‘If one could resort to regulations to settle an ambiguity in an Act or confirm an interpretation, the Act may be construed differently at different times according to the change in the regulations over the years.’ 126

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Reference to Regulations that are to be Treated as if Enacted in Act 3.50  There is another circumstance in which delegated legislation can have an important effect on the meaning to be given to an Act. It may be provided in an Act that regulations made under the Act are to be treated as if they were enacted in the Act. This, in effect, elevates the regulations to the status of a provision of the Act and they must therefore be interpreted accordingly. It thus becomes incumbent on a court to place such an interpretation on the Act as will accommodate the regulations. If there is an apparent conflict between the provisions of the Act and the regulations, the court must endeavour to resolve that conflict on the same basis as it would a conflict between different sections of the Act. However, it would seem that if the conflict is irreconcilable, in the final result the regulations must give way: Foster v Aloni [1951] VLR 481; [1952] ALR 18, following Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC; see also Hills v Stanford (1904) 23 NZLR 1061; Minister of Health v R; Ex parte Yaffe [1931] AC 494.

But compare Cheadle v Higginson (1919) 36 WN (NSW) 58. See further D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, [28.5]–[28.9]. Re-Enactment of Provision After Judicial Decision as to Meaning The presumption generally 3.51  There are two ways in which earlier decisions can assist a court in the interpretation of a provision in an Act. The more obvious is that the provision, or an equivalent provision in another jurisdiction, has been explained by another court. That decision may constitute binding or persuasive authority as to the meaning of the legislation under consideration: see 1.9–1.23. The other way in which earlier decisions might be of assistance to a court — and indeed might be thought to be a most compelling influence — is where the legislature has indicated its approval or disapproval of an interpretation placed upon an Act by the court. The problem, however, is to know when the legislature has so acted.

It is not usually so difficult to ascertain this where the legislature disapproves of a decision, as an amending Act that negates the effect of the decision will usually be passed. See, for example, Bushell v  Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425; 109 ALR 30 at 43 where Brennan J observed that a reference to Hansard disclosed an intention to reverse the effect of an earlier decision of the High Court. Where the legislature has approved the interpretation advanced by the court, however, the matter is more difficult. Parliamentary debates and explanatory memoranda will not usually disclose whether certain words have been used in a bill because the courts have interpreted those words in a certain manner. Furthermore, the absence of any reference in debates to the fact that words contained in a bill have previously been judicially interpreted should 127

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not lead to the inference that there was an absence of any intention on the part of the legislature to approve the judicial interpretation. The result is that the courts have over many years adopted the general approach that whenever any legislation is re-enacted after being judicially interpreted, the legislature is to be assumed to have approved that interpretation. 3.52  One of the most frequently cited early statements of the re-enactment presumption is that of James LJ in Ex parte Campbell (1870) LR 5 Ch App 703 at 706 which was approved by the House of Lords in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402:

Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.

An early Australian example of the use of the presumption is Pillar v Arthur [1912] HCA 51; (1912) 15 CLR 18. In 1864 the Full Court of the Supreme Court of New South Wales had interpreted a section of an Act relating to costs payable in an action. Some 38 years after the original enactment, the section was re-enacted in the same terms in a consolidating statute. The High Court declined to depart from the original interpretation of the section despite English decisions giving a like provision in United Kingdom legislation a different meaning. Griffith CJ said (at 22): I should hesitate to overrule the decision in [the 1864 case] which has stood so long unimpeached, especially as the legislature had after an interval of nearly 40 years re-enacted that section in identical language.

The principle was restated and applied by a unanimous High Court bench of seven Justices in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 at 106–7; 123 ALR 193 at 200 and this has come to be the most frequently cited authority (see further 3.58 in relation to this decision). However, there are numerous statements of the principle dating back to the 19th century. See the Annexure for more recent statements. 3.53  Sometimes the presumption is employed to reinforce a conclusion independently arrived at, as in R v  Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384 at [33]–[37] per Spigelman CJ.

In Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; (2012) 37 VR 232 at [40] the Victorian Court of Appeal spoke approvingly of the general approach discussed above but added that the approach ‘should not lead the court to perpetuate the construction of a statutory provision which it considers to be erroneous’. Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529 at [20] was cited in support of this qualification. The presumption can only apply when the same words have been re-enacted after interpretation: Thompson v  Smith [1976] HCA 56; (1976) 135 CLR 102 128

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at 109; 12 ALR 513 at 518 per Gibbs J; Quality Bakers v ALHMWU [2004] NSWIR 318 at [40]. However, each case depends on its own circumstances. In Te v  Minister for Immigration and Ethnic Affairs [1999] FCA 111; (1999) 88 FCR 264 at [29]–[30] the Full Court of the Federal Court concluded that the presumption provided at least some support for a conclusion independently reached, where the re-enactment was in ‘substantially the same language’ as that which had been construed. A similar approach to a slightly different situation to that in Pillar v Arthur was adopted in Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133. In the latter case a section of the Justices Act 1886 (Qld) had been consistently interpreted in a certain way by the Queensland courts. After these decisions the section was amended but without affecting that part of the section that had been the subject of interpretation. Rich, McTiernan and Williams JJ took this into account as indicating that the legislature was satisfied that the longstanding interpretation was correct. South Australian courts are obliged to be an exception to the practice described above. Section 18 of the Acts Interpretation Act 1915 (SA) provides: The enactment or re-enactment of a provision that has been construed in a particular manner (judicially or otherwise) in this State or elsewhere creates no presumption that Parliament has sanctioned or approved that construction.

However, see the comments of Doyle CJ in Police v Novak [2000] SASC 82; (2000) 76 SASR 551 at [16] where his Honour was prepared to note that ‘the settled interpretation has not been seen as giving rise to unsatisfactory results’. Re-enactment presumption not followed in case of re-enactment in consolidation 3.54  It seems clear that the re-enactment presumption does not automatically apply to provisions re-enacted in consolidating Acts. In Williams v  Dunn’s Assignee [1908] HCA 27; (1908) 6 CLR 425 at 441 Griffith CJ said:

The doctrine that, where a particular provision in a Statute has received definite judicial interpretation and the legislature afterwards repeals that provision and substitutes for it another in the same language, it should be presumed that they intended to adopt the interpretation that had been put upon the words by the Courts, has no application unless it appears that the legislature intended to apply their minds to the subject. In the present case it appears from the nature of the legislation that the legislature intended a mere consolidation of existing statutory provisions, whatever they might mean.

This approach was taken up with even greater vigour by the majority of the court, Isaacs and Higgins JJ, in Melbourne Corporation v  Barry [1922] HCA 56; (1922) 31 CLR 174. In that case decisions on the validity of certain by-laws made under a section of the Local Government Act 1874 (Vic) had been followed by the re-enactment of that section in a consolidation of the Act. Knox CJ took the traditional approach outlined in 3.51 and held that the re-enactment of the section after decisions as to its scope meant that 129

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the legislature was adopting the relevant words as so interpreted. Isaacs and Higgins JJ held to the contrary. They drew a distinction between using words from an Act that had been interpreted and merely consolidating an existing Act. Isaacs J said (at 186–7): [W]hen Parliament is considering de novo what the law shall be on any given subject, and it finds in a previous Act words which have received by judicial interpretation a well settled meaning or effect, and introduces those words verbatim or without any appreciable difference, merely accommodating them to their new surroundings, they are generally presumed by a Court to have been adopted in the accepted sense. But even then, there is no rigid rule of law on the subject.

His Honour then turned to consider the position with consolidations and said (at 188): In passing those Acts, Parliament was addressing its mind not to the matter but the form of the law, and was considering not what it should enact but how existing law should be arranged. Statutory provisions were collected and systematized, but with the intention that their effect was to be precisely the same after the work was completed as before.

See also Dixon CJ in R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 at 388: I have been unable to regard re-enactment in consolidating statutes where periodical consolidation is practised as meaning anything at all as to judicial decisions upon the provisions repeated in the consolidation.

From these decisions it appears that the presumption has little application in relation to consolidating Acts. And this is as it should be. Even if one accepts the proposition that the parliament is aware of existing judicial interpretations, in enacting consolidating Acts, as Isaacs J says, parliament does not reconsider the content of the law but only its form. The general principle ought therefore to have no application. In R v Aubrey [2012] NSWCCA 254; (2012) 82 NSWLR 748 at [47]–[48] Macfarlan JA applied the sentiments quoted above. He decided that despite minor substantive changes the Crimes Act 1900 (NSW) had the character of a consolidating statute and he concluded that there was no basis for inferring that the legislature had addressed its mind to the interpretation of a corresponding United Kingdom provision in a decision of the Queen’s Bench Division. The interpretation of consolidating Acts generally is discussed in Chapter 8. On the issue discussed in this paragraph, see further C J F Kidd, ‘The Construction of Consolidating Statutes and the Barras Principle: The Significance of Farrell v Alexander’ (1977) 51 ALJ 256. Re-enactment presumption limited to legislation enacted after considered decision of court 3.55  A further limitation on the general application of the presumption was stated by Barton and O’Connor JJ in Williams v  Dunn’s Assignee [1908] 130

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HCA 27; (1908) 6 CLR 425. They held that it has no application where the interpretation is not the result of a considered decision upon the meaning of particular words. If a court is merely expressing an opinion on a point not necessary for the decision of the particular case, legislation enacted after the expression of that opinion should not be regarded as being affected by it. This point was also made in MacKay v Davies [1904] HCA 20; (1904) 1 CLR 483 at 491 by Griffith CJ and by the Full Court of the Supreme Court of South Australia in University of Adelaide v Mitcham District Council [1937] SASR 288. Whether re-enactment presumption applies only to decisions of superior courts 3.56 In Northrope v City of Hawthorn [1941] VLR 178; [1941] ALR 200 Lowe and Gavan Duffy JJ declined to take into account the re-enactment of certain legislation after a decision of a district court as to its meaning. They said the general principle applied only to decisions of superior courts. McFarlan J disagreed, declaring that, while it might not be conclusive, it was not without weight in determining the construction to be put on the section. The view of Lowe and Gavan Duffy JJ was applied in Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529 at [20] per Batt JA.

However, in Australian Capital Territory (Chief Minister’s Department) v  Coe [2007] ACTSC 15; (2007) 208 FLR 448 the Australian Capital Territory Supreme Court applied the re-enactment presumption to decisions of the Commonwealth Administrative Appeals Tribunal. Language in a section of the Freedom of Information Act  1982 (Cth), which had acquired a settled interpretation in decisions of the Commonwealth Administrative Appeals Tribunal, was followed precisely in an almost-identical section of an ordinance that upon self-government became the Freedom of Information Act  1989 (ACT). At [17] the conclusion that the presumption should be applied was strengthened by the consideration that, despite a Senate Committee recommendation that different language should be used, the Commonwealth had adhered to the original language in the 1982 Act. In Re Her Honour Judge Schoombee; Ex parte Attorney-General for Western Australia [2011] WASCA 129; (2011) 58 MVR 315 at [54] Buss JA assumed, without having to decide the point, that the presumption applied to decisions of the District Court of Western Australia in its appellate jurisdiction. Doubts cast on value of re-enactment presumption 3.57  Even with the limitations referred to in the previous paragraphs that markedly circumscribe its operation, the general presumption has been subjected to attack by decisions of the High Court that raise doubts as to whether it should ever be followed.

In Salvation Army (Vic) Property Trust v  Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159 the Supreme Court of Victoria had interpreted the phrase ‘charitable purposes’ in the Local Government Act  1946 (Vic) 131

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(where exemption from rates was given in respect of land used for that purpose) as not being used in its technical sense but in its ‘popular’ sense. The relevant section had been re-enacted after this interpretation. It was pressed on the High Court that the Victorian interpretation should be followed on the presumption of re-enactment after interpretation. Dixon, Williams and Webb JJ, after referring to the general rule, continued (at 174): But this principle affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous.

Fullagar J went even further. After referring to the argument, he said (at 182): This is a familiar, but somewhat artificial, argument. It never carries great weight: indeed it can seldom be effectively used except as lending additional support to a view which is already supported by an independent argument.

McTiernan J expressed the contrary view (at 176) and purported to follow the general presumption. Further doubt was cast on the general presumption by Dixon CJ in R  v  Reynhoudt [1962] HCA 23; (1962) 107 CLR 381. A provision had been re-enacted a number of times in the course of consolidations of the Crimes Act 1958 (Vic). There had been several decisions as to the meaning of the section. Taylor, Menzies and Owen JJ stated that they were reinforced in their decision by the successive re-enactments of the legislation after the interpretation referred to. These judges were of the opinion that the earlier decisions were correct. Dixon CJ who (with Kitto J) dissented from the view of the other judges as to the meaning of the section, said at 388: I have been unable to regard re-enactment in consolidating statutes where periodical consolidation is practised as meaning anything at all as to judicial decisions upon the provisions repeated in the consolidation. In any case the view that in modern legislation the repetition of a provision that has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of lawmaking no longer provide it with the foundation in probability which the doctrine was once supposed to have possessed.

The view of Dixon CJ was more recently endorsed in the High Court. In  Flaherty v  Girgis [1987] HCA 17; (1987) 162 CLR 574 at 594; 71 ALR 1 at 14 Mason ACJ, Wilson and Dawson JJ commented, after quoting the passage from R v Reynhoudt set out above: ‘For the reason given by Dixon CJ, the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct.’ In Barns v Barns [2003] HCA 9; (2003) 214 CLR 169; 196 ALR 65 at [113] Gummow and Hayne JJ said: ‘There is no such canon of construction, which would trench upon the judicial function.’ See also the cases referred to in the Annexure. 132

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In Foots v  Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52; 241 ALR  32 Gleeson CJ, Gummow, Hayne and Crennan  JJ quoted Dixon CJ’s comment on the artificial nature of the re-enactment principle, adding ‘that artificiality is all the more apparent when the judicial exposition in question is more a gloss than an interpretation of a particular text’ (at [63]). Finally, in a dissenting judgment in Fish v  Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180; 227 ALR 241 Kirby J challenged the assumptions on which the re-enactment principle was based, saying (at [125]): ‘Such assumptions are now commonly treated as legal fictions. The assumption of close parliamentary scrutiny of all judicial decisions would stretch the legal imagination too far.’ The re-enactment principle has also been criticised in England. In Galloway v Galloway [1956] AC 299 at 320; [1955] 3 All ER 429 at 437 Lord Radcliffe described it as an ‘almost mystical method of discovering the law’, and in Farrell v  Alexander [1977] AC 59 at 74; [1976] 2 All ER 721 at 727 Lord Wilberforce said of the principle: ‘[I]t seems to me to be based upon a theory of legislative formation which is possibly fictional.’ See also R v Chard [1984] AC 279 at 294–5; [1983] 3 All ER 637 at 643–4 per Lord Scarman. Continued application of re-enactment presumption 3.58  In the light of these criticisms it might be thought that the re-enactment presumption would have fallen into disuse. However, as the more recent authorities cited in 3.52–3.53 indicate, that has not proved to be the case. Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96; 123 ALR 193, in which (at 106–7; 200) the High Court unanimously applied the re-enactment presumption, gives a hint as to why the presumption may survive. In that case the court commented that the presumption was considerably strengthened by the legislative history of the Act in question. The re-enactment of the provision under consideration had been preceded by a report of a committee of review that had recommended a different course of action from that adopted by the parliament in the amending Act. The second reading speech of the minister indicated that the government had not accepted the committee’s recommendation on this matter. This tended to reinforce the presumption that parliament had not intended to overturn the decision interpreting the words which it had re-enacted.

The Alcan Australia case arose under the Industrial Relations Act  1988 (Cth). Two years after it was decided, the Workplace Relations Act 1996 (Cth) was enacted. In Electrolux Home Products Pty Ltd v  Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 329; 209 ALR 116 at [81] McHugh J noted the similarity between a provision in the earlier Act that had been interpreted in the Alcan Australia case and a provision in the later Act and added: The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in ‘replacement’ 133

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legislation. However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions — or at all events decisions of this Court — dealing with that portfolio. Indeed, it would be astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of Re Alcan.

Gleeson CJ (at [7]–[8]), Gummow, Hayne and Heydon JJ (at [161]) and Callinan J (at [251]) reached similar conclusions; cf Kirby J at [206]. In Workcover Authority of New South Wales  (Inspector Belley) v  Freight Rail Corporation [2002] NSWIRComm 28; (2002) 117 IR 99 at [62] Haylen J observed that the criticisms of the presumption that were based on its artificiality applied with less strength ‘where Parliament deals with statutes administered by specialist tribunals or where there is a legislative history of frequent review and amendment’. Numerous examples of the application of the presumption are to be found in the decisions of the Australian Industrial Relations Commission and state Industrial Relations Commissions. See Paul Fishlock v  Campaign Palace Pty Ltd [2013] NSWSC 531; (2013) 234 IR 1 at [317]–[319]. See  also the discussion of Australian Capital Territory (Chief Minister’s Department) v Coe [2007] ACTSC 15; (2007) 208 FLR 448 at 3.56. In more recent examples of the possible application of the re-enactment presumption the courts have considered the subject matter of the legislation and the context of its enactment, looking for indications as to the likelihood that the parliament, the minister or the department knew or would have known of a judicial interpretation of language that has been repeated in the later enactment. See the cases referred to in the Annexure. Application of re-enactment presumption to decisions in other jurisdictions 3.59  To this point only the approach where legislation has been re-enacted after interpretation by courts in the same jurisdiction has been considered. There are also cases that refer to the approach to be adopted where an Act is passed by one parliament in similar form to that passed by another and there are decisions of the appropriate courts on the meaning of that other Act. The earlier Australian cases adopted an approach that was in line with the theory underlying the general principle referred to in 3.51 that re-enactment after interpretation is taken to constitute legislative approval of the interpretation.

Where an Act was passed in Australia that was in similar terms to, say, an English Act, then the legislature was to be assumed to know the judicial interpretation that had been placed on that Act by English courts and to have intended that it should be followed in Australia: see the cases referred to in the Annexure. The same approach has been applied to decisions by other Australian state courts: Perth Local Board of Health v Maley [1904] HCA 28; (1904) 1 CLR 702 but not foreign courts: National Mutual Life Association of Australasia Ltd v Godrich 134

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[1909] HCA 93; (1909) 10 CLR 1 (decision of New York State Court); cf Warnecke v Equitable Life Assurance Society of the United States [1906] VLR 482. For more recent examples, see Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 325; Strachan v Brown [2000] TASSC 142; (2000) 9 Tas R 291 at [19]. Reluctance to follow the re-enactment presumption and the wellestablished independence of the Australian judiciary have combined to change the attitude of Australian courts towards following English decisions that interpret statutes. Judges have long been unwilling simply to follow English decisions on like legislation: see, for example, Humphreys v Smith; Ex parte Smith [1963] Qd  R 67 (meaning of ‘obscene’). If an English decision on similar legislation is followed it is probable that this will have been due to the fact that the Australian court has found the reasoning of the English court to be persuasive. The persuasiveness of the reasoning of the decision is also likely to be the primary reason why an Australian court would now follow an Australian decision from another state or territory or a federal court decision. Another reason for following such a decision is that the courts recognise that it is highly desirable that there should be some uniformity in decisions of the different Australian jurisdictions. In particular, see 1.16–1.22. Although it is less likely to be the case than formerly, inter-jurisdictional uniformity of decision-making may also be a reason for following some English decisions. So in Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 at 211 the High Court said: The provision under consideration [contribution between joint tortfeasors] has been transcribed from the English statute in a number of jurisdictions and it is highly convenient that it should be given the meaning and application which it has received in England.

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CHAPTER 4

Intrinsic or Grammatical Aids to Interpretation INTRODUCTION 4.1  Legislation is, at its heart, an instrument of communication. For this

reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: ‘What message is the legislature trying to convey in this communication?’ In an endeavour to comprehend correctly that message, resort should be had to grammar texts and to standard dictionaries: see 3.33. This is what judges do (although, like most people, they think themselves sufficiently expert in the rules of grammar to be able to eschew any formal assistance). The courts have, furthermore, expounded a number of useful guides that, while in some cases being little more than paraphrases of grammatical rules, are nevertheless particularly apposite to the understanding of legislation. This chapter is concerned with these guides. However, it must be recognised that they are but guides. The task of the interpreter is to ascertain the meaning of the legislation as is described in the preceding chapters. Act to be Read as a Whole 4.2  The starting point to the understanding of any document is that it

must be read in its entirety. A writer will not expect an audience to read only selected passages and will therefore make different passages dependent one upon another. The courts have frequently said that the same approach is applicable to the interpretation of an Act: ‘[E]very passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument’: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union [1924] HCA 46; (1924) 35 CLR 449 at 455 per Isaacs and Rich JJ; see also Scott v Federal Commissioner of Taxation [1966] HCA 48; (1966) 117 CLR 514 at 524 per Windeyer J; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds. It is often tempting to look only at the section that seems immediately applicable to the problem in hand. However, this is as likely to lead to a misconception of the total effect of the 136

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provision as is the reading of a passage of a novel out of context. (The dicta and comment set out above were cited in Williamson v New South Wales [2010] NSWSC 229 at [57]–[58].) Dixon CJ said in Commissioner for Railways (NSW) v  Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397: ‘The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’ This comment was cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [69] where the court added: ‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.’ In a frequently cited passage in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315; 60 ALR 509 at 514, Mason J affirmed the significance of a contextual approach in trenchant terms: … to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context (Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151 at 156–7, 169; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.

Kourakis CJ in Palace Gallery Pty Ltd v Workcover Premium Review Panel [2014] SASCFC 60; (2014) 119 SASR 408 at [29] observed that: The legislative history of a statute is an important aid to its construction but it is an important principle of statutory construction that the meaning of legislation, as in force from time to time, must be ascertained from the words of its provisions, in their current statutory context, and so that the statute operates as a coherent whole. That principle of statutory construction would be subverted if a piecemeal, isolated, historical construction were given to each provision.

For further examples see the Annexure. In Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580 at [43] the court rejected an argument based on s 64 of the Interpretation Act 1987 (NSW) that the section in question should not be read having regard to the other provisions of the Act. Section 64 provides that ‘[e]very section of an Act has effect as a substantive enactment without

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introductory words’.1 The court said that the Interpretation Act provision was included only to avoid the repetition of enacting words before each section and was not intended to limit the obligation to read an Act as a whole. The importance of looking at context first and not merely as an aid to the resolution of ambiguity was emphasised again by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 634–5. The additional comment was made that context here was being used in its widest sense to ‘include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy’. See further 3.5. Interpretation problems can arise if it is not recognised that a word of indefinite meaning may well include certain things when used in one Act, but have its scope limited in the context of another. So the word ‘carriage’ was held from the context in which it appeared in the Licensing Act  1872 (UK) and the Highways Act 1835 (UK) to include a bicycle but did not have this meaning when used in a Turnpike Act: see Corkery v Carpenter [1951] 1 KB 102; Taylor v  Goodwin (1879) 4 QBD 228; and Williams v  Ellis (1880) 5 QBD 175, respectively. The interpretation of ‘perform in public’ when used in the Copyright Act 1968 (Cth) had to take into account its special meaning in the history of copyright law: Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1992) 40 FCR 59 at 62; 111 ALR 671 at 674. See further 4.14–4.15. 4.3  The apparent scope of a section may also be limited by other sections in

the Act. The courts have said that different sections must be read in such a way that they will fit with one another. The court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [70] said of the position where there was apparent conflict between provisions in an Act: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

1. The equivalent provisions in the other jurisdictions are: Cth s 12; ACT: no provision; NT s 54; Qld s 10; SA s 6; Tas s 6; Vic s 7; WA s 29. 138

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The Act must be read as a whole to determine the issue of hierarchy and harmony. This may require a section to be read more narrowly than it would if it stood on its own: Ross v R [1979] HCA 29; (1979) 141 CLR 432 at 440; 25 ALR 137 at 145; Commissioner of Stamps v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 479; 133 ALR 130 at 147; Chikonga v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 49 at 51. Or more broadly: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; 241 ALR 363 at [39] where it was said that if certain sections were not read subject to another section, the latter ‘would have very little work to do’. Basten JA in Attorney General (NSW) v XY [2014] NSWCA 466 at [153] said that it was ‘an important presumption … that all parts of the statute should have work to do and, in the case of apparent contradiction, a construction which gives work to each section is preferable to one which renders one or other section nugatory’. See Channel Pastoral Holdings Pty Ltd v Commissioner of Taxation [2015] FCAFC 57; (2015) 232 FCR 162; 321 ALR 261 at [6]–[7] for comment on the determination of hierarchy in densely drafted legislation such as income tax Acts. The same general approach as that set out above applies in regard to the operation of expressions within a particular section: ‘Their meaning and operation must be read with and accommodated to the rest of the section’: per Barwick CJ in Taylor v Public Service Board [1976] HCA 36; (1976) 137 CLR 208 at 213; 10 ALR 211 at 215. The approach of looking at the whole of an Act may also result in a limitation of the effect of an expression even though it has been defined in the Act: Hall v Jones (1942) 42 SR (NSW) 203 (see 2.41, 6.12); Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139 at 150; 154 ALR 550 at 561; Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 at 442. But compare Police v Thompson [1966] NZLR 813 at 818 per North P: … [W]here a statute contains a definition section giving a word or phrase an extended meaning beyond its ordinary meaning, a Court of construction should commence its inquiry by assuming that the Legislature intended the word or phrase to have its statutory meaning … only rarely indeed will the Court be justified in departing from that meaning.

There may, however, be circumstances where a word is so inherently ambiguous that its meaning cannot be derived from other usage in the Act. In such a case, the proper course is to look to the section in which it appears and construe it in that context and having regard to other accepted canons of interpretation: Battaglini v  Interfren Pty Ltd (1989) 16 NSWLR 378 (the word ‘false’). In the Australian Capital Territory, s 140 of the Legislation Act 2001 (ACT) gives statutory recognition to the requirement of reading provisions in the context of the Act as a whole.

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See  further 4.53 and 12.4 in relation to requirements that nominate a leading provision by means of expressions such as ‘subject to’. Context where Act Divided into Parts 4.4  The general principle that words of an Act must be read in the context

of the Act as a whole may be qualified where an Act is divided into Parts. In  an older case, Re Commercial Bank of Australia Ltd (1893) 19 VLR 333 at 375, Holroyd J said: When an Act is divided and cut into parts or heads, prima facie it is, we think, to be presumed that those heads were intended to indicate certain groups of clauses as relating to a particular object … The object is prima facie to enable everybody who reads to discriminate as to what clauses relate to such and such a particular subject matter. It must be perfectly clear that a clause introduced into a part of an Act relating to one subject matter is meant to relate to other subject matters in another part of the Act before we can hold that it does so.

This approach postulates that the content of a Part may result in a different meaning being given to a word than if it were viewed in the context of the Act looked at as a whole. This may be correct if it is clear that it is intended that the scope of the word be so confined. See, for example, Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213 FCR 449; 136 ALD 536 at [24]. However, Nettle J in Chakera v Kuzamanovic [2003] VSC 92 observed that modern Acts of Parliament tend to contain many more sections than Acts used to do. His Honour doubted that the sort of precision that was contemplated in Re Commercial Bank of Australia Ltd can be expected these days. It was said in United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24; (2012) 289 ALR 682 at [64] that it was improbable that it had been intended to give a word different meanings in different parts of the Act. The sections in question should be treated as consistent and harmonious. It seems that the interpretation of words should start by deriving their meaning from the Act as a whole. However, this approach will be modified if it is apparent that Parts into which an Act is divided are self-contained (this passage was cited in Australian Postal Corporation v Sinnaiah, above). Then it can be plausibly argued that the scope of the words is to be derived from the Part and not from the Act as a whole. Order in which Sections to be Read 4.5  Given that an Act should be read as a whole, in what order should its

sections be read? In Patman v  Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 at 474–5 in the New South Wales Court of Appeal Priestley JA said: … I see  no reason why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards. In the ordinary course of reading, s  4, although of course it must be read with both what precedes it and follows it, must be read after s 3 and further, in the ordinary course it seems to me that it must be read in the light of s 3. It is preposterous, 140

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in the literal sense, to read s 4, make assumptions concerning its purpose based on its language, without reference to what has preceded it and then to read s 3 in the light of the purpose thus discerned in s 4. A much sounder way of reaching what the draftsman’s purpose was is to read his Act in the sequence in which he wrote it.

This statement was followed in Girardi v Commissioner of State Taxation [2013] SASC 43; (2013) 93 ATR 822 at [8]. This is consistent with the rule that, in the event of a conflict between two  sections in an Act, the later section prevails: see  4.54. However, it is something of a rule of last resort. The High Court in Project Blue Sky Inc v  Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [70] provided more definitive guidance: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [citations omitted]

See  also Coca-Cola Amatil (Australia) Pty Ltd v  Northern Territory [2013] FCA 154; (2013) 300 ALR 476 at [37] and see further the discussion later in this chapter of the expressio unius and the generalia specialibus principles beginning at 4.43 and 4.51, respectively. Words are Assumed to be used Consistently General approach 4.6  The good writer will generally endeavour to be consistent in the choice

of words. However, such are the riches of language that it is considered acceptable in order to avoid monotony to use synonymous expressions to describe the one idea or thing. But a drafter of legislation cannot take these liberties. He or she must be precise in the use of words and one word can rarely be the exact substitute for another. The courts have also long adopted a twofold approach to the interpretation of legislation that is founded on the expectation that words will be used precisely. First, the view is taken that where a word is used consistently in legislation it should be given the same meaning consistently. Second, it is held that, where a legislature could have used the same word but chose to use a different word, the intention was to change the meaning.

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Consistent interpretation 4.7  The first part of this approach is well stated in Craig Williamson Pty Ltd

v Barrowcliff [1915] VLR 450 at 452 by Hodges J:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.

See the Annexure for further examples. Similar views to those set out above were expressed in R v Central Cane Price Board; Ex parte Colonial Sugar Refining Co Ltd [1917] St R Qd 1, but in that case the Full Court of the Queensland Supreme Court held that the legislature had deliberately used a word in two different senses. In McLeish v FT Eastment and Sons Pty Ltd (1970) 91 WN (NSW) 268 the Court of Appeal assiduously sought an interpretation of the word ‘undertake’ that could be used whenever the word appeared in the Electricity Development Act 1945 (NSW). See also McMillan v Pryce (1997) 115 NTR 19 at 23 where it was held that an expression used twice in the same section should be read as encompassing the same ‘sphere of operation’. Where a term is defined in the legislation, it should be assumed that the definitional meaning is used consistently: Carroll v Secretary to the Department of Justice [2015] VSCA 156 at [22]. Change word — change meaning 4.8  The second part of the rule is stated in Scott v Commercial Hotel Merbein

Pty Ltd [1930] VLR 75. In that case it was held that a subsection expressed in general terms in a section imposing duties on councils only should not be read as imposing a duty on all persons as there was not such change of language as would warrant the assumption that the legislature had ceased to talk only about councils and was now talking about all persons. Irvine CJ succinctly summarised the courts’ approach (at 30): ‘[T]hough it is not to be conclusive, the employment of different language in the same Act may show that the Legislature had in view different objects.’ Similar views were expressed by Mayo J in O’Sullivan v Barton [1947] SASR 4. An example of the operation of the approach is provided by Bell v Day (1886) 2 QLJ 180. The court there held that the use of the expression to ‘license’ an activity in certain by-law-making powers indicated that other powers to ‘regulate’ activities must be taken not to enable the establishment of licensing schemes. The change in terminology would otherwise be meaningless. Another good example is provided by Construction, Forestry, Mining and Energy Union v  Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; 248 142

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ALR 169. There, to establish breach of a number of sections of an Act, there was an express requirement for it to be known that a statement was false. This led to the conclusion that, where there was not such an express reference to knowledge in another section, the omission was deliberate. In LM v  K Lawyers (No 2) [2015] WASC 245 at [18] it was said that the ‘change the language — change the law’ approach applied more particularly if the parliament abandoned a long-established form of words known to import a body of law. However, it is necessary to bear in mind that the change of language may be forced by context. This will particularly be the case where an amending Act amends more than one piece of legislation. Then the apparent change in language may be driven by the words of the Act being amended. In Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and de Waal [2009] AATA 635; (2009) 50 AAR 40 at [39] the Administrative Appeals Tribunal held that the use of different language in amendments to three related welfare Acts was brought about by the wording of the Acts being amended and not by an intention to establish a different set of procedures. To the extent that the rule carries any weight (as to which see  4.9), it is applicable only in respect of words appearing in a single piece of legislation. It is not applicable where the same word is used in different Acts: Totalizator Agency Board v Federal Commissioner of Taxation (1996) 69 FCR 311 at 320; 139 ALR 644 at 652. However, the approach to the interpretation of similar Acts (see 3.42) may be relevant where the same words are used in different Acts. Approach readily rebuttable 4.9  The counsel of perfection that is contemplated by the approach

described above is not always attained. As a result the courts have been ready to depart from that approach with very little compunction. In Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590 Higgins J said: There is sound sense in the statements contained in Maxwell’s Interpretation of Statutes, 6th ed, pp 557, 564, to the effect that although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.

See also Gibbs ACJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633 at 643; 24 ALR 175 at 178 for an expression of a similar view. For other examples of courts declining to follow the presumption of consistent use see the Annexure. The presumption that a word has been used consistently will more readily be abandoned if the context in which it appears in one place in an Act compels some other than the ordinary meaning to be placed upon it: Mort v  Bradley [1916] SALR 129. 143

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The difficulty of maintaining consistency in a large and frequently amended Act will reduce the likelihood of the court feeling bound to give a word the same meaning throughout: Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96 (the landlord and tenant Acts); Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53; [2009] VR 1 at [10] (Environment Protection Act  1970 (Vic)); Robert Bosch (Australia) Pty Ltd v  Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374 at [35] (ACIS Administration Regulations 2000 (Cth): citing the comment above). This problem is particularly germane to tax Acts: see 9.52. Where an Act amends a number of Acts in relation to a particular topic, care must be taken before drawing conclusions based on the consistency of the language used because the words must be read in the context of the respective Acts in which they appear: Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and De Waal [2009] AATA 635; (2009) 50 AAR 40 at [39]–[40]. The frustration that can be felt in dealing with frequently amended Acts is brought out by the comments of Napier CJ in Corporation of Campbelltown v Johnson [1954] SASR 247 at 252 in relation to the Local Government Act 1934 (SA): The provisions of the statute are involved and confusing, and it seems to me that there is little to be gained by comparing the language used in the different provisions of the Act, or by studying the history of the legislation. It is obvious that the language has been altered, and that provisions have been added, from time to time, in order to meet particular situations or objections, without any regard to the general conspectus, until the whole suggests not so much a thing of shreds and patches as a heap of junk. I propose, therefore, to start by looking at the wood before examining the trees.

By way of contrast with these cases, see Freeman v Medical Practitioners Board of Victoria [2000] VSC 547; (2000) 17 VAR 106 where the fact that the Act was brief and had not been amended pointed to the conclusion that the use of different terminology was intentional. Another ground for declining to follow the general rule was discussed by Anderson J in Timothy v Munro [1970] VR 528. His Honour there mentioned that, if an Act had been amended following upon a judicial decision as to the meaning of certain words, a court should not limit the effect of the amendment solely on the ground that it would involve interpreting a word differently in different sections. The conclusion on the application of the approach referred to here will ultimately turn on the view the court forms as to the care exercised by the drafter in the choice of words. If it should be shown that a word has been used with different meanings in an Act, then the argument for consistent interpretation cannot stand. If, on the other hand, it is clear that a word is used throughout an Act to convey one meaning, then the burden of showing that there was an inconsistent use should be regarded as difficult to discharge. 144

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See  Accident Towing and Advisory Committee v  Combined Motor Industries Pty Ltd [1987] VR 529 at 540 where this passage is expressly endorsed. While there is obvious advantage to both drafter and reader in using terminology consistently, the ‘change the wording — change the meaning’ approach can lead to difficulties. If a drafter wishes to include in an Act a new section dealing with a subject matter that is already referred to in the Act, he or she is virtually obliged to use like terminology to that which is already there. This is so even though there is some doubt whether the existing words are satisfactory. If new words are used, they will be taken to mean something different from the existing provision. If the existing provision is amended to avoid the drafter’s doubts, it will be assumed that there was an intention to change the law. Statutory intervention 4.10  To overcome the dilemma referred to in 4.9, the Commonwealth, Australian Capital Territory, Queensland and the Northern Territory have included in their Interpretation Acts2 sections providing that the statement of an idea in different words ‘for the purpose of using a clearer style’ should not be taken to mean that a different idea is being expressed. Those sections are undoubtedly useful in indicating that the approach alluded to in that paragraph should not be applied mechanically. It nonetheless places an onus on interpreters to grapple with the question whether it is the same idea that is being differently expressed. Contrast Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370; 103 ALR 307 at 312 where Sheppard J recognised that a change in language was accounted for by a change in style, not an intention to change the substance of the legislation, and Anstis v Secretary, Department of Social Security [1999] FCA 1176; (1999) 94 FCR 421; 59 ALD 706 at [120] where Weinberg J rejected this as an explanation for a change in wording.

In Woodrange Pty Ltd v  Le Grande Broadwater Body Corporate [2004] QDC 215; Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145 at [43]; and Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317; (2015) 245 FCR 129; 327 ALR 670 at [69] the Interpretation Act provision was expressly relied upon to find that a change in wording was not intended to change the effect of the provision in question. See  also Commissioner of Taxation v  Stone [2005] HCA 21; (2005) 222 CLR 289; 215 ALR 61 where the High Court referred to a like provision in the income tax legislation. The court said that the provision required regard to be had to the interpretation that had been given to an earlier section when determining the meaning of a later section that restated it in different language. See  further on the operation of the Interpretation Act provisions Interpretation Acts, 3.83. 2. Cth s 15AC; ACT s 147; NT s 62C; Qld s 14C. 145

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Words to be Interpreted in Accordance with their Ordinary and Current Meaning 4.11  Hall J in Australian Leisure and Hospitality Group Pty Ltd v  Director of Liquor Licensing [2012] WASC 463 at [22] said:

If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended.

Edelman J in SZTAL v  Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [94] said ‘where a statute employs a term in its ordinary sense, there can be no warrant for the extension of the meaning beyond its ordinary sense’. The House of Lords said that courts should be cautious of subjecting words in legislation that have an ordinary, everyday meaning to intensive analysis. Common sense, experience of the world and local knowledge should guide the interpretation of such provisions: Seay v  Eastwood [1976] 1 WLR 1117 at 1121; Cozens v Brutus [1973] AC 854. Kitto J in NSW Associated BlueMetal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514 put it that ‘in the end the conclusion must depend on one’s own understanding of the sense in which words are currently used’. In that case, the High Court concluded that, while Dr Johnson might have defined a ‘quarry’ as a ‘stone mine’, the expression ‘mining operations’ in 1956 did not include the recovery of stone by open excavation. The approach suggested by Kitto J was followed in Korczynski v Wes Loftus (Aust) Pty Ltd (1985) 10 FCR 348 at 355; 62 ALR 225 at 232 in relation to the expression ‘Made in Australia’. Brinsden J in Re Harding; Thornton v Perpetual Trustees WA Ltd [1983] WAR 266 considered that the term ‘de facto widow’ should be taken to be used ‘in a loose colloquial sense’ as the phrase in itself was ‘logical nonsense’. See also Director of Public Prosecutions v Acme Storage Pty Ltd (a pseudonym) [2017] VSCA 90; (2017) 264 IR 215 at [59]ff (‘detriment’). By way of contrast, the New South Wales  Court of Appeal in Barrett v Thurling [1984] 2 NSWLR 683 rejected an argument that ‘children’ was being used in its popular sense in a testator’s family maintenance legislation. The word was intended to have its technical meaning, thereby excluding stepchildren. In Canonba Pastures Protection Board v Leigh (unreported, 26 July 1985) the New South Wales Court of Appeal took the matter a stage further by ruling that the meaning of ‘feral pig’ had to take account of its usage in the particular localities in the state in which there were such pigs. For a general discussion of the issues see  Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237 at [24]. Reference should also be made to the notion that legislation is ‘always speaking’: see 4.14–4.20. 146

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An Act may indicate an intention to depart from the accepted meaning of a word and in such a case the court must follow that direction. So in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 289–90; 125 ALR 577 at 579 ‘guidelines’ were interpreted as having binding effect, not just being ‘guides’, because the Act empowering their making so indicated. 4.12  Care must be taken before applying the approach alluded to above that the word is being used in its ordinary meaning and that its meaning is sufficiently precise that it can be applied in the context in which it appears. Purpose dictates meaning even where it seems that an ordinary word is being used. Gageler J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [40], having referred to the need to have regard to purpose in arriving at the meaning of statutory words, said:

Exactly the same process of contextual construction is involved when the question is one of what content is to be given to a statutorily invoked concept which is expressed in words the ordinary or grammatical meaning of which is well-enough understood but insufficiently precise to provide definitive guidance as to how the concept is to be understood and applied in the particular statutory setting.

In that case what had to be determined was the meaning of the word ‘intention’ in the context of pain or punishment being intentionally inflicted on a person as a result of being returned to their home country. If it is unclear whether a word has been used in its ordinary or in a special sense, regard may be had to extrinsic materials to determine the matter: Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282; 287 ALR 186 at [48]. Where a word is to have the meaning prescribed in regulations and there has been a failure to make such regulations, the word may be interpreted as having its ordinary meaning: Lamont v Keenan [2003] WASCA 82; (2003) 38 MVR 381. However, it is doubtful whether this approach could be applied if the primary legislation contemplated that the word was to have effect in a specialised sense and that sense had not been spelled out. See  further D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, [12.22]. Where an Act uses an expression that appears newly coined or does not have an accepted meaning, the court must make the best that it can of it having regard to the context in which it appears: Jankovic v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 261 at 268 (‘non-dependent child’). If a word is being used in its ordinary sense, it is not possible to lead evidence for the purpose of interpreting the word: General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 at 55 (Privy Council). See further Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 296–7; 132 ALR 632 at 639 where Hill J usefully refers to the relevant authorities (but at 299; 641 questions the validity 147

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of the approach). The only exception to this might be if an expert were to give evidence as to the linguistic development of a word: at 301; 643. Such evidence was permitted in Dyson v Pharmacy Board of New South Wales [2000] NSWSC 981; (2000) 50 NSWLR 523 to show that a word had developed other meanings beyond those appearing in dictionaries. Even where a word might have a special meaning in a particular trade, if the intent is to use the word other than in its technical sense evidence of that technical meaning is inadmissible: Staltari v Pharmacy Restructuring Authority (1995) 36 ALD 555 at 561. For the interpretation of technical words see 4.21–4.27. On the use of dictionaries to determine the meaning of words see 3.33–3.35. Interpretation of Composite Phrases 4.13  Lord Halsbury in Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 at 599–600 (quoted by Barton J in Lorimer v  Smail [1911] HCA 44; (1911) 12 CLR 504 at 510) said: ‘It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed.’ Dixon J in Lloyd v Commissioner of Taxation [1955] HCA 645; (1955) 93 CLR 645 at 660 said of the legislation under consideration: ‘It is a compound phrase and like most compound phrases its application cannot safely be ascertained by taking each separate word of which it is composed and then exploring the uses of which by itself the word is capable.’

Gordon J in Sea Shepherd Australia  Ltd v  Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 at [34] put it: ‘The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision.’ Gleeson CJ in XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532; 227 ALR 495 at [19] said: ‘There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts.’ See also Secretary, Department of Social Security v Ekis (1998) 85 FCR 382 at 385; 52 ALD 246 at 249; Uber B V v Commissioner of Taxation [2017] FCA 110; (2017) 247 FCR 462 at [53], [132]; Comptroller General of Customs v Zappia [2018] HCA 54; (2018) 361 ALR 194 at [32] (‘The reference to “the possession, custody or control” of dutiable goods is appropriately construed as a compendious reference …’). This approach was reiterated by the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; 141 ALR 59 with the interesting variant that the establishment of the meaning of the composite phrase ‘silver dye bleach reversal process’ could pay heed to both the ordinary and technical meaning of the words that made up the total expression. 148

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Before the discussion here is applicable, it must be clear that the legislation in question is intended to function as a composite. It may be that the elements of the phrase are intended to function separately: Commissioner of Taxation v Hacon Pty Ltd [2017] FCAFC 181; (2017) 253 FCR 355; 158 ALD 231 at [21]; Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Ltd [2018] FCA 1936; (2018) 363 ALR 717 at [32]–[34]; Commissioner of Taxation v BHP Billiton Ltd [2019] FCAFC 4 at [85]. See  also the discussion in Interpretation Acts, 3.70 about use of an approved form for the making of an application where the issue has arisen whether the making of an application and the use of the form constitute a composite requirement. See further the discussion of the noscitur a sociis principle at 4.33. Legislation Deemed to be Always Speaking General principle 4.14  A problem that is more germane to legislation than to other documents is that of the changes that occur in the meaning and scope of words with the passage of time. Most documents are read within a relatively short period after they have been written. The reader can assume that the writer has used words in accordance with their current meaning. However, Acts continue to operate for many years after they are passed and, while it might be considered desirable for them to be amended to bring them up-to-date all the time, this is not or cannot in practical terms be done.

Legislation is usually deliberately drafted with the intention that the text is to be regarded as ambulatory, thereby embracing future changes in the subject matter: cf R v Gee [2003] HCA 12; (2003) 212 CLR 230; 196 ALR 282 at [7] where Gleeson CJ noted that the legislation in question was drafted with the intention of picking up changes that might be made to procedural requirements in state courts. The knowledge extant at the date of enacting the legislation may enable the parliament to identify the problem with which the legislation is intended to deal but it may choose not to define ‘its metes and bounds’: Stingel v Clarke [2006] HCA 37; (2006) 226 CLR 442 at 459; 228 ALR 229 at 239. In Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 145 Spigelman CJ observed that as ‘[the] Parliament has chosen a formulation which is of indeterminate scope and of a high level of generality, a court should interpret the provision on the basis that the intention of the original enactment was that the particular application of the provision may vary over time’. However, the matter is often not as clear as this. A word will be used which is applicable to existing entities or activities. The issue may subsequently arise whether that word extends to previously unknown entities or activities of a like kind that have been developed or that have occurred after the legislation was drafted but which appear to fall within its intended field of operation.

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A good example of this issue is afforded by the case of Chappell and Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350. That case concerned the question whether the radio broadcast in a public place of a piece of music constituted a performance in public of the music within the meaning of the Copyright Act 1912 (Cth). It was argued that radio had not been invented at the time when the Act was passed and therefore could not have been in the contemplation of the legislature when it provided that public performance constituted a breach of copyright. The court rejected this argument. Cussen J, delivering the judgment of the court, said that it was not disputed that, if things not known at the time of the coming into operation of an Act fall on a fair construction within its words, they should be held to be included. He gave as an example of this the development of the motor car which in most circumstances, he said, should be assumed to fall within the word ‘vehicle’. A more recent example is provided by Re Treneski and Comcare [2004] AATA 98; (2004) 80 ALD 760 where it was held that a reference to a ‘machine made copy’ extended to a hard copy of an electronic mail message. See also Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [260], [288] in relation to the recording of the sex of a person and noting the change in understanding of such classification. (The decision was affirmed on appeal without the always speaking issue being alluded to: NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; (2014) 250 CLR 490; 306 ALR 585.) The assumption that is adopted by the courts in dealing with this type of issue is summarised in the expression ‘an Act is to be deemed to be always speaking’, that is to say, words in an Act are to be interpreted in accordance with their current meaning. The Interpretation Acts of South Australia and Western Australia expressly require this approach to be adopted.3 Contemporaneous exposition 4.15  The alternative approach that could have been adopted to the issue

of words changing their meaning over time would have been to hold that each word in an Act retains the meaning that it had at the time when it was enacted. Its exposition would be contemporaneous with its making. Such an approach obviously leads to considerable difficulties when circumstances occur that clearly fall within the necessary intendment of the Act but which could not have been contemplated at the time when the Act was passed. The always speaking approach overcomes this problem. However, it is of relatively recent origin. The approach of the courts used to be that Acts were to be construed in accordance with their natural meaning as at the date of their enactment. This rule was given the Latin title, contemporanea expositio est optima et fortissima in lege. 3. SA s 21; WA s 8. 150

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It is clear now, however, that the operation of this rule in its fullest extent has been abandoned except perhaps in the construction of ambiguous language used in very old statutes where the language itself may have had a rather different meaning: Campbell College, Belfast (Governors) v  Commissioner of Valuation (Northern Ireland) [1964] 1 WLR 912 at 941 per Lord Upjohn; Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 23–4; 71 ALR 225 at 240. This is not to say that it will always be assumed that a word is to be given its current meaning. It may be apparent that the legislation was intended to be confined to dealing with entities and activities current at the date on which it is made. In Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531;  233 ALR 254 the High Court considered the construction of legislation which conferred jurisdiction on the District Court of New South Wales by reference to the jurisdiction of the Common Law Division of the Supreme Court of New South Wales and a specified monetary limit. Subsequent legislation reorganised the Civil Divisions of the Supreme Court, and the question was whether the jurisdiction of the District Court was fixed by reference to the position as it was when jurisdiction was first conferred. The High Court held that it was so fixed. At [39] the majority (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ) said that to speak in terms of a rebuttable presumption that a legislative provision is ‘always speaking’ is apt to mislead: What it bespeaks is an exercise in statutory interpretation which seeks to discern what is called the intention of the legislature in enacting the specific provision, having regard to its context, scope and purpose.

Their Honours then went on to address the context, scope and purpose of the section in issue. The court found that the significant matters in that regard were first, that there was no reason to assume that parliament would have intended a provision conferring jurisdiction on a court of limited and defined jurisdiction to be construed as ambulatory. Second, an ambulatory construction would not promote one of the objectives of removing doubt about the District Court’s jurisdiction. Finally, a fixed-time construction was consistent with the other limb of the relevant section which prescribed a monetary limit. Further examples are provided by Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199; 321 ALR 584 (limitations on bringing actions); Joyce v Grimshaw [2001] FCA 52; (2001) 105 FCR 232; 182 ALR 602 (meaning of offence of ‘imposition’). Legal exposition of words 4.16  There is a ‘contemporaneous exposition’ that does have a restraining effect on the courts: namely, legal expositions of the meaning of an Act at the time when it was passed. This can arise in two contexts. 151

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First, an appeal court will be reluctant to overturn a longstanding decision of a lower court — not only because people will have come to rely on it but also because such a decision represents the views of the judges who by proximity in time were more aware of the reasons underlying the passage of the Act. Examples of this approach are afforded by Platz v  Osborne [1943] HCA 39; (1943) 68 CLR 133; Ex parte Armstrong; Re Fahey (1902) 2 N & S (Tas) 104; Thompson v Nixon [1966] 1 QB 103. It is clear, however, that this approach will only prevail where the court is in doubt as to the meaning of an Act and, in such cases, it would seem the wiser course anyway to follow the accepted interpretation. See further 1.12-1.14. Second, the words used in the legislation may have been intended to be interpreted in accordance with the contemporaneous expositions of the law. If it is apparent that the words in question had a clear legal meaning at the time of their enactment, it is possible that the intention was that their operation should be confined to that meaning: Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322–3; 100 ALR 609 at 611 per  Brennan J; Kenneally v  New Zealand  [1999] FCA 1320; (1999) 91 FCR 292; 166 ALR 625 at [53]. (See also the discussion in Australian Competition and Consumer Commission v Daniels Corporation International Pty Ltd [2001] FCA 244; (2001) 108 FCR 123; 182 ALR 114 at [74]–[77] but note that the decision in that case was reversed on appeal: [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 and this also casts doubt on the conclusion, but not the general principle, in Yuill.) However, this approach will be the exceptional rather than the usual position. Ordinarily legal expressions will be treated like other expressions as being ambulatory. So, for example, what constituted an ‘error of law’ was to be determined by having regard to those errors that were currently so categorised even though that might be a wider range of actions than were so regarded when the Act was passed: Szelagowicz v  Stocker (1994) 35 ALD 16. In Aid/ Watch Inc v Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539; 272 ALR 417 French CJ, Gummow, Hayne, Crennan and Bell JJ said at [23]: Where statute picks up as a criterion for its operation a body of the general law, such as the equitable principles respecting charitable trusts, then, in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time. Further, where, as here, the general law comprises a body of doctrine with its own scope and purpose, the development of that doctrine is not directed or controlled by a curial perception of the scope and purpose of any particular statute which has adopted the general law as a criterion of liability in the field of operation of that statute.

Likewise, where an earlier case has defined an expression in a way that does not reflect the current understanding of the expression. In Commissioner of Taxation v  Hunger Project Australia [2014] FCAFC 69; (2014) 221 FCR 302; 314 ALR 333 at [37]–[39] the court considered that the understanding of the 152

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bodies that would fall within the ambit of the expression ‘public benevolent institution’ had changed since the earlier leading authority on its meaning had been handed down. The expression should be considered as ambulatory and should therefore be given its current meaning. Application of Act always speaking approach 4.17  The abandonment of the contemporanea expositio approach in favour of the concept of an Act being regarded as always speaking does not alleviate all difficulties. The application of the approach is illustrated by two High Court cases where the interpretation of words in such a way as to include new developments fell for consideration.

In Lake Macquarie Shire Council v  Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327 the question arose whether a reference to the powers of a council to supply ‘gas’ included the supply of liquefied petroleum gas. It was clear from an examination of the relevant Act that the legislature had in contemplation only coal gas when the Act was passed — simply because it was the only type of gas then available. Barwick CJ and Menzies J considered that the word ‘gas’ was used in its generic sense and was thus not limited to coal gas. Barwick CJ said (at 331): I can see  no reason why, whilst the connotation of the word ‘gas’ will be fixed, its denotation cannot change with changing technologies. Indeed, in my opinion, it would be odd that in granting trading powers, including the power to supply gas for heating and lighting, the Act should intentionally close the door on access by the local government bodies to developing methods of trading in gas for heating and lighting.

In his Honour’s view any new species of gas fell within the expression used in the Act. Windeyer J, on the other hand, considered that the expression should be limited to coal gas. He reasoned on the basis that, when the word was inserted in the Act, it was being used having regard to the use of the word ‘gas’ in other like statutes and to the common use of the phrase ‘gas’ in 1919 when the Act was passed. However, his Honour did concede that his interpretation would lead to considerable inconvenience and was not prepared to press it against the views of the other two judges. The second case was Federal Commissioner of Taxation v  ICI Australia Ltd [1972] HCA 75; (1972) 127 CLR 529. In that case Walsh J at first instance was asked to rule that an operation undertaken by the appellant constituted ‘mining’ within the meaning of the Income Tax Assessment Act 1936 (Cth) thereby entitling the taxpayer to a deduction for its expenditure. The activity involved pumping naturally occurring concentrated brine from the ground and subjecting it to an evaporation process to produce industrial salt. It was clear that when the word ‘mining’ had been included in the Act, the activity being undertaken by the company was not known in Australia. It was argued for the Commissioner that the word ‘mining’ should be interpreted having 153

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regard to what was an accepted mining operation at the time when the right to the deduction was included in the Act. This approach was rejected by Walsh J. His Honour took the view that, if the activity could not have been described as ‘mining’ at the time when the words were included in the Act by any reasonable interpretation of that word, then it would not now be covered by the expression. However, on the evidence, he considered that, if it had been asked, when the word was being included in the Act, whether this sort of activity was a mining operation, an affirmative answer would have been given. On this basis he held that the activity fell within the meaning of the word. (This aspect of the decision of Walsh J was not alluded to in the judgments on appeal: Federal Commissioner of Taxation v ICI Australia Ltd also reported at [1972] HCA 75; (1972) 127 CLR 529.) Words not being used in ambulatory sense 4.18  It must, of course, be certain that the words in question are being

used in a generic sense before the ‘always speaking’ approach can be applied. For example, in Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77 the Court of Appeal was satisfied that an exemption from tax relating to ‘motion picture films’ was intended to apply only to items that fell within that description when the relevant legislation was made in 1932. It therefore did not include a video cassette. The context may also dictate that a word is not being used in an ambulatory sense: Price Brent Services Pty Ltd v Commissioner of State Revenue (1993) 26 ATR 560. (On appeal the court reversed the decision of the lower court without having to decide whether the conclusion reached by applying that principle was correct: [1995] 2 VR 582.) See  also Attorney-General for Tasmania v  L, C [2018] TASFC 6 where it was held that a reference to ‘violence’ in the Victims of Crime Assistance Act 1976 (Tas) did not include domestic non-physical violence. The foregoing analysis of the ‘always speaking’ approach was cited with approval by Lord Steyn in R v Ireland [1998] AC 147 at 158. This was in turn referred to in Aubrey v R [2017] HCA 18; (2017) 260 CLR 305; 343 ALR 538 at [29] with particular emphasis being given to the decision in the Lake Macquarie Shire Council case. For further examples see the Annexure. Technologically neutral language 4.19  Language may be used in legislation that is intended to be

‘technologically neutral’ in order to encompass developments that may not be able to be foreseen at the time of passage of the legislation but to which it is anticipated that the legislation will need to extend. This will often occur in relation to information technology. However, such an approach does not give the court the right to engage in legislating or policy development beyond that which the language used in the legislation will permit. The legislation may be ‘always speaking’ but it can only speak in the words that have been used. 154

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In National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59; (2012) 201 FCR 147; 289 ALR 27 the Full Court of the Federal Court said at [96]–[97]: … [N]o principle of technological neutrality can overcome what is the clear and limited legislative purpose of [the provision in question]. It is not for this court to re-draft this provision to secure an assumed legislative desire for such neutrality … [I]f the apparently confined words of a statute are to be given a more extended scope, not only must they be capable as a matter of language of sustaining such an extension, there must also be some indication in the  legislation, its purpose and context of whether, and if so how, the legislature would wish to extend what, on its face, is the confined scope of the statute or of a section of it.

Where meaning of word has changed 4.20  The most frequently adopted approach to the resolution of the outcome of a case where the scope of a word has changed has been to ask the question: ‘Would the legislature have intended to include the activity or thing in the expression if it had known about it?’ For example, if, as Windeyer J found in the Lake Macquarie case (at 4.17 above), an interpretation to exclude the conduct concerned would lead to considerable inconvenience, it is more likely than not that the court will hold the words to have been used generically, thereby including the particular conduct. See also Aubrey v R [2017] HCA 18; (2017) 260 CLR 305; 343 ALR 538 at [38]. Access to parliamentary and other materials (see 3.9, 3.15) may make this task easier; cf Aubrey’s case at [38].

However, there are likely to be instances where changing social mores would have meant that the earlier parliament would have rejected the extension of the provision if it had been asked: see, for example, Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 where a reference to ‘family’ in 1920 tenancy protection legislation was held to include a de facto partner, including a gay partner. It is highly unlikely that a legislature in 1920 would have accepted such a meaning of the words. In such cases it will be the purpose of the legislation that determines the scope of the provision. See  Jacinta Dharmanda, ‘The “Always Speaking” Principle: Not Always Needed?’ (2017) 28 Pub LR 199 at 204. There it is persuasively suggested that: Instead of engaging in questions about whether text can encompass things not in existence at the time of enactment, or whether a contemporary meaning reflecting contemporary values is consistent with an ambulatory approach, or how the enacting Parliament might have regarded a previously unknown state of affairs, we simply take the Act as we find it and engage in construction.

See  also Dan Meagher, ‘Two Reflections on Retrospectivity in Statutory Interpretation’ (2018) 29 Pub LR 224 where the always speaking approach is compared with the presumption against retrospectivity.

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Interpretation of Legal Technical Words General principle 4.21  Most statutory interpretation is concerned with the meaning to be ascribed to general words, but the courts are also frequently concerned with technical words and phrases. The cases relating to technical words fall into two categories. One group deals with the interpretation of legal technical words and the other with non-legal words that have a technical meaning.

As far as the interpretation of technical legal words is concerned, the approach followed is best stated by O’Connor J in Attorney-General (NSW) v Brewery Employees Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469 at 531: Where words have been used which have acquired a legal meaning it will be taken, prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context. To use the words of Denman J in R v Slator ((1881) 8 QBD 267 at 272): ‘but it always requires the strong compulsion of other words in an Act to induce the Court to alter the ordinary meaning of a well known legal term’.

In that case, it was held that the word ‘trademark’ when used in the Constitution had its technical legal meaning. For further examples of similar views as to the interpretation of technical legal words see the Annexure. However, a warning on the use of this rule was sounded in Webb v McCracken [1906] HCA 45; (1906) 3 CLR 1018 at 1027–8 also by O’Connor J. His Honour, after stating the general rule, continued: But the Court will not treat a group of words as having a technical legal meaning merely because they would convey to a lawyer the same meaning as a known technical legal phrase … So, in the section under consideration, the expression, ‘a general power enabling him by will or deed to dispose thereof ’, is not … a technical set of words.

His Honour compared the situation if words such as ‘a general power of appointment by deed or will’ had been used. This was a phrase with a definite technical legal meaning. He continued: But the legislature has avoided the use of any technical phrase, and has described the power of disposition in ordinary language, which must, therefore, be interpreted according to the ordinary meaning of the words used.

A similar if somewhat more obvious example is provided by In the Estate of Rangi Kerehoma [1924] NZLR 1007. There a provision of certain Native Land Acts empowered the Native Land Court to determine what provision ‘in equity’ ought to be made for the support of a certain person. The court rejected an argument that the words ‘in equity’ meant in accordance with the doctrines of equity. The words were used in their popular sense and meant simply ‘in fairness’.

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See also Willoughby v Eland (1985) 59 ALR 147 on the effect of the words ‘in good faith’ in relation to extradition proceedings; Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 97 FCR 186; 170 ALR 42 where ‘duress’ was said in the context of the legislation in question to have no different meaning in its ordinary use than in its legal sense. In Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148; 169 ALR 459 at [25] and Brooks v  Commissioner of Taxation [2000] FCA 721; (2000) 100 FCR 117; 173 ALR 235 at [36] ‘consideration’ was held not to have its legal technical meaning. See also Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; 191 ALR 1 (‘mining lease’); TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 273 ALR 134; 85 ALJR 316 (‘fixture’). The position was summarised by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311 at [108]: Each case will turn on its own circumstances having regard to the legislative history of the specific statute under consideration and supervening jurisprudence. As Gleeson CJ cautioned in [Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116] at [8], no doubt there are circumstances in which it is artificial, and unpersuasive, to attribute to Parliament a consciousness of a judicial interpretation which might have been placed upon an expression, perhaps years before, and in some different context. However, conversely, the inference is strong in a case, such as this where, in the specialised field of industrial relations legislation, Parliament may readily be taken to have an awareness of the interpretations placed by courts on pivotal definitions …

Legal meaning not intended 4.22  Where a word that has a legal meaning has been defined to include activities not normally falling within that legal meaning, an argument that the word is being used in a non-technical sense will be easier to sustain: Sun World International Inc v Registrar, Plant Breeders’ Rights (1998) 87 FCR 405; 158 ALR 98 where ‘sale’ was defined to include hire and barter.

The Sun World case is also authority for the view that an expression used to give effect to an international treaty should not be interpreted on the assumption that it is being used in the sense that would be ascribed to it at common law. This issue of whether words which have a technical legal meaning are being used in that sense has been discussed in two decisions of the New South Wales Court of Appeal: Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 and Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 (upheld by a majority of the High Court: [1987] HCA 30; (1987) 163 CLR 236; 72 ALR 321). In both cases Kirby P in dissent cautioned against what he referred to as the ‘encrustation’ of ordinary words with legal doctrines. The majority judges in each case considered that the intention of the parliament 157

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had been to depart from the popular sense of the words in question and use them in their legal sense. Kirby P’s cri de coeur for an end to what he saw as a concern of the courts to resist change in established legal doctrine was rejected by the majority. The following passage from the judgment of Priestley JA in Gamer’s case (at 483–4) encapsulates what is likely to be the general attitude of the courts: In considering the appropriate meaning of the words in their setting it is my view that if there is one ordinary and natural meaning of the words then that meaning must be given to them, but if as is the case here the words have a range of meanings, then the construction to be given to the words used must take into account the legal as well as the ‘ordinary’ uses to which they have been put. No matter how hard a draftsman tries to keep the language of a statute clear and simple, the statute is a legal document. The Sale of Goods Act  1923 [(NSW)] (the Act) is a legal instrument using words with legal significance in an overall context where all concerned with its passage through Parliament knew the past history of the words used in it and knew also that the meaning to be put upon the words in cases of such doubt as would lead to litigation would be decided by lawyers. Thus when this Court comes to consider the meaning of the words in s 28 of the Act it seems to me necessary to make the kind of survey made by McHugh JA in his reasons [ie a close analysis of the cases interpreting the words in question]. The object of the approach is not to find the legal as opposed to the ‘ordinary’ meaning, but to find from the range of legal and ordinary meanings, which in any event will seldom be in watertight compartments, the meanings best suited to the statutory document as a whole.

While this seems to be the approach that will prove the more attractive to the courts, it would be most unfortunate for Kirby P’s exhortation to be discarded. There is a tendency for courts to move over-readily to the familiar legal meaning of words. This attitude needs at least to be recognised and questioned as to its applicability in each case. Priestley JA seems to be acknowledging this but concludes by giving perhaps undue credence to the probability of words being used in their legal sense. The whole debate points to the problems with which a drafter is presented if words that have acquired a legal connotation are intended to be used in their popular sense. Legal technical words are treated as ambulatory so they will have their current legal effect in the absence of an indication to the contrary: Szelagowicz v  Stocker (1994) 35 ALD 16 and see  4.14–4.20 in relation to contemporary expositions of the words used. Interpretation of Non-Legal Technical Words General principle 4.23  The issues relating to the interpretation of commercial, trade and other technical words have been considered by the High Court on a number of occasions. These authorities were analysed by the Administrative Appeals Tribunal presided over by Senior Member Hall in Re Pacific Film Laboratories 158

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Pty Ltd and Collector of Customs (1979) 2 ALD 144. The effect of the decisions was succinctly summarised as follows (at 155–6): (i) With respect to revenue laws directed to commerce, courts are more ready to conclude that items have been described according to common commercial or trade usage rather than in their natural or ordinary sense: D  & R Henderson (MFG) Pty Ltd v  Collector of Customs (NSW) (1974) 48 ALJR 132 per Mason J at 135; Herbert Adams Pty Ltd v FCT (1932) 47 CLR 222 per Dixon J at 227; Whitton v Falkiner (1915) 20 CLR 118 per Isaacs J at 127; Markell v Wollaston (1906) 4 CLR 141 per O’Connor J at 150. (ii) Whether there is a common commercial or trade usage in relation to a particular item is a fact to be proved by evidence: Markell v Wollaston, supra; Whitton v Falkiner, supra. (iii) The evidence properly admissible is as to what merchants and others did, at the date of the Act, in fact call such articles, Whitton v Falkiner, supra; Herbert Adams case, supra. Evidence is also admissible to ascertain what, according to mercantile understanding, are the characteristics connoted by the descriptive names referred to in the legislation; Herbert Adams case, supra. (iv) But how the trade describes goods is not conclusive. Trade evidence may limit the meaning of an expression to the denotation which it has at a particular time without making allowance for its capacity to extend to new exemplifications which have the characteristics of accepted denotations; Henderson’s case, supra, per Mason J at 134. (v) Equally, if particular articles were, at the date of the Act, unknown, or not known by that name, merchants cannot, by merely appropriating a particular tariff designation and attaching that designation to an article, bring it into the country under that name unless it is in truth such an article; Whitton v Falkiner, supra. (vi) It may be less difficult to establish a trade meaning which extends the ordinary meaning of an expression than one which limits the ordinary meaning in a specialised way; Herbert Adams case, supra. (vii) If the expression is not uniformly understood in a specialised sense in the trade, it cannot be assumed that Parliament has adopted or recognised that specialised meaning. In that event, the ordinary English meaning of the expression is applied, having regard to the legislative context; Herbert Adams case, supra; Henderson’s case, supra. (viii) If there is a common, commercial or specialised meaning of the particular item established by evidence, it is necessary to determine whether the legislation has used the word in its ordinary signification or in the special sense; Markell v Wollaston, supra. 4.24  This exposition has been endorsed on a number of occasions: see particularly Collector of Customs v Bell Basic Industries Ltd (1988) 20 FCR 146 at 157; 83 ALR 251 at 261. See also Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; 141 ALR 59; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311 at [113]. However, some supplementary matters should be referred to. 159

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Admission of evidence as to meaning 4.25  On the question of admission of evidence as to trade usage, Jordan CJ said in Ex parte MacKaness and Avery Pty Ltd; Re Royce (1943) 43 SR (NSW) 239 at 244:

[A]lthough as a general rule evidence is not admissible as to the proper construction of a document, evidence may always be received to interpret the meaning of any technical expressions which may be found in it … there are three conditions precedent to such evidence being accepted — (1) it must not conflict with a statutory definition, (2) it must be of a usage common to the place in question, and (3) it must expound and not contradict the terms of the document.

In Pepsi Seven-Up Bottlers Perth Pty Ltd v  Commissioner of Taxation (1995) 62 FCR 289 at 298–9; 132 ALR 632 at 641 Hill J set out the circumstances in which evidence may be given of the meaning and usage of a word in the trade. See  also General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay-Roll Tax [1982] 2 NSWLR 52 at 55; (1982) 42 ALR 365 at 368 (insurance canvasser or collector); Staltari v Pharmacy Restructuring Authority (1995) 36 ALD 555 at 561 (types of shops); Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332 at [113] and Victorian WorkCover Authority v Elsdon [2013] VSCA 235 at [42], [84] (medical terms). Particular regard will be paid to the opinions of accountants as to the scope of words relating to business and financial affairs: QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270 at 288–9; 110 ALR 301 at 319–20. This will also be the case where words may at first sight appear to have a common meaning but the context in which they appear indicates that they are being used in a technical sense. Parker J in Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [107] said: While the evidence does not establish that particular terms in issue had uniform, accepted and certain meanings, it does establish that some words or phrases used in the Act and the Code are in common use in that field of economics which is concerned with competition policy, or more particularly with the regulation of essential infrastructure. In this context the words or phrases convey a meaning to those familiar with this field of economics which differs from that which the words themselves suggest in ordinary everyday usage. As the subject matter is by nature conceptual there is no uniform, accepted and certain meaning, but there is a principle or theory, the essential tenets of which are widely understood, though there need not be uniform acceptance of them. In my view, expert evidence may relevantly and usefully inform the court as to this specialised usage, of which the court would otherwise be unaware, so that the court can determine whether the Act and Code is using particular words or phrases in their ordinary everyday usage, or in the specialised usage among those versed in this field of economics. Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics, and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater 160

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and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood.

See also Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at [649]–[669]. However, the meaning to be given to the words remains the task of the court. It may be aided by evidence from experts but, as was said in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58; (2011) 193 FCR 57; 277 ALR 282 at [60]: It must be stated immediately that the effect of Part IIIA of the [Trade Practices Act 1974 (Cth)] is a matter of law for decision by the Court. It is not a matter of fact to be resolved by a preference for one body of expert evidence over another. The meaning of the legislation cannot change according to the evidence of the economist preferred by the [court]. It was common ground between the parties that the evidence of economists might assist the Court with an understanding of the economic concepts used in the statute, and by alerting the Court to the absurd or unreasonable uniqueness which might flow from one or other interpretation of the statute.

Evidence of the meaning of technical terms used in an administrative decision is admissible on a challenge to that decision. It will indicate whether the decision maker erred in its understanding of the technical matters to which it is to have regard in reaching a decision. As such it can demonstrate jurisdictional error or that a decision is beyond power, unreasonable, etc: Australian Retailers Association v  Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446; 228 ALR 28 at [457]; Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; (2008) 176 FCR 153; 107 ALD 474 at [50]–[51]. (An appeal against the latter decision was allowed in Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; (2009) 176 FCR 203; 256 ALR 615 but the comments noted above were not challenged.) General v technical usage of words 4.26  In relation to proposition (viii) in 4.23, Walsh J in ICI (Australia) Ltd

v Federal Commissioner of Taxation [1972] HCA 75; (1972) 127 CLR 529 (see 4.17) pointed out at 547–8 that the court was also entitled to take into account any general usage of the word. It is up to the court to determine whether a word in an Act has been used in its technical or in its common sense when there is a conflict between the two; see, for example, Uber B V v Commissioner of Taxation [2017] FCA 110; (2017) 247 FCR 462 at [135]. The ability now to look at extrinsic materials to ascertain the scope of an expression is an aid to this determination: HR Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 at 343. The less common a word is in general parlance, the more likely its technical meaning will be followed. On this point, see  Chesterfield Tube Co Ltd v Thomas [1970] 1 WLR 1483 where the English Court of Appeal held 161

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that the words ‘generation of power’ when used in a rating Act were to be interpreted according to what they meant to rating valuers and not physicists or philosophers. A word that has a clearly understood technical meaning in a particular area of activity will be treated as if being used in that technical sense if the legislation is concerned with that area of activity: Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 572; HR Products, above, at 354. Where a word has a common meaning but that meaning would make no sense in the context of the legislation in which it appears, it may be assumed that it has been used in a sense special to the understanding of those to whom the legislation is directed: Roper v  Ecksjay Nominees Pty Ltd (1982) 31 SASR 398 at 408; 48 LGRA 241 at 251 (‘density’ in regard to housing). Evidence can then be led from appropriate experts in the relevant field of the intended effect of the expression. It is permissible to consult a specialist dictionary for the purposes of ascertaining the meaning of a technical term: Kirkpatrick v  Commonwealth (1985) 9 FCR 36 at 41–2; 62 ALR 533 at 538 (medical dictionary). See further 3.33–3.34. It is possible for a composite phrase to contain words that have a technical meaning and this meaning must be taken into account when ascertaining the meaning of the phrase overall: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 400; 141 ALR 59 at 68 reversing a contrary view expressed by the Federal Court: 124 ALR 645 (silver dye bleach reversal process). The Victorian Court of Appeal applied this decision to hold that the word ‘pure’ in the phrase ‘pure pseudo ephedrine chloride’ did not have its ordinary meaning but had to be read as part of the composite phrase: R v Strawthorn [2008] VSCA 101; (2008) 19 VR 101 at [190]. Words must be ‘technical’ 4.27  The words used must, of course, really be technical words before the approaches discussed here become relevant. Merely because unusual words or combinations are used or a special term has been invented by a practitioner in a particular discipline does not mean that it should be assumed that the legislation is using those words in a technical sense: Northern Land Council v Olney (1992) 34 FCR 470; 105 ALR 539 (words used to define ‘traditional Aboriginal owners’). Further, ‘[t]rade meaning and ordinary meaning do not necessarily stand at opposite extremities of the interpretative register’: Collector of Customs v  Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 401; 141 ALR 59 at 67; followed in Australian Native Landscapes Pty Ltd v Collector of Customs (1997) 44 ALD 531 at 538 where it was said that the technical and ordinary meanings of ‘horticulture’ were ‘not relevantly different’.

Words to be Interpreted in Accordance with their Customary Usage 4.28  Although a word may not be a technical or trade word, it may have acquired a particular usage in a particular context. Industrial legislation is a 162

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prime source of such expressions. In these cases, the courts have been prepared to take into account the acquired meaning even though this might depart from the more widely used meaning of the word. For examples of the application of this approach, see Hobbs v Brisbane Municipality (1876) 4 QSCR 214; Hyland v Commissioner for Railways (1887) 8 LR (NSW) 212; Jack v Fairymead Sugar Co Ltd; Ex parte Fairymead Sugar Co Ltd (1917) 11 QJPR 109. And for a rejection of an argument that the words ‘casual employee’ had a special meaning in industrial awards see WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311 at [117]. Nomenclature that may be technically inaccurate will be followed if it has, by long customary usage, come to have an established meaning: Fabre v Ley [1972] ALR 885 (‘bank cheque’). Interpretation Having Regard to Nature of Instrument General principle 4.29  There is one approach to the interpretation of subordinate legislation which is different from that used for Acts of Parliament. It was stated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183. The court there was concerned with the interpretation of regulations made under the Factories Act 1937 (UK) relating to the use of scaffolding, ladders, etc. His Lordship said:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions … They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament … difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.

This approach was endorsed by Murphy J in Driscoll v  J Scott Pty Ltd (1976) 8 ALR 593 at 598; 36 LGRA 159 at 164 in regard to regulations relating to scaffolding. Examples of application of principle 4.30  Other cases in which the approach has been adopted are:

• Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 at 581: management of health service data;

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• Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316; 70 ALD 1 at [37]: criteria for the registration of industry research agencies; • Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658; (2004) 138 FCR 181; 82 ALD 73 at [15]: information to be ‘set out’ in a visa application; • Telstra Corporation Ltd v  Australian Competition and Consumer Commission [2008] FCA 1758; (2008) 176 FCR 153; 107 ALD 474 at [164]: terms and conditions of access to telecommunications service; • Caltex Australia Petroleum Pty Ltd v  Town of Vincent [2010] WASAT 79 at [35]–[37]: town planning scheme; • Comcare v Lilley [2013] FCAFC 121; (2013) 216 FCR 214; 136 ALD 569 at [67], [71], [76]: Guide to the Assessment of the Degree of Permanent Impairment under the Safety Rehabilitation and Compensation Act 1988 (Cth); • Channel Seven Brisbane Pty Ltd v  Australian Communications and Media Authority [2014] FCAFC 179; (2014) 227 FCR 162; 145 ALD 318 at [53]: industry code of practice under Broadcasting Services Act 1992; • Secretary, Department of Health v DLW Health Services Pty Ltd [2016] FCAFC 108; (2016) 246 FCR 456; 152 ALD 454 at [93]: classification principles for provision of aged care; • Sevdalis v  Director of Professional Services Review [2017] FCAFC 9 at [26]; Bupa HI Pty Ltd v Andrew Chang Services Pty Ltd [2018] FCA 2033 at [45]: Medicare Benefits Schedule. The approach posited by Lord Reid has been followed frequently in relation to planning instruments: see the numerous cases cited in Marina Bay Developments Pty Ldt v Pittwater Council [2007] NSWLEC 41, a decision which was endorsed by Leeming JA in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54] which was in turn endorsed by Basten JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]. However, in that case Basten JA added the rider that ‘[s]o called “practical considerations” … do not empower the Court to embark on a wholesale rewriting of the instrument’. See also 4nature Inc v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 95 NSWLR 361 at [43]–[46] where the application of the approach was seen to have led to an incorrect outcome, particularly as the words in question had been taken from the Act. Notwithstanding the questioning in these cases, the adoption of an approach of this kind to the interpretation of regulations that are endeavouring to deal with day-to-day situations and which impose obligations on persons who are in no position to consult a lawyer as to the meaning of the legislation, seems eminently sensible. 164

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However, the approach is only applicable where the legislation is capable of more than one interpretation: Tea Tree Oil case, above, at [44]; Minister for Immigration and Multicultural Affairs v  Lim [2001] FCA 512; (2001) 112 FCR 589 at [8]. De Minimis Non Curat Lex: The Law Does Not Pay Heed to Trifling Matters 4.31  The notion embodied in the maxim de minimis non curat lex is well known in the criminal law but it applies, by implication, also to the interpretation of statutes generally: Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125; 142 ALR 322. The issue will arise most frequently where words such as ‘exclusively’, ‘solely’ and ‘only’ are used in legislation. Courts will be faced with the question whether these words mean what they say or whether some minor departure from exclusivity can be tolerated. The de minimis approach ameliorates the strictness of the expression. Whether it will apply will depend upon the interpreting court’s view of the legislative intent and a value judgment of how trifling the action in question might be. So, for example, a requirement of use of a vehicle ‘exclusively’ within premises might not be breached if the only other use was in the case of an emergency or to take the vehicle for repair: cf AAT Case 21/96; No 10,716 (1996) 32 ATR 1132 at 1143; Farnell’s case, above. In some ways this can be viewed as a variant on the obligatory/discretionary issues which are discussed in Chapter 11.

For applications of the principle in relation to planning legislation see Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 at [63]; Riverstone Parade Pty Ltd v Blacktown City Council [2015] NSWLEC 137 at [23]. SYNTACTICAL PRESUMPTIONS

Introduction 4.32  As previously mentioned, legislation is but a communication from one body to another. The recipient is entitled to expect current syntactical practices to be observed by the writer and the writer will equally rely on an understanding of these by a reader. The courts have chosen to emphasise some of the more basic of these and to elevate them to rebuttable presumptions complete with Latin tag. This makes reference to them convenient, but it must be emphasised that they are no more than aids to understanding a writer’s intention and can readily be discarded if there is any suggestion that a different meaning is intended.

These presumptions or approaches are often referred to as canons of construction. However, this elevates their significance to too great an extent. They are semantic rules not legal rules: Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 at [24]; Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49; 304 ALR 436 at [81]–[82]. 165

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Noscitur a Sociis: The Meaning of a Word or Phrase is to be Derived from its Context 4.33  Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that a reader will not read the document word by word but will look at whole phrases or sections. Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 put it thus:

Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.

The courts recognise this and, when ascertaining the meaning of a word, pay heed to the context in which the word appears. As was said by Gibbs J in Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283: ‘The meaning of the phrase like that of any other ambiguous expression, depends on the context in which it appears.’ Basten JA in Ghali v Chief Commissioner of State Revenue [2013] NSWCA 340; (2013) 85 NSWLR 378 at [21] alluded to what he described as the fallacy identified by Lord Hoffmann in R v Brown [1996] AC 543 at 561, this being ‘one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence’. His Lordship continued: ‘This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.’ The assumption that words will be read in context often leads to the omission of words, particularly adjectives, in an endeavour to make a document less verbose. Drafters of legislation, perhaps unwisely, usually try to present a document that is readable as well as accurate — and often this results in their relying on context to convey meaning also. So in Richardson v Austin [1911] HCA 28; (1911) 12 CLR 463, the High Court read the phrase ‘streets lanes entries or other public passages or places’ as if the word ‘public’ were also included before the word ‘places’. From the context, it was clear that the drafter had chosen not to repeat the word ‘public’ but had expected that a reader would supply it. See likewise RPA Properties Pty Ltd v Robina Syndicate Pty Ltd [2009] QSC 339 where the court interpreted the words ‘there is no unsatisfied judgment, order or writ of execution which affects the land’ as if the adjective ‘unsatisfied’ appeared before each of the following nouns. Both drafter and interpreter need to be aware of this use of what is sometimes referred to as a ‘floating adjective’. Context will not always be able to be called in aid to resolve the ambiguity that it can create. See  further M Stella, ‘An Important Drafting Issue’ (2011) 85 ALJ 721. 166

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Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30] and repeated in Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 226 FLR 388; 242 ALR 152 at [13] expanded on the noscitur principle thus: This general principle of the law of interpretation that the meaning of a word can be gathered from its associated words — noscitur a sociis — has a number of specific sub-principles with respect to the immediate textual context. The most frequently cited such sub-principle is the ejusdem generis rule. The relevant subprinciple for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu — the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word ‘stands with’ other words it ‘must mean something analogous to them’. (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987.)

The noscitur a sociis approach can lead to the delimitation of the scope of a word (thereby working in much the same way as the ejusdem generis rule: see 4.34). A word of wide possible connotation will be limited by the context in which it appears. Thus in Prior v Sherwood [1906] HCA 29; (1906) 3 CLR 1054 the court held that a prohibition against bookmaking in any ‘house, office, room or place’ did not extend to a public lane. The wide possible meaning that could have been attributed to the word ‘place’ was limited by its use in conjunction with ‘house’, ‘office’ and ‘room’ which the court considered denoted an enclosed or definable area. ‘[O]ther agricultural work’ was read as not including grazing and pastoral activities which would otherwise have fallen within the expression because of the inclusion before it of the words ‘threshing, chaff cutting, ploughing or’: Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42 at 53. The word ‘qualifications’ in a section relating to the registration of medical practitioners was held to refer to academic qualifications and not the wider meaning of personal qualities or accomplishments: R v  Refshauge (1976) 11 ALR 471 at 475. See also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 376; 94 ALR 11 at 53 per Toohey and Gaudron JJ; National Roads and Motorists’ Association v Whitlam [2007] NSWCA 81; (2007) 25 ACLC 688. Where a word has many shades of meaning, the context in which it appears will be of the greatest significance: Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1; 27 ALR 114 (‘permanent’). Ejusdem Generis: General Matters are Constrained by Reference to Specific Matters General principle 4.34  A drafter may well not wish to spell out at length all the kinds of things or types of conduct to which an Act may apply. He or she may rest on the assumption that, having indicated the main specific matters or conduct within a broad category to which it is to apply, any general words will be read down to embrace only things or conduct falling within that category. So in specifying 167

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the animals that may be carried on a ferry, the drafter may refer to ‘horses, cows, sheep and other animals’. It would be regarded as an improper reading of the Act if it were suggested that a tiger fell within the words ‘other animals’. This is the classic example of the ejusdem generis rule — the general words are limited to apply only to animals of the same kind as those specifically mentioned. It is another way of saying that the words derive meaning from the context in which they appear. Contrast the position, however, if, in an Act to prohibit fights between animals, the prohibition applies to ‘bears, pigs, bulls, dogs, cocks, quail and other animals’. The drafter here is obviously anxious to prohibit all such contests and ‘other animals’ is included to avoid listing the whole of the animal kingdom. Again, context indicates this to be the case, but also the animals specifically mentioned do not fall within any particular category. The very name of the rule indicates the necessity to establish a genus before it can be applied and the courts have made it clear that this will be their first inquiry: R v Regos [1947] HCA 19; (1947) 74 CLR 613; Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629; see further 4.37. Application of ejusdem generis rule 4.35  The manner in which the courts apply the rule is best understood by

looking at some examples: • Attorney-General v  Brown [1920] 1 KB 773: s  43 of the Customs Consolidation Act  1876 (UK) provided that the importation of arms, ammunition, gunpowder or any other goods might be prohibited by proclamation or order-in-council. It was held that the words ‘any other goods’ had to be restricted to things of the same class as those previously specified and an order relating to pyrogallic acid was therefore invalid. • Re Latham (dec’d) [1962] Ch 616: s 8(4) of the Finance Act 1894 (UK), in dealing with property passing on death, referred to ‘every trustee, guardian, committee, or other person in whom any interest in the property’ passing was vested. It was held that the words ‘or other person’ had to be construed ejusdem generis with ‘trustee, guardian, committee’ and this excluded persons beneficially interested. The words had to be limited to persons in a fiduciary capacity. The court’s reasoning is instructive. If the words ‘or other person’ were not limited, the specific reference to a trustee, etc, would have been otiose. The specific references were also not exhaustive of the persons who might be regarded as being in a fiduciary capacity, hence the reference to other persons was necessary. • Canwan Coals Pty Ltd v Federal Commissioner of Taxation (1974) 1 NSWLR 728; 4 ALR 223: Sheppard J held that s  123A(1) of the Income Tax Assessment Act 1936 (Cth) in allowing a deduction for expenditure on ‘a railway, road, pipeline or other facility’ had to be read ejusdem generis. A facility on or through which goods might be moved or conveyed was 168

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contemplated and expenditure on a storage facility could not therefore fall within the section. • Collett v  Repatriation Commission [2009] FCA 667; (2009) 178 FCR 39; 114 ALD 511: ‘interned’ was defined as meaning ‘confined in a camp, building, prison, cave or other place (including a vehicle)’. A prisoner of war who escaped after being told to lay down his arms in an open area and await detention had not been interned. The words used connoted confinement in some place of definite, restrictive physical limits. • Geltzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61; (2009) 103 SASR 194 at [30]: the phrase ‘or any other relevant factor or circumstance’ was read ejusdem generis in a section that permitted an extension of time to bring a prosecution ‘if the Director of Public Prosecutions is satisfied that a prosecution could not reasonably be commenced within the relevant period due to a delay in the onset or manifestation of an injury or disease, a condition or defect of any kind, or any other relevant factor or circumstance’. Use of word ‘other’ not prerequisite to application of ejusdem generis rule 4.36  It is unnecessary for the word ‘other’ to be used to attract the ejusdem generis rule. An indication that general words are to be read as a continuation of the preceding specific words is sufficient. For example, in DL & L Cameron Pty Ltd v  Webster 1964 64 AR (NSW) 297 the word ‘etc’ was interpreted as limited by the specific words that preceded it. In Brownsea Haven Properties Ltd v Poole Corporation [1958] Ch 574 the court held that a power to make orders to prevent obstruction in streets ‘in all times of public processions, rejoicings or illuminations, and in any case where the streets are thronged or liable to be obstructed’ did not authorise a general prescription of one-way traffic. The general words ‘in any case’ had to be limited to like circumstances to the specific cases mentioned.

No genus established 4.37  As mentioned previously, the imposition of a limitation on the scope of a general expression by the application of the ejusdem generis principle presupposes the identification of a group of like matters. If no genus is established, the rule cannot be applied. In R v Regos [1947] HCA 19; (1947) 74 CLR 613 at 624 Latham CJ said that the specific things enumerated must ‘possess some common and dominant feature’. An example of this approach is provided by Stewart v Lizars [1965] VR 210. There a definition of ‘litter’ as meaning ‘bottles, tins, cartons, packages, paper, glass, food or other refuse or rubbish’ was held not to attract the ejusdem generis principle because no single relevant genus could be spelled out of the items specifically mentioned. Hence motor car sump oil could fall within the definition.

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The absence of a genus is seen in acute form where only one word appears before the general expression. Spigelman CJ in Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [126], following Lord Diplock in Quazi v Quazi [1980] AC 744 at 807–8, expressed the view that ‘unless at least two different species are identified it is not possible to determine a relevant genus which may be used to read down the general words which follow’. Exemplifying this view, in Allen v Emmerson [1944] KB 362 the court had to consider the scope of the expression ‘theatre or other place of public entertainment’. It held that the specific reference to ‘theatre’ did not limit the general words to places of the same genus as theatres. Following similar reasoning, in Field v Gent (1996) 67 SASR 122 the phrase ‘stone or other missile’ was held not to impose a limitation on the scope of the expression ‘missile’. A number of Australian decisions have adopted a like approach in regard to the scope of the words ‘building or other place’. The ‘place’ does not have to be something akin to a building: Plummer v Needham (1954) 56 WALR 1; Lake Macquarie Shire Council v  Ades [1977] 1 NSWLR 126. Compare Bond v  Foran [1934] HCA 53; (1934) 52 CLR 364 at 376 where Dixon J, in considering the expression ‘house, office, room, or other place’, held that ‘place’ must be something ejusdem generis with the words which preceded it. There a genus was created and limited the general expression. These cases should more readily be understood not as examples of the use or otherwise of the ejusdem generis rule but as a process of interpretation in context. The single instance does not establish the context. It is to be gleaned from the whole legislative instrument under consideration. In contrast, where a number of items are listed, the context is more readily to be ascertained by reference to them. Intention not to limit general words 4.38  It may be that, where general words follow specific references, the general words are not to be limited in their operation at all. Rands v Oldroyd [1959] 1 QB 204, for example, concerned the interpretation of s 16 of the Local Government Act  1933 (UK) which required a member of a local authority who ‘has any pecuniary interest, direct or indirect, in any contract or proposed contract or other matter’ to disclose such interest and refrain from voting at any meeting at which the matter was being considered. The court held that the section was intended to cover all matters where a member might have a conflict of interest and the general words should not be regarded as limited by the specific matters mentioned. In Dean v Attorney-General (Qld) [1971] Qd R 391 Stable J declined to apply the ejusdem generis rule to s 22 of the State Transport Acts 1938 to 1943 (Qld) which provided:

… where at any time it appears to the Governor in Council that any circumstances exist … whether by fire, flood, storm, tempest, act of God, or by reason of any other cause or circumstance whatsoever whereby the peace, welfare, order, good government, or the public safety of the State … is imperilled, the Governor in Council may, by Proclamation, declare that a state of emergency exists. 170

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It was argued that the words ‘any other cause or circumstance’ should be limited by reference to the words ‘fire, flood, etc’ but his Honour held that the specific cases were but examples of the opening ‘any circumstances’ and that there was no intention to create a genus. See also Waterhouse v Pas (1998) 103 A Crim R 511 where it was observed that the general words used were not ambiguous and there was nothing to indicate that their effect should be constrained. A similar approach was followed in Re WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training [2018] AATA 1312; (2018) 159 ALD 186. A provision allowing an appeal to the Administrative Appeals Tribunal referred to decisions ‘of the kind mentioned in’  a later provision. That provision provided that for the purposes of the previous provision ‘the following are the kinds of decisions’ that may be reviewed. The Tribunal took the view that the references to ‘kind’ identified the type of decision but did not limit it to the decisions specifically referred to. The exceptions to the ejusdem generis approach were referred to by way of analogy. Inclusion of words indicating no intention to limit general words 4.39  Dean v Attorney-General (Qld), above 4.38, shows that, by the interpolation

of a word like ‘whatsoever’, the legislature may be taken not to intend the general words to be limited. A similar approach was adopted in relation to the word ‘otherwise’ by Windeyer J in Crowe v Graham [1969] HCA 6; (1969) 121 CLR 375 at 388 where his Honour asserted strongly that ‘otherwise’ should not be read as ‘likewise’. It means ‘in some other manner’ from the specific examples and hence indicates an intention not to be limited by any genus created by those examples. See  also Purdon v  Dittmar [1972] 1 NSWLR 94 where the same approach was followed. However, compare the approach of the courts in England to the interpretation of the ancient Sunday Observance Act  1677 which provided ‘no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any labour, business, or work of their ordinary callings upon the Lord’s Day’. In more recent times the courts were anxious to limit the scope of the prohibition in the Act and, notwithstanding the reference to ‘other person whatsoever’, confined the Act to persons who exercised a like calling to those specifically mentioned. So farmers (R v Cleworth (1864) 4 B & S 927; 122 ER 707), barbers (Palmer v Snow [1900] 1 QB 725) and real estate agents (Gregory v  Fearn [1953] 1 WLR 974) among others were excluded from the operation of the Act. A like approach to the interpretation of ‘whatsoever’ was followed in Hughes v Winter [1955] SASR 238. There Ross J applied the ejusdem generis rule, despite the use of the word ‘whatsoever’, to limit the operation of a by-law that provided: ‘No person shall by speaking, shouting, singing, playing upon, operating or sounding any musical or noisy instrument or doing anything whatsoever to attract together a number of persons in any street or so as to 171

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obstruct traffic.’ A person dressed in a gorilla skin who attracted a crowd but ‘who remained mute — not of malice, but merely because of the difficulty of holding any conversation through a gorilla skin’ was held not to have transgressed the by-law. General words preceding specific 4.40  An issue arose in Huntlee Pty Ltd v  Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 whether the ejusdem generis rule could be applied to assist the interpretation of a provision where general words were followed by specific words. The provision in question required a planning agreement to provide for ‘the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer’. The issue was whether the reference to a bond or guarantee had an impact on the scope of the words ‘suitable means’. The trial judge had said that they did, reading them as limiting the general words in the manner of ejusdem generis. The Appeal Court did not find it necessary to reach a concluded view on whether it was appropriate to approach the interpretation of the general words in this way because they did not consider that the specific references constituted a genus such as could attract the ejusdem generis approach: see  [127]–[129]. See  also Re WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training, above, 4.38.

There does not seem to be any reason why the reasoning underlying the ejusdem generis approach should not apply in such a case once it is recognised that ejusdem generis is but a way of saying that the words in question must be interpreted having regard to their context. In the Huntlee case, the specific examples referred to were just that — examples of what might be considered to be ‘suitable means’. In other cases it could well be that the nature of the examples referred to as illustrations of the general words could indicate that the general words are to be limited to instances such as the specific matters referred to. If this be described as an application of ejusdem generis, so be it. Limitations on use of rule 4.41  The courts do not readily use the ejusdem generis rule because its application necessitates a limitation being imposed on words that are otherwise of general application. In R v Regos [1947] HCA 19; (1947) 74 CLR 613 at 623 Latham CJ cited with approval dicta suggesting that it is necessary for the person seeking to apply the rule to show that the general words are to be limited. So while some limitation may have to be imposed on certain words, the context in which they appear may indicate that the limitation is not to be by application of the ejusdem generis rule.

For example, in Gas & Fuel Corporation (Vic) v Comptroller of Stamps [1964] VR 617 a hire-purchase agreement provided for the payment for the price of the article hired and a further sum for its installation. The question for decision 172

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by the court was whether the installation cost was to be taken into account for stamp duty purposes. The Stamps Act 1958 (Vic) defined ‘purchase price’ as ‘the total amount payable under the agreement for or by way of interest or insurance or other charge’. It was argued that the words ‘or other charge’ should be interpreted ejusdem generis. Herring CJ and Adam J, after referring to R v Regos, above, and Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629, declined to apply the ejusdem generis rule. They said (at 620–1): We can see  no justification from the context or the subject matter of the statute for controlling the meaning of the general expression ‘other charge’ by reference to the particular instances of ‘interest and insurance’. To do so appears to us mere conjecture as to the intention of Parliament … We agree … that the words ‘other charge’ cannot be given their evident meaning and must to some degree be restricted; but the restriction we consider is to be found not in any application of the ejusdem generis rule but rather from the context and the subject-matter, the legislation; and we would add that the  general words should not be read more restrictively than required from the context and subject-matter.

See also Prabowo v Republic of Indonesia (1995) 61 FCR 258; 133 ALR 701 where Hill J held that in the context of the Extradition Act 1988 (Cth) the phrase ‘judge, magistrate or officer’ should not be read ejusdem generis to confine the reference to ‘officer’ to a judicial officer. Context also led in Hinterland Marine Pty Ltd v Maritime Global Pty Ltd [2010] FCA 683 to a motor boat being held to fall within the definition of ‘motor vehicle’. The definition read ‘motor vehicle means a vehicle that uses, or is designed to use, volatile spirit, gas, oil, electricity or any other power (except human or animal power) as the principal means of propulsion’. The express exception of human or animal power persuaded the court that the reference to ‘any other power’ should not be confined. A swingeing attack by Mahoney JA in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 on the ejusdem generis approach was launched with the statement: The ejusdem generis process of reasoning has had a long but varied history; is based upon a doubtful premise; operates by a mechanism which is uncertain; and, to the extent that it presently operates, in my opinion, has real effect to determine the construction of a statute only in a limited area.

His Honour went on to indicate that the search for the intention underlying the legislation should not be confined by the artificial application of the ejusdem generis limitation — the meaning to be ascribed to general words following particular words should be determined in the same way as the meaning of any other words. Ejusdem generis was only of use in explaining how, if the general words were to be limited in their operation, this could be accommodated to the language. See also Spigelman CJ in Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [127]. A similar, if less vigorous, 173

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refutation of ejusdem generis is to be found in the judgment of Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 587. In these cases, the judges recognised but dismissed the argument that the general words must be taken to be limited by the preceding specific instances because to do otherwise rendered the specific words surplusage. Wells J referred to the customs and conventions of parliamentary drafters who are wont to include convenient pleonasms. Mahoney JA in the Mattinson case, above, more unkindly said that experience of statutory drafting indicated that surplusage and overlapping were the rule rather than the exception. While this may be true, any drafter worthy of the name writes with the ejusdem generis rule in mind. The courts have left few straws for the drafter to clutch in the unenviable task of conveying the intention of the legislature. None of these should be lightly cast aside. The courts should think carefully, therefore, before rejecting the ejusdem generis principle as a canon of construction. Superior Class Limitation 4.42  A canon of construction, similar to the ejusdem generis rule, dating back to the time of Coke, contemplates that where general words follow particular words the general words are not to be taken to include anything of a class superior to that to which the particular words belong. Two instances of this approach to interpretation are alluded to in Archbishop of Canterbury’s Case (1596) 2 Co Rep 46a; 76 ER 519. The King’s Bench ruled that a statute that referred to monasteries which ‘happen to be dissolved, renounced, relinquished, forfeited, given up or by any other means come to the King’s Highness’ could not have intended to apply to conveyance to the King by means of an Act of Parliament. This was the highest form of conveyance and, if intended to be included, would have been put at the beginning and not at the end after the inferior conveyances. Likewise, a reference to colleges, deans and chapters, parsons, vicars and others having spiritual promotions would not include bishops because they are superior persons.

This canon of construction was referred to in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 588. Wells J considered that it could be applied where the matters referred to fell within a well-known and understood hierarchical order. But in the case before him he considered that no such hierarchy existed and the canon accordingly could not apply. Expressio Unius Est Exclusio Alterius: An Express Reference to One Matter Indicates that Other Matters are Excluded General principle 4.43  It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently. For example, if five factors are stated as the qualifications necessary for appointment to office A while only three of those factors are specified for appointment to office B, it is reasonable to assume 174

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that the omitted factors do not have to be taken into account. However, this need not necessarily be the case. The drafter of the provisions relating to office B may have thought it unnecessary for the omitted factors to be stated because they were inherent in the nature of the office. The relevant legislation might be complex and the similarity between the provisions could have been overlooked. In short, factors other than a deliberate intention to make different provision could explain the variations. Much will depend upon the view that is taken of the particularity with which the legislature has addressed its mind to the subject matter of the legislation. It is instructive to contrast two decisions of the High Court handed down within two months of each other in 1977. In the first, Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396; 14 ALR 1 the court considered that the Migration Act 1958 (Cth) had deliberately laid down differing procedures for the deportation of prohibited immigrants and for aliens. As a hearing was provided for under the sections relating to prohibited immigrants but not the sections empowering the deportation of aliens, it was proper to draw the inference that there was an intention that aliens were not entitled to a hearing. It is noteworthy that the Migration Act then was relatively short and that the provisions relating to deportation were contained in a few sections. The second decision was Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; 14 ALR 519. There the court rejected an expressio unius argument that would have denied a hearing to a person who had been warned off racecourses. Other provisions of the Racing and Gaming Commission Act 1952 (Tas) relating to the revocation of such things as bookmakers and club licences provided for a hearing to be given. But the High Court declined to hold that this meant that the fact that no provision was made in relation to warning-off notices meant that the legislature had intended that no hearing be given. The provisions of the Act were concerned with different issues and there was no ground for concluding that the legislature had intended the sections giving a hearing to be exhaustive of the subject. Application of principle 4.44  It can be seen from these decisions that the application of the expressio unius approach will be largely one of impression. Factors affecting the question will include the precision in the drafting of the legislation and the similarity of the subject matter in the provisions being considered: see Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd [1975] 2 NSWLR 499; (1975) 7 ALR 118; Lyford v Commonwealth Bank of Australia (1995) 130 ALR 267 at 270, citing the comment above. It will also be relevant to consider whether the Act in which the provisions occur has been amended extensively as this increases the risk of provisions being inconsistent unintentionally: cf Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; 248 ALR 169 at [15].

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Because of these problems with respect to its use, the expressio unius est exclusio alterius approach is applied by the courts with extreme caution. When it is followed, it is used more often as a bolster to a predetermined interpretation rather than as a rule that produces a result in itself: see, for example, the High Court in Carr v  Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139 at 150; 42 ALR 29 at 37 and Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 12; 62 ALR 497 at 505. However, this is not to say that the approach cannot have its uses. One of the clearest applications of it was in the case of Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329. The question arose there whether s 93(i)(a) of the Constitution applied to goods imported before the imposition of uniform duties of customs. It was pointed out that s 92 referred expressly to goods imported before the imposition of uniform duties while s 93 was silent on the issue. The court said that, while the maxim expressio unius est exclusio alterius was to be applied with caution, if s 93 were read in its literal sense it applied only to goods imported after the imposition of uniform duties and the validity of this interpretation of the section was confirmed by the fact that s 92 expressly provided for goods imported prior to that time. A useful application of the principle was also endorsed in Eastman v  Commissioner for Superannuation (1987) 74 ALR 221. It was said there that, where it is doubtful whether a stated term does or does not include a certain class of things and words of extension are added which cover some only of those things, it is implied that the remainder are excluded. In that case, the indication that certain higher duties allowances formed part of a person’s salary was held to exclude other allowances of that kind that could otherwise have fallen within the broad description of salary. For other examples of the consideration of the principle, see the Annexure. Cautions against use of maxim 4.45  A strong note of warning on the application of the maxim was sounded in Rylands Brothers (Aust) Ltd v  Morgan (1927) 27 SR (NSW) 161. That case concerned the construction of a statute that adopted provisions of another statute but in so doing failed to make it clear whether the chairman of a committee that could be established under the first-mentioned statute had a casting vote in the event of an equality of votes. Long Innes J decided that the chairman did have such a vote. In reaching this conclusion he rejected the application of the expressio unius approach that had been urged upon him by the plaintiff. On appeal, he was reversed by a majority of 2:1 but the majority did not rely on the maxim in reaching its conclusion. The relevance of the case is the discussion by Long Innes J of expressio unius. His Honour said (at 168–9):

I feel that it would be unsafe in this case to place much reliance upon a canon of construction which must always be applied with caution and only in appropriate cases. In Colquhoun v Brooks ((1887) 19 QBD 400 at 406) Wills J, in 176

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the course of his dissenting judgment on the construction of the [Act], said: ‘I may observe that the method of construction summarised in the maxim expressio unius exclusio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind’.

In a similar vein the High Court in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94; 38 ALR 577 at 581 said that: [The] maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument … It is ‘a valuable servant, but a dangerous master’.

These general sentiments have been reiterated by the High Court in O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 215; 89 ALR 71 at 74; Ainsworth v  Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575; 106 ALR 11 at 16–17; and Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250; 106 ALR 624 at 628. In the Wentworth case the rider was added to the maxim that to the extent that it is concerned with the drawing of an inference (specifically, a negative inference), it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of construction. Mention should also be made of the case of McLaughlin v Westgarth (1906) 6 SR (NSW) 664. The committee of a lunatic was expressly protected by legislation from actions by the lunatic. The Privy Council held that persons acting under the instructions of the committee could also not be sued. The express protection afforded certain persons did not exclude others who were also entitled to protection. The courts will be very slow to use the expressio unius principle to hold that the fundamental rights referred to in Chapter  5 are excluded: see  O’Brien v Gillies (1990) 69 NTR 1 at 7. In particular, the rules of natural justice will rarely be displaced by other than express words: Twist v  Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106; 12 ALR 379; Baba v Parole Board of New South Wales  (1985) 5 NSWLR 338 at 349; Barratt v  Howard [1999] FCA 1132; (1999) 165 ALR 605 at [45]. See  also Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372; 235 ALR 342 at [14]: displacement of obligation to give reasons for a decision. Finally, an important rejection, with wide-ranging implications, of the adoption of an expressio unius approach (although not so referred to) is to be found in R v  Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321. The High Court there refused to hold that, where a discretion in an Act was expressly directed to be exercised by taking into account the public interest, that matter was 177

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not to be taken into account where another discretion in the Act that was unlimited in its terms was being exercised. The court said (at 50; 326): The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. The fact that a discretion relating to a different subject matter is confined to a particular consideration provides no rational reason for saying that another discretion expressed without qualification does not embrace that particular consideration.

When considering Commonwealth legislation, regard should be paid to s 33(3B) of the Acts Interpretation Act 1901 (Cth). The provision is not easy to understand but it appears to negate the operation of the expressio unius approach in regard to actions that are to be carried out by the making of an instrument. It says that, where there is a power to make an instrument, ‘the power shall not be taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Act in relation to another aspect of that matter or in relation to another matter’. See further Interpretation Acts, 8.53ff. Expressum Facit Cessare Tacitum General principle 4.46  In most circumstances this difficult-to-translate maxim is a restatement

of the expressio unius approach. It was directly so equated by Reynolds JA in Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2  NSWLR 955 at 962. See  also Plunkett v  Smith [1911] HCA 58; (1911) 14 CLR 76, where it was applied as if it were the expressio unius principle, and Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305; 251 ALR 398 at [15]–[19] where this analysis is cited. The general comments relating to the expressio unius principle that are set out in 4.43–4.45, including the limits of its value as an aid to interpretation, are applicable to expressum facit cessare tacitum also: see Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 632; 93 ALR 469 at 474 (‘that maxim, whilst a valuable servant, is apt to be a dangerous master and it is necessary to seek confirmation in the broader context of the whole Act’); Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575; 106 ALR 11 at 16–17; Konestabo v Brown [2001] TASSC 152. However, there are some particular uses of expressum facit to which attention should be paid. Procedure designated 4.47  Where a particular procedure is designated to achieve something, other procedures are thereby excluded. In Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, Gavan Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and 178

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restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

In R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 Dixon J said (at 550): ‘[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.’ In that case, a section that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in accordance with more general procedures provided for in the Act. A similar approach was followed in Howard v  B Miles Womens Foundation Inc [2012] NSWSC 1173 at [20]–[25] where the general provision was included in a Part of the Act headed ‘Miscellaneous’. The court considered it unlikely that the intention was to qualify a specific provision in another Part of the Act. The cases were revisited in some detail in the judgment of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566; 230 ALR 370 at [50]ff. In the course of their judgment, their Honours said at [59]: … what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.

The court concluded on the facts that there was no intention for the specific provision to limit the operation of another provision. In other words there was not a conferral of one power only. See  also Switz Pty Ltd v  Glowbind Pty Ltd [2000] NSWCA 37; (2000) 48 NSWLR 661 at [69]–[75]; Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237 at [44]. The obvious good sense of the approach set out in these cases needs no expansion. It has been expressly referred to by a number of High Court judges and in other decisions. See the cases referred to in the Annexure. However, that does not mean that it is always applied: see, for example, Gibbs CJ in State Bank of New South Wales  v  Commonwealth Savings Bank of Australia [1984] HCA 41; (1984) 154 CLR 579; 53 ALR 625; Maroondah City Council v  Fletcher [2009] VSCA 250; (2009) 29 VR 160 at [201]–[207] per Redlich JA and also the decisions referred to in 4.48. In the context of the expressum facit principle it is also worth noting the possibility referred to in Barraclough v Brown [1897] AC 615 that right and remedy may be integrated under a statute to such an extent that a person may only be permitted to pursue the right by means of the remedy provided. See also Kirby J in Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285; 152 ALR 624 at [97] and the presumption referred to in 5.52. 179

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Limitation of principle 4.48  A significant statement that would have the effect of limiting the application of the maxim is that of a Full Court of the Federal Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 530–1; 137 ALR 47 at 64 that the maxim ‘has little, if any, applicability to powers expressly conferred in separate enactments’. However, there seems no particular reason for adopting this qualifier. If there is an express, as distinct from a general, conferral of power, the application of the maxim should not turn on whether the conferral is in the one or in separate instruments. The issue will depend on whether or not the specific enforcement mechanism is intended to be exclusive: cf Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152 at [120]; White v Bettali [2007] NSWCA 243; (2007) 71 NSWLR 381; Drewit v Resource Management and Planning Appeal Tribunal [2008] TASSC 70; (2008) 163 LGERA 222 at [27]. However, it may be more difficult to make this out where there are different instruments: Kelly v  Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305; 251 ALR 398 at [15]–[19].

Savings provisions 4.49  A particular application of the expressum facit principle has occurred in a number of decisions concerned with savings provisions enacted in relation to a repealed Act. The Interpretation Acts of each jurisdiction contain general provisions relating to the effect of a repeal on existing rights: see Interpretation Acts, 2.28ff. In Heublein Inc v Continental Liqueurs Pty Ltd [1962] HCA 97; (1962) 109 CLR 153; Agua Marga Pty Ltd v Minister of State for the Interior (1973) 22 FLR 136; and Karounos v Flavel (1984) 2 ACLC 394 the courts held that specific provisions relating to the procedures to be adopted excluded the operation of the general Interpretation Act procedures. In the Agua Marga case this approach was referred to as an application of the expressum facit maxim. (It might as readily have been seen as an application of the generalia specialibus approach: see 4.51.) By way of contrast, Toohey J in Donovan v Repatriation Commission (1985) 58 ALR 634 at 639 discussed these cases but concluded that the legislation before him was not intended to exhaust the general remedies that were continued by an application of the Acts Interpretation Act 1901 (Cth).

Conclusion on use of principle 4.50  While there are obvious limitations on the use that may be made of the expressum facit maxim, one gains a feeling from the cases that the courts feel more comfortable adopting the approach posited by Dixon J in the cases referred to above than they do when being asked to apply expressio unius arguments (or expressum facit arguments when the maxim is being applied as a variant on expressio unius). Its application must always be dependent upon the particular text, context and purpose of the statute to be construed: per French CJ in Plaintiff M70/2011 v  Minister for Immigration and Citizenship [2011]  HCA 32; (2011) 280 ALR 18 at [50]. However, it is an approach to interpretation that 180

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in more recent times has been adverted to with some frequency, if not always followed. Generalia Specialibus Non Derogant: Where there is a Conflict between General and Specific Provisions, the Specific Provisions Prevail General approach to principle 4.51  The principle that provisions of general application give way to specific provisions when in conflict is discussed fully in 7.20–7.24 relating to repealing Acts. However, the approach is also applicable to the resolution of internal conflicts between sections within an Act: Perpetual Executors and Trustees Association of Australia Ltd v  Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1 at 29. An Act may well contain provisions of a general nature and also provisions relating to a particular subject matter. It is commonsense that the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1980) 29 ALR 333 at 347.

A particular example of the approach in question was demonstrated in Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47; 66 ALR 217. Gibbs CJ and Brennan J ruled (at 50; 219) that a general provision making non-compliance with a provision of the Act an offence had to be read down if another law prohibited the activity that the Act required. For further examples see the Annexure. It is suggested that the generalia specialibus rule should be observed more strictly in the interpretation of provisions in a particular Act than in the case of separate enactments. In the latter circumstance, it may well be that the drafter did not consider the effect of the competing Acts. When a single document is being considered, however, the drafter will be more likely to have relied on the rule. White v  Mason [1958] VR 79 affords a good example of this. ‘Licensed premises’ were expressly excluded from the operation of a part of the Health Act 1956 (Vic) that required the registration of premises selling food. Without such exclusion the part would normally have been taken to have applied to those premises. The Act also contained general catch-all provisions. Herring CJ considered that the express exclusion of licensed premises from the part of the Act that would otherwise specifically have applied to them indicated an intention that they should also be excluded from the general provisions of the Act. See also Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 294; Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114. Limitations on principle 4.52  In considering the application of the principle, the general rule set out in 2.43 that, where possible, all words in an Act should be given effect must 181

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not be overlooked. The generalia specialibus approach should only be called in aid ‘where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation’ (Purcell v  Electricity Commission of New South Wales  [1985] HCA 54; (1985) 60  ALR 652 at 657) and where ‘contrariety is manifest’: Reseck v Federal Commissioner of Taxation [1975] HCA 38; (1975) 133 CLR 45 at 53. See also Gunner v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 507. The special will also not limit the general where the special provision is adding additional powers to those already in the legislation: Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 263 ALR 411 at [78]. In an exceptional case a general provision may even be seen to be intended to override a specific provision — a force majeure situation as it was described by Beaumont J in Lyons v Registrar of Trade Marks (1983) 50 ALR 496 at 506; see also Australian Securities and Investments Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 255; 142 ALR 177 at 182. What is said to be a particular application of the principle underlying the generalia specialibus approach is to be found in cases concerned with the grant of power both in general terms and in specific terms. If the general power is conferred without limitations or qualifications but the special power is expressed to be subject to some limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power. This was discussed in 4.46 as an application of the expressum facit cessare tacitum approach. However, in Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672; 24 ALR 513 and Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 45 FCR 445 at 450–1; 117 ALR 669 at 674 the discussion is in terms of generalia specialibus. Nothing turns on this distinction, but it is important to recall that either approach can be employed. Much the same position as is set out above in regard to the vesting of power arises where two prohibitions are contained in the one enactment. Megarry J in No 20 Cannon St Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 at 235 put it thus: … the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not.

See  also Saraswati v  R [1991] HCA 21; (1991) 172 CLR 1; 100 ALR 193 where a requirement in regard to a specific offence that it had to be prosecuted within 12 months of the date of the offence could not be circumvented by prosecuting for a general offence under a provision that was not subject to the time limitation.

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Identification of dominant provision: ‘subject to’, etc 4.53  The need on occasions for a court to identify which is intended to be the dominant provision where provisions cover like territory was noted in 4.5 with reference to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [70]. However, a drafter may flag which is to be the dominant provision by the inclusion of words such as ‘subject to this Act’ or ‘notwithstanding anything contained in section [X]’. However, particularly the ‘subject to’ formula is often included by way of abundant caution. The overriding idea is that an Act should be read as a whole and this has the effect of making all provisions subject to one another. The ‘notwithstanding’ formula may provide a better guide as to the primacy of competing sections, but even then it is necessary to look closely at the intended interrelationship of the provisions. The ‘notwithstanding’ may be too bland to attract much weight: see Black v Director-General of Education [1982] 2 NSWLR 714 at 718.

The effect of qualifying words of this kind was discussed by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672; 24 ALR 513 at 679; 519. His Honour said: In this case the words [in the specific section] ‘without limiting the generality of the foregoing’ evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power.

See also Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; 258 ALR 434 at [43]ff; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 at [62]. (In  relation to the operation of this type of provision in regard to regulation-making powers, see D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, 14.19–14.22.) Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342 at 361–2; 58 ALR 285 at 299–300 was concerned with the reverse situation. It was held there that the ‘without limiting the generality’ formula in the specific provision could not be invoked to release the specific power from the conditions on the exercise of the power to which it related. See further 4.5 on the identification of the hierarchy of provisions within one piece of legislation. On the interpretation of ‘subject to’, etc, see further 12.4. Later Section Prevails over Earlier 4.54  As a rule of last resort, when it is not possible to reconcile two sections

in an Act, the later section prevails over the earlier: Wood v Riley (1867) LR 3 183

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CP 26; Mt Isa Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 629 at 639; Ross v R [1979] HCA 29; (1979) 141 CLR 432 at 440; 25 ALR 137 at 145; Lyons v Registrar of Trade Marks (1983) 50 ALR 496 at 508. See  Chapter  7 in relation to the general rule relating to later legislation prevailing over earlier. Reddendo Singula Singulis: Where Two or More Subjects are Qualified by Two or More Matters, the Qualifications Attach to the Subjects in the Order in which they Appear 4.55  This somewhat curious syntactical presumption is best illustrated by example. If the statement is made ‘paint or varnish may be dissolved by turpentine or kerosene’, does this mean that both solvents work on both subjects? Or is it that paint may be dissolved by turpentine and varnish by kerosene? The reddendo approach indicates the latter interpretation — paint and turpentine are one pair and varnish and kerosene another. Grammatically this interpretation may be defensible (see Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 at 6), but it presupposes a precision in writing that may well be a counsel of perfection. It could not, for example, be argued that s 14(2) of the Interpretation of Legislation Act 1984 (Vic) which provides, in part, ‘… any such investigation, legal proceeding or remedy may be instituted, continued or enforced …’ should be interpreted by an application of the reddendo presumption.

The approach can, however, be useful where a complex section containing multiple subjects with multiple dependent clauses has to be interpreted. It was so applied by Clauson J in Bishop v Deakin [1936] Ch 409. A section of the Local Government Act 1933 (UK) provided: ‘A person shall be disqualified for being elected or being a member of a local authority if he has, within five years before the day of election, or since his election, been convicted of any offence, and ordered to be imprisoned …’ The court held that the dependent clause ‘within five years etc’ attached to the first subject ‘being elected’ and the second qualification ‘since his election’ applied to the second subject ‘being a member’. Murphy J also used the reddendo principle in interpreting a complex provision in Chelfco Ninety-four Pty Ltd v Road Traffic Authority [1985] VR 1 at 11. For a consideration but rejection of the applicability of the approach to the legislation under consideration, see Melbourne City Council v Melbourne Port Corporation [2003] VSC 200 at [17]; Robb v Transport Accident Commission [2004] VCAT 983; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630; 97 ALD 241 at [74] per Kirby J. Hendiadys 4.56  Acts frequently impose an obligation on a person or prohibit certain conduct by means of a provision that comprises two phrases connected with the word ‘and’. Examples would be ‘complete and furnish a return’; ‘set into motion and drive a car while intoxicated’. The problem that arises is whether 184

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two types of conduct are being referred to or only one. Grammarians refer to a single idea expressed in two words with the conjunction ‘and’ as a ‘hendiadys’. Where this type of construction is found in an Act, it will often be difficult for a court to determine whether or not it is a hendiadys. Hope J encountered this problem in Traders Prudent Insurance Co Ltd v Registrar of Workers’ Compensation Commission of New South Wales  [1971] 2 NSWLR 513. The provision with which he was concerned read: ‘Every insurer shall promptly co-operate with the committee and assist it to carry out its duties under this section …’ His Honour held that one obligation only was imposed by the section. He considered that an insurer was entitled to know the way in which it was required to cooperate with the committee and accordingly it was insufficient simply to charge an insurer with a failure to cooperate. The approach adopted in the Traders Prudent Insurance case provides some assistance in resolving the problem. If one part of the provision taken by itself imposes an unreasonable obligation on a person, the provision will be construed as if it were a hendiadys. If the two parts can each reasonably stand on their own, they will be construed separately. But even though two obligations may be being imposed, the meaning of one will be influenced by the other: Airservices Australia v Monarch Airlines Ltd (1998) 152 ALR 656 at 679. For other examples see Kitt v Tourism Commission (1987) EOC 92-196; 64 ALJ 116; Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323 at [110]. See further the rejection by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260 at [34] of a claim that a reference to ‘symptoms and disability’ ought to be read as a ‘composite or portmanteau phrase’. This was another way of describing it as a hendiadys. For the interpretation of composite phrases generally see 4.13. Device of ‘Deeming’ 4.57  In his famous dissertation with Alice on the meaning of words (see 1.1), Humpty Dumpty dismisses Alice’s pleas that words have a fixed meaning with the contemptuous reply: ‘The question is, which is to be master — that’s all.’4 And so it is with the drafter of an Act: he or she is the master of the words and can make them mean whatever is wanted. A device adopted to infuse meaning into a word or phrase is that of ‘deeming’ — ‘For the purposes of this Act, a judgment shall be deemed to include a sentence’ or more radically ‘For the purposes of this Act, “day old poultry” shall be deemed to be any poultry of an age of seventy-two hours or less’.5

This use of the expression ‘deemed’ was described by Griffith CJ in Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693 at 696 as a ‘statutory fiction’, a device for extending the meaning of a term to a subject matter which it properly does not designate. When ‘deemed’ is used in this way, Griffith CJ 4. Lewis Carroll, Alice Through the Looking-Glass, Ch VI and see 1.1. 5. See Poultry Act 1968 (NZ) s 2. 185

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pointed out that it is important to consider the purpose for which the fiction has been introduced. Care must be taken to observe that the extended meaning of the word is applied, but equally the reader must be aware that it is a fictitious use of the word and is only applicable in its particular context. ‘[D]eeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to … It is improper in my view to extend by implication the express application of such a statutory fiction’: Fisher J in Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96; 64 ALR 451 at 458 followed in East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 at 478; Salton v  Commonwealth Superannuation Corporation [2013] FCA 12; (2013) 209 FCR 349; 133 ALD 327 at [32]. The importance of this approach to deeming clauses was demonstrated in R v Bilick and Starke (1984) 36 SASR 321. The relevant statute deemed the possession of more than a certain quantity of a drug to be possession for the purpose of trading. King CJ stressed (at 328) that it was particularly necessary to be aware of the limits of the deemed facts when dealing with a criminal matter. He continued (at 330): It is one thing to deem a fact, be it an extra-mental phenomenon or a state of mind, either presumptively or conclusively, to exist, whether it exists in truth or not, for the purpose of establishing an ingredient of a particular offence or type of offence; it is quite another to make it the basis of reasoning leading to the conclusion that some other offence, of which the deemed fact is not an ingredient, has been committed.

Nevertheless, as was pointed out in Coates v Commissioner for Railways (1961) 78 WN (NSW) 377, where a statute provides that something is to be deemed to be a fact, it is implicit in such a provision that the assumption shall be made if necessary contrary to the fact. In that case a provision operated in such a way that an injury to a worker was to be deemed to have happened at a certain time. The court held that it was not open to the worker to establish that he had in fact received the injury before that time. See also the cases referred to in the Annexure. However, as was pointed out by Samuels J in Woodlock v  Commissioner of Land Tax (NSW) (1974) 2 NSWLR 411; 5 ATR 57, it must not be overlooked that the fiction created by the deeming provision is generated by a true, as opposed to a fictitious, state of affairs. The presence of the deeming provision must not divert attention from the consideration that the facts on which the provision is to operate have to exist before the fictitious treatment of those facts takes over. See Ellison v Sandini [2018] FCAFC 44; (2018) 354 ALR 484 at [209]–[213] for a general discussion of the interpretation of deeming provisions. For further discussion of the general use of deeming, see the Annexure.

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Other expressions such as ‘as if ’ and ‘shall be taken to be’ are variants on the expression ‘deemed’ and will be interpreted in the same manner: see the cases referred to in the Annexure. Use of ‘deemed’ in other than fictional sense 4.58  As is mentioned in some of the preceding cases, the word ‘deemed’ is not always used in the fictional sense referred to in the preceding paragraph. It has the meaning in ordinary parlance of ‘judged’ or ‘concluded’. If the word is used in an Act in this sense, there is nothing fictitious in what is deemed to have occurred or to take place.

This distinction in the way in which ‘deem’ may be used was discussed at length by Windeyer J in Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at 65. The case concerned a section of the Trade Marks Act 1955 (Cth) that provided that ‘… a trade mark shall be registered as of the date of the lodging of the application for registration and that date shall be deemed … to be the date of registration’. Counsel had argued that this section created a fictional date of registration. In rejecting this argument Windeyer J pointed out that there was nothing fictitious about the date. The section did no more than designate what the date should be. In Macquarie Bank Ltd v  Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 Gleeson CJ made the point that there will be two questions that have to be resolved when considering the use of the word ‘deemed’: the meaning of the word and the statutory purpose for which, in a given case, the word is used. His Honour remarked: It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word ‘deemed’, as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist.

His Honour continued to note that in some cases a court may conclude that, as a matter of construction, the consequence which is deemed to follow from the legislative formula is only in the nature of a rebuttable presumption: cf the position with a true deeming provision referred to above that denies the right to lead evidence to rebut what are deemed to be the facts. See  also Williams v  Town of Claremont [1976] WAR 125; Lesi v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 285; (2003) 134 FCR 27; 203 ALR 420 at [41]. The word ‘deemed’ may also be used in a definition to extend its meaning, not in a fictional sense, but to include matters that might or might not fall within the scope of the word defined. Abundant caution may suggest to the drafter that a word may be construed in such a way as not to cover the full 187

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ambit of matters desired. When ‘deemed’ is used in this way, the position is similar to that where the word ‘includes’ is used in a definition: see 6.5–6.9. It cannot be used as a peg on which to hang an argument that the word defined is being given a fictitious meaning: Ex parte Armstrong; Re  Hughes (1963) 80 WN (NSW) 566; Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 79 ALR 534 at 545. See  further the discussion in ‘Current Topics’ (1977) 51 ALJ 229 and 607. FRAMEWORK OF THE ACT

Introduction 4.59  In addition to the various grammatical and syntactical aids referred to, assistance may be gained in determining the meaning of expressions in a document by looking at the form of the document itself. ‘The purpose of a statute resides in its text and structure’: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412 at [25].

The framework or structure of an Act is a particularly fruitful source of assistance because it contains many matters supplementary to the actual text. (For a description of the various parts of an Act, see 1.41–1.49.) However, the use that may be made for interpretation purposes of the items that make up an Act will vary. While the practices followed in the various parliaments is not uniform, not all components of a statute may be amended during its passage through the parliament. For example, although practices are changing, it is not always possible for punctuation and marginal or head notes to sections to be amended. The courts have accordingly been less inclined to turn to these for assistance than to such items as titles, preambles and headings which are formally passed by the parliament and can therefore be amended. It is to be assumed that the parliament has addressed its mind to their content in the same way as it has considered the words of the Act. However, this is not to say that those parts of an Act that are not subject to parliamentary review cannot be referred to in order to ascertain the meaning of the Act. It has come to be recognised that they are included as part of the drafting process and ought not therefore to be ignored. Nonetheless, it must never be overlooked that it is with the words of the Act that a court is concerned. If they give rise to no ambiguity, resort may only be had to the framework of the Act in the circumstances discussed in Chapter 2. The use for interpretation purposes made by the courts of the parts of an Act is also affected by the inclusion of a provision in all Interpretation Acts that indicates which components of an Act are to be treated as parts of the Act. In the past these provisions were fairly uniform. However, greater variation has become apparent in more recent times and it is therefore necessary to look at the provision that applies in the relevant jurisdiction. See Interpretation Acts, 3.2ff. 188

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The Commonwealth has gone so far as to provide that all material included in an Act forms part of it. This is a realistic recognition of the fact that, despite provisions indicating that certain material is not part of the Act, the courts have had regard to it for interpretation purposes. It also recognises that the provisions in all jurisdictions (except South Australia) permitting regard to be had to extrinsic materials for interpretation purposes has meant that all parts of the legislation may be looked to for determining the purpose of the legislation: see 3.17ff. It would seem desirable for the Commonwealth’s provision to be adopted in the other jurisdictions. Long Title 4.60  It is clear that the long title may be referred to as an aid to the construction of an Act. In Pitt, Son & Badgery Ltd v Sydney Municipal Council (1908) 24 WN (NSW) 203 at 204 Street J said:

Whatever views may have been taken in earlier days as to the right of the Court to look at the title of an Act for the purpose of arriving at its true construction, I think that there is ample judicial authority of recent years to show that this may be done.

In this case, however, the title did not cover all the matters dealt with by the Act and accordingly his Honour considered that it would be unsafe to rely on it as any guide to the meaning of the section before him: see also R v Stevenson (1891) 24 SALR 105. In older cases the approach then extant limited the use of the title to the resolution of ambiguity. Thus in Birch v Allen [1942] HCA 17; (1942) 65 CLR 621 at 625–6 Latham CJ said: It may be proper to look at the title for the purpose of determining the scope of an Act; it may be referred to, not to contradict any clear and unambiguous language, but if there is any uncertainty it may be referred to for the purpose of resolving the uncertainty.

An example of a refusal by the court to allow the long title to override the words of the Act is provided by In the Estate of Groos [1904] P 269. The long title of the Wills Act  1861 (UK) was ‘An Act to amend the law with respect to wills of personal estate made by British subjects’. Section  3 of the Act provided: ‘No will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicile of the person making the same.’ The court held that the section applied to a person living in England who had changed her domicile but who was not a British subject. It did not consider it reasonable to limit the general words of the section by reference to the long title. However, R v White (1899) 20 LR (NSW) 12 illustrates that the title of an Act can provide assistance in resolving a question of interpretation. It had been argued that the Evidence Act 1898 (NSW) was intended to codify the 189

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law, with the consequent effect of it having to be interpreted as if it were a code (see Chapter 8). Owen J pointed out that the title of the Act was ‘An Act to consolidate the statute law relating to evidence’; it was therefore obviously a consolidating Act and the rules relating to the interpretation of codes did not apply. Similarly, the House of Lords in R v  Bracknell Justices; Ex parte Griffiths [1976] AC 314 referred to the fact that the long title of the Mental Health Act  1959 (UK) stated the Act’s aim as being ‘to make fresh provision’ for matters relating to mental health. This clearly indicated that the Act was not merely re-enacting earlier laws. The Full Court of the Federal Court placed considerable reliance on the long title of the Social Security Act 1947 (Cth) as indicating that the Act was concerned with payment of benefit to particular categories of person and not with alleviating need generally: Lambe v DirectorGeneral of Social Services (1981) 4 ALD 362. Members of the High Court and other courts regularly call on the long title as an aid to interpretation: see the Annexure for examples. These cases also seem to recognise that the title is a part of the Act and accordingly is to be taken into account in considering the context in which other provisions appear. As an Act is to be read as a whole, the title can give colour to the meaning of other provisions. Indeed, in Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471; 112 ALR 1 at 477; 5 the court talked in terms of ‘defining’ the purpose of the Act by reference to the long title. Megarry J in No 20 Cannon St Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 referred to the long title of the empowering Act in interpreting a statutory instrument made under it. See also Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541. Short Title 4.61  Under the common law it is not clear whether reference may be

made to the short title of an Act for interpretation purposes. The Australian cases do not allude to the issue in their discussion of the use of the long title. In England there is strong authority against the right to refer to the short title: Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 per Lord Moulton at 128–9 followed by Buckley LJ in Re Boaler [1915] 1 KB 21 at 27. The contrary view was expressed by Scrutton LJ in Re Boaler at 40–1. The argument against referring to the short title is apparently based on the view that it is no more than a label: its object is identification and not description. The Commonwealth Acts Interpretation Act 1901 provision in s 13 that all material in the Act comprises a part of the Act would include the short title. The Interpretation Acts of the other jurisdictions make no express reference to whether the short title is a part of the Act. However, it is formally approved by the parliament and, while it will rarely be of any use, there seems no really good reason to exclude reference to it — for what it 190

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may be worth: cf CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165; 311 ALR 547 at [155]. Preamble 4.62  The approaches to the use of the long title of an Act for interpretation

purposes are repeated in relation to preambles. An older view, relegating preambles to very much an introductory status, was stated by Griffith CJ in Bowtell v Goldsbrough, Mort & Co Ltd [1906] HCA 60; (1906) 3 CLR 444 at 451: … where the words of a Statute are plain and clear, their meaning cannot be cut down by reference to the preamble. But, if the words are uncertain as applied to the subject matter, and may bear more than one meaning, then you may, in a proper case, refer to the preamble to ascertain what was the occasion for the alteration of the law.

This statement was expressly endorsed by Gibbs CJ in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 15–16; 37 ALR 317 at 327. This approach ignores the fact that a preamble is as much a part of an Act as is a section and that it therefore should be given the same weight for interpretation purposes as other parts of the Act. What is submitted to be the appropriate approach to the use of preambles for interpretation purposes was stated by Mason J in the Wacando case (at 23; 333): It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.

Other decisions have affirmed that the fact that the enacting words go further than the preamble is not in itself a reason for resorting to the preamble to limit their operation: Attorney-General v  Prince Ernest Augustus of Hanover [1957] AC 436 at 463. See also Drake v Thornton (1883) 1 QLJ 159; Southern Centre of Theosophy Inc v South Australia [1979] HCA 59; (1979) 145 CLR 246 at 258; 27 ALR 59 at 66 per Gibbs J; Wacando v Commonwealth, above, at 23; 333. The recital of facts in a preamble does not mean that the recitals are conclusive evidence of those facts — they are prima facie evidence only: Dawson v Commonwealth [1946] HCA 41; (1946) 73 CLR 157 at 175 per Latham CJ. But a reference in the preamble to some matter will make evidence of that matter admissible in court. In Deputy Federal Commissioner of Taxation (NSW) v  W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 the High Court was called upon to consider an arrangement between the Commonwealth and the states that was intended to overcome the effect of the prohibition against discriminatory Commonwealth tax. This arrangement was referred to in the preamble to the Commonwealth Act. The court said that, as the preamble referred to the record of the conference between the states and the Commonwealth, the court could also refer to that record. However, 191

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as the validity of the legislation could not be determined by this agreement, there was no need for the court so to act. The record was nevertheless admissible. In some jurisdictions it is provided that a preamble is a part of the legislation.6 For a detailed consideration of the use of preambles in interpretation, see A Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ (1999) 23 Melb Univ L Rev 184 (referred to with approval by a Full Court of the Federal Court in Singh v Minister for Immigration and Citizenship [2012] FCAFC 12; (2102) 125 ALD 149 at [65]). For an interesting commentary on the use that might be made of preambles, see K Roach, ‘The Uses and Audiences of Preambles in Legislation’ (2001) 47 McGill LJ 129. Statement of Intention or Objects Clause 4.63  A modern-day variant on the use of a preamble to indicate the intended purpose of legislation is the inclusion of a statement of intention as to how an Act is to operate. This is often done by way of an objects clause, an approach to drafting of legislation that is used from time to time: see, for example, Freedom of Information Act 1982 (Cth) s 3. An example of a more specific statement of intention is s 75(1) of the Trade Practices Act 1974 (Cth). That section reads: ‘Except as provided by sub-section (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.’ Of this provision Barwick CJ said in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545; 14 ALR 257 at 260:

Whilst quite clearly the Parliament cannot determine whether or not the legislation of a State is consistent or inconsistent with an Act or Acts of the Parliament, it can assert in its legislation its intention to make its law the exclusive law upon its topic or its intention not to do so. Such an expression of intention in the Act of the Parliament will not, of course, be definitive. But the courts can resort to it in case of uncertainty or ambiguity when the operation of the Act of the Parliament, according to its other terms, has been ascertained and applied. Thus, the statutory expression of Parliament is not invalid nor inoperative. Without being definitive, it may assist in the determination of the operative effect of the Act vis à vis the Acts of a State legislature.

The general approach of the courts to the use of objects clauses has been much the same as that set out above in regard to preambles: see  4.62. In Re Yanner [2000] FCA 975; (2000) 100 FCR 551; 176 ALR 1 at [95]–[97] and S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431; 225 ALR 123 at [22], Federal Courts adopted the approach of Mason J in the High Court in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 15–16; 37 ALR 317 at 327, set out in 4.62. As Mansfield J in S v Australian Crime Commission put it: ‘… such a clause cannot cut down the plain and unambiguous meaning of 6. Cth s 13; ACT s 126(1); SA s 19; WA s 31. 192

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a provision if that meaning in its textual and contextual surroundings is clear.’ See also Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 29 NTLR 189 at [14]. Cole JA in the New South Wales Court of Appeal said that ‘whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power’: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78. This statement was followed in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261; (2012) 297 ALR 289 at [99] per Robertson J; Lynn v New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 at [54] per Beazley P. The parliament cannot legislate an Act into power by declaring it to be enacted for a valid object. But a connection with a head of power may be revealed more clearly by stating the purpose of the legislation: Leask v Commonwealth [1996] HCA 29; (1996) 187 CLR 579 at 591; 140 ALR 1 at 7. It has also to be borne in mind when considering an objects clause that it alone will not represent the object of the legislation. Intention is to be gleaned from the whole of the Act and regard must also be had to other sections: see Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 at 153; 37 ALR 559 at 579. This will particularly be the case if the objects are expressed generally or at a level of abstraction: Cappello v Roads and Maritime Services [2019] NSWSC 439 at [41]–[43]. 4.64  Despite these cautions, objects clauses are used as an aid to the construction of words of legislation. In Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643; 201 ALR 231 at [5] Gleeson CJ referred to the legislative declarations of the objects of an Act as not being ‘an exercise in apologetics’ but as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ when used in the legislation. This statement was adopted by Beazley P in Lynn v New South Wales, above, at [54].

For examples of reference to a clause setting out the purpose of the Act under consideration as an aid to its interpretation, see  the Annexure. See further 2.21. It cannot be said that an objects clause has always had an influential effect on the interpretation of the Act. This is particularly so where, as is often the case, the objects are stated in general terms: see, for example, Australian Retirement Homes Ltd v Ash [2013] QCA 355 at [37] and see the discussion of Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260 at 2.21 and the additional cases there cited. Nevertheless, where an interpretation has been adopted that does not fit readily with the clause, it has had to be explained and that in itself seems a worthwhile exercise in directing consideration of the purpose of the legislation. 193

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Apart from s 13 of the Commonwealth Acts Interpretation Act’s inclusion of all material in an Act as part of the Act, there is no legislative provision that recognises an objects clause as being part of the legislation in which it appears. A variant now used, particularly in Commonwealth legislation, is what is termed a ‘simplified outline’. This is included in a section of the Act and is thereby a part of the Act. As such it can be used for interpretation purposes for whatever value it might have: Hudson v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393; 272 ALR 605 at [88]. For commentary on the value of objects clauses see Jeffrey Barnes, ‘Statutory Objects Provisions: How Cogent is the Research and Commentary?’ (2013) 34(1) Statute Law Review 12. Part and Division Headings 4.65  Part and Division headings seem to be in much the same position as long titles and preambles. In Sanderson v  Fotheringham (1885) 11 VLR 190 at 192, Higinbotham J in the course of argument stated as the general rule: ‘The headings of the Parts are, like the preamble of an Act, portions of it to be regarded, though the marginal notes are not so, being for facility of reference only.’ Similar views were expressed in Saunders v  Borthistle [1904] HCA 13; (1904) 1 CLR 379 and Hanson v Barwise [1930] St R Qd 285. However, as was pointed out by Mansfield J in Australian Prudential Regulation Authority v Holloway [2000] FCA 579; (2000) 104 FCR 521 at [50] in a passage applied by Barrett J in Awada v Linknarf Ltd (in liq) [2002] NSWSC 873; (2002) 55 NSWLR 745 at [14] in relation to the heading of a Division of an Act: ‘The heading is necessarily brief, and may therefore be inaccurate or incomplete. It may survive despite amendment to the sections in the course of the passage of the Bill.’ Nonetheless it must not be forgotten that, by virtue of the Interpretation Act provisions referred to in 4.59, headings to Parts and Divisions are part of the Act and cannot simply be ignored.

In the same way in which titles and preambles must give way to the text, the headings will be disregarded if they conflict with an otherwise unambiguous provision in the statute. In Silk Bros Pty Ltd v  State Electricity Commission (Vic) [1943] HCA 2; (1943) 67 CLR 1 the heading to a statutory rule was ‘Amendments of the Landlord and Tenant Regulations’. The statutory rule also included a regulation repealing the National Security (Fair Rents) Regulations (Cth). The High Court held that the repealing regulation was clear and unambiguous and accordingly the heading could not be used to limit the scope of the statutory rule. Latham CJ said (at 16): The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision … ‘But where the enacting words are clear and unambiguous, the title, or headings, 194

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must give way, and full effect must be given to the enactment’ (Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372 at 383).

See the Annexure for further examples. 4.66  The issue of the effect of a heading usually arises in one of two contexts. The first is where the heading is regarded as too narrowly stated to encompass the effect of the sections in the Part. An example of this is provided by Pt V of the Trade Practices Act  1974 (Cth) which is headed ‘Consumer Protection’. Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 at 225; 18 ALR 639 at 645, citing the passage from the Silk Bros case above, held that this heading was not intended to limit the operation of s 52 of the Act relating to misrepresentations. A non-consumer could bring an action under the section. The words of the section were unambiguous and were expressed in general terms and it would have been inappropriate in the context of the Act to confine them by reference to the heading. A Full Court of the Federal Court in Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 332; 59 ALR 334 at 341 took this decision further by holding that a misrepresentation did not have to be made to consumers to be actionable under the section.

However, a heading cannot be ignored and it can constrain the scope of a section. In Concrete Constructions (NSW) Pty Ltd v  Nelson [1990] HCA 17; (1990) 169 CLR 594; 92 ALR 193 a majority of the High Court held that the foregoing cases did not mean that the heading ‘Consumer Protection’ did not have any impact on the sections that appeared in the Part so designated. Accordingly, s  52 should not be interpreted as applying to all activities in which a company engaged: see  particularly 601; 196. For another example of a heading significantly affecting the breadth given a section, see DirectorGeneral of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648. 4.67  The other context in which problems occur is where a section expressed in general terms is included in a Part headed in a way that could limit its operation. The issue is complicated further if other sections in that Part fall within the description contained in the heading. Prima facie it would appear that the general section should be confined by its context. However, the context of the Act as a whole may demonstrate that this was not the intention.

A fairly obvious example of this situation is provided by Chalmers v Thompson (1913) 30 WN (NSW) 161. A section of the Children’s Protection Act  1902 (NSW) relating to ill-treatment of children appeared in a Part headed ‘Adoption of Children’. The question that arose was whether a child’s natural father could be charged with a breach of the section. Harvey J held that he could look to the Act in its form prior to consolidation when it had no headings. By so doing he could hold that the application of the section was not to be limited by the heading. A similar approach was followed by a majority of the High Court in K & S Lake City Freighters Pty Ltd v Gordon & 195

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Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309; 60 ALR 509. The legislative history of the section in question and the context of the Act indicated that it was intended to operate generally and the Part heading in which it appeared ought not therefore to confine it. On what will probably be rare occasions it can be the heading that will be regarded as too broad and the section will be given a limited operation. This occurred in TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172; 60 ALR 687. Toohey J there held that a section included in a Part of an Act headed ‘General’ did not have general operation. The other sections in the Part were not of a general nature and the heading probably would have been more appropriately expressed as ‘Miscellaneous’. Finally, reference should be made to the summary of the law given by Murray CJ in Ragless v Prospect District Council [1922] SASR 299 at 311: I think the rules [as to the use of headings] may be stated thus: 1. 2. 3.

If the language of the sections is clear, and is actually inconsistent with the headings, the headings must give way. If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.

See also Napier v Sholl [1904] SALR 73. In all jurisdictions there is an Interpretation Act provision stating that headings to Parts, etc, form part of the Act.7 See 4.71–4.73 in relation to headings to sections. Schedules 4.68  The regard that may be paid to schedules to an Act seems to have undergone some change. The old view was that, if there was any conflict between the body of the Act and the schedule, the schedule was to give way. It was regarded as being inferior to the rest of the Act. For statements to this effect, see Goodman v Mayor, etc of Melbourne (1861) 1 W & W (L) 4 at 6 per Stawell CJ; R v Taylor and Curtis (1863) 2 W & W (L) 23; South Australian Banking Co v Horner (1868) 2 SALR 263 per Gwynne J. A somewhat similar approach, though treating the schedule in a manner similar to a title or preamble, was expressed by Molesworth J in Re Clerk (1871) 2 VR (M) 11 at 13: ‘A schedule may be used to construe an Act if not clearly inconsistent with it.’

Since these early cases, schedules have come to be used much more regularly as a part of legislative instruments. As is indicated by the Interpretation Act sections referred to in 4.59, they do not constitute some inferior portion of 7. Cth s 13; ACT s 126; NSW s 35; NT s 55; Qld s 14; SA s 19; Tas s 6; Vic s 36; WA s 32. 196

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the Act but are to be taken as part of the Act. It seems probable that this change in use will be recognised by the courts. It was so recognised in the case of Re Foley; Channell v Foley (1952) 53 SR (NSW) 31 at 36 by Roper CJ in Eq. After referring to the fact that, prima facie, one would not expect any variance between the enabling sections and the schedule, his Honour said: The schedule itself, however, is a legislative enactment and is not necessarily wholly constrained by the section of the Act which introduces it, or by its own heading. The principles which ought to be applied in its construction are those set out by Lord Sterndale MR in IR Commrs v Gittus [1920] 1 KB 563 at 576: ‘It seems to me that there are two principles or rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act’.

The only legislative provision that warrants some comment is that in the New South Wales Interpretation Act 1987. Section 64A says that: ‘A schedule to an Act or instrument has effect according to its tenor when it comes into force, whether or not the Act or instrument declares the schedule has effect.’ The purpose of this section is not immediately apparent. It is suggested that if one accepts that at common law a schedule is part of an Act (see 1.48), then the intention of s 64A may be to say that the schedule is to be read in the context in which it appears. So it is not necessary for the Act of which it is a part to say anything about its status. However, if it does, the schedule will have to be read in accordance with that directive. It seems that the reference to taking effect ‘according to its tenor’ has that effect. So the content of a schedule can be unconstrained or can be limited according to whether other provisions of the Act in which it appears impose limitations. In short it is no different from a section of an Act which can be unlimited or can be constrained by other sections of the Act. Provisos 4.69  The form of drafting whereby exceptions introduced by the words ‘Provided that’ are added to a section of an Act — a practice long disparaged by good drafters (‘That bane of all correct composition’: George Coode, On Legislative Expression, 1843) — is still employed on occasions. Where a section has been drafted in this manner, the proviso is not to be treated as in any way 197

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inferior to the rest of the section. It is but a drafting style and the words of the proviso must be given their full effect: Jennings v Kelly [1940] AC 206 at 229 per Lord Wright; Leveridge v Kennedy [1960] NZLR 1; cf, however, Vaisey J in Leah v Two Worlds Publishing Co Ltd [1951] 1 Ch 393. On the other hand, it may be that a proviso was inserted out of abundant caution to make it perfectly clear that a section is not to apply in certain circumstances or to certain persons when there is little doubt that it would not have done so anyway. In these cases care must be taken not to be too ready to apply an expressio unius exclusio alterius approach on the basis that, because the proviso has excluded one circumstance or person from the operation of the section, all others are thereby necessarily included. The proviso may only have been intended to be declaratory of the intention of the section: Bretherton v United Kingdom Totalisator Co Ltd [1945] KB 555 at 561. The leading Australian statement of the effect of a proviso is that of Latham CJ in Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 274–5: As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is ‘dependent on the main enactment’ and not an ‘independent enacting clause’: Cf R v Dibdin [1910] P 51 at 125. But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and the subsidiary provisions of an enactment may show that the proviso contains matter which is really ‘in substance a fresh enactment, adding to and not merely qualifying that which goes before’ (Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 at 258).

On the point of a proviso adding to and not qualifying the provision that precedes it, see Commissioner of Stamp Duties v Attwill [1973] AC 558 at 561. These approaches have been applied according to circumstance in Datt v Law Society of New South Wales [1981] HCA 44; (1981) 148 CLR 319 at 334; 35 ALR 523 at 534 and Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79 at 90–1; 40 ALR 213 at 220. Regard should also be had to Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 and Bropho v Human Rights and Equal Opportunity Commission [2000] FCAFC 16; (2004) 135 FCR 105; 204 ALR 761 at [75] on the effect that proviso form drafting can have on the burden of proof. Exception clauses 4.70  While the word ‘proviso’ is not used, it is a common drafting form to find an exception qualifying a definition or other provision in an Act.

An issue that has arisen before the Commonwealth Administrative Appeals Tribunal has been the extent to which the words of the exception are constrained by the primary provision to which it is an exception. It has been decided that where a definition of ‘disease’ in the Safety Rehabilitation 198

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and Compensation Act 1988 (Cth) required that the disease be contributed to in a material degree by employment, it should be implied that the same requirement should apply to an exception to the definition in respect of a disease suffered ‘as a result of ’ certain stated events, since liability would not arise under the primary provisions of the definition in the first place if the excepted events did not make a material contribution to the disease: Re Carpenter and Comcare [2010] AATA 62; (2010) 116 ALD 190 at [97]–[105]; Re Duffy and Comcare [2016] AATA 546 at [37]ff. The issue has been settled as far as the interpretation of the relevant provision in the Safety Rehabilitation and Compensation Act is concerned by the decision of the High Court in Martin v Comcare [2016] HCA 43; (2016) 258 CLR 467; 339 ALR 1. On the present issue the court said at [43] that the exclusionary phrase ‘as a result of ’ was to be read, not as imposing its own separate and free-standing test of causation, but rather as referring relevantly to the test of causation spelt out in the primary section. The approach in these cases seems logical as a matter of principle, particularly where the meaning of the exception is uncertain, since if the requirements of the primary provision would not be satisfied in any event it would be unnecessary to provide for an exception. Further, if some wider qualification to the primary provision were intended, one would expect this to be the subject of a separate stand-alone provision, rather than to be expressed as an exception to the primary provision. Marginal Notes and Headings to Sections Original approach 4.71  The starting point in all jurisdictions used to be that marginal notes and headings to sections did not form part of an Act. This is still the position in New South Wales, South Australia, Tasmania and Western Australia. In the other jurisdictions the Interpretation Act provisions now provide in varying ways that marginal notes and headings to sections are part of the Act in which they appear. In the Australian Capital Territory this applies to notes made, amended or inserted after 1 January 2000; in the Northern Territory after 1 July 2006; in Queensland after 30 June 1991; in Victoria after 1 January 2001.

The change made by the Commonwealth to s 13 of the Acts Interpretation Act 1901 to provide that all material in an Act forms part of the Act would seem to mean that marginal notes and headings to sections in all Commonwealth legislation are part of the legislation no matter when made. See the legislation referred to in 4.59. Because of the limited parliamentary role in determining the content of marginal notes and headings to sections it is not surprising to find authority denying the right of courts to take them into account for interpretation purposes. Both Barwick CJ and Gibbs J rejected the use of a marginal note as an interpretation aid: Bradley v Commonwealth [1973] HCA 34; (1973) 128 199

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CLR 557 at 577; 1 ALR 241 at 256; Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 15–16; 37 ALR 317 at 327. See also the cases referred to in the Annexure. This approach was strengthened where legislation provided that the headings and notes were not part of the Act. Acceptance of reference to notes 4.72  However, there is a line of authority that, while not elevating notes not forming part of the Act to the level of the text of the sections, nonetheless contemplates the possibility of reference where the meaning of a section is in doubt. The earliest Australian examples were two decisions of Street J — Joyce v Paton (1941) 58 WN (NSW) 88 and Winkley v Paton (1943) 60 WN (NSW) 162. In the former case, Street J, at 90, after referring to the general approach set out above, quoted with approval the approach suggested by Collins MR in Bushell v Hammond [1904] 2 KB 563 that the marginal note, while forming no part of the section, was of some assistance as it showed the drift of the section. Street J then referred to the fact that the marginal note in the case before him favoured one interpretation rather than another; in other words, that it did show the drift of the section.

Support for this approach is to be found in R v Schildkamp [1971] AC 1. In that case Lords Reid and Upjohn took the view that marginal or side notes will rarely be of any use in interpreting an Act but that they should not be rejected completely as aids. Lord Reid put this (at 10) on the basis that it is the whole Act that is the product of the legislature and that therefore the whole Act can be looked at if any doubt should arise as to its meaning. The fullest discussion of the issue is to be found in the judgment of Street CJ in Ombudsman v Moroney [1983] 1 NSWLR 317. (Moffitt P expressly agreed with his Honour’s analysis.) Street CJ observed that notes appear in the text of the bill that is before the parliament and presumably are taken notice of by parliamentarians. He indicated that it was likely to cause surprise to members and to the public at large if they were told that there was ‘an arbitrary and inflexible rule precluding any reference to marginal notes as an aid to construction’. He acknowledged that the cases in which a note might be of significance in resolving an ambiguity in a section would be rare, but he claimed that this was not a basis for denying the right to refer to notes in all cases. Street CJ did, however, qualify his approach by indicating that it was only a note that was part of the bill approved by the parliament that might be referred to. He said that this may require the authentication of a note that appears in the government printer’s version of the legislation. This caution was followed by Edelman J in Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66; (2014) 313 ALR 184 at [115] to decline to take into account a section heading because he could not authenticate it by reference to the relevant bill. The view expressed by Lord Reid and by Street CJ seems the better to follow. As is said, a side note is a poor guide to the scope of a section. Stephen J in Dugan v Mirror Newspapers Ltd [1979] HCA 66; (1979) 142 CLR 583 at 594; 200

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22 ALR 439 at 447 characterised it as ‘at most only a quite minor aid, “a most unsure guide”’. Nevertheless, a poor guide may be better than no guide and there seems no reason why the courts should reject entirely assistance that may, albeit very rarely, be of use. See Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 at 216; R v Slade [1995] 1 Qd R 390 at 398; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630; 232 ALR 421 at [34]–[38], [114]. Statutory intervention 4.73  It is necessary when considering the issue discussed in this paragraph to be sure that the notes in question fall within the description in the Interpretation Act of notes that are excluded from being part of the Act. It is possible for a note to be a part of the text of the legislation: see 4.74 and see Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20; 35 ALD 205 (headings to parts of Schedule to Migration Regulations).

The position in those jurisdictions referred to above which now provide for the headings and notes to be part of the Act seems to place them on the same footing as titles. The headings and notes may not be of great assistance in ascertaining the meaning of the sections to which they apply but they have the status of a provision of the Act and cannot be ignored: see Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 at [15], [26]; Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; (2014) 222 FCR 13; 312 ALR 254 at [81]; Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121 at [41] as examples of reliance upon s 13 of the Commonwealth Acts Interpretation Act to permit reference to the relevant section headings; similarly Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 at [60] for Victoria. See  further Interpretation Acts, 3.15. The issues discussed above have been affected in all jurisdictions except South Australia by the inclusion in their Interpretation Acts of provisions which specifically permit regard to be had to extrinsic materials for interpretation purposes.8 See  further Chapter  3. In the present context, it should be noted that matters not forming part of the Act but included in the text may be taken into account for interpretation purposes. This clearly covers marginal and other notes: see the Annexure for examples. Notes Generally 4.74  Drafters in more recent times have adopted the practice of inserting

notes in legislation to provide assistance to readers. These often alert the reader to other relevant provisions of the Act or other related legislation that 8. Cth s 15AB; ACT s 142; NSW ss 34, 35(5); NT s 62B; Qld s 14B; Tas s 8B; Vic ss 35, 36(4); WA s 19. 201

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is relevant to an understanding of the Act. Sometimes they almost constitute an expansion of the provision of the Act to which they relate. See the comments of Bergin J in One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443; 53 ACSR 623 at [52]–[54] distinguishing the effect of the notes in the Corporations Act 2001 (Cth) from the commentary relating to marginal notes. The Interpretation Act provisions of a number of jurisdictions make some types of notes a part of the Act.9 Care must be taken in these jurisdictions to identify correctly the nature of the note. Where it is akin to an example (see  4.75) or is intended to be part of the legislative provision, it is not to be excluded from the Act and can therefore be used in the interpretation process. The Commonwealth, by making all material in an Act a part of the Act (see 4.59) elevates all notes to the same status as the provisions of the Act. For examples of reference being made to notes for interpretation purposes see Re Edwards and Secretary, Department of Primary Industries and Energy (1990) 21 ALD 174 (notes to Schedule to Southern Shark Fishery Management Plan); Clement v Comcare [2011] FCA 404; (2011) 194 FCR 24 at [36]–[39] (note to section defining ‘civil proceeding’); Re De Jager [2012] SASC 236 at [26] (note to Wills Act 1936 (SA) re testamentary capacity). The fact that a note is given the status of a part of the Act does not mean that the note can govern the text of the Act (see  Re News Corporation Ltd (1987) 15 FCR 227 at 240; 70 ALR 419 at 432), but it cannot be disregarded. This statement was approved in Shuster v Minister for Immigration and Citizenship [2008] FCA 215; (2008) 167 FCR 186; 100 ALD 340 at [11]. In Director of Public Prosecutions v Walters [2015] VSCA 303; (2015) 49 VR 356 the court said at [50]: ‘Although a note such as this forms part of the Act, it is subordinate to the substantive provisions, of which it is merely explanatory or illustrative.’ The court continued at [51]: In some circumstances, a note such as this may be used as an aid to the construction of the substantive provision to which it relates. Thus, if two interpretations are open on the text of the substantive provision, a note might assist in determining which of the two interpretations was to be preferred. As observed earlier, however, if there is conflict between the substantive provision and the note, the note must give way. And, if the substantive provision fails to deal with a particular matter, nothing in the note can make good the deficiency.

See also the cases referred to in the Annexure. If there is a conflict between the note and the text of the provision to which it applies, the text prevails: Fair Work Ombudsman v Wongtass Pty Ltd [2011] FCA 633; (2011) 195 FCR 55 at [47]; Director of Public Prosecutions v Walters, above. Further, a note should not be read as extending beyond the scope of the subject matter with which it deals: Parker v Minister for Sustainability, Environment, 9. NSW s 35(4); NT s 55(4); Qld s 14(4); Vic s 36(3A) (if included after 1 January 2001); WA s 31. SA provides expressly that notes are not part of the Act: s 19. 202

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Water, Population and Communities [2011] FCA 1325 at [74]; affirmed on appeal [2012] FCAFC 94; (2012) 205 FCR 415 at [66]. Examples 4.75  The increasing use by drafters of examples demonstrating the way in

which legislation is to operate has led some jurisdictions to include in their Interpretation Acts a provision indicating the status of examples.10 The object of these provisions in the Northern Territory and Queensland (and formerly the Commonwealth) is to make it clear that the examples have status as an aid to interpretation but should they conflict with a substantive provision of the legislation the example gives way. For examples of the application of this approach, see Brooks v Commissioner of Taxation [2000] FCA 721; (2000) 100  FCR 117; 173 ALR 235 at [64]; McLaughlin v  Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 at [22]. Further, the example may not be conclusive of all matters that fall within the legislation, particularly a definition: Hinterland Marine Pty Ltd v Maritime Global Pty Ltd [2010] FCA 683 at [27]. See also Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 at [26], [62] in relation to the operation of the Commonwealth provision prior to its amendment. In the Australian Capital Territory, South Australia, Victoria and now the Commonwealth, examples are declared not to be exhaustive of the operation of the provision to which they relate and, more importantly, the example may extend the operation of the provision. The Explanatory Memorandum to the Acts Interpretation Amendment Act 2011 (Cth) which altered s 14AD of the Principal Act said that the use of the word ‘may’ is intended to ensure that a court can assess whether in fact it is appropriate for an example to extend the operation of the provision in a particular case.11 In Fair Trading Administration Corporation v  Owners Corporation, Sp 43551 [2002] NSWSC 624 at [17] Burchett AJ said that the same position applied in regard to examples in legislation in jurisdictions whose Interpretation Acts did not contain the qualifying provision. Punctuation 4.76  Whether the court will have regard to punctuation seems to depend very

much upon whether it suits the judge to refer to it as aiding the interpretation that he or she wishes to adopt or whether it interferes with that interpretation. In general, the courts are loath to pay regard to the punctuation of an Act. In Charlton Shire v Ruse [1912] HCA 33; (1912) 14 CLR 220, the High Court considered that no regard should be paid to the punctuation of a section of an Act setting out the powers of local government bodies. Griffith CJ at 225 said: 10. Cth s 15AD; ACT ss 126(4), 132; NT ss 55(4), 62D; Qld ss 14(3), 14D; SA ss 19(1), 19A; Vic ss 36, 36A. 11. Para 103. 203

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‘[S]tops, which may be due to a printer’s or proof reader’s error, ought not to control the sense if the meaning is otherwise tolerably clear.’ Isaacs J said (at 229–30): ‘But though I am not prepared to discard wholly the punctuation of an Act, it would be unsafe to allow it to govern the construction.’ Similarly, in Mayor, etc of Geelong v Geelong Harbour Trust Commissioners [1923] VLR 652 at 657 Schutt J said: ‘[A]lthough punctuation is not to be entirely disregarded, it is not to be allowed to control the meaning of the words where such meaning seems otherwise reasonably clear.’ See  also Committee of Direction of Fruit Marketing v  Collins [1925] HCA 25; (1925) 36 CLR 410 per Isaacs J at 421; British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 254–5 per Rich J. (Note, however, that in the last-mentioned case Dixon J, dissenting, relied on the punctuation to enable him to reach his views.) One wonders how much this approach of the courts is influenced by the misconception evidenced by Smith J in Deputy Federal Commissioner of Taxation v  Carpenter [1959] VR 470. His Honour there said at 471: ‘Moreover, the interpretation that is suggested by punctuation may represent merely a layman’s unconsidered view, for the punctuation may have been supplied, wholly or in part, by a printer or proof reader.’ This attitude fails to appreciate the fact that drafters do punctuate carefully. The suggestion that the punctuation may be inserted by a proof reader or a printer does not accord with present-day drafting practice. 4.77  It may possibly be that there is some shift in approach by the courts to the referral to punctuation. Gibbs ACJ in Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633 at 636; 23 ALR 41 at 44 referred to the interposition of the commas in a section to support his interpretation of it. Bray CJ did likewise in N & D Ridolfo Pty Ltd v Mayer (1974) 7 SASR 530. Brinsden J in Conigrave v Tanner [1978] WAR 225 at 230 rejected an argument that punctuation could never be taken into account. His Honour placed use of punctuation on much the same basis as reference to titles and headings: ‘[I]f the meaning of the statute is so strong, punctuation and brackets, however used, would not persuade a court to interpret the statute contrary to that meaning.’ But in that case, the use of inverted commas around a word was seen to be a deliberate step taken by the legislature to indicate that the word was being used in a special way.

It is suggested that the approach posited by Brinsden J is that which should be followed by the courts. There may be instances where it is clear that a slavish adherence to the punctuation adopted in a section will defeat the legislature’s intention: see Chew v R [1992] HCA 18; (1992) 173 CLR 626 at 631; 107 ALR 171 at 172–3; Director of Public Prosecutions v  Ali [2008] VSC 167 at [35]. (This last case was reversed on appeal: see  [2009] VSCA 162; (2009) 23 VR 203, but the issue of referral to punctuation was not discussed.) See also Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633; 310 ALR 113 at [105] where Leeming JA reiterated that ‘a prerequisite to relying on punctuation is being satisfied that it has been used 204

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consciously and not haphazardly’. In that case the Court of Appeal was not satisfied that commas had been used with such care as to enable them to be relied upon to reach a conclusion as to meaning. However, the courts should recognise that drafters usually punctuate with a view to enhancing the understanding of their legislation. To ignore this fact is to make the task of both drafter and interpreter more difficult and is likely to lead to a misunderstanding of the legislation in question. See  the acknowledgment of this passage in Re Collins; Ex parte Hockings [1989] HCA 42; (1989) 167 CLR 522 at 525; 87 ALR 656 at 657 per Toohey and McHugh JJ. 4.78  The position has been altered in the Commonwealth, Australian Capital Territory, Queensland, South Australia and Victoria by amendments to the Interpretation Act providing that punctuation in an Act is part of the Act.12 A court can thus have regard to it for interpretation purposes in the same way as it can other parts of the Act.

If regard is to be had to punctuation, it is important that its grammatical use be properly understood and applied: see the analysis of the proper use of the semicolon by Katz J in Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478; (2000) 98 FCR 168; 171 ALR 483 at [83]. Care must also be taken where lists of items are provided with a conjunction (usually ‘and’ or ‘or’) before the final item. The usual drafting practice in Australia is not to place a comma after the penultimate item and before the conjunction: ‘cows, sheep and pigs’ not ‘cows, sheep, and pigs’. Whether a comma should be included is a point of debate between grammarians. It is known as the ‘Oxford comma’ dispute. For an example of the issue see  O’Connor v  Oakhurst Dairy US Court of Appeal, First Circuit, 13 March 2017, where the court was required to interpret a provision that said that the ‘canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution’ of certain goods were activities exempted from the general requirement of overtime pay. The question was whether the concluding items in this list extended to the distribution of the goods, or only to the packing of the goods for distribution. The absence of a comma after ‘shipment’ was taken to mean that one activity was being referred to: ‘packing for shipment or distribution’. ‘Distribution’ was not a separate activity. Paragraphing of Sections 4.79  The foregoing cases have related to punctuation in the commonly accepted sense, but the same approach has also been adopted in relation to the manner in which sections and subsections have been divided. The starting

12. Cth s 13; ACT s 126(6); Qld s 14(6); SA s 19; Vic s 36(3B). 205

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point on this issue is Royal South Australian Yacht Squadron v  Attorney-General [1938] SASR 430 at 433 where Cleland J said: It seems to me that the division of a section into sub-sections and subparagraphs is merely an emphatic method of punctuation, and there are authorities which establish that the punctuation of an Act of Parliament may be disregarded as not being in fact part of the Act. This principle, however, does not apply to ‘headings’, and I cannot assume that the form of s  114, divided as it is into sub-sections and sub-paragraphs, was not so enacted by Parliament.

(The outcome of the case did not depend upon the resolution of this distinction between treating paragraphs as being equivalent to punctuation or to headings.) In Re AB an Infant [1950] VLR 1 Barry J followed so much of Cleland J’s judgment as related to paragraphing being equivalent to punctuation. He ignored, however, the reference to headings which had been made by Cleland J. He then rewrote the section with which he was concerned into the paragraphs that he considered properly conveyed its meaning having regard to prior legislation and the difficulties that it caused as drafted. A similar approach was adopted by Crisp J in Marine Board of Strahan v Kirkpatrick [1967] Tas SR 179. This approach of ignoring the paragraphing runs contrary to drafting practice and in this case also to parliament’s practice. Legislation is enacted in a certain form because the parliament intends it to be in that form. To change the order, etc, of paragraphs may produce a substantial change in the meaning. (On this issue, and on the question of paying regard to punctuation for interpretation purposes, see A Garran, ‘The Significance of the Form of Acts of Parliament’ (1956) 29 ALJ 630.) Tenses 4.80  The tense used in legislation to identify things or impose obligations will be used by the courts in interpreting the legislation. It ‘may be a significant indicator to the proper construction of a taxation statute’: Envestra Ltd v Federal Commissioner of Taxation [2008] FCA 249; (2008) 169 FCR 300 at [34]. The cases cited in support of this proposition were Brookton Co-operative Society Ltd v Federal Commissioner of Taxation [1981] HCA 28; (1981) 147 CLR 441; 35 ALR 293 and Cronulla Sutherland Leagues Club Ltd v Federal Commissioner of Taxation (1990) 23 FCR 82. The effect of the use of past participles in a section was considered in Suntory (Aust) Pty Ltd v Commissioner of Taxation [2009] FCAFC 180; (2009) 177 FCR 140 at [37] and held not to limit a provision to past conduct only.

For further examples of the tense used in legislation being taken into account for interpretation purposes see the Annexure.

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CHAPTER 5

Legal Assumptions: Principle of Legality INTRODUCTION 5.1  In many countries a constitutional Bill of Rights constrains the content

of the legislation that the parliament may make. No Australian jurisdiction has such legislation. Only the Australian Capital Territory, Queensland and Victoria have legislation which expressly recognises that legislation should not traverse specified human rights. The Human Rights Act  2004 (ACT), the Human Rights Act  2019 (Qld) and the Charter of Human Rights and Responsibilities Act  2006 (Vic) make it clear that the legislation of the respective jurisdictions should be interpreted to avoid any conflict with the rights specified in the Acts. However, legislation that transgresses such rights is not invalid. The Supreme Courts of the respective jurisdictions are required to make a declaration of incompatibility if satisfied that the legislation does not comply with the specified rights. This declaration is then brought to the attention of the relevant legislature. It is then left to the legislature to take such action as it sees fit in relation to the legislation. This is known as the dialogue model of human rights legislation. See further 5.55–5.59. Queensland also has an Act entitled the Legislative Standards Act  1992 which sets out certain rights and liberties. However, the Act is exhortatory only and imposes no limits on the content of legislation. In those jurisdictions with a parliamentary committee that scrutinises the content of bills introduced into the parliament, comment will be made if a provision is considered to impinge upon basic liberties, but any action is left to the parliament. In all Australian jurisdictions there is a parliamentary committee that examines the content of delegated legislation. These committees consider the legislation against a general background of civil rights and liberties. Again it is up to the relevant parliament to pursue any follow-up to an adverse report by a committee. The Commonwealth Parliament has established a committee that examines bills for Acts, legislative instruments and other matters before parliament for compatibility with human rights. It reports to both Houses of the Parliament. A like function is given to Queensland parliamentary committees that review legislation on a portfolio basis. 207

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These parliamentary committees perform a useful role in checking whether legislation contains provisions that might be seen as breaching human rights. They are more effective in regard to delegated legislation than primary legislation as government control of the parliament can secure the passage of what might be regarded as oppressive provisions in bills. There is a greater preparedness for parliaments to disallow delegated legislation on the basis that it interferes with human rights. Nonetheless, such action is rare. See further D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017. The result of this is that, in Australia, the approach of the courts to the interpretation of legislation that might be considered to deprive citizens of significant rights or impose inappropriate burdens on them constitutes an important application of the rule of law. 5.2  The courts approach the interpretation of legislation with a number

of basic assumptions or presumptions in mind. These terms are used interchangeably in this chapter and seemingly are taken by the courts to have the same meaning. The assumptions referred to are sometimes designated ‘rules’, but this is misleading. They do not have the overriding character of protections included in constitutional Bills of Rights. They are but assumptions and give way in the face of an indication in the legislation that it is to operate contrary to them. These assumptions are based on the expectation that certain tenets of our legal system will be followed by the legislature. They are grounded in the liberal values shared by lawyers and legislators with members of the broader community. These values are based on the abstract concepts of freedom and the sanctity of private property that people living in parliamentary democracies under the rule of law expect to be recognised and upheld. For example, under this approach it is not expected that parliaments will pass legislation that applies to people in other countries — hence a presumption is adopted by the courts that legislation will not have extraterritorial effect: see 5.12. It is assumed that our parliaments will not ignore the concept long held in our society of private ownership of property — hence a presumption not to alienate vested proprietary rights without compensation: see 5.25. Also to be found among these assumptions — and these are the most strongly maintained by the courts — are tenets that are founded on the belief that the established judicial system and associated rules of common law function in the interests of our society. This results in the adoption of assumptions that the legislature would not have intended to oust the jurisdiction of the courts (see 5.48) or to alter established common law doctrines: see 5.34ff. The various assumptions can be viewed as the courts’ efforts to provide, in effect, a common law Bill of Rights — a protection for the civil liberties of the individual against invasion by the state. In addition, ‘curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by 208

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securing a greater measure of attention to the impact of legislative proposals on fundamental rights’: per Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437–8; 120 ALR 415 at 419. The courts have applied this approach to what have been termed fundamental rights and fundamental principles. No attempt has been made to distinguish between the two descriptions (Saeed v  Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204 at [58]) nor has it been made clear what rights and principles are to be regarded as ‘fundamental’. 5.3  In more recent times the courts have taken to designating this approach

the ‘principle of legality’. In Al-Kateb v  Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 at [19]–[20] Gleeson CJ said: Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new … A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

Gleeson CJ repeated this view in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116 at [19]–[21]. In that case he also referred (at [21]) to R v  Home Secretary; Ex parte Pierson [1998] AC 539 at 587, 589 where Lord Steyn described the presumption against interference with basic rights as an aspect of the principle of legality ‘which governs the relations between Parliament, the executive and the courts’. Gleeson CJ observed that: The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

This notion of placing an onus, as it were, on the parliament to address the consequence of denying persons their established rights was stated by 209

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Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131: The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

A recent foray of the High Court into the application of the principle of legality is Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196; 302 ALR 363. Gageler and Keane JJ at [312]–[313] cited the passage above from the Electrolux case and added: That rationale not only has deep historical roots; it serves important contemporary ends. It respects the distinct contemporary functions, enhances the distinct contemporary processes, and fulfils the shared contemporary expectations of the legislative and the judicial branches of government … Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. [But see the rider to this statement set out in 5.8.]

The general attitude of the courts in relation to these judicial assumptions was summarised many years earlier by Isaacs J in Re Yates; Ex parte Walsh [1925] HCA 53; (1925) 37 CLR 36 at 93: … even where Parliament confessedly possesses plenary power within its own territory, the full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances, to overcome the presumption. 5.4  As the cases referred to in this chapter, including the table of recognised

principles, rights and privileges at 5.60 indicate, the principle of legality is now commonly referred to in cases that involve the courts in determining whether there has been an intention on the part of the parliament to curtail the court-recognised rights and freedoms. As to the background and use of this terminology, see B Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melb Univ L Rev 372 and for its future direction, see D Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melb Univ L Rev 449. For earlier extra-judicial commentary see  the discussions by Spigelman CJ in ‘The Common Law Bill of Rights’, First Lecture in the 2008 McPherson Lectures, Statutory Interpretation & Human Rights, University of Queensland, 10 March 2008, particularly at 29–32; J J Spigelman, ‘The Application of Quasi-Constitutional Laws’, Second Lecture in the 2008 McPherson Lectures, Statutory Interpretation & Human Rights, University of 210

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Queensland, 11 March 2008; M Gleeson AC, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) 20 Pub LR 26. There has been much academic writing on the principle of legality. For detailed commentary see  the essays in Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand, Federation Press, Sydney, 2017 (hereafter referred to as ‘Principle of Legality Essays’). Some recent examples of the many other contributions are listed in the Annexure. This chapter considers the application in practice of the assumptions which the courts have recognised for many years but which are now gathered under the rubric of the principle of legality.1 The principle of legality can be described as a convenient statement of a default position that the courts assume when interpreting legislation. Unless they can be persuaded that there is good reason to take a contrary position, the assumptions drawn together under the general principle of legality rubric will be applied by a court in determining the scope of legislation. It is therefore necessary to examine the circumstances in which the principle may be displaced. Application and Displacement of Legal Assumptions General approach 5.5  Unlike a constitutional Bill of Rights, the assumptions referred to in this

chapter are all subject to the basic rule that the parliament may override them. However, the courts will require a clear indication that the intent is to abrogate or curtail a fundamental right before such an interpretation will be accepted. In Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437; 120 ALR 415 at 418–19 Mason CJ, Brennan, Gaudron and McHugh JJ said that: … [It must be apparent that] the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

See also the statement of Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 at [19] set out in 5.3.

1. In considering this rubric, attention should be paid to the essay by Basten JA in the Principle of Legality Essays, Chapter  5, ‘The Principle of Legality — An Unhelpful Label?’. His Honour refers to it as ‘a label without clear content and having the capacity to mask an expansive view of the judicial function’: at 91. This conclusion has much to support it but the practice of the courts is now to invoke the label frequently and it is therefore necessary to consider its operation. For other commentaries on the label see the Principle of Legality Essays, Chapters 4 and 8. 211

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For further examples see the Annexure. However, the position may well be different if the rights given by the legislation are greater than those applicable under the common law. In such a case the presumption limiting change to the common law will be diminished in effect because its purpose of providing protection to the individual is negated: Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188 at [32]. Likewise where the legislation is concerned with a matter that was not recognised by the common law: AIT18 v Australian Information Commissioner [2018] FCAFC 192; (2018) 363 ALR 281 which was concerned with the operation of the Privacy Act 1988 (Cth). While the Act, being properly to be regarded as remedial, should be interpreted liberally, the presumptions that constitute the principle of legality had no application: at [82]ff. In Coco’s case, above, the High Court also considered whether a presumption might be displaced by implication. While acknowledging that possibility, the court said that this could only occur if it were necessary to prevent the statutory provisions in question becoming inoperative or meaningless. Gageler J in the High Court returned to the matter in R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459; 329 ALR 195 saying at [77]: … any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical.

Tests for displacement of assumptions 5.6 In Durham Holdings Pty Ltd v New South Wales [1999] NSWCA 324; (1999)

47 NSWLR 340; 166 ALR 500 at [44] Spigelman CJ outlined the various formulae that have been referred to by the courts as being necessary to effect a rebuttal of a presumption. The formulae his Honour identified and the cases in which they were referred to were as follows: • ‘clear and unambiguous words’: Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359; • ‘unambiguously clear’ and ‘irresistible clearness’: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; 93 ALR 207; • ‘express words of plain intendment’: Commissioner of Police v Tanos [1958] HCA 6; (1957–58) 98 CLR 383 at 396; R v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 463; 69 ALR 647 at 656; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177 at 178; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576; 106 ALR 11 at 17; • ‘clear words or necessary implication’: Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252; 106 ALR 624 at 629; 212

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• ‘unmistakable and unambiguous’: Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437–8; 120 ALR 415 at 418–19; Kartinyeri v  Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 152 ALR 540 at [89]; • ‘expressly stated or necessarily to be implied’: Clancy v  Butchers Shop Employees’ Union [1904] HCA 9; (1904) 1 CLR 181 at 204; Public Service Association (SA) v  Federated Clerks Union [1991] HCA 33; (1991) 173 CLR 132 at 160; 102 ALR 161 at 181; Darling Casino Ltd v  New South Wales Casino Authority [1997] HCA 11; (1997) 191 CLR 602 at 633; 143 ALR 55 at 75; • ‘clearly emerges whether by express words or by necessary implication’: Pyneboard Pty Ltd v  Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; 45 ALR 609 at 617; Public Service Association (SA) v Federated Clerks Union, above, at 160; 181; • ‘with a clearness which admits of no doubt’: Magrath v  Goldsbrough, Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121 at 128, 134. It seems that the strength of the assumption is reflected in the strength of the words needed to displace it. The more ‘fundamental’ it is, the clearer must be the displacement. See further his Honour’s article, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 ALJ 769, where he suggests a reformulation of the test for displacement of the presumptions. See also the comments of Finn J in S Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Sydney, 2005, Chapter 4. A more recent formulation is that of Kiefel J in X7 v  Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; 298 ALR 570 at [158]: The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so. [citations omitted]

This passage was cited by Basten JA (with whom the other members of the court agreed) in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No  2) [2016] NSWCA 379; (2016) 95 NSWLR 157; 344 ALR 355 at [45] adding at [46]: Although it has not been expressed in such terms, it seems likely that the level of clarity required of the legislature will depend upon the nature of the perceived infringement, the nature of the rights or general principles infringed and, no doubt, other factors. It is not necessary, and is probably misguided, to construct some quasi-constitutional distinction between categories of legislation, requiring different standards of expression on the part of the legislature in order to achieve their apparent purpose. Indeed, what is covered by the ‘general system of law’, at least in civil jurisdiction, remains to be identified. 213

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On this point, Basten JA referred also to the dicta of Gageler J in R v Independent Broad-based Anti-corruption Commissioner set out above in 5.5.2 Use of extrinsic materials to determine whether assumption displaced 5.7  An issue that has arisen from time to time is the regard that can be paid

to extrinsic materials to ascertain whether there was an intention to set aside a presumption. There has been a marked reluctance on the part of the courts to accept non-legislative statements as an indication of such an intention. The most frequently cited statement of the attitude of the courts is that of Mason CJ, Wilson and Dawson JJ in R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; 70 ALR 225 at 227: [The Minister’s second reading] speech quite unambiguously asserts that Pt III [of the Defence (Visiting Forces) Act  1963 (Cth)] relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.

This statement has been followed in Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562; 240 ALR 204 at [29]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; 267 ALR 204 at [31]–[32]. In both cases it was held that the legislation did not have the effect asserted in the explanatory material. The nature of the subject matter being dealt with in the legislation meant that the intention to set aside the rights concerned (property and natural justice, respectively) had to be clearly spelled out in the legislation itself. On the use of explanatory material generally, see Chapter 3. Rights Falling within Principle of Legality 5.8  The position set out above has been qualified by the courts’

acknowledgment of the right of the parliament to override the assumptions recognised by the courts and the increasing likelihood of this occurring in an age where regulation of citizens’ conduct is increasing. In Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363 Gageler and Keane JJ qualified their endorsement of the principle of legality set out in 5.3 by adding at [313] and then at [317]: The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, 2. On what may fall within the description of the ‘general system of law’, see Principle of Legality Essays, Chapter 2. 214

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immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. … The interpretative strictures of the legality principle should not be applied so rigidly as to have a sclerotic effect on legitimate innovation by the legislature to meet new challenges to the integrity of the system of justice.

This dictum was cited and applied in Roads and Maritime Services v  Desane Properties Pty Ltd [2018] NSWCA 196; (2018) 358 ALR 785 at [193] and Brewster v BMW Australia Ltd [2019] NSWCA 35 at [61]. Previous statements of courts had recognised this approach but then qualified it by alluding to a distinction between what might be termed fundamental principles and rights and other rights that have been recognised by law. In Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290; 178 ALR 218 at [28] McHugh J unequivocally affirmed that fundamental principles could only be overridden by clear and unambiguous language in a statute, none the less adding: But care needs to be taken in declaring a principle to be fundamental. Furthermore, infringements of rights and departures from the general system of law are in a different category from fundamental principles. Some rights may be the corollaries of fundamental principles. In that sense, they are fundamental rights which are presumed to continue unless the legislative language is clear and unambiguous. But nearly every session of Parliament produces laws which infringe the existing rights of individuals. Given the frequency with which legislatures now amend or abolish rights or depart from the general system of law, it is difficult to accept that it is ‘in the last degree improbable’ that a legislature would intend to alter rights or depart from the general system of law unless it did so ‘with irresistible clearness’.

Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309; 209 ALR 116 at [19] said: Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language … However … modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. 5.9  In the context of the common law presumptions, it is necessary also to be

aware that the presumptions have been formulated on the basis of the mutual understandings and values of lawyers. This was recognised by McHugh  J 215

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in Malika Holdings, above, who warned against courts failing to recognise changes in community values. What is fundamental in one age or place may not be so regarded in another. Accordingly, what is necessary to displace an assumption may have a variable standard. This view had been anticipated by the High Court in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; 93 ALR 207 at 215. Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a presumption might be displaced: If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.

The comments related to the presumption that the Crown was not bound by statutes: see 5.17–5.20. For further examples see the cases referred to in the Annexure. As noted in 5.6, the context in which the rights are dealt with in the relevant legislation will probably determine the weight that will be given to that right. Nonetheless the default position will be  an assumption that they will be recognised and not removed by the legislation. In this context it is relevant to note that the Australian Capital Territory Legislation Act  2001 includes a number of provisions that deal with the interpretation of Australian Capital Territory legislation. Some of these are described as ‘determinative’ provisions. They can only be displaced ‘expressly or by a manifest contrary intention’: s  6(2). Other provisions are ‘non determinative’ and may be displaced ‘expressly or by a contrary intention’: s 6(3). The section then goes on to set out examples illustrating the distinction between the two tests. It may be that this is the way in which the common law is heading. However, in the absence of statutory guidance, the difficulty remains of knowing into which category a particular right or principle falls. Fundamental Rights and Principles 5.10  The issue that the approach discussed above leaves for resolution is what is a ‘fundamental’ principle or right, which presumably will only be taken to be displaced if society values have changed, and a right ‘recognised by law’ where the displacement standard is lower. The various rights that have been recognised by the courts are discussed further in this chapter. However, there does not seem to have been any attempt made to categorise which rights are to be regarded as ‘fundamental’ and which are to be regarded as of less significance. In any event it seems unlikely that any such categorisation can be based on a bright line. It can be expected that the issue will have to be argued in the context of individual cases. Even what might be regarded as ‘fundamental’ in one circumstance might be found to be less so when the context is taken into account. For example, the fundamental protections afforded Australian 216

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citizens seem to have been pitched at a higher level than those applicable to unauthorised boat arrivals.3 In the following discussion reference is made to a number of the more significant assumptions that, at least in the past, have been treated as relating to fundamental rights and principles, thereby requiring a clear statement or manifest implication for their displacement. However, at various times many other rights and principles have been alluded to by the courts as requiring clear displacement. These, together with the principles discussed individually, are gathered together in the table in 5.60. It is hoped that this identification of rights and principles that require specific consideration by legislatures when they are being affected will go some way towards providing a degree of certainty and understanding of the requirements that the principle of legality imposes on legislatures, drafters and interpreters. Presumption that Law is Constitutional 5.11  Isaacs J in Federal Commissioner of Taxation v  Munro [1926] HCA 58; (1926) 38 CLR 153 at 180 said:

There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.

Dixon J wrote to the same effect in Attorney-General (Vic) v Commonwealth (‘Pharmaceutical Benefits Case’) [1945] HCA 30; (1945) 71 CLR 237 at 267 when he said: In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them.

Both statements were endorsed by Mason CJ in Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 14; 110 ALR 97 at 103 and were relied upon in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54; 197 ALR 241. The presumption accords with the statutory direction in s 15A of the Acts Interpretation Act  1901 (Cth) requiring legislation to be read down to be within power. See further D Meagher, A Simpson, J Stellios and F Wheeler, 3. It is because of this problem that Brendan Lim in ‘The Normativity of the Principle of Legality’ (2013) 37 Melb Univ L Rev 372 and in Principle of Legality Essays, Chapter 1, ‘The Rationales for the Principle of Legality’ posits a different basis for identifying the way in which the principle should be seen as operating. 217

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Hanks Australian Constitutional Law, 10th ed, LexisNexis Butterworths, Sydney, 2016; P Keyzer, C Goff and A Fisher, Principles of Australian Constitutional Law, 5th ed, LexisNexis Butterworths, Sydney, 2016. Legislation is Presumed Not to have Extraterritorial Effect 5.12  One of the clearest statements of this presumption is provided by O’Connor J in Jumbunna Coal Mine NL v  Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 363:

In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.

See also Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119; 192 ALR 217 at [9]; AGU v Commonwealth (No 2) [2013] NSWCA 473; (2013) 86 NSWLR 348; 306 ALR 42 at [22]. The thinking underlying this general approach is based on the ‘comity of nations’ — the legislature of one country is presumed not to deal with persons or matters the jurisdiction over which properly belongs to some other sovereign state: see the discussion by Dixon J in Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 at 423. However, this principle carries less weight when considering the intended effect of the legislation of one Australian state in its operation in relation to another state. The concept of the federal system, the homogeneity of the population, the frequent movement of people between states and the commonality of problems needing a common and cooperative solution point to the presumption being more readily displaced: see the full consideration of these issues by Malcolm CJ in Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 235; 10 ACSR 297 at 320. The possible displacement of the presumption is also relevant when considering the operation of the various forms of uniform and cooperative legislation that have become a significant feature of the legislative scene in Australia. It is important that the general presumption on extraterritoriality not be confused with the question whether or not a state is able to legislate extraterritorially. The existence of a connection between the enacting state and the extraterritorial persons, things and events on which a state law operates has been held to be essential to the valid extraterritorial operation of that state law: see the discussion by the High Court in Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507; 9 ALR 289; Union Steamship Co of Australia Pty Ltd v  King [1988] HCA 55; (1988) 166 CLR 1; 82 ALR 43; Lipohar v R [1999] HCA 65; (1999) 200 CLR 485; 168 ALR 8. See also YBL v Director of Public Prosecutions [2013] WASCA 221; (2013) 45 WAR 432; 303 ALR 374. However, it must be said that the requirement for a relevant connection between the circumstances on which the legislation operates 218

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and the state has been liberally applied and even a remote and general connection suffices: see  the Union Steamship case, above, generally, and Lipohar, above, at [126]. 5.13  The distinction between the constitutional issue and the presumption was well taken in Re Iskra; Ex parte Mercantile Transport Co Pty Ltd [1963] SR (NSW) 538 by the New South Wales  Court of Criminal Appeal. The case concerned the question whether a Victorian could be convicted for a breach of the New South Wales Road Maintenance (Contribution) Act 1958 where the obligation imposed upon him would have to be complied with in Victoria. The court discussed at length the question of the extraterritorial effect of state legislation. As far as statutory interpretation issues are concerned, the importance of the case lies in the distinction drawn by Brereton J (at 934) between the  ability to legislate with extraterritorial effect and the question whether the state intended to do so:

The first inquiry is whether it is an enactment of such a kind as may legitimately be given the precise extra-territorial operation which is sought to be given to it. The next inquiry is whether from the object or subject-matter or history of the enactment an intention so to do clearly appears so as to rebut the presumption raised by the common law canon of construction …

See also the cases referred to in the Annexure. If the application of the presumption would defeat the purpose of the legislation, it can be assumed that the intention was to override the presumption: Kumagai Gumi Co Ltd v  Federal Commissioner of Taxation [1999] FCA 235; (1999) 90 FCR 274; 161 ALR 699 at [41]–[43]. The presumption has been given statutory recognition in all jurisdictions by the inclusion in their Interpretation Acts of a provision stating that references in legislation to ‘localities, jurisdictions and other matters and things’ are to be taken to refer to those matters in the enacting jurisdiction: see Interpretation Acts, 4.48–4.58. It is doubtful whether this has elevated the presumption to any greater level of operation than was recognised at common law: see Morgan v Goodall (1985) 2 NSWLR 655 at 659. For a general critique of the operation of the presumption in the United Kingdom and Australia, see S Dutson, ‘The Territorial Application of Statutes’ (1996) 22 Monash LR 69; and see also G Lindell and A Mason, ‘The Resolution of Inconsistent State and Territory Legislation’ (2010) 38 FL Rev 391. Examples of application of presumption 5.14  There are numerous cases in which the courts have considered the presumption against extraterritorial operation. Reference to some examples gives a guide to the courts’ approach to the application of the presumption: • Green v Burgess [1960] VR 158: the offence under the Fisheries Act 1928 (Vic) of taking or having in possession certain fish out of season must be limited to fish taken in Victorian waters; 219

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• Thwaites v  O’Sullivan [1965] SASR 34: a person could be convicted of being in possession of goods reasonably suspected of having been stolen although those goods had been stolen in another state. The suspicion arose in the state and the goods were in the state. Both these factors rendered inapplicable any problems of extraterritoriality; • Horgan v  Sieber; Ex parte Horgan [1976] Qd R 25: in contrast with the previous decision, a prohibition against possessing ‘any instrument of betting on horse racing’ applied only to instruments for betting in Queensland. The legislation was to be assumed to be primarily territorial in its scope and should therefore be construed as directed against unlawful betting in Queensland; • Re Skase (1991) 32 FCR 212; 104 ALR 229: the Bankruptcy Act  1966 (Cth) intended that a summons could be issued against a person living overseas despite difficulties of enforcement; • B v T [2007] QSC 55; [2008] 1 Qd R 33: the right of a party in a former de facto relationship to seek a distribution of property could be exercised in the state where the property was located even though the relationship had occurred at least in part, and had come to an end, in another state; • Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149; 276 ALR 497: s  5N of the Civil Liability Act  2002 (NSW) which permits exclusion of certain civil liability in a contract for the provision of recreational services is only applicable to the provision of such services in New South Wales; • Tsang v Director of Public Prosecutions [2011] VSCA 336; (2011) 35 VR 240 at [169]: regard could be had in determining the sentence to be imposed for an offence to a period of detention in respect of the offence that was served outside Victoria. The movement of traffic between the states has always caused extraterritoriality problems. For example, in McLennan v Collier Moat Ltd [1960] VR 132, Little J held that the offence of driving a motor vehicle in Victoria with a load exceeding the load capacity of the motor vehicle as shown in the certificate of registration of the motor vehicle could only arise in respect of a Victorian certificate of registration. Accordingly, the driver of a New South Wales truck could not be charged with this offence. In contrast in Broadhurst v Paul [1954] VLR 541 the Transport Regulation Act 1933 (Vic) made it an offence to drive a heavy truck without having had at least 10 consecutive hours of rest in any 24-hour period. P drove from Sydney and was arrested just after crossing the Victorian border. He had not had the required rest. It was argued that the court could only look to the period of driving in Victoria — to do otherwise would be to give the law extraterritorial effect. Herring CJ rejected this argument. Since P was driving in Victoria without having had the required rest he could be prosecuted. This approach was also followed by Sholl J in Tozer v Walker [1961] VR 254 which 220

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concerned provisions of the Motor Car Act 1958 (Vic) relating to periods of driving and keeping of log books showing details of journeys including the interstate portions. Trans-border activities may also be caught by the legislation of one state only. In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 the release of a pollutant in one state that flowed into the waters of another was held to breach the law of the latter state notwithstanding the fact that the polluter was a resident of the first state and had not committed an offence in that state. In Morgan v Goodall (1985) 2 NSWLR 655 it was held that the ascertainment of the needs of the ‘neighbourhood’ should take into account the position of a town immediately across the border. It can thus be seen that the presumption against legislation having extraterritorial operation can be fairly readily rebutted if circumstances so demand. However, a court will probably need to be persuaded that the operation of the legislation would be rendered ineffective before the presumption will be set aside. General Words are Presumed Not to Extend to Cases Governed by Foreign Law 5.15  This is really a specific application of the general assumption against

legislation operating extraterritorially: see 5.12 and Interpretation Acts, 4.48. The leading general statement of the presumption is to be found in the case of Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581 at 601 per Dixon J: The rule is that an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognised in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter. But, in the absence of any countervailing consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts,  are governed by foreign law.

Accordingly, it was held that, where a debt clearly was subject to New Zealand law, a New South Wales Act dealing with repayment of debts was not to apply to it. The statement of Dixon J set out above was followed by the New South Wales Court of Appeal in Myer Emporium Ltd v Commissioner of Stamp Duties (1967) 85 WN (Pt 2) (NSW) 115. Dixon J himself had previously expressed a similar view in Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 at 424. For another application of the principles, see Re Doyle (dec’d); Ex parte Brien v Doyle (1993) 41 FCR 40; 112 ALR 653. 221

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Presumption rebuttable if policy of Act so indicates 5.16  The statement of law set out in the Wanganui case has been supplemented

by the decision of the High Court in Kay’s Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79; (1964) 116 CLR 124 particularly per Kitto J at 142–3. The case concerned a hire-purchase agreement and the question was whether New South Wales or Victorian law applied to it. The New South Wales law contained a provision that payments made under a hire-purchase agreement that was declared void by the statute had to be returned to the hirer. The Victorian legislation had no like provision. It was argued that, as the hirepurchase agreement contained a clause saying that Victorian law was to govern its interpretation, that clause determined the issue. The Wanganui case was cited as authority for this proposition. This line of reasoning was rejected by Kitto J: Such cases [as the Wanganui case] have dealt with legislation modifying or making void contractual rights and obligations of specified descriptions; but in each instance the modification or avoidance was enacted as an end in itself and not as a sanction for contravention of statutory requirements. It was held that in order to restrain the seeming universality of the relevant enactment it should be presumed that the intention was to affect only those rights and obligations the discharge of which was governed by the law of the enacting country according to the rules of private international law. The logical appropriateness of the presumption in a case of the kind can hardly be denied. But it was made clear, particularly in the judgment of Dixon J in the Wanganui-Rangitikei Case, at 601, that the Court was applying a rule which was one of construction only, and that the context or subject matter of legislation might supply a different restriction upon the generality of language.

His Honour went on to rule that, where a provision of an Act renders an agreement void for non-compliance by the parties or one of them with statutory requirements, a presumption that the agreements in contemplation were only those of which the law of the country was the proper law according to the rules of private international law had no apparent appropriateness to recommend it. This was especially the case where the requirements could be seen to embody a specific policy directed against practices which the legislature had deemed oppressive or unjust. Indeed, it would produce a result which the legislature was not in the least likely to have intended. It would have the effect that provisions enacted as salutary reforms might be set at nought by the simple expedient adopted in the Kay’s Leasing Corporation case of inserting in an agreement a stipulation that validity should be a matter for the law of some other country. In the particular case, it was held that the Victorian law applied as, in fact, the hirepurchase agreement was ‘made’ in Victoria. Had it been ‘made’ in New South Wales, however, the expedient of providing that Victorian law was to govern its construction would not have succeeded. See  also for a discussion of the principles arising in this case Douglas Financial Consultants Pty Ltd v Price [1992] 1 Qd R 243; Insight Vacations Pty Ltd 222

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v Young [2011] HCA 16; (2011) 243 CLR 149; 276 ALR 497. See generally M Davies, A  Bell and P L G Brereton, Nygh’s Conflict of Laws in Australia, 9th ed, LexisNexis Butterworths, Sydney, 2014, Chapter 19. Crown Presumed Not to be Bound by Statutes 5.17  The weight of this presumption has changed over time. The authoritative statement of the principle used to be that of the Privy Council in Province of Bombay v Municipal Corporation of Bombay [1947] AC 58. It was said there that the Crown was not bound unless expressly named in the Act or it was ‘manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound’: at 61. Such a manifestation could only be implied where ‘it was apparent from [the statute’s] terms that its beneficent purpose must be wholly frustrated unless the Crown were bound’: at 63. This statement of principle was expressly approved by the High Court on a number of occasions, most notably in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [1979] HCA 15; (1979) 145 CLR 107; 24 ALR 9 (but see the criticism of the approach by Stephen J at 127; 25).

However, in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; 93 ALR 207 the High Court observed that the rule that the Crown should not be bound evolved in a time when ‘the Crown’ was confined to central organs of government. The thinking on which the presumption was based was not applicable ‘to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown’: at 19; 215. This was not to say that the presumption might not have its place when considering the position of certain government activities. However, the reach of government had become so wide that the position enunciated in the Bombay case could no longer be justified as reflecting contemporary standards. The court in Bropho went on to say that it was not reversing or abolishing the presumption that general words of a statute do not bind the Crown or its instrumentalities or agents. Rather, it was putting it on the same footing as other presumptions and not seeing it as a rigid or inflexible principle: at 22; 218. In so holding, the High Court considered that it was restoring the presumption to the status that it had prior to the Bombay case. However, it recognised that in the period after that decision, legislation would have been drafted on the basis that it represented the law. This being so, it was necessary to bear this in mind when considering the interpretation of legislation made in the period after Bombay and before Bropho. The exposition of the law in Bropho’s case was reaffirmed by the High Court in Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572; 127 ALR 159, regard being paid to the date of the Act in question to ensure that it had been drafted before the Bombay decision. The fact that the Bombay rule had not been relied upon in the drafting of the legislation under consideration was a factor 223

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referred to in State Authorities Superannuation Board v Commissioner of State Taxation for Western Australia [1996] HCA 32; (1996) 189 CLR 253 at 269; 140 ALR 129 at 135 as indicative of there being an intention to bind the Crown. French J encapsulated the present state of the law in State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511 at 557; 101 ALR 259 at 306: The common law presumption that statutes are intended not to bind the Crown remains in force, but as a more flexible guide to construction which may be displaced without the stringent requirements that previously existed.

In that case it was held that the decision in Bradken that the Trade Practices Act 1974 (Cth) did not bind the Crown was correct and should continue to be followed, notwithstanding the discussion of the law in Bropho. This view was confirmed by the High Court in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 232 CLR 1; 237 ALR 512. On the general issue of the operation of the presumption see further the discussion in Commissioner of Taxation v Tomaras [2018] HCA 62; (2018) 362 ALR 253. See also Jellyn Pty Ltd v State Bank of South Australia [1996] 1 Qd R 271; (1995) 129 ALR 521; Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213; 139 ALR 127. The nature of the matters dealt with in the legislation under consideration will be a significant factor in determining the applicability of the presumption. For example, Kiefel CJ and Keane J in Commissioner of Taxation v  Tomaras, above, at [7] observed: Some statutes may differentiate between ordinary creditors and revenue authorities. In such cases the general consideration of equality before the law, which tends against the application of the presumption that the Crown is not bound by a statute, can be seen to have been displaced in favour of the public interest specifically associated with governmental functions such as the protection of the revenue. 5.18  The circumstance in which the courts seem more recently to have had to consider the application of the presumption that the Crown is not bound by statutes has been in regard to whether legislation of one jurisdiction binds the Crown in right of another. See, for example, Jacobsen v Rogers, above (Crimes Act 1914 (Cth) binds state); Re Commissioner of Water Resources and Leighton Contractors Pty Ltd [1991] 1 Qd R 549; (1990) 96 ALR 242 (Arbitration Act  1973 (Qld) binds Commonwealth); Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85; 248 ALR 494 (Anti-Discrimination Act  1988 (Tas) does not bind the Commonwealth).

In Commonwealth v  Western Australia [1999] HCA 5; (1999) 196 CLR 392; 160 ALR 638 Gleeson CJ and Gaudron J at [36]–[37] observed that the presumption extends to all governments, not just the government of the enacting polity. This was of particular relevance in the case of legislation 224

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affecting government property. In AGU v  Commonwealth (No 2) [2013] NSWCA 473; (2013) 306 ALR 42 at [29] Basten JA observed that a provision that said that it bound the government, while effective to rebut the general presumption in regard to the government that passed it, was relevant to, but not conclusive of, the question whether the provision bound another body politic. For further examples see the cases referred to in the Annexure. As to what is meant by ‘the Crown’ and the problems in a federation where there is more than one ‘Crown’, see  P W Hogg, P J Monahan and W K Wright, Liability of the Crown, 4th ed, Carswell, Canada, 2011; Nicholas Seddon, Government Contracts: Federal, State and Local, 6th ed, Federation Press, Sydney, 2018, Chapter 4; Ann Twomey, The Chameleon Crown: The Queen and her Australian Governors, Federation Press, Sydney, 2006. As to when a body ‘represents the Crown’, see  McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646; 221 ALR 285 where the High Court appears to depart from the previously accepted interpretation. See also the comments critical of the courts’ identification of ‘the Crown’ and their failure to recognise the significance of the principle of legality in this context by Steven Churches, ‘Crown Advantage, Crown Personality: The Need to Employ the Principle of Legality in a Non-Bill of Rights Australia’ (2011) 18 Aust Jo of Admin Law 188. See 5.20 for a suggested reformulation of the presumption. Statutory statement of presumption 5.19  On the face of it, the statement of approach in Bropho seems to

be complicated by a provision to be found in the Interpretation Acts of Queensland and Tasmania that states the presumption in categorical terms. Section 6(6) of the Acts Interpretation Act 1931 (Tas) provides: ‘No Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose.’ Section  13 of the Acts Interpretation Act 1954 (Qld) is in like terms. However, the courts have not been prepared to give the provision the rigid application that a literal reading would seem to imply. In Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 at 204 Williams J said of the Tasmanian provision quoted above: ‘The words of an Act could, no doubt, be sufficiently expressed to derogate from such a right although they did not in terms refer to the prerogative if their operation necessarily or naturally had that effect.’ Byrne J put it more strongly in Re Commissioner of Water Resources and Leighton Contractors Pty Ltd (1990) 96 ALR 242 at 244. Speaking of s 13 of the Queensland Acts Interpretation Act 1954 (which is in like terms to that of Tasmania) he said: ‘Section  13 does not mean that the Crown cannot be bound where it appears to be a necessary 225

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implication that the Crown is to be bound.’ See also Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 21; 93 ALR 207 at 217. It would appear from these decisions that the courts will place the statutory statement on the same footing as the common law presumption as originally formulated. See  BMG Resources Ltd v  Beaconsfield Municipal Council [1988] Tas R 142 as an example of this approach. That case was decided before Bropho but it indicates that the effect of the provision is to require clear words for the directive that the Crown is not bound to be displaced. See also Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85; 248 ALR 494 at [139]. In contrast with these provisions, the South Australian Acts Interpretation Act 1915 s 20 reverses the presumption — the Crown is to be bound unless the contrary intention appears. A provision of this kind, although confined to the Act in question, was considered in AGU v  Commonwealth (No 2) [2013] NSWCA 473; (2013) 86 NSWLR 348; 306 ALR 42 at [20]–[29]. The court concluded at [29] that the principle to be extracted from the authorities is that such a provision, while effective to rebut the general presumption that a statute does not bind the government which passed it, will be a factor, not necessarily determinative, in deciding whether specific provisions apply in relation to other bodies politic. Reformulation of presumption 5.20  Gleeson CJ and Gaudron J in Commonwealth v Western Australia [1999] HCA 5; (1999) 196 CLR 392; 160 ALR 638 at [33] expressed a preference for a reformulation of the presumption. They said:

It would be preferable … and more consonant with our constitutional arrangements, if the presumption that a statute ‘does not bind the Crown’ were expressed as a presumption that a statute which regulates the conduct or rights of individuals does not apply to members of the executive government of any of the polities in the federation, government instrumentalities and authorities intended to have the same legal status as the executive government, their servants or agents. For ease of reference, we shall refer to that presumption as the presumption that legislation does not apply to members of the executive government.

This approach was alluded to by the court again in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334; 161 ALR 399. There, instead of asking whether an Act was intended to bind the Crown, the court considered whether the reference in the Act to a ‘person’ included members, servants and agents of the executive government. It is doubtful whether a different outcome will be secured by following this approach rather than by asking whether the intention of the legislation was to bind the Crown, but it appears as though it may become the language that is to be adopted when the issue is under consideration. Certainly, references to ‘the Crown’ in this context are now outmoded. 226

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Legislation is Presumed Not to Limit Prerogative Powers or Property Rights of Crown 5.21  While legislation has markedly reduced the range of prerogative powers of the Crown, many still exist. These may only be withdrawn or curtailed by clear words. In Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, which was concerned with the right of the Crown to seek extradition of a person from a country where no treaty exists, Barwick CJ (at 488) described the presumption as ‘extremely strong’. Jacobs J said (at 508) that ‘an intention to withdraw or curtail a prerogative power must be clearly shown’. See also Ling v Commonwealth (1994) 51 FCR 88; 123 ALR 65: right to take assignments; Cadia Holdings Pty Ltd v  New South Wales  [2010] HCA 27; (2010) 242 CLR 195; 269 ALR 204: prerogative right to gold and silver mines. For an earlier discussion, see Baxter v Commissioners of Taxation, NSW [1907] HCA 76; (1907) 4 CLR 1087.

Gleeson CJ and Gaudron J in Commonwealth v Western Australia [1999] HCA 5; (1999) 196 CLR 392; 160 ALR 638 at [38] considered that this presumption extended to not depriving the Crown of its property rights or interests except where that intention was manifest. Generally the comments in the preceding paragraphs relating to the Crown not being bound by statutes apply to this presumption also. Legislation is Presumed Not to Impose Penal Sanctions on the Crown 5.22  See the discussion in 9.19.

Legislation is Presumed Not to Interfere with Equality of Religion 5.23 In Canterbury Municipal Council v  Moslem Alawy Society Ltd [1985] 1

NSWLR 525 at 544 McHugh JA indicated that Australian courts should be slow to adopt an interpretation of a legislative instrument which is contrary to the preservation of religious equality as this equality has always been a matter of fundamental concern to the people of Australia. Comments in the High Court decisions in Attorney-General (Vic); Ex rel Black v  Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 617; 33 ALR 321 at 356; Church of the New Faith v Commissioner for Pay-roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 at 130; 49 ALR 65 at 69 were cited in support of the proposition. See also Hoskin v Greater Bendigo City Council [2015] VSCA 350; (2015) 48 VR 715 at [29]. Legislation is Presumed Not to Violate the Rules of International Law 5.24  ‘[E]very Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law’: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 363 per O’Connor J. The courts generally endeavour to give effect to this proposition while conceding that it is possible for the domestic law to differ from international 227

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law: Brown v Classification Review Board (1998) 82 FCR 225 at 236; 154 ALR 67 at 78 and see the cases referred to there. In particular, it is clear that, if there should be any ambiguity in an Act that purports to be giving effect to an international agreement, the courts will adopt that interpretation which best facilitates the operation of the agreement: Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; 110 ALR 97 at 123 per Brennan, Deane and Dawson JJ. In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287; 128 ALR 353 at 362 Mason CJ and Deane J said: In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

If an Act is clear, the courts must give effect to it even though it is inconsistent with established rules of international law. Thus in Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 the High Court rejected an argument that the rule of international law that aliens could not be conscripted for military service should be applied to limit the operation of the National Security Act 1939 (Cth) and the National Security (Aliens Service) Regulations (Cth). The court held that the Act was clearly intended to conscript aliens and that the rule of international law had therefore to give way. The decision in this case was approved in Meyer Heine Pty Ltd v  China Navigation Co Ltd [1966] HCA 11; (1996) 115 CLR 10; see also Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1; Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1; 62 ALR 497; Lim’s case, above. Note the cautionary comments of some members of the High Court in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 about a too ready resort to international instruments as providing a limitation on the effect of the words of an Australian Act. As to the use that may be made of international treaties for interpretation purposes, see 3.12–3.13, 3.22. It would seem that, before the courts will pay heed to international obligations in any context, the rule must be one that is clearly established. In Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582; 1 ALR 241 at 260 Barwick CJ and Gibbs J rejected Security Council resolutions which had not been given legislative recognition in Australia as justification for executive action that would otherwise have been unjustified. The same approach would presumably apply to suggestions that legislation should be read in such a way as not to offend international obligations where it was not possible to point to such obligations being recognised in Australia; cf the discussion in Re Maritime Union of Australia; Ex parte CSL Pacific Inc [2003] HCA 43; (2003) 214 CLR 397; 200 ALR 39 at [45]. However, even without formal recognition, an international principle may be such that it reflects fundamental values and should therefore be taken into account for interpretation purposes: Director of Public Prosecutions v  Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 228

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at 125; 132 ALR 449 at 456 (Universal Declaration of Human Rights). Once Australia has ratified a treaty it becomes relevant to the interpretation of legislation even though it may not have been given effect by legislation: Teoh’s case, above; and see 3.12–3.13.4 Legislation is Presumed Not to Alienate Vested Proprietary Interests without Adequate Compensation 5.25  This presumption has been frequently reiterated by the courts and it is fairly easy to find general statements of it. For example, in Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 the question for consideration was whether a person whose only title to land was 10 years’ adverse possession was entitled to compensation on acquisition. The court held that he was so entitled. He had a right to possess the land as against everyone except the rightful owner. He therefore had an interest that should be compensated. Griffith CJ said (at 373):

In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing [ie acquisition of land statutes], that they are not to be construed as interfering with vested interests unless that intention is manifest.

The same view was expressed in Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552. In that case it was claimed by the Commonwealth that it could acquire land of the respondent without compensating it for valuable limestone deposits on the land. Griffith CJ and Rich J said at 563: ‘It is a settled rule of construction that such an intention [ie dispossession of a valuable property right without compensation] cannot be imputed to the Legislature unless expressed in unequivocal terms incapable of any other meaning.’ The decision was affirmed by the Privy Council: see [1921] 2 AC 373 where similar views were expressed. In Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343, the Privy Council reversed a decision of the High Court reported at [1925] HCA 15; (1925) 36 CLR 230 where the High Court had interpreted a statute as taking away private rights of property without compensation and had not referred to the general presumption in its judgment. Of particular interest because it concerned the validity of delegated legislation was CJ Burland Pty Ltd v  Metropolitan Meat Industry Board [1968] HCA 77; (1968) 120 CLR 400. There Kitto J (at 406–7) and Owen J (at 415) expressly relied on the presumption to hold invalid a regulation that allowed the board to retain part of the carcass of an animal slaughtered without payment to the owner of the animal. (The relevant legislation was immediately amended with retrospective operation to permit the board so to act.) See also generally the cases referred to in the Annexure. 4. See  further the discussion in Principle of Legality Essays: Chapter  12, Wendy Lacey, ‘Confluence or Divergence? The Principle of Legality and the Presumption of Consistency with International Law’. 229

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It thus seems that the courts will be most reluctant to hold that a person is to have a vested proprietary right taken away without compensation. It will probably require a clear statement in the Act to that effect: certainly it will not be implied by the court. It seems clear too that, notwithstanding changes in attitude to public acquisition and ownership of land and other property, the courts are remaining steadfast in their approach. (But see  the approach to statutory rights referred to in 5.28.) If, of course, there is an express statement denying or limiting compensation, that provision must be given effect: Durham Holdings Pty Ltd v New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340; 166 ALR 500; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321; 169 ALR 385 at [43]. Durham’s case also noted that the limitation contained in the Commonwealth Constitution that requires acquisition of property to be on ‘just terms’ (s 51xxx(i)) is not applicable to the acquisition of property by a state. See also the cases cited in the judgment at [96]–[107]. Legislation is Presumed Not to Interfere with Vested Proprietary Interests 5.26  The presumption which is discussed in 5.25 is a specific application of the more general presumption that legislation should be assumed not to interfere with vested proprietary interests. This is indicated by the comment which is quoted there from the judgment of Griffith CJ in Clissold v  Perry [1904] HCA 12; (1904) 1 CLR 363 at 373. One might have expected that this presumption would apply with less force than previously, given the extent to which modern legislation inevitably interferes with proprietary interests. However, the presumption continues to be relied on. French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603; 254 ALR 1 at [43]–[44] said:

As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a ‘principle of legality’ and has been described in Australia as an aspect of the rule of law … In its application to property rights this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II … the right to property was recognised in the Universal Declaration of Human Rights and in various other international instruments.

In Clunies-Ross v  Commonwealth [1984] HCA 65; (1984) 155 CLR 193; 55 ALR 609 the High Court held that the power to acquire land under the Lands Acquisition Act 1955 (Cth) should be narrowly interpreted. The Full Court explained (at 199–200; 611): If the power to acquire for a public purpose which the Act confers is construed as extending to purposes quite unconnected with any need for or future 230

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use of the land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws or, in the case of land in a Territory, ‘any purpose in relation to that Territory’. It is, in our view, unlikely that the Parliament would have intended to confer such a power other than by the use of clear words to that effect and subject to stringent and specially framed controls or safeguards against its abuse. Neither is to be found in the Act.

Cavanough J in Obeid v  Victorian Urban Development Authority [2012] VSC 251; (2012) 188 LGERA 56 at [89]–[95] raised the issue whether the presumption carries the same weight where the legislation authorising interference with a proprietary interest also provides for compensation for that interference. His Honour referred to the discussion above but suggested that the more general statements of the presumption did not take into account that a distinction might be drawn between legislation that does and that which does not provide for compensation for overriding an interest. In this context he referred to Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409; 262 ALR 614 at [32] and remarks of Gaudron  J in Marshall v  Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603; 180 ALR 351 at [37]–[38]. His Honour concluded that ‘the last word on this subject has yet to be uttered’. The fact that compensation is to be paid might well be argued to strengthen the claim that the effect of the legislation should not be limited by the presumption because the legislature has recognised that it is interfering with a proprietary right but is making provision for the loss arising from that interference. 5.27  Cases in which the presumption has been applied to hold that an Act

should not be interpreted in such a way as to interfere with a proprietary right include: • Public Trustee v Ferguson (1940) 57 WN (NSW) 63: right of adopted child to take in estate of parent notwithstanding the fact that there had been a second adoption of the child; • Hodges v Kovacs Estate Agency Pty Ltd [1961] WAR 19: rule in Clayton’s case (1816) 1 Mer 572; 35 ER 781; • Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177: interests of parties to minerals; see particularly Barwick CJ at 181 and Menzies J at 182; • Anthony Lagoon Station Pty Ltd v  Aboriginal Land Commissioner (Maurice) (1987) 15 FCR 565; 74 ALR 77: entry on land without the consent of the owner; 231

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• Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2011] HCA 19; (2011) 243 CLR 558; 277 ALR 257 at [35]–[37]: compensation for mine subsidence; • Pearson v  Richards [2012] TASSC 71; (2012) 21 Tas R 461 at [48]: extinguishment of an easement. Contrast Colonial Sugar Refining Co Ltd v Attorney-General (Qld) [1916] QSR 278, in which the right of entry of a chemist into a sugar mill to analyse sugar cane was upheld. It must be clear that a proprietary interest is being affected before the presumption can arise and this will require a careful consideration of what interest is being affected and how the person affected came to have that interest: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; 211 ALR 472 at [18]–[19]. It may also be more difficult to make out a claim in the case of statutory rights: see 5.28. The presumption can, of course, be overridden by the provision in question: see, for example, the decision of the High Court in Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 at 146; 121 ALR 577 at 583 reversing the finding made by the Federal Court at (1992) 111 ALR 13 at 58 that the presumption applied. The presumption will also be displaced where legislation requires the forfeiture of property upon conviction for an offence: see 9.41. Statutory Rights and Presumption Against Interference with Vested Proprietary Interests 5.28  The cases referred to in 5.25–5.27 were concerned with the general question of legislation affecting an existing proprietary right. It is interesting to contrast the approach in Penny v Penny [1965] NSWR 495 where the court had to consider an invasion of an existing statutory right — maintenance orders made under state Acts that had been largely superseded by the Matrimonial Causes Act  1959 (Cth). The Full Court of the New South Wales  Supreme Court said (at 498):

In determining the extent of the powers to change the rights and obligations of the parties to an order, it is necessary to examine the language of the Act now in force and to ascertain its meaning. In construing it we do not think that the Court should begin its task by adopting a presumption against any intention to change the law, or even against any intention to change it in such a manner that rights and liabilities which had already accrued under the previous law may be affected. If the extent of the powers which the Court is to have under the Act is reasonably clear from its language, it is not to the point that this alters the pre-existing situation, for there is then no room for any presumption against such an alteration.

The thinking underlying this approach seems to be that the legislature is at liberty to take away that which it has given. Contrast Greville v Williams [1906] HCA 97; (1906) 4 CLR 694 where the court applied the presumption against alienation of vested rights to protect the plaintiff ’s public service 232

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superannuation. This decision is distinguishable from Penny v Penny in that the plaintiff had made contributions to the superannuation fund and his rights, although dependent upon a statute, were much more akin to a proprietary right at law. A like approach was followed in Young v  Owners of Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 where rights under the Strata Schemes Management Act  1996 (NSW) were equated with property rights at law and could not be taken away without express power. 5.29  The two decisions of Greville and Young were referred to by French J in University of Western Australia v Gray (No 20) [2008] FCA 498; (2008) 246 ALR 603 at [88] as authority for his conclusion that patent rights were property rights of the kind that attracted the presumption that they could not be acquired without specific authority. This conclusion was not challenged on appeal: [2009] FCAFC 116; (2009) 179 FCR 346; 259 ALR 224. In Springhall v  Kirner [1988] VR 159 at 165–6 the revocation of a commercial fishing licence was held only to be possible on the payment of compensation. This construction was said to gain ‘cogent support from the principle of statutory construction that, unless it is unavoidable, an enactment should not be construed in a manner that would lead to the loss of a person’s valuable rights without payment of compensation’.

However, a similar approach to that in Penny v Penny can be seen in the decision in South Australian River Fishery Association Inc v South Australia [2003] SASC 174; (2003) 85 SASR 373. The court held that amendments of regulations that had the effect of limiting the previous value of a licence where that value flowed from the operation of the regulations were not invalid for failing to provide compensation for that loss of value. Doyle CJ at [123] said: ‘I am not aware of any principle which conditions the power to make delegated legislation upon the provision of adequate compensation for loss caused by the exercise of that power.’ Springhall v Kirner was not referred to in the judgments. It is necessary to look carefully at the nature of the interest given by the legislation. In Aerial Capital Group Ltd v  Australian Capital Territory [2013] FCA 1411; (2013) 217 FCR 153; 308 ALR 394 a taxi licence was held not to constitute a proprietary interest. Rather it was an exemption from what would otherwise have been a prohibited activity. The assumption of no acquisition without compensation did not apply and the scope of the licence could therefore be altered without compensation: at [55]. The issue will often arise in the context whether legislation is intended to have retrospective effect. It then becomes a question of the context of the earlier and later legislation: Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482 and see Chapter 10. See also 5.46 in relation to displacement of statutory rights generally. Statutory Exemption for Government Bodies Narrowly Construed 5.30  It is common to find in legislation empowering governmental bodies to undertake activities or provide services a provision that exempts the body 233

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from legal liability for losses incurred by others as a result of the exercise of the statutory power or that imposes time or other constraints in bringing an action for any such losses. The courts have indicated that such provisions are to be narrowly construed against the interests of the body concerned. Gummow J in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 541 referred to this as a precept of statutory interpretation based on the fact that such a provision ‘protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights’. Kitto J in Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105 at 116 said that such provisions should not ‘be carried further than a jealous interpretation will allow’. This approach has led to something which the body concerned might lawfully do without statutory authority not being regarded as something done under the statute such as to attract the exemption provision: Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466 at 476; 70 ALR 275 at 282 per Brennan J; Board of Fire Commissioners (NSW) v Ardouin, above. The views set out in these cases were reiterated by the High Court in Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575; 165 ALR 337. However, the comments of McHugh J (at [35]) should be noted. His Honour drew a distinction between the protective effect of a statutory exemption in regard to action provided for by legislation which might be unlawful even when carried out without negligence and action that might be carried out without legislative authority but which might attract an action for breach of contract or negligence. The exemption provision might have a wider effect in relation to the former type of action than the latter. See also Seven Cable Television Pty Ltd v Telstra Corporation Ltd [2000] FCA 350; (2000) 171 ALR 89 at [75]; City of Ballarat v Perovic [2001] VSCA 222; (2001) 4 VR 1; Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114. Conferral of Power Carries Power of Performance 5.31  If a power is conferred upon a body by an Act of Parliament there is implied, as a concomitant of that power, the power to perform it: Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 at 130; 30 ALR 77 at 83 per Lockhart J. So in that case it was held that the power to extend the time for compliance with the requirements of a bankruptcy notice where an application had been filed to set it aside carried with it the power to set aside the notice itself. In Dunkel v Commissioner of Taxation (1990) 27 FCR 524 at 528; 99 ALR 776 at 780 the presence of counsel in what would otherwise be a private examination was permitted as it was considered necessary as issues of legal professional privilege were likely to be debated. See further the cases in the Annexure.

An earlier and much cited consideration of this issue was by Fleming CJ in Fenton v Hampton (1858) 11 Moo 347 at 360; 14 ER 727 at 732 who said: 234

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Whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing [of] that something else, or even going a step farther, that it is in only some particular instances, as opposed to its general operation, that the law fails in its intention, unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus.

This proposition was endorsed by O’Connor J in Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of New South Wales [1905] HCA 20; (1905) 2 CLR 509 at 523. While there were circumstances in that case where adding to the power would have aided its carrying out, there were others where it was not necessary. This being so it was not appropriate for the court to extend the operation of the Act. The presumption was also discussed in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108; 245 ALR 458 at [38]. The court there alluded to the fact that the implementation power could not go beyond that which was necessary to carry out the decision, but it was satisfied that the order made by the Commission stayed within this limit. A further limitation on the application of the presumption was noted in Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1 at [278]. It was said there that no incidental power could be given if that power would violate common law rights, such as the privilege against self-incrimination. The first sentence of the proposition from Fenton’s case was cited and applied by McHugh J in Egan v Willis [1998] HCA 71; (1998) 195 CLR 424; 158 ALR 527 at [83]. Interestingly, his Honour did not allude to the qualification on extending the power. It is the qualification that fits more closely with the general attitude of the courts not to extend the power of the executive in a manner that affects the public. In Egan’s case, the extension was in aid of the power of the parliament to call the executive to account, which perhaps explains the willingness to apply the first part of the proposition. In Western Australia the presumption is given statutory effect by s 50 of the Interpretation Act 1984 which provides: Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.

This provision was invoked in Owens v Builders’ Registration Board of Western Australia [2006] WASC 272 at [33] to hold that a power conferred on the 235

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Board to make an allegation of misconduct to a tribunal carried with it the power to conduct a prior investigation into the circumstances that might justify such action. See also Director of Public Prosecutions v Byron (No 4) [2011] WASC 199 at [15]. Minister May Delegate Power: The Carltona Principle 5.32  What is commonly known as the Carltona principle was stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377; (2014) 88 NSWLR 125; 318 ALR 161 at [12] as being that:

… where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred.

This principle is applicable also where power has been invested in a senior government official: O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1; 44 ALR 27. This principle is usually considered in the context of administrative law and as an implication flowing from legislation investing a power in a person. However, in the New South Wales Aboriginal Land Council case, above, at [11] it was said to be a principle of statutory interpretation. The court noted that many standard texts on statutory interpretation do not mention it. It continued: Some statements of the principle in English law seem to assume its application as a matter of presumption in the absence of indications to the contrary. … Statements in this country suggested that its application is a question of inference from the subject matter, scope and nature of the power or function in question.

The principle can be viewed as a sub-category of the presumption referred to in 5.31. It enables the performance of the power vested by the legislation. See further Interpretation Acts, Chapter 7. Legislation is Presumed Not to Operate Retrospectively 5.33  This significant presumption is dealt with in detail in Chapter 10.

Legislation is Presumed Not to Alter Common Law Doctrines: Legislation is Presumed Not to Invade Common Law Rights 5.34  While it is conceded by the courts that legislation can override the common law, the courts require that it be clearly shown that the legislature intended to do so — hence the adoption of two closely related presumptions: legislation is presumed not to alter common law doctrines and legislation is presumed not to invade common law rights. The principle of legality discussed at 5.3 is most frequently alluded to in the context of the application of these presumptions. 236

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Both presumptions represent the same philosophy: that it is the responsibility of the courts to protect the individual from the excesses of the state. It is assumed that this protection is best afforded by the principles of the common law. Often this is correct. Habeas corpus has, for example, stood as the great protection of the citizen against unwarranted imprisonment. But the tenets of the common law were evolved by a class of individuals with attitudes that were not always advantageous to all members of society. This is nowhere better evidenced than in the field of labour law and workers’ compensation law in relation to which the notion of individuals being able to contract freely is quite unrealistic. So in these areas to insist on the preservation of common law doctrines may defeat the purpose of the legislation and penalise the persons in whose favour the Act has been made. Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 at 394 questioned the force of the presumptions in what he referred to as ‘these days of statutory activism’. See further 5.8. However, Australian courts, while recognising that the will of the legislature must prevail, have nonetheless referred frequently to the presumptions and have shown no reluctance to apply them. The position is encapsulated by French J in Federal Commissioner of Taxation v  Citibank Ltd (1989) 20 FCR 404 at 433; 85 ALR 588 at 614–15. After examining the background to the approach of the courts, he continued: The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected.

For a general discussion of the interrelationship between the common law and legislation see  P D Finn, ‘Statutes and the Common Law’ (1992) 22 UWAL Rev 7; Sir Anthony Mason, ‘The Interaction of Statute Law and Common Law’ (2016) 90 ALJ 324. See also 1.25. See further 5.46 in relation to the upholding of statutory rights. Statements of Presumption Against Alteration of Common Law Doctrines 5.35  One of the most frequently cited authorities relating to the presumption against alteration of common law doctrines is the statement of O’Connor J in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277. His Honour, in that case, quoted from J A Theobold, Maxwell on the Interpretation of Statutes, 4th ed, Sweet & Maxwell, London, 1905, p 121. The passage approved by O’Connor J (at 304) is as follows:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. 237

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The case concerned the right of a person to enter Australia without having to comply with the dictation test set out in the Immigration Restriction Act 1901 (Cth). The applicant, who was of Chinese parents, had been born in Australia but had left at the age of five. He had, however, always retained the intention of returning to Australia and he did in fact return some 26 years later. The court held that he was entitled as of right to enter Australia and the parliament could not be presumed to have intended him to have been an ‘immigrant’ within the meaning of the Act. The statement cited from Potter v  Minahan has been endorsed by the High Court frequently: see, for example, Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; 93 ALR 207 at 215; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437; 120 ALR 415 at 419. A statement of the presumptions with useful reference to authorities is the following from Burchett and Ryan JJ in Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513 at 526; 127 ALR 317 at 329: Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission of New South Wales v Yuill (1991) 100 ALR 609 at 610, per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank (1909) 9 CLR 738 at 746; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 37 ALR 613 at 616.

The High Court in Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 635–6; 93 ALR 469 at 477 observed ‘that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred’. In BIL (NZ Holdings) Ltd v Era House Ltd (1991) 23 NSWLR 280 at 286 Rogers CJ in Comm Div, citing Coke’s Institutes (Co 2 Inst 200), noted that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law. So the inherent power of the court to order security for costs was not removed by the inclusion of such a power in an Act. See  also Barton J in Bishop v Chung Bros [1907] HCA 23; (1907) 4 CLR 1262 at 1273; Lord Simon of Glaisdale in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 650; Brennan CJ in Taikato v R [1996] HCA 28; (1996) 186 CLR 454 at 460; 139 ALR 386 at 390 (meaning of ‘lawful purpose’). As noted in 5.5, in Coco v  R [1994] HCA 15; (1994) 179 CLR 427 at 437; 120 ALR 415 at 419 the High Court recognised that there could be circumstances in which the presumption could be displaced by implication. This would be the case if such an implication were necessary to prevent the statutory provision becoming inoperative or meaningless. However, the court considered that such a case would be rare where general words were used as 238

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such words can almost always be given a scope for operation that does not involve an abrogation of the presumption. See further 5.5–5.7. Presumption applicable to principles of equity 5.36 In Minister for Lands and Forests v  McPherson (1991) 22 NSWLR 687

the Court of Appeal held that, in the absence of an unambiguous contrary intention, statutes should be interpreted so as to be in consonance with the principles of equity. It was not appropriate to draw a distinction between equitable and common law principles in this respect. So in that case the power of the Supreme Court exercising its equitable jurisdiction to provide relief against forfeiture had not been removed as there was no clear intent to do so apparent in the relevant Act. See  the extra-judicial commentary on this case and the issue generally by Mark Leeming [JA], ‘Equity: Ageless in the Age of Statutes’, Legal Studies Research Paper No 15/91, Sydney Law School, October 2015. Application of presumption: self-incrimination 5.37  A circumstance in which the presumption against alteration of the common law has frequently been applied has been where legislation has included a general requirement to answer questions. This requirement has usually been read as subject to the common law doctrine that a person cannot be obliged to incriminate himself or herself. For example, in Crafter v  Kelly [1941] SASR 237 power was given to a board to require persons to attend and give evidence before a representative of the board and the board was empowered to ‘require answers or returns to any inquiry which that [representative] thinks fit to make’. Failure to answer a ‘lawful question’ when put by the representative of the board was an offence. The court held that this provision did not take away the common law right to refuse to answer questions on the ground that it would incriminate the person concerned. The court referred to extensive English authority establishing this doctrine and said that it would require a clear statement by the legislature before it would be thought that the privilege was to be abrogated.

However, there is no doubt that parliament may abrogate the privilege against self-incrimination by necessary implication as well as by express words. In Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328; 45 ALR 609 the High Court held that the privilege was not available to a person who was required to furnish information or documents to the commission under s 155(1) of the Trade Practices Act 1974 (Cth). The language and the purpose of the section as a whole led to such a conclusion. Mason ACJ, Wilson and Dawson JJ explained (at 341; 618): The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest 239

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of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation.

The presumption will thus be impliedly displaced if to hold otherwise would make the legislation inoperative, meaningless or unworkable —  sometimes referred to as ‘the stultification principle’: Commissioner of Taxation v De Vonk (1995) 61 FCR 564; Binetter v Deputy Commissioner of Taxation [2012] FCAFC 126; (2012) 206 FCR 37. 5.38  There has been a plethora of cases that have considered the scope of

the presumption that persons will not be obliged to incriminate themselves in the absence of clear words. No useful purpose would be served by setting them out at length here. Their effect was valuably summarised by Allsop J (with whom the other members of the Full Court of the Federal Court agreed) in Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209; 207 ALR 169 at [37]–[56] and by Kenny J (with whom the other members of the Full Court of the Federal Court agreed) in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420; 207 ALR 342 at [54]–[71]. However, regard should be had to the consideration of the application of the presumption in the following cases: • Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564; 133 ALR 303: relationship between privilege and contempt of court; • Australian Securities Commission v Kippe (1996) 67 FCR 499; 137 ALR 423: distinction drawn between punitive and protective provisions; • X7 v  Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; 298 ALR 570 at [105]: the presumption encompasses more than the rights that the accused has at trial. It includes also the rights of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial; • Price v  McCabe; Ex parte Price [1985] 2 Qd R 510; (1984) 55 ALR 319: implied exclusion of privilege more easily made out where revenue being affected; likewise where the person claiming privilege is benefiting from public financial support; • Comptroller-General of Customs v  Disciplinary Appeals Committee (1992) 35 FCR 466; 107 ALR 480; Pyneboard Pty Ltd v  Trade Practices Commission, above: application of privilege to executive action; • Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; 118 ALR 392; Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; 123 ALR 503: privilege does not extend to incorporated companies (see also Evidence Act 1995 (Cth) s 187); • Lee v R [2014] HCA 20; (2014) 253 CLR 455; 308 ALR 252; Chief Examiner v Brown (a pseudonym) [2013] VSCA 167; (2013) 44 VR 741: revelation to Crown lawyers of information given to the Crime Commission/Chief Examiner abrogated the subsequent trial and conviction. 240

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The effect of the presumption has been strengthened in the Australian Capital Territory by the inclusion of s 170 in the Legislation Act 2001. That section provides that legislation must be interpreted ‘to preserve the common law privileges against self-incrimination and exposure to the imposition of a civil penalty’. This is a ‘determinative’ provision of the Act and may therefore only be displaced ‘expressly or by a manifest contrary intention’: Legislation Act ss 5, 6. However, the Evidence Act 1995 (Cth) s 187 abolishes the right in respect of the answering of questions, producing a document or ‘doing any other act whatever’ by a body corporate. Application of presumption: prosecution to prove guilt of accused person 5.39 In Lee v R [2014] HCA 20; (2014) 253 CLR 455; 308 ALR 252 at [32] the High Court said:

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice. [citations omitted]

It then went on at [33] to add: The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. [citations omitted].

See  further the application of the latter presumption by Gageler J in R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459; 329 ALR 195 at [68]. Application of presumption: exposure to penalty 5.40  A presumption that is closely associated with the presumption against self-incrimination is that a person should not be obliged to expose themselves to a penalty. There is some debate as to whether or not this should be regarded as separate from the self-incrimination privilege. The nature of the privilege and its scope was canvassed thoroughly by the New South Wales Court of Appeal in Rich v Australian Securities and Investments Commission [2003] NSWCA 342; (2003) 183 FLR 361; 203 ALR 671 and then by the High Court [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271 at [26]–[29]. See also Valantine v  Technical and Further Education Commission [2007] NSWCA 208; (2007) 97 ALD 447 at [50]–[72] where it was held that the privilege could apply to proceedings before a quasi-judicial tribunal and Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1 at [279]ff. 241

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For interpretation purposes, it is clear that the privilege is treated analogously with self-incrimination and a person will only be obliged to act in a way that exposes them to a penalty if the relevant legislation expressly or by implication imposes that obligation. For an example, see Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499; 140 ALR 681. However, the implication of an intention to abrogate the presumption will be made out more easily in the case of the imposition of civil penalties: Price v  McCabe; Ex parte Price [1985] 2 Qd R 510; (1984) 55 ALR 319. As in the case of self-incrimination, the effect of this presumption has been strengthened in the Australian Capital Territory by the inclusion of s 170 in the Legislation Act 2001 which provides that legislation must be interpreted to preserve the privilege against exposure to a civil penalty. It is noteworthy that exposure to a criminal penalty is not mentioned. See also Evidence Act 1995 (Cth) s 187 which abolishes the privilege for bodies corporate. Application of presumption: legal professional privilege 5.41  As in the case of self-incrimination, the courts have indicated that the right to claim legal professional privilege will only be taken to be abrogated if the legislation clearly indicates: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; Valantine v Technical and Further Education Commission [2007] NSWCA 208; (2007) 97 ALD 447 at [37]. The presumption may, of course, be displaced by clear words or necessary implication. For example, in Carmody v McKellar (1997) 76 FCR 115; 148 ALR 210 a Full Court of the Federal Court considered that the Telecommunications (Interception) Act 1979 (Cth) could not function unless it was interpreted as abrogating the privilege.

Displacement of legal professional privilege may be more easily established if it is apparent that the privilege against self-incrimination is being overridden: Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319; 100 ALR 609. However, the two privileges have different bases and the displacement of one does not automatically mean the other is also overturned: Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 455; 109 ALR 119 at 127–8. As with the presumption against self-incrimination, the effect of the legal professional privilege presumption has been strengthened in the Australian Capital Territory by the inclusion of s  171 in the Legislation Act  2001. That section provides that legislation must be interpreted ‘to preserve the common law privilege in relation to client legal privilege (also known as legal professional privilege)’. This is a ‘determinative’ provision of the Act and may therefore only be displaced ‘expressly or by a manifest contrary intention’: Legislation Act ss 5, 6. Application of presumption: Crown not to have right of appeal 5.42  The courts have shown a marked reluctance to concede that an Act

permits a right of appeal by the Crown from a decision favourable to the citizen. 242

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In Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 the Federal Court ruled that the words conferring jurisdiction on the court ‘to hear and determine appeals’ were not sufficient to override the general presumption that a person who has been acquitted of a criminal offence should not be liable to have that acquittal challenged on appeal. It needed the clearest possible terminology to achieve this effect. In R v Snow [1915] HCA 90; (1915) 20 CLR 315 the question arose whether an appeal lay to the High Court from a verdict of acquittal entered by a jury. Section 73 of the Constitution empowers the High Court to hear and determine appeals from all ‘judgments, decrees, orders and sentences’ of state Supreme Courts. Griffith CJ said (at 322): If it had been intended by the framers of the Constitution to abrogate that doctrine [that no appeal lay from verdicts of acquittal] in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language.

He then continued by quoting the passage from Maxwell set out in the judgment of O’Connor J in Potter v Minahan: see 5.35. Isaacs J, in a vigorous dissent, denied the existence of the doctrine referred to by the Chief Justice. A similar approach to that taken by Griffith CJ was followed by the High Court in Wall v R; Ex parte King Won (No 1) [1927] HCA 4; (1927) 39 CLR 245 in regard to the right of the Crown to appeal from an order of a Supreme Court issuing a writ of habeas corpus discharging a prisoner from custody. No such right of appeal existed at common law and the court held that, as the Act did not expressly allow such an appeal, then it should not be taken that such an appeal was intended to be available. See also Smith v R [1994] HCA 60; (1994) 181 CLR 338; 125 ALR 385 where the High Court in a somewhat different context held that no appeal lay against an order of a single judge of the Supreme Court of Victoria permanently staying a prosecution. The same presumption requires that there be a specific power enabling the Crown to appeal against a sentence imposed following conviction: see the cases referred to in the Annexure. Statements of Presumption Against the Invasion of Common Law Rights 5.43  This presumption is closely related to that against alteration of common law doctrines (see  5.35), and most cases do not distinguish them. Perhaps the most direct statement concerned with invasion of common law rights is that of O’Connor J in Sargood Bros v Commonwealth [1910] HCA 45; (1910) 11 CLR 258 at 279: ‘It is a well recognised rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction.’ Later, in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; 243

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45 ALR 609 at 617 Mason ACJ, Wilson and Dawson JJ referred to ‘the general principle that a statute will not be construed to take away a common law right unless the legislative right to do so clearly emerges, whether by express words or by necessary implication’. Gleeson CJ in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [30] put it: … [C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment … for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.

See also Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309; 46 ALR 237 at 258; Commissioner of Australian Federal Police v McMillan (1987) 13 FCR 7 at 11; 70 ALR 203 at 206. Another short statement of the rule is to be found in Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174 at 206 per Higgins J: It must be borne in mind that there is this common law right [to take part in processions] and that any interference with a common law right cannot be justified except by statute — by express words or necessary implication. If a statute is capable of being interpreted without supposing that it interferes with the common law right, it should be so interpreted.

The case concerned a power given to the corporation to regulate processions. The court held that this power did not carry with it the right to ban processions. The legislation permitted a limited interference with a common law right (‘regulation’ of processions) but this should be construed as the maximum limitation possible and a total ban was not a ‘regulation’. However, it has been said that a broad judicial discretion as to the orders that can be made once certain facts are established will permit accepted rights to be abrogated if that is necessary to do justice in the particular case: Talacko v Talacko [2010] FCAFC 54; (2010) 183 FCR 311; 268 ALR 266 (seizure of bankrupt’s passport: urgent application could be made for return if changed circumstances made this appropriate). 5.44  There has been a general acceptance of the presumption referred to in these cases as is illustrated by the specific examples referred to in the table in 5.60. However, there are various forms of common law rights and McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269; 198 ALR 100 at [36] was at pains to distinguish the application of the presumption in respect to different rights. He first described the presumption as ‘admittedly weak these days’ and continued:

… [N]owadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when 244

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the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the ‘presumption’ of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.

Nonetheless, the common law right to damages for nervous shock was held not to be limited by statute in that case. See further the discussion at 5.5–5.10. A further limitation on the presumption recognised by the courts is that if a common law right has been the subject of extended statutory intervention, the argument against invasion of the right is consequentially reduced. So, for example, as legislation moves to cover the ground that was formerly the subject of tort law relating to compensation for accident victims, the less persuasive is the argument that aspects of the former law continue to apply: see the cases referred to in the Annexure. Application of presumption: rights recognised by courts 5.45  Notwithstanding McHugh J’s pessimistic view of the value of the presumption against interference with common law principles and rights, there are many cases in which the principle has been applied. An attempt is made to identify these in the table in 5.60.

Upholding of Statutory Rights 5.46  The rights of citizens are as likely nowadays to be founded in statutory statement as in the common law. This has prompted the question whether the courts should apply the same thinking to limitations on such rights as they have to limitations on common law rights. The courts recognise that common law rights are subject to legislative displacement, but they require the intention to effect such displacement to be clearly stated. The same approach could be adopted in relation to statutory rights — clear words would be necessary to limit them.

This approach has been followed on occasion by courts. In Buck v Comcare (1996) 66 FCR 359 at 364–5; 137 ALR 335 at 340 Finn J considered that the suspension of a right to compensation for a work injury by automatic application of a legislative provision and without an officer of the relevant agency considering the circumstances of the matter should not be assumed to be the effect of the legislation unless that were clearly indicated. He said: … it is a right of sufficient significance to the individual … that, where there may be doubt as to the parliament’s intention, the courts should favour an 245

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interpretation which safeguards the individual. To confine our interpretative safeguards to the protection of ‘fundamental common law rights’ is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.

This statement was endorsed and applied by a Full Court of the Federal Court in Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213 FCR 449; 136 ALD 536 at [34]. Adopting a like approach, in R v Cain [1985] 1 AC 46 a prohibition on an existing statutory right of appeal was strictly construed. Lord Scarman, with whose speech the other Law Lords agreed, said (at 55–6): The right of appeal against sentence is of fundamental importance to the subject: it is his protection against sentences not authorised by law as well as against the sentence which is too severe or is inappropriate. It is a reasonable inference not to be gainsaid save by specific statutory provision that where Parliament prohibits an appeal against sentence it is dealing with the discretionary power of the court to make the order and not addressing its prohibition to orders defective in law.

See also 5.28 in regard to removal of statutory property rights. Legal Representation 5.47  Where a person would normally expect to be entitled to legal

representation before a court or tribunal, the denial of that expectation must be clearly stated: Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA  146; (2003) 57 NSWLR 282 at [98]; Bell v  Australian Securities Commission (1991) 31 FCR 184; 103 ALR 689. Legislation is Presumed Not to Oust Established Jurisdictions 5.48  The courts will interpret any provision affecting their jurisdiction in

such a way as to have the minimal effect on it. Most cases in which the issue has arisen have been concerned with so-called ‘ouster’ or privative clauses. The general rule in this context was stated by Dixon J in Magrath v Goldsbrough, Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121 at 134 as being ‘that statutes are not to be interpreted as depriving superior Courts of power to prevent an unauthorised assumption of jurisdiction unless an intention to do so appears clearly and unmistakably’. This question is dealt with comprehensively in books on administrative law: see R Creyke, J McMillan, M Smyth and M Groves, Control of Government Action, 5th ed, LexisNexis Butterworths, Sydney, 2018, [16.3.1]ff; M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action, 6th ed, Lawbook Co, Sydney, 2017, Chapter  18. It is not proposed to pursue it further here. However, some additional points should be noted. 5.49  The High Court in Shergold v  Tanner [2002] HCA 19; (2002) 209

CLR 126; 188 ALR 302 at [34] stated as a general proposition that ‘a law of the 246

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Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably’. This presumption has been applied in a number of fields additional to administrative law as the following examples demonstrate: • Webster v  Bread Carters Union of NSW (1930) 30 SR (NSW) 267: Long Innes J held that he could grant an injunction to restrain a breach of a union constitution notwithstanding the fact that the Industrial Court was expressly empowered to adjudicate upon any legal proceedings arising out of unions’ constitutions; • Walsh v Alexander [1912] HCA 24; (1912) 16 CLR 293: the High Court held that a declaration could be granted notwithstanding the right to protect interests under the Real Property Act 1900 (NSW) by lodging a caveat; • Johnson v Director-General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92; 9 ALR 343: the High Court affirmed that the Supreme Court’s inherent jurisdiction to supervise the guardians, and protect the welfare, of children could only be taken away by clear and unambiguous language; • Assistant Commissioner Condon v  Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638: the High Court upheld the validity of the Criminal Organisation Act  2009 (Qld) because the inherent jurisdiction of the court was not expressly limited and it therefore retained the power to protect persons from unfair decisions under the Act; • Bennett v Bennett (2001) 28 Fam LR 231: the court applied the presumption in holding that the right to apply to the court for a custody order was not to be restrained in the absence of a clear indication of this being the intention of the provision in question; • Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 at 315; Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29 at 31–2: presumption applies in relation to assertions that a person is a vexatious litigant. The desire to preserve the right of the public to access to courts and other review mechanisms has resulted in a reluctance to classify procedural requirements as jurisdictional. This is done to prevent the argument being sustained that a procedural error deprives a body of jurisdiction to hear an application. The presumption is that the jurisdiction of a body does not turn on strict adherence to matters of practice and procedure specified in legislation: Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166–7; 144 ALR 695 at 705. See further Chapter 11. 5.50  The availability of remedies through federal legislation has, on occasions, raised the issue whether state court jurisdiction has been displaced. As could be expected, the state courts have shown no enthusiasm so to hold. For example, in Re Totalisator Administration Board of Queensland [1989] 1 Qd R 215; (1988) 80 ALR 73 it was held that the Supreme Court’s jurisdiction 247

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to make declarations as to liability to pay sales tax was not displaced by the Federal Court having like power. In Dahlia Mining Co Ltd v Collector of Customs (1989) 17 NSWLR 688; 90 ALR 193 the right of a person to recover overpaid customs duties by action in the state Supreme Court was not removed by the availability of tribunal review even where that means of review had been pursued. The significant issue there was that a judgment debt accrued interest whereas a favourable ruling of the tribunal carried with it no such right. See generally Geoffrey Lindell, Cowen and Zines’s Federal Jurisdiction in Australia, 4th ed, Federation Press, Sydney, 2016. However, note s  9 of the Administrative Decisions (Judicial Review) Act  1977 (Cth) which expressly deprives state courts of jurisdiction to review decisions of Commonwealth officers: see D C Pearce (ed), Australian Administrative Law Service, LexisNexis Butterworths, [348]–[350D]. A like approach has been evidenced by state Supreme Courts in relation to arguments that the vesting of a specific jurisdiction in another court means that the Supreme Court no longer has jurisdiction in relation to the matter. If the matter can be dealt with under the Supreme Court’s traditional jurisdiction, the view is taken that only clear words will remove that jurisdiction: Webster v Bread Carters Union of NSW, above; R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22; Makucha v  Albert Shire Council (1993) 81 LGERA 243 at 246–7. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172; 157 ALR 686 McHugh J at [111] said that it was highly unlikely that parliament in conferring jurisdiction on the Full Court to hear appeals intended that the relevant section should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. This was endorsed by the High Court in Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; 275 ALR 646 at [51]. An exception to the principle discussed in the preceding paragraphs can arise where it is considered that the legislation providing for a right also provides the only remedy for enforcement of that right: see Barraclough v Brown [1897] AC 615 discussed in 4.47. See also 5.52. Investment of a Court with Jurisdiction is Intended to Include all the Procedure of the Court 5.51  Two presumptions are applicable to the investment of a court with jurisdiction.

First, ‘[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words’: Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421; 125 ALR 1 at 10. This approach has been followed in a number of decisions which have been collected in Weinstock v Beck [2013] HCA 14; (2013) ALR 1 at [55]. See also Brewster v BMW Australia Ltd [2019] NSWCA 35 at [56]-[57]. 248

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Second, the investment of a court with jurisdiction is intended to include all the procedure of the court. This presumption can be of importance as it is very common to invest an established court with jurisdiction to determine certain matters additional to its existing jurisdiction. The question that then arises is: What procedure is the court to follow? The presumption answers this. It is stated clearly by the High Court in Electric Light and Power Supply Corporation Ltd v  Electricity Commission of New South Wales  [1956] HCA 22; (1956) 94 CLR 554 at 560: When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may be made that it takes it as it finds it with all its incidents …

This proposition was endorsed and applied by the High Court in Houssein v  Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 96; 38 ALR 577 at 582 and Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486; 228 ALR 214 at [7]. See also generally the cases referred to in the Annexure. The presumption also applies where it is claimed that limitations are imposed on a court’s ordinary procedure. In Cameron v Cole [1994] HCA 5; (1944) 68 CLR 571 Rich J said at 589: … in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.

This passage was cited by the High Court in Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252; 106 ALR 624 at 629 to support the right of the Supreme Court to determine who might be parties to an application. In like vein in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205; 107 ALR 585 at 605, in relation to the power of the court to award costs, Gaudron J said: It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of the grant.

This statement was cited with approval in Mansfield v  Director of Public Prosecutions (WA), above, at [10]. It was also followed in Michelotti v  Roads Corporation [2009] VSC 195; (2009) 26 VR 609 at [24] in relation to an application for an extension of time in which to seek review of a decision. For an example of a case in which the words of the statute displaced the presumption, see Patterson v Public Service Board of New South Wales [1984] 1 NSWLR 237. 249

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If Legislation Includes a Remedy for Breach No Other Remedy is Available 5.52  This assumption was defined by Brett MR in Bailey v  Bailey (1884) 13 QBD 855 at 859 as follows:

It is an old and well-known rule of construing statutes that when a special remedy is given for the failure to comply with the directions of a statute that remedy must be followed, and no other can be supposed to exist.

An illustration of the application of the rule is provided by Attorney-General v Kernahan (1981) 28 SASR 313. In that case it was held that the breach of an order made under s 69(1)(d) or (e) of the Evidence Act 1929 (SA) prohibiting the publication of certain matters referred to in court proceedings was only punishable summarily, as provided by s 71(2) of the Act. The Supreme Court therefore had no power to punish such breaches in the exercise of its inherent powers. In Chippendale Printing Co Pty Ltd v  Commissioner of Taxation (1996) 62 FCR 347; 135 ALR 471 the refund provisions of the sales tax legislation were held to provide the only remedy and it was not possible to seek a refund by use of remedies at law. See also the cases referred to in the Annexure and in 4.47. The fact that the remedy provided is not through the courts will not prevent its having to be pursued before seeking to invoke a judicial remedy: Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143; (2005) 226 ALR 362 at [105]–[106]. As always, a contrary intention may displace the presumption and this is probably more likely to be held to be the case if a superior court’s inherent jurisdiction is being called into question: see, for example, Re Totalisator Administration Board of Queensland [1989] 1 Qd R 215; (1988) 80 ALR 73. The Future of the Principle of Legality 5.53  Where does the future lie? D Meagher in ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melb Univ L Rev 449 posits the possible extension of the scope of the principle of legality through the recognition of international human rights norms. If this were to occur, it is possible that the principle would expand to give a greater level of protection than is achieved through the existing human rights legislation. Such an expansion is not just academic speculation. French CJ said, extra-judicially:5

One area which awaits further exploration is the interface between human rights norms in Conventions to which Australia is a party or in customary international law and the presumption against statutory displacement of fundamental rights and freedoms of the common law. If the former can inform the latter through developmental processes of the kind mentioned in Mabo then the content of the so called principle of legality may be deepened.

5. The Brennan Lecture, Bond University, ‘Oil and Water? — International Law and Domestic Law in Australia’, 26 June 2009. 250

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Professor Meagher suggests (at 468) that this approach: … may well reflect a conscious decision to use and develop the principle of legality as the exclusive interpretive means by which the judicial protection of rights will be facilitated. Or it may be impliedly suggesting that, at least so far as human rights are concerned, a convergence of approach between the principle of legality and presumption of consistency [with international law] is inevitable in Australian law.

See further generally the Principle of Legality Essays for commentary on the various aspects of the principle. 5.54  Whether or not this development occurs, there is a basic problem with the principle of legality in that there is no final agreement on the rights and principles that fall within its ambit. This is exacerbated by the distinction posited between fundamental and other rights without attempting to indicate what rights fall within the respective categories: see 5.8–5.10.

Stephen Gageler SC, when Commonwealth Solicitor-General, delivered a paper at the Australia–New Zealand  Scrutiny of Legislation Conference, July 2009, at which he noted the absence of an agreed basis for the operation of the principle of legality and the problems that this caused for legislators, in particular, and other persons who needed to be aware of its content. He pleaded for there to be an agreed list: ‘If we agreed to write them down, then at least we might all be singing from the same hymn-sheet’: see . The table at 5.60 represents the only attempt of which the author is aware to gather together those rights and principles which have been endorsed at various times as being protected by the principle of legality.6 It, of course, has no authority. As the principle of legality is common law based, the table will not be endorsed and, as is acknowledged by the courts, the matters listed are subject to variation in accordance with the courts’ view of what society demands: see 5.3. The likelihood that an agreed ‘hymn sheet’ will ever come into being is small. It is hoped that the table will provide some guidance on the content of the principle of legality. The matters that it encompasses will continue to be added to or qualified by the courts on a case-by-case basis. It is an everchanging area of law and the certainty that is sought is unattainable. However, this lack of certainty is a factor that should be borne in mind when the argument is being ventured that there is no need to enact a Bill of Rights because the courts provide all the necessary protection for civil rights.

6. Cf Australian Law Reform Commission, Report 129 ‘Traditional Rights and Freedoms — Encroachments by Commonwealth Laws’, 2016 which does not purport to be a comprehensive description of the rights and principles. 251

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HUMAN RIGHTS ACTS

Introduction 5.55  As noted at 5.1, no Australian jurisdiction has adopted a constitutional Bill of Rights that overrides legislation that purports to affect certain specified rights. However, the Australian Capital Territory has enacted the Human Rights Act 2004, Queensland the Human Rights Act 2019 and Victoria the Charter of Human Rights and Responsibilities Act  2006. (These will be referred to collectively as the HR Acts.) The HR Acts follow what is called the dialogue model whereby legislation that is not compatible with certain designated human rights cannot be declared invalid by a court but may be the subject of a declaration of incompatibility with those rights. Certain consequences short of invalidity flow from the making of such a declaration. The Victorian and Australian Capital Territory HR Acts are analysed in detail in C Evans and S Evans, Australian Bills of Rights, LexisNexis Butterworths, Sydney, 2008. It is not appropriate that their operation be considered at length in this book. However, as the legal assumptions with which this chapter is concerned are based on a broad notion of protection of individual rights, the effect of the Acts on the operation of these assumptions warrants brief consideration. See further, Evans and Evans, Chapter 3. 5.56  The HR Acts have a common, albeit slightly differently worded, section

relating to the interpretation of legislation in the light of the requirements of the Act. Section 30 of the Australian Capital Territory Act reads: So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

Section 48 of the Queensland Act provides: (1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. (2) If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.

Section 32(1) of the Victorian Act says: So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The human rights that are to be taken into account are described in the respective Acts. The Acts also contain a provision that permits reasonable qualifications of the rights: ACT s 28; Qld s 13; Vic s 7. (This is often referred to as ‘the justificatory provision’.)

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Relationship Between Human Rights and Presumptions 5.57  It could be thought that the HR Acts do no more than codify the common law presumptions. However, this would overlook the fact that there are rights which are referred to in the international conventions on which the HR Acts are based that have not been recognised by the courts, for example, certain welfare and economic rights, right to education, rights of minorities. There are also rights to which presumptions apply that are not covered by the HR Acts, for example, the business rights referred to in the table in 5.60, compensation for acquisition of property, native title. It is accordingly better to view the HR Acts and the presumptions as complementary: cf Evans and Evans, above, p 89.

It is also relevant to note that the directive in the sections of the HR Acts referred to in 5.56 is for the courts to interpret legislation in a way that is compatible with human rights ‘[s]o far as it is possible to do so’. This seems to posit a stronger test than is applicable to the displacement of the presumptions: see 5.6–5.8. The interrelationship between the HR Acts and the principle of legality has been complicated by the inconclusive decision of the High Court in Momcilovic v R [2011] HCA 34; (2011) 245 CLR 1; 280 ALR 221. That case was an appeal from the Victorian Court of Appeal decision in R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436; 265 ALR 751. That case, along with the Australian Capital Territory Supreme Court decisions in R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22; 228 FLR 77 and Re Application for Bail by Islam [2010] ACTSC 147; (2010) 175 ACTR 30 relating to the Human Rights Act 2004 (ACT), had required the relevant HR Acts to be interpreted as requiring the application of the ordinary canons of interpretation in conjunction with the HR Acts. This approach requires the consideration of the presumptions referred to in this chapter and says that this consideration should occur at the least together with, but perhaps more appropriately as a step prior to, the application of the HR Acts. This makes considerable sense as the conclusion that a presumption has not been displaced may render the application of the HR Acts otiose. The Victorian Court of Appeal in Momcilovic at [35] summarised the approach that it determined should be followed in applying s  32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) as follows: (1) Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question. (2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows: Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic). 253

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Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter. Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The Australian Capital Territory decisions had adopted a broadly similar approach. 5.58  Unfortunately, the judgments of the High Court on the appeal in Momcilovic did not adopt a consistent view. The sticking point is whether the justificatory provision included in s  7 of the Charter (that is, whether the provision of the legislation that is in conflict with the Charter is reasonable) should inform the interpretive task (referred to as the ‘bundling’ approach) or whether it should be turned to only after an interpretation of the relevant provision had been arrived at. No majority view emerged from the High Court judgments on this point. As noted above, the earlier Australian Capital Territory and Victorian decisions had chosen to follow the latter pathway.

In the present context perhaps what is more to the point is whether the principle of legality has effectively been displaced by the requirement that ‘all statutory provisions must be interpreted in a way that is compatible with human rights’. French CJ said in Momcilovic at [51]: [The Charter] requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [of the Charter] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.

This statement appears to suggest a like approach to that which had been set out by the Victorian Court of Appeal in its judgment in Momcilovic, namely that step 1 in determining whether a provision breached the Charter was to ‘[a]scertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with the common law principles of statutory interpretation and the [Interpretation Act]’. This approach would seem to require the provision in question to be subjected to the requirements of the principle of legality. If a fundamental principle was the subject of the provision and it had not been clearly overridden, then the provision would have to be interpreted so as not to override the principle. This might well resolve the issue as far as the application of the Charter was concerned. If the provision could be read as not displacing a principle recognised by the principle of legality, it would in many cases not breach a Charter provision. (There are of course Charter provisions that are not covered by the principle of legality: see above.) 254

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If the provision has deliberately displaced a legality principle, the issue will then turn to whether it breaches a Charter requirement. If it does, then it is necessary to address the justificatory provision to determine whether the limit imposed on the right is reasonable. This seems to be the approach that the Victorian courts are taking post the High Court in Momcilovic and it does seem to provide a more workable method of approaching the issue than the alternative ‘bundling’ approach referred to by some of the judges in the High Court: see the cases referred to in the Annexure. See also Law Society of the ACT & Treasury Directorate and NRMA Insurance (Appeal) [2013] ACAT 36 at [110]–[117] for commentary on the position in the Australian Capital Territory. 5.59  This way of rationalising the principle of legality and the Human

Rights legislation has much to commend it. C Geiringer in ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v  Hansen’ (2008) 6 NZJPIL 58 at 89, in a passage endorsed by the Victorian Court of Appeal in Momcilovic at [104], said: It is entirely consistent with the view that s 6 of the [New Zealand Bill of Rights Act 1990 (NZ)] is cut from the same cloth as the common law presumptions to recognise that it nevertheless has a legitimising and galvanising effect. Section 6 provides democratic authorisation to the courts, in relation to the updated list of rights that it codifies, to draw on traditional common law understandings of the role of values and the interpretation process. In doing so, it might be argued, it provides democratic legitimacy to the techniques traditionally utilised by common law judges even where those techniques might otherwise have been regarded as suspect.

For further commentary see  B Chen, ‘Making Sense of Momcilovic: The Court of Appeal, Statutory Interpretation and the Charter of Human Rights and Responsibilities Act  2006’ (2013) 74 AIAL Forum 67; Wendy Lacey, ‘Confluence or Divergence? The Principle of Legality and the Presumption of Consistency with International Law’ in Principle of Legality Essays, Chapter 12. The various comments and cases above suggest that the passage of a Human Rights Act, even one following the dialogue model, will emphasise the significance of the principle of legality. If, as is indicated, a court must first ascertain the meaning of the relevant legislation by the application of ordinary statutory interpretation principles before turning to the effect of the HR Acts, the assumptions will continue to play a significant role in statutory interpretation. TABLE OF PRINCIPLES, RIGHTS AND PRIVILEGES RECOGNISED BY COURTS 5.60  The following list gathers together for ease of reference examples where the courts have required the need for a clear indication of an intention for the principles, rights and privileges specified to be abrogated. For further 255

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identification and discussion of these common law rights see  Australian Law Reform Commission, Report 129 ‘Traditional Rights and Freedoms — Encroachments by Commonwealth Laws’, 2016. General legislative principles • law is presumed to be constitutional: 5.11; • legislation is presumed not to have extraterritorial effect: 5.12; • general words are presumed not to extend to cases governed by foreign law: 5.15; • rules of international law presumed not to be violated: 5.24; • beneficial and remedial legislation to be interpreted broadly: Chapter 9; • legislation is presumed not to change rights and obligations retrospectively: Chapter 10. Presumptions affecting the Executive/Crown • • • • • •

legislation is not to bind: 5.17; prerogative rights not limited: 5.21; property rights not limited: 5.21; penal sanctions not to be imposed on: 9.19; exemptions from legislation narrowly construed: 5.30; investing of power includes authority to carry into effect: 5.31.

Presumptions affecting courts • removing jurisdiction from a court: 5.48–5.50; • altering standard procedure of court once it has been invested with jurisdiction: 5.51; • no other remedy available where remedy for breach provided: 5.52; • restricting access to courts (privative clauses): 5.48; • limiting requirement that courts be open: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495; 9 ALR 103; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; 252 ALR 471 at [49]; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506; 275 ALR 408 at [5], [27]; Rinehart v Welker [2011] NSWCA 403 at [26]; Fairfax Digital Australia and New  Zealand Pty Ltd v  Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; 293 ALR 384 at [48]–[51]; • interfering with the course of justice: Environment Protection Authority v  Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 558; 118 ALR 392 at 451.

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Presumptions affecting individuals Personal rights • infringing personal liberty: Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 292; 66 ALR 385 at 395; R v Bolton; Ex parte Beane [1987] HCA  12; (1987) 162 CLR 514 at 523; 70 ALR 225 at 231–2 per Brennan J; Uittenbosch v  Department of Corrective Services [2005] QCA 300; [2006] 1 Qd R 565; RJE v Secretary, Department of Justice [2008] VSCA 265; (2008) 21 VR 526 at [37]; • restricting right of community (liberty and association): Minister for Immigration and Ethnic Affairs v  Sciascia (1991) 31 FCR 364 at 372; 103  ALR 307 at 315; Rani v  Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 401; 49 ALD 619 at 638; Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414; 243 ALR 606 at [107]–[114]; • limiting freedom of movement: Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; 146 ALR 126; • restricting right to assemble: Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174 at 206; • challenging detention in custody: Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 128–9; 144 ALR 42 at 59; • limiting re-entry of citizen to Australia: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 305; • expanding the liability for deportation: Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364; 103 ALR 307; • removing right of refusal of blood test: O’Brien v  Gillies (1990) 69 NTR 1; • stopping going about lawful business (random breath testing): R v Kola [2002] SASC 203; (2002) 83 SASR 477; • limiting the bringing of an action for mental injury: Gifford v  Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269; 198 ALR 100; • requiring making of statutory declaration: Amalgamated Television Services Pty Ltd v  Australian Broadcasting Tribunal (1989) 88 ALR 287 at 304; • restricting freedom of speech/expression: Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 52; 32 ALR 485 at 492–3; Brown v Classification Review Board (1998) 82 FCR 225 at 234; 154 ALR 67 at 76; Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; 248 ALR 169 at [27]–[28]; Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576; 250 257

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ALR 33 at [78]; Rinehart v Welker [2011] NSWCA 403 at [26]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; 293 ALR 384 at [48]–[51]; Attorney-General (SA) v  Corporation of the City of Adelaide [2013] HCA 3; (2013) 295 ALR 197 at [42]–[46]. Regard should also be had to the freedom of political communication implied in the Constitution: see  Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; 145 ALR 96; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; 209 ALR 182; Unions New South Wales v New South Wales [2013] HCA 58; (2013) 252 CLR 530; 304 ALR 266; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178; 325 ALR 15; Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328; 349 ALR 398; Clubb v Edwards [2019] HCA 11; (2019) 93 ALJR 448; • interfering with equality of religion: see 5.23. Criminal offences and rights at trial • removing requirement of intent to commit a criminal offence (mens rea): 9.28; • extending scope of penal statute: Chapter 9; • determining whether or not a person has committed a criminal offence is vested in courts exercising criminal jurisdiction, and not persons or bodies exercising executive power: Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22; (2014) 218 FCR 461; 307 ALR 1 at [114]; • limiting trial by jury: Tassell v Hayes [1987] HCA 21; (1987) 163 CLR 34; 71 ALR 480; • permitting Crown to appeal from acquittal or sentence: 5.42; • finality in imposition of penalty: Achurch v R [2014] HCA 10; (2014) 253 CLR 141; 306 ALR 566 at [36]; • removing mistaken belief as defence to criminal charge: CTM v  R [2008] HCA 25; (2008) 236 CLR 440; 247 ALR 1; • using information obtained by means of telephone interception: Taciak v  Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297; 131 ALR 319 at 330; • permitting administration of interrogatories in criminal proceedings: New South Wales  Food Authority v  Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456; 253 ALR 133; • requiring self-incrimination: 5.37; • requiring production of documents: AB Pty Ltd v  Australian Crime Commission [2009] FCA 119; (2009) 175 FCR 296; 107 ALD 591

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at [19]; The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; (2014) 341 ALR 340; • permitting disclosure of information compulsorily acquired: Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; 116 ALR 567; Apache Northwest Pty Ltd v  Agostini [2009] FCA 534; (2009) 177 FCR 449; 256 ALR 56. Courts and procedure • restricting right to continue action once commenced: Di Carlo v Kashani-Malaki [2012] QCA 320; [2013] 2 Qd R 17 at [26]; • removing legal professional privilege: 5.41; • denying legal representation: 5.47; • denying natural justice/procedural fairness: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; 242 ALR 191; Commissioner of Police New South Wales  v  Gray [2009] NSWCA 49; (2009) 74 NSWLR 1; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 84 ALJR 507; 267 ALR 204 at [58]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616 at [97]; • making findings affecting personal reputation: Balog v  Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 635–6; 93 ALR 469 at 475–6; • denying hearing before dismissal from office: Gladstone v  Armstrong [1908] VLR 454; Barratt v  Howard [2000] FCA 190; (2000) 96 FCR 428; 170 ALR 529 at [49]. Business rights • limiting ability to carry on one’s own business or trade: Commonwealth v Progress Advertising and Press Agency Co Pty Ltd [1910] HCA 28; (1910) 10 CLR 457; Committee of Direction of Fruit Marketing v Collins [1925] HCA 25; (1925) 36 CLR 410; Ruckschloss v  Simmons [2014] ACTSC 340; (2014) 292 FLR 155 at [107]–[115]; • interfering with preparation of goods for sale and selling them: Mudginberri Station Pty Ltd v  Langhorne (1985) 7 FCR 482 at 490; 68 ALR 613 at 621; • preventing acting by means of an agent: Christie v Permewan, Wright & Co Ltd [1904] HCA 35; (1904) 1 CLR 693; McRae v Coulton (1986) 7 NSWLR 644; • restricting right to enter into a legal contract: Hayes v  Cable [1962] SR (NSW) 1; (1961) 78 WN (NSW) 735; Lionsgate Australia Pty Ltd v Macquarie Private Portfolio Management Ltd [2007] NSWSC 318; (2007) 210 FLR 106; 240 ALR 385 at [25]. 259

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Property rights • excluding others from entry onto premises and other tortious conduct: Coco v R [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415; Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1; 246 ALR 260 at [37]; Simon v Condran [2013] NSWCA 388 at [44]; • permitting search for and seizure of property: Crowley v Murphy (1981) 52 FLR 123 at 141; Re Bayliss; Ex Parte Hadotone Pty Ltd v Official Trustee in Bankruptcy (1987) 15 FCR 91 at 95; 75 ALR 57 at 65; George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110–111; 93 ALR 483 at 487; • interfering with vested property rights: 5.26; • alienating property without compensation: 5.25; • extinguishing native title: Wik Peoples v  Queensland [1996] HCA 40; (1996) 187 CLR 1 at 247; 141 ALR 129 at 282–3; Northern Territory v Griffiths [2019] HCA 7; (2019) 364 ALR 208; • restricting fishing in tidal waters: Northern Territory v  Arnhem Land Aboriginal Land Trust [2008] HCA 29; (2008) 236 CLR 24; 248 ALR 195; • limiting power to dispose of an interest in a lease: American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677; 37 ALR 613; • preventing subleasing of land: Re Shearer (1891) 12 LR (NSW) 24; • removing minority shareholders’ property rights and causes of action: City of Swan v Lehman Bros Australia Ltd [2009] FCAFC 130; (2009) 179 FCR 243; 260 ALR 199 at [74]–[77]; • restricting rights to ground water: Rashleigh v  Environment Protection Authority [2005] ACTSC 18; (2005) 155 ACTR 16. Miscellaneous • preventing navigation of a navigable river: Fergusson v Union Steamship Co of New Zealand Ltd (1884) 10 VLR (L) 279.

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CHAPTER 6

Interpretation Acts and Sections INTRODUCTION 6.1  In an endeavour to reduce the size of legislation by avoiding the

repetition of common provisions, all jurisdictions in Australia have Acts1 that contain provisions relating to such matters as dates of commencement of Acts, the effect of the repeal of an Act, definitions of commonly used expressions and so on. A drafter of legislation will assume a knowledge of the relevant Interpretation Act on the part of a reader and will prepare legislation accordingly. It is essential for a reader of legislation to be familiar with the Act relevant to the jurisdiction in which the legislation is to operate. The Interpretation Act of each Australian jurisdiction and its judicial consideration is described in detail in Interpretation Acts. These Acts are now only considered in this book where they relate to specific topics. Interpretation Acts should be consulted for the broad range of matters dealt with in those Acts. On a lesser scale, a drafter of a particular Act will usually include in that Act a section which sets out definitions of particular words that are used frequently in the Act. A practice that is increasingly being followed is to include such definitions in the legislation under the heading ‘Dictionary’. Again, the object is to avoid verbosity and repetition. Users must familiarise themselves with any particular definitions included in the legislation under consideration. Contrary Intention 6.2  When considering the effect of Interpretation Acts and the content of

individual definitions included in legislation it is necessary to bear in mind that such Acts and definitions apply ‘unless the contrary intention appears’. The effect of this expression is discussed in Interpretation Acts, 1.19–1.35. In relation to definitions see 6.12–6.13. 1. Acts Interpretation Act  1901 (Cth); Legislation Act  2001 (ACT); Interpretation Act 1987 (NSW); Interpretation Act (NT); Acts Interpretation Act 1954 (Qld); Acts Interpretation Act 1915 (SA); Acts Interpretation Act 1931 (Tas); Interpretation of Legislation Act 1984 (Vic); Interpretation Act 1984 (WA). 261

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INTERPRETATION SECTIONS

Interpretation of Definitions 6.3 In Kelly v R [2004] HCA 12; (2004) 218 CLR 216; 205 ALR 274 at [103] McHugh J said:

… [T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

McHugh J repeated these views in Allianz Australia Insurance Ltd v  GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; 215 ALR 385 at [12]. For some of the many cases that have cited the passages from these two cases see the Annexure. For further comment on the issue that definition sections should not be treated as substantive provisions, see 6.14. These comments of McHugh J accord with the practice often followed by drafters of reading the words of a proposed definition into the text containing the defined term to test its viability and value. If the definition does not fit comfortably into the text, then it is not adequate. This may, however, be a counsel of drafting nicety. What McHugh J’s statement does bring out is that the definition must be taken into account even if it cannot be fitted into the text wherever the defined expression is used. However, ‘if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise’: Commissioner of Police v Kennedy [2007] NSWCA 328 at [44]. In contrast, if a definition purports to define an expression exhaustively and has been used in that sense throughout the legislation, it is not appropriate to read the expression as if it has both its defined and its ordinary meaning: Parmar v  Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186; 122 ALD 103 at [18]. The definition of a term in legislation may, of course, be displaced expressly or by implication: Council of Law Society of New South Wales v Bouzanis [2017] NSWCA 330 at [45]–[46]. In Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [17] Basten JA noted a qualification on the final part of the dicta from McHugh J quoted above in that: … the ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether it should be excluded 262

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by implication. For that purpose, one is likely to require some understanding of the meaning of the definition itself. A degree of flexibility of approach may be required.

General Issues 6.4  Some other general issues relating to definitions and their interpretation

should be mentioned. Definitions are not limited to the standard form of ‘X’ means A, B and C. They may also be drafted in the form of a substantive provision that describes the way in which a particular reference in an Act is to be understood. Such a provision is to be treated in the same way as the traditional definition. For example, in Phonographic Performance Company of Australia Ltd v  Federation of Australian Commercial Television Stations [1998] HCA 39; (1998) 195 CLR 158; 154 ALR 211 at [44] a section that read ‘For the purposes of this Act, sounds embodied in a sound-track associated with visual images forming part of a cinematograph film shall be deemed not to be a sound recording’ was read as a definition. For further examples see R v Zuber [2010] ACTSC 107; (2010) 175 ACTR 1 at [29]–[32]; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 at [26], [62]. However, it must be clear that a provision drafted other than as a definition is not intended to have a substantive function if the approach to the interpretation of definitions is to be followed: Franks v  Secretary, Department of Family and Community Services [2002] FCAFC 436; (2002) 125 FCR 212; 72 ALD 418 at [21]; Vickers v Queensland Building and Construction Commission [2019] QCA 66 at [78]–[80]. Definitions apply unless the contrary intention appears: see 6.12–6.13. Definitions are not to be read down unless the context clearly demands it. Brennan CJ, Gaudron and McHugh JJ said in PMT Partners Pty Ltd v National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 310: It is of fundamental importance that statutory definitions are construed according to their natural and ordinary meaning unless some other course is clearly required. It is also of fundamental importance that limitations and qualifications are not read into a statutory definition unless clearly required by its terms or its context, as for example if it is necessary to give effect to the evident purpose of the Act.

This statement was cited in Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1; 318 ALR 391 at [61]–[62], [77]. Where a definition incorporates another provision by reference, the repeal of that other provision does not take away the effect of the definition: see 7.32 but see also 7.38. In a case where a definition from other legislation is incorporated in legislation, French CJ and Hayne J said in Certain Lloyd’s Underwriters subscribing 263

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to Contract No IH00AAQS v  Cross [2012] HCA 56; (2012) 248 CLR 378; 293 ALR 412 at [31]: It may be accepted that there are some limitations to the use that can properly be made of other provisions of the source Act when construing a definition in the source Act that is picked up and applied by another Act. … if the definition that is picked up is to be applied in the source Act only ‘unless the context or subject-matter otherwise indicates or requires’, the particular meaning that the term in question may have in any particular provision of the source Act will not elucidate the meaning of the general definition of the term. But it by no means follows from this observation that a definition should be construed without regard to its context. That is why the Privy Council in the Producers’ Co-operative Case [Producers’ Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523] treated the activities which the source Act in question permitted as explaining ‘the general meaning and application of the definition’ in question.

See also New South Wales v Williamson [2012] HCA 57; (2012) 248 CLR 417; 293 ALR 440 at [26]. On the use of definitions in other legislation as an aid to the interpretation of a definition, see 3.44. Where legislation includes a term that is defined in the Interpretation Act of the relevant jurisdiction, the meaning of the definition in the Interpretation Act draws its content from the context of the legislation into which it is to be read: Commissioner of State Revenue v Westnet Rail Holdings No 1 Pty Ltd [2013] WASCA 110; (2013) 45 WAR 140 at [102]. The dictionary or ordinary meaning of a defined term is notionally displaced by the act of defining the term: Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79; (2013) 38 VR 684 at [61]. However, the dictionary meaning is likely to have some impact on a court’s view of the meaning of the term: it will probably be the starting point of a consideration of the term, if for no more reason than to ascertain to what extent the definition departs from the ordinary meaning: cf Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; (2004) 61 NSWLR 394 at [8]; Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152 at [17]; Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1; 141 ALD 506 at [46]. However, it has been said that ‘[i]t would be quite circular to construe the words of a definition by reference to the term defined’: Ship, ‘Shin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 419; 125 ALR 1 at 9 citing Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503. The term defined in the Shin Kobe Maru case with which the High Court had to grapple was ‘proprietary maritime claim’. The court held that the meaning of the word ‘proprietary’ viewed on its own could not be used as an interpretative aid in construing the definition. This approach was followed with extreme reluctance by a Full Court of the Federal Court in Esso Australia Resources Pty Ltd v Commissioner of Taxation [2011] FCAFC 154; 264

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(2011) 199 FCR 226: see the critical commentary at [100]–[107]. It felt obliged to disregard the discrete meaning of the word ‘marketable’ in putting meaning on the defined expression ‘marketable petroleum product’. However, the approach was reiterated by the High Court in Cunneen’s case, above, at [33]. The High Court’s ruling seems to determine the issue. However, as context has become the touchstone of interpretation, the Federal Court’s approach whereby the meaning of the words making up the composite defined term can be looked to individually for assistance in ascertaining the meaning of the whole carries weight. The approach postulated in the Shin Kobe Maru case has also been questioned in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [20]–[21] with reference being made to contract cases where the approach has not been followed. However, see  more recently SZTVU v  Minister for Home Affairs [2019] FCAFC 30 at [66]–[71] which appears to apply the approach in the Shin Kobe Maru case. For a discussion of the meaning of derivatives of statutory definitions see Interpretation Acts, 3.20–3.25. Use of Expressions ‘Means’ and ‘Includes’ General approach 6.5  It is usual to find one or other of these expressions where a word or

phrase is being defined in legislation. The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that ‘means’ is used if the definition is intended to be exhaustive while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word. For some examples of this frequently stated approach see the cases in the Annexure. So, for example, if it were provided in an Act that ‘“bicycle” means a bicycle propelled by a motor’, pedal bicycles would be excluded from the scope of the expression ‘bicycle’ for the purpose of that Act. On the other hand, the Concise Oxford Dictionary defines ‘aeroplane’ as a ‘mechanically driven heavier-than-air flying machine’. If it were wanted to bring gliders within the scope of controls to be exercised over aeroplanes it would be necessary to adopt the form of definition ‘“aeroplane” includes a glider’. Here the reference to ‘aeroplane’ would encompass machines that normally fell within the word and would extend also to gliders which would not otherwise be covered. Unfortunately, this neat distinction has not always been adhered to by either drafters or judges. Particular confusion has arisen where the word ‘includes’ has been used in a definition and then one or more items that would usually fall within the accepted meaning of the word have been specified together with some items that would not. The problem that then arises is whether the definition, notwithstanding the use of the word ‘includes’, is intended to be exhaustive. From the drafter’s point of view this practice can be defended simply on the basis that it is not always clear precisely what items will be regarded as falling within the scope of a word. Hence caution advises that 265

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doubtful items should be listed among those ‘included’ lest they be regarded as not covered by the word defined. But if some items that would normally fall within the scope of the defined word are included, is another item that would also normally be covered by the term defined, but which is not mentioned, to be treated as not falling within the definition? In short, is the definition intended to be exhaustive? Two cases illustrate this problem. In YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395, the question was whether a promissory note fell within the definition of ‘security’ in the Moneylenders and Infants Loans Act 1941 (NSW). If ‘security’ were to be given its ordinary meaning, it would have included a promissory note. But s 24 of the Act provided ‘“security” includes bill of sale, mortgage, lien and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan’. All the members of the High Court agreed that each of these matters would have fallen within the ordinary meaning of the word ‘security’. Did this then mean that the list of matters was intended to be exhaustive notwithstanding the use of the word ‘includes’? The majority of the court (McTiernan, Kitto, Taylor and Windeyer JJ) thought that it did. Menzies J disagreed. In reaching their decision, the majority considered the whole Act and also took into account the fact that, in their view, the drafter had used ‘means’ and ‘includes’ somewhat inconsistently when drafting other definitions. Menzies J traversed the same course in reaching his contrary opinion. In R v McN [1963] SR (NSW) 186 the New South Wales Court of Criminal Appeal had to consider whether illegally using a double-decker motor omnibus constituted the offence of illegally using a ‘vehicle’. The Crimes Act 1900 (NSW) provided ‘“vehicle” includes any cart, waggon, cab, carriage, aeroplane or other aircraft, motor car, caravan trailer, motor lorry, motor or other bicycle’. Herron CJ and Manning J concluded that the definition was not exhaustive and that, as a motor omnibus fell within the ordinary meaning of ‘vehicle’, the offence had been committed. Brereton J considered that the definition was exhaustive but that the charge could be sustained as a motor car included a motor omnibus. Drafting problems if ‘includes’ definition interpreted as exhaustive 6.6  In the YZ Finance Co case all the items listed fell within the ordinary

meaning of ‘security’. It was not difficult, therefore, to think in terms of the list as being exhaustive. Nevertheless it was not an exhaustive list of the things that could be described as a ‘security’. Menzies J pointed out that, if the list was to be regarded as exhaustive, the court was, in effect, substituting the word ‘means’ for ‘includes’. In R v  McN the list of ‘vehicles’ included items that would not normally fall within the meaning of that word, but it did include a very large number of things that were obviously ‘vehicles’. The drafter, in defining words, is left in something of a dilemma by decisions of this kind. If items are included about which some doubt is felt 266

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whether they are covered by the ordinary meaning of the word, the court may hold that the mention of these matters has made the definition exhaustive. On the other hand, if the items are not mentioned, the court may take the view that the ordinary meaning of the word does not cover them. A further problem that a drafter encounters is that Acts are not read by lawyers alone. Other people may not understand the subtle distinction drawn between definitions using ‘means’ and those using ‘includes’. So a definition of ‘medical treatment’ that was cast in the form ‘“medical treatment” includes treatment by a registered dentist, a registered physiotherapist or a masseur’ might well be criticised for not containing a reference to treatment by a medical practitioner, the commonest form of ‘medical treatment’. Yet put these words in and the definition may be converted into an exhaustive definition. This, at any rate, was the experience of the drafter of the definition of ‘medical treatment’ in the Workers’ Compensation Act 1926 (NSW). In Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242, the Full Court of the Supreme Court of New South Wales held that treatment by a chiropractor was not covered by a definition of medical treatment that defined medical treatment as including treatment by a registered medical practitioner, a registered dentist, a registered physiotherapist or a masseur. The definition was exhaustive. The court agreed that the words ‘means’ and ‘includes’ had been used with some precision by the drafter in other definitions to indicate whether or not the definition was exhaustive. Nevertheless it considered that, having regard to the history of the definition and its use in the Act, ‘medical treatment’ could not be extended to matters not mentioned in the definition. The Workers’ Compensation Act was very soon thereafter amended to add treatment by a chiropractor to the matters referred to in the definition of medical treatment: Workers’ Compensation (Amendment) Act 1964 (NSW) s 3. Perhaps it can be assumed from this that ‘the intention of the legislature’ was that the definition was not to be regarded as exhaustive. And this would indeed be reasonable. If a type of treatment could be fairly described as ‘medical treatment’, should not a worker be compensated for costs incurred in undergoing it? Notwithstanding this argument, Lamont’s case has been followed in later decisions: see Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; G C Wood & Son (Australia) Pty Ltd v Cullen [1991] 2 VR 214 at 224. The number of types of treatment specifically mentioned seems to have persuaded the courts that the list was meant to be exhaustive. This is curious reasoning as the items are listed because there is a doubt whether they would otherwise be covered. ‘Test’ in Dilworth’s case 6.7  Much of the uncertainty surrounding definitions that use the word

‘includes’ stems from a statement of the Privy Council in Dilworth v Stamps Commissioner [1899] AC 99 at 106. After referring to the general principle that 267

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the word ‘include’ is used in definitions to extend the meaning of a word or phrase beyond its usually accepted meaning, the Board continued: But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expression defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.

This passage is almost invariably cited in cases dealing with ‘include’ type definitions. It is, however, one of those blithe statements that are so often made in relation to the interpretation of statutes but which achieve very little in the way of practical assistance. It will always be the task of the judge to determine whether ‘the context is sufficient to shew that [‘includes’] was not merely employed for the purpose of adding to the natural significance of the words or expressions defined’. No guidance is given as to how to go about this task. But the defect in the statement is that it suggests that this construction is one that can be readily used: see  its application in Glenister v Dillon [1976] VR 550 at 557. This, it is submitted, should not be the case. If the courts would adopt the practice of interpreting definitions that use the word ‘includes’ as non-exclusive (except perhaps in the most exceptional circumstances), drafters would know that they could structure their definitions in this pattern to achieve the result they desire: see  R v  Scott & Downland Publications Ltd [1972] VR 663. This may be going too far for those who embrace the philosophy underlying Dilworth’s case that the courts know best what the legislature meant. But at least the difficulties created by the approach evidenced in the YZ Finance Co case and Lamont v  Commissioner for Railways (see 6.5–6.6) ought to be abandoned. Merely because a definition is expressed to ‘include’ one or more items that would fall within the ordinary meaning of the word does not mean that it is intended to be an exhaustive definition. For examples see the cases in the Annexure. In summary, to quote from Lord Selborne LC in Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 at 801: An interpretation clause of this kind [ie, one which uses the word ‘includes’] is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.

See  also Barwick CJ in Favelle Mort Ltd v  Murray [1976] HCA 13; (1976) 133 CLR 580 at 589; 8 ALR 649 at 656. The caution suggested above in the application of the Dilworth test was endorsed by Basten JA in Cranbrook School v  Woollahra Municipal Council 268

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[2006] NSWCA 155; (2006) 66 NSWLR 379 at [89] but see also McColl JA at [41]–[45] for a much quoted more orthodox statement of the position. Some guides to effect of ‘includes’ 6.8  Some guidance can be obtained from the cases as to when it should

usually be taken that a definition that uses the word ‘includes’ is not intended to be exhaustive. In Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351; 62 ALR 17 the fact that matters could be identified additional to those listed in the definition and falling within the word defined was taken to indicate that it was not an exhaustive definition. See particularly at 364; 27 per Gibbs CJ, with whom the other members of the court agreed on this point. If the matters listed are seen as being illustrative only of the word defined, they should again not be taken as covering its field of operation: Buckle v  Josephs (1983) 9 A Crim R 336 at 341; 47 ALR 787 at 792; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181 at [26], [62] (where the intention not to limit the general operation of the expression used was affirmed by the inclusion of the words ‘without limiting’ the subsection). The inclusive form may be used to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases: Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201 at 206–7; 61 ALR 236 at 239. In determining whether a definition is intended to be exhaustive, it is also appropriate to examine the care which the drafter has shown in structuring the definitions used. If ‘means’ and ‘includes’ are used in other definitions to indicate whether or not it is to be exhaustive, a court should be slow to depart from the pattern thus established: Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508 at 510; 24 ALR 658 at 660; Brambles Australia Ltd v Commissioner of Taxes (NT) (1993) 92 NTR 1 at 10. Specific definitions may take colour from other words used in an Act. So even though ‘includes’ is used, the scope of the inclusion may be affected by reference in another provision to a wider range of matters. This indicates that the specific definition may not be intended to have the full range of meaning that the use of ‘includes’ would normally produce: R v Smith [2008] QCA 406; [2009] 1 Qd R 239. It is inherent in the approach that the use of ‘includes’ is intended to be expansionary that the word defined has an ordinary meaning. In its pristine form, ‘includes’ is used to make it clear that the word is not limited to that ordinary meaning. If, therefore, the word defined to include something has no ordinary meaning but is a term used only in the legislation in which it appears, to say that it ‘includes’ various matters is only another way of giving meaning to the term. It cannot have some meaning independently of the meaning that it is given by the legislation. The use of ‘includes’ in this context does mean that the definition is to be exhaustive: SZGIZ v  Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; 299 ALR 246 at [69]–[72] (‘application for a protection visa’). 269

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Notwithstanding the problems to which interpreting ‘includes’ as exhaustive can lead, it is recognised that there may be occasions when the narrow meaning has to be adopted. Such an instance is where to allow the operation of the defined expression to be unlimited would lead to invalidity of the definition: see Riordan v Australian Sports Drug Agency [2002] FCA 858; (2002) 120 FCR 424; 69 ALD 344 where there was power to ‘specify’ certain things and it was considered that the adoption of the inclusive format had to be read as exclusive because otherwise there would be a failure to specify the things. It has been said to be wrong to draw too heavily on the exclusory form ‘does not include’ to ascertain what is intended to be included within the scope of a definition: Corporate Affairs Commission case, above, at 242; Neumann Dredging Co Ltd v Collector of Customs (1987) 79 ALR 588 at 589. However, the words must be given effect and if matters that would otherwise fall within the definition by dint of the use of ‘includes’ are said not to be included, the inclusive form cannot override the exclusion: Re BHP Billiton Petroleum Pty Ltd and Chief Executive Officer of Customs [2002] AATA 705; (2002) 69 ALD 453 at [52]. Reference should also be made to 4.58 where it is pointed out that the word ‘deemed’ may also be used in a way that extends the meaning of an expression. ‘Means and includes’ to be avoided 6.9  Finally on this question the composite phrase ‘means and includes’

ought to be eschewed by drafters and interpreters of legislation alike. The expressions are incompatible with one another — one limits and the other extends. Persons who say ‘means and includes’ invariably use the expression to limit the meaning of the word defined: see Dilworth’s case at 6.7; Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1 at 21; 94 ALR 81 at 100–1 per Gummow J. Accordingly, ‘means’ is sufficient. This is not to say that ‘means’ and ‘includes’ cannot be used together. To say that ‘X’ means ABC and ‘includes’ DEF is an acceptable format as it indicates that X has a limited meaning but that to avoid doubt certain matters are to be taken to fall within the scope of that designated meaning: BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145; 249 ALR 418 at [32]; International Litigation Partners Pte Ltd v Chameleon Mining NL [2012] HCA 45; (2012) 246 CLR 455; 292 ALR 233 at [26]. For further examples of the interpretation of a provision in this form see  the cases referred to in the Annexure. Other Definitional Forms 6.10  Other language may be used in legislation to indicate that words have a particular scope. Such language is to be treated in the same way as traditional definitions. So if a particular characteristic or qualification is said to exist only if certain matters are established, that will in effect constitute a definition of the characteristic or qualification. In Haneef v  Minister for Immigration 270

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and Citizenship [2007] FCA 1273; (2007) 161 FCR 40; 242 ALR 290 at [71] a provision that a person does not pass the character test if the person has engaged in certain specified conduct was held to be an exhaustive list of the disqualifying characteristics. A like approach would seem to apply where a provision sets out factors that a decision-maker is to take into account when reaching a decision. The question will be whether the list is intended to be exclusive or leaves it open for the decision-maker, while having regard to the specified factors, to take into account other relevant matters. The approach adopted by the courts in the interpretation of definitions will aid in the interpretation of such provisions. Other words may also have a like effect to either ‘means’ or ‘includes’. So in Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [33] a reference to vegetation that ‘comprises’ 50 per cent native plants was interpreted to mean ‘includes’ rather than ‘consists of ’ as it was only by so doing that the purpose of the legislation could be given effect. See also 6.4. Derivatives of Definitions 6.11  An issue that arises when a word is defined is whether the definition also embraces derivatives of the defined term such as other parts of speech or associated words. This issue is dealt with in Interpretation Acts, 3.20–3.25.

Definitions to Apply ‘Unless the Contrary Intention Appears’ 6.12  ‘There is a presumption that defined words in a statute have their defined meanings which is not to be displaced without good reason’: per Handley AJ in Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38]. However, all definitions of the meaning of words or phrases used in legislation are to be read either expressly or impliedly as subject to the qualification ‘unless the contrary intention appears’: Hall v Jones (1942) 42 SR (NSW) 203 (see  further 2.43); Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Betella v O’Leary [2001] WASCA 266 at [13]; Tjungarrayi v Western Australia [2019] HCA 12 at [89].

Holroyd J in Re Application of Fourth South Melbourne Building Society (1883) 9 VLR (E) 54 at 58 said: ‘Interpretation clauses must be themselves interpreted reasonably, to promote, and not to defeat, the purposes of the Act which they are intended to elucidate.’ In some jurisdictions the Interpretation Act makes it clear that a contrary intention overrides a defined term. In Queensland s  32A of the Acts Interpretation Act 1954 provides: Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.2

2. See likewise NT s 18. 271

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In Conde v Gilfoyle [2010] QCA 109 at [20] the Queensland Court of Appeal commented on this provision. It noted: Regard is to be had, not simply to the context, but also to the subject matter of the provision in which the defined term occurs. Moreover, the application of the definition may be affected not only because the context otherwise requires; it may be affected because the context (or subject matter) otherwise indicates. These features evince an intention by the legislature that a more flexible approach be taken to the application of a statutory definition, when interpreting Queensland legislation, than would be required under some other interpretation provisions.

See  also Vickers v  Queensland Building and Construction Commission [2019] QCA 66 at [80]. However, too ready an acceptance of a contrary intention only serves to make the job of drafter, and therefore interpreter, more difficult. The onus of showing a contrary intention is on the party asserting it: Graovac v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 709 at 714; Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95; (2013) 214 FCR 40; 303 ALR 406 at [92]. A useful examination of the approach to be adopted when considering whether there has been an intention to use a term in other than its defined sense is provided by Duperouzel v Cameron [1973] WAR 181. There Burt J pointed out that it was wrong to search assiduously through an Act to find if in one place a word had been used other than as defined and from that discovery assert that the word could be regarded as being used other than in its defined sense wherever it appeared. In short, that one ‘contrary intention’ should not mean that the term was tainted for all time. Forster J put it succinctly in Simpson v  Nominal Defendant (1976) 13 ALR 218 at 224: ‘Apparent bad legislative drafting can hardly provide a basis for finding [a contrary intention].’ It is suggested that the proper approach is to assume that the expression is used as defined and then ask whether, in the particular context in which it appears, a contrary intention can be shown. This inquiry is not affected one way or the other by the term being used other than as defined in another place in the Act. If the definition is to be departed from, it is only to be for the purposes of the particular provision under consideration. This statement was accepted by Austin J in Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839; (2005) 54 ACSR 767 at [30]. Regard should also be had to the observation of Porter J in Break O’Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59; (2009) 19 Tas R 94 at [36] that: … even where the words of a definition do not fit comfortably into a reading of the text it is not to say, assuming a definition applies, that it should be ignored in the exercise of construing the meaning of that text. The purpose of a definition is to aid the construction process.

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6.13  A discussion that is frequently referred to when considering whether a definition is not to be followed is that of Mahoney JA in Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108; 79 ALR 509 at 512. After noting that there is no simple formula for determining what is a ‘contrary intention’, his Honour referred to some circumstances in which displacement of a definition might occur:

• where the definition provides that one thing shall be done and the Act or section in question provides that another shall be done; • where the context of the Act as a whole indicates that the definition is not to apply; • where, if the definition were to be applied, the provisions of or the procedure established by the section in which the defined term is used would not appropriately work; • where the application of the statutory definition would lead to confusion. Mahoney JA concluded that what the court does when it decides whether there is a ‘contrary intention’ is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section. He observed that this intention may be more easily seen ‘where the function of the interpretation section is, by providing a simple verbal formula, to avoid the repetition of a “multiplicity of verbiage”: or where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command’. Mahoney JA emphasised the important point that the context in which defined words are used will dictate their meaning. So it can be that the context in which a defined term is used will indicate that the definition is not intended to apply: see the cases referred to in the Annexure. However, an approach endorsed in Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690 that a contrary intention to a defined term can be spelled out of the fact that the definition does not accord with the ordinary usage of the term must be regarded as highly questionable. The very purpose of defining an expression is to give it a meaning different from that which is its ordinary meaning. Mildren J in Kennedy v Anti-Discrimination Commission of the Northern Territory [2006] NTCA 9; (2006) 226 FLR 34; 92 ALD 134 at [29] picked up the point made by Mahoney JA that a contrary intention will be made out if the application of the definition in a particular section would prevent its operating appropriately. He added that, for this test to be made out, it is not necessary that the provision is impossible of operation. It is sufficient if the application of the definition would result in the operation of the section in a way which clearly the legislature did not intend. See also Re Owen; RiverCity Motorway Pty Ltd v Madden (No 3) [2012] FCA 313; (2012) 201 FCR 360; 288 ALR 190 at [37].

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Definitions Not to be Treated as Substantive Provisions 6.14 In Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118

CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ said: The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense — or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way … Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with ‘dividends’.

See  also Randwick Municipal Council v  Rutledge (1959) 102 CLR 54 at 69; Re Secretary, Department of Social Security and Mathias (1991) 22 ALD 655 at 662; Hurstville City Council v  Hutchison 3G Australia Pty Ltd [2003] NSWCA  179; (2003) 200 ALR 308 at [63]; Vickers v  Queensland Building and Construction Commission [2019] QCA 66 at [22]–[24]. However, see the qualification to this general approach alluded to by Basten JA in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [16]. What is clear is that a definition included in a statute is not applicable to a like provision in another document unless that document clearly embodies the statutory expression: Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437; 329 ALR 179 at [61]. Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb’s case: see Re Carpenter and Comcare [2010] AATA 62; (2010) 116 ALD 190 at [102]. However, cf San v  Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492 at [55] where Campbell JA, with whom Beazley and Ipp JJA agreed, indicated that he was prepared to interpret a definition as having a substantive effect when that gave effect to the policy of the Act and the definition applied to only one section of the Act. Amendment of Definitions 6.15 See 10.17 on the date of effect of an amendment of a definition.

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CHAPTER 7

Interpretation of Repealing Acts, Amending Acts and Acts Incorporating other Legislation REPEALING ACTS

Distinction Between Repealing and Amending Provisions 7.1  There can be circumstances in which it is necessary to determine whether legislation is properly to be described as being either a repealing or an amending provision: see 7.3. This has resulted in some discussion from time to time in the courts as to the manner in which this question is to be determined.

It may be thought that the distinction lies in whether the section uses the word ‘repealed’ on the one hand or the word ‘amended’ or ‘omitted’ on the other. But there is strong authority to suggest that a court is entitled to go behind the words used and endeavour to determine for itself whether the effect of a provision is to repeal or only to amend an existing Act. For many years the accepted authority in Australia on the approach to be adopted to resolve this issue has been the judgment of Jordan CJ in Beaumont v  Yeomans (1934) 34 SR (NSW) 562 at 569. His Honour there said that the question whether an Act has been repealed or amended was a matter of substance and not one of form only. One Act could thus amend another by repealing part of it. On the other hand, an amendment could be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added. Where a provision of an Act was repealed and re-enacted in a form which enlarged its scope, this could amount in substance to an amendment, because the new provision could be regarded as retrospective so far as it was a mere repetition, and prospective so far as it was new. This notion that one can go behind the form and look to the effect of the provision was followed by a majority of the judges of the High Court in Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233. There a subregulation of a regulation which conferred certain powers on the Prices 275

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Commissioner had been omitted and a new subregulation substituted for it that invested the Commissioner with powers identical with those given by the omitted subregulation as well as certain further powers. Rich J (at 243), Starke  J (at 244) and McTiernan J (at 246) held that the provision was an amending provision. Latham CJ (at 240–1), while reaching the same ultimate conclusion as the other judges, considered that the particular provision was a repealing provision. He argued that if a provision was omitted from a Justices Act and inserted in a Police Offences Act in identical terms it would be clear that there had been a repeal of the provision from the Justices Act. He could see no difference where the provision omitted and restated was in the same piece of legislation. In Ku-ring-gai Municipal Council v  Attorney-General (NSW) [1957] HCA  61; (1957) 99 CLR 251 a provision which purported to amend an Act by omitting certain words and substituting others for them was described by the High Court at 265 in the following terms: The form of the amendment is to repeal the words of s 126(2) … Perhaps too much should not be made of the form of the amendment but it happens to bring out the fact that in an amendment of this kind there is an abrogation of an old provision and the introduction of a new one.

The High Court concluded that the change to the legislation attracted the operation of s 8 of the Interpretation Act of 1897 (NSW) despite the fact that that section referred only to the effect of a repeal of a provision, not an amendment. The significance of substance over form in distinguishing between amendments and repeals was reiterated by the High Court in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545; 202 ALR 233 in connection with legislation that required a bill ‘to amend’ the Electoral Distribution Act to be passed by an absolute majority of each House of the Parliament. A bill that said that it repealed the Electoral Distribution Act 1947 was held, in the context of the requirement for an absolute majority, to be a bill that amended the Act. See also Hill v Villawood Sheet Metal Pty Ltd (1970) 72 SR (NSW) 33 where the effect of an enactment rather than the wording used was analysed to ascertain whether it was one which ‘repealed and re-enacted [an Act] without modification’ such as to bring the new enactment within the operation of a transitional provision. Amendment and repeal of a provision of an Act may be achieved indirectly. The usual form of drafting in Australia is that which is referred to as textual amendment: see 1.50. However, it is possible to effect a change to an Act by legislation that does not alter the text. Where a later Act changes the way in which an existing Act is to operate, that later Act may be considered to be a repealing Act if the existing Act has no further operation or an amending Act if the Act continues in force but in a different way. If an issue arises as to the validity of the later Act, this will be determined by the validity of the existing 276

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Act having regard to the way in which it is affected by the later Act: Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 152 ALR 540. An Act that repeals and re-enacts a section to make its meaning clearer should not be regarded as a repealing Act: Coulton v Holcombe (1990) 20 NSWLR 138. The inclusion in the Interpretation Acts of some jurisdictions1 of definitions of ‘amend’ and ‘repeal’ will probably have little effect on the court’s approach to the distinction between the two concepts. The issue will still depend upon the effect of the legislation affecting the earlier legislation: cf Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1; 202 ALR 428 at [36]–[44]. Classification of Provision that Limits Section Amended 7.2  The appropriate description of a provision that purported to ‘amend’ an Act but which had the effect of limiting the existing scope of the Act so amended was discussed in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 and differing views were expressed by Gibbs and Windeyer JJ. The facts of the case were that a section of the Landlord and Tenant (Amendment) Act 1948 (NSW) had been ‘amended’ by the addition of certain words which had the effect of limiting the persons who were entitled to claim the protection of the Act. Barwick CJ, McTiernan, Menzies and Gibbs JJ held that the effect of adding the words to the section did not constitute a repeal of the section. Windeyer J held that the amendment constituted a repeal (but agreed with the other judges as to the ultimate result). Of the first-mentioned judges, only Gibbs J went into the question of what is and what is not a repealing provision at any length. After referring to the statement of Jordan CJ in Beaumont v  Yeomans (see  7.1) and the cases following it mentioned in that paragraph, he continued (at 21):

Whether or not the judgment of Jordan CJ requires qualification in other respects, it was correct in suggesting that the addition of words to a section is an amendment rather than a repeal. In my opinion, where a later statute provides for the addition of particular words to an earlier section, which otherwise remains unaffected, the earlier section is thereby amended but cannot be said to have been repealed …

Windeyer J, on the other hand, took the point made by Jordan CJ that one must look to the effect of the provision. He said (at 10): … an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming 1. ACT s 82; NSW s 21; Qld s 36; SA s 24; Vic s 3; WA s 5; and see Interpretation Acts, Chapter 2. 277

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to an end. An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say ‘in part’. Provisions of a later Act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them.

In this particular case, the line pursued by Windeyer J was that, although words were added to the section, their effect was to limit rights that previously existed under the section and therefore the effect of the amendment was to repeal the section amended as its total operation was considerably limited. It seems probable that, in determining whether a provision limiting existing rights should be regarded as ‘amending’ or ‘repealing’, the courts will continue to follow the approach in Beaumont v Yeomans (see 7.1) of looking to the substance of the provision rather than its form. That substance is, as always, to be ascertained by having regard to the context of the provision: Macquarie Media Holdings Ltd v  Australian Communications and Media Authority [2009] FCAFC 1; (2009) 173 FCR 582 at [58]. Effect of Classifying Provision as ‘Repealing’ or ‘Amending’ 7.3  It is unnecessary to make too much of the problem of classification of

an Act or a provision as either repealing or amending earlier legislation. The provisions of the Interpretation Acts of the various jurisdictions discussed in Interpretation Acts, Chapter 2 usually make the outcome of a particular case the same: see, for example, Mathieson v Burton (see 7.2); Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139; 42 ALR  29, particularly at 152; 39. However, the classification can be of significance to ascertain whether reliance should be placed upon the presumption against retrospectivity (see Chapter 10) or whether the Interpretation Act provision should be invoked: see, for example, Ellis v Minister for Lands (1985) 37 NTR 29. In Lewis v French [1962] Tas SR 138 a change in an Act was said to be an amendment despite the use of the word ‘repealed’ in the amending Act. As a result, s  16(1) of the Tasmanian Acts Interpretation Act  1931, which fixed the ‘rights’ of a defendant in terms of the repealed provision, was held not applicable. Gibson J said that he was following Jordan CJ in Beaumont v Yeomans in looking to the substance and not to the form of the change to the Act. He considered that what had been done was in substance an amendment and not a repeal and, accordingly, the Interpretation Act provision did not apply. However, Zeeman J in Worsley v  Crawford (1994) 4 Tas R 78 at 85 said this conclusion was wrong. The intention of the Interpretation Act provision was to preserve the rights of persons whatever the language used in the legislation effecting a change. (See further 9.24 on the facts of the cases.) A power to delete an item from a list was held to have been properly exercised by its deletion and then remaking with a more limited coverage. It was said that, looked at as a matter of substance, what the minister did was to adopt a legislative drafting approach under which he removed the entirety 278

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of a particular specimen from the list and immediately thereafter replaced it with a smaller category of that specimen. This amounted to a deletion of part of the item rather than the inclusion of a new one thereby avoiding an obligation to obtain a report which was required before a new item could be included in the list: Parker v  Minister for Sustainability, Environment, Water, Population and Communities [2012] FCAFC 94; (2012) 205 FCR 415 at [42]. Invalidity of Repealing Legislation 7.4  The classification issue may also have some significance in relation to invalid repealing legislation. However, the major issue there arises where one piece of legislation repeals earlier provisions and substitutes new. If the new provisions should be invalid, does this mean that the repeal still takes effect and there is no legislation on the topic? In Silk Bros Pty Ltd v State Electricity Commission (Vic) [1943] HCA 2; (1943) 67 CLR 1, Latham CJ (with whom Rich and McTiernan JJ concurred) seemed to consider that this was possible. The opinion was not necessary to the resolution of the case. However, similar views in the constitutional context were expressed by Stephen J (Mason J agreeing) in Attorney-General (Vic) (ex rel McKellar) v  Commonwealth [1977] HCA 1; (1977) 139 CLR 527; 12 ALR 129 at 155. This was in the context of drawing a distinction between a repeal and an amendment. If a provision after amendment were invalid, it could be treated as if it had not been amended and the legislation in its previous form could continue in force. This view had been previously stated by the High Court in Federal Commissioner of Taxation v  Clyne [1958] HCA 10; (1958) 100 CLR 246. The issues involved in these cases are discussed by D Rose, ‘Constitutional Invalidity and Amendments to Acts’ (1979) 10 FL Rev 93.

The distinction being drawn between amending and repealing provisions in this context seems unfortunate. Even allowing for the fact that the courts will go behind the terminology used and determine whether the legislation is an amendment or a repeal, the survival of existing legislation should not turn on such a distinction. If it is apparent from its context that the repeal is conditional upon being able to substitute a new provision for the existing law, the previous law should be taken to revive if the substitute provision is invalid. The repeal should not be able to stand independently of the intended substitute provision. The court should act in such a way that there is no legislative vacuum — an approach referred to by Dixon J in Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 96. On the other hand, if it is apparent that the substituted provision deals with a different subject than the repealed provision and only the latter’s numbering is being employed, the repeal should be treated separately from the substitution and the repealed provision should not revive. See  also see D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, Chapter 29 on the issue of severance.

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Repeal of Imperial Act 7.5  The repeal by the United Kingdom Parliament of an Imperial Act that is in force in Australia does not affect the operation of that Act in Australia. Section 1 of the Australia Act 1986 (Cth) provides:

No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.

See  also Statute of Westminster 1931 (UK); Statute of Westminster Adoption Act 1942 (Cth); Australia (Request and Consent) Act 1985 (Cth); and the Australia Acts (Request) Acts enacted by each state in 1985. The Australia Act also removed the limitations on the capacity of the states to make laws inconsistent with Imperial Acts. See also 7.17 in relation to the implied repeal of Imperial Acts. Date of Effect of Repealing Statute 7.6 In Morgan v  15 Bannerman Street Pty Ltd [1971] 1 NSWLR 601 at 607 Hope J, obviously with some doubts in his mind, held that the relevant dates for the purpose of determining whether one statute repeals another are the dates of assent of the two Acts and not the dates upon which the Acts come into operation. This view cannot be regarded as of automatic application as it could be that an Act which repealed another may never be proclaimed to come into operation. In this circumstance it could not possibly be argued that a repeal of the former Act had been effected. Morgan’s case was not followed in Black v Director-General of Education [1982] 2 NSWLR 714. Hutley JA (at 716) referred to the general principle stated in that case as:

… [fitting ill] with the current practice of bringing Acts (particularly those effecting administrative changes) into force by stages, so that for many purposes some part of the old law is in force along with the new. The purposes of the rules of legal interpretation are to assist the courts in giving effect to the policy of the legislature as embodied in the Act, and a mechanical application of the principle that an Act of Parliament operates in whole from the date of assent is calculated to frustrate that object.

Although the parliament had not done so clearly, the proper conclusion in the instant case was that the Acts were to operate for the purpose of displacing one another from the date of their effective operation. This approach of Hutley JA is to be preferred. The date of effect of legislation said to effect a repeal by implication is to be determined having regard to the commencement date of the later legislation effecting the repeal, not the commencement dates of the original enactments said to be in conflict as a result of that later legislation: Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282.

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Expired Act 7.7  An Act that has expired by effluxion of time (resulting from what is now often called a ‘sunset clause’) is to be treated in the same way as if it had been repealed: Ex parte Dunne (1875) 13 SCR (NSW) 210.

Reference to Repealed Legislation for Interpretation Purposes 7.8  Repealed legislation may be examined as an aid to the interpretation of existing legislation: see 3.37.

IMPLIED REPEAL BY LATER STATUTE

Later Acts Repeal Earlier Inconsistent Acts 7.9  There are numerous cases in which a court has been pressed with the argument that a later statute has repealed an earlier statute not by express words but by implication. The approach is summed up in the maxim leges posteriores priores contrarias abrogant: later Acts repeal earlier inconsistent Acts.

In most cases concerned with this issue there is a general discussion of the right of the court to hold that there has been an implied repeal. Perhaps the most convenient statement of the law is to be found in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 per Griffith CJ: … where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.

It should be noted that the reference here to the ‘same subject’ does not refer to the name of the legislation in question. Inconsistency can arise whenever the application of two or more expressions of legislative intent to a particular set of facts produces differing results. A choice must then be made as to which is intended to be the leading provision. To that extent the leading provision can be said to ‘repeal’ the other provision: see further 7.10 on the use of this expression. Other tests enunciated by the courts at various times include whether there was an intention of one Act to stand in place of the other (Mitchell v Scales (1907) 5 CLR 405 at 417 per Isaacs J, endorsed by the New South Wales Court of Criminal Appeal in R v Chalak [1983] 1 NSWLR 282 at 284; (1983) 47 ALR 600 at 602); and whether effect can be given to both Acts at the same time: Rose v Hvric (1963) 108 CLR 353 at 360. The more detailed and elaborate the later Act, the more probable it is that it will be held to have impliedly repealed the earlier: Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5 at 21. 281

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Leeming JA in Potier v Attorney-General (NSW) [2015] NSWCA 129; (2015) 89 NSWLR 284 at [53] suggested that it was preferable to use the terms ‘contrariety’ or ‘contradiction’ rather than ‘inconsistency’ when considering the question of implied repeal. He referred to the language used in Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238 at [4] and [47] and Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608 at [48] and [98] to support this view. There is much to be said in favour of adopting this nomenclature as more accurately describing the issue that a court confronts when having to choose between apparently competing legislative messages. However, ‘inconsistency’ is the traditional wording used and it will continue to be adopted here. In the New South Wales Court of Appeal in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446 at [14] Meagher JA, with whom Handley and Hodgson JJA agreed, made the interesting observation that: … the Environmental Planning and Assessment Act  1979 [(NSW)] must take precedence over the system of registration of titles regulated by the Real Property Act [1900 (NSW)]. This is not only because it is the later enactment, but also because it partakes more of a public law enactment compared to the Real Property Act’s private law complexion.

Reference to ‘Repeal’ 7.10  The cases that are concerned with inconsistency between legislation usually talk in terms of the ‘repeal’ of the competing legislation. This should probably be regarded as misleading. The matter can be tested by asking what is the position if the inconsistent Act is itself formally repealed. Does the impliedly repealed legislation thereafter have its full field of operation? It would seem that the answer would normally be yes. Until the legislature that made the Act passes repealing legislation, it will remain on the statute book. If another Act contradicts it, that contradiction will only last as long as the contradicting Act is itself in force. Then the earlier Act can resume the operation that flows from its words. It would only be if the contradicting Act was intended to achieve a repeal of the existing legislation that the earlier provision would not revive. However, if this were to be the situation, no question of an ‘implied’ repeal would arise. An actual repeal would have occurred.

The better language to use would be to say that the later Act displaces or supersedes the earlier. (Compare 7.19 relating to Commonwealth laws overriding inconsistent state laws.) However, the practice is to refer to a ‘repeal’ of the earlier legislation and this expression will be maintained in this commentary. The position may possibly be different in regard to delegated legislation. Delegated legislation that is inconsistent with an Act is said to be invalid: see  7.18. This seems to mean that the delegated legislation is to be treated 282

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as if it were repealed, not simply superseded for the duration of the life of the Act with which it is inconsistent: see D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, [19.26]. Limitation on Implication of Repeal 7.11  Notwithstanding the statements referred to in 7.9, the courts do not readily accept that a repeal by implication has occurred. Barton J in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 adopted the following statement from W F Craies, Statute Law, 1st ed, Sweet and Maxwell, London, 1907, p 303:

The court must … be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, ie, the repeal must, if not express, flow from necessary implication.

If, therefore, there is open on the words of the later Act a construction by the adoption of which the earlier Act may be saved from repeal, that construction is to be adopted. Similar statements to that of Barton J may be found in Hack v Minister for Lands (NSW) [1906] HCA 37; (1906) 3 CLR 10 especially per O’Connor J at 23. Gaudron J in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 17; 100 ALR 193 at 204 put it in the following way: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.

See  also Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566; 230 ALR 370 per Gummow and Hayne JJ at [48]: ‘The doctrine requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.’ There must be ‘close attention’ to the construction of the provisions in question: Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238 at [18] per Gummow and Hayne JJ. 7.12  The presumption against an implied repeal is strengthened where the legislation emanates from the same source. In Butler v  Attorney-General (Vic) (1961) 106 CLR 268 at 276 Fullagar J said that there is a strong presumption that the legislature does not intend to contradict itself but in fact intends both Acts to operate within their given sphere. The implication of there being a repeal was ‘a comparatively rare phenomenon’, a view endorsed by Gummow, Hayne and Heydon JJ in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1; 202 ALR 428 at [36]. Gageler J in Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1; 294 ALR 608 at [95]–[100] referred to this as ‘the principle of harmonious construction’. For further comments of this 283

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kind see Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2013] FCAFC 25; (2013) 209 FCR 464; 296 ALR 443 at [61]; McNeill v R [2008] FCAFC 80; (2008) 168 FCR 198; 248 ALR 710 at [63]. It may well be that provisions of Acts that appear to conflict are in fact intended to operate, as it were, in parallel. (See  Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499 at 506; 62 ALR 151 at 158 where this statement was endorsed.) So in Re Murphy; Ex parte School Board of London (1877) 2 QBD 397 what were at first sight conflicting provisions relating to failure to send a child to school were held to be compatible on the basis that one dealt with an habitual failure and the other with an occasional failure. In R  v  Chalak [1983] 1 NSWLR 282; (1983) 47 ALR 600 the court held that a power to deal with an offence summarily did not displace a provision providing for an indictable offence for the same conduct. The intention was to make it possible to choose between the offences according to the gravity of the conduct in a particular case. Similarly, in Davies v Taylor (1996) 134 FLR 394; 140 ALR 245 the enactment of civil penalties did not displace existing criminal offences for the same conduct. In Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360; (2014) 89 NSWLR 477; 316 ALR 497 at [261] Basten JA said: ‘Two statutes can operate harmoniously if both can be complied with, even if one imposes an additional layer of regulation upon the subject matter dealt with in the other.’ A later Act is not to be interpreted as impliedly withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably: Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126; 188 ALR 302 at [34]. See also Re Applications of Shephard [1983] 1 NSWLR 96 where there is a useful exposition of the relevant authorities; Enman v Enman [1942] SASR 131. Gleeson CJ summarised the position in relation to the imposition of requirements by more than one enactment in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, above, 7.11, at [2]: The provisions of s  501(2) [of the Migration Act  1958 (Cth)], on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent’s contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person 284

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such as the respondent, and the other were merely of general application, the same could be said.

It would thus appear that there is a heavy onus on a person asserting an implied repeal — it must be shown that the legislature did intend to contradict itself. (This statement was endorsed by Lloyd J in Fairfield City Council v Taouk (1998) 100 LGERA 110 at 116.) However, this is not to say that there cannot be cases where the enactments cannot be reconciled and then a choice must be made as to which is to apply: see Ferdinands v Commissioner for Public Employment, above; Deputy Commissioner of Taxation v  Dick [2007] HCA 5; (2007) 225 CLR 130; 242 ALR 152. See also the discussion of the generalia specialibus non derogant approach at 7.20ff. Test of Inconsistency 7.13  The implied repeal of an earlier by a later statute can arise where those statutes are ‘inconsistent’. The meaning of this expression in Australia tends to be greatly affected by the interpretation of s 109 of the Commonwealth Constitution which gives primacy to Commonwealth laws over inconsistent state laws: see 7.19. However, Fullagar J in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276 indicated that this approach was not always apt to judge inconsistency between laws of a particular state.

His Honour noted that it could be assumed that the Commonwealth intended its law to override state law on the same topic, but the assumption was the reverse in the case of competing state laws. It was to be assumed that a state would not wish to contradict itself and therefore inconsistency would not be intended. Every attempt should therefore be made to reconcile the competing statutes. It is only if the competing provisions are irreconcilable that one Act will be taken to have overridden the other. In this case that was the position. A provision of the Public Service Act 1946 (Vic) provided that, in the appointment of a person to any office, consideration should be given to relative efficiency and, in the event of equality of efficiency of two or more officers, then to relative seniority. This careful statement of the promotion principle impliedly repealed an earlier provision giving preference to ex-servicemen. A like view to that of Fullagar J was expressed by Gummow and Hayne JJ in Ferdinands v  Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; 224 ALR 238 at [49]; and see also ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at [101].2 Application of Implied Repeal Approach: Different Penalties 7.14  The application of the principles referred to in the preceding paragraphs in a particular case is at heart one of judgment by the court as to whether or 2. This case is reported at (2003) 59 NSWLR 196, but the relevant paragraph is not included in the report. 285

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not one provision can stand with another. However, particular issues can arise where conduct can attract different penalties under different provisions. This issue was addressed by a Full Court of the Federal Court in Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520. The court said: Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the legislature intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. Such a result would be capricious and arbitrary … It is, of course, commonplace that the one act or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity.

Where the penalties are contained in different Acts, it is even more likely that the court will be obliged to determine which is intended to be the primary provision: Saliba v Aziz [2013] ACTCA 41; (2013) 278 FLR 278 at [33]. The following afford some examples: • Lord v  Blake (1918) 35 WN (NSW) 2 concerned a power regulating pedestrian traffic which was vested in the police by the Metropolitan Traffic Act 1900 (NSW). It was held that an earlier regulation made by the Sydney City Council prohibiting the creation of a public nuisance on the footpath was not inconsistent with the later Act and could accordingly be enforced; • Bice v  Cunningham [1961] SASR 207 held that the inclusion in the Navigation Act 1958 (Cth) of a provision that prescribed a penalty for desertion by a seaman had the effect of impliedly repealing a provision of the Imperial Merchant Shipping Act 1894 (Imp) that also penalised that conduct; • Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 held that the fact that the applicant’s action made it liable to prosecution under provisions in two Acts did not mean that it was intended that the later of those Acts was to be taken to have repealed the earlier. The common law recognised that a person should not be punished twice for the same offence but it did not prevent a person being punished twice for the same action. (See also the extract from the judgment of Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom set out in 7.12.) Test of Reading Competing Acts Together 7.15 In South-Eastern Drainage Board (SA) v  Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 626 Dixon J discussed the approach that is sometimes commended in cases involving a claim of an implied repeal of trying to read the two competing Acts together by writing the provisions 286

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of the earlier statute into the later. He indicated that this is a useful, indeed essential, approach to follow when considering apparently inconsistent sections within the one legislative instrument. It is to be assumed that the legislature must have intended them both to have some field of operation by finding room for them in the one enactment: see 4.51. However, the position is not as clear as that where there are separate competing Acts. The legislature may well have intended to replace the earlier enactment. Attempts to Limit Later Legislation 7.16  From time to time provisions are included in Acts that indicate that the particular provision is to apply to stated circumstances ‘unless otherwise expressly provided’ or ‘except where otherwise expressly enacted’ or ‘unless the contrary intention appears’. The Real Property Act  1886 (SA) went further and provided that any later Act inconsistent with it was to be regarded as inoperative unless it included a provision stating that it was enacted ‘notwithstanding the provisions of the Real Property Act 1886’. None of these provisions has been held sufficient to protect the Act in which they appear from an implied repeal by later inconsistent legislation: Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603. To have held otherwise would have been to countenance a derogation of the competency of parliament to pass inconsistent legislation after the passage of the earlier Act.

The South-Eastern Drainage Board case is particularly interesting because the claim was made that the limiting provision had to be complied with strictly on the basis that it was a manner and form provision within the meaning of s 5 of the Colonial Laws Validity Act 1865 (Imp). This argument was rejected on the ground that s 5 of that Act was concerned only with constitutional provisions; a parliament could not bind its successor apart from the operation of s 5 of the Colonial Laws Validity Act; therefore the court was entitled to construe any Act having regard to the ordinary principles of interpretation. In this case it was held that there was an implied repeal of a provision of the Real Property Act 1886 (SA) and this operated notwithstanding the failure to use the formula prescribed by the Real Property Act. (On this issue see also Travinto Nominees Pty Ltd v Vlattas [1973] HCA 14; (1973) 129 CLR 1 at 35 per Gibbs J.) Implied Repeal of Imperial Act 7.17  An Imperial Act in force in Australia will be taken to have been repealed by an Act of an Australian parliament even though the latter Act may be in terms that are not inconsistent with the Imperial Act. The intention will be attributed to the Australian parliament of wishing to deal with the issue in question to the exclusion of the Imperial legislation: Reid v Fitzgerald (1926) 48 WN (NSW) 25; Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268. It must, however, be clear that the Australian legislation does deal with the ambit of the Imperial Act as in force in Australia. So  where the 287

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New South Wales parliament replaced an Imperial Act with like provisions but limited the replacement Act’s operation to Sydney, the Imperial Act continued to apply to the rest of the colony: Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 60 ALJR 190; 63 ALR 161. Implied Repeal: Delegated Legislation 7.18  While not, strictly speaking, a rule of interpretation, it should be borne in mind that where an Act contains provisions that are inconsistent with an item of delegated legislation, the latter will be rendered invalid, thereby, in effect, being repealed: see  D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, Chapter  19. (This statement was cited in O’Connell v Nixon (2007) 16 VR 440 at 446.)

On the other hand, delegated legislation cannot impliedly repeal an earlier Act except where expressly so authorised: Hotel Esplanade Pty Ltd v  City of Perth [1964] WAR 51. It would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the parliament’s own enactments: De L v Director-General, Department of Community Services (NSW) [1997] HCA 14; (1997) 190 CLR 207 at 212; 143 ALR 171 at 174 per Brennan CJ and Dawson J; Gorry v McKenzie [2009] WASC 326 at [29] and see Delegated Legislation in Australia, above, [19.20]–[19.21]. Overriding of State Act by Commonwealth Act 7.19  Section  109 of the Commonwealth Constitution provides that, where a law of a state is inconsistent with a law of the Commonwealth, the Commonwealth law is to prevail and the state law, to the extent of the inconsistency, is invalid. The effect of this provision is not to repeal the state law. The state law is taken only to be superseded pro tem and it revives if the Commonwealth law with which it is inconsistent is itself repealed: see further D Meagher, A Simpson, J Stellios and F Wheeler, Hanks Australian Constitutional Law Materials and Commentary, 10th ed, LexisNexis Butterworths, Sydney, 2016, Chapter 5; G Lindell, ‘Grappling with Inconsistency Between Commonwealth and State Legislation and the Link to Statutory Interpretation’ (2005) 8 Constitutional Law and Policy Review 25; G Rumble, ‘Manufacturing and Avoiding Constitution s 109 Inconsistency: Law and Practice’ (2010) 38 FL Rev 445. See also the discussion by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188 at [70]–[73].

A second area in which the issue of conflict between Commonwealth and state law can arise is in relation to the application of s  79 of the Judiciary Act 1903 (Cth). That section provides that: The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. 288

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On the operation of the section generally see John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65 particularly at 95 per Mason J; J Stellios, The Federal Judicature: Chapter III of the Constitution, LexisNexis Butterworths, Sydney, 2010, Chapter 9. In the present context it should be noted that it has been said that there is a general rule of construction requiring an interpretation which would restrain the general words (in state legislation) so that they would not apply to federal proceedings so regulated and would confine the state enactment to state proceedings: Seaegg v R [1932] HCA 47; (1932) 48 CLR 251 at 255 per Rich, Dixon, Evatt and McTiernan JJ. This dictum was applied by a Full Court of the Federal Court in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCAFC 193; (2012) 209 FCR 428; 295 ALR 129 at [56] to hold that a state limitation statute did not prevent an action being brought under Commonwealth law. See further the decisions referred to in that case. General Provision Does Not Impliedly Repeal Specific Provision: Generalia Specialibus Non Derogant 7.20  One of the most frequent situations in which the question arises whether a later statute impliedly repeals an earlier is where a provision in an Act dealing specifically with a particular topic conflicts with a provision in a later Act that deals generally with that topic along with others. (See  7.23 for the position where the specific Act is later than the general Act.) The approach adopted by the courts to resolve such conflicts is stated succinctly by O’Connor J in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14:

Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.

For further examples see the Annexure. This approach is usually summarised in the maxim generalia specialibus non derogant. (See  also 4.51 for the operation of this approach where there is a conflict between two sections of the one Act.) 7.21  The rationale underlying this approach is stated by Barton ACJ in Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468 at 473–4:

The judgment under appeal turns upon the application of the principle involved in the maxim generalia specialibus non derogant to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision … I wish to quote a passage from the judgment of Wood V-C in Fitzgerald v Champneys 2 J & H 31 at 54, quoted by Stirling J in Re Smith’s Estate; Clements v Ward (1887) 35 Ch D 589 at 595. ‘The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and 289

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considered and provided for all the circumstances of that special case; and,  having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.’

In the circumstances, however, the question of the application of the generalia specialibus maxim did not arise as the court concluded that the sections in the two Acts in question were capable of independent existence and indeed supplemented one another. See also 8.3 relating to consolidating Acts. Lord Cooke in Effort Shipping Co Ltd v Linden Management SA (‘The Giannis NK’) [1998] 1 All ER 495 at 513 said: ‘The generalia specialibus maxim … is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage’ (a statement approved by Lindgren J in Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520 at [215]). For a like comment, see Smith v R [1994] HCA 60; (1994) 181 CLR 338 at 348; 125 ALR 385 at 391. Application of generalia specialibus rule 7.22  The relationship between two Acts ‘must depend upon a comparison of the actual language of each, to see  whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims’: per Windeyer J in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 268. For this reason each case will depend upon the provisions of the legislation in question and is not of great use for precedent purposes once the general principle has been accepted — a matter expressly referred to by the court in Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801. That case nonetheless provides a useful example of the application of the approach to interpretation.

A section of the Gaming and Betting Act 1912 (NSW) gave power to the owner of premises to serve upon an occupier of those premises a notice to quit where there were reasonable grounds to suspect that the premises were being used for gaming and betting purposes. The Landlord and Tenant (Amendment) Act 1948 (NSW) limited the circumstances in which a landlord could give a notice to quit. It was argued by a tenant that the Landlord and Tenant Act applied to all tenancies and notice could not be given under the Gaming and Betting Act. The Full Court of the New South Wales Supreme Court rejected this argument and held that the Gaming and Betting Act dealt with a special case and to that extent the general provisions of the Landlord and Tenant Act, even though enacted after the commencement of the Gaming and Betting Act, did not affect the operation of the Act. Another useful illustration of the principle is McLean v  Kowald (1974) 9  SASR  384. The Full Court of the South Australian Supreme Court held that the enactment of a general power to suspend a sentence did not override 290

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a specific section already existing in the Road Traffic Act  1961 (SA) that provided that, where designated, a minimum sentence should not be reduced or mitigated in any way. A general provision might also not limit a specific power because it adds to the power without contradicting it. Both the general and specific would thereby be enforceable. In Yates Security Services Pty Ltd v  Keating (1990) 98  ALR  21, discretionary matters referred to in a general Heritage Act were held to be additional to and not in conflict with specific factors that conditioned a discretion in another Act that dealt specifically with the premises in question. (The case went on appeal, but this issue was not dealt with: (1990) 25 FCR 1; 98 ALR 68.) A similar issue arose in Graham v Deputy Chief of Air Force [2004] FCA 1377 where it was held that general disciplinary powers could be invoked even though there were express provisions relating to the offences with which a person was charged. It must never be overlooked that, before the generalia specialibus approach can be called into operation, it is necessary to show that there is an irreconcilable conflict between the relevant provisions. The court will have to be convinced that the two provisions cannot stand together: Fonteio v  Morando Bros Pty Ltd [1971] VR 658; Associated Minerals Consolidated Ltd v  Wyong Shire Council [1974] 2 NSWLR 681; (1974) 4 ALR 353; Ombudsman v Laughton (2005) 64 NSWLR 114. In reaching a conclusion whether provisions can be reconciled, the court will not look to hypothetical or possible conflicts. The issue will be determined having regard to ‘the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises’: per Kirby P in Royal Automobile Club of Australia v  Sydney City Council (1992) 27 NSWLR 282 at 294. However, if the provisions cannot be reconciled, the generalia specialibus rule will be applied and the general provision must give way to the particular: Solicitor for the Northern Territory v Moketarinja (1996) 111 NTR 4 at 7. Generalia specialibus rule applicable only when the general Act is later than the special Act 7.23  The notion underlying the rule is that general words are not to be taken as derogating from existing special provisions. Where the converse occurs, that is, the special Act is passed after the general Act, then the cases referred to in 7.9–7.16 relating to implied repeals generally are relevant. The general statute may be repealed pro tanto by the special statute.

So, for example, if a special procedure is laid down for dealing with an issue, it must be followed and a general provision will thereby be displaced. In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 Gavan Duffy CJ and Dixon J said at 7: … when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it should be exercised and the conditions and restrictions which must be observed, it excludes the operation of general 291

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expressions in the same instrument which might otherwise have been relied upon for the same power.

While this case refers to the two sets of provisions as appearing in the one instrument, the approach has been applied to separate enactments also: see, for example, Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313; 236 ALR 468 at [28]; Deputy Commissioner of Taxation v  Dick [2007] NSWCA 190; (2007) 226 FLR 388; 242 ALR 152 at [120]. However, even this approach can be displaced by the context in which the legislation operates. Enman v Enman [1942] SASR 131 was concerned with this situation, but on the facts it was held that the Maintenance Act  1926 (SA) and the Interstate Destitute Persons Relief Act 1910 (SA) allowed the possibility of action being taken against a person who was not in the state of South Australia under whichever of the two Acts the person deserted thought appropriate. The court considered that there was not a repeal of the Maintenance Act by implication but a deliberate intention on the part of the legislature to allow for some overlap, there being no inconsistency between the two Acts. See also Smith v R [1994] HCA 60; (1994) 181 CLR 338 at 355; 125 ALR 385 at 391. Generalia specialibus approach rebuttable 7.24  As with all other ‘rules’ of statutory interpretation, the generalia specialibus approach is subject to the overriding consideration that the courts may well consider that the general legislation was not intended to be subject to the special legislation — the generalia may well derogate from the specialia either explicitly or by implication. The Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 686; (1974) 4 ALR 353 at 359 put it thus:

The principle [generalia specialibus non derogant] is, of course, unexceptionable, but cases are rarely so simple as this, for even where the earlier statute deals with a particular and limited subject-matter which is included within the general subject-matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact or is superseded, and the cases in which the latter has been held are almost as numerous as the former.

See further the cases referred to in the Annexure. In Minister for Immigration and Multicultural and Indigenous Affairs v  Nystrom [2006] HCA 50; (2006) 228 CLR 566; 230 ALR 370 at [51] Gummow and Hayne JJ indicated that the approach was less likely to be adopted to resolve apparent conflict between competing Acts than between provisions in the one Act. AMENDING ACTS

Introduction 7.25  Little more need be said about amending Acts than has already been set

out in 3.38 (reference to amending Acts as aids to interpretation) and 7.1–7.3 292

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(distinction between repealing and amending Acts) and in Interpretation Acts generally. The basic rule is that when any Act is amended by a later Act, the two are to be regarded as one connected and combined statement of the will of parliament: Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J, a statement approved in Commissioner of Stamps v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463, 479; 133 ALR 130 at 135, 147. In that case it was also noted that s 15 of the Acts Interpretation Act 1901 (Cth),3 which provided that an amending Act was to be construed with the Act amended as if it were part thereof, gave statutory form to what is a common law principle. This has been referred to as the co-interpretation principle: Shields v Chief Commissioner of Police [2008] VSC 2; (2008) 19 VR 33 at [102]. See also Shaw v Yarranova Pty Ltd [2006] VSCA 291; (2006) 15 VR 289 at [77]; Sportsbet Pty Ltd v Victoria [2011] FCA 961; (2011) 282 ALR 423 at [51]; Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178; (2014) 227 FCR 494 at [60]. In Bainbridge v Minister for Immigration and Citizenship [2010] FCAFC 2; (2010) 181 FCR 569; 113 ALD 70 at [14] and [44] s 15 was invoked to validate an amending provision that might otherwise have been unconstitutional as providing for an acquisition of property without compensation. The court held that the provision could be read with a section of the existing Act that provided for such payment. 7.26  The cases indicate that, while the general presumption of co-interpretation can be displaced, it will take very clear evidence to do so.

However, such evidence was held to exist in the Shields case, 7.23, at [104]–[110]. There an amendment to the Interpretation of Legislation Act 1984 (Vic) by the inclusion of s 45 relating to the construction of the words ‘may’ and ‘shall’ in legislation was held, by virtue of its wording, to apply only to future enactments. While the section inserted by the amendment became part of the Interpretation Act, and that Act was expressed to apply to all Acts whether passed before or after its enactment, the terminology of the amendment made it clear that it did not apply to Acts made before it was included in the Interpretation Act. The insertion of new words in an Act can have an effect on the existing words of the Act. Bathurst CJ said in R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155 at [100]: Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the 3. Now s 11B. A like provision is to be found in the relevant legislation of the ACT s 90; NT s 58; Qld s 22; Tas s 8. The other states have no express provision. Presumably reliance is placed on the common law principle alluded to. 293

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meaning which the remaining provisions of the amended act bore before the making of the amendments.

This approach was also applied in Simon v  Condran [2013] NSWCA 388; (2013) 85 NSWLR 768 at [26]. However, where an amending provision is invalid, it is to be regarded as ‘no law’ and has no effect on the Act purporting to be amended: Attorney-General (Qld) v Lawrence [2013] QCA 364; (2013) 306 ALR 281 at [44]. As adverted to in 7.1 in relation to the distinction between amending and repealing Acts, a court will look to the effect of a provision rather than its form in determining whether it is an amending Act. It is not necessary that the Act expressly use the word ‘amend’ or that it provide that the later Act be incorporated or read as one with the earlier Act (as to which see 7.31–7.38). If the court is satisfied that the intended effect of the later Act is to bring about an alteration in the operation of the earlier Act, the later Act will be regarded as an amending Act. For example, the Death Penalty Abolition Act  1973 (Cth) provided that references in any Act to the punishment of death were to be construed as if the penalty of imprisonment for life were substituted. In R v Wheeldon (1978) 33 FLR 402; 18 ALR 619 the Federal Court held that this was an Act amending the Acts in which such references occurred. In Re May and Commissioner for Superannuation (1979) 2 ALD 951 the Administrative Appeals Tribunal considered that a substantive transitional provision in an amending Act was, in the circumstances, itself also to be regarded as an amending provision. Again the effect of the provision, not its form, was taken into account. See  also Boehm v Director of Public Prosecutions [1990] VR 494 at 498 for the effect of amendments to adopt a plain English statement of the law. 7.27  An issue arises whether it is necessary for an amending Act to be continued in force after its initial commencement if the amendment it makes is to have continuing effect. It is arguable that the Act itself has served its purpose once the amendments that it has made have been inserted, as it were, into the principal Act. This argument was considered in Oliveri Transport Services Pty Ltd v Department of Transport [2001] NSWSC 45 (see further 7.29) in relation to the effect of the repeal of an amending Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 1999 (NSW). However, the same position might well exist in relation to any Act that repeals an amending Act.

That an amending Act does not need to continue in force is accepted by the Commonwealth as the legal position. Since 2014 a number of Acts have been passed that repeal a large number of amending Acts thereby reducing the number of Acts that appear on the statute book and making it easier to find the legislation on a topic: see, for example, Amending Acts 1901–1969 Repeal Act 2014 (Cth). The content of an amending Act that has been repealed is, of course, not removed as it has been incorporated into the Principal Act that it amended. It should be noted that s 3(2) of that Act provide that: 294

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The repeal of an Act by this section does not affect the continuing operation of any provision of the Act made or expressed to be made for an application, saving or transitional purpose (or that makes provision consequential or related to such a provision).

Such a provision is necessary or otherwise the substantive provisions of the amending Act would be repealed which could have some unintended consequences. See  also Palais Parking Station Pty Ltd v  Shea (1977) 16 SASR 350 for discussion of the effect of the repeal of a proclamation fixing the date of commencement of an Act. The Interpretation Acts of Queensland and Victoria make express provision for the continuation of the effect of amendments after the repeal of an amending Act.4 The Australian Capital Territory, New South Wales and Queensland go further in providing that an amending law made after a date specified in the section is automatically repealed on the day after all of its provisions have commenced.5 The repeal of an amending Act therefore does not affect the amendments made by the Act. Reference to ‘this Act’ 7.28  Where by amendment a new provision is inserted into a principal Act and that provision speaks of ‘this Act’, it speaks of the whole Act of which from the time of the amendment it forms part and of the Act in the form which it may from time to time thereafter assume: Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; (1963) 109 CLR 276 at 280.

Statute Law Revision Acts 7.29  One type of amending Act that warrants special mention is a statute law revision Act. In Laird v Municipality of Portland [1958] Tas SR 90, Crawford J approached the amendments that were made by a statute law revision Act on the basis that there was no attempt to alter the law. In the particular case an amendment had been made by a statute law revision Act to the Local Government Act 1906 (Tas) that, had it not been for the operation of the Acts Interpretation Act 1931 (Tas), would have produced a substantial change in the existing law. The judge held that the intention of the statute law revision Act was to attract the operation of the Acts Interpretation Act and thereby not make an alteration to the content of the Local Government Act. The words omitted were, in effect, surplusage by virtue of the operation of the Acts Interpretation Act provision relating to the appointment of officers and this was the only reason why words providing such a power were omitted from the Local Government Act by the statute law revision Act.

4. Qld s 19; Vic s 15. 5. ACT s 89; NSW s 30C; Qld s 22C (this provision is additional to s 19). 295

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This case is illustrative of the approach that has usually been followed by the courts of assuming that statute law revision Acts are not intended to change the substance of the law. They are used more to tidy up the statute book, often before consolidation or reprinting occurs. The result of this approach has been to make the courts slow to infer that a change of substance has been made to an Act where an alternative interpretation not changing the previous operation of the Act is tenable: see also Dodds v Noldart [1955] Tas SR 58. This approach to a statute law revision Act was followed in Oliveri Transport Services Pty Ltd v  Department of Transport [2001] NSWSC 45 in regard to provisions of the Act that repealed amending Acts. It was said that such action was not meant to revoke the amendments made to the principal Act by the amending  Act. Those changes continued in effect, but the Act that formally made the change was removed from the statute book, cf the discussion in  7.29. (The decision in this case was reversed on appeal, but this conclusion on the effect of the repeal of the amending Acts was not challenged: [2001] NSWCA 231.) The assumption that statute law revision Acts are not changing the law should no longer be considered appropriate in relation at least to Commonwealth legislation. It is common to find substantial statute law revision Acts being made that contain what are claimed to be non-controversial amendments. Whether this description is apt in all cases is questionable, but in any case there is no doubt that the amendments contained in the Acts are intended to make substantive changes to many Acts and not simply to tidy them up. Amendment of Imperial Act 7.30  The High Court in Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552; 11 ALR 129 held that an amendment by the United Kingdom Parliament to an Imperial Act that is in force in a state does not apply in the state in the absence of an express provision. (As to the latter, now see  the Australia  Act  1986 (Cth).) See 7.5, 7.17 on the effect of a repeal of an Imperial Act.

ACTS INCORPORATING OTHER STATUTORY PROVISIONS

Introduction 7.31  It is not uncommon to find in an Act a provision saying that it is to be read as one with, or to be read and construed with, or to be incorporated with, another Act. The effect of such provisions is, in effect, to mould the two Acts into one — to require the incorporated Act notionally to be written into the incorporating Act. Accordingly, each of the provisions of the two Acts must be construed as if they were included in the one Act — unless there is such a manifest discrepancy that it can be seen that the later of the two Acts impliedly repealed part of the earlier: Fenton v Dry (1864) 1 WW & A’B (Vic) 64; Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31; (1944) 70 CLR 362 at 388. For further statements of this principle see the Annexure. 296

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Even if one of the forms of words set out above is not used, where it is manifest that the legislature intended two Acts to be read as one, the court will so interpret them: R v Wheeldon (1978) 33 FLR 402; 18 ALR 619. But it must be clear that there is an intention to incorporate the Acts into the one legislative statement. In R v Smith (1873) LR 8 QB 146 at 150 Cockburn CJ referred to the incorporation having to be ‘by any form of words’. This requirement was endorsed by a Full Court of the Federal Court in Associated Steamships Pty Ltd v Hore (1995) 61 FCR 506 at 513; 132 ALR 619 at 625. Unnecessary for Incorporated Act to be in Force for the Incorporating Provision to be Effective 7.32  The one requirement that must of course be satisfied is that the provisions to be incorporated must be identifiable: Osborne v  Commonwealth [1911] HCA 19; (1911) 12 CLR 321; Director of Public Prosecutions v  Brown (1998) 100 LGERA 181 at 189. In Osborne’s case the incorporation of an Act which had not yet been assented to but which was identifiable when the incorporating Act was made was held to be sufficient. Further, in R v Smith (1873) LR 8 QB 146 at 149 Cockburn CJ said:

… when a prior Act, or part of a prior Act, is incorporated with a subsequent Act, it is the same thing as if the words of the first Act had been repeated in the second Act; and the repeal of the first Act will not take away the effect of the words which are so repeated in the second Act by incorporation.

Incorporation of Unconstitutional Provisions 7.33  The incorporation of provisions will not be ineffective because one of the incorporated provisions is unconstitutional. In Federal Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246 certain sections of the Income Tax and Social Services Contribution Assessment Act  1936 (Cth) were to be ‘incorporated and read as one with’ the Income Tax and Social Services Contribution (Individuals) Act 1956 (Cth). One of the sections so incorporated was held to be invalid as being a law that discriminated between parts of states. The High Court held that the Income Tax and Social Services Contribution (Individuals) Act was not thereby invalidated as the provision of the Assessment Act, being void, could not be incorporated.

The High Court considered the issue again in STAN Constructions Pty Ltd v Williams (1981) 55 ALJR 466; 35 ALR 316. It said (at 468; 318): The invalidity of purported legislation does not necessarily preclude its being affected by subsequent legislation which refers to it. Invalidity does not so far deprive purported legislation of existence that subsequent legislative reference to it is necessarily nugatory. It is a question whether the subsequent reference is to the purported legislation as it validly exists or as it is written. Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246 and Akar v Attorney-General of Sierra Leone [1970] AC 853 are instances where a later Act was construed as referring only to what the legislature had earlier and validly 297

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enacted: Brown v Green [1951] HCA 76; (1951) 84 CLR 285 is an instance where an Act was construed as referring to ‘what stands in the printer’s copy’ of earlier legislation.

The court considered that STAN’s case fell in the latter category. The New South Wales Court of Appeal reached a like conclusion in relation to the legislation before it in Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 1 NSWLR 479 at 485. (See further 7.4 relating to the invalidity of repealing legislation.) Date of Effect of Incorporation 7.34  The common law rule was that, in the absence of an indication to the contrary, provisions incorporated in another Act were fixed, as it were, at the date of their incorporation. Subsequent amendments to the incorporated provisions would not be included in the incorporating Act. The position has now been changed by the inclusion in the Interpretation Acts of all jurisdictions of provisions that provide that references to an Act are to that Act as amended: see Interpretation Acts, 3.26ff.

Incorporated Provisions May Have to be Adapted to Fit into Incorporating Act 7.35  A Canadian decision has indicated an important limit on the effectiveness of incorporated provisions unless adapted for the incorporating Act. Certain provisions of the Criminal Code were, by a section of the Interpretation Act, made applicable to offences against other statutes of the Canadian Parliament. The court held that, since the sections were stated to be adopted as they appeared in the Criminal Code and not mutatis mutandis, only those sections which were applicable without any change in wording could be regarded as incorporated in the other Acts. Accordingly, a section of the Criminal Code giving jurisdiction to issue search warrants in respect of alleged offences under the Criminal Code could not apply in respect of offences against other statutes as the section expressly referred to offences against the Criminal Code: Re Purdy and the Queen (1972) 28 DLR 3d 720.

Problems of Interpretation in Incorporated Acts 7.36  It can be expected that when two pieces of legislation are notionally amalgamated, there may be difficulties in fitting all the provisions together. The courts will try to read the Acts in such a way that effect can be given to all sections, but this may not be possible and resort must then be had to the approaches set out previously in this chapter. Particular difficulties in this process of amalgamation have been caused by the expression ‘under this Act’. Does such a reference in one of the Acts include the other Act also? There are two major Australian authorities and they are not easy to reconcile.

In Georgoussis v Medical Board of Victoria [1957] VR 671 Smith J said that, when an Act is passed containing a direction that it shall be read and construed as 298

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one with an earlier Act, expressions such as ‘under this Act’ appearing in the earlier Act had, in the absence of some indication to the contrary, to be given an extended application as from the date of the later Act so as to cover things done under the later Act. So decisions taken under the later Act were capable of being appealed against pursuant to a power to appeal against decisions ‘under this Act’ provided for in the earlier Act. The other relevant case is Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409; 54 ALR 57. The Television Stations Licence Fees Act 1964 (Cth) provided that the Broadcasting and Television Act  1942 (Cth) ‘is incorporated and shall be read as one with this Act’. A section of the Broadcasting and Television Act allowed the Broadcasting Tribunal to seek information relating to matters ‘relevant to the operation of this Act’. Information was sought that was relevant to matters dealt with in the Licence Fees Act but not the Broadcasting and Television Act. The tribunal claimed that the incorporation provision was sufficient to extend the power to seek information to matters dealt with in the Licence Fees Act. Lockhart J was not prepared to accept this. So to read the provisions would be in effect to amend the Broadcasting and Television Act. Georgoussis’s case was distinguishable on the basis that the later Act was to be read with the earlier, not vice versa as in this case. 7.37  There is clearly a factual distinction between the two cases, but whether that is sufficient to constitute a distinction in principle is questionable. The earlier decisions talk in terms of amalgamating or writing together the Acts concerned. The intention is, in effect, to produce a new consolidated piece of legislation. In these circumstances it would not seem to matter in which Act the incorporation provision is included and the references to ‘this Act’ should be read as referring to the Acts as amalgamated. Be that as it may, Lockhart  J’s judgment indicates that at present a distinction is to be drawn between references to ‘this Act’ in the incorporated and the incorporating Acts.

Sheller JA in Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 referred to the discussion set out above but found it unnecessary to express a view as to the preferred approach. In the case before him, it was clear that the terminology used in the later incorporated Act was not intended to qualify the right to refuse to produce a document on incrimination grounds expressly recognised in the earlier. It can be deduced from the decision that the unwillingness of the courts to find that a statute requires persons to incriminate themselves is likely to result in careful attention being paid to any suggestion that the effect of incorporation of Acts is to override that presumption. The foregoing situation is to be distinguished from a matter alluded to by Smith J in the Georgoussis case. His Honour there warned against the trap of thinking that an incorporation provision can cause expressions in the earlier of the two Acts to be construed as meaning and having always meant something, which in their original context, they were not fairly capable of 299

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meaning. This would involve, in effect, allowing the later Act to operate to amend the earlier retrospectively by mere implication. It must be clear that there is an intention that the Acts concerned are to be incorporated before the issues referred to in this paragraph arise. The fact that different Acts deal with the same subject matter does not mean that they are to be treated as one piece of legislation: Re Secretary, Department of Family and Community Services and Lind [2003] AATA 242; (2003) 36 AAR 498. Interpretation of Incorporated Definitions 7.38  The difficulty of interpreting definition sections cast in the form of an incorporating provision was referred to by Latham CJ in Producers’ Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1944] HCA 39; (1944) 69 CLR 523. There a section of a taxing Act used an expression ‘as defined by [another] Act’. Latham CJ said (at 531) that the incorporation of a definition of a particular term stood upon a different footing from the incorporation of a section of an Act. The meaning of a section might be ascertainable only by a consideration of other sections with which it was associated. But it was an inversion of ordinary methods of approach to seek to interpret a definition by reference to provisions in which the defined term was used.

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CHAPTER 8

Interpretation of Consolidating, Reprinted and Codifying Acts CONSOLIDATING ACTS

Introduction 8.1  A consolidating Act does no more than gather together and re-enact

the existing legislation on a particular topic (see  1.32). Accordingly, the approach to be adopted in the interpretation of such Acts is in general the same as for any other Acts: Riddle v R [1911] HCA 33; (1911) 12 CLR 622 at 632 per Barton J. However, a number of specific principles have been expounded by the courts that are applicable to this type of legislation only. (The following paragraphs relate to consolidating Acts in the strict sense and are not applicable to reprinted or incorporated Acts which are not passed by the parliament: see 8.6.) Consolidating Act Assumed Not to Change Law 8.2  Where two constructions of a consolidating Act are open, under one of

which the Act can be read as making an amendment of the law, while the other appears to confine the Act to its professed purpose of mere consolidation, then, other things being equal, the courts will adopt the construction which confines the Act to its purpose of consolidation. This statement was cited in Duggan v Parramore (1993) 2 Tas R 442 at 454–5 in a passage endorsed by the Full Court of the Tasmanian Supreme Court in Parramore v Duggan (1994) 4 Tas SR 64 at 73. See also reference to the same principle in Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 429 per Williams J; Registrar-General v Harris [1998] NSWSC 449. This will be the initial presumption. But if the Act itself speaks so plainly that it is clear from its terms that parliament has exercised its power of amending the law, even though the title of the Act professes that its purpose is consolidation, the presumption will be displaced and the Act must be treated as an amending Act: Riddle v R [1911] HCA 33; (1911) 12 CLR 622; Kiernan v Lipman [1920] VLR 81; Attorney-General (NSW) v Hill and Halls Ltd [1923] HCA 22; (1923) 32 CLR 112 at 121; Green v Redcliffs Hotel Pty Ltd [1933] VLR 84 at 89 per Lowe J. 301

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The presumption that no change was intended to be made to existing law will be particularly strong where a number of Acts are consolidated but appear in separate divisions of the consolidating Act. It will be assumed that general provisions in one division are intended to apply only to the sections of that division: Spautz v Dempsey [1984] 1 NSWLR 449. The presumption will also be followed to prevent a change in the law by a sidewind as it were. An amendment to the South Australian Acts Interpretation Act 1915 was expressed to apply to all legislation passed after a specific date. The Criminal Law Consolidation Act 1935 (SA) was passed after that date. The effect of the Interpretation Act would have been to increase certain penalties for offences under the Criminal Law Consolidation Act. The Full Court of the Supreme Court in R v Kruger (1977) 17 SASR 214 held that it should be assumed that the Interpretation Act provision did not apply to the Consolidation Act because it did not apply to the Acts in the form which they took before consolidation. As far as the common law is concerned, the general principle that an Act will be construed in such a way as to limit any change to the common law (see 5.34–5.45) is strengthened in the case of consolidating Acts because their general intention is merely to repeal and re-enact existing provisions: Nolan v  Clifford [1904] HCA 15; (1904) 1 CLR 429 at 450 per Barton J; Sherwood v O’Brien (1922) 39 WN (NSW) 68. Date of Effect of Consolidating Act 8.3  Subject to express provision to the contrary, the date on which an Act is

regarded as stating the law is the date on which it comes into operation. The same principle applies in the case of consolidating Acts: Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372 at 383 per Isaacs J. This can lead to problems where conflicting Acts or conflicting sections of Acts have been passed at different times in the past and have been consolidated in the one enactment. The issue arose in regard to different Acts in Maybury v  Plowman [1913] HCA 43; (1913) 16 CLR 468 where the operation of the general principle that the provision that is later in time is to prevail (see 7.9) had led to a satisfactory relationship between the Inclosed Lands Protection Act 1854 (NSW) and the Criminal Law Amendment Act of 1883 (NSW). However, the Criminal Law Amendment Act was consolidated in 1900 and the Inclosed Lands Protection Act in 1901. Counsel argued that the general principle of the later in time qualifying the earlier now operated on the Acts to produce the opposite effect to that which applied before consolidation. A majority of the Justices (Isaacs, Gavan Duffy and Rich JJ), somewhat surprisingly, accepted the later in time principle as being applicable: at 479. Barton ACJ disagreed: at 476. However, it was not necessary to reach a conclusion on the matter, for the whole court took the view that there was no inconsistency between the two Acts. 302

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The approach of Isaacs, Gavan Duffy and Rich JJ in Maybury v Plowman is to be contrasted with that of Hodges J in Coates v South Loch Fyne Gold Mining Co NL (1900) 26 VLR 117 at 122. In the latter case the apparent conflict revolved around three sections which had been the subject matter of three separate amending Acts passed at different times. By interpreting the sections having regard to the order in which they were originally enacted, they could be interpreted without any difficulty. When the Acts were consolidated the sections appeared in the consolidating Act in a different order from that which was produced by the three original amending Acts. It was argued that the last section was to prevail as the last word of the legislature. This argument was rejected out of hand. The better view in cases of this kind is to assume that there was no intention to change the law in the process of consolidating the Acts. Reference to Earlier Acts for Purpose of Interpreting Consolidation 8.4  An unresolved problem that flows directly from the principle referred

to in Bennett v Minister of Public Works (NSW) (see 8.3) relates to the extent to which it is possible to refer to the former Acts, including the interpretation that has been placed upon them, after they have been consolidated as a new Act.1 In Bennett’s case, Isaacs J ruled that the law has to be determined as at the date of the consolidating Act. The question that then arises is whether it is possible for the court to examine the Acts consolidated when the meaning of the consolidating Act is clear. The notion that it is proper so to do was rejected by Else-Mitchell J in Ex  parte Jasaitis (1970) 91 WN (NSW) 444 at 446. His Honour considered that dicta in decisions of the Privy Council, the House of Lords and the High Court, the effect of which was to say that phrases in a consolidating Act have to be construed in the light of their meaning when they were first used in Acts which preceded the consolidation, placed an unnecessary and undue rigidity upon the process of judicial construction of legislation. He preferred the contrary approach enunciated by Lord Watson in Administrator-General of Bengal v Prem Lal Mullick (1895) LR 22 Ind App 107 at 116 which was adopted by Isaacs, Gavan Duffy and Rich JJ in Maybury v  Plowman [1913] HCA 43; (1913) 16 CLR 468 at 479. There, Lord Watson said: The respondent maintained this singular proposition, that, in dealing with a consolidating Statute, each enactment must be traced to its original source, and, when that is discovered, must be construed according to the state of circumstances which existed when it first became law. The proposition has neither reason nor authority to recommend it. The very object of consolidation is to collect the statutory law bearing upon a particular subject, and to bring

1. The related issue whether re-enactment in a consolidation of a provision that has been judicially interpreted means that the legislature has approved the interpretation is discussed in 3.54 in relation to the whole question of re-enactment after judicial interpretation. 303

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it down to date in order that it may form a useful code applicable to the circumstances existing at the time when the consolidating Act is passed.

In Ashe v  Sorrento Hotel Pty Ltd [1951] VLR 214 the Full Court of the Victorian Supreme Court divided on the approach that should be adopted in this sort of case, with Lowe ACJ and Gavan Duffy J taking into account the prior interpretation of the Act, while Dean J looked to the effect of the Act without regard to any prior considerations. In the particular case, the actions of the majority involved them in considering the defined meaning of the expression ‘bona fide traveller’ in statutes prior to the consolidation of the Licensing Act 1928 (Vic) when that definition had not been re-enacted in the consolidating Act. Dean J, in rejecting the approach of the majority, took the view that if the intention of the legislature had been to retain the defined meaning of the expression it would have included the definition in the consolidating Act. In his view the consolidation was a mixture of amendment and consolidation. 8.5  Other cases in which the court has divided on the issue whether or not

to pay heed to previous Acts or previous interpretations of Acts that have been consolidated are fairly easily found. The situation seems to be that if the court wants to depart from the prior meaning given to an Act it indicates that the consolidating Act is to be interpreted as a fresh statement of the law and is to be read without regard to what has gone before. If, on the other hand, it is thought desirable to perpetuate the existing interpretation or to follow the terms of earlier Acts, it is simple enough to say that the Acts preceding the consolidation must be examined. For example, in Charlesworth v Winsor [1948] VLR 54 the court looked at the previous Acts; in Thomas v Davies [1937] VLR 217 and National Parks and Wildlife Service v Haig (1990) 21 NSWLR 482 the court refused to do so. In Flinn v Flinn [1951] St R Qd 117 Philp J declined to look at the prior Acts and the way in which they had been interpreted while O’Hagan AJ based his judgment on the previous interpretations. In Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 Griffith CJ and Barton J (dissenting) looked to the history of the enactment while Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ looked only to the consolidation and declined to take into account previous decisions on the law consolidated. Compare also the contrasting views expressed in Walker v McLaren (1884) 2 NZLR 262 and Miller v Lamb (1910) 29 NZLR 873 and see the various pronouncements by the House of Lords set out in the Annexure. Ambiguity in the Act to be interpreted can always justify resort to the previous legislation that has been consolidated: see R v Jimmy Governor (1900) 21 LR (NSW) 278 where reference was made to the long title and preambles of Acts that had been consolidated notwithstanding the omission of those provisions from the consolidating Act.

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8.6

Based on these decisions, perhaps the one point of certainty that can be advanced on this question is that referred to in Goldsbrough, Mort and Co Ltd v Larcombe [1907] HCA 58; (1907) 5 CLR 263: where a provision in a statute has been judicially interpreted, and the legislature subsequently, in a consolidating statute, repeals that provision and substitutes for it a provision in substantially different language, it is to be presumed that it was intended to alter the law as declared by the previous decisions. These are in the main older decisions when the approach to statutory interpretation was more rigid. The more flexible approach to interpretation in Australia following the enactment of the statutory requirements to give effect to purpose (Chapter 2) makes it more likely that previous decisions will be examined as part of the context of the legislation. REPRINTED ACTS 8.6  As mentioned in 1.32–1.33, consolidation of Acts in Australia is not a

common practice. The more usual procedure is for legislation to be reprinted in a form in which the original Act has incorporated into it the amendments made to it after its initial enactment. The production of this text is usually carried out pursuant to statutory authority, but the text itself has no standing as it is not approved by the parliament. For example, the making of an error in the compilation of the text of a reprinted Act would not bring about a change in the law whereas it would if the error were made in a consolidation passed by the parliament. In O’Neill v O’Connell [1946] HCA 59; (1946) 72 CLR 101 at 122, Dixon J commented on the problems associated with the use of a reprinted version of legislation. His Honour said: Exclusive reliance upon the reprint of regulations as amended made pursuant to s  6A(1) of the Rules Publication Act  1903 [Cth] sometimes, in a matter of interpretation, deprives the court of the advantage of seeing how the regulations were developed by amendment and why the amendments were made. Strictly speaking, s 6A(1) does no more than authorize the printing in a conglutinated form of regulations made as separate pieces of subordinate legislation. It does not relieve the court of the duty of construing the regulations on the footing that they do consist of separate legislative acts. It is not often that there is either need of or advantage in looking at the more authentic materials from which the Government Printer has reconstructed his convenient and perhaps more intelligible text. But this case happens, I think, to be such a one. …

Dixon J went on to consider the legislative history of the relevant regulations. These comments were expressly followed by the Full Court of the Tasmanian Supreme Court in Re Killeen [1959] Tas SR 66. The court observed that the Acts permitting the reprinting of legislation did not posit the application to such Acts of the principles of interpretation applicable to consolidating or codifying Acts. 305

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This position has now been superseded in those jurisdictions that provide for a register of legislation and make the version of the legislation that appears on the register the authorised text. However, the register will not necessarily include all legislative instruments. The discussion above is applicable to these instruments. CODIFYING ACTS

Introduction 8.7  A codifying Act gathers together all the relevant statute and case law on a

given topic and restates it in such a way that it becomes the complete statement of the law on that topic: see 1.35. Unlike the civil law countries, codification is not an activity that is engaged in at all commonly in common law countries. There was a burst of activity in the early part of the 20th century that saw the enactment of codes relating to sale of goods and bills of exchange. Criminal Codes, so designated, have been made in the Commonwealth, the Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Western Australia. The other states have comprehensive Acts dealing with the subject. For discussion of the use of such codes in Australia, see M Goode, ‘Codification of the Criminal Law’ (2004) 28 Crim LJ 226; M Gani, ‘Codifying the Criminal Law: Issues of Interpretation’ in S Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Sydney, 2005, Chapter 11. There has been discussion from time to time of the desirability of codifying the common law — contract being the area most frequently mentioned: see particularly A L Diamond, ‘Codification of the Law of Contract’ (1968) 31 MLR 361; M P Ellinghaus, E W Wright and M Karras, Models of Contract Law, Themis Press, Sydney, 2005, published in association with the Law and Justice Foundation of New South Wales. Discussion of the general issue of codification has resulted in a voluminous literature. A sample of contributions giving a flavour of the debate is set out in the Annexure. The description ‘code’ has come to be used somewhat loosely in Australia. The Companies Code so called was interpreted by the courts in the same way as any other statute: see Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319; 100 ALR 609. On occasions, reference is made to provisions of an Act being a code when what is really meant is that the Act deals with the particular subject to the exclusion of other Acts. This is more an application of the generalia specialibus non derogant principle: see 7.20 and, for an example, Bodanski v Jones (1986) 11 NSWLR 677. Likewise statutory provisions that displace the common law are often referred to as a ‘code’: see, for example, Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347 at 365–8; 135 ALR 471 at 488–91. The principal issue for a court in such a case is to determine the extent to which the statute applies: see the presumption against displacement of the common law discussed in 5.34. The following discussion is of the interpretation of codes in their traditional sense. 306

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It should be borne in mind that a code may not necessarily have been drafted by professional drafters. The courts have indicated that, in such a case, the code is to be interpreted liberally with its purpose in mind: NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWSC 1382; (2008) 74 NSWLR 148 at [71]–[75]. Reference to Prior Law 8.8  The main issue relating to the interpretation of codes is whether or not

it is possible to have regard to either the case law or the prior statutes that have been superseded by the code. The theoretical idea of a code is that it replaces all existing law and becomes the sole source of the law on the particular topic. This theory assumes that the code is in no way ambiguous. It also fails to contemplate the notion that expressions may be used that have an accepted legal meaning and that meaning may not be specifically set out in the code. Finally, it fails to take into account the fact that the code will be interpreted by persons who in the common law system are steeped in the notion of precedent and find it virtually impossible to reason from a statute without having regard to its prior interpretations. These problems of interpretation have been reflected in the cases which demonstrate a division in approach to the question whether or not earlier cases may be referred to. Authority for Differing Approaches to Interpretation of Codes 8.9  The orthodox position of declining to take into account the law prior to

the code is stated in the joint judgment of Dixon and Evatt JJ in Brennan v R [1936] HCA 24; (1936) 55 CLR 253. Following the very similar approach that was espoused in Bank of England v Vagliano Bros [1891] AC 107, their Honours said (at 263): [The Criminal Code of Western Australia] forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.

The alternative approach is demonstrated by the judgment of Windeyer J in Vallance v R [1961] HCA 42; (1961) 108 CLR 56 at 74–6. In referring to the Tasmanian Criminal Code his Honour pointed out that in some places the code stated common law principles in words that had long been familiar; other parts of it were an assemblage of old statute law, re-enacted in such a way as to fit in with the language of the code; other parts modified the former statute law. There were also sections that were concerned with matters that were formerly dealt with by the common law, but which used words that seemed to alter earlier doctrine and did not simply declare it. Finally, the code used many words and phrases that, when it was enacted, had well-established meanings and, in his Honour’s view, such words had to be read in their established legal 307

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sense unless the contrary intention appeared. Windeyer  J summarised the effect of all this as follows: The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived or with projected codes such as Stephen’s Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was ‘governed by established principles of criminal responsibility’. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is ch iv of the Code written on a palimpsest, with the old writing still discernible behind.

See  also Mamote-Kulang of Tamagot v  R [1964] HCA 21; (1964) 111 CLR 62 at 76; Kaporonowski v R [1973] HCA 35; (1973) 133 CLR 209; 1 ALR 296, particularly Gibbs J at 236; 313; Director of Public Prosecutions (NT) v WJI [2004] HCA 47; (2004) 219 CLR 43; 210 ALR 276 at [2] and [29] per Gummow and Heydon JJ, but cf Kirby J at [73]. Mason J in Sungravure Pty Ltd v Middle East Airlines Airliban Sal [1975] HCA 6; (1975) 134 CLR 1 at 22; 5 ALR 147 at 164 seemed to pursue something of a middle course between these views. His Honour said of the code under consideration in that case: Its meaning, therefore, is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law (Bank of England v Vagliano Bros [1891] AC 107 at 144–5). An appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, eg if words used have previously acquired a technical meaning. Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law.

See also Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30; (1987) 163 CLR 236 at 243–4; 72 ALR 321 at 325 per Mason CJ. So an ambiguity in the code will justify resort to the common law: Stuart v R [1974] HCA 54; (1974) 134 CLR 426 at 437; 4 ALR 545 at 555; R v Barlow [1997] HCA 19; (1997) 188 CLR 1 at 18; 144 ALR 317 at 329. But the ambiguity must appear from the provisions of the code; it is not permissible to resort to the antecedent common law in order to create an ambiguity: Mellifont v Attorney-General (Queensland) [1991] HCA 53; (1991) 173 CLR 289 at 309; 104 ALR 89 at 101. 8.10  The second qualification of regard being had to words having a technical meaning was expanded upon by Brennan J in Boughey v  R [1986] HCA 29; (1986) 161 CLR 10 at 30; 65 ALR 609 at 623:

It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law but when the Code employs words 308

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and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law … The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required. [references omitted]

This statement was endorsed by McHugh J in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493; 206 ALR 422 at [29] and applied by a majority of the High Court in R v LK [2010] HCA 17; (2010) 241 CLR 177; 266 ALR 399 at [97]. However, the common law cannot override the code. As was stated by the Court of Appeal in Hayman v  Cartwright [2018] WASCA 116 at [60]: ‘Whether the statutory definition [as set out in the code] reflects the common law meaning is determined after, and as a consequence of, ascertaining the meaning of that definition through the process of construction.’ Reference may also be made to decisions from other jurisdictions for the purpose of ensuring consistency in interpretation of codes dealing with the same subject in different Australian jurisdictions: R v Barlow [1997] HCA 19; (1997) 188 CLR 1 at 31; 144 ALR 317 at 340 per Kirby J; Charlie v R [1999] HCA 23; (1999) 199 CLR 387; 162 ALR 463 per Callinan J at [69]. Application of Differing Approaches to Interpretation of Codes 8.11  The passages from Brennan’s case and from Vallance’s case set out in 8.9

are usually referred to by courts dealing with the question of interpretation of codes. However, there is considerable variation in the approach adopted by the judges as to whether the principles set out in those cases permit the consultation of prior authorities. One can in fact see different approaches being consistently taken by different judges. For example, in R v Scarth [1945] St R Qd 38 Macrossan SPJ and Stanley AJ looked at the prior law of criminal negligence in interpreting a provision of the Queensland Criminal Code. Philp J in the same case declined to look at the common law authorities on the topic. In R v Knutsen [1963] Qd R 157 Stanley J again considered the common law rules this time relating to grievous bodily harm, while in R v Martyr [1962] Qd R 398 Philp J (together with Mansfield CJ and Townley J) declined to consider earlier common law decisions on accident as a defence to a charge of unlawful killing. Those judges who are anxious to refer to prior common law authority invariably rely on the statement by Windeyer J that reference to former authority is permissible where the code uses the language of the common law. See, for example, Burbury CJ in Murray v R [1962] Tas SR 170 at 172–3. But the influence that this approach can have on the interpretation of a code is graphically illustrated by the following passage from the judgment of Burbury CJ in that case at 173: The court will then incline to hold the view that the intention of the legislature was to retain the pre-existing legal concept as part of the criminal law and will 309

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in spite of semantic difficulties which may arise from the literal interpretation of related provisions of the code give effect to that intention as a controlling interpretative factor.

Statements of this kind infuriate advocates of codification of the law. They illustrate the great difficulty that common law judges experience when confronted with a code and how readily they will abandon its terms and retreat to the familiar ground of the common law. There seems no effective way to resolve the difference in approach revealed by the decisions. It can be expected that in the future judges wishing to refer to the common law principles will do so while others will espouse the view that the code is the sole source of law. It is all too easy to justify a return to the common law on the grounds of ambiguity, real or imaginary. While it can be expected that this practice will continue for some time, it is to be hoped that the courts will come to recognise the reason for codification of the law and the benefits that are seen to flow to the public from the statement of all the law on a topic in one document. The approach to the interpretation of codes propounded by Mason J in the Sungravure case (see 8.9) should, it is suggested, be that which is followed. This seems to accommodate a code to the common law system by recognising its paramountcy while acknowledging that the need may arise to draw on earlier cases to resolve ambiguity in it, particularly when an expression used has acquired a recognised technical meaning: see Hutley JA in Park v Brady [1976] 2 NSWLR 329 at 333; Kunakool v Boys (1987) 14 FCR 489 at 505–7; 77 ALR 435 at 452–4 where French J also referred to extrinsic material explaining the intended effect of the code. For a summary of the position see Kirby J in R v Barlow [1997] HCA 19; (1997) 188 CLR 1 at 31; 144 ALR 317 at 339 and Charlie v R [1999] HCA 23; (1999) 199 CLR 387; 162 ALR 463 at [14]. Developments in Law Since Enactment of Code 8.12  A different issue that arises is whether the code fixes the law for all time or whether it, like other statutes, is to be interpreted ‘dynamically’, that is to say by taking account of changes in the law and social mores. It would seem that the better view is that a code is to be interpreted as ‘always speaking’ just as is other legislation: see 4.14.

So in PGA v R [2012] HCA 21; (2012) 245 CLR 355; 287 ALR 599 the High Court held that the so-called ‘marital exemption’ from the crime of rape no longer applied to a charge under a criminal code even though it might have done so at the time of the enactment of the code. See also Daniels Corporation International Pty Ltd v  Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at [35] where the conclusion in Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319; 100 ALR 609 that legal professional privilege was excluded by 310

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the Corporations Code was doubted. The conclusion in Yuill was based on the assumption that the Code should be interpreted having regard to the law as propounded at the date of its making. The court in Daniels rejected this approach. This approach also runs counter to the purist view of the purpose of a code. However, it accords more readily with the general approach to interpretation in common law countries that sees interpretation as an iterative process. Code to be Read by Citizens 8.13  One final point relating to the interpretation of codes that should be mentioned is a view that codification makes the law accessible to citizens. No longer, it is claimed, is it necessary to search the law books for guidance on the law: the code provides it in the one place. This idealised view is no longer strongly asserted by proponents, it being recognised that even in the civil law countries there is an overlying patina of judicial decisions that must be known if the law even though expressed in a code is to be comprehended. However, the notion of a code being able to be read by citizens was alluded to forcefully by the High Court in Boughey v R [1986] HCA 29; (1986) 161 CLR 10 at 21; 65 ALR 609 at 617 per Mason, Wilson and Deane JJ. Speaking of the approach to the interpretation of the Tasmanian Criminal Code they said:

There is a further reason why one should not superimpose upon the word ‘likely’ in either s  156(2) or s  157(1) of the Code refinements of meaning which the word does not convey as a matter of ordinary language. A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary (see Jolowicz: Historical Introduction to the Study of Roman Law (1939), pp 491–2; Gray: The Nature and Sources of the Law (1909), pp 176–7). The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty.

While this approach is to be supported, it is a little difficult to see  why it should not be applied to the interpretation of all legislation. It is not just codes that impose obligations on citizens.

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CHAPTER 9

Interpretation of Remedial, Penal and Fiscal Provisions INTRODUCTION 9.1  It is a matter of conjecture whether the courts interpret statutes that can

be described as remedial, penal or fiscal differently from other statutes. As long ago as 1905, Griffith CJ in Master Retailers’ Association of New South Wales v Shop Assistants Union of New South Wales [1904] HCA 39; (1904) 2 CLR 94 at 106 considered that ‘the old distinction drawn between remedial and penal Acts has of late years been much discredited. What has been laid down in modern cases is that the duty of the Court is to interpret Acts according to the intent of the Parliament which passed them’. While this statement is undoubtedly correct, the courts do nonetheless adopt a slightly different approach in regard to these types of Acts, particularly when they are confronted with a choice between two or more tenable views as to the meaning of an Act. Remedial or, as they are often called, ‘beneficial’ statutes are interpreted having regard to the fact that they are intended to remedy a perceived injustice or provide a benefit to the persons to whom they apply. It is unlikely that their legislative purpose will be given effect if they are interpreted in a way that overlooks that intention. In regard to penal statutes, as is only proper, the courts are very careful to place the liberty of the subject in jeopardy only where the legislature has clearly so ruled. Taxing legislation used to be interpreted in much the same way as penal statutes. However, there is now a greater reluctance to demonise the imposition of taxation, its social purpose being given due recognition. Nonetheless, courts indicate that it is necessary to be sure that the subject of taxation is properly liable to the obligation incurred. One of the problems that arises in regard to these types of statutes is that they are seldom exclusive in the matters with which they are concerned. A remedial statute will frequently also include penal provisions. Taxing statutes include exceptions based on socioeconomic considerations about which there is an element of benefit to particular persons. They usually also contain penal provisions. For this reason one should think not so much of the approach of the courts to particular statutes but rather to particular types of provisions that may appear in any legislation. 312

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REMEDIAL OR BENEFICIAL PROVISIONS

Remedial or Beneficial Provisions to be Interpreted Liberally Identification of beneficial provisions 9.2  A remedial or beneficial provision is one that gives some benefit to a

person and thereby remedies some injustice: Re McComb [1999] 3 VR 485 at 490. The most commonly cited examples are social welfare and pensions legislation, workers’ compensation Acts, safety legislation and so on. However, any legislation that is taken to make a change in existing law or adopt new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial: see the legislation referred to in 9.5. The orthodox view of the approach to be adopted in relation to the interpretation of this type of legislation is provided by Isaacs J (dissenting) in Bull v  Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370. The case concerned the interpretation of a section of the Crown Lands Act of 1895 (NSW) validating certain transactions. It was held by the majority of the court not to validate all transactions under Crown lands legislation but only those that independently of the operation of the legislation were defective. Isaacs J took the view that the section was intended to validate all transactions concerning Crown lands. He said (at 384): In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.

It should not be thought from the reference to ambiguity in this extract that Isaacs J was suggesting that the beneficial interpretation approach only applies where there is an ambiguity in the legislation. It is apparent from his endorsement of the view of Lord Shaw in Butler (or Black) v Fife Coal Co [1912] AC 149 (see 9.8) that the reference to ambiguity is intended as an example of the general approach to remedial provisions — ambiguous provisions are to be interpreted in a manner favourable to those who are to benefit from the legislation: see  R  v  Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433; 52 ALR 24 at 28; Zangzinchai v Milanta (1994) 53 FCR 35 at 42–3; 125 ALR 265 at 272. It has to be emphasised that regard must be paid to the interpretation of the provision that is under consideration. While certain legislation will be regarded as beneficial and its provisions will therefore have to be interpreted to give effect to that purpose, individual provisions of legislation that is not, as a whole, to be regarded as beneficial may nevertheless have such a purpose and must be interpreted accordingly. This was recognised by Weinberg J in Nilant v  Macchia [2000] FCA 1528; (2000) 104 FCR 238; 178 ALR 371 in relation to a provision of the Bankruptcy Act 1966 (Cth). While acknowledging that the Act could not be described as beneficial legislation, one provision was 313

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so characterised and was therefore to be interpreted ‘beneficially, and as generously as the language of the section allows. It should certainly not be construed in a narrow or pedantic manner’: at [42]. The High Court has said that courts have a special responsibility to take account of and give effect to the purpose of legislation that protects or enforces human rights: Waters v  Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; 103 ALR 513 at 359; 520 per Mason CJ and Gaudron J; AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390; 281 ALR 694 at [24]. See also 9.5 for examples of this approach being applied to specific human rights. The liberal approach to the interpretation of beneficial legislation is particularly pertinent to the interpretation of amendments that extend benefits conferred by remedial legislation: Tracy v  Repatriation Commission [2000] FCA 779; (2000) 101 FCR 149; 61 ALD 361 at [13]; and to legislation providing for review of administrative decisions: Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; 202 ALR 63 at [64]. See also the cases referred to in 9.5 under the heading ‘Courts, jurisdiction and powers’. This approach is also applied frequently to compensation legislation. A particular application is to be found in Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 where Dixon CJ said at 361: … it is well settled that a right to compensation conferred by the Act is not to be restricted or denied because of difficulties in fitting the clauses relating to the computation of compensation to the circumstances of his case.

Restraints on beneficial interpretation 9.3  The approach to interpretation of beneficial provisions enunciated here

is subject to the rider that the interpretation adopted ‘must be restrained within the confines of the actual language employed and what is fairly open on the words used’: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638; 54 ALR 639 at 650. Brennan CJ and McHugh J put it in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11; 146 ALR 696 at 702: … beneficial and remedial legislation, like the [Equal Opportunity Act 1984 (WA)], is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

The High Court in ADCO Constructions Pty Ltd v  Goudappel [2014] HCA 18; (2014) 254 CLR 1; 308 ALR 213 at [29] noted the beneficial nature of workers’ compensation legislation but found that a regulation-making power to exclude certain injuries from compensation had to be given its full effect: … to accept the beneficial purpose of the [Worker’s Compensation] Act as a whole does not mean that every provision or amendment to a provision has 314

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a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.

For further examples of the approach posited here see the Annexure. It is therefore a mistake to approach the understanding of the legislation with a presumption that it is beneficial: Victims Compensation Fund Corporation v  Brown  [2003] HCA 54; (2003)  201 ALR 260 at [33]: ‘[T]o commence the process of construction by posing the type of construction to be afforded — liberal, broad or narrow — may obscure the essential question regarding the meaning of the words used.’ See also Attorney-General for Tasmania v L, C [2018] TASFC 6 at [39]. Gageler J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232; 339 ALR 367 reminded at [92]: The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s  33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation ‘rarely pursues a single purpose at all costs’ and that ‘[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling’. [citations omitted]

See also French CJ, Kiefel, Bell and Keane JJ at [32]–[33]. The words of the legislation must first be examined and if they admit of only one outcome, that must be the meaning attributed to the words. It is only if more than one interpretation is available or there is uncertainty as to the meaning of the words that the beneficial interpretation approach arises. The construction of the legislation must present a choice: Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 319–20; Kavalee v Burbidge (1998) 43 NSWLR 422 at 441; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [52]. The result of this is that if apparently competing sections can be reconciled by the standard means of interpretation, there is no room for the application of the beneficial legislation approach: see also Comcare Australia v Pires [2005] FCA 747; (2005) 143 FCR 104; 86 ALD 592 at [44]. Legislation must be ‘beneficial’ 9.4  It is also necessary to be certain that the purpose of the legislation is

properly to be regarded as ‘beneficial’. Tariff rebate provisions have been said in a number of decisions to be treated as being beneficial and interpreted accordingly: see  9.5. However, in Commissioner of Taxation v  Ostwald Bros Civil Pty Ltd [2008] FCAFC 99; (2008) 167 FCR 588 the court rejected this approach to the particular legislation before it. Reference to the parliamentary 315

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debates persuaded the court that the rebates were to be limited to the specific activities referred to in the legislation. There was therefore no basis to interpret the Act beneficially in favour of the applicant. See also Asciano Services Pty Ltd v Commissioner of Taxation [2009] FCAFC 28; (2009) 174 FCR 140. The Australian Citizenship Act 2007 (Cth) was held in Hudson v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR  393; 272 ALR 605 at [42] not to be beneficial legislation. A provision which on its face may appear to have a beneficial purpose may need to be limited in its operation because it in fact represents a compromise between competing interests: Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [44]–[46]. The fact that legislation is properly to be regarded as beneficial does not necessarily mean that all its provisions are to be so interpreted. So an unsuccessful applicant was held not to be able to avoid a costs order simply on the basis that the legislation under which the application had been brought was beneficial: Fetherson v  Peninsula Health (No 2) [2004] FCA 594; (2004) 137 FCR 262 at [9]; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [35]. For a general discussion see  Brenda Tronson, ‘Statutory Interpretation: Context and Beneficiality’ (2016) 27 Law Society Journal 82. Examples of application of beneficial interpretation approach 9.5  The view that there are statutes which can be classified as remedial

or beneficial and therefore interpreted liberally has found support in the following cases in relation to the subject mentioned: • Aboriginal land rights, native title and heritage: R v Toohey; Ex parte AttorneyGeneral (NT) [1980] HCA 2; (1980) 145 CLR 374; 28 ALR 27; R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433; 52 ALR 24 at 28; R v Toohey; Jungarrayi v Olney (1992) 34 FCR 496 at 506; 105 ALR 527 at 537–8; Tickner v Bropho (1993) 40 FCR 183 at 193; 114 ALR 409 at 419; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124; 132 ALR 329 at 348; Minister Administering the Crown Lands Act v  NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285; Starkey v South Australia [2011] SASCFC 164; (2011) 111 SASR 537 at [16]–[19]; • administrative review: Commonwealth v  Ford (1986) 65 ALR 323; Cole v  Director-General of Department of Youth and Community Services (1986) 7  NSWLR 541; Australian Broadcasting Tribunal v  Bond [1990] HCA 33; (1990) 170 CLR 321 at 335; 94 ALR 11 at 22; Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 376–7; 108 ALR 77 at 87–8; Ho v King (1994) 34 ALD 510; Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; 202 ALR 63 at [64]; • anti-discrimination/equal opportunity: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; 103 ALR 513; Sinnapan v Rizkalla [1993] 1 VR 547; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 316

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• •

•

• •

•

•

9.5

at 12, 58; 146 ALR 696 at 702, 738; Commonwealth v  Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; 152 ALR 182; Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180; (1999) 93 FCR 481; 56 ALD 387; Richardson v ACT Health & Community Care Service [2000] FCA 654; (2000) 100 FCR 1; Central Northern Adelaide Health Service v Atkinson [2008] SASC 371; (2008) 103 SASR 89; 252 ALR 168 at [81]; AB v  Western Australia [2011] HCA 42; (2011) 244 CLR 390; 281 ALR 694; NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; (2014) 250 CLR 490; 306 ALR 585; Abblitt v Anti-discrimination Commissioner [2016] TASSC 12; (2016) 24 Tas R 18; bridging visa: VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14; (2004) 134 FCR 402; 204 ALR 152 at [22]–[23]; building and construction industry payments: Agripower Australia Ltd v J & D Rigging Pty Ltd [2013] QSC 164 at [37]; Capricorn Quarries Pty Ltd v Inline Communication Construction Pty Ltd [2012] QSC 388; [2013] 2 Qd R 1 (but see the reservations expressed at [40]); Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31 at [30]; consumer protection: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503–4; 114 ALR 355 at 387; Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61; (1993) 179 CLR 15 at 41; 117 ALR 321 at 336; Qantas Airways Ltd v  Aravco Ltd [1996] HCA 12; (1996) 185 CLR 43 at 60; 136 ALR 510 at 521; Jonsson v Arkway Pty Ltd [2003] NSWSC 815; (2003) 58 NSWLR 451 at [28]; contract of sale: Re Priebbnow [1941] St R Qd 143; courts, jurisdiction and powers: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205; 107 ALR 585 at 605; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 313; 131 ALR 377 at 385; Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275; 244 ALR 600 at [93]; Transport Workers Union of Australia v Qantas Airways Ltd [2012] FCAFC 10; (2012) 199 FCR 190; 287 ALR 236 at [10]; criminal injuries compensation: Re Applications of Foster [1982] 2 NSWLR 481; Northern Territory v  Couzens [2004] NTSC 50; (2004) 187 FLR 1; Attorney-General for Tasmania v L, C [2018] TASFC 6; customs (rebate provisions): Re Santos Resources Pty Ltd and Collector of Customs (Qld) (1988) 18 ALD 11 at 24; Regional Director of Customs (WA) v  Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 at 120; Chief Executive Officer of Customs v  Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147; 207 ALR 687 at [17]; Queensland Rail v Commissioner of Taxation [2006] FCA 816; (2006) 153 FCR 524 at [39]; Ergon Energy Corporation Ltd v  Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551; 232 ALR 652 at [88]; Commissioner of Taxation v Ostwald Bros Civil Pty Ltd [2008] FCAFC 99; (2008) 167 FCR 588; 317

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• damages (apportionment): Griffith Morgan Jones v  Mortgage Acceptance Nominees Ltd [1995] FCA 1654 at [286], [313]; [1996] FCA 1255 at [7]; • dust diseases: Amaca Pty Ltd v  Cremer [2006] NSWCA 164; (2006) 66 NSWLR 400 at [50]; • factories and shops: Armitage v Stewart (1907) 7 SR (NSW) 645; • family law: Curnow v O’Sullivan (No 2) (1976) 11 ALR 465 at 467; • family provision: Holmes v  Permanent Trustee Co of New South Wales  Ltd [1932] HCA 1; (1932) 47 CLR 113; Worladge v  Doddridge [1957] HCA 45; (1957) 97 CLR 1 at 9 per Williams and Fullagar JJ; Kavalee v Burbidge (1998) 43 NSWLR 422; Barns v Barns [2003] HCA 9; (2003) 214 CLR 169; 196 ALR 65 at [44] per Gummow and Hayne JJ; • human rights: see 9.2 and see also ‘prisoners’ rights’, below; • industrial safety: Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; 64 ALR 195; • industry assistance/bounties/grants: Re Butterworths Pty Ltd and Minister for Business and Consumer Affairs (1979) 2 ALD 612 at 619; Re Entech Printed Circuits Pty Ltd and Chief Executive Officer of Customs (1999) 55 ALD 244 at 254; Re Cash Converters Ontario Pty Ltd and Australian Trade Commission [1999] AATA 86; • insurance contracts: East End Real Estate Pty Ltd v C E Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400; Antico v Fielding Australia Pty Ltd [1997] HCA 35; (1997) 188 CLR 652 at 675; 146 ALR 385 at 400; • Justices (release on entry into recognisance): Timothy v  Munro [1970] VR 528; • life insurance: NM Superannuation Pty Ltd v Young (1993) 41 FCR 182; 113 ALR 39; • long service leave: Lindner Pty Ltd v  Builders Licensing Board [1982] 1 NSWLR 612; • patents (extensions of time): Husky Injection Molding Systems Ltd v Commissioner of Patents (1990) 26 FCR 45 at 46–7; 98 ALR 133 at 135; • personal property securities: SFS Projects Australia Pty Ltd v  Registrar of Personal Property Securities [2014] FCA 846; (2014) 226 FCR 188 at [71]; • prisoners’ rights: Castles v Secretary of Department of Justice [2010] VSC 310; (2010) 28 VR 141 at [127]–[128]; Kheir v Department of Justice and Regulation [2019] VSC 76 at [21]; • public lending rights: Re Green and Public Lending Right Committee [1999] AATA 490; • real property (compensation fund): Registrar-General v  Harris (1998) 45 NSWLR 404 at 416; • research and development incentives: Industry Research and Development Board v Phai See Investments Pty Ltd [2001] FCA 532; (2001) 112 FCR 24; at [25]; 318

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• retail leases: Manly Council v Malouf t/as Fusion Fashion [2004] NSWCA 299; (2004) 61 NSWLR 394 at [74]; • scaffolding and lifts: Rice v Henley [1914] HCA 75; (1914) 19 CLR 19; • service and execution of process: Reid Murray Development (Queensland) Pty Ltd v Lynwood Holdings Pty Ltd [1964] QWN 1; • social security: Rose v Secretary, Department of Social Security (1990) 21 FCR 241; 92 ALR 521; Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18; 97 ALR 364 at 370; cf Secretary, Department of Social Security v SRA (1993) 43 FCR 299 at 303; 118 ALR 467 at 471; • solicitors guarantee fund: Solicitors’ Trust v  Oxenbould [2013] TASFC 2; (2013) 22 Tas R 235 at [36]; • suitors fund: Mir Bros Development Pty Ltd v Atlantic Constructions Pty Ltd [1985] 1 NSWLR 632; • superannuation complaints: Briffa v Hay (1997) 75 FCR 428 at 436; 147 ALR 226 at 234; Machin v Board of Trustees [2010] FCA 969; (2010) 189 FCR 85; 272 ALR 508 at [71]; • trade practices: Melway Publishing Pty Ltd v  Robert Hicks Pty Ltd [2001] HCA 13; (2001) 205 CLR 1; 178 ALR 253 at [90] per Kirby J; • veterans’ entitlement/repatriation: Repatriation Commission v Hayes (1982) 64 FLR 423; 43 ALR 216; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; 76 ALR 449 at 454; Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211; 117 ALR 225 at 231; Tracy v  Repatriation Commission [2000] FCA 779; (2000) 101 FCR 149; 61 ALD 361 at [13]; Re  Baverstock and Repatriation Commission [2008] AATA 467; (2008) 102 ALD 682 at [50] (Statements of Principle); • workers’ compensation: Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; (1960) 104 CLR 328 at 335; Dodd v Executive Air Services Pty Ltd [1975] VR 668 at 679, 682; Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 9; 78 ALR 469 at 474; J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632; Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 33; Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 134 ALD 82 at [14]; • workers’ liens: Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd [2012] SASCFC 84; (2012) 113 SASR 341 at [33]; • workplace relations: Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212; 274 ALR 570 at [17]. Intended Subject of Benefit 9.6  The approach adopted in the cases referred to in the last paragraph

seems appropriate. If an Act is intended to benefit a particular person or class of persons, it is preferable for any ambiguity to be resolved in favour 319

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of the intended beneficiary. However, it must be clear that the provision is intended to achieve the beneficial purpose claimed. For example, in Khoury v  Government Insurance Office (NSW) (1984) 165 CLR 622; 54 ALR 639 the High Court considered a section of the Insurance Act 1902 (NSW) which allowed a person to be excused a failure to observe a term of an insurance contract if the insurer was not prejudiced by the failure. The court agreed that this was a beneficial provision and should be construed accordingly. However, its terms did not extend to a failure to comply with common law duties and its beneficial nature could not be relied upon to extend its operation in this way. See also Consolidated Fertilizers Ltd v Deputy Commissioner of Taxation (1992) 36 FCR 1 at 6; 107 ALR 456 at 461; Ralph M Lee (WA) Pty Ltd v Fort (1991) 22 ALD 465. Excepting Provisions 9.7 In Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244;

92 ALR 521 at 524, a Full Court of the Federal Court noted that enabling and excepting provisions in a remedial Act did not thereby have to be given a liberal interpretation. It depended upon the purpose of the provision. Exceptions may be included in the legislation to provide the practical balance between competing public interests. As such they should be interpreted carefully in order not to destroy that balance. (Statement approved in Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147; 207 ALR 687 at [17].) Legislation that is meant to deal with social problems will very often represent political choices. For an example of this see Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; (2002) 72 ALD 321 where the court had to consider an exception to the Racial Discrimination Act 1975 (Cth) permitting fair comment. Simply to treat all the provisions of the legislation as requiring a liberal interpretation is too simplistic an approach: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 520–1, 547; 152 ALR 182 at 189, 215; Kennedy v  Anti-Discrimination Commission of the Northern Territory [2006] NTCA  9; (2006) 226 FLR 34; 92 ALD 134 at [22]. See the Annexure for further cases where exceptions to what was regarded as beneficial legislation were read so as to limit the exception in order to preserve the scope of the beneficial effect of the legislation. Difficulties where Act both Beneficial and Penal 9.8  A very real problem can arise where, to achieve its beneficial purpose, an

Act penalises certain conduct. Then there is a conflict between the approach of interpreting beneficial legislation liberally to achieve its purpose and, as is discussed below, not extending the operation of a penal provision beyond its strict words. This conflict is illustrated by Mathews v Foggitt Jones Ltd [1925] HCA 13; (1925) 37 CLR 455. The case concerned an Act which prohibited, as 320

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a health safety measure, the bringing into the Newcastle area of any portion of the carcass of an animal slaughtered outside the area. The weighty question that had to be determined by the highest court in the land was whether a sausage was a portion of the carcass within the meaning of the Act. Knox CJ and Gavan Duffy J held that it was not. Isaacs J held that it was. Isaacs J quoted Lord Shaw in Butler (or Black) v Fife Coal Co [1912] AC 149 at 178–9: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty’s subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure.

The fact that this conflicts with the approach adopted in relation to the interpretation of penal statutes was not alluded to. It was discussed, however, by the High Court in Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; 64 ALR 195. There the court indicated that it was necessary to look at the dominant purpose of the legislation. If, as in the instant case, this was to protect workers from risk of injury, the strict construction required of a penal statute should not be adopted so as to deprive a worker of the protection the parliament intended to afford. See also R v Irvine [2009] VSCA 239; (2009) 25 VR 75 at [90]. This approach accords with that adopted by Isaacs J in Mathews’ case and seems to be that which best resolves any conflict. The judgment in Waugh’s case makes the point that the obligation imposed by the Act must be apparent, but within that limitation there is no room for a limited construction to be placed on the operation of a statute the purpose of which is remedial or beneficial. When interpreting beneficial legislation ‘the rule of strict construction of penal provisions is one of last resort’ (at 164–5; 200–1). This statement was endorsed in Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 109–10; 149 ALR 623 at 640. For further examples see the Annexure. Protective Provisions 9.9  What might be regarded as a sub-category of beneficial provisions

was identified (although not in those terms) by Mason J in Day and Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Ltd [1982] HCA 20; (1982) 150 CLR 85; 40 ALR 399. Section 86 of the Bankruptcy Act 1966 (Cth) allows for a set-off of debts in a case where there have been mutual dealings between a bankrupt and another person. The purpose of the section is to provide protection for those who engage in mutual dealings with a bankrupt. It was reasonable to impute that the provision should be given ‘the widest possible scope’: at 415. A like approach was adopted in the following cases: • Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7; (1991) 172 CLR 32; 99 ALR 275: provision of the Trade Practices Act 1974 (Cth) proscribing and regulating agreements in restraint of trade; 321

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• McAusland v  Deputy Commissioner of Taxation (1993) 47 FCR 369; 118 ALR 577: Companies Code procedures for winding up of a company; • Exicom Pty Ltd v Futuris Corporation Ltd (1995) 18 ACSR 404; 123 FLR 394 at 407; 397: insider trading provisions; • Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 118–19; 138 ALR 655 at 678: right to bring civil proceedings in the public interest; • Magic Australia Pty Ltd v  Caltex Oil (Australia) Pty Ltd (1988) 19 FCR 389 at  394–5; 84 ALR 483 at 489: protection of franchisee  against termination of the franchise agreement; • Howell v  O’Brien [2009] NSWSC 538: protection against disclosures related to child protection; • James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; (2010) 43 NSWLR 312; 274 ALR 85 at [356]: corporation’s listing disclosure obligations. This type of provision can, however, also be regarded as having punitive effect: Rich v  Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271 at [30]–[35] overruling Australian Securities Commission v  Kippe (1996) 67 FCR 499; 137 ALR 423 (disqualification of directors may protect public but it also penalises directors). See also Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 319; 153 ALR 439 at 445 in relation to provisions prohibiting entry into a contract where it is emphasised that it does not necessarily follow that a contract entered into in breach of the prohibition is itself illegal and unenforceable. It is necessary to determine the purpose of the prohibition. PENAL PROVISIONS

Former Approach to Interpretation of Penal Provisions 9.10  The desire of the courts in earlier days to abrogate the effect of provisions that visited barbaric penalties on miscreants led to the development of an approach to the interpretation of penal statutes that has survived despite what may be thought to be the passing of the reason for its adoption. It was stated in Australia in the case of Ex parte Purcell (1907) 7 SR (NSW) 432 by Cohen J who set out with approval a statement of Lord Esher MR in Tuck v Priester (1887) 19 QBD 629 at 638: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.’ The other judge of the Supreme Court, Rodgers J, also specifically followed the decision of Tuck v Priester. In 1944 Jordan CJ endorsed the statement in the case of Re Craig; Ex parte Zietsch (1944) 44 SR (NSW) 360 at 365.

This somewhat naive approach has now been abandoned in Australia. 322

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Present Approach to Interpretation of Penal Statutes 9.11  The approach used nowadays by the courts was enunciated some time ago by Isaacs J in Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 154–5:

When it is said that penal Acts or fiscal Acts should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit in the one case to restrain private action to a limited extent and penalise a contravention of its directions, and in the other to exact from individuals certain contributions to the general revenue, a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.

Isaacs J here underlines the fact that the task of the court is neither to be too ready to convict nor to acquit. The mere discovery of an ambiguity in a penal statute should not automatically mean that a defendant must be acquitted. The court must go further in its inquiry. It must ascertain the legislature’s wishes as best it can and then carry out those wishes. Should there be any ambiguity in the statute, the court must endeavour to resolve that ambiguity by the application of the various aids to construction that are applicable to all statutes. Then, and only then, if a doubt still remains as to the meaning of the penal provision should the issue be resolved in favour of the defendant. (This passage was set out and endorsed in Director of Public Prosecutions v  Priestley [2013] NSWSC 407 at [13].) Isaacs J’s approach was restated by the High Court in R v  Adams [1935] HCA 62; (1935) 53 CLR 563 at 567–8 in the following terms: No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

This statement is frequently cited by the courts. It was applied, for example, by the New South Wales  Court of Criminal Appeal in Director-General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 at [24] and the Federal Court in Westpac Banking Corporation v Australian Securities and Investments Commission [2009] FCA 1506; (2009) 181 FCR 379 at [44]. However, perhaps the most frequently quoted statement in more recent cases is that of Gibbs J in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 576; 12 ALR 333 at 339: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be 323

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applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.

This statement was endorsed by the High Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129 at 145; 50 ALR 1 at 15 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164; 64 ALR 195 at 200. The notion of the rule of strict interpretation of penal statutes being one of ‘last resort’ as referred to by Gibbs J in Beckwith’s case has been pursued in other cases. In Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, the High Court considered a provision which made it an offence for an insurer not to inform clients expressly and in writing that certain cover was not offered by a particular policy. Counsel for the respondent had stressed that a narrow reading should be adopted in line with the rule of strict construction. At 102–3, Toohey, Gaudron and Gummow JJ said that the provision ‘casts an obligation upon the insurer, in aid of remedial measures passed for the protection of those dealing with insurers. In such a context, the rule of strict construction of penal provisions is one of last resort’. In Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 at [55], Leeming JA noted that: Although it was at the forefront of his written submissions, the principle invoked by Mr Grajewski [that is, the rule of strict construction] does not exclude the ordinary rules of construction. Indeed, Gibbs J’s qualified observation in Beckwith v R (1976) 135 CLR 569 at 576 that the ‘rule is perhaps one of last resort’ has much more recently been reiterated in unequivocal terms: by Nettle and Gordon JJ in Re Day (No 2) [2017] HCA 14 at [276] and in the joint judgment in Aubrey v R [2017] HCA 18 at [39]. I do not for a moment understand the High Court, by referring to ‘rules’ and ‘last resort’, to be implying that the task of ascertaining the legal meaning of a statute is mechanistic, to be determined by the application of rules, amongst which the penal character of the statute is the last to be invoked. The process is considerably more nuanced, reflecting as it does the constitutional relationship between the various arms of government … [A] statute’s penal character is to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose. [emphasis in original]

The general approach to the interpretation of penal legislation was also discussed in the cases referred to in the Annexure. 9.12  The requirements of provisions such as s  15AA of the Acts Interpretation Act  1901 (Cth) and equivalent provisions in the states and territories (see 2.15–2.29) oblige the courts to follow the approach adopted in the cases referred to in those paragraphs: see Webb v Harris (1983) 47 ACTR 17 at 23; Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 47–8; 58 ALR 423 at 471–2; and Minister for Immigration and Multicultural 324

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Affairs v Dhingra [2000] FCA 406; (2000) 98 FCR 19; 61 ALD 65 at [37]–[39]. However, ‘there would be no contradiction between an Adams construction [R v Adams [1935] HCA 62; (1935) 53 CLR 563] and s 33 of the Interpretation Act 1987 (NSW) because to prefer the construction promoting the object and purpose of a statute is to apply it according to its terms’: Director-General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 at [25]. The High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1 at [57] said that the fact that a statute contains penal provisions is part of its context and is therefore relevant to the task of construing the statute in accordance with established principles of statutory interpretation. The kind of argument that is not tenable when the approach suggested here is adopted is mentioned in Medical Board v Du Maurier; Ex parte Du Maurier [1927] St R Qd 169. Macrossan SPJ, while agreeing that an offence must be properly defined, said (at 172) that a mere grammatical defect that was readily recognisable should not be allowed to destroy an otherwise effective section. Nor should the fact that a section was open to two constructions on either of which the offence charged was proved be sufficient to lead to the acquittal of the defendant. Likewise, the fact that one prohibition in a provision was not stated clearly should not be regarded as sufficient to vitiate other prohibitions that were properly defined. All that said, there can be circumstances where the penal nature of a provision points against a broad interpretation. A majority of the High Court in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193; 221 ALR 448 said at [45]: ‘An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit “practical” construction of [the relevant provision].’ See also Kirby J at [227]. This statement was applied in Westpac Banking Corporation v  Australian Securities and Investments Commission [2009] FCA 1506; (2009) 181 FCR 379 in determining whether one type of credit card was of the ‘same kind as another’ where such a conclusion would mean a criminal offence had been committed. See also its application in R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60 at [39]; Wiseman v Department of Fisheries [2013] WASC 86 at [72]. When considering the interpretation of penal statutes, regard should be paid to the commentary above relating to statutes that enforce a beneficial purpose through a penalty (see  9.8) and provisions that have a protective rather than a penal purpose: see 9.9. Words of Penal Provision Strictly Adhered to 9.13  The adoption of the approach set out in the last paragraph does not mean that the courts will be prepared to depart from a strict application of the words of a penal provision. The liberty of the subject is at stake and the 325

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courts make it clear that they will not extend a statute to cover a particular situation merely because it appears that the legislature has acted inadvertently. For example, in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 a medical practitioner was charged with issuing a certificate relating to the sanity of a person admitted voluntarily to a mental hospital without first having examined the person. It was clearly an offence to issue a certificate in these circumstances in the case of a person compulsorily committed to an asylum, but the Act was silent in regard to certificates relating to voluntary admissions. Jordan CJ, delivering the judgment of the court, said that, while the action of the doctor may have been within the class of mischief intended to be proscribed by the Act, it was not covered by the Act and the doctor could not be convicted. He said (at 186): If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.

McHugh J in Krakouer v  R [1998] HCA 43; (1998) 194 CLR 202; 155 ALR 586 at [63], after quoting this passage from Fitzgerald’s case, added: Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion.

See also R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [16]; Einfeld v R [2008] NSWCCA 215; (2008) 71 NSWLR 31; 252 ALR 375 at [92]. However, this approach of the courts should not be confused with the issue of extending old laws to new things: see  4.11–4.20. As pointed out there, the approach that the courts will follow will take into account the question — would the legislature have intended to include the activity or thing in the expression if it had known about it? Thus in Taylor v  Goodwin (1879) 4 QBD 228, a prohibition against driving a ‘carriage’ furiously was held to include driving a bicycle even though bicycles had not been invented in 1835 when the relevant Act was passed. Copying by photography was held to fall within a general prohibition against copying although not invented for more than one hundred years after the proscription: Ex parte Beal (1868) LR 3 QB 387. In these cases the court considered that the circumstances in question came within the description of the proscribed activity and the legislature would undoubtedly have expected the conduct to fall within the scope of the Act if it could have known of its existence. Inability to Comply with Penal Provision 9.14  A provision which imposes an obligation upon a person under threat of penalty presupposes that there is no impediment to the carrying out of the obligation. Indeed, there is old authority that indicates that such a provision 326

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would be construed as conferring on the person on whom the duty is imposed a power or authority to do that thing: Fenton v Hampton (1858) 11 Moo 347 at 360–1; 14 ER 727 at 732 cited by Gibbs CJ and Brennan J in Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47 at 50; 66 ALR 217 at 219. But what if there is another provision that would make it an offence to do that which the first provision requires? The approach relating to implied repeals referred to in Chapter 7 may provide the answer. But if it does not, the provision will be read as imposing a qualified duty which stops short of requiring contravention of the other law: Commercial Radio case, above. Penal Jurisdiction 9.15  The courts will be most careful to guard against assuming penal jurisdiction unless it is permitted by a statute. This is well illustrated by the decision of the Queensland Supreme Court in R v Johnson [1962] QWN 37. Section 18(6) of the Criminal Law Amendment Act 1945 (Qld) provided:

If the medical practitioners report to the judge that the offender … is not incapable of exercising proper control over his sexual instincts, but his mental condition is subnormal to such a degree that he requires care, supervision and control in an institution … [the judge can so order].

In an incest case two medical practitioners were required to report to the judge in relation to the offender. They agreed that the offender was not incapable of exercising control over his sexual instincts but only one considered that his mental condition was subnormal to the extent required to bring the section into operation. The court held that the section ‘must be construed strictly since it empowers the judge to give drastic directions concerning the liberty of the subject’. Accordingly, as only one medical practitioner had reported in terms of the section, the judge’s jurisdiction to make an order under the section could not arise. Construction of Penal Provision Does Not Have to Favour Defendant 9.16  The general approach of construing penal Acts strictly can sometimes have an effect that is adverse to the defendant as is shown by R v  Glennan (1970) 91 WN (NSW) 609. In that case the Court of Criminal Appeal was concerned with the question whether a person could be charged with aiding and abetting the commission of the offence of driving under the influence of liquor. That offence was created by the Motor Traffic Act 1909 (NSW), as amended, but the Act was silent on the question whether another person could commit an offence as an accessory. The court held that the Act was a penal statute and therefore had to be read strictly: it should therefore not be read as creating a new and different offence on the part of any person unless this was clearly specified. However, this had the effect that it also meant that the common law was not superseded except to the extent provided in the statute. The common law offence of aiding and abetting the commission of an offence thus still existed and the defendant could be charged accordingly. 327

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Provisions Imposing Pecuniary/Civil Penalties 9.17  In some Acts pecuniary penalties (sometimes referred to as ‘civil penalties’) may be imposed for a breach of a provision of the Act notwithstanding the fact that such a breach is not a criminal offence. Such provisions are to be interpreted in accordance with the principles set out in the foregoing paragraphs: Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 47–8; 58 ALR 423 at 471–2; Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271; Australian Competition and Consumer Commission v  Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 at [68]. In particular, the obligation that attracts the pecuniary penalty must be certain: Director of Public Prosecutions (Cth) v  Keating [2013] HCA 20; (2013) 248 CLR 459; 297 ALR 394 at [48]; Construction, Forestry, Mining and Energy Union (CFMEU) v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619; 300 ALR 460 at [48].

The factors that might be regarded as relevant in determining a pecuniary penalty were first stated by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152–3 and have been endorsed and added to on a number of occasions since. One of the more significant expositions was in Comcare v Commonwealth [2007] FCA 662; (2007) 163 FCR 207 where at [120] Madgwick J set out what have come to be known as the ‘Madgwick factors’ and which are frequently referred to in cases involving the imposition of civil penalties as being ‘a useful starting point’. For examples see  the Annexure. The issue has arisen mainly in relation to occupational health and safety cases but a like approach has been endorsed where penalties are being considered under other types of legislation: see the cases set out in the Annexure. The constitutional validity of the imposition by a state court of pecuniary penalties imposed by federal legislation is discussed in Director of Public Prosecutions v George [2008] SASC 330; (2008) 102 SASR 246; 251 ALR 658. SUBSIDIARY RULES RELATING TO PENAL STATUTES

Extraterritorial Operation 9.18 In R v Franke [1929] VLR 285 the Full Court of the Victorian Supreme Court was concerned with the interpretation of s  97(1) of the Marriage Act 1915 (Vic). That section provided: ‘Where a husband without lawful or reasonable cause or excuse deserts his wife and leaves her without adequate means of support … and goes to reside or is resident … beyond Victoria’ he was to be guilty of an offence. The defendant left his wife in Victoria, went to New Zealand and there formed the intention to desert her. The court held that he was not guilty of the offence under the Act. Cussen J stated that he was applying the rule of interpretation that in a penal statute general words will not be given an extraterritorial operation unless an intention to give such an operation to the statute appears expressly or by necessary 328

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implication. Nonetheless, a sovereign legislature may give extraterritorial operation to its legislation and if this has been its clear intention, the rule of interpretation must give way: McDonald v Bojkovic [1987] VR 387. See further 5.12–5.16. Crown Not Liable to Criminal Penalty 9.19  ‘There is … the strongest presumption against attaching to a statutory

provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature’: per Dixon J in Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409 at 424 This statement has been followed by the High Court in the cases referred to in the Annexure. See also 5.17–5.20 relating to the presumption that the Crown is not bound by statutes and 5.42 relating to the presumption that the Crown has no right of appeal. Second or Subsequent Offences 9.20  It is common to find in penal statutes a provision stating that a person who is convicted of an offence for a second time is to be subject to a greater penalty than would be imposed for the first offence. The operation of this type of provision was discussed in O’Hara v  Harrington [1962] Tas SR 165. The Traffic Act  1925 (Tas) provided a mandatory suspension for a person who was convicted for drunken driving on a second occasion. Burbury CJ, following O’Connor v  Bini [1908] VLR 567, applied what he described as a canon of construction that was laid down as long ago as the time of Coke that an increased penalty for a ‘second offence’ could only be applied where the second offence occurred after conviction for a first offence. In the particular case the defendant had committed the second offence of drunken driving before he had been convicted for the first and therefore the mandatory suspension provision could not apply to him. The same reasoning was applied in Farrington v  Thomson [1959] VR 286; Carter v  Denham [1984] WAR 123; Rivera v Maher (1992) 1 Tas R 228.

An issue that arises from time to time is whether a person has committed a ‘subsequent offence’ such as to attract a higher penalty where the later offence involves different legislation. Does the subsequent offence have to be against exactly the same provision as the first? Gray J in Pointon v Police (SA) [2004] SASC 4; (2004) 143 A Crim R 416 considered this issue in circumstances where the relevant provisions had been transferred from one Act to another. After reviewing what he acknowledged were competing authorities, he concluded that it could not have been the intention of the legislation to allow a person to enjoy a different outcome than if the offence had continued to be specified in the original legislation. The position is different if the later conviction is against a differently stated provision. This was held to be the position by the judge at first instance in Police v Whitehouse [2004] SASC 371; (2004) 90 SASR 457. There White J 329

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considered that a section that had been amended was no longer the same as that under which the person had previously been convicted because the replacement section made additional provision for an aggravated offence and the later conviction, albeit not for an aggravated offence, was therefore not a ‘subsequent offence’. This conclusion was overturned on appeal: Police v Whitehouse [2005] SASC 220; (2005) 92 SASR 81. The court said that the replacement and former legislation, looked at as a whole, punished the same conduct. What was an offence before the amendment remained an offence under the new legislation. In other words, the new legislation did not expand the extent of offending dealt with under the former legislation. The only relevant distinction between the two sets of provisions in this respect was that the new legislation now provided for two offences so as to reflect a circumstance of aggravation. The conduct which was proscribed under the new legislation was substantially the same as that which was proscribed by the former section. It can be seen that the outcome in a particular case will depend upon the view that the court takes of the degree of identity between the offences concerned. However, what emerges from the Pointon and White cases is that the court should look to the substance of the legislation and not its form in determining the issue. On the implied repeal of a provision where there are two prohibitions of the same conduct, see 7.14. Corporations and Crimes 9.21  In all jurisdictions there is a statutory provision that provides that corporations may be convicted of crimes they are capable of committing and that corporations may sue for penalties where such an action is possible.1 This provision is probably declaratory only: R v Australasian Films Ltd [1921] HCA 5; (1921) 29 CLR 195. More interesting is the provision included in the relevant sections of the Australian Capital Territory and New South Wales  Acts that deal with the issue of the penalty to be imposed on corporations where an Act specifies a term of imprisonment as the penalty for an offence. Obviously a corporation cannot be imprisoned. Accordingly, a scale of monetary penalties is prescribed and these are equated to various terms of imprisonment. Fines ascertained in accordance with this scale are to be imposed on companies found guilty of offences that would otherwise be punishable by imprisonment.

1. Cth Crimes Act 1914 s 4B; ACT s 161; NSW Crimes (Sentencing Procedure) Act 1999 s 16; NT s 38B; Qld s 46; SA no provision; Tas s 35; Vic Sentencing Act 1991 s 113D; WA s 69. 330

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Offender Not to be Punished Twice for Same Offence 9.22  All jurisdictions have a provision that appears on the face of it to represent a statutory statement of the autrefois acquit doctrine.2 Taking the Victorian section as an example, it reads:

51 (1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

The various sections appear to deal with offences under different Acts or under an Act and at common law. However, it appears that the same principle is applicable to different offences constituted by the same statute: the offender may be prosecuted under any of the different provisions of the statute, but is not liable to be punished twice for the same offence: Crafter v De Lucia [1935] SASR 45 at 49. While the courts have not always regarded these Interpretation Act provisions as a substitute for the common law rules of autrefois convict, they have not satisfactorily indicated what is their purpose. Madden CJ in R v McNicol [1916] VLR 350 at 354 described the section as ‘a sort of cousin’ to the common law autrefois convict rule. But he added that it had nothing to do with the interpretation of the principle nemo debet bis punari proeadem causa. In his view it was intended to get rid of the supposition that, because an offence may be covered by several Acts, those Acts must be vindicated by separate prosecution. Cussen J in R v Cleary [1914] VLR 571 at 579 suggested that the section did not take the autrefois convict doctrine any further. Reed J in O’Sullivan v  Friebe [1956] SASR 89 at 95 asseverated that it followed the common law rule, while Wells J in R v  O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 described the provision as one ‘whose purpose and effect is far from clear’. In Falkner v Barba [1971] VR 332, Gillard J described a magistrate’s reliance on the section in an autrefois convict situation where a person was convicted of an assault as a ‘reliance on the wrong authority’. The problems relating to the section were perhaps highlighted by the judgments in Maple v  Kerrison (1978) 18 SASR 513; 19 ALR 152 where the three members of the Full Court of the South Australian Supreme Court each thought the section had a different effect. Similar doubts have been expressed in relation to the equivalent section in the United Kingdom Interpretation Act. In R v Thomas [1950] 1 KB 26 at 31 Humphreys J said: ‘[The section] adds nothing to, and it detracts nothing from, the common law.’ Where all this leaves the section is largely a matter for speculation. It is doubtful whether it has any field of operation that is not already more fully 2. Cth Crimes Act 1914 s 4C; ACT s 191; NSW Crimes (Sentencing Procedure) Act 1999 s 20; NT Criminal Code ss 18–20; Qld s 45, Criminal Code 1899 s 16; SA s 50; Tas s 32; Vic s 51; WA Sentencing Act 1995 s 11. 331

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covered by the detailed law that the courts have worked out in regard to the autrefois convict doctrine (as to which see the masterly discussion by Wells J in R v O’Loughlin; Ex parte Ralphs, above). However, for an application of the section see Re Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 219; 44 ALR 577 at 582 per Gibbs CJ. Retrospective Operation of Penal Provisions Application of presumption against retrospectivity 9.23  The courts generally assume that legislation is not intended to operate retrospectively: see Chapter 10. This presumption is most strictly applied in relation to Acts creating an offence because of the manifest injustice that the alternative approach would bring about: see R v Miah [1974] 1 WLR 683 at 694 per Lord Reid. However, like any other presumption, it is rebuttable: see 10.12.

It must of course be clear that the provision in question is operating retrospectively. This is discussed generally in Chapter  10. However, in the context of criminal legislation, the distinction discussed in 10.4 between penalising past events and penalising future conduct based on past events becomes very significant. The two principal cases there cited, Re a Solicitor’s Clerk [1957] 1 WLR 1219 and La Macchia v Minister for Primary Industry (1986) 72 ALR 23, are pertinent to this issue and are frequently cited. In both those cases it was held that the retrospectivity principle was not applicable and the persons concerned could be convicted of offences created after the conduct in question occurred because there was no attempt being made to criminalise the conduct at a date earlier than when the legislation creating the offence came into effect. A like approach has been taken in Victoria in regard to the power to impose an increased sentence on a person who is categorised as a ‘continuing criminal enterprise offender’. It was not giving retrospective operation to the law to take into account offences committed before the commencement of the legislation creating the category of offender: R v  Arundel [2003] VSCA 69; R v Roussety [2008] VSCA 259; (2008) 24 VR 253. The converse of this situation is where a law is repealed with retrospective effect. Here it has been held that a conviction under the repealed law does not lapse. Dixon J in Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 106 said: Thus, after a regulation has been disallowed [which has the effect of a repeal from the date of disallowance], no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating 332

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the offence, but upon the authority belonging to a judgment or sentence of a competent Court.

This passage was cited by Gageler J in New South Wales  v  Kable [2013] HCA 26; (2013) 298 ALR 144 at [53]. The position would be different if the legislation were found to be unconstitutional or, in the case of delegated legislation, beyond power. In such a case it would be taken never to have been in force: Ha v  New South Wales [1997] HCA 34; (1997) 189 CLR 465; 146 ALR 355. An issue that can arise in this context is whether retrospectivity has been achieved. In Director of Public Prosecutions (Cth) v Keating [2013] HCA 20; (2013) 248 CLR 459; 297 ALR 394 the High Court held that a provision that was intended to change the law retrospectively to make a person liable for conduct that had occurred prior to the making of the legislation had failed to achieve its purpose. The legislation in question imposed a duty to inform a department of a change in circumstances affecting eligibility for a social security payment. This was said to apply to a person from a date earlier than the making of the legislation. However, the court found that a person could not be required to inform the department if he or she was not aware of an obligation to do so. It would have been creating a statutory fiction to say that the pensioner was liable to provide information when she was not under an obligation at the time to do so. Liability for the commission of a serious offence by such a statutory fiction should only be accepted by the court where there was a clear statement of legislative intention: see [46]–[47]. Change in penalty after charge 9.24  A particular problem in regard to the application of the presumption against retrospectivity arises where a person is charged with an offence and after that date, but before the hearing of the charge, the penalty for the offence is increased. Is the person liable to the penalty applicable at the date of the offence or at the date of conviction? In three English decisions decided during World War II — Director of Public Prosecutions v Lamb [1941] 2 KB 89; Buckman v Button [1943] KB 405; and R v Oliver (1944) 29 Cr App R 137 — it was ruled that the penalty applicable at the date of conviction should be imposed. Forster J of the Northern Territory Supreme Court followed these decisions in Arnold v Neilsen (1976) 9 ALR 191. See also O’Neill v Reid [1959] NZLR 331; Campbell v Robins [1959] NZLR 474; Lewis v French [1962] Tas SR 138 (but see Worsley v Crawford, below).

The contrary view was taken by the Full Court of the South Australian Supreme Court in Samuels v Songaila (1977) 16 SASR 397. The English authorities were technically distinguished but the reasoning of the court was such as to reject the basis of the decisions. In essence, the court considered that to apply the increased penalty would subject the person retrospectively to an increased liability. Without clear legislative intention this should not be done. A similar view was expressed in Richardson v Brennan [1966] WAR 159 but no authorities 333

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were referred to. The South Australian Court in Samuels’ case indicated that a different view might be taken if the later amendment reduced the penalty for the offence. Such a provision could not affect a person adversely and the presumption against retrospectivity was therefore not attracted. Samuels’ case was followed in Daire v Stokes (1982) 32 SASR 402, reliance also being placed on s 16 of the Acts Interpretation Act 1915 (SA) which provides that the repeal of a section does not affect any penalty liable to be incurred under the repealed provision: see further Interpretation Acts, Chapter 2. Lush J in Bakker v Stewart [1980] VR 17 had no doubt that an increased penalty was not applicable to offences committed before its enactment. Zeeman J in Worsley v Crawford (1994) 4 Tas R 78 at 85 said that Lewis v French, above, had been wrongly decided as it failed to take account of the operation of the provision of the Acts Interpretation Act relating to the effect of a repealing statute. See  also R v  MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 on the effect of a change in sentencing practice on offences committed before the change. The matter now seems to have been resolved by statutory effect being given to the approach in Samuels’ case in all jurisdictions except South Australia. That state probably considers that legislation is unnecessary in the light of the ruling in Samuels’ case.3 Extension of time to bring prosecution 9.25  An amendment to extend the time after the commission of an offence within which a prosecution may be brought will operate to allow a person to be prosecuted within the extended time period provided that the previous time period has not expired. Once the time has expired, the person concerned has acquired a right not to be prosecuted and this cannot be removed except by express words. See R v Pinder (1989) 155 LSJS 65; Koutsoukos v Loader (1991) 109 FLR 114; Rogers v Chief of Army [2004] ADFDAT 1; (2004) 185 FLR 414. For a general discussion of the issue see 10.34–10.37.

Change in sentencing law after offence 9.26  Where there has been a change in the law relating to the sentence that may be imposed on a person found guilty of an offence difficulties have arisen where the offence has been committed before the change but the person is to be sentenced after it has come into effect. In Bakker v Stewart [1980] VR 17 the court held that the discretion to exempt a person from a mandatory penalty continued after the repeal of the discretion in respect of offences committed

3. The relevant Acts are: Cth Crimes Act 1914 s 4F; ACT Legislation Act 2001 s 84A; NSW Crimes (Sentencing Procedure) Act 1999 s 19; NT Sentencing Act s 121; Qld Acts Interpretation Act 1954 s 20C; Tas Sentencing Act 1997 s 99; Vic Sentencing Act 1991 s 114; WA Sentencing Act 1995 s 10. 334

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before the repeal. However, this case was expressly not followed in Maher v Hamilton [1990] Tas R 199 where it was said that the repeal of the discretion did not affect the penalty but only the power to alleviate it. The penalty was, therefore, not increased with retrospective effect and the cases such as Samuels v Songaila (1977) 16 SASR 397 (see 9.24) were inapplicable. This seems somewhat specious. The effect of holding the discretion inapplicable is retrospectively to increase the jeopardy to which an offender is subject at the time of commission of the offence. But see R v Hallam (1998) 102 A Crim R 546 where an argument akin to that in Maher’s case was accepted. Of course, if it is clear that the changed penalty is to apply to all who are sentenced after the amendment to the law, a court must follow the legislative edict: Siganto v R [1998] HCA 74; (1998) 194 CLR 656; (1998) 159 ALR 94; Nafi v R [2012] NTCCA 13; (2012) 32 NTLR 124; 269 FLR 1 (rejecting an argument that a person could not be a ‘repeat’ offender if the previous conduct occurred before a change in the law because the amending Act referred to a ‘conviction’ and that had occurred after the change). An Act that validates earlier legislation applies the penalties in the validated Act to conduct that occurred before the validating Act. To hold otherwise would negate the purpose of the validating Act: Kenny v Maher (1993) 70 A Crim R 333. In the reverse situation to that set out above, there seems little doubt that, if there is a change in sentencing options such as to favour an offender, the change will be applied to a person who committed an offence before the change: R v Morton [1986] VR 863. See also R v Melville [2003] WASCA 124; (2003) 27 WAR 224. A change relating to the method of calculating a sentence is procedural and will be applicable to sentences imposed for offences committed before the change even though this might result in a higher sentence being imposed: R v Truong [1999] QCA 21; [2000] 1 Qd R 663. Likewise, a requirement that previous convictions be taken into account in a particular way in determining a sentence will require convictions that occurred before the date of the enactment of the requirement to be considered. So to act is to have regard to past events, not to give the requirement retrospective operation: Page v Winkler (1975) 12 SASR 126 at 129; Davies v Wylie (1992) 1 Tas SR 73 at 81. See further generally 10.23–10.37. Self-Incrimination 9.27  Many Acts contain provisions removing a person’s right to refuse to give evidence on the basis that it would be self-incriminating. The operation of a provision of this kind was considered by Sholl J in Scott v Dunstone [1963] VR 579. The question there concerned legislation requiring a person to provide a sample of breath for analysis by a breathalyser machine. Sholl J held that, as the section cut down a person’s common law right against self-incrimination, it had to be construed strictly. For further discussion of the issue see Melbourne 335

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Home of Ford Pty Ltd v Trade Practices Commission (1979) 27 ALR 275 at 295; WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; R v Galvin; Ex parte Bara (1983) 24 NTR 22 at 24. The same approach has been applied in relation to the right to silence: Police v Conway [2006] SASC 186; (2006) 95 SASR 83 at [32]. On the general presumption that an Act will be taken not to require selfincrimination, see 5.37. Absolute Offences 9.28  The starting point of a court’s approach to a penal provision will be that intention is required. However, there are circumstances in which it will be held that a person is strictly responsible for a breach of a statute regardless of whether the person intended or indeed knew of the conduct that constituted the breach. The leading Australian authority is He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523; 60 ALR 449. General discussion of this topic is better dealt with in the context of the criminal law as a whole but two points warrant mention here.

First, it should be borne in mind that the presumption of intent is applicable only to penal statutes and does not apply to provisions creating civil liability: Yorke v  Lucas [1985] HCA 65; (1985) 158 CLR 661 at 675; 61 ALR 307 at 316. Second, the existence of a minimum penalty provides a strong argument against a provision being construed as creating an absolute offence: Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 306. This approach was followed in Australia in relation to a provision providing for special penalties and forfeitures: Hursey v Taylor [1971] Tas SR 212 at 218. Meaning of ‘Not Less Than’ Penalty 9.29 In Crafter v Wise [1934] SASR 404 Napier J had to consider the effect of a section in an Act providing that on conviction for a first offence an offender should be liable to a fine of not less than £5 and on conviction for a second offence not less than £10. The judge, following an unreported decision of the Supreme Court of South Australia that had preceded the re-enactment of the relevant legislation, held that the effect of the provision meant that a fine of £5 should be imposed for a first offence. He contemplated the fact that the only alternative was that no limit was being prescribed in the Act as to the maximum fine. He considered that this interpretation should only be put on the Act if there were a clear intention to that effect in it. This being a penal statute no such intention should be inferred.

The effect of the decision is that if the legislature wants to impose a minimum level of fine they must also state a maximum level. One would have thought that the judge could have held in this particular case that any fine not less than £5 and not more than £10 could have been imposed under the Act. 336

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Meaning of ‘Liable to’ 9.30  Most penal sections impose a sanction by use of the phrase ‘liable to’.

In R v Schultz [1976] VR 325, the Full Court of the Victorian Supreme Court said that this expression did not confer a discretion on the court as to the penalty to be imposed. Any such discretion had to be derived from other sources (for example, the Acts Interpretation Act). In that case, a provision stating that a person convicted of murder was liable to imprisonment for the term of his natural life was held to make it mandatory to impose a life sentence. In relation to words imposing penalties, see Interpretation Acts, 3.53ff. Failure to Specify Penalty

9.31  Where conduct is proscribed in such a way that it creates an offence

but no penalty is specified, the offence is indictable at common law: R v Hall [1891] 1 QB 747 at 768, endorsed by Gibbs CJ in Clyne v  Director of Public Prosecutions [1984] HCA 56; (1984) 154 CLR 640 at 645; 55 ALR 9 at 11. Multiple Offenders 9.32  The situation frequently arises in which a number of persons are convicted of an offence arising out of one set of facts. In Minister of State for Customs and Excise v  Aunger Accessories Pty Ltd [1969] SASR 441 it was argued that in these circumstances only one penalty could be imposed on the offenders, being a penalty that they should pay either jointly or jointly and severally. Hogarth J rejected this argument, holding that, where several persons are convicted of an offence under the Act, the penalty prescribed can be imposed on each and every one of them.

Fixed or Mandatory Penalties 9.33  If it is intended that a mandatory or fixed penalty be applied upon conviction for an offence, this must be made clear by the legislation concerned: Sillery v R [1981] HCA 34; (1981) 180 CLR 353; 35 ALR 227; R v Hallam (1998) 102 A Crim R 546. But if that clarity is apparent, the court cannot decline to follow the direction of the legislature: Trenerry v Bradley (1997) 115 NTR 1.

For general discussion on the inclusion of fixed penalties in legislation, including their constitutional validity, see  Palling v  Corfield [1970] HCA 53; (1970) 123 CLR 52 at 58; Magaming v R [2013] HCA 40; (2013) 302 ALR 461. See also Interpretation Acts, 3.53ff in relation to penalties generally. Continuing Offences and Penalties 9.34  A continuing offence is one where the failure to comply with an

obligation creates an offence on each day on which the failure continues. Two issues arise that have often required the consideration of whether an offence is ‘continuing’ — when a time limit for commencing a prosecution or enforcement action expires and what penalty should be imposed for the failure to comply with the legislation. 337

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An example of the first issue is provided by Sloggett v Adams (1953) 70 WN (NSW) 206. A notice requiring the destruction of noxious weeds on a property within a specified time was not complied with. Failure to comply with a notice was an offence to be prosecuted summarily. Summary prosecutions had to be commenced within six months of the commission of the offence. Action was commenced more than six months after the expiration of the time for compliance with the notice. At that time the land owner had still not dealt with the noxious weeds. The prosecution claimed that the offence was continuing and that the prosecution was to be based on the state of affairs when it was brought. Street CJ rejected this claim. The offence was failure to comply with the notice. There was no continuing obligation to deal with the weeds. The prosecution was accordingly out of time. Street CJ said at 208: The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis [[1896] P 251 at 254], by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue’.

R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 was concerned with the underpayment of staff. O’Bryan and Gillard JJ at 620 discussed the concept of a continuous or continuing offence: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied.

The dicta and conclusions in these cases were endorsed by the Victorian Court of Appeal in Joseph v Worthington [2018] VSCA 102. There it was held that an offence to fail to pay an employee their long service leave entitlements on the day on which their employment ceased under threat of criminal penalty was not a continuing offence. As such a prosecution was caught by a time limit. See further the cases referred to in the judgment of Osborn JA with whom the other members of the court agreed at [45]ff. 338

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The issue will turn on the wording of the legislation but it must be clear that a fresh obligation is being imposed on a person with each day that goes by on which non-compliance occurs for the conduct to constitute a continuing offence. The greater likelihood is that there will be a continuing obligation to comply with a requirement in the legislation but that the obligation will not be renewed each day as fresh conduct. 9.35  Legislation that proscribes conduct that may be repeated should ideally indicate how a continuing breach of that conduct should be penalised. In the absence of such guidance, assistance as to the approach to be taken can be found in the statement of Wells J in Attorney-General v  Tichy (1982) 30 SASR 84 at 92–3:

Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.

Guidance is also provided by the High Court in Pearce v R [1998] HCA 57; (1998) 194 CLR 610; 156 ALR 684 at [40]: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

The application of these cases to circumstances where the conduct constituted a repetition of a statutory prohibition was usefully discussed in Mornington Inn Pty Ltd v  Jordan [2008] FCAFC 70; (2008) 168 FCR 383; 247 ALR  714 at [41]–[46]. It was also pointed out there that the final penalty derived from the approach described was still subject to the ‘totality’ principle whereby it is necessary to look at the proposed penalty overall when considering the appropriate sentence for multiple offences. On this see Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 62; 83 ALR 1 at 3. Length of Concurrent Sentences 9.36  Consequences can flow to a person if they are convicted and a sentence imposed of more than a stipulated period. So, for example, persons may be rendered ineligible to serve on the board of a body if they are sentenced to more than a specified period of imprisonment. Under the Migration Act 1958 (Cth) s 501 a person has a ‘substantial criminal record’ and is thereby liable to deportation if the person has been sentenced to ‘a term of imprisonment for 339

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12 months or more’. An issue arises in such cases of the length of the term of imprisonment where a person is convicted of a number of offences on the one occasion and sentenced to concurrent terms of imprisonment. Are the terms of imprisonment to be added together to determine its length? Differing views have been expressed by judges of the Federal Court. However, the preponderance of opinion favours the proposition that concurrent sentences are not to be accumulated but regard is to be had to the actual period for which the convicted person is ordered to be imprisoned. So two sentences of six months’ duration directed to be served concurrently would not satisfy the definition of imprisonment for 12 months. See the cases referred to in the Annexure. From these decisions it is apparent that it will need express language to enable concurrent sentences to be aggregated to determine the length of imprisonment. Note also Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113; 265 ALR 668 at [9] on the effect on the determination of the length of the sentence of suspending a sentence of imprisonment. Proof Provisions 9.37 In Barnfield v Calandro [1964] VR 162 it was argued by counsel that a provision that facilitated proof of previous convictions for traffic offences should be construed strictly on the basis that it was a penal provision. Gowans J rejected this argument, saying that proof of conviction provisions were not penal provisions. Where a penal statute threw the burden of proof of innocence on to the defendant, it was held not to lay the same standard of proof as would be required of the prosecution in an ordinary criminal case: R  v  Carr-Briant [1943] KB 607. As to the interpretation of averment provisions, see  Chief Executive Officer of Customs v  El Hajje [2005] HCA 35; (2005) 224 CLR 159; 218 ALR 457.

Penal Provisions and Civil Actions 9.38 In Henwood v Municipal Tramways Trust [1938] HCA 35; (1938) 60 CLR

438 at 462 Dixon and McTiernan JJ said of the effect of penal provisions on civil actions: … the general principle remains that a private right of action is not created by a penal statutory provision unless the statute so intends. In the same way, we think that, unless the statute so intends, no penal provision should receive an operation which deprives a person offending against it of a private right of action which in the absence of such a statutory provision would accrue to him.

This approach has been followed in a number of cases; see, for example, Mills v Baitis [1968] VR 583; Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331; Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438; 19 ALR 129. 340

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INTERPRETATION OF OTHER ACTS AFFECTING RIGHTS AND LIBERTIES OF SUBJECT

General 9.39  The approach that is adopted in relation to the interpretation of penal statutes is also followed in the interpretation of Acts that while not penal nevertheless affect the rights and liberties of the subject. Thus in Watson v  Marshall [1971] HCA 33; (1971) 124 CLR 621 at 629, which concerned a provision of the Mental Health Act 1959 (Vic) relating to the detention of a person, Walsh J (paraphrasing Griffith CJ in McLaughlin v Fosbery [1904] HCA 55; (1904) 1 CLR 546 at 559) said:

… in the interpretation of an Act which affects personal liberty, supposition as to the intention of the legislature has no place and … the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute.

Deane J in Donaldson v  Broomby (1982) 60 FLR 124 at 126; 40 ALR 525 at 526 stated the obligation of the courts forcefully: It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. Where the Parliament has legislated so as to define those circumstances, neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading  the constraints upon the interference with the liberty of the subject which the Parliament has imposed.

In Smith v Corrective Services Commissioner (NSW) [1980] HCA 49; (1980) 147 CLR 134; 33 ALR 25, the High Court applied the penal statute presumption to a regulation relating to the effect on the rules providing for remission of a sentence of a person whose parole was revoked. See also Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 in relation to like legislation. This approach was also adopted in relation to the following matters: • warrant of commitment for non-payment of costs in criminal proceedings: Spautz v Dempsey [1984] 1 NSWLR 449 at 460; • arrest following revocation of a parole order: Vella v  Commissioner of Australian Federal Police (1985) 9 FCR 81; 61 ALR 210; • direction for medical examination as to mental condition: R v  Kiltie (1986) 41 SASR 52 at 63; • entry of tax officers onto premises: Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 at 152; • cancellation of rights of residence: Rani v  Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 401; 49 ALD 619 at 638; 341

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• deportation: Minister for Immigration and Multicultural Affairs v  Dhingra [2000] FCA 406; (2000) 98 FCR 19; 61 ALD 65; • migration detention: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [30]; Al-Kateb v  Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 at [19]; • requirement to produce ticket: Arachchi v Orlowski [2003] VSC 161; • issue of traffic infringement notice: Director of Public Prosecutions v Korybutiak [2004] VSC 3; (2004) 40 MVR 442; • power to interrogate person in custody in relation to another offence: Wallace v Debs [2009] VSC 355 at [3]. Search Warrants 9.40  The interpretation of provisions of legislation authorising the issue of search warrants has provoked some ambiguity in the approach of the courts. The principal statement is that of the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110; 93 ALR 483 at 487:

… in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

This approach was said in Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 481; 96 ALR 629 at 636 to reflect ‘the traditional policy of the common law to protect the privacy of individuals against the arbitrary use of the power of entry and search’. However, a Full Court of the Federal Court counselled against a too ready application of this approach in Hart v  Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384; 196 ALR 1 at [66]–[68]. It was noted that it is necessary for a court to balance the policy issues of the need to be able to prevent crime by detecting and punishing offenders against the protection of the citizen from illegal or irregular invasions of liberties. A construction that was consistent with operational realities in which warrants are executed should be preferred to constructions involving fine legal judgments. The authorities relied on by the court for this view were all concerned with the manner of execution of warrants, not the legislation authorising their issue. A similar balancing of interests approach was followed by the High Court in New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606; 237 ALR 39 to hold that an inconsequential error should not invalidate a search warrant. See also Caratti v Commissioner of Australian Federal Police [2017] FCAFC 177; 342

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(2017) 352 ALR 631. Compare also Ramsay v Menso [2018] FCAFC 55 at [34] ff which was concerned with entry on premises under workplace health and safety legislation. The suggestion of operational realities directing approaches is more apt for the execution stage of the warrant process than the steps involved in obtaining a warrant and attaching conditions to it. At this point there is an opportunity for consideration of the relevant legislative direction. This is not something that should be lightly treated in the balancing act that is referred to above. However, the approach in Hart’s case has been applied to the steps taken to obtain a warrant in Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255; 227 ALR 93 and A2 v Australian Crime Commission [2006] FCAFC 147; (2006) 155 FCR 456; 235 ALR 264. In contrast, in Commissioner, Australian Federal Police v Oke [2007] FCAFC 94; (2007) 159 FCR 441 at [37] a Full Court of the Federal Court observed that the conclusion in Hart’s case was not intended to undermine the significance of the considerations identified in the passage from George v Rockett set out above. See also Seven West Media Ltd v Commissioner, Australian Federal Police [2014] FCA 263; (2014) 223 FCR 234; 315 ALR 103 at [83]. Provisions Relating to the Forfeiture of Goods 9.41  Provisions are sometimes to be found in Acts that require the forfeiture of goods that have been used for criminal purposes or where there has been a contravention of legislation. The approach to the interpretation of such a provision was discussed by the High Court in Forbes (Collector of Customs, NSW) v Traders’ Finance Corporation Ltd [1971] HCA 60; (1971) 126 CLR 429; [1972] ALR 653. Menzies J (at 657) and Gibbs J (at 663) took the view that such provisions should be equated with penal provisions: any ambiguity ought therefore to be construed in favour of the owner of the goods. In Cheatley v R [1972] HCA 63; (1972) 127 CLR 291 the High Court did not have any doubt that a forfeiture provision was ‘penal’ in nature. For an application of this approach see  Murphy v  Farmer [1988] HCA 31; (1988) 165 CLR 19; 79  ALR 1 where it was said (at 28; 7) that ‘clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty [for the breach of the Act]’.

See the Annexure for further examples. Note the decision of the Full Court of the Northern Territory Supreme Court in Wulaign Association Inc v Minister for Racing and Gaming (1991) 78 NTR 1 where forfeiture of an innocent person’s car used for conveying liquor was held to be required by the legislation even though the merits of the provision were subjected to a swingeing attack by Kearney J. See further 5.25 relating to the presumption that property rights are not to be adversely affected unless the intention so to do is made apparent. An issue that can arise in this context is whether there has been a ‘contravention’ of an Act. No problem arises where a person has been 343

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convicted of an offence under an Act. However, a number of cases have held that an Act may be ‘contravened’ even though no criminal offence has been committed: see, for example, Re Venice Nominees Pty Ltd (in liq) [1992] ACTSC 56; (1992) 108 FLR 237 at 242. It is apparent that the context of the forfeiture provision will determine the issue. The question to be determined is whether, in the context of the statute, it can be contravened by noncompliance with a provision whether or not that non-compliance results in the commission of an offence: see  Olbers Co Ltd v  Commonwealth [2004] FCAFC 262; (2004) 143 FCR 449; 212 ALR 325; Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54; 271 ALR 1. Contrast Dimella Constructions v Stocker (1976) 14 SASR 215 per Bray CJ at 221–2 and King J at 224. TA XING OR FISCAL PROVISIONS

Approach to Interpretation of Taxing Provisions 9.42  In the passage from the judgment of Isaacs J in Scott v Cawsey set out in 9.11, his Honour directed his remarks to fiscal provisions as well as penal provisions. Both, he said, should be interpreted strictly but not in such a way as to defeat the purpose of the legislature. There are numerous other cases in which the courts have referred to what they usually describe as the general principle to be followed when interpreting taxing statutes. However, all these cases state the same general approach and it is sufficient to refer to a few only. Reference may also be made to the general comments of Sir Anthony Mason in ‘Taxation Policy and the Courts’ (1990) 2 CCH Journal of Australian Taxation 40 and Justice Graham Hill in ‘A Judicial Perspective on Tax Law Reform’ (1998) 72 ALJ 685.

In Commissioner of Stamp Duties (NSW) v Simpson [1917] HCA 69; (1917) 24 CLR 209 at 215–16 Barton J referred to the literal rule as that which should be applied to taxing statutes in the same way as it is applied to any other statute. He cited Viscount Haldane LC in Lumsden v Inland Revenue Commissioners [1914] AC 877 at 896: … the duty of judges in construing statutes is to adhere to the literal construction unless the context renders it plain that such a construction cannot be put on the words. This rule is especially important in cases of statutes which impose taxation.

While this general approach is cited in most cases, it usually has added to it the corollary that a person is only to be taxed if clearly falling within the words of the section. If the Act in the end leaves a doubt as to its meaning, the taxpayer is to be given the benefit of the doubt. The position was summarised by Lord Russell of Killowen in the following words in Inland Revenue Commissioners v Westminster (Duke) [1936] AC 1 at 24–5: I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if, in accordance with a Court’s view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference 344

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or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord Cairns said many years ago in Partington v Attorney-General (1869) LR 4 HL 100 at 122: ‘As I understand the principle of all fiscal legislation it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be’.

This passage was cited with approval by Latham CJ in Anderson v Commissioner of Taxes (Vic) [1937] HCA 24; (1937) 57 CLR 233 at 239. However, even this concession to the taxpayer seems to be assuming less significance. Sangster J said in Symington v Port Adelaide City Corporation (1974) 8 SASR 209 at 214–15: One only has to read a series of tax cases on any one point, however, to notice that the emphasis given by the High Court of Australia to this principle has markedly diminished over the years, until by now this principle must, in my opinion, merely take its place amongst the other principles available to be invoked in any given case, and as subordinate to the primary task of looking at the words used and ascertaining whether they have an ordinary and natural meaning, and to the ultimate task of ascertaining what the Legislature meant by the words it used.

This passage has in turn been cited with approval in Norfolk Estates Ltd v Cadiz Corporation Pty Ltd (1978) 9 ATR 252 at 271–2; Trustees of the Walsh Trust v Federal Commissioner of Taxation (1983) 13 ATR 861 at 874. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 323; 35 ALR 151 at 171, Mason and Wilson JJ said: The fact that the Act is a taxing statute does not make it immune to the general principles governing the interpretation of statutes. The courts are as much concerned in the interpretation of revenue statutes as in the case of other statutes to ascertain the legislative intention from the terms of the instrument viewed as a whole.

In that case a literal interpretation of the Act favoured the taxpayer but the court held that such an interpretation was not supported by the background of the relevant provision’s legislative history and its neighbouring sections (per Stephen J at 310–11; 161–2) and produced a result that was ‘capricious and irrational’: per Mason and Wilson JJ at 321; 170. 9.43  Section 15AA of the Acts Interpretation Act 1901 (Cth) (see 2.15–2.32)

adds credence to this approach: see McGregor J (dissenting) in Federal Commissioner of Taxation v Trustees of Walsh Trust (1983) 69 FLR 240 at 249; 48 ALR 253 at 262, but cf Fitzgerald J at 263; 278. In Deputy Federal Commissioner of Taxation v Sheehan (1986) 86 ATC 4718 at 4728 Tadgell J commented: If … there are two constructions of which a taxing Act is capable, one of which would facilitate the evident object of the legislature and the other of which would plainly thwart it, one is not justified in preferring the latter merely because it would be more favourable to the subject. 345

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Kirby P in Deputy Federal Commissioner of Taxation v Chant (1991) 24 NSWLR 352 at 356; 103 ALR 387 at 391 observed that the ‘labyrinthine complexity’ of the Income Tax Assessment Act 1936 (Cth) was not a basis for dealing with it in a special way. To him it was ‘just another statute of the Federal Parliament’. The High Court in Alcan (NT) Alumina Pty Ltd v  Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1 at [57] put a slightly different slant on this by saying that the fact that a statute is a taxing Act is part of its context and is therefore relevant to the task of construing the statute in accordance with established principles of statutory interpretation. Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138; 239 ALR 415 at [6] made the significant point: [I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s  15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.

See the citation of this passage in the Alcan case, above, at [51]. 9.44  Despite these general statements that would seem to minimise distinctions between taxing and other legislation, it seems likely that the courts will maintain the view that ‘it is for the Crown to show that a taxing statute imposes a charge on a person sought to be taxed’: per Scarman LJ in C & J Clark Ltd v Inland Revenue Commissioners [1975] 1 WLR 413 at 419.

In addition, it is ‘a strong thing’ to read into an Act of Parliament words which are not there and it  is ‘a particularly strong thing to do so when it amounts to modifying, as against the fiscal subject, words which have a plain, natural and ordinary meaning in his favour’ (per the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 280; 16 ALR 363 at 374) and ‘if the terms of the Act plainly impose the tax they should be given effect, equally if they do not reveal a clear intention to do so the liability should not be inferred from ambiguous words’: per Gibbs J in Western Australian Trustee Executor & Agency Co Ltd v Commissioner of Taxation (WA) [1980] HCA 50; (1980) 147 CLR 119 at 126; 32 ALR 639 at 644; applied in Chief Commissioner of State Revenue v Platinum Investment Management Ltd [2011] NSWCA 48; (2011) 80 NSWLR 240 at [36]. Note should also be paid to the general comments of Deane J in Hepples v Federal Commissioner of Taxation [1991] HCA 39; (1991) 173 CLR 492 at 510–11; 102 ALR 497 at 509 which were cited in Australian Investment and Development Pty 346

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Ltd v Commissioner of State Revenue [2019] VSCA 69. The court there at [77] after referring to the discussion above added the comment: [W]e are not persuaded that it requires any ambiguity in the statutory language to be resolved in favour of the taxpayer, particularly where it would be contrary to the legislative intention manifested in the language of the statute and where such a resolution would require no meaning or operation to be given to large parts of the text of the legislation.

None the less the very nature of tax legislation may be such that the approaches adopted to interpretation of legislation generally may not always be appropriate. Alsop CJ in Channel Pastoral Holdings Pty Ltd v Commissioner of Taxation [2015] FCAFC 57; (2015) 232 FCR 162; (2015) 321 ALR 261 at [6] observed: Revenue statutes of the detail of the 1936 Act and the 1997 Act may not admit of the flexibility of interpretation that may attend statutes expressed in more general terms: Delaware & Hudson Co v Commissioner of Internal Revenue 65 F 2d 292 at 292–293 (1933 2nd CCA per Learned Hand J). As the same judge said in Helvering v Gregory 69 F 2d 809 at 810 (1934 2nd CCA) ‘as the articulation of a statute increases, the room for interpretation must contract’. In closely structured and finely worded legislation, the importance of the text may be paramount: Joffe v  R; Stromer v  R [2012] NSWCCA 277; 82 NSWLR 510 at 518 [36]. Nevertheless, even in such statutes, context and purpose may be important: Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; 222 FCR 13 at 30 [75]; Snedden v Minister for Justice [2014] FCAFC 156; 315 ALR 352 at [99]. Purpose and policy in such statutes are unlikely to be broad social policies embedded in the Act and extrapolated to the case at hand; rather, they will likely be the particular purpose and policy of a section, division or part found in their words and in the context in which the particular provisions appear.

In relation to the interpretation of taxing legislation generally see  the comments and articles referred to in the Annexure. Application of Approach to Interpretation of Taxing Acts Generally 9.45  Subject to what is said in 9.50 relating to provisions directed against tax avoidance schemes, the principles referred to in the last paragraph have been followed or applied by the courts in many cases: see the Annexure for some examples. However, subject to the possible rider mentioned below, the courts consider it their duty to give effect to and not to impede the application of taxing Acts.

So in English Sewing Cotton Co Ltd v Inland Revenue Commissioners [1947] 1 All ER 679 it was held that, where an Act provided for assessments of profits tax to be made in certain cases but did not in terms impose the tax, it had to be assumed that the legislature intended the assessments to be effective and the Act should be construed accordingly: see the like approach adopted by Winneke CJ in Norton v Long [1968] VR 221 in relation to licensing provisions. Cross J in Clyne v Federal Commissioner of Taxation (1980) 49 FLR 25 held that 347

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any constraints that might apply to the interpretation of legislation imposing taxation did not apply to legislation requiring the submission of a return of income. The view has also been taken that, where one rate of stamp duty is chargeable upon an instrument under one Act and a higher rate under another Act, the Crown is at liberty to choose which rate will apply: Anderson v Inland Revenue Commissioners [1939] 1 KB 341. Finally, following general interpretation principles, if one interpretation would lead to a tax being declared unconstitutional and another would not, the latter should be the interpretation adopted: Federal Commissioner of Taxation v Cripps & Jones Holdings Pty Ltd (1987) 17 FCR 55 at 64; 76 ALR 619 at 628–9. Tax Must Not be ‘Arbitrary’ 9.46  The generality of the approach set out in the last paragraph is qualified by an important overriding principle — it must be clear that the subject is liable to taxation. In Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163 at 1178 Lord Wilberforce said in relation to the expressions ‘benefiting from’ and ‘connected therewith’ in a taxing Act that in using these words ‘the legislator runs the risk that the courts may find themselves so totally unable to draw the line as to decide nothing more than that the subject has not clearly enough been taxed’: see also Lord Donovan at 1175.

This issue has arisen in Australia in the constitutional context. The power in s 51 of the Constitution is to make laws with respect to taxation. In MacCormick v Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622 at 640; 52 ALR 53 at 64 Gibbs CJ, Wilson, Deane and Dawson JJ said: For an impost to satisfy the description of a tax it must be possible to differentiate it from an arbitrary exaction and this can only be done by reference to the criteria by which liability to pay the tax is imposed. Not only must it be possible to point to the criteria themselves, but it must be possible to show that the way in which they are applied does not involve the imposition of liability in an arbitrary or capricious manner.

See  also Vale Press Pty Ltd v  Deputy Commissioner of Taxation (1992) 34 FCR 238; 105 ALR 207. Thus, while the courts will do all that is possible to ascertain the meaning of a taxing Act, they regard the imposition of a tax (and the same reasoning is probably applicable also to penal provisions) as of such importance that it is incumbent on the legislature to make its intentions clear beyond doubt. Tax Must be Contestable 9.47  A corollary of the proposition that a tax may not be arbitrary is that it must be possible to contest the liability to tax. The expression ‘incontestable tax’ was defined in Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 378 as a tax ‘provided for by a law which, while making the taxpayer’s liability depend upon specified criteria, purports to deny him all right to resist an assessment by proving in the courts that the criteria of 348

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liability were not satisfied in his case’. Such a provision in Commonwealth legislation is unconstitutional: Deputy Federal Commissioner of Taxation v Brown [1958] HCA  2; (1958) 100 CLR 32; MacCormick v  Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622 at 640; 52 ALR 53 at 64. In state legislation, only unmistakable and unambiguous language will be construed as imposing an incontestable tax: Commissioner of Stamps v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 467; 133 ALR 130 at 138. In that case it was said that the same approach is to be adopted in relation to a provision that is claimed to have the effect that a tax must be paid but is recoverable by subsequent action. Retrospectivity and Tax Acts 9.48  There is, in general, no reason why any different approach should be followed in determining whether a tax Act is to operate retrospectively than is applicable to other legislation: see Chapter 10. However, the fact that taxpayers will have organised their affairs to comply with existing legislation strengthens the argument that the legislative intention to remove existing rights should appear clearly: Commissioner of Stamps (Qld) v  Weinholt [1915] HCA 49; (1915) 20 CLR 531 at 541, followed in Perpetual Trustees (Australia) Ltd v Valuer-General (1999) 102 LGERA 324 at 337.

GST Legislation 9.49  Broadly speaking, GST legislation is to be interpreted in the same way as any other taxing legislation. However, there are some cases to which particular reference is warranted.

Hill J in HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553; 219 ALR 591 set out the theoretical and policy background to the legislation which is of value in understanding the context of the legislation. See also the quote from a paper that he delivered which is set out in Reliance Carpet Co Pty Ltd v Commissioner of Taxation [2007] FCAFC 99; (2007) 160 FCR 433; 240 ALR 464 at [29]. Stone J in Saga Holidays Ltd v Commissioner of Taxation [2006] FCAFC 191; (2006) 156 FCR 256; 237 ALR 559 at [29]–[30] said of the interpretation of the legislation: The Court has tended to adopt a purposive approach to the interpretation of the GST Act [A New Tax System (Goods and Services Tax) Act 1999 (Cth)], rejecting strict grammatical analyses in favour of a consideration not only of the syntax but also of ‘the policy and the surrounding legislative context’ of the relevant provision: HP Mercantile Pty Ltd v Federal Commissioner of Taxation (2005) 143 FCR 553; 219 ALR 591 at [66]. Consideration of these aspects of the GST Act has led to the tax being described as ‘a practical business tax’: Sterling Guardian Pty Ltd v Federal Commissioner of Taxation (2005) 220 ALR 550 at [39]. The description is appropriate because it draws attention to two related aspects of the tax. The fact that liability to pay the tax is imposed at various stages of 349

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the supply chain means that it is a tax on business but, importantly, one that is designed, where practicable, to quarantine business from the ultimate burden of the tax. This and other aspects of the tax legitimately form part of the context in which the language of the Act is interpreted and explains, at least in part, why the description ‘a practical business tax’ seems to be appropriate. This does not mean, however, that there is some special canon of construction that should be applied when interpreting the GST Act. The purposive approach to interpretation, of its nature, takes account of the context of the Act and the phrase, ‘a practical business tax’ is a reference to that context …

For further commentary on the interpretation of GST legislation see the cases in the Annexure. See also Michael Wigney SC, ‘Text, Context and the Interpretation of a Practical Business Tax’ (2011) 40 AT Rev 94. Provisions Relating to Tax Avoidance Schemes 9.50  The area of taxation law in which the courts have found themselves having to grapple most directly with the issues of principle referred to in the preceding paragraphs has been where an Act has made provision with respect to tax avoidance schemes. The ingenuity of schemes designed to minimise taxation has resulted in increasingly complex legislation to negate these schemes. It has also resulted in the expression of opinion, both in the courts and in the community at large, that taxation legislation should not be interpreted literally so as to allow avoidance of taxation, but regard should be had to what is seen as the manifest intention of the legislation.

Put broadly, this really amounts to saying little more than that all persons should make just contribution to the consolidated revenue fund. This view was put most cogently by Murphy J (dissenting) in Federal Commissioner of Taxation v Westraders Pty Ltd [1980] HCA 24; (1980) 144 CLR 55 at 80; 30 ALR 353 at 371: It is universally accepted that in the general language it is wrong to take a sentence or statement out of context and treat it literally so that it has a meaning not intended by the author. It is just as wrong to take a section of a tax Act out of context, treat it literally and apply it in a way which Parliament could not have intended. The nature of language is such that it is impossible to express without bewildering complexity provisions which preclude the abuse of a strict literalistic approach. It has been suggested, in the present case, that insistence on a strictly literal interpretation is basic to the maintenance of a free society. In tax cases, the prevailing trend in Australia is now so absolutely literalistic that it has become a disquieting phenomenon. Because of it, scorn for tax decisions is being expressed constantly, not only by legislators who consider that their Acts are being mocked, but even by those who benefit. In my opinion, strictly literal interpretation of a tax Act is an open invitation to artificial and contrived tax avoidance. Progress towards a free society will not be advanced by attributing to parliament meanings which no one believes it intended so that income tax becomes optional for the rich while remaining compulsory for most income earners. If strict literalism continues to prevail, the legislature may have no practical alternative but to vest tax officials with 350

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more and more discretion. This may well lead to tax laws capable, if unchecked, of great oppression.

The opposing viewpoint had been expressed by Deane J in the decision that was under appeal to the High Court in the Westraders case (see  (1979) 38 FLR 306 at 319; 24 ALR 139 at 151): That result [that tax was not payable] may seem both contrary to the general policy of the Act (if it be possible to discern any general policy other than that people pay income tax) and unfair to the ordinary taxpayer who willingly or reluctantly contributes, without resort to tax avoidance, the share of his net income which the parliament has determined is required by the nation for the common good. If there be, in truth, such contrariety or unfairness, the fault lies with the form of the legislation at the relevant time and not with the courts whose duty it is to apply the words which the parliament has enacted. For a court to arrogate to itself, without legislative warrant, the function of overriding the plain words of the Act in any case where it considers that overall considerations of fairness or some general policy of the Act would be best served by a decision against the taxpayer would be to substitute arbitrary taxation for taxation under the rule of law and, indeed, to subvert the rule of law itself.

This statement of approach was expressly endorsed by Barwick CJ on the appeal to the High Court and his Honour added the following comments at 144 CLR 60–1; 30 ALR 355: The principle to which his Honour calls attention is basic to the maintenance of a free society. Parliament having prescribed the circumstances which will attract tax, or provide occasion for its reduction or elimination, the citizen has every right to mould the transaction into which he is about to enter into a form which satisfies the requirements of the statute. It is nothing to the point that he might have attained the same or a similar result as that achieved by the transaction into which he in fact entered by some other transaction, which, if he had entered into it, would or might have involved him in a liability to tax, or to more tax than that attracted by the transaction into which he in fact entered. Nor can it matter that his choice of transaction was influenced wholly or in part by its effect upon his obligation to pay tax. Of course, the transaction must not be a pretence obscuring or attempting to supplant some other transaction into which in fact the taxpayer had earlier entered. Again, the  freedom to choose the form of transaction into which he shall enter is basic to the maintenance of a free society.

The majority of the High Court reached the same conclusion as Barwick CJ, thereby presumably endorsing his approach to the issue. 9.51  It could not be said that the courts, since the Westraders case, have resolved the approach to be followed to tax avoidance schemes. Shepherdson J in Trustees of the Walsh Trust v Federal Commissioner of Taxation (1983) 13 ATR 861 adopted the dicta of Barwick CJ and Deane J set out above. On  the other hand, Rogers J in Re Hatfield Enterprises Pty Ltd & Companies Act [1982] 1 351

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NSWLR 430 at 434; (1982) 40 ALR 513 at 516–17 asserted forcefully that in interpreting legislation relating to such schemes it was proper to take into account: … the repeated recent actions of the Commonwealth Parliament. Time and time again, in recent times, the Parliament has acted so as to demonstrate its intention that it is desirous of abolishing schemes which, without any commercial significance or motive, are entered into simply and purely for fiscal advantages.

The proper approach is not easy to determine. The courts should not assume the role of tax gatherers but nor should minor variants from a proscribed scheme be a means of avoiding payment of tax. The approach endorsed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151 (see 9.42) points the way in which the High Court is likely to proceed. Literalism will not hold sway but nor will the courts proceed on the basis that the law is as stated in government policy where that cannot reasonably be seen as being reflected in the words of the Act. See, for example, the comment of the Full Court of the Federal Court in Reliance Carpet Co Pty Ltd v Commissioner of Taxation [2007] FCAFC 99; (2007) 160 FCR 433; 240 ALR 464 at [28]: This is one of those cases in which the language of the statute cannot be ‘massaged’ through the application of modern principles of statutory construction to accommodate the legislative purpose identified through the statute itself and permissible extrinsic materials.

On the effect of the now superseded s 260 of the Income Tax Assessment Act  1936 (Cth) which was intended to overcome avoidance of tax, see WP Keighery Pty Ltd v Federal Commissioner of Taxation [1957] HCA 2; (1957) 100 CLR 66 at 92; [1958] ALR 97 at 105; Federal Commissioner of Taxation v Gulland [1985] HCA 83; (1985) 160 CLR 55; 62 ALR 545. See also John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417; 83 ALR 606 and Sonenco (No 87) Pty Ltd v Federal Commissioner of Taxation (1992) 38 FCR 555; 111 ALR 131 on the related notion of ‘fiscal nullity’. Section 260 was replaced by Pt IVA of the Income Tax Assessment Act. For the general approach to be taken to the interpretation of that Part, see: Federal Commissioner of Taxation v Peabody [1994] HCA 43; (1994) 181 CLR 359; 123 ALR 451; Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404; 141 ALR 92; Commissioner of Taxation v Hart [2004] HCA 26; (2004) 217 CLR 216; 206 ALR 207. And for the approach to the anti-avoidance provisions in the GST legislation see: Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 297 ALR 190 at [52]. See also the comments of Ormiston JA in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246; (2001) 4 VR 595 at [9] on the issue of avoidance and evasion of statutes. 352

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Assumption that Words are Used Consistently 9.52  This assumption is discussed in 4.6–4.10. There is authority that the

assumption, which is never strong, has even less weight in taxing legislation: see Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135 at 150; Lygon Nominees Pty Ltd v Commissioner of State Revenue (2007) 23 VR 474 at 482. This is because the range of matters dealt with in taxing legislation is not conducive to careful consistent usage of particular words. Mason J in Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 at 15–16; 35 ALR 567 at 576 acknowledged this approach, without fully endorsing it, particularly where the same words appear in the one section.4 Meaning of Words in Tax Legislation 9.53  A problem that often arises in regard to the interpretation of tax

legislation is whether words have been used in a technical or an ordinary sense: see Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645 at 660 per French J. In relation to the interpretation of technical words in this context see 4.21–4.27. One particular matter that should be borne in mind is that discussed in Federal Commissioner of Taxation v ICI Australia Ltd [1972] HCA 75; (1972) 127 CLR 529: see 4.17. Walsh J held that expressions in a tax Act were not to be interpreted having regard to the usage of the particular term at the time when the legislation was passed. It was appropriate for the court to have regard to the current usage of a particular word in determining whether a person was liable to pay taxation: this issue is discussed fully in 4.11–4.20. Similar Acts 9.54  The use of statutes dealing with like subject matter for interpretation purposes is discussed in 3.42ff. Fullagar J in Reserve Bank of Australia v Commissioner of Pay-roll Tax (Vic) (1985) 16 ATR 404 cautioned against the use of this practice when construing tax statutes.

Discretion in Assessment of Tax 9.55  Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 considered

the question whether the ascertainment of the amount of tax payable under an Act included a discretion vested in the Treasurer. There the amount of a levy was to be calculated in accordance with a formula set out in the Act. The court said that the Treasurer’s obligation ‘to determine the amount of the levy’ was an obligation to perform that arithmetical calculation. There was no basis, on the plain language of the section, for a contention that the Treasurer had

4. Note also s 15AC of the Acts Interpretation Act 1901 (Cth) which was included to avoid the change the word/change the meaning presumption. On this presumption, see further Interpretation Acts, 3.84. 353

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authority to determine a different amount by adopting some other method or by exercising some unstated discretion. At [50] the court said: … the provision imposing on the Treasurer the obligation ‘to determine’ the tax payable cannot be read as if it imposed a discretion to decide whether or not the full amount arrived at by application of the formula should be payable. On the contrary, the Treasurer was bound to apply the statutory formula in order to determine the amount of tax payable.

The court noted at [57] that the obligation here to fix the levy was posited on a specified method of calculation. It observed at [58] that the word ‘determine’ may be used to signify either a mechanical exercise of computation or a process involving reasoning and judgment. When the word is used in the first sense, there will ordinarily be only one uniquely correct result. When it is used in the second sense, there will ordinarily be more than one result reasonably open, since opinions may reasonably differ as to the outcome of such a process of determination. Here the fact that the formula was set out and a calculation was to be made in accordance with it indicated that ‘determine’ was being used in the first sense. It then went on at [68] to consider the wording that would have to have been used to attract the discretion claimed. The decision is usefully discussed in Penny Alexander, ‘Language of Calculation and Determination: Drafting Taxation Laws’, The Loophole, Commonwealth Association of Legislative Counsel, January 2016, 40. Exemption and Exception Provisions 9.56  The orthodox approach of the courts to the interpretation of exemption and exception sections of taxing Acts was stated in Australia in Burt v Federal Commissioner of Taxation [1912] HCA 74; (1912) 15 CLR 469 at 482 by Barton J:

The several deductions allowed by s 30 are exceptions to the general rule of taxation prescribed by the Act. Where the construction of such exceptions is seriously in doubt, the interpretation should favour those whose claims are based upon the exceptions. For that position there is the highest authority, if authority be necessary. In Armytage v Wilkinson (1878) 3 App Cas 355 at 369, the Judicial Committee express their dissent from the principle that in a taxing Act provisions establishing an exception to the general rule of taxation ‘are to be construed strictly against those who invoke their benefit’.

This principle was also referred to in the same case by Higgins J (at 487). For other cases where it has been applied see the Annexure. This approach takes much of its basis from the earlier authorities referred to above that require a strict construction of taxing legislation in favour of the taxpayer. The one decision in which a contrary approach seems to have been put is State Transport Authority v  Corporation of City of Adelaide (1980) 24 SASR 481. Wells J said (at 484): [A] person who claims the benefit of an exemption from the operation of a general tax must, in my opinion, demonstrate convincingly that he is entitled 354

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to that benefit. In cases of doubt, a court should not be astute to enlarge the purview of the exemption where there is a real possibility that that enlargement will ultimately increase the burden upon the very much wider segment of the community who must pay the tax.

The only authority cited in support of this proposition was the old Scottish case of Hogg v Parochial Board of Auchtermuchty (1880) 7 R (Ct of Sess) 986. However, that case was concerned with provisions exempting persons from taxation on the basis of social class and the court considered that such exemptions were anachronistic. The view put by Wells J fits with the more recent statements relating to the interpretation of tax legislation. For example, the High Court in Commissioner of Taxation (Cth) v Bargwanna [2012] HCA 11; (2012) 244 CLR 655; 286 ALR 206 at [38] rejected a claim that an exemption provision should be interpreted ‘generously’ because a charity was involved. It said that, while the general law might favour the advancement of charitable purposes in many ways, this provided ‘no ground for some special rule of construction of the revenue law’. 9.57  It seems that the test will be the understanding of the perceived purpose of the exemption. For example, French J in Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation (1993) 44 FCR 450 at 457; 116 ALR 420 at 426, after noting the need for the taxpayer to establish the facts necessary to fall within an exemption, continued:

On the other hand, an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is not to be given a narrow application. The liberal construction of provisions of Customs and Excise legislation allowing rebates on duties and excise payable in respect of fuel used in mining operations is one application of that general proposition: Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.

See  also Commissioner of Taxation v  Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204; 251 ALR 206 at [106] where it is noted that the taxpayer accepted the forensic burden of proof to establish the facts necessary to bring it within an exception. In Totalizator Agency Board v Federal Commissioner of Taxation (1996) 69 FCR 311 at 322; 139 ALR 644 at 654–5 it was said that no special approach should be taken to the interpretation of a provision exempting government bodies from sales tax, a contrast being drawn with provisions that are intended to encourage a class of activity. An example of the latter type of provision was considered in Federal Commissioner of Taxation v Murry [1998] HCA 42; (1998) 193 CLR 605; 155 ALR 67 at [77] where it was said that a liberal approach should be taken to the exemption of small business from the operation of capital gains tax legislation. In Distribution Group Ltd v Commissioner of Taxation [2000] VSC 418 at [16], Warren J said: In the area of sales tax legislation, the general rules as to the construction of revenue statutes have been approached by the courts by way of the more 355

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specific canon that classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction.

Layton J in RSAYS Ltd v Commissioner of State Taxation [2007] SASC 398; (2007) 100 SASR 448 at [30] said: While the taxpayer bears the burden of proving that the exemption applies, in deciding the scope of the exemption, it is necessary for the court to have regard to the perceived purpose of the exemption in order to decide whether it should be given a liberal interpretation.

The exemption of persons from the liability to pay tax has prompted the consideration of whether the apparent discretion embodied in the use of the word ‘may’ to release a person from liability is discretionary once the grounds for release have been established. The courts have said that there is still a discretion vested in the Commissioner: R v Trebilco; Ex parte F S Falkiner and Sons Ltd [1936] HCA 63; (1936) 56 CLR 20; Powell v Evreniades (1989) 21 FCR 252; 87 ALR 117; Corlette v MacKenzie (1995) 62 FCR 584; 39 ALD 10; affd on appeal (1996) 62 FCR 597; Federal Commissioner of Taxation v A Taxpayer [2006] FCA 888; (2006) 91 ALD 335. See generally R Fisher, ‘Limiting the Scope for Executive Discretion: Relevant Considerations in Exercising the Discretion to Not Collect Tax’ (2013) 73 AIAL Forum 71. See Chapter 11 on obligatory and discretionary provisions. Objection and Review Provisions 9.58  While tax legislation is generally to be interpreted in the same way as other legislation, provisions allowing an objection to be made to the amount assessed and review to be sought of a decision on that objection can properly be described as beneficial provisions and should be interpreted accordingly: Port of Melbourne Authority v  Melbourne City Council (No 2) [2004] VSC 217; (2004) 133 LGERA 322 at [40]. See also 9.2.

Obligation to Pay Implies Right of Recovery 9.59  Parke B in Shepherd v Hills (1855) 11 Exch 55 at 67; 156 ER 743 at 747 said:

There is no doubt that wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary.

This statement was first endorsed by the High Court in Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51; (1920) 28 CLR 66 at 70. It has been reaffirmed on many occasions since, recently in Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1; 257 ALR 1 at [38], [140], [452]. For examples of its application, see  Secretary, Department of Transport (Vic) v Commissioner of Taxation (Cth) [2009] FCA 1209; (2009) 261 ALR 39 at [61]; Productivity Partners Pty Ltd v Commonwealth [2018] FCA 1562; (2018) 162 ALD 154 at [53]. 356

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CHAPTER 10

Retrospective Operation of Legislation GENERAL

Assumption that Legislation is Not Retrospective 10.1  The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation. The leading case on this question in Australia is Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 where Dixon CJ summarised the approach of the courts thus (at 267):

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

Perhaps the other most frequently cited statement of the principle is from Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194: There can be no doubt that the general rule is that an amending enactment  —  or, for that matter, any enactment — is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.

Both of these statements were endorsed by the High Court in Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379; 13 ALR 17. For  an example of a more recent endorsement of the statements by an intermediate appellate court, see  WBM v  Chief Commissioner of Police [2012] VSCA 159; (2012) 43 VR 446 at [67] per  Warren CJ, with whose reasons Hansen JA expressed general agreement at [133]. Gageler J in Adco Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1; 308 ALR 213 at [45] put it that ‘a provision of a regulation might be said to have retrospective operation if, and to the extent that, the provision is taken to have had legal operation at or from a past date’.

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Another statement of general application that has been relied on frequently is that from Re Athlumney; Ex parte Wilson [1898] 2 QB 547 at 551 which was endorsed by Gibbs J in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 22: ‘If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.’ For an application of this statement see Perpetual Trustees (Australia) Ltd v Valuer-General (1999) 102 LGERA 324 at 337. See also Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1; 285 ALR 27 at [24] per French CJ, Hayne, Kiefel and Bell JJ. A slightly different approach was adumbrated by Spigelman CJ in Attorney-General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557; 223 ALR 346 at [54]ff. After citing a number of House of Lords decisions, he said that a formulaic approach should not be adopted. A court must determine the scope and degree of the unfairness or injustice that a retrospective interpretation will produce in a particular case. It should then be assumed by the court that, the greater the unfairness or injustice, the less likely it is that parliament intended the Act to apply. Spigelman CJ returned to the issue in like terms in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456; 253 ALR 133 at [130]. Perhaps the clearest recent statement of the position is that of the High  Court in Australian Education Union v  General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [30]–[32]: The preceding observations should not be taken as minimising the importance of the rationale underlying the common law principles of construction. In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law … Consistently with its underlying rationale, the resistance of the common law to construing statutes as taking effect before the dates of their enactment is graduated according to the extent of their propounded effects … . While ‘fairness’ and ‘justice’ denote values underlying the relevant common law principles, it is neither necessary nor desirable, as a general rule, that the task of construction be mediated by broad evaluative judgments invoking that terminology. They carry the risk that the courts may then exceed their proper constitutional function. It is sufficient to focus upon the constructional choices which are open on the statute according to established rules of interpretation and to identify those which will mitigate or minimise the effects of the statute, from a date prior to its enactment, upon pre-existing rights and obligations. [citations omitted]

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10.3

As this passage indicates, the presumption against retrospectivity can also be read as an application of the principle of legality discussed in Chapter 5. Discussion of its applicability in a particular case should take into account the reasoning relating to that principle. The presumption referred to in the foregoing cases is common law based. It has, however, been given statutory backing in some jurisdictions. This is returned to in 10.37 but it should be observed at the outset that the courts tend not to distinguish between the common law and statutory presumptions. The following discussion can therefore be taken to apply equally to both. Distinction between Commencement and Retrospective Operation of Legislation 10.2  It is desirable to recognise that there is a distinction between the

commencement of an Act or other legislative instrument and its application or scope once it has commenced. The two will frequently coincide: the legislation will commence on the date on which it is made and will impinge on rights and obligations as in existence on and after that date. However, an Act may be deemed to have come into operation on a date earlier than when it is made. If this be so, it will again affect rights and obligations as in existence on or after that date, notwithstanding the fact that the law at the time was in different terms. So if an Act provides that certain conduct is illegal and the commencement of that Act is backdated, a person may be convicted of an offence even though the conduct was permissible at the time that it was engaged in: see R v Kidman [1915] HCA 58; (1915) 20 CLR 425. In such a case it can be clearly seen that the legislation is intended to operate retrospectively and there is no room for the presumption against retrospectivity. However, the backdating of an amendment to make action illegal that was legal at the time has to be drafted with great care. The High  Court in Director of Public Prosecutions (Cth) v  Keating [2013] HCA 20; (2013) 248 CLR 459; 297 ALR 394 ruled that a provision making it an offence to fail to advise of a change of circumstances affecting a right to a pension and backdating the commencement of that provision did not attract a penalty if there was no obligation at the deemed commencement date to advise of the change. Where it is necessary to have regard to the presumption is when legislation is expressed to come into operation on the day it is made or some later day yet appears to bring within its scope past transactions or conduct. It is then necessary to identify the intended impact of the legislation on those past events: see R v Marshall; Ex parte Baranor Nominees Pty Ltd [1986] VR 19 at 24. Meaning of Retrospective Operation 10.3  All legislation impinges on existing rights and obligations. Conduct

that could formerly be engaged in will have to be modified to fit in with the new law. (This statement was approved by the High Court: Chang v  Laidley 359

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Shire Council [2007] HCA 37; (2007) 234 CLR 1; 237 ALR 482 at  [113].) It cannot therefore be said that legislation having this effect is retrospective because it is what all legislation does. Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation. The statement of the law advanced by Dixon J in Maxwell v Murphy (see 10.1) in referring to ‘rights or liabilities which the law had defined by reference to the past events’ confirms this view. Two examples may serve to illustrate this basic proposition. The Railways Act 1928 (Vic) was amended to increase a limit on damages that could be awarded against the Railways Commissioners. In Doro v Victorian Railways Commissioners [1960] VR 84 it was held that the change in amount applied to actions pending at the date of the amendment. In short, the Act operated retrospectively. By contrast, the Privy Council in Staska v  General Motors-Holden’s Pty Ltd (1970) 123 CLR 673 refused to hold that an amendment increasing the amount by which workers’ compensation weekly payments might be redeemed was applicable to an injury that occurred before the date of the amendment. The increase was not intended to operate retrospectively. For comprehensive discussions of the meaning of retrospectivity, see A Palmer and C Sampford, ‘Retrospective Legislation in Australia: Looking Back at the 1980s’ (1994) 22 FL Rev 217; Dan Meagher, ‘Two Reflections on Retrospectivity in Statutory Interpretation’ (2018) 29 Pub LR 224. Regard should be had in the latter to the analysis of retrospectivity and the principle of legality and the comparison drawn with the ‘always speaking’ approach to reading legislation that is discussed at 4.14–4.20. Future Operation Based on Past Events 10.4  It is important when considering the question of retrospectivity to

draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events. Jordan CJ contrasted these circumstances in Coleman v  Shell Co of Australia Ltd (1943) 45 SR  (NSW) 27 at 31: … as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

The Full Court of the Victorian Supreme Court put the matter succinctly in Robertson v City of Nunawading [1973] VR 819 at 824: [The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that. 360

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Numerous examples can be found of the courts applying this distinction. One of the most frequently cited (perhaps because of the nature of its facts) is Re a Solicitor’s Clerk [1957] 1 WLR 1219. The clerk was convicted in 1953 on charges of larceny but no order could be made under the Solicitors Act 1941 (UK) as it then stood prohibiting him from being employed as a solicitor’s clerk because he had not stolen from his employer or his employer’s client. The  Act was subsequently amended to allow such an order to be made in the case of any conviction for larceny. The clerk argued that to apply the amendment to him would be to give it retrospective operation. This argument was rejected by the court on the ground that no retrospectivity was involved. The Act had future operation only, even if the conduct on which it depended had taken place in the past. Although the prohibition was based on a conviction that had occurred before the commencement of the Act, it operated in the future. On  the other hand, the Act would have had retrospective operation if anything done before its commencement had been declared void or voidable or if a penalty had been inflicted for having carried out a particular function before the Act came into force. An Australian case that reached a like conclusion in similar circumstances is La Macchia v Minister for Primary Industry (1986) 72 ALR 23. The holder of a fisherman’s licence was convicted of an offence that at the time of conviction could not result in the cancellation of his licence. The relevant Act was subsequently amended to permit cancellation for such convictions. The Full Court of the Federal Court, citing Re a Solicitor’s Clerk, upheld the validity of a cancellation based on the conviction before the Act was amended. Likewise, in Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 a widening in the range of matters that constituted ‘unfair trading’ was held to catch conduct that had taken place prior to the amendment. Further examples are: • Commissioner for Corporate Affairs v X and Y [1987] VR 460: cross-examination on prior conduct was permissible following an amendment of the Companies Code; • Director of Public Prosecutions (Cth) v  Pirone (1997) 68 SASR 106; 143 ALR 369: superannuation entitlements accrued before the date of the amending Act could be forfeited after that date; • Commonwealth v  SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285; 152 ALR 624: interest was not payable on refund of customs duty paid before the commencement of the Act as the duty was payable until the Act provided to the contrary; • Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197; (2000) 60 ALD 361: a regulation removing the right of illegal immigrants to apply for certain visas only removed future rights and had no operation on past conduct or events; 361

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• Reid v Secretary, Department of Family and Community Services [2001] FCA 794; (2001) 109 FCR 477; 65 ALD 108: a change affecting the amount of a pension made between the date of the event qualifying the applicant for the pension and the date of application for the pension applied to the applicant as he had no right to the pension prior to his application; • S v  White [2005] TASSC 27: a person was charged with assaulting his former partner and two of her children and bail was refused. Then the Family Violence Act  2004 (Tas) commenced operation. Section  12(1) provided: ‘A person charged with a family violence offence is not to be granted bail unless a judge … is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.’ Subsequently, s 12(1) was applied to another bail application by the person. This application was successful. It was held that the terms of s 12(1) had been satisfied and that no question of retrospective operation arose; • Military Rehabilitation and Compensation Commission v Perry [2007] FCA 1586; (2007) 164 FCR 307; 98 ALD 638: a change to the method of calculation of incapacity benefits was not retrospective. There was no accrued right to have a benefit calculated on the basis that existed at a recipient’s date of discharge. Rather, the change made operated for the future on the antecedent fact of his disability; • R v  Zuber [2010] ACTSC 107; (2010) 175 ACTR 1; 242 FLR 416: the prosecution in a criminal case applied for an order that the audiovisual recording of the interview of the child victim be admitted as the evidence-in-chief of the complainant under s  40F of the Evidence (Miscellaneous Provisions) Act  1991 (ACT) which did not commence until after the audiovisual recording had been made. The court allowed the evidence on the basis that the Act merely gave prospective effect to facts, which in this case, were prior facts, but did not amount to a retrospective operation. See  9.23 for further examples in relation to penal provisions; • Interhealth Energies Pty Ltd v Commissioner of Taxation [2012] FCAFC 185; (2012) 209 FCR 33 at [58]–[59]: bringing a superannuation fund under the supervisory jurisdiction of the Commissioner was not retrospective merely because the fund had been established before the change in the legislation. The supervisory jurisdiction only commenced after the amendment to the legislation; • ADCO Constructions Pty Ltd v  Goudappel [2014] HCA 18; (2014) 254 CLR 1; 308 ALR 213 at [19]: a regulation which purported to affect entitlements which had come into existence before it was made did not for that reason justify characterisation as a regulation which took effect on a date before its gazettal.

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10.5  By way of contrast, regard should be had to Bakker v  Stewart [1980] VR 17. There an amendment had taken away the general power of the court to release an offender on a bond in cases where the person had been convicted of certain drink-driving offences. The court held that this amendment did not limit the power of the court in relation to persons who had committed an offence before the amendment. To hold otherwise, it was said, would be, in effect, to increase retrospectively the penalty for the offence: see 9.23–9.26. The distinction between this decision and those referred to above is not immediately apparent but is explicable as being based on the text of the particular legislation under consideration. There was a basic interconnection of offence and penalty.

The thinking in Bakker was that it was this interconnection that was being changed and it was inappropriate for the change to apply to persons who had engaged in the activity prior to the amendment as it, in a sense, created a new offence. In the other cases, it was a consequence of conviction removed from penalty that was being altered and this could apply to the persons concerned even though it was an additional burden that the conviction did not expose them to at the time. See  also Transport Accident Commission v  Lanson [2001] VSCA 84; (2001) 3 VR 250 where it was held that to apply a new regime for the award of damages for injury arising from motor vehicle accidents to prior events would constitute a retrospective application of the legislation. Finally, mention should be made of the circumstance that commonly arises where a fresh obligation is placed on, or right given to, an existing class of persons. Such a provision does not operate retrospectively merely because it changes the existing rights or duties of a presently identifiable group: see, for example, Dubbo Base Hospital v Jones [1979] 1 NSWLR 225 where a right of appeal against reappointment to a position of visiting medical practitioner at a hospital was held to apply to existing appointees as well as those appointed after the right was given. Rights or Obligations Must be Affected before Presumption can Arise 10.6  The presumption against retrospectivity only arises where so to read the legislation would impinge on a person’s accrued rights or duties. This issue has arisen primarily in the context of the effect of the Interpretation Act provisions directed against retrospectivity: see 10.37. There is no reason to think that any different approach would be taken in relation to the common law presumption. Directly in point is the statement in the joint judgment of Mason, Murphy and Wilson JJ in Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139 at 151; 42 ALR 29 at 38:

The common law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right. If it were otherwise, the essential justice of the rule would be eroded. 363

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There a mortgagee’s power of sale on default was held to be an accrued right. The Privy Council had adopted a similar broad approach in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 in holding that Limitation Acts should not be held to impair an existing right of action unless it is so provided: see further 10.34–10.36. This approach to interpretation is based on the wider presumption discussed in Chapter 5 that the legislature is assumed not to intend to affect basic common law doctrines unless it expresses its intention in the clearest possible terms: Rodway v  R [1990] HCA 19; (1990) 169 CLR 515 at 522; 92 ALR 385 at 390 and see further 10.31. The loss of an opportunity will not usually constitute an effect on a right or liability. So in Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93; (2017) 319 FLR 228 the fact that a person had failed to take steps to ameliorate a liability before a change in the law removed that opportunity did not mean that the removal was to be characterised as retrospective. The person’s liability was not affected, only his opportunity to take some steps in relation to it. Result of Holding Act to have Retrospective Operation 10.7  Very different results can flow from the court holding that an Act

does or does not have retrospective operation as is illustrated by two of the cases referred to above, Coleman v  Shell Co of Australia Ltd (see  10.4) and Maxwell v Murphy: see 10.1. In Coleman’s case, a person’s right to make a certain application under the Workers’ Compensation Act 1926 (NSW) was extended from six months to 12 months. The applicant’s accident had occurred when the law required the application within six months. In holding that the extended time applied to him the court said that it was giving the Act a retrospective operation, thereby altering the right that the applicant already had by changing it from a right to be exercised within six months to one that the person had 12 months to exercise. On the other hand, in Maxwell v Murphy, extending from one year to six years the time within which a widow could bring an action for damages arising out of the death of her spouse was held not to be intended to operate retrospectively. Accordingly it did not apply to a widow who had allowed more than one year to elapse before the enactment of the amending legislation; her rights, having been extinguished, were not revived. The Act in not operating retrospectively had no effect on the widow’s rights (or lack of them) as they stood prior to the passing of the Act. Rationale of Presumption Against Retrospectivity 10.8  The rationale of the approach that statutes should be presumed not to have retrospective operation is stated in an oft-quoted passage from Maxwell on the Interpretation of Statutes, 1st ed, William Maxwell, London, 1875, at 190: ‘Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation.’ 364

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As noted in 10.1, this concept of fairness directing the interpretation of legislation that has an element of retrospectivity was reiterated forcefully by Spigelman CJ in Attorney-General of New South Wales v World Best Holdings Ltd [2005] NSWCA  261; (2005) 63 NSWLR 557; 223 ALR 346 at [54]ff. As was there pointed out, this viewpoint also fits in with the general approach adopted by the courts of limiting the statutory invasion of established rights: see Chapter 5. However, it is still necessary to examine the legislation in question with care, as was pointed out by Isaacs J in George Hudson Ltd v Australian Timber Workers’ Union [1923] HCA 38; (1923) 32 CLR 413 at 434. After citing the passage from Maxwell set out above, his Honour continued: But its application is not sure unless the whole circumstances are considered, that is to say, the whole of the circumstances which the Legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected. There is no remedial Act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side.

While a legislative instrument may take away some rights it may confer others and the overall aggregate justice may indicate that retrospectivity was intended (as was indeed the conclusion in the World Best Holdings case, above). In determining this issue, regard needs to be paid to the problem with which the legislation was intended to deal: see Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 at 289. The presumption is a rule of construction and the context in which the relevant provision appears will ultimately determine its effect: see  Nicholas v  Commissioner for Corporate Affairs [1988] VR 289 at 300–1 per Fullagar J; Oscalt Pty Ltd v Minister for Mineral Resources and Energy [2012] SASC 166; (2012) 115 SASR 298 at [55]–[57] (where the issue was whether a provision vesting a discretion in the minister permitted that discretion to be exercised with retrospective effect). Power of Parliament to Pass Retrospective Legislation 10.9  Statements such as that from Maxwell set out in 10.8 should not be allowed to divert attention from the fact that, subject to what is said below in regard to the question of acquisition of property on just terms, there is nothing preventing a parliament from making laws having retrospective operation. This fact was alluded to by Higgins J in R v Kidman [1915] HCA 58; (1915) 20 CLR 425 at 451 where he pointed out that, while there are plenty of passages that can be cited showing the inexpediency, and the injustice, in most cases, of legislating for the past, of interfering with vested rights, and of making acts unlawful which were lawful when done, such passages do not raise any doubt as to the power of the legislature to pass retrospective legislation, if it sees fit.

The case is of considerable importance because it was held by Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ (Griffith CJ dissenting) that the 365

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Commonwealth Parliament had power to pass retrospective legislation. Griffith CJ considered that, at least in relation to the exercise of the incidental power conferred by s  51(xxxix) of the Constitution, the Commonwealth could not pass legislation that operated on past conduct. It is to be noted that there is an express provision in the United States Constitution prohibiting such legislation. The majority judges could not see  where there was any limitation of this kind on the powers given the Commonwealth by the Australian Constitution. In Kidman’s case, amendments of the Crimes Act  1914 (Cth) made it an offence to conspire to defraud the Commonwealth. The amendment was expressed to come into effect some months prior to its making. The court held that the defendant could be convicted in relation to a conspiracy that took place after the date on which the amending Act took effect but prior to the passage of that Act. Kidman’s case was followed in Millner v Raith [1942] HCA 21; (1942) 66 CLR 1, where the Defence Act 1941 (Cth) was backdated to come into effect in 1939 and a person was held properly convicted of attempting to commit the conduct prohibited by that Act during the period between 1939 and 1941. The constitutional validity of retrospective legislation has also been affirmed in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501; 101 ALR 545; Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117; 286 ALR 625; and in Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197; (2000) 60 ALD 361 at [10] in relation to delegated legislation. See also Winstone v Kelly (1987) 46 SASR 461; 75 ALR 293. However, compare Liyanage v  R [1967] 1 AC 259 where the Privy Council ruled invalid legislation that was directed at particular individuals and which removed the discretion of the court as to the sentence that could be imposed on them. In contrast with these decisions, in Australian Education Union v  Victoria [2015] FCA 119; (2015) 239 FCR 461; 333 ALR 1 at [255] Bromberg J ruled that, unless the contrary intention appears with reasonable certainty, a Commonwealth law should not be construed so as to confer power upon a state to make a law to retroactively deem facts that alter existing rights or liabilities in the application of the Commonwealth law. 10.10  An exception to this position was noted in Georgiadis v Australian and

Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629. There it was held that legislation that had the effect of acquiring property had to comply with the direction in s 51(xxxi) of the Constitution that property can only be acquired on just terms. So if making legislation retrospective has the effect of removing from a person a property right without compensation, the provision is invalid. In that case the amending legislation purported to deprive a person of an existing common law right of action against the Commonwealth with effect from a date earlier than the commencement of the Act. This was viewed as a deprivation of a property 366

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right and invalid as no compensation for the loss of the right was provided. This is a significant limitation on the capacity of the Commonwealth to backdate the effect of legislation as very often legislation will have the effect of depriving a person of an existing right. It is important to note that Georgiadis was concerned with common law rights. The majority said (at 305; 634): The position may be different in a case involving the extinguishment or modification of a right that has no existence apart from statute. That is because, prima facie at least and in the absence of a recognised legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment. There is no acquisition of property involved in the modification or extinguishment of a right which has no basis in the general law and which, of its nature, is susceptible to that course.

However, in Australian Capital Territory v Pinter [2002] FCAFC 186; (2002) 121 FCR 509; 134 A Crim R 1 a majority of the Federal Court distinguished Georgiadis and held that a retrospective limitation on the criminal injuries compensation scheme was an acquisition of property requiring just terms even though it was statutorily based. The issue arises from time to time, but no clear pattern seems to emerge from the cases: see, for some examples, Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226; 119 ALR 675; Commonwealth v  WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1; 152 ALR 1; and the remarks of Spender J in TJM Products Pty Ltd v Industry Research and Development Board (1998) 83 FCR 379 at 388–9; 55 ALD 183 at 191–2. See also 5.46. Retrospectivity of Delegated Legislation 10.11  In all jurisdictions except Western Australia there are limitations

imposed on the retrospective operation of delegated legislation.1 In New South Wales, South Australia and Victoria, the prohibition against backdating is effectively absolute because the relevant Acts provide that delegated legislation takes effect on or after its date of making and notification. From this, it would seem that, in the absence of power in the enabling Act, even regulations favourable to the interests of members of the public cannot be made with retrospective effect. The Queensland Act contains a similar prohibition but qualifies the prohibition by expressly permitting backdating if beneficial to a person affected or if no liability is imposed on a person. 1. Cth Legislation Act  2003 s  12 (and Acts Interpretation Act s  46B (non-legislative instruments)); ACT Legislation Act 2001 s 76; NSW s 39; NT s 63; Qld Statutory Instruments Act  1987 ss  32, 34; SA Subordinate Legislation Act  1978 s  10AA (regulations, rules and by-laws), Acts Interpretation Act 1915 s 10A (other statutory instruments); Tas s 47; Vic Subordinate Legislation Act 1994 s 16; WA s 41. 367

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The Commonwealth, the Australian Capital Territory, the Northern Territory and Tasmania achieve the same result by prohibiting delegated legislation taking effect before publication if it would be prejudicial to the interests of a person. Prejudice results if a person would be deprived of existing rights or would have liability imposed in respect of things done or omitted before the date of publication. However, the formula used to achieve this differs in the jurisdictions and this difference may be significant in a particular case. Western Australia, unlike the other jurisdictions, provides for delegated legislation to commence on the day of publication or such other day as is specified. This could be a day earlier than the date of making. The effect of these limitations is not as straightforward as first appears and there are ways in which the prohibition on backdating can be avoided. The  issues are discussed in detail in D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, Chapter 31. Presumption Against Retrospectivity Rebuttable 10.12  The presumption against retrospectivity can, of course, be excluded

by a direct statement to the contrary in the relevant Act. This was the situation, in effect, in Kidman’s case and Millner’s case (see 10.9) — there the coming into operation of the Act was clearly backdated. However, it is not necessary for the legislature to make its intention as plain as this. A court will regard the presumption as being rebutted if it can spell out a necessary intendment that the Act is to operate retrospectively. What will be regarded as a necessary intendment must of necessity depend on the circumstances of the particular case and the words of the particular statute. The closest one can perhaps come to a working rule is provided by Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28 at 32 per Barton J delivering the judgment of the High Court (Barton, Isaacs and Rich JJ): ‘Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable.’ See  further the Privy Council decision in Zainal bin Hashim v Government of Malaysia [1980] AC 134 and the cases cited therein. A well-reasoned rejection of a too-ready acceptance of the presumption against retrospectivity is to be found in Doro v Victorian Railways Commissioners [1960] VR 84 by Adam J. After referring to general authorities setting out the presumption and to the statement from Maxwell set out in 10.8, his Honour said (at 86): The strength of the presumption against retrospectivity in any particular case, and accordingly the ease or difficulty with which it may be overcome, must, I would think, depend on the nature and degree of the injustice which would result from giving a statute a retrospective operation. Where a palpable injustice would result, the presumption should be given its fullest weight. In such a 368

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case it is but common sense to require the clearest indication of legislative intention that such an unjust result was intended. On the other hand, where to give retrospective operation to a statute might be considered to work some injustice to one party, but is clearly required to rectify a manifest injustice to others, there would, on principle, seem little reason for giving much weight to the presumption. In such a case, where the Legislature has used language which is apt to give to its statute retrospective operation, it would appear to be a matter of conjecture to presume that it preferred the interests of the one to the others.

His Honour then went on to consider the facts of the particular case. The Railways Act 1928 (Vic) had included a provision preventing an award of an amount exceeding £2,000 as damages against the Railways Commissioners. This amount had been included in an earlier version of the Act in 1891 and had been re-enacted without change in various consolidations and amendments since that date. Before the trial of the case, but after the commencement of the action, the amount of £2,000 was amended to £10,000. Adam J considered that the amendment should apply to all cases coming for hearing after the amending Act. He considered that the £2,000 limit was manifestly unjust, in  particular that no heed had been paid to the change in monetary values since its enactment, and he considered that there was no reason to deny the benefit of the amendment to all plaintiffs coming before the court. Influential in the outcome of Doro’s case was the beneficial impact of the amendment on the applicant. The matter can work the other way, of course, and an amendment can remove a benefit. In such cases the inclination will be to regard the presumption as applying unless there is a clear indication that it was intended to remove the benefit: Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 at 289–91. However, if that indication is clear, the court must give effect to it and apply the legislation retrospectively: Victoria v Robertson (2000) 1 VR 465 at 471. As noted previously, the context will influence the issue of application of the presumption. The use of the past participle, for example, ‘goods supplied’, ‘licences issued’, will indicate that the Act is intended to apply to existing entities and not be limited to those which are to come into being in the future: Nelson Tobacco Pty Ltd v Commissioner of Business Franchises [1994] 1 VR 498 at 508 per Marks J. See also the cases in 10.1 where Spigelman CJ referred to the outcome of holding legislation to operate retrospectively. RETROSPECTIVIT Y IN RELATION TO PARTICULAR CLASSES OF ACT

Declaratory Acts 10.13  Acts that declare or interpret the meaning of earlier Acts are regarded by the courts as forming an exception to the presumption against retrospectivity. They are treated as if they came into operation on the date on 369

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which the Act that they are interpreting came into operation. The reasoning behind this presumably is that such Acts are not altering the law in any way but are only making its meaning clearer. Persons affected by the law are therefore not subjected to any greater liability than previously existed and thus the rationale of the retrospectivity rule is negated. (This statement was cited in Scrymgour v  Moore [2006] NTSC 98; (2006) 206 FLR 347 at [36].) It must nonetheless be remembered that ‘to say that a statute is declaratory is not to deny that it is itself the source of legal rights and powers’: per Lockhart J in Commonwealth v Orr (1981) 58 FLR 219 at 227; 37 ALR 653 at 659. However, the incidence of declaratory Acts is very low. The normal pattern is that amending Acts add to or subtract something from an existing Act; they do not merely make the meaning of the Act a little clearer. An example of a purely declaratory Act and its interpretation is provided by the case of Re Gardiner [1938] SASR 6. An Act passed in 1929 had used the expression ‘testamentary expenses’ without definition. In 1934 the 1929 Act was amended by including a definition of that expression. Cleland J held that the 1934 Act did no more than explain the earlier Act and accordingly the amendment had relation back to the date of passing of the 1929 Act. It would seem that this approach could not have been called in aid if there had been a judicial interpretation of the expression ‘testamentary expenses’ and the 1934 Act was intended to alter that interpretation. Such an alteration would be regarded as a change in the law, not merely a declaration of the meaning of an existing law. The Privy Council in Harding v Commissioner of Stamps (Qld) [1898] AC 769 at 775 also pointed out that, to constitute a declaratory Act and hence come within the operation of the exception, it is necessary for the Act to do more than simply use the words ‘declare’. That case concerned an amendment of the Succession and Probate Duties Act  1892 (Qld) that commenced ‘it  is hereby declared that upon the issue of any grant …’. It was argued that by using the word ‘declared’ the Act was indicating that it was a declaratory Act and it therefore had relation back to the date of commencement of the Act amended. However, the Privy Council looked at the content of the Act and decided that its provisions were intended to be prospective and that it was not a declaratory Act. Likewise in Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 at [51] a statement in the legislation that it was intended ‘to make it clear’ what a term used in the Act was to cover was not ‘expressed with appropriate clarity to require interpretation as a declaratory enactment’ and was not to be interpreted retroactively. On the other hand, an Act need not state that it is declaratory — if that is its effect, the court will apply it retrospectively. Thus Lord Diplock in Inland Revenue Commissioners v  Joiner [1975] 1 WLR 1701 at 1715 noted that consolidating Acts are generally declaratory only of the law and should be given retrospective operation: but see 8.2. 370

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The validity of a declaratory Act was considered in Australian Education Union v  General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117; 286 ALR 625. It had been argued that an Act which amended an Act that had been the subject of interpretation by the court was an impermissible interference with judicial power. French CJ, Crennan and Kiefel JJ said at [53]: … it would be an impermissible interference with the judicial power of the Commonwealth if the Parliament were to purport to set aside the decision of a court exercising federal jurisdiction. There is no such interference, however, if Parliament enacts legislation which attaches new legal consequences to an act or event which the court had held, on the previous state of the law, not to attract such consequences.

(See 12.26 for the interpretation of provisions that are expressed to be ‘for the avoidance of doubt’.) Validating Acts 10.14  On occasions, a parliament passes an Act that is intended to make legal that which was illegal prior to the commencement of the Act or alternatively to make illegal that which was legal. (While the latter category can hardly be described as ‘validating’ Acts, the same principles apply to them.) Such Acts clearly must operate retrospectively and from their very nature refute the applicability of the presumption against retrospectivity.

A good example of the operation of such an Act is provided by the case of Taylor v Anstis [1940] VLR 300. The court had ruled invalid an Act to establish an egg marketing board. The defendant was charged with failing to supply a return to the board during the period after the original decision invalidating the board and the commencement of a new Act validating it. The court held that his failure to furnish a return was made an offence by virtue of the validating Act and the presumption against retrospectivity could not save him. Similarly in Kenny v Maher (1993) 70 A Crim R 333 the validation of regulations had the effect of making the penalty provided in the regulations applicable to conduct engaged in after their making even though it occurred before the validating legislation was made. However, because its effect is to change the law retrospectively in its operation upon persons affected, the scope of the validation is carefully considered. Where that operation is adverse, a court will require that it be clear that retrospectivity was intended. So in Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 117 FCR 337; 256 ALR 32 an Act which validated decisions of the minister or a delegate to cancel a person’s visa was held, in the absence of express reference, not to also validate decisions of a tribunal relating to the cancellation. The principles referred to in Chapter 5 relating to invasion of rights were cited in support of this approach. A number of cases have considered the specific problem of the operation of a validating Act that affected pending actions. In Bawn Pty Ltd v Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823 the Metropolitan Meat Industry 371

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Board made regulations that permitted it to retain certain offal and meat from animals that it slaughtered at its abattoir. The regulation permitting it so to act was declared ultra vires by the High Court. On 10 December 1968 the plaintiffs sued the board for conversion of retained offal and meat from animals that it had presented to the board for slaughtering. On 12 December 1968 an Act came into operation that validated the actions of the board in retaining the offal and meat and provided that such offal and meat was to become the property of the board and no compensation was to be paid for it. The plaintiff argued that, while the general presumption against retrospective operation might have been refuted in this case, nevertheless when a legislature passes an Act which alters the rights of parties by taking away or conferring any right of action, such an enactment does not affect pending actions unless expressly applied to them. This argument was founded on statements made by Jessel MR in Re Joseph Suche and Co Ltd (1875) 1 Ch D 48 at 50. However, this view had been doubted by Evershed MR in Hutchinson v  Jauncey [1950] 1 KB 574 who said that, if it were apparent that the necessary intendment of the Act was to affect pending causes of action, the court would give effect to the intention of the legislature even though there was no express reference to pending actions. This opinion of Evershed MR was that which the New South Wales Court of Appeal chose to follow. In the view of the court, it was clear from the legislation that the presumption against retrospectivity was rebutted by clear intendment in relation to causes of action and it was not necessary for the legislature to go further and make special provision in relation to pending actions. Mason JA said (at 842): Once it is accepted that the general principle of construction recognizes that a statute may operate retrospectively so as to disturb and alter substantive rights which accrued before the commencement of the statute, provided that the statutory intention in that behalf is manifested with sufficient clarity, it is not easy to see why any different rule should be applied to the possible operation of the statute on rights which have already accrued, but are the subject of pending proceedings, at the time when the statute commences to operate. True it is that in the latter case an added element of injustice may arise in the form of a liability to costs in circumstances in which the award of costs lies not in the discretion of the court, but follows automatically the result of the litigation. Nevertheless, it does not seem that the injustice which will or may result from an interference with substantive rights in pending suits is in general so much greater that a stronger presumptive rule should be applied in such a case, in particular a rule which, according to its formulation, insists on a specific or explicit reference to rights in pending actions as an essential preliminary to the application of the new statute to those rights.

See Brown v Petrie (No 2) [1998] TASSC 142 and Brown v Tyrer [1999] TASSC 19 applying this statement. In MacCarron v  Coles Supermarkets Australia Pty Ltd [2001] WASCA  61; (2001) 23 WAR 355 an Act validated the appointment of a person who had 372

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purported to authorise another to bring a complaint against the respondent. The complaint had been dismissed on the basis of the lack of authority of the person to authorise the making of the complaint. The validating Act was passed after that dismissal. However, a majority of the Court of Appeal was prepared to hold that the complaint could be dealt with on appeal because the appeal was by way of a rehearing and the complainant’s authority to act had now been validated. Bawn’s case and MacCarron’s case were discussed in Attorney-General of New  South Wales v  World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557; 223 ALR 346, where it was held that the unfairness of the retrospectivity was overridden by the clear legislative intent. These decisions must be regarded as being at the outer reaches of the effect of a validating Act, particularly as no specific mention was made in the legislation of pending proceedings, let alone those that had been heard and determined. It would seem desirable for validating Acts to make clear their application to both past and current legal proceedings. See Palace Gallery Pty Ltd v Liquor and Gaming Commissioner [2014] SASCFC 26; (2014) 118 SASR 567; 309 ALR 423 at [32]–[47] where the constitutional validity of validating legislation that interferes with the judicial process is discussed. Amending Acts: General 10.15  Most Acts in which problems of retrospectivity arise are amending

Acts. An older notion seemed to exist that when an Act amended another, the words were taken to be included in the original Act as if they had always been so included. This inappropriate approach was quickly abandoned with the advent of the general presumption against retrospectivity, it being accepted that an amending Act had the effect of changing the text of the original Act as from the date of coming into operation of the amending Act. However, it is of some importance to bear in mind the practice adopted in Australian jurisdictions (which is not followed in the United Kingdom) of Acts textually amending the original Act: see 1.50. Such Acts do not provide that the original Act is to be read as if some change were made in it but provide that the original Act is physically altered as a result of the amendment made. This necessitated a ruling by the courts that this practice of providing that the original Act is amended by ‘inserting’ new words in the principal Act did not mean that the words so inserted were to be treated as if they had always been included in the principal Act: Smith v  Calder [1941] SASR 263; McKenzie v Secretary, Department of Social Security (1989) 18 ALD 1 at 4; Pullos v Gifford Enterprises Pty Ltd [1990] 2 Qd R 251 at 258 per Ambrose J. The same general approach is adopted in regard to provisos when added to a section. The proviso is treated in the same way as any other amending provision and is not regarded as having been included in the 373

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Act from the outset: Federal Commissioner of Taxation v Reid [1927] HCA 54; (1927) 40 CLR 196. See further 7.25 relating to an amending Act having to be read together with the principal Act that it amends. Amending Acts Expressed to Operate ‘After the Commencement of this Section’ 10.16  One of the more difficult of the provisions that has to be considered by the courts is that in which an amendment is made to a section of an original Act so that it thereafter reads ‘after the commencement of this section’ something is to happen. The problem that arises is whether the ‘commencement of this section’ is the date when the section was first enacted or the date when the amendment was made. Such a provision was before the Victorian Supreme Court in Byrne v Gray [1956] VLR 520.

That case was concerned with an amendment to the Licensing Act 1928 (Vic) so that a section of the Act read ‘and any term of any agreement or lease made or executed after the commencement of this Act [having certain clauses in it] shall be void and of no effect’. This amendment was inserted in the Licensing Act by an amending Act in 1951. The question for consideration by the court was whether the words ‘after the commencement of this Act’ meant the commencement of the Licensing Act 1928 or the commencement of the amending Act in 1951. The court held that it meant the former. The decision in that case was challenged in Trustees Executors and Agency Co Ltd v Gleeson [1959] HCA 53; (1959) 102 CLR 334 when, in effect, the High Court was asked to overrule Byrne v Gray. The High Court refused to do this and held that Byrne v Gray had been correctly decided. It is interesting to note that the Victorian Licensing Act was later amended and the words ‘made or executed after the commencement of this Act’ replaced by the words ‘made or executed after the commencement of the Licensing Act 1928’. It was thus apparent that the court’s interpretation was in accordance with the intention of the legislature. If an amendment is to operate only from the date of the amending Act, the provision should be included as a substantive provision of the amending Act or should specifically refer to the date of the amending Act. If the commencement is included in the original Act in the form considered in Byrne v Gray, the Act should, it seems, be read literally and thereby given retrospective operation. Contrast the difficulties encountered by the Tasmanian Supreme Court in Associated Pulp and Paper Mills Ltd v Bramich [1960] Tas SR 165 where words relating to the time within which certain applications could be made under the Workers’ Compensation Act 1927 (Tas) were included in the principal Act, but related to the commencement of the amending Acts. Definitions 10.17  ‘[I]t must always be remembered that any amendment to the definition

section of an Act or Statutory Instrument, actually amends each section of 374

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the Act or clause of the instrument where the relevant word or expression is employed. Such an amendment thus, unless plainly indicated, is almost always construed as operating prospectively only’: Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171 at [68] per Young CJ in Eq. International Treaties 10.18  An international treaty does not come into effect until the state which is a party to the treaty adopts it as part of the state’s law. The treaty then has future operation unless the adopting Act provides otherwise even though the treaty may have been in existence for some time: Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595; 131 ALR 465. But see 3.12 and 3.22 in relation to the use that may be made of international treaties for interpretation purposes.

Penal Provisions 10.19  The operation in relation to penal statutes of the presumption against retrospectivity is discussed in 9.23ff.

Tax Legislation 10.20  The operation of the presumption against retrospectivity in relation

to tax legislation is considered in 9.48. Procedural Statutes 10.21  It has been stated in many cases that the general rule that statutes are not to be given retrospective operation does not apply to statutes that are concerned with matters of procedure only. The leading authority for this proposition in Australia is again Maxwell v  Murphy [1957] HCA 7; (1957) 96  CLR 261. The basis of the distinction that is drawn by the courts between statutes affecting rights and statutes affecting procedure was stated by Dixon CJ (at 267), adopting the words of Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69: ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.’ Dixon CJ said the distinction was clear enough in principle and its foundation in justice was apparent.

However, as the cases referred to below show, it is not always easy to draw a distinction between the two types of legislation. Fullagar J in Maxwell v Murphy at 286 more realistically pointed out that the distinction does not represent a logical dichotomy. He referred to the well-known saying of Sir Henry Maine in Early Law and Custom, 1883, at 389 to the effect that, if  one traces any substantive right back far enough, it will be found ‘secreted in the interstices of procedure’. However, as Fullagar J said, the distinction has been accepted and applied again and again. The courts have recognised that a change that might be described as procedural in character may nevertheless affect a vested right adversely. 375

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In cases of this kind there is authority to suggest that the general principle against retrospectivity will be followed. The difficulties that arise are primarily in two areas: first, what is a procedural statute and, second, when can it be said that an alteration of a matter of procedure affects a vested right adversely? Meaning of ‘procedural statute’ 10.22  Fullagar J in Maxwell v  Murphy [1957] HCA 7; (1957) 96 CLR 261 at 286 described the distinction between procedural and other statutes as being between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. The High Court in Victrawl Pty Ltd v  Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595 at  615; 131 ALR 465 at 479–80 said that it was not a case of asking whether a provision could be broadly characterised as a procedural provision. The question was ‘whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable’.

See also Rodway v R [1990] HCA 19; (1990) 169 CLR 515 at 518; 92 ALR 385 at 387; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503; 172 ALR 625 where the High Court endorsed an earlier statement by Mason CJ in McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 at 26–7; 104 ALR 257 at 267 that rules which are directed to governing or regulating the mode or conduct of court proceedings are procedural and all other provisions or rules are to be classified as substantive. In Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47 at [8] it was said that a party does not, upon commencing a proceeding, obtain some form of accrued right to have that matter and associated interlocutory issues determined pursuant to the rules of court as they stood at the date of the originating application. This was said to be of even more significance in an era when rules of court are subject to frequent amendment. ‘It would add a significant layer of cost and complexity to litigation if the appropriate rule were to depend on the date of the commencement of the action’: at [11]. The notion is thus adopted that, if a statute is concerned only with the way in which certain rights are to be enforced or is quite literally concerned with court procedure, it will operate retrospectively. This means that it is applicable to all actions commenced after the passing of the procedural statute to enforce rights, whether those rights arose before or after the enactment of that statute. A statute that amends prescribed procedure will also apply to actions commenced but only partly completed when the change in procedure is made.

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It is suggested that this pristine approach may be qualified in circumstances where its application would lead to clear unfairness to a party: NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456; 253 ALR 133 at [131]. However, compare the cases referred to at 10.14. It seems that the starting point will be that referred to in Vance’s case, above. There are no clear guidelines that one can look to in determining whether a provision should be treated as procedural in the sense referred to above. As the examples set out in 10.23–10.33 illustrate, to a large extent it is necessary for a court to make up its mind on a case-by-case basis and there will inevitably be some matters that are classified as being concerned with substantive rights which at first sight might be considered procedural and vice versa. It must also be borne in mind that legislation that is concerned with procedure may also go further and destroy the ability to bring an action or the immunity from action. In these cases it is more probable that a court will resist retrospectivity. See the cases cited in 10.7 and see also Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553. Cases holding an alteration to constitute a matter going to procedure 10.23  Alteration of jurisdiction or structure of the court:

• Dowler v Princes Securities Pty Ltd (1971) 1 SASR 578: the Local and District Criminal Courts Act 1926 (SA) permitted a judge to order the transfer to the Local Court of actions that had been commenced in the Supreme Court but which fell within the jurisdiction of the Local Court. The jurisdictional limit of the Local Court was increased after an action had been commenced in the Supreme Court. It was held that this amendment was one going to procedure only and it was therefore within the power of the Supreme Court to order the transfer of the case to the Local Court; • Minister for Home and Territories v Teesdale Smith [1924] HCA 41; (1924) 35 CLR 120: s 33A was inserted in the Judiciary Act 1903 (Cth) to empower the High Court to take certain steps that would enable an arbitral award made by it to be enforced. The court held that this amendment was applicable to the enforcement of awards made before the commencement of the section. Isaacs ACJ and Starke J said that the section did not assume to alter any rights; it merely invested the High  Court with a measure of original jurisdiction to ascertain and compel the observance of rights. See  also Mijatovic v  Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 at [149] (vesting of new tribunal with jurisdiction to determine (unaltered) obligations or rights); Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd [2012] FCA 21; (2012) 201 FCR  209; 287 ALR 297 (enforcement of arbitral award under International Arbitration Act 1974 (Cth)); • Zollner Ltd v Sydney Municipal Council (1917) 17 SR (NSW) 164: it was held that an Act abolishing trial by jury in land compensation claims applied 377

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to cases commenced but not heard before the coming into operation of the Act. Contrast Re Government Railways, No 1 Award 1918 AR (NSW) 213 where an amendment to the Industrial Arbitration Act 1912 (NSW) providing for the court to sit with assessors in certain applications was held not to have retrospective effect and therefore did not require the court to sit with assessors on an application that had been made but not heard before the amendment came into force; • Realty Development & Mortgage Co Ltd v  Londish (1967) 87 WN (Pt 1) (NSW) 92: the extension of the court’s jurisdiction during the course of a hearing by permitting it to grant a new remedy was held procedural and therefore the remedy could be awarded in the particular case; • Re Hassell; Ex parte Pride (1984) 1 FCR 387; 52 ALR 181: the extension of the Federal Court’s jurisdiction to grant prerogative relief by s 39B of the Judiciary Act 1903 (Cth) permitted such a remedy to be granted in respect of a decision made before the amendment. The section dealt with the pursuit of remedies rather than the creation of substantive rights; • Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; Halal Certification Authority Pty Ltd v Quality Kebab Wholesalers Pty Ltd (No 2) [2014] FCA 840; (2014) 223 FCR 540; 107 IPR 540: an increase in the amount of damages that might be awarded under an Act was procedural and was therefore applicable to actions commenced before the amendment. 10.24  Costs:

• Galvin v Forests Commission of Victoria [1939] VLR 284: the power to award costs was granted to the Workers’ Compensation Board during the course of a case. This was held to be procedural and therefore costs could be awarded in a case partly heard before the law was amended; • Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413: the removal of the discretion whether or not to award costs was held to be procedural and therefore applicable to a part-heard case. 10.25  Extension of time:

• Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629; Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471: the extension of the time within which to make certain applications under the Workers’ Compensation Act 1926 (NSW) was held to apply to applicants whose rights to make such applications had not expired under the old time limit. But the extension of time was held not applicable if the right to make the application had expired. See also 10.34–10.36. 10.26  Statutes of limitation and statute of frauds:

• Maxwell v  Murphy [1957] HCA 7; (1957) 96 CLR 261: these statutes are procedural in nature; see  particularly Fullagar J at 286–91. But this presumption is rebuttable; see  in relation to limitation statutes Attorney-General (Vic) v Craig [1958] VR 34 approving Allman v Country 378

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Roads Board [1957] VR 581; and in relation to the statute of frauds Deposit & Investment Co Ltd v Greenaway [1969] VR 714. 10.27  Miscellaneous:

• R v Murray (1886) 7 LR (NSW) (L) 361: an amendment relating to the competency of a witness in a trial was held procedural and therefore applicable to a trial that had commenced before the amending Act came into operation; • Rodway v  R [1990] HCA 19; (1990) 169 CLR 515; 92 ALR 385: the presumption against retrospectivity did not prevent a change in legislation removing a requirement that an allegation of commission of an offence be corroborated applying to a person being tried for an offence committed before the change. The change in the law did not operate to affect existing rights or obligations but only the way in which the rights fell to be determined at trial (overruling Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1. See also Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 434; 154 ALR 417 at 432); • R v  Zuber [2010] ACTSC 107; (2010) 175 ACTR 1; 242 FLR 416: the prosecution in a criminal case applied for an order that the audiovisual recording of the interview of the child victim be admitted as the evidence-in-chief of the complainant under s  40F of the Evidence (Miscellaneous Provisions) Act  1991 (ACT) which did not commence until after the audiovisual recording had been made. The court allowed the evidence on the basis that the Act was procedural in its effect; • Ex parte Smith; Re Workers’ Compensation Commission (1930) 31 SR (NSW)  152: an amendment providing that a tribunal should, on the request of a party, state a case for the decision of the Supreme Court was held procedural; • Birch v Taubmans Ltd (1959) 77 WN (NSW) 133: an amendment of the Common Law Procedure Act 1899 (NSW) relating to the right to sign judgment notwithstanding the death of either party between verdict and final judgment was held to be concerned with a matter of procedure; • Heydon v Gell (1900) 21 LR (NSW) (Eq) 265: the right to an administration decree was held not to be a substantive vested right and therefore was a matter of procedure; • Sifam Electrical Investment Co Ltd v Sangamo Weston Ltd [1971] 2 All ER 1074: the right to exercise a defence was held to exist only so long as the statute giving that defence remained in force. Such a defence was thus equated with a procedural provision; the plaintiff might be prevented from exercising a right but that did not mean that the rights were destroyed; • Robertson v City of Nunawading [1973] VR 819: a person who submitted an application for a building approval was bound to comply with changes in the prescribed procedure that were made before the approval was given. 379

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Cases holding an alteration not to constitute a matter relating to procedure 10.28  Rights of appeal and review:

• Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28: held that the power to appeal from a lower court decision is a matter affecting rights and not a matter of procedure. Per Barton J at 31 (giving the judgment of the court, Barton, Isaacs, Rich JJ): ‘Procedure may and generally does surround it but the central notion of an appeal is undoubtedly a right.’ Similar views were expressed in the cases referred to in the Annexure; • Western Australia v  Richards [2008] WASCA 134; (2008) 37 WAR  229; 185  A Crim R 413: the sentencing principles extant at the date when a person is sentenced provide rights that, unless expressly removed, must be followed on an appeal; • Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430; 106 ALR 577; Repatriation Commission v  Keeley [2000] FCA 532; (2000) 98 FCR 108; 60 ALD 401: the right to have a decision reconsidered and determined by a tribunal is not a power to take advantage of an enactment nor a mere matter of procedure. It is a substantive right that has accrued under the statute. (However, cf Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830; (2000) 106 FCR 95 where the Act  was interpreted as removing the right retrospectively.) However, this approach does not mean that the procedure relating to the method of bringing an appeal cannot be altered in a way that affects an existing appeal. If the procedure does not prevent the appeal being brought, it can properly be described as a ‘procedural’ amendment and can operate retrospectively: Cook’s Hotel Pty Ltd v Pope (1983) 33 SASR 240. In Gold Coast City Council v  Sunland Group Ltd [2019] QCA 118 at [6]–[8] the point was made that the nature of the appeal might affect the issue. A distinction was drawn between what was referred to as an appeal in the strict sense and an appeal by way of rehearing. The court there referred to Duralla Pty Ltd v Plant (1984) 2 FCR 342, particularly Beaumont J who said at 366–7: ‘[I]n order to construe amending legislation of the type now under consideration as applicable also at the appellate level, in an appeal in the strict sense, the most explicit language would be required, given the draconian result which would follow if such a construction were adopted … .’ What might be regarded as the converse of the foregoing cases is where an appeal for some reason can no longer be brought because, for example, it is out of time or a judge has placed conditions on its pursuit which have not been complied with. In such a case, to allow a change in an Act to revive the prospect of appealing is to interfere with the expectation of one party that the litigation is at an end. As with the right of appeal itself, this expectation should be regarded as a vested right that is not to be taken away without an express statement to that effect: see Myer Melbourne Ltd v Hammond [1984] VR 40. 380

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10.29  Extinguishment or limitation of claim:

• New South Wales v McMullin (1997) 73 FCR 246; 153 ALR 473: a statute providing that no action for damages could be brought against the state arising out of the handling of certain chemicals could not operate retrospectively. Extinguishment provisions do not displace the presumption against retrospectivity and an action can be brought in respect of a cause of action that has vested before the commencement of the legislation; • Repatriation Commission v  Keeley [2000] FCA 532; (2000) 98 FCR 108; 60 ALD 401: a statute that redefines the scope of liability of the Commonwealth by limiting the claim that a claimant may present is not concerned with matters of procedure. See  also the cases referred to at 10.34–10.36 and Interpretation Acts, Chapter 2. 10.30  Calculation of damages and interest:

• Przetak v  Metropolitan (Perth) Passenger Transport Trust [1961] WAR 2: an  amendment to the fatal accidents legislation specifying that certain payments under the Commonwealth’s social services legislation were not to be taken into account in assessing damages was held to relate to the basis of calculating damages rather than their mode of assessment, thereby affecting the extent of the plaintiff ’s right, and it was therefore not procedural; • Azzopardi v South Johnstone Co-operative Sugar Milling Association Ltd [1953] St R Qd 120: the abolition of the rule of common employment was held by a majority of 2:1 not to constitute the removal of a mere procedural bar to an employee’s right to recover from his employer. The abolition was therefore not retrospective in operation; • Kraljevich v Lake View and Star Ltd [1945] HCA 29; (1945) 70 CLR 647: an alteration was made to the method of calculating the sum for which future payments of workers’ compensation might be redeemed. The High Court said that, although it looked at first sight like a procedural provision in that it involved a method of calculation, nevertheless the basis of calculating the redemption was in reality to express the measure of liability and therefore the amendment did not go to a matter of procedure. Kraljevich’s case was followed in John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11. See also D & W Livestock Transport v Smith (No 2) (1994) 117 FLR 264; • Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595; 131 ALR  465: the coming into force in Australia of an international convention that limited a carrier’s liability for damages made a change of substance to the rights of persons affected and was not to be regarded as procedural. An international treaty does not apply to facts or events that 381

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occurred prior to its coming into effect by the action of a state party to it adopting it as part of the state’s law; • J & P Lemming Holdings Pty Ltd v O’Keefe [1984] VR 1005: an amendment to the rate of interest applicable to judgments was a substantive change in the law and not applicable to judgments entered before the date of the amendment. 10.31  Rights at trial:

• Ah Hing v  Hough (1926) 28 WALR 95; Richardson v  Shipp [1970] Tas SR 105; MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16; 80 ALR 53; Attorney-General’s Reference No 1 of 1988 (1988) 49 SASR 1: provisions casting the onus on the defendant to disprove certain matters constituted an interference with the rights of a defendant and were therefore not procedural in nature and should not be construed retrospectively. However, contrast Re Attorney-General’s Reference No 1 of 2004 [2005] TASSC 10; (2005) 13 Tas R 395 which relied upon the statement of Dixon CJ in Maxwell v Murphy set out at 10.21 to hold that these decisions were wrong and should not be followed; • Newell v  R [1936] HCA 50; (1936) 55 CLR 707: an Act permitting a majority verdict in a criminal trial was held not to apply to the trial of a person whose trial had commenced before the Act but who had not been convicted until after. The right to a unanimous verdict is a right, not a procedural matter; • Keating v Calas [1974] VR 381: the right to plead issue estoppel was not merely an evidential plea but created in plaintiffs a substantive right not to have to re-litigate a question decided in their favour. A statute taking away this right was not concerned with a mere procedural alteration and ought not therefore be construed retrospectively; • Henderson v  Read [1993] 1 VR 537: a no-case submission was to be determined on the basis of the law at the time it was put and an amendment changing the law could not be taken into account. It must be clear that rights are being affected before the approach posited in these cases is applicable: see Rodway v R [1990] HCA 19; (1990) 169 CLR 515; 92 ALR 385; Re Attorney-General’s Reference No 1 of 2004, above. 10.32  Right and remedy inextricably bound together:

• Maxwell v  Murphy [1957] HCA 7; (1957) 96 CLR 261: the High Court held that in certain circumstances an Act giving a certain right may also provide the only remedy by which that right can be enforced. An Act affecting the remedy might also affect the right and could not be regarded as procedural. This was so held in relation to an Act giving a right to bring an action for damages within one year of the death of a relative. The right was conditional upon an action being brought within the allotted time and upon the lapse of that time the right was lost. Accordingly 382

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an Act extending the time could not be regarded as procedural. This approach was reaffirmed in Western Pastoral Co v Eyeington [1971] HCA 73; (1971) 125 CLR 342. See also 5.52. 10.33  Miscellaneous:

• Deposit & Investment Co Ltd v Greenaway [1969] VR 714: s 23 of the Money Lenders Act  1958 (Vic) which provided that under a money-lending contract no interest could be recovered and no security enforced unless certain formalities were complied with was not procedural because it applied to enforcement by curial or extra-curial action. The Supreme Court distinguished the statute of frauds cases on the basis that the statute of frauds says ‘No action shall be brought’, thereby indicating that it is concerned only with curial proceedings and also on the basis that the memorandum in that case can be brought into being at any time whereas the requirements under s 23 had to be satisfied at the outset. See also Walton v Baffsky [1975] 2 NSWLR 565 where the same view was expressed in regard to similar legislation; • Re Monk [1961] ALR 883: the making of an order under the Supreme Court (General Civil Procedure) Rules (Vic), varying an order requiring payment into court by substituting a direction that the amount be paid to a specified person, created a new right in that person having force from the date of the order, and was not a matter of procedure; • Ford v National Parole Board (1976) 73 DLR (3d) 630: a postponement of the review date for determining whether a prisoner was entitled to parole was not merely procedural but affected the right of the prisoner to have his or her imprisonment reviewed; • Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139; 42 ALR 29: a mortgagee’s power of sale which had accrued on the default of the mortgagor prior to the enactment of legislation requiring the giving of certain notices as a condition to a mortgagee exercising a power of sale could be exercised without compliance with the legislation. The power was an accrued right and the presumption against retrospectivity applied; • Schlieske v  Federal Republic of Germany (No 2) (1987) 26 A Crim R 341; 76 ALR 417: a change in the method of presenting evidence to support an extradition application was of such significance that retrospectivity should only be implied in the clearest circumstances. Procedural statute affecting rights 10.34  As mentioned, the second major problem relating to retrospective

legislation is the determination of when an amendment that would otherwise be regarded as procedural can be said to affect rights, thereby raising the presumption against retrospectivity. The usual situation in which the courts are faced with this problem in relation to legislation that on the face of it looks 383

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to be concerned with procedural matters is where the Act involves either an extension or a diminution of the time within which a particular action should be commenced. Yrttiaho v Public Curator (Qld) [1971] HCA 29; (1971) 125 CLR 228 provides a clear example of the approach of the courts in these cases. The rules of the Supreme Court of Queensland were amended by substituting three years for the existing provision of six years as the time after the lapse of which from the last proceeding in a cause the leave of the court was necessary for the taking of a fresh proceeding. This change was made in the rules in February 1966. The last proceeding that the applicant had taken in his cause was in June 1963. In August 1967 he sought to take a further step in the action. The question then arose whether he had to seek leave of the court, more than three years having expired since the last proceeding, or whether the former rule allowing him six years still applied. It is to be noted that, after the amendment of the rules, the applicant still had a period of some four months in which he could have taken a further step in the proceedings. Menzies, Windeyer, Walsh and Gibbs JJ (Barwick CJ dissenting) held that the rule applied in its amended form and hence the applicant had to seek leave to proceed. The applicant had argued that the change in the rules affected his rights in the case, but his argument was rejected. Gibbs J, delivering the main judgment of the majority, pointed out (at 241) that the operation of the amendment to the rules of court was purely procedural. The amendment did not impair the appellant’s right or bar his cause of action. After the amendment took effect the appellant remained entitled to continue with his action and enforce his right. It was true that it then became necessary for him to take a fresh proceeding in the action before June 1966 unless he could obtain the leave of the court or a judge, whereas previously the rule had allowed him until June 1969 for this purpose. However, this only meant that the rule governing the manner in which the action had to be conducted had been amended. In the view of Gibbs J the change was one in procedure; the amendment to the rule affected the manner in which the appellant might proceed in his action for the purpose of enforcing his right, but the right remained enforceable. His Honour very carefully drew a distinction between the situation presented to the court and the situation that would have applied if the effect of the amendment had been to deny completely the right of the appellant to proceed without leave. He referred to Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 277–8 where Williams J had said: But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause 384

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of action by abridging the time for its institution could hardly be described as merely procedural.

What is not apparent from these cases is how realistic the ability to continue an action must be where a previous time limit is shortened. It seems probable that a court would turn to the approach referred to at 10.1 in the World Best Holdings case and ask what interpretation can be considered fair overall. Just because time is available to commence proceedings may not be sufficient to justify a retrospective interpretation having regard to the circumstances of the particular case. The time must be reasonable if the person affected is not to be regarded as being deprived of the right of action. A variant on this position is to be found in Rodgers v Revenue SA, Department of Treasury and Finance [2014] SASCFC 2; (2014) 240 IR 202 at [83]–[84]. A reduction in the time within which to bring an action could operate on existing claims because there was a power to extend the time where it was just and equitable to do so. Summary 10.35  It can be concluded that a statute that could otherwise be described as procedural and therefore have retrospective operation will not be so regarded if to do so would have the effect of depriving a party to a cause of a right of action. However, if existing rights are merely varied, or the changes go only to the formal procedures to be followed in regard to an existing right, the approach of the court will be to regard a procedural statute as operating retrospectively.

See also the cases referred to in the Annexure. Effect of Procedural Statute that Revives Cause of Action 10.36  In the passages referred to in 10.34, Gibbs and Williams JJ also

referred to the position of a statute dealing with procedural matters that, if given retrospective operation, would revive a cause of action that was otherwise barred. In these cases, it is clear that the approach to be followed is to hold that the statute is not merely procedural but also affects rights and therefore, in the absence of a clear contrary intention, should not be read as acting retrospectively. The case is to the contrary if an extension of time comes during the period when the time to take the particular step has not expired. An example of such a situation is provided by Re Ovens and King Traders Pty Ltd [1949] VLR  16 where an amending Act extended the time from two years to 15 years within which a creditor could apply to have the name of a company that had been struck off restored to the register. A company’s name was struck off the register in March 1939; the amending Act was passed in May 1939. Fullagar J held that the 15-year period was applicable as the amendment had occurred during the period within which it was, under the former law, possible to seek the restoration of the name of the company to the register. It is clear from his 385

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judgment that, if in fact the two-year period had expired before the coming into operation of the amending Act, the application would have been refused. A similar approach was adopted by the Full Court of the New South Wales Supreme Court in Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 and by the Full Court of the South Australian Supreme Court in Commercial Oil Refiners Pty Ltd v South Australia (1974) 9 SASR 88. In all these cases the two English decisions of The Ydun [1899] P 236 and R v Chandra Dharma [1905] 2 KB 335 are referred to. These seem to be the primary English authorities for adopting the same approach as is taken in the Australian cases. Interpretation Act Provisions 10.37  Finally it should be noted that the common law presumption against

the retrospective operation of legislation has been supplemented and largely codified by the inclusion of appropriate provisions in the Interpretation Acts of the states and the Commonwealth: see Interpretation Acts, Chapter 2. However, this may not be applicable to changes made by an amending Act in those jurisdictions where the Interpretation Act provision is limited to repealing legislation: see Interpretation Acts, 2.29. In those jurisdictions the common law presumption determines the position. However, it does not appear that the courts regard the statutory test as leading to any result different from that which would flow from an application of the common law presumption: Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139 at 152; 42 ALR 29 at 39. Frequently the discussion of the Interpretation Act provisions will be couched in terms of the common law rules: see, for example, Robertson v City of Nunawading [1973] VR 819 at 827; Re Killen and Crown Lands Act (1981) 8 NTR 8.

386

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CHAPTER 11

Obligatory and Discretionary Provisions GENERAL

Problems of Classification 11.1  One of the more difficult problems encountered in the interpretation of legislation is determining whether an office-holder or individual is obliged to do something on the one hand or has a discretion as to whether or not to do the thing on the other. (The terminology used in cases of this kind often substitutes the dichotomy ‘duty/power’ for ‘obligatory/discretionary’.) It could be assumed that, for interpretation purposes, the presence in legislation of words such as ‘shall’, ‘must’ or ‘is required’ suggest some kind of obligation, while words such as ‘may’, ‘it is lawful’ or ‘if he or she thinks fit’ suggest a discretion in the office-holder or person concerned. However, the courts have not adopted any rule to that effect (and this despite the efforts of the legislatures to bring about such a result: see 11.13). Instead, the courts have treated the resolution of obligatory/discretionary issues as having to be dealt with by reference to the ordinary principles of interpretation previously discussed.

Perhaps an even more complex problem of interpretation that is sometimes faced is whether a failure to comply with a legislative provision that purports to impose an obligation results in action taken under it being invalid. This usually arises when there has been a failure to comply with a procedural requirement, so that the issue becomes whether the failure has a fatal effect on the case of one of the protagonists. The issue is a particularly difficult one, because the parliament is most unlikely to have contemplated the consequences of non-compliance. Even if it had contemplated that consequence, it would not enunciate it as to do so could defeat the direction as to the procedure to be followed that is included in the provision. The court must therefore impute an intention to parliament as to those consequences. The courts have long recognised that no formula is available to resolve issues of this kind. Lord Penzance in Howard v  Bodington (1877) 2 PD 203 at 211 summarised the position: I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance 387

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of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

The terms that came to be used to describe the dichotomy with which this process of interpretation was concerned were ‘mandatory’ and ‘directory’. A provision that had to be complied with strictly on pain of invalidity for non-compliance fell into the former category. One that did not have this consequence was described as ‘directory’. However, the use of the term ‘mandatory’ was not always confined to provisions falling into that former category. Occasionally the term was used in a broader, more colloquial sense, as a synonym for ‘obligatory’. The question sometimes posed in that event was whether a provision was ‘mandatory’ or ‘discretionary’. This led to confusion, compounded by the fact that it is not always possible to categorise a provision either as one that requires strict compliance or as one that does not require any compliance. In some instances, strict compliance with the statutory directive is not necessary for validity but nonetheless some action, sometimes characterised by the term ‘substantial compliance’, is still necessary. Against this background, the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 discouraged the use of the terms ‘mandatory’ and ‘directory’. In their joint judgment McHugh, Gummow, Kirby and Hayne JJ suggested at [93] that: ‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’ Discussion of Cases 11.2  It follows from the matters adverted to in 11.1 that earlier cases relating

to other statutes are not always of assistance: B v B [1961] 2 All ER 396 at 397 per Scarman J; Tasker v Fullwood [1978] 1 NSWLR 20 at 23; Accident Compensation Commission v  Murphy [1988] VR 444 at 447. Provided that this is borne in mind, the ensuing paragraphs provide some guidance to the approach that the courts will adopt in determining whether a provision imposes an obligation or confers a discretion. The cases dealing with obligations and discretions are discussed under the two broad headings indicated in 11.1. DUTIES AND POWERS

Consequences of Interpretation to be Considered 11.3  The principal guide adopted by the courts in determining whether a

provision imposes a duty or is merely facultative is to examine the effect of interpreting the provision one way or the other. If the court is satisfied that the purpose or object of the Act (or the provision in question) would be defeated if a task were not carried out by a person or body, it will rule that the provision is obligatory and the possessor of the power has no discretion 388

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to refuse to exercise it. This is an example of interpretation by reference to consequences, which is discussed at 2.57–2.60. Re M (1924) 26 WALR 115 illustrates this reasoning process. In that case it was held that a provision stating that the Registrar-General of Births, Deaths and Marriages may correct errors in the Register of Births, Deaths and Marriages on supply of proper proof imposed an obligation on the Registrar to correct the register where such proof was provided, and this notwithstanding the fact that the provision was couched in discretionary terms. The purpose of the Act was to ensure the accuracy of the register and the making of corrections to it could not be left to the whim of the Registrar. In Bradley v  Commonwealth [1973] HCA 34; (1973) 128 CLR  557; 1 ALR 241, the High Court took into account the nature of the service that the Post and Telegraph Act 1901 (Cth) required the Postmaster-General to provide. It  concluded that the Act should prima facie be read as imposing an obligation to supply these services. The right of persons to postal and telegraphic services should not, in the absence of clear terms in the Act, be regarded as available at the discretion of the Postmaster-General. Provisions May be Discretionary in One Respect but Obligatory in Another 11.4  The exercise of a certain right may lie at the discretion of one person

but, on being exercised, may impose an obligation on another person. For example, in Disher v Disher [1965] P 31 a provision that ‘[a]t the conclusion of the evidence for the complainant the defendant may address the court’ was held to be permissive in so far as the defendant was concerned — he or she could elect whether or not to address the court — but obligatory as far as the court was concerned — if the defendant elected to address, the court was obliged to permit the exercise of that right. Contrast this with Harvey v Harvey (1951) 68 WN (NSW) 241. Section  22 of the Married Women’s Property Act 1901 (NSW) provided that a judge, if a party so required, ‘may’ hear an application in chambers. It was held that the provision was discretionary in all respects. The party might at his or her discretion request the hearing to be in chambers, but the judge also had a discretion whether or not to accede to the request. The reason for the different result in the two cases is clear. In Disher’s case it was considered that the fundamental right of a defendant to address the court should not lie at the discretion of the court: the court must be obliged to hear the case. In Harvey’s case, the basic concept of open justice had to be weighed against the unwanted public airing of the parties’ private affairs and the judge was in the best position to determine which was the more desirable procedure in the particular circumstances. The two cases do, however, demonstrate the difficulties of predicting the outcome of any particular case. Another example of this duality of requirement is provided by Harvey v Mutsaers [2012] VSCA 69; (2012) 35 VR 389. A section of an Act provided 389

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that a person ‘may’ apply for an extension of time for a planning permit within a specified time. The right to apply was held to be at the discretion of the person seeking the extension. However, if an extension was to be sought, the time limit within which to apply was obligatory (at [21]). Affirmative Words Prima Facie Impose a Duty: Permissive Words Prima Facie Grant a Discretion 11.5  Subject to the context in which the word appears, the use of the

word ‘shall’ or ‘must’ to entrust a function is taken prima facie to impose an obligation to exercise that function: see Grunwick Processing Laboratories Ltd v  Advisory, Conciliation and Arbitration Service [1978] AC 655, particularly per Lord Diplock at 690 and Lord Salmon at 698. Lord Diplock suggested that such an inference is stronger in the case of a provision dealing with a matter of substance in an Act than in the case of one concerned with the machinery for carrying out the purpose of the Act. See also Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33 at 40; 156 ALR 110 at 116 where it was also considered relevant that ‘shall’ and ‘may’ were used in juxtaposition. Conversely, ‘[t]he authorities clearly show that it lies on those who assert that the word “may” has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning’: Ex parte Gleeson [1907] VLR 368 at 373 per Cussen J. The same view was expressed by the High Court in Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505: ‘[I]t is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning.’ See  also Finance Facilities Pty Ltd v  Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 particularly per Owen J at 138. Where permissive words are added to by the addition of a phrase such as ‘in its discretion’ or ‘if he or she thinks fit’, the intention that the power is discretionary is emphasised: Newmarch v  Atkinson [1918] HCA 53; (1918) 25 CLR 381 at 387; Lamb v Moss (1983) 76 FLR 296 at 312; 49 ALR 533 at 550. Likewise where a decision maker ‘may have regard to’ factors in making a decision if ‘he or she considers [them] relevant’: Commissioner of State Revenue v  Purdale Holdings Pty Ltd [2003] VSC 289. Nonetheless, as cases such as Re M (1924) 26 WALR 115 (see 11.3) show, the use of permissive words is not conclusive and they may well be held to impose a duty on a person. But it is at least a useful starting point to know that it will be up to the person who asserts that such words are mandatory to make out a substantial case. Investment of Public Officers Including Courts with a Discretion 11.6  One of the commonest situations in which the obligatory/discretionary

problem has arisen is in regard to the granting of a power to a public officer in discretionary terms. The issue is common to both governmental officers 390

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and the judiciary, but special mention is made at 11.9–11.11 in relation to the latter. The starting point for the discussion of the topic in both cases is the statement of Earl Cairns LC in Julius v Bishop of Oxford (1880) 5 App Cas 214 at 222–3. Earl Cairns was speaking of the words ‘it shall be lawful’ but the statement is equally applicable to any other words appearing to invest a person with a discretion: They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or a power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.

Thus the apparent discretion to act may be rendered obligatory. Whether it will be so regarded will again depend upon the circumstances of the case and the court’s assessment of what was the intended effect of the Act. 11.7  So, for example, in Finance Facilities Pty Ltd v  Federal Commissioner of

Taxation [1971] HCA 12; (1971) 127 CLR 106, s  46(3) of the Income Tax Assessment Act  1936 (Cth) provided that the Commissioner ‘may allow’ a private company a rebate of taxation if satisfied that the shareholder would not pay a dividend to another private company during a specified period. The Commissioner argued that the provision as to allowing a rebate was entirely discretionary. However, the High Court ruled that, once satisfied in terms of the section, the Commissioner was obliged to allow the rebate. There was no reason to think that the Commissioner should have a discretion to refuse the rebate once satisfied that the circumstances entitling the taxpayer to receive it had been established. Windeyer J said (at 134–5): This [question] does not depend on the abstract meaning of the word ‘may’ but [on] whether the particular context of words and circumstances make it not only an empowering word but indicate circumstances in which the power is to be exercised — so that in those events the ‘may’ becomes a ‘must’.

His Honour then went on to cite Jervis CJ in Macdougall v Paterson (1851) 11 CB 755 at 766; 138 ER 672 at 677: ‘The word “may” is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise.’ Windeyer J’s analysis was approved by the High Court in Mitchell v R [1996] HCA 45; (1996) 184 CLR 33 at 345; 134 ALR 449 at 457; Leach v R [2007] HCA 3; (2007) 230 CLR 1; 232 ALR 325 at [38]; Commissioner of the Australian Federal Police v Hart [2018] HCA 1; (2018) 351 ALR 1 at [104]. However, contrast the decision in Commissioner of State Revenue v  ACN 005 057 349 Pty Ltd [2017] HCA 6; (2017) 341 ALR 46 where the court distinguished Finance Facilities and held that the Commissioner retained a discretion not to make a refund in the circumstances of the operation of 391

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the relevant legislation. See likewise Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd [2018] FCAFC 6; (2018) 351 ALR 436 in relation to removal of a trade mark from the register. The Finance Facilities approach has been followed in many cases but its application will be guided by the legislation under consideration. Mason CJ in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 at 64; 126 ALR 1 at 7 indicated that, in the absence of clear words, no discretion should be implied from the use of the word ‘may’ where it related to the refund of overpaid tax. There is no right to retain moneys paid in the absence of statutory authority. Where the apparent discretion involves the payment for property that has been acquired, the presumption against alienation of property other than on just terms indicates that the making of the payment is obligatory: Federal Commissioner of Taxation v Northumberland Development Co Pty Ltd (1995) 59 FCR 103 at 114; 138 ALR 89 at 99. A like approach is also followed in non-tax legislation. It has been held that the permissive use of ‘may’ does not imply a latent discretion to reverse a decision once the power given by the legislation has been exercised: Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104 at 110; 122 ALR 453 at 458. See the cases referred to in 11.15 for other examples of the court ruling that an apparent discretion must be exercised. Power Granted to Public Officer May be Discretionary 11.8  While the foregoing cases indicate that there are circumstances in

which the courts have held that a power conferred on a public officer in discretionary language must be exercised, they should not be understood to mean that such provisions will always be so interpreted. It will depend upon the court’s view of the particular provisions. So, for example, in Metropolitan Coal Co of Sydney Ltd v  Australian Coal and Shale Employees’ Federation [1917] HCA 64; (1917) 24 CLR 85 the question was whether the industrial registrar was obliged to re-register an organisation. The relevant section used the expression ‘may re-register’. The High Court held, by a majority of 4:1 (Higgins J dissenting), that the provision was not obligatory. Isaacs and Rich JJ said (at 96–7): The rule in Julius v Bishop of Oxford [(1880) 5 App Cas 214] is not that wherever the word ‘may’ is used in connection with a public office it means ‘shall’. Nor, if the Legislature confers a right by the same word and states certain conditions, does it necessarily follow that the word imposes a duty on the proper officer, irrespective of all other considerations. The true rule is thus stated by Lindley MR in Southwark & Vauxhall Water Co v Wandsworth District Board of Works [1898] 2 Ch 603 at 607 speaking of the words ‘it shall be lawful’: ‘These words may, no doubt, under certain circumstances impose a duty as well as confer a power, but it is for those who contend that they do both to make good their contention’. 392

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One circumstance in which the courts have shown a disinclination to hold that a provision is to be interpreted as obligatory is where, in the words of Lord Cairns from Julius v Bishop of Oxford, it is not a power deposited with someone ‘for the purpose of being used for the benefit of persons specifically pointed out’. This was the view adopted by the High Court in Ward v Williams [1955] HCA 4; (1955) 92 CLR 496. The Public Health Act 1902 (NSW) provided that a magistrate ‘may’, if satisfied that a nuisance existed, require the owner of the premises to abate the nuisance. The magistrate refused to make an order under the section and the question arose whether he had a discretion so to act where it was clear that the nuisance existed. The High Court held that there was a discretion. The ‘beneficiaries’ of the legislation were the public at large. The legislation had not been enacted for the benefit of the plaintiff and this militated against his being able to convert the apparent discretion into an obligation. Ward v Williams was followed and Finance Facilities (see 11.7) distinguished by the High Court in Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140; 189 ALR at [33]–[36]. The court held that, in the context of the legislation, a provision saying that an officer may suspend or cancel a licence to supply methadone if certain circumstances occurred was intended to be discretionary as there were a number of public interest factors that should be taken into account in determining how the power should be exercised. A similar approach but couched in somewhat different terms is to be seen in Commissioner for Superannuation v Hastings (1986) 70 ALR 625. The Full Court of the Federal Court there said that it was too simplistic to describe a provision in permissive terms as being intended to be exercised for the benefit of persons who complied with its preconditions. Rather, it was a provision designed to avoid injustice and each case had to be considered on its particular facts. But see Australian Telecommunications Commission v Bartley (1988) 20 FCR 475; 84 ALR 261 where the reasoning in Hastings’ case was applied but to reach a different outcome. Power Granted to Court: Authority to Exercise Jurisdiction Usually Obligatory 11.9  Turning specifically to the investment of powers in courts, the

cases indicate that, where there is an authority to exercise jurisdiction, that power must be exercised even though expressed in discretionary terms. The approach is well illustrated by Ex parte McGavin; Re Berne (1945) 46 SR (NSW)  58. Section  5B of the Criminal Appeal Act  1912 (NSW) provided: ‘A court of quarter sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination …’. On the question whether the use of the word ‘may’ gave a discretion to submit a question of law, Jordan CJ said (at 60–1): The word ‘may’ is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 CB 755 at 773, that ‘when a statute confers an authority 393

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to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application’ … In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.

Similarly, in Newmarch v Atkinson [1918] HCA 53; (1918) 25 CLR 381 the High Court held that, once the necessary preconditions for considering the conduct of a debtor had been established, a judge was obliged to examine the debtor and determine whether certain orders should be made. Again, in Lamb v Moss (1983) 76 FLR 296 at 311; 49 ALR 533 at 549, an appropriate application was said to enliven the jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the court had no discretion to decline to deal with it. See also McCaskill v Marzo (1944) 46 WALR 64. However, as usual, one can find cases that take a contrary approach. Perhaps the most significant is the decision of Toohey J in Re Hassell; Ex parte Pride (1984) 2 FCR 319; 55 ALR 219. There his Honour held, in direct contradiction to Ex parte McGavin, above, that a section of the Repatriation Act 1920 (Cth) providing that a Repatriation Tribunal ‘may of its own motion or at the request of the applicant or the Commission, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision’ was discretionary. This view was reached primarily having regard to the use of the words ‘may’ and ‘shall’ in the Act and their use in like provisions of other legislation. See also R v Holley; Ex parte Attorney-General [1997] 2 Qd R 407; (1996) 90 A Crim R 37, particularly Fryberg J at 431; 61. It can be concluded that the weight of authority is towards provisions requiring the exercise of jurisdictional powers being treated as obligatory unless there is a clear indication to the contrary in the legislation under consideration. Power Granted to Court: General Powers Discretionary 11.10  While provisions vesting jurisdiction in a court will usually be treated as obligatory, once the court has jurisdiction the powers that it is given will usually be treated as discretionary: Grech v  Heffey (1991) 34 FCR 93 at 97; 106 ALR 570 at 574; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 257; 110 ALR 47 at 57 per Lockhart J. In particular, the power to grant an extension of time within which to apply will usually be discretionary: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 546; 139 ALR 1 at 4. It seems that sentencing powers will usually be discretionary: Mitchell v R [1996] HCA 45; (1996) 184 CLR 333; 134 ALR 449; Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [30]–[42]. 394

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There may be an obligation to have regard to certain matters in exercising the discretion but the decision itself remains discretionary: NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [47]. See further the cases referred to at 11.16. Exercise of Power to Grant Relief Usually Discretionary 11.11  In contrast with provisions concerned with assumption of jurisdiction, provisions which empower courts to grant relief of a specified kind are usually not treated as imposing an obligation to exercise that power. In both Newmarch v  Atkinson and Lamb v  Moss (see  11.9), it was held that, while the courts in question had to exercise jurisdiction and consider the applications before them, they had a discretion to decline to grant the remedies that the legislation empowered them to issue. Those provisions were facultative only. A similar approach was taken in Ward v  Williams [1955] HCA 4; (1955) 92 CLR  496; Dodd v Taylor [1979] VR 228; and Re Sarina; Ex parte Wollondilly Shire Council (1980) 48 FLR 372; 32 ALR 596: see further 11.8. In Re Sarina, the court said that the power was facultative even though the number of occasions on which it would not be exercised would be rare; followed in Williams v Chief Executive Officer, Housing [2013] NTSC 28; (2013) 33 NTLR 88 at [10].

The foregoing appears to be the standard approach, fitting as it does with the general common law and equitable rules relating to the discretion the courts exercise with regard to remedies. However, there are cases where the view has been taken that, once an issue has been determined in a particular way, the court has no discretion but to grant the relevant relief. An example of such a case is Lugg v Wright [1941] SASR 106 where it was held that a section that provided that, on proof of possibility of paternity, the court may make an affiliation order was obligatory. If the court received proof of paternity, it was obliged to make the order; it had no discretion. Similarly, in Owens v Australian Building Construction Employees’ and Builders Labourers’ Federation (1978) 46 FLR 16; 19 ALR 569 a determination that the applicants were entitled to be members of a union led as of right to appropriate orders having to be made to give effect to the determination. The basis for the difference in approach in these cases seems to lie in the fact that the relevant legislation clearly intended the benefit of the relief sought to flow automatically once the court had determined that the relevant facts were established. The more usual approach of vesting a discretion in the court was displaced in the particular statute. Factors Affecting Decision Whether Obligatory or Discretionary 11.12  In identifying the factors that will affect whether a power is obligatory or discretionary, it is difficult to go beyond the most general statement that all will depend upon the court’s view of the purpose of the provision in question. However, it is clear that whether ‘may’ and ‘shall’ appear to have been used with any degree of particularity in the legislation in question will be 395

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a relevant matter: Re Sarina; Ex parte Wollondilly Shire Council (1980) 48 FLR 372 at 377; 32 ALR 596 at 600; Re Hassell; Ex parte Pride (1984) 2 FCR 319 at 321; 55 ALR 219 at 221. See also the cases referred to in the Annexure. In Hassell’s case regard was also had to the terminology used in other Acts containing like provisions. In a somewhat different vein is the High Court decision in Victoria v  Australian Building Construction Employees’ and Builders Labourers’ Federation (No 2) [1982] HCA 57; (1982) 152 CLR 179; 43 ALR 693. There Gibbs CJ, with whom Mason J agreed, took into account the fact that, if a provision were held to be discretionary, it would render the section unconstitutional. This was therefore a reason for it to be interpreted as obligatory. Madgwick J in Rodda v Repatriation Commission [2006] FCA 1689; (2006) 156 FCR 227; 93 ALD 541 at [56]–[58] provided useful guidance in relation to whether a requirement relating to applications for welfare benefits should be considered obligatory. Factors which pointed to its having to be complied with were, first, that to hold otherwise would set at nought a detailed scheme for management of applications. Second, while it was appropriate to have regard to the fact that a failure to follow the procedure would lead to loss of benefits, it was also necessary to take into account the length of time during which it had been possible to comply with the requirement and the need for there to be some finality in regard to resolution of claims. Interpretation Act Provisions 11.13  In all jurisdictions except the Northern Territory, provisions have been included in the Interpretation Acts that attempt to define the meaning of the words ‘may’, ‘must’ and ‘shall. These provisions are identified and discussed in detail in Interpretation Acts, 5.44–5.63. As is shown there, it cannot be said that the provisions have overcome the difficulties associated with the application of these words.

Examples of Rulings of Court 11.14  Subject to the caveat that no clear pattern emerges from the decisions of the courts, it may be of use to supplement the cases already cited by setting out a number of cases in which the courts have held that a provision imposes an obligation and then another list of cases where a provision has been held discretionary.

Cases in which a provision has been held to be obligatory 11.15  In the following cases the provision was held to be obligatory:

• Re the Municipal District of Lambton (No 2) (1899) 20 LR (NSW) (L) 378: the council may strike a rate. It was considered that a failure to do so would not be just nor for the public good; • Ex parte Duncan; Re Minister of Lands (1938) 55 WN (NSW) 37: provision that the holder of a lease may upon application have the lease extended 396

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•

•

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•

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for a period held to give a right of extension on application — may if the leaseholder chooses: not may if someone else chooses; Tonkin v Brand [1962] WAR 2: requirement that the Governor shall issue a proclamation on the happening of certain events; Barrenger v Coward [1965] Tas SR 243: Justices may amend a complaint if satisfied of certain things; Re Fettell (1952) 52 SR (NSW) 221: the Conveyancing Act 1919 (NSW) provided that, where property is held in co-ownership, the court may, on the application of one of the parties, appoint trustees who are to hold the property on trust for sale; Re Calman and John Fairfax and Sons Pty Ltd (1953) 54 SR (NSW) 86: the Sydney City Council (Disclosure of Allegations) Act  1953 (NSW) provided that on proof of certain things a judge may order the production of documents or disclosure of information; R v Registrar of Titles; Ex parte John Wolbers Constructions Pty Ltd [1973] VR 723: a council shall refuse to seal a plan of subdivision if the approval of certain organisations is not obtained; Cole v Esanda Ltd [1982] Tas SR 130: Justices may condemn a boat used in the commission of an offence under the Fisheries Act  1959 (Tas); see also Cheatley v R [1972] HCA 63; (1972) 127 CLR 291; Re Dunsborough Districts Country Club Inc [1982] WAR 321: the Licensing Court may grant a club licence if satisfied that certain specified criteria exist; Australian Telecommunications Commission v  Bartley (1988) 20 FCR 475; 84 ALR 261: the commission may reappoint a person who had been deemed to have resigned because of absence from duty if satisfied that the absence was explained; Trengove v Repatriation Commission (1994) 50 FCR 453; 122 ALR 271: the commission may grant a veteran an attendant’s allowance if certain conditions are established; Douglas-Brown v Furzer (1994) 13 ACSR 184; Duke Group Ltd v Pilmer (1994) 15 ACSR 255 at 278: a transcript of the examination of a person under the Companies Code may be used in evidence in any legal proceedings against the person; Mathews v Health Insurance Commission [2006] FCA 195; (2006) 90 ALD 49: in making a finding based on statistical sampling, the committee must follow a designated procedure; Ozone Manufacturing Pty Ltd v  Deputy Commissioner of Taxation [2006] SASC 91; (2006) 94 SASR 269 at [35]: the word ‘must’ could only be reasonably understood to mean that it imposed an obligation upon the Commissioner to pay to a taxpayer any amount due to the taxpayer under a taxation law; 397

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• Police v Conway [2006] SASC 186; (2006) 95 SASR 83: certain information must be included in an immediate licence disqualification notice; • John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291; 235 ALR 402: where it appears to an appeal court that a party is entitled, as a matter of law, to a verdict, the court may direct a verdict; • Kutlu v Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR 177; 280 ALR 428 at [33]: a failure to comply with a legislative requirement that, before making an appointment, the minister must consult a professional representative organisation meant that the appointment was invalid (but contrast other cases referred to in the judgment at [25] where it had been held that consultation was not obligatory; see also 11.13); • Western Australian Land Authority (Landcorp) v  Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226; (2012) 291 ALR 52 at [29]: the minister may revoke a decision once certain circumstances were established; • Forrest & Forrest Pty Ltd v  Wilson [2017] HCA 30; (2017) 346 ALR 1: the grant of a mining lease without following the statutory procedure resulted in the lease being invalid. Cases in which a provision has been held to be discretionary 11.16  In the following cases the provision was held to be discretionary:

• Smith v Watson [1906] HCA 80; (1906) 4 CLR 802: allowance may be paid to disabled miners; • Massy v  Yass Municipal Council (1922) 22 SR (NSW) 494: a rate may be levied on those who receive benefit of expenditure; • Ex parte Gleeson [1907] VLR 368: the court may declare that a place is a ‘common gaming house’; • R v Trebilco; Ex parte F S Falkiner and Sons Ltd [1936] HCA 63; (1936) 56 CLR 20: a  board may  release from liability for tax if certain facts are proven; followed in Powell v Evreniades (1989) 21 FCR 252; 87 ALR 117; Corlette v Mackenzie (1995) 62 FCR 584; 39 ALD 10 (affirmed on appeal (1996) 62 FCR 597); Federal Commissioner of Taxation v A Taxpayer [2006] FCA 888; • Re Davis [1947] HCA 53; (1947) 75 CLR 409: every candidate approved by the admissions board shall be admitted as a barrister by the court; • Oser v Felton (1966) 83 WN (Pt 1) (NSW) 472: s 87(1) of the Matrimonial Causes Act 1959 (Cth) provided: ‘The court … may do any or all of the following [and then went on to deal with provisions relating to variation of maintenance orders]’; • Ex parte Goodwin; Re Carruthers (1967) 86 WN (Pt 1) (NSW) 313: where witnesses to prove an offence reside in another place, the justice hearing 398

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the case may order that the defendant be removed to that place and there charged; Re Csidei; Ex parte Andrew (1979) 28 ALR 381: the power in s 81 of the Bankruptcy Act 1966 (Cth) that the court or Registrar may summon a person who is able to give information relating to a bankrupt’s property is, from its context, facultative, it being a wide power to be used with circumspection; R v Workers’ Compensation Board of Queensland; Ex parte Heffernan [1979] Qd R 563: a section stating that a failure to apply within a specified time ‘may be waived’ by the board in certain specified circumstances does not impose an obligation on the board so to act if the circumstances are established; Re Reilly; Ex parte The Debtor (1979) 23 ALR 357: the power in s 150(7) of the Bankruptcy Act 1966 (Cth) providing that a court may grant an unconditional discharge if certain facts were established did not give a right to a discharge on the establishment of those facts; Derisi v Vaughan [1983] 3 NSWLR 17: the court may order the cancellation of a private inquiry agent’s licence on proof of certain facts; Bowling v General Motors Holdens Ltd (1980) 50 FLR 79; 33 ALR 297: on conviction of an employer for wrongful dismissal under the Conciliation and Arbitration Act 1904 (Cth), the court may order the reinstatement of the employee; Commissioner for Superannuation v  Hastings (1986) 70 ALR 625: the Commissioner may direct that a person be deemed to have retired on the ground of incapacity; Mansfield v  Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486; 228 ALR 214 at [24]: the Supreme Court may, on the application of the Director of Public Prosecutions, make an order freezing the property of a person; Director of Public Prosecutions v  George [2008] SASC 330; (2008) 102 SASR 246; 251 ALR 658: the court must make a pecuniary penalty order; BHP Billiton Ltd v  Parker [2012] SASCFC 73; (2012) 113 SASR 206 at [410]: the court ‘should’ make an award of exemplary damages.

Obligation to Exercise Discretion 11.17  It should not be overlooked when considering whether a provision is obligatory or discretionary that, even though the power is discretionary, the decision-maker must still consider whether, on the facts, the discretion should be exercised in favour of a person. Merely because the outcome is not dictated by the section does not mean that the decision-maker can do nothing. This general issue is dealt with in textbooks on administrative law. See West Australian Field & Game Association Inc v Pearce (1992) 8 WAR 64; 27 ALD 38 for a discussion of the matter in statutory interpretation terms. 399

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CONSEQUENCES OF BREACH OF OBLIGATORY PROVISIONS

Necessity for Compliance with Procedural Requirements 11.18  As noted in 11.1, the question of the consequence of breach of a legislative provision purporting to impose an obligation usually arises in the context of a failure to comply with a procedural requirement. The jurisdiction of courts, tribunals and administrators to carry out a particular function usually requires that a designated procedure be followed. This procedure may govern either the invocation of the jurisdiction or its actual exercise, or both. Even the right of a parliament to pass legislation may be conditioned upon a particular procedure having been complied with, for example, the passage of legislation by the Commonwealth Parliament at a joint sitting of both Houses pursuant to s 57 of the Constitution. The issue that arises is whether  a  procedure so laid down must be complied with precisely or substantially or at all.

Here, the plea of Mahoney JA in Hatton v Beaumont [1977] 2 NSWLR 211 should be noted. He observed (at 225): The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactment of the effect of non-compliance with its provisions: cf the Supreme Court Act 1970 s 81; or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number.

That this can be done with useful effect is demonstrated by Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453; 185 ALR 513 at [118] where an indication that failure to comply with one provision would lead to invalidity was used as a basis for concluding that other procedural requirements were not obligatory. (However, compare the courts’ disregard of the Interpretation Act provision referred to in 11.13.) Consequences Determine Interpretation 11.19  As with the classification of provisions imposing either duties or

powers (see  11.3), the primary approach adopted by the courts will be to examine the consequences that flow from requiring strict compliance with a procedure laid down in an Act. In their joint judgment in Project Blue Sky Inc v  Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [91] McHugh, Gummow, Kirby and Hayne JJ observed: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 400

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As mentioned at 11.3 in regard to duties and powers, there are many examples to be found of the courts looking at the effect of a particular interpretation: see 2.57–2.60. If great inconvenience or injustice will follow from requiring strict compliance with a provision, the courts are disinclined to hold that the provision imposes an obligation and this even though it may be couched in mandatory terms. A striking example of this is provided by Simpson v  Attorney-General [1955] NZLR 271. There provisions of the New Zealand Constitution relating to the dissolution of the parliament were said not to have been complied with. The result of a finding that strict compliance was necessary would have been to nullify a large number of Acts of the parliament. The court considered that, notwithstanding the fact that the Constitution used the word ‘shall’ in the relevant provisions, the provisions were directory only. The result of holding that they were mandatory would have caused extraordinary inconvenience and would have served no purpose. For similar views in Australia relating to compliance with constitutional provisions, see Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214. The same approach is adopted in relation to provisions of a more humble nature. In Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306, a requirement that air consignment notes were to contain certain particulars including ‘a statement that the carriage is subject to the rules relating to liability established by the [Warsaw] Convention’ was held by Lord Denning MR and Salmon LJ not to require a verbatim statement of that fact. A statement to like effect was sufficient. The inconvenience and injustice that could flow from a failure to reproduce the statutory form of words exactly indicated that the provision was directory only and did not have to be complied with strictly. Similarly, in Ex parte Tasker; Re Hannan [1971] 1 NSWLR 804 the court ruled that a failure to comply with a provision of the Liquor Act 1912 (NSW) that required notice of an application to be affixed to the courthouse door was not fatal to the application. The requisite notice had been attached to the courthouse notice board and the court considered that this satisfied the intent of the section that public notice should be given of the proposed application. See also SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129; 115 ALD 519 where an obligation to notify a person where an application for review of a decision could be lodged did not require the notice to specify every registry of the Federal Court in Australia. On the other hand, where the whole aim of an Act would be defeated if a provision were not complied with strictly, the courts will not hesitate to rule that it requires strict compliance. So in B v  B [1961] 2 All ER 396 Scarman J held that a provision requiring the court to be satisfied of the existence of proper arrangements for the care and attention of the children of the marriage before a decree nisi of divorce could become absolute had to be strictly complied with. It was an essential part of the whole process of dissolving a marriage and, even though inconvenience might flow from a 401

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failure to comply with the provision, such inconvenience was subordinate to the policy to which the provision gave effect. Another example is provided by R v Epsom and Ewell Corporation; Ex parte RB Property Investments (Eastern) Ltd [1964] 1 WLR 1060. There a provision requiring 28 days’ notice to be given to the occupier of a house before a demolition order was executed was held to require strict compliance. The purpose of the provision was to give sufficient notice to enable alternative accommodation to be found. Similarly, in WMC Resources Ltd v Lane (1997) 73 FCR 366; 143 ALR 200, it was held that the duty to give notice to persons whose interests may be affected by a native title claim was obligatory and a failure to comply made subsequent steps taken in relation to the claim invalid. In Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 346 ALR 1 at [65] the High Court found a procedural provision to be obligatory because it was designed to control the disposition of the resources of a state in a way to prevent improper dealings. Provisions May Produce Invalidity in One Respect but Not in Another 11.20  Again, as with the duty/power cases, interrelated provisions in the one Act may impose different obligations. In Nichol v Thompson (1976) 12 ALR 528, for example, it was held that a requirement that a breathalyser be stamped with a prescribed mark imposed an obligation that the breathalyser bear a mark but that the form of the mark had only to comply substantially with the prescribed form. Likewise, in Woodward v Sarsons (1875) LR 10 CP 733, while the manner of marking a ballot paper could be valid if it ‘nearly resembled’ the requirements prescribed, secrecy provisions relating to the ballot paper had to be complied with imperatively. And again, ‘requirements may be mandatory as to some of the integers therein and directory as to others’: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 123; 81 ALR 687 at 693 per Davies and Gummow JJ.

See  also the cases referred to in the Annexure. As posited in 11.19, the conclusion reached in these cases was based on an examination of the provisions in their context and the effects of a ruling one way or the other. Affirmative Words Less Likely to Produce Invalidity for Non-Compliance than Negative Words 11.21  There is some limited authority suggesting that where a provision uses affirmative words (‘may’ or ‘shall’ do something) rather than negative (‘shall not’) the courts will be less inclined to interpret the words as intended to result in invalidity if inconvenience will flow from such a result: Tilbury & Lewis Pty Ltd v Marzorini [1940] VLR 245. There the consequences of a failure of a wages board to comply with a section that provided ‘as soon as may be’ the board ‘shall’ incorporate certain provisions of federal awards in its determination were so unfortunate to employees that the court considered that the failure was not fatal to the employees’ case. 402

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Private Actions More Likely to Produce Invalidity than Public Actions 11.22  An approach that has been found to provide a guide to legislative intent has been to look to whether the requirements of a legislative provision are cast upon an individual or on a public authority. In the former case it is more likely that the provision will be regarded as producing invalidity in the absence of compliance. The High Court referred to this in Clayton v  Heffron [1960] HCA 92; (1960) 105 CLR 214 in regard to the procedure for passing a bill to abolish the New South Wales Legislative Council. The court said (at 247):

But in [all the decided cases] the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or direction laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.

This passage was referred to by Dawson J in the High Court in Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 252; 77 ALR 8 at 20 in support of a reverse conclusion from that in Clayton’s case — the requirement in question fell on the applicant for a mining licence and there was no reason why an obligation relating to pegging of a claim should not have to be complied with strictly. For other examples where the prescribed procedure was in the control of a private person and was held to require compliance on pain of invalidity see the Annexure. Ability to Control Procedure May Determine Whether Non-Compliance Produces Invalidity 11.23  A rationale for the approach referred to in 11.22 is that it is unfair to expect an individual to suffer as a result of non-compliance with a requirement that he or she is unable to control. The Privy Council in Montreal Street Railway Co v Normandin [1917] AC 170 at 175 said:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.

This statement was applied by the New South Wales  Court of Appeal in Attorney-General; Ex rel Franklins Stores Pty Ltd v  Lizelle Pty Ltd [1977] 2 NSWLR 955. The court held that a requirement that a council consult with the State Planning Authority before dealing with a development application was not one the breach of which produced invalidity as it was beyond the power of the applicant to control the action of the council. Like thinking underlies the decisions referred to in the Annexure. However, this line of reasoning only applies where the applicant has no control over the procedure. Where a 403

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step to be taken is in the hands of the applicant, obligatory requirements must be complied with: Fernando v Minister for Immigration [2000] FCA 324; (2000) 97 FCR 407; 58 ALD 91. Provisions Setting Out Protections for Persons Affected Usually Result in Invalidity if Not Complied with 11.24  Where provisions set out requirements that are intended to allow persons to make representations relevant to a decision such as through responses to allegations, making applications for review, opposition to proposals and other forms of consultation, inquiries or appeals, a failure to comply with those requirements will usually be interpreted as producing an invalid result. So notice requirements and the giving of reasons will be strictly enforced unless there is a clear indication in the relevant legislation to the contrary: Scurr v  Brisbane City Council [1973] HCA 39; (1973) 133 CLR  242; Sandvik Australia Pty Ltd v  Commonwealth (1989) 89 ALR 213 at 227. This obligation may extend to include the content of any such notice, advice, etc, where this is referred to in the legislation.

The High Court in Deputy Commissioner of Taxation v  Woodhams [2000] HCA 10; (2000) 199 CLR 370; 169 ALR 503 at [33] observed: It is the legislative purpose to be served by the giving of a … notice that determines the nature and extent of the information necessary to satisfy the requirement to set out details … Absence of information will involve a failure to provide necessary details if, without such information, the notice will not fulfil the purpose for which it is required to be given.

For other examples see also: • Dalton v Deputy Federal Commissioner of Taxation [1986] HCA 15; (1986) 160 CLR 246; 64 ALR 321: form of reasons for decision when required by statute to be provided; • Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34; (1988) 165 CLR 71; 79 ALR 161: information in bankruptcy notice; • Amalgamated Television Services Pty Ltd v  Australian Broadcasting Tribunal (1989) 18 ALD 663 at 668: notice requiring giving of information; • Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78; 78 ALD 289: particulars to be included in notice of intention to revoke pathology authority; • Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469: notice of grounds for refusal of visa; • Goodlen Pty Ltd v BP Australia Pty Ltd [2004] FCAFC 331; (2004) 141 FCR 325; 213 ALR 516: notice to contain ‘full’ particulars; • Director General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132; (2014) 87 NSWLR 465 at [65]: a notice of consent to a development was required to be given to any person 404

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who had made submissions in respect of the development and the time for any appeal was set by reference to the date of the notice. In those circumstances strict compliance with the form of the notice generally was required. Compare with these decisions VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 where a failure to include reasons for a preliminary decision in a public advertisement was held not to be a breach of the relevant legislation because detailed reasons were not required to be included in an advertisement as distinct from a statement of reasons. With respect, the reasoning of the court is not convincing as the purpose of the advertisement was to enable objections to be made to the preliminary decision. Where a notice has an effect on a person’s common law rights (see Chapter 5) it is more probable that it will be held mandatory to include prescribed information: Police v  Conway [2006] SASC 186; (2006) 95 SASR 83 (immediate suspension by police of driver’s licence); Director of Public Prosecutions v Corybutiak [2004] VSC 3; (2004) 40 MVR 442 (right to object to traffic infringement notice). See further the discussion of the requirements to be included in search warrants at 9.40. But compare Ramsay v Menzo [2018] FCAFC 55 at [34]ff which was concerned with entry on premises under workplace health and safety legislation. A requirement that the authorisation to enter must include the full name of the person authorised was held to be sufficiently complied with where the first name and surname of the person was stated. For invalidity to occur, it must be apparent that the failure to comply with the specified requirements adversely affects the person concerned. So where there was an incorrect reference to a section of an Act in a notice but this could not mislead the recipient, the notice was not rendered invalid: Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409; 225 ALR 396. (See further D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, 13.20–13.23 relating to incorrect references to the making power in delegated legislation.) Enactments Relating to Court Procedure 11.25  An often-stated view is that non-compliance with enactments laying down the procedure to be followed in commencing or prosecuting an action in a court results in invalidity. The view is supported by substantial authority. ‘It seems that enactments regulating the procedure to be followed in courts are usually imperative and not merely directory’: Public Prosecutor v  Oie Hee Koi [1968] AC 829 at 852 (a decision of a Judicial Committee of the Privy Council which included Barwick CJ and Menzies J among its members). The case related to the method of trial of prisoners of war under the Geneva Conventions Act  1962 (Malaysia). The same view was expressed by the House of Lords in Secretary of State for Defence v Warn [1970] AC 394 when 405

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holding that a requirement that a prosecution was not to be commenced without the consent of the Director of Public Prosecutions had to be strictly complied with. Older cases had gone so far as to hold that a failure on the part of a court official to comply with a procedural requirement would invalidate the procedure. So in Dale’s case (1881) 6 QBD 376 it was held that a failure on the part of the court officers to follow a ritualistic procedure laid down for the opening of a writ of de contumace capiendo in the presence of the Justices of the Queen’s Bench Division rendered the writ invalid. However, the effect of these rulings has been modified. Courts have become more prepared to inquire whether any real inconvenience or injustice has flowed from the failure to comply with the procedural provision. For  example, in Ex parte Tasker; Re Hannan [1971] 1 NSWLR 804 at 809 Herron CJ expressed the opinion that a failure on the part of an officer of the court to carry out a statutory requirement, being an omission that a party to the action could not remedy, was not the sort of conduct that should prejudice the action. Such a statutory requirement ought therefore not to be regarded as fatal when not fulfilled. Moffitt JA expressed a similar view: at 816. A like conclusion was reached by the Full Court of the Victorian Supreme Court in Accident Compensation Commission v  Murphy [1988] VR 444. There a failure to comply with a time limit for the commencement of the hearing of an application before a tribunal did not affect the validity of the proceeding as it was the tribunal that determined when the hearing was to commence. (But compare the cases referred to below relating to applications to courts.) A decision on the issue by the High Court suggested that no different approach should be adopted in regard to court proceedings than in regard to other procedures specified by statute. In Hatton v  Beaumont (1978) 52 ALJR  589; 20 ALR 314 Jacobs J, delivering a judgment concurred in by a majority of the court, indicated agreement with the conclusion reached by the Privy Council and the House of Lords in the cases mentioned above but did not consider that those cases laid down any hard and fast rule. His Honour said (at 591; 319): ‘To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation.’ See also the judgments of the New South Wales Court of Appeal reported at [1977] 2 NSWLR 211 (the appeal from which was dismissed by the High Court), particularly that of Hope JA. The High Court in PM v R [2007] HCA 49; (2007) 232 CLR 370; 240 ALR 1 also resolved the matter before it by having regard to the context with which the procedure was concerned. The court there said that a provision that read ‘Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice’ was exhortatory, not mandatory. It reached this conclusion following an examination of the purpose and 406

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legislative history of the provision. It also noted that the Act was silent on the consequences of not following the stated procedure. See further the comments of the editor of the Australian Law Journal, (1978) 52 ALJ 581, and also the cases referred to in the Annexure. Time Limits 11.26  Provisions are often found that require an application to be made or action commenced within a specified time after an event. Frequently such a provision is accompanied by a power to extend the time stated or to accept process after the expiry of the time. However, where there is no such power, a requirement that an action be commenced within a specified time is likely to be regarded as obligatory and failure to comply will prevent the action being brought: see the examples referred to in the Annexure.

On the other hand, where a notification of the statutory time within which something is to be done mistakenly extends the time, it will not lead to the invalidity of the notice. The extension of time works in favour of the person to whom the notice is given so there is no need to find that strict compliance was required. However, if the time stated were less than the statutory prescription, the notice would be invalid as that is the minimum time that the affected person must be permitted to take action. See M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333; 91 ALD 629; Re Teo and Minister for Immigration and Citizenship [2007] AATA 1118; (2007) 95 ALD 165. Another circumstance in which the issue whether a time limit is obligatory has arisen is where a provision requires certain action to be taken within a specified time. (For the calculation of the relevant period see Interpretation Acts, 4.29.) If the action is not taken within the specified period, is any later decision void and of no effect? A series of cases have arisen under a provision in the Building and Construction Industry Security of Payment legislation. That legislation is replicated in most Australian jurisdictions. It requires an adjudicator appointed under the legislation to determine a claim within a stated number of business days. In a number of cases the issue has arisen of the effect of an adjudication given after the specified days. Differing outcomes have been reached by different courts. The Victorian Court of Appeal recently considered the issue in Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294. After reviewing the authorities and the relevant legislation in detail the court concluded that a failure to produce an adjudication within the stated time did not invalidate the ultimate decision of the adjudicator. The legislation was silent on the effect of a failure to adhere to the deadline. Having regard to the basis for the legislation and the impact that it would have on the parties if the time limit were to be regarded as obligatory, the court ruled that the adjudication was not invalid. The decision makes it clear that the outcome in each case will depend upon the 407

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legislation under consideration. However, the case points to the consequences of holding the decision nugatory as influential in determining the position. See  Interpretation Acts, 4.44 for the position where no time limit is specified and 4.23–4.43 on measurement of periods of time generally. Compliance with Requirements for Making Legislation 11.27  The courts will not inquire whether a parliament has followed its own designated procedures when passing an Act: British Railways Board v  Pickin [1974] AC 765 seemingly endorsed by the High Court in Union Steamship Co of Australia Pty Ltd v  King [1988] HCA 55; (1988) 166 CLR 1; 82 ALR 43. It is only in exceptional circumstances that a formal procedure has been laid down for the making of Acts and there has been doubt expressed whether such a provision can bind a later parliament: see generally P Hanks, F Gordon and G Hill, Constitutional Law in Australia, 4th ed, LexisNexis Butterworths, Sydney, 2018, Chapter 3.

However, if the Constitution prescribes a required procedure it must be followed if legislation is to be valid. Victoria v  Commonwealth [1975] HCA 39; (1975) 134 CLR  81; 7 ALR 1 concerned the validity of the Petroleum and Minerals Authority Act 1973 (Cth) which had purportedly been passed pursuant to the procedure set out in s 57 of the Constitution. The issue at stake was whether the Senate had ‘failed to pass’ the relevant bill. A majority of the court held that this was a mandatory requirement and, it not having occurred, the Act was invalid. In contrast with the position with Acts, delegated legislation has frequently been found invalid for failure to comply with specified making requirements. Making procedures are usually regarded as mandatory. The issue is discussed in detail in D Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, Chapter 13. Impossibility of Compliance Defence to Obligatory Requirement 11.28  Although authority is limited, it would seem that if an obligatory requirement in an Act cannot be complied with for some reason beyond the control of the person upon whom the duty is imposed, the obligation will not be insisted upon. So in R v Leicestershire Justices (1850) 15 QB 88; 117 ER 391 an obligation to give notice to the mother of an intention to appeal against a bastardy order was held to have been obviated where the mother had died before the notice could be served. The impossibility of compliance with the statutory requirement not being in any way due to the appellant’s conduct, he was excused from performance and could pursue his appeal. In Rippingale Farms Ltd v Black Sluice Internal Drainage Board [1963] 1 WLR 1347, the English Court of Appeal held that an Act imposed a duty on the board to expend funds on drainage works. However, Lord Denning MR mentioned (at 1354) the possibility of a defence that, despite reasonable efforts to raise loan funds, no money was available. 408

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In contradistinction to these cases, it is clear that, where the provision that cannot be complied with is a condition precedent to a court exercising jurisdiction, the impossibility of non-compliance is irrelevant. Jurisdiction cannot arise unless all the conditions for its existence are complied with. So in R v Armitage (1872) LR 7 QB 773 a requirement on a bastardy summons that the court shall ‘hear the evidence of the mother’ and make an order ‘if the mother’s evidence be corroborated’ was held to be a mandatory provision in that the mother’s evidence was crucial to the exercise of the court’s jurisdiction. Accordingly, where she had died after the issue of a summons but before the hearing of the case, the court’s jurisdiction could not arise. See  also Taylor v  Territory Insurance Office (1991) 77 NTR 13 at 16 where this approach was endorsed but held not to be applicable on the facts. The court may choose to turn the question of impossibility of compliance round a little and find that the impossibility of compliance, or the possibility of it, is indicative of the fact that the requirement is not obligatory: Tasker v Fullwood [1978] 1 NSWLR 20. Waiver of Rights Under Obligatory Provision 11.29  As the cases referred to in this chapter show, a provision may impose an obligation on a person or body for the benefit either of a particular person or of the public at large. If the benefit is clearly for a particular person, it seems only reasonable that the person should be able to elect not to require strict compliance with the section — and so the courts have held. For example, in Toronto City Corporation v Russell [1908] AC 493 the court held that a requirement to give notice of an intention to exercise a compulsory sale right in respect of arrears of rates had, on the facts, been waived. While the giving of a proper notice would otherwise have been a prerequisite to a valid sale, the right was solely for the benefit of the owner of the land and it could therefore be waived. Similarly, in Hunter v Hunter [1919] VLR 153 the Full Court of the Victorian Supreme Court held that a husband could waive certain provisions of the Marriage Act  1915 (Vic) relating to the costs of divorce proceedings as they were for his benefit alone.

On the other hand, if a section imposes an obligation in the public interest, waiver of that obligation is not possible: SS Constructions Pty Ltd v  Ventura Motors Pty Ltd [1964] VR 229. That case concerned a section of the Town and Country Planning Act 1961 (Vic) providing that, where the responsible authority was of the opinion that a substantial detriment might be caused to persons by a proposed development, the authority was to direct the applicant to give notice to the persons affected. This notice was required to set out ‘clearly the location of the land and the purpose and effect of the permit sought’. It was held that the authority could not accept as sufficient a notice that did not accord with the statutory requirement. Such action would amount to an attempt to waive the statutory requirement and this was not possible.

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Indeed, a provision of this kind is not able to be waived even by a person in whose favour it is to operate. It was argued in the SS Constructions case that, by lodging objections and appealing against the decision, the applicant had waived the irregularity. Gillard J rejected this argument. He said (at 245–6): In my view, however, waiver of irregularity can only be admitted where the breach is of a directory provision in a statute and not where it is of a peremptory condition for the exercise of a power. Where the legislative directive is mandatory and the observance of the provisions is in effect a condition precedent to the exercise of a statutory power, then the purported exercise of the statutory power has no validity whatever, where the condition for the exercise of the power has not been fulfilled.

Another example of this approach is provided by Bowmaker Ltd v Tabor [1941] 2 KB 1. There the court held that a provision in emergency legislation that allowed the seizure of property for default under a hire-purchase agreement only if a court so ordered had been enacted in that form in the public interest. Accordingly, it was not possible for a hirer to waive the requirement that the court sanction the seizure. See also Equitable Life Assurance of the United States v Bogie [1905] HCA 55; (1905) 3 CLR 878 which related to the forfeiture of life assurance policies for non-payment of premiums. See also Tu v University of Sydney [2003] NSWCA 170; (2003) 57 NSWLR 376 at [21]–[25] where the legislation relating to a tribunal stated that, on a member becoming unavailable, a hearing could continue with reduced membership but only if the applicant before the tribunal consented. In the absence of consent, the tribunal had to be reconstituted. Finally, a court cannot be given jurisdiction by the waiver of conditions that would otherwise preclude its having jurisdiction: Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343; 35 ALR 186 at 195. Where jurisdiction requirements are mandatory, they cannot be waived. Compliance with Forms 11.30  It is common to find in legislation that prescribes forms for a particular purpose a provision that states that strict compliance with the forms is not required. The matter has been taken further by the inclusion in the various Interpretation Acts of provisions that deal with the issue. These provisions are identified and discussed in Interpretation Acts, 3.61–3.83.

Nature of Compliance with Procedural Requirements 11.31  Having reached a conclusion on the nature of the requirement contained in the legislation, the issue that confronts a court then is what has to be done to comply with that requirement. Much of the difficulty relating to the old mandatory/directory classification stemmed from attempts by the courts to read out of provisions falling within the directory category a requirement that there be ‘substantial’ compliance with the provision. This 410

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was understandable as to take the view that a procedural requirement did not have to be followed at all seemed to render the provision nugatory. This approach meant that all procedural provisions had to be fitted within one of the two  original categories. Either the provision was to be regarded as mandatory and failure to comply with the procedure specified in the legislation would result in the nullity of the action taken or strict compliance would not be required but there must nonetheless have been some compliance. What level of compliance was required was to be determined on a case-by-case basis: see Woodward v Sarsons (1875) LR 10 CP 733 at 746. This approach avoided recognising that it is possible that the legislature might not intend any adverse consequences to follow from a breach of statutory procedure. There are, in fact, three not two possible results from a breach: nullity of the action taken; substantial compliance being sufficient; or no adverse consequences flowing from a failure to follow the prescribed procedure. Any of these are available as interpretations of the relevant legislation. The approach that should be taken is — which of the outcomes is most consistent with the legislature’s purpose or object, so far as that can be discovered? Compliance obligatory 11.32  There can be cases where there is no middle course. The procedure is obligatory and either it has been followed or it has not. In such cases there is no room for consideration of whether partial compliance is permitted. An example of such a case is Scurr v  Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242; 1 ALR 420 where Stephen J, using mandatory/directory language, demonstrated that there could not be something less than full compliance with the statutory procedures. There a failure to state adequate ‘particulars’ of a proposed development in an advertisement was held to breach a requirement of the City of Brisbane Town Planning Act 1964 (Qld). Stephen J added (at 256; 429–30):

When the requirement is that ‘particulars of the application’ should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation … That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute.

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This dicta was applied in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638; 184 LGERA 104 at [27]–[29]. Under this approach, even minor defects can lead to invalidity: R v Janceski (2005) 64 NSWLR 10; 223 ALR 580. However, as always the outcome in all or nothing cases of this kind will depend upon the court’s reading of the legislation containing the procedure. Spigelman CJ in Chase Oyster Bar Pty Ltd v  Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393; 272 ALR 750 at [40]–[45] pointed to what he referred to as textual indicators of essentiality. The language of the provision may be such that there is no way other than to assume that compliance is essential. He referred to authorities indicating such an outcome: • David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276–7; 131 ALR 353 at 360: ‘may only’; • Corporation of City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 169 ALR 400 at [32]–[33]: ‘must not be granted’; • SAAP v  Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; 215 ALR 162 at [134]: ‘must give’. In the Chase Oyster case the language used was ‘cannot be made unless’. Spigelman CJ at [41] held that these words had a mandatory import because, adapting the words of Gummow J in David Grant v Westpac, above, at 277, ‘it is impossible to identify the function or utility of the words — “cannot be made” — if (they do) not mean what (they) say’. The nature of the activity in question will also impinge on the obligatory nature of the requirement. In Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 346 ALR 1 at [65]–[66] the High Court held a statutory regime had to be complied with exactly as it conferred on the executive government a power to make grants of rights to exploit the resources of the state. Where there is an obligation to consult prior to the making of a decision, no middle ground is available — either there has been a consultation or there has not: Kutlu v Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR 177; 280 ALR 428.1 Partial compliance 11.33  Cases relating to partial compliance with procedural requirements turn entirely on their particular facts. The following are some examples:

• The lodging of a required deposit with a court 13 days after notice of appeal instead of within seven days was held to be sufficient compliance with the Act: Hatton v Beaumont (1978) 52 ALJR 589; 20 ALR 314. On 1. But cf the Interpretation Act provisions discussed in Interpretation Acts, 7.33–7.39. 412

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the other hand, a claim for compensation made by a council 23 months after completion of a work instead of within six months was held not to satisfy the statutory requirement: Cullimore v Lyme Regis Corporation [1962] 1 QB 718. • A development application by a state agency had to contain sufficient information to enable the affected council to consider the proposal, but the fact that the council could seek further information indicated that a too strict view should not be taken of the content required: City of Port Adelaide Enfield v Minister for Transport and Urban Planning [1999] SASC 73; (1999) 73 SASR 22; see also Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387; 59 ALD 458. • A failure to comply with all aspects of detailed requirements to be followed by the prosecutor on a committal proceeding did not necessarily result in the invalidity of the proceedings. It was necessary to look at the matters not complied with and determine their impact on the proceedings: Director of Public Prosecutions (Cth) v Bayly (No 2) (1994) 75 A Crim R 575 at 585. See also Minister for Immigration and Citizenship v  SZIZO [2009] HCA 37; (2009) 238 CLR 627; 259 ALR 405 at [35] where a similar approach was adopted by the High Court in regard to the procedure to be followed in the Refugee Review Tribunal. • A requirement that a felon in prison not commence civil proceedings without leave of the court was satisfied if leave was given after the proceedings had been commenced. The purpose of the requirement was to enable the court to supervise the proceedings and this result could be achieved by giving leave after, as well as before, the commencement of the action: Jol v New South Wales (1998) 45 NSWLR 283; 104 A Crim R 516. There seems to be some reluctance to hold that provisions requiring reproduction of a statutory form of words produce invalidity in the event of non-compliance. Words that convey the sense of the requirement, albeit not verbatim, have been held to be sufficient: Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306 (air consignment notes); Nichol v Thompson (1976) 12 ALR 528 (mark on breathalyser); Minister for Health v Thomson (1985) 8 FCR 213 at 222–3; 60 ALR 701 at 711 (referral of a matter to a statutory investigatory committee). But note 11.30 relating to compliance with forms. No compliance 11.34  The notion that complete non-compliance with statutory procedural requirements might not lead to invalidity of a decision was adopted by a majority of the High Court in Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454; 84 ALR 199. The ABC had failed to obtain ministerial approval to its entering into a contract as required by its enabling Act. The court rejected the corporation’s later claim that it was not bound by the contract because of this failure. Non-compliance with the Act did not render the contract illegal or unenforceable. It was a direction to the 413

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ABC which if not complied with might have consequences for the ABC or its employees, but the contract itself was not affected. This interpretation of the relevant section did not reduce it ‘to the status of a pious admonition’ nor was the breach of the section ‘without legal consequences’. See also 11.23. A similar conclusion was reached by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490. While holding that the authority in making a broadcasting standard had failed to comply with a statutory directive that the authority was obliged to take into account in making the standard, the court said that it was not the intention of the Act that the standard should thereby be invalid. It was nonetheless a breach of the Act and a person might be able to sue for an appropriate remedy to prevent the standard being enforced against it. See also Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24; 98 ALR 68 at 91 per Pincus J; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101; 249 ALR 44. Stephen J in Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 179; 7 ALR 1 at 59 commented on the distinction between partial compliance and non-compliance in the context of the scope of what might have been considered a ‘directory’ provision in the following terms. The passage is of relevance notwithstanding the abandonment of that terminology: Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of [the] general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory. Where, contrary to these cases, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may nonetheless be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.

The adverse consequences flowing from arguments that procedures relating to elections had to be complied with in their entirety persuaded the court in Clayton v  Heffron (1960) 105 CLR 214 and Simpson v  Attorney-General [1955] NZLR 271 that no form of compliance was required. 414

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Summary of Present Position 11.35 In Tasker v Fullwood [1978] 1 NSWLR 20 at 23–4, the New South Wales Court of Appeal, comprising Hope, Glass and Samuels JJA, in a passage that is frequently cited in other cases, enunciated the following propositions:

(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case [[1977] 2  NSWLR 955]. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [[1977] 2 NSWLR 211]. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v Commonwealth [(1975) 7 ALR 1]. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6)  In  particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v Commonwealth.

Hope JA in McRae v  Coulton (1986) 7 NSWLR 644 at 661 built on this analysis by saying that it could be misleading to seek first to categorise the statutory requirements and then to decide what their effect was. The statute should first be construed and the result of non-compliance determined by reference to that construction. The categorisation should be the end of the inquiry not the beginning. This statement was endorsed in Project Blue Sky Inc v  Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [93]. In summary, the only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to procedure that is set out in it: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of ‘substantiality’; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no such consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation or an action can be brought independently of the statute). This analysis was expressly endorsed in the cases referred to in the Annexure. 415

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For another most useful analysis, see J Evans, ‘Mandatory and Directory Rules’ (1981) 1(3) Legal Studies 227 which was referred to by the court in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 122; 81 ALR 687 at 692 per Davies and Gummow JJ; Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20 at 32; 35 ALD 205 at 210. De Minimis Approach 11.36  Another way in which variations from a statutory requirement can be viewed is by the application of a de minimis approach — that minor variations from the requirement are not to be taken into account: see 4.31.

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CHAPTER 12

Drafting Conventions and Expressions DRAFTING CONVENTIONS

Drafting Conventions Which May Affect Understanding of Legislation 12.1  There are several drafting conventions that drafters of legislation rely on but which are not always known by others. Awareness of these can make the reading of legislation easier. Three that are frequently used should be mentioned. These are: • the implied conjunction; • concluding words qualifying all paragraphs; and • the expressions ‘subject to’, ‘notwithstanding’, ‘despite’, etc.

Each of these is described in further detail below. The implied conjunction 12.2  Where a series of paragraphs within a section are either all cumulative or all alternatives, the conjunction ‘and’ or ‘or’ may be included only at the end of the penultimate paragraph. Thus the form:

(a) … (b) … (c) … or (d) … means that the word ‘or’ is to be read as if it were included at the end of each paragraph. Similarly, if paragraph (c) concluded with the word ‘and’, the conjunction should be read as if it appeared at the end of each paragraph. Failure to understand this form of drafting led to difficulty in the interpretation of s  46(3) of the Income Tax Assessment Act  1936 (Cth). This difficulty was finally resolved by the High Court in Finance Facilities Pty  Ltd v  Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106. See particularly Windeyer J at 133. The Full Court of the Federal Court applied a similar analysis in reaching the conclusion that s 28 of the Trade Marks Act  1955 (Cth) should be read disjunctively: Nettlefold Advertising Pty 417

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Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453 at 471; 160 ALR 184 at 200. See also Wilde v Morgan [2013] VSCA 250 at [22]. Concluding words qualifying all paragraphs 12.3  Sections are frequently set out thus:

21. A person who is — (a) … (b) … or (c) … must submit a return to the Board.

The concluding words in this case are read as if they were attached to the end of each paragraph, not simply para (c): R v  Scarlett; Ex parte McMillan (1972) 20 FLR 349. ‘Subject to’; ‘notwithstanding’; ‘despite’; ‘so far as’ 12.4  Many drafters have a propensity to overuse the cautionary expression ‘subject to’, particularly in the form ‘Subject to this Act’. As an Act must be read as a whole (see 4.2), the expression is generally otiose: Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 176; 134 ALR 469 at 488 per Dawson and Toohey JJ. What must be avoided is treating the phrase as if it indicates that there is, in fact, a conflict between sections of the Act. The effect of the provision was correctly described by Cooke J in Harding v Coburn [1976] 2 NZLR 577 at 582 as being ‘a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it’. See also Megarry J in C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911: ‘Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.’

The Full Court of the Victorian Supreme Court in Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 at 533 described the process of analysis  thus: ‘As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield.’ The use of the word ‘notwithstanding’ as in ‘Notwithstanding the effect of section …’ is to be similarly interpreted. Kirby P in Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 359, citing authority dating back to the 16th century, observed that the sections concerned had first to be interpreted without the qualifying words and only if conflict then arose did the question which was the primary provision have to be considered. See also Perrett v Robinson [1988] HCA 41; (1988) 169 CLR 172; 80 ALR 441; Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278; Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754. 418

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‘Despite’ is now being used by drafters, particularly of Commonwealth legislation, in circumstances where ‘subject to’ was formerly the expression adopted. The High Court in Attorney-General (Cth) v  Oates [1999] HCA 35; (1999) 198 CLR 162; 164 ALR 393 at [33] said that it is a synonym for ‘notwithstanding’. ‘So far as’ can also have a limiting effect on the operation of a power: Port Kembla Coal Terminal Ltd v Industrial Court of New South Wales [2009] NSWCA 70; (2009) 226 FLR 464 at [40]. See also the discussion at 4.53 relating to the identification of the dominant provision and 6.2 and 6.12 relating to ‘contrary intention’. DRAFTING EXPRESSIONS 12.5  It is not appropriate in this book to provide a dictionary of words and phrases that have been subject to judicial interpretation. However, there are certain words and phrases that drafters use because they are confident that readers will know what the expressions mean. Some guidance to the interpretation of these expressions warrants inclusion.

Expressions Denoting Connection or Relationship 12.6  There are a number of expressions that indicate a connection or relationship between one subject and another. These expressions should not be regarded as ambiguous. Rather they ‘have an ambulatory significance capable of a wide range of applications’: Minister for Immigration and Citizenship v  Haneef [2007] FCAFC 203; (2007) 163 FCR 414; 243 ALR 606 at [106]. Such expressions take colour from their context but there are some subtleties of difference in meaning that the courts have recognised.

‘In respect of ’, ‘in relation to’ and similar phrases 12.7  Connecting phrases are commonly used in legislation. The most

frequently considered by the courts have been ‘in respect of ’, ‘in relation to’, ‘relating to’, ‘related to’ and ‘with respect to’. It does not seem that the different expressions are interpreted as having a different meaning. Cases relating to one are cited when another is under consideration: see  the Annexure for examples. Toohey J in Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533; 74 ALR 411 at 423–4 queried, without pursuing further, whether the terms were synonymous. This seems to be the only instance of such a doubt being raised and in light of the fact that the courts now direct that context determines the scope of the expression (see below), it is unlikely that any difference of substance will be held to arise between the expressions. Early decisions referred to ‘in respect of ’ as words that have ‘the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer’: per  Mann  CJ in Trustees Executors & Agency Co Ltd v  Reilly [1941] VLR 110 419

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at 111, cited with approval by Kitto J in Powers v Maher [1959] HCA 52; (1959) 103 CLR 478 at 484–5; Taylor J in State Government Insurance Office (Queensland) v  Crittenden [1966] HCA 56; (1966) 117 CLR 412 at 416; Wilcox J in Frost v Collector of Customs (Qld) (1985) 9 FCR 174 at 185; 63 ALR 297 at 308. However, Deane, Dawson and Toohey JJ in Workers’ Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 at 653; 81 ALR 260 at 267 described this as ‘going somewhat too far’. They continued: ‘The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.’ The same parties were before the court again in Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45; 85 ALR 173. This time Brennan, Deane and Gaudron JJ (at 47; 175) described the words as having ‘a chameleon-like quality in that they commonly reflect the context in which they appear’. In that case the court rejected an argument that a person who was injured while passing bags from a pallet for loading onto a container on an insured vehicle was carrying out an activity ‘in respect of ’ the vehicle. The activity being engaged in was not related to the vehicle as such. 12.8  Full Courts of the Federal Court have emphasised the importance of context in determining the connection to which the legislation is referring. In  J  & G Knowles and Associates Pty Ltd v  Commissioner of Taxation [2000] FCA 196; (2000) 96 FCR 402 at [26] the court said:

Whatever question is to be asked, it must be remembered that what must be established is whether there is a sufficient or material, rather than a causal connection or relationship between the benefit and the employment. There is, in any event, a danger in placing too much emphasis on causation.

This approach was endorsed in Australian Communications Network Pty Ltd v  Australian Competition and Consumer Commission [2005] FCAFC 221; (2005) 146 FCR 413; 224 ALR 344 at [26] and applied to overturn a lower court ruling that had interpreted ‘in relation to’ more broadly. French CJ and Hayne J in Travelex Ltd v  Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510; 270 ALR 253 at [25] said: It may readily be accepted that ‘in relation to’ is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that ‘the subject matter of the enquiry, the legislative history, and the facts of the case’ are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply ‘in relation to’ rights [citations omitted].

For other examples of the meaning of the expression being directed by its context see Federal Commissioner of Taxation v Holmes (1995) 58 FCR 151 at 155; 138 ALR 59 at 62 (words describing benefits received in respect of services rendered could not include a gift to an employee) and conversely Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513; 74 ALR 411 420

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(payment to an employee under an encouragement to study scheme was a payment in respect of services rendered). See  also Bodruddaza v  Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651; 234 ALR 114 and Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55; 305 ALR 547 where proscriptions on bringing an action ‘in relation to a migration decision’ were given a narrow interpretation to limit the range of actions that could not be brought. The Court of Criminal Appeal cautioned in R v PJ [2017] NSWCCA 290 at [31] that greater care should be exercised where the phrases referred to here appear in a criminal statute which must be strictly construed. ‘Its meaning should be appropriately confined to accord with the object or purpose of [the legislation], so as to ensure that it does not extend the range of the provision beyond what was intended.’ Nonetheless the expression is ‘of broad import’: per Toohey and Gaudron JJ in O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at 374; 92 ALR 213 at 226. In the same case, McHugh J said (at 376; 228) the phrase ‘requires no more than a relationship, whether direct or indirect, between two subject matters’; applied Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79; (2013) 38 VR 684 at [71]. The words are ‘among the broadest which could be used to denote a relationship between one subject matter and another’: per Lehane J in Nordland Papier AG v AntiDumping Authority [1999] FCA 10; (1999) 93 FCR 454; 161 ALR 120 at [25]. However, the relationship must be between distinct subjects or subject matters. Accordingly, the words will not usually be apt to refer to a relationship or connection between the same person, albeit that he or she is acting in different capacities: Harris v Federal Commissioner of Taxation [2001] FCA 1689; (2001) 189 ALR 611 at [29]. 12.9  See  the useful summary of the cases in Jennings Constructions Pty Ltd v  Workers’ Rehabilitation and Compensation Corporation (1998) 71 SASR 465 at 480–2 and Australian Securities and Investments Commission v Citrofresh International Ltd [2007] FCA 1873; (2007) 164 FCR 333; 245 ALR 47 at [66]–[71]. In the latter case Goldberg J noted that, while each case that has considered the interpretation and scope of the expression ‘in relation to’ is limited in its precedential value by the context in the relevant statute in which it appears, nevertheless the approaches taken may provide useful analogues for the context under consideration in a later case.

In Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112 at [43]–[50] Hodgson JA equated the expression ‘relates to’ to ‘in relation to’. ‘Related to’ has a broader meaning than ‘relevant to’: Melbourne Water Corporation v Domus Design Pty Ltd [2007] VSC 114; (2007) 16 VR 539 at [55]. For a summary of the cases that have considered the meaning of the expression ‘relating to’, see Fitzgerald JA in Oceanic Life Ltd v Chief Commissioner 421

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of Stamp Duties [1999] NSWCA 416; (1999) 154 FLR 129; 168 ALR 211 at [56]. The point is made there that the addition to ‘relating to’ of words such as ‘or depending on’ must be intended to give the original words a wider meaning. The words ‘in respect of ’ are wider in their meaning than ‘for’: Unsworth v  Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73 at 87 per Fullagar J, endorsed by Taylor J in State Government Insurance Office (Queensland) v Crittenden [1966] HCA 56; (1966) 117 CLR 412 at 416. However, the context may dictate that ‘for’ has the wider meaning attributable to ‘in respect of ’: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 226 FLR 388; 242 ALR 152 at [93]. ‘In respect of ’ is also wider in effect than ‘on account of ’: Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; (1999) 202 CLR 133; 167 ALR 392 at [243] per McHugh J. Where the word ‘consideration’ is used in conjunction with ‘in respect of ’, the former word loses its technical legal meaning: Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148; 169 ALR 459 at [40]; Brooks v Commissioner of Taxation [2000] FCA 721; (2000) 100 FCR 117; 173 ALR 235 at [36]–[37]. In Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2010] FCA 551; (2010) 269 ALR 98 at [115] Jacobson J said that there was no relevant distinction in effect between ‘concerns’ and ‘relating to’. In Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37; (2013) 83 NSWLR 80 at [157] the foregoing discussion was considered apt to determining the scope of the expression ‘claiming through’. A like approach to that set out above was adopted in the interpretation of ‘about’ in Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51; (2014) 220 FCR 412; 143 ALD 19 at [43]. ‘Connected with’ 12.10  ‘Connected with’ or ‘in connection with’ are words ‘capable of

describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote’: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 288; 115 ALR 1 at 10. ‘The word “connection” is both wide and imprecise’: Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275. French CJ in R v Khazaal [2012] HCA 26; (2012) 246 CLR 601; 289 ALR 586 said at [31]: Relational terms such as ‘connected with’ appear in a variety of statutory settings. Other examples are: ‘in relation to’; ‘in respect of ’; ‘in connection with’; and ‘in’. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and 422

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may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.

Various synonyms have been suggested from time to time for ‘connected with’, such as ‘having to do with’ (Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638); ‘in the course of ’ or ‘forming part of ’ (Dawson v  Hoffman Brick and Potteries Ltd [1924] VLR 208), both of which cases were referred to by a Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469; 175 ALR 503 at [29]. In the Cliffs Robe River case, above, the court noted as one of the expression’s common meanings ‘relation between things one of which is bound up with, or involved, in another’. However, whatever guidance these other expressions might provide, the judgment of connection ultimately depends upon the statutory context in which the words are used: Singh’s case, above and the cases referred to in the Annexure. The conclusion for a court is a value judgment: Pozzolanic’s case, above; Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 295; 131 ALR 319 at 328. For this reason, reference to other cases concerned with the identification of a connection are seldom of value: Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146; 94 ALR 220 at 223. However, one thing that is clear is that the expression does not require a causal connection between the matters said to be connected: Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 592; 23 ALD 257 at 266, affirmed Commonwealth Superannuation Scheme Board of Trustees v Kitching [2004] FCAFC 299; (2004) 139 FCR 272; 212 ALR 452; Singh’s case, above. ‘By reason of ’, ‘because of ’ and similar phrases 12.11  To determine whether certain action has been taken or consequences have flowed ‘by reason of ’ specified conduct, a practical application of ordinary causation principles is required: Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213; 159 ALR 465 at 475. ‘The phrase implies a relationship of cause and effect’: per Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321–2; 118 ALR 80 at 99. See also Commonwealth v McEvoy [1999] FCA 105; (1999) 94 FCR 341; 58 ALD 15 at [39]; Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461; 265 ALR 621 at [22].

It seems that expressions like ‘on the ground of ’, ‘because of ’ and ‘by virtue of ’ will have the same meaning thus requiring a causal connection: see the Mount Isa Mines case, above; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212; 423

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274 ALR 570 at [24]; WBM v Chief Commissioner of Police [2012] VSCA 159; (2012) 43 VR 446 at [34]. However, ‘based on’ has a wider meaning and does not necessitate a causal connection. ‘By reference to’ also contemplates a wider range of connections: Republic of Croatia v Snedden, above, at [25]. See further 12.15. ‘Consequence of ’ 12.12  This expression will take its colour from its context. This is demonstrated by the fact that its use has been before the courts in the rather disparate fields of legislation concerned with injuries sustained as a consequence of use of a motor vehicle and taxation obligations on payments received as a consequence of a specified event. In both cases what emerged was that the expression was not limited to causal connections.

McHugh J in Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89; 206 ALR 335 rejected a view in State Government Insurance Commission v  Wagner (1993) 62 SASR 175 that equated consequence with proximate cause. His Honour said that to do this was tantamount to saying that there must be a direct, dominant or immediate connection between the event and the consequence. He said (at [45]): … in the context of the Act the expression ‘a consequence of ’ emphasises the result or effect of the driving rather than the driving causing the result. This distinction is important in an insurance context where cause is frequently — perhaps usually — equated with ‘proximate’ or ‘dominant’ cause. Although ‘consequence’ involves notions of causation, the term ‘consequence’ — with its emphasis on effect — places less emphasis on the proximity of cause and effect than the term ‘cause’ may do in various contexts.

A similar approach is apparent in the income tax field. In a series of cases, the courts have said that whether a payment is ‘a consequence of ’ an event is not to be answered by asking whether it was caused by the event. There must be a connection between the payment and the event but the event does not have to be the sole or dominant reason for the payment. So a retirement allowance can be made in consequence of retirement but also in consequence of past service. See Reseck v Federal Commissioner of Taxation [1975] HCA 38; (1975) 133 CLR 45; 6 ALR 642; McIntosh v  Federal Commissioner of Taxation (1979) 45 FLR 279; 25 ALR 557; Le Grand v Federal Commissioner of Taxation [2002] FCA 1258; (2002) 124 FCR 53; 195 ALR 194. ‘By’/‘under’ 12.13  The expressions ‘by’ and ‘under’ are usually synonymous. They are

generally used in contexts where the meaning is ‘pursuant to’ or ‘by virtue of ’: Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 at 249; 89 ALR 522 at 526; R v  Tkacz [2001] WASCA 391; (2001) 25 WAR 77 at [23]–[28]. So a definition: ‘“University” means the Curtin University of Technology established under this Act’ meant the university that was established by or in 424

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accordance with the Act. In Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576 at 592; 118 ALR 357 at 373 it was said ‘… the word “under” usually imports a direct connection between the relevant act and the instrument’ See also the cases in the Annexure. The meaning of ‘under’ has assumed an importance as a result of the enactment of the Administrative Decisions (Judicial Review) Act 1977 by the Commonwealth which has been replicated in a number of other jurisdictions. The expression ‘under an enactment’ which defines the decisions that are reviewable in accordance with that legislation has been the subject of detailed consideration in the courts. The principal exposition is that of the High Court in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724. The  majority there said that, for a decision to have been taken under an enactment, first, the decision must be expressly or impliedly required or authorised by the enactment; and, second, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. For a decision to be made ‘under an Act’ there must be a ‘sufficient connection’ between the text of the statute in question and the decision sought to be reviewed. The connection between the text of the enactment and the decision must not be too remote for the decision to have the requisite character: see the discussion in Electricity Supply Association (Aust) Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230; 189 ALR 109 at [68]–[70] and the cases there cited. It is possible for ‘by’ and ‘under’ to be used differently. In Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 the Full Court of the Supreme Court of New South Wales distinguished between a price fixed ‘under’ and a price fixed ‘by’ a regulation. The relevant statutory rule gave power to a designated body to fix prices but it also included a regulation that itself fixed a price for some goods. The court held that there was a distinction between the prices fixed by the designated body which were fixed ‘under’ the regulations and the price set out in the regulations which was a price fixed ‘by’ the regulations. This is an unusual case because of the structure of the regulations in question. It seems that it will take a clear indication of intention to differentiate between the words for them to be given a differing effect — at least when used singly. However, where the expression ‘by or under’ is used, there is a view that the principle that all words must be given meaning leads to ‘under’ having a wider effect than it might have if used only on its own: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 413 and 442; 112 ALR 463 at 467 and 495 per Black CJ and Gummow J, respectively. ‘In accordance with’ 12.14  In some contexts, ‘in accordance with’ will be synonymous with ‘by’: Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 at 249; 89 ALR 425

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522 at 526. However, this will not necessarily be so. Context may give it a different meaning. In Mount Barker Properties Ltd v  District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449 at [24] Debelle J said that the verb ‘accord’ means to be in harmony or in correspondence or to be consistent with another thing. So a proposed amendment to a development plan would be in accordance with a required statement of intent if it were consistent with it or corresponded with it. In La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 at 158; 113 ALR 137 at 145 Gray J said that a requirement for an application to be in accordance with a specified form meant that the application had to be in complete agreement with the form. This conclusion was overruled as a general statement in Nicovations Australia Pty Ltd v Secretary, Department of Health [2016] FCA 394; (2016) 338 ALR 429 at [72]–[75]. It is necessary to look at the intended effect of the legislation in which the requirement to use the form appears. See also 11.30. For an application to be in accordance with a section of an Act, it had to comply with the time limit in the section: Ralkon Agricultural Co Pty Ltd v  Aboriginal Development Commission (1982) 69 FLR 328 at 342; 43 ALR 535 at 548. See  also the discussion of the scope of the expression by the Administrative Appeals Tribunal in Re Sobczuk and Carnarvon Medical Service Aboriginal Corporation [1999] AATA 864; (1999) 58 ALD 727 at [17] and Re The Australian and Department of Families, Community Services and Indigenous Affairs [2006] AATA 755; (2006) 92 ALD 179 at [21]–[25]. ‘Based on’ 12.15  Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301; 118 ALR 80 included ‘based on’ among those connections requiring causality. Subsequent decisions have qualified this view.

The most detailed examination of the issue is by Weinberg J in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8; 160 ALR 489 (which was endorsed by the Full Court of the Federal Court on appeal without additional reasons being considered necessary: [1999] FCA 1287; (1999) 91 FCR 47; 56 ALD 333 at [8]). ‘Based on’ encompasses the broader, not necessarily causative relationship expressed in the phrase ‘by reference to’: see Weinberg J at 30; 509. The words encompass a broader relationship than ‘by reason of ’, involving a connection between two concepts, one of which is referable to the other. See  also Cosco Holdings Pty Ltd v  Thu (1997) 79 FCR 566; 150 ALR 127; Commonwealth v McEvoy [1999] FCA 105; (1999) 94 FCR 341; 58 ALD 15 at [26]; Commonwealth v Human Rights and Equal Opportunity Commission [1999] FCA 1052; (1999) 95 FCR 218; 167 ALR 268 at [26]. Previous decisions that equated ‘based on’ and ‘on the basis of ’ with ‘by reason of ’, thereby requiring a causal connection between the concepts 426

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referred to, must be viewed with caution — although, of course, the context may determine that in the particular case the phrase may have been intended to have that effect. ‘Result of ’ 12.16  The effect of this expression will be dependent upon whether something is said to be ‘the’ result of certain matters or ‘a’ result of the matters. In the former it seems that there must be a direct and effective connection akin to a causal connection. In the latter the connection does not have to be the direct or only connection: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; 215 ALR 385; considered further in Nominal Defendant v  GLG Australia Pty Ltd [2006] HCA  11; (2006) 228 CLR 529; 225 ALR 643. See also WBM v Chief Commissioner of Police [2012] VSCA 159; (2012) 43 VR 446 at [33].

‘Have regard to’ 12.17  This expression is frequently used in legislation that vests decisionmaking power in a person or body. To control the scope of the discretion otherwise invested in the decision-maker, the legislation sets out matters to which the decision-maker is to have regard when making the decision. This phrase has been consistently interpreted to mean that the decision-maker must take into account the matter to which regard is to be had and give weight to it as an element in making the decision.

The  significance of the stated matters will depend upon their context. Barwick CJ in Rathborne v Abel (1964) 38 ALJR 293 at 295 said that, while it might not always be the case, generally a direction to have regard to certain facts or circumstances does no more than require the decision-maker to which the direction is given to consider whether it should give any and, if so, what weight to the particular fact or circumstance when performing the duty or exercising the right given to it. Kitto J (at 301) noted that the fact that a decision-maker is directed to have regard to certain matters that are specified does not preclude consideration of other factors thought to be relevant. However, a number of cases appear to impose a greater obligation to consider the issues to which regard is to be had. It has been said that the matter referred to must be one to which ‘fundamental regard is had’: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; 25 ALR 497 at 504; R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333; 44 ALR 63 at 67; Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265; 261 ALR 741 at [25]. Another formulation has been that the matter identified must be the focal point of the decision-making process: Evans v Marmont (1997) 42 NSWLR 70 at 79; 21 Fam LR 760 at 768; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]–[73]. 427

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There is a line of authority that takes a more pragmatic approach. It is said that the relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decisionmaking process. In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [54] Sackville J said: … a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and ‘give weight to them as a fundamental element in making his [or her] determination’: [citing R v Hunt, above] … But the phrase ‘have regard to’ can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.

This latter was held to be the standard to be applied when considering the nature of the regard to which a matter had to be had in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; 274 ALR 438 at [57]–[67]. It was said there that in some cases it may be apparent that among the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. It was observed that this was true of the particular matters referred to in the cases set out above. However, the relevant statutory provisions may show that a particular matter to which a decisionmaker must have regard is not fundamental to the decision-making process. In such a case it is for the decision-maker to determine the weight to be given the matter provided that the consideration of the matter is genuine. A mere assertion that a decision-maker has had regard to required matters will not be sufficient if there is evidence calling into question that assertion: Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; 35 ALR 388 at 392; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623. The regard must be ‘adequate’ and ‘sufficient’ and not ‘token’ or ‘nominal’: Secretary, Department of Defence v  Fox (1997) 24 AAR 171 at 176. It must be ‘genuine’: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [212]; Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827; (2013) 137 ALD 507 at [26]. The Administrative Appeals Tribunal in Re Gracie and Secretary, Department of Family and Community Services [2005] AATA 179; (2005) 83 ALD 289 drew a distinction between a requirement to ‘have regard to’ various matters and a requirement that a decision-maker ‘must consider’ such matters. The latter phrase required all matters to be considered. The former provides a discretion to weigh the significance of the matters. A variant on the ‘have regard to’ formula is a requirement ‘to have due regard to’ the matters listed. It has been said that this phrase imposes a greater obligation on the decision-maker than ‘regard to’ but does not mean ‘exclusive regard’: Cavanagh v  Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375 428

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at 380; Maritime Services Board (NSW) v  Liquor Administration Board (1990) 21 NSWLR 180 at 195; Re Galanos and Department of Immigration and Citizenship [2010] AATA 1004; (2010) 128 ALD 382 at [21]ff. For an example of the application of this interpretation of the expression in circumstances relating to the procedure to be followed rather than the decision to be reached, see Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265; 142 ALR 1. Temporal Expressions 12.18  A number of different expressions are used to indicate the time within which some action must be taken. (See further Interpretation Acts, Chapter  4 relating to the calculation of periods of time where a time is specified.)

‘As soon as possible’ 12.19  ‘As soon as possible’ has been described as a relative concept to be measured by reference to limiting factors. The expression does not require that whatever it is that has to be done must be carried out as soon as anyone could possibly do it. It means as soon as possible in the circumstances which prevail and apply to the party concerned: Amann Aviation Pty Ltd v  Commonwealth (1990) 22 FCR 527 at 558; 92 ALR 601 at 632. Starke J in Bowes v  Chaleyer [1923] HCA 15; (1923) 32 CLR 159 at 193 put the expression as meaning ‘within a reasonable time’ but this seems too generous to the person obliged to carry out the activity unless reasonableness is judged against the criteria referred to in the Amann case.

The Full Court of the South Australian Supreme Court applied an approach similar to that in the Amann case when considering a requirement to act ‘with all convenient speed’: Registrar of Motor Vehicles v Vu [2013] SASCFC 10; (2013) 115 SASR 385. ‘As soon as practicable’ 12.20  This expression is a little more flexible than ‘as soon as possible’. The length of time permitted is to be judged against what is practicable from the viewpoint of the person or body who has to comply with the requirement having regard to its normal procedures and all other surrounding circumstances: Martin v  Commonwealth (1975) 7 ACTR 1. Illustrative of this approach are two Northern Territory cases.

McMillan v Territory Insurance Office (1988) 57 NTR 24; 91 FLR 436 involved consideration of a requirement to make a claim ‘as soon as practicable’ after a motor car accident. The determination whether this requirement had been complied with was held to invite consideration of the physical and mental capacity of the claimant, the nature of the injuries sustained, whether the claimant’s condition had stabilised, etc. However, this approach was said to be inapplicable in Maddalozzo v Maddick (1992) 84 NTR 27; 108 FLR 159 to a 429

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requirement to give notice of an injury ‘as soon as practicable’ where workers’ compensation was being sought. Mere notice of a claim did not involve the need for the information that was necessary to support a claim and accordingly the ‘practicable’ period could be much shorter. See also Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 315 ALR 352 at [101]–[113] (overruling Santhirarajah v Attorney-General (Cth) [2012] FCA 940; (2012) 206 FCR 494; 296 ALR 625) for a discussion of the meaning of ‘as  soon as is reasonably practicable’. Snedden’s case was applied in Re FJKH and National Disability Insurance Agency [2018] AATA 1294 at [21]ff. ‘Immediately’; ‘forthwith’ 12.21  The effect of the words ‘immediately’ and ‘forthwith’ are fairly similar. Their effect will vary with their context. Cockburn CJ in R v Justices of Berkshire (1878) 4 QBD 469 at 471 said in relation to ‘immediately’ that it was impossible to lay down any hard and fast rule as to its meaning. Harmon LJ in Hillingdon London Borough Council v Cutler [1968] 1 QB 124 at 135 said ‘… “forthwith” is not a precise time and, provided that no harm is done, “forthwith” means any reasonable time thereafter … it may involve action within days: it may not involve action for years …’. In Australian Securities Commission v MacLeod (No 2) (1993) 40 FCR 461 Drummond J having cited that statement referred also to the Macquarie Dictionary meanings of ‘forthwith’: ‘(1) immediately; at once; without delay; (2) as soon as can reasonably be expected’. While this means that the expressions have no fixed meaning, there are some indications as to their effect that are worth noting.

It has been said of ‘immediately’ that it is clearly a term that requires more rapid action than ‘within a reasonable time’ (Dorsman v Nichol (1978) 20 ALR 231 at 237) and presumably than ‘as soon as possible’ and ‘as soon as practicable’. Kearney J in Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 34; 117 FLR 135 at 138, in what is perhaps the fullest discussion of the word in Australia, followed a description in Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546 at 567 that the word ‘in its ordinary signification … involves the notion that there is, between two relevant events, no intervening space, lapse of time or event of any significance’. If action is to be immediate, it must be prompt, vigorous and without any delay: Dorsman’s case, above. ‘Immediately before’ or ‘immediately after’ a designated event refers to a more confined period than simply ‘before’ or ‘after’: Loizos’ case, above; Commissioner for Superannuation v Bayley (1979) 41 FLR 385 at 401–2; 28 ALR 293 at 315, respectively. But the circumstances will determine the proximity to the event that is necessary. It may not, for example, be possible to give a notice forthwith after an event because a person is not available to receive it. In such a case, ‘immediately’ means ‘as immediately as the circumstances permit’: Loizos’ case. On the other hand, the context may determine that ‘immediately before’ an event means the last moment of time before the event: Equity 430

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Trustees Executors & Agency Co Ltd v Commissioner of Probate Duties (Vic) [1976] HCA 34; (1976) 135 CLR 268; 10 ALR 131: ‘immediately before death’. Much of the foregoing would seem to apply also to ‘forthwith’. CXXXVIII v  Commonwealth [2019] FCAFC 54 contains perhaps the fullest discussion of the term in Australia. The judges of the court disagreed on the issue whether the use of ‘forthwith’ gave sufficient guidance in a notice to produce documents, but they were generally in agreement as to effect of the term. The important issue is that what constitutes action being taken ‘forthwith’ will be determined by the circumstances in which the requirement has to be complied with including the nature of the action that has to be taken, the person who has to take that action and the result that flows form the time taken to act. Miscellaneous 12.22  The following are a selection of expressions commonly found in legislation, the meaning of which has required judicial consideration.

‘All’ 12.23  This expression must clearly take its scope from its context. However, there is a useful discussion of its meaning by the High Court in Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; (2008) 235 CLR 232; 246 ALR 218 at [47]. The majority said:

… the word ‘all’ has various meanings and shades of meaning. It may be used in the sense of ‘any whatever’, as in the phrases ‘denial of all responsibility’ and ‘beyond all reasonable doubt’. It may be used in the sense of ‘such number as proves to be the case’.

However, in this case it was equivalent to ‘any’. To have held otherwise would have defeated the purpose of the Act. ‘And’; ‘or’ 12.24  See the discussion in 2.46–2.51.

‘As the case may be’ 12.25  This expression and its variant ‘as the case requires’ is not easy to apply. It requires the user of legislation to apply the words to which it relates to whichever of alternative expressions are to be found in the legislation: McDonald v Hanselmann [1998] NSWSC 171; (1998) 28 ACSR 49.

‘Avoidance of doubt’, ‘removal of doubt’ 12.26  From time to time one finds included in legislation a provision whose purpose is stated to be to avoid or remove doubt. Such provisions can themselves cause doubt because they raise questions as to what the provision which they purport to explain meant in its unqualified form. An ambiguity can be implied where there was not one before: cf Allen v Feather Products Pty Ltd [2008] NSWSC 259; (2008) 72 NSWLR 597; 216 FLR 263. 431

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The general approach of the courts has been to regard provisions of this kind as adding little or nothing to the substantive provision: Panochini v Jude [1999] QCA 444; [2000] 2 Qd R 322; Karanfilov v Inghams Enterprises Pty Ltd [2000] QCA 348; [2001] 2 Qd R 273; Allen’s case, above. To the extent that the provision is only serving to elucidate an existing provision, it is to be treated as being declaratory of that law and therefore operates from the date of the commencement of the law that it is explaining: Seafarers’ Retirement Fund Pty Ltd v  Oppenheimer [1999] FCA 1683; (1999) 94 FCR 594 at [16]. However, if its true effect is to change the law, despite the assertion that it is only intended to remove doubt, it will operate prospectively: Panochini’s case, above, at [15]; Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400; 276 ALR 231 at [38]–[39]. ‘Circumstances beyond control’ 12.27  Whether or not circumstances are properly to be regarded as being beyond a person’s control is going to depend upon the facts of the particular case. However, there are some observations in decisions that indicate the approach that will be taken to the resolution of the issue.

It must be apparent that the main reason for failing to comply with the statutory obligation did not involve a matter that was within the control of the person concerned or was not reasonably foreseeable by that person. It must not be something that the person could have done something about: Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426 at 438; 147 ALR 295 at 306. The circumstance will often be external to the person concerned, but need not be. Sickness, for example, will usually be a circumstance beyond control, but forgetfulness will not: Ferguson’s case. Acting in reliance upon advice from an appropriate official can take the action outside the person’s control: Secretary, Department of Social Security v Secara (1998) 89 FCR 151; 51 ALD 481. The actions of strangers, including independent contractors, can be circumstances beyond a person’s control, but not if the person is responsible for the actions. This will be assumed to be the case where the actor is the servant or agent of the person concerned: Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1987) 13 FCR 199; 70 ALR 613. ‘Contrary intention’ 12.28  See  the discussion in 6.12 and in more detail in Interpretation Acts, Chapter 1.

‘Except’, ‘exempt’ 12.29  Power is frequently given to an authority to except or exempt some

person or some activity from the operation of legislation. In Cockle v  Isaksen [1957] HCA 85; (1957) 99 CLR 155 at 165 Dixon CJ, McTiernan and Kitto JJ said: An exception assumes a general rule or proposition and specifies a particular case or description of case which would be subsumed under the rule or 432

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proposition but which, because it possesses special features or characteristics, is to be excluded from the application of the rule or proposition. It is not a conception that can be defined in the abstract with exactness or applied with precision; it must depend very much upon context.

This statement was relied upon in Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45; (2015) 230 FCR 523; 321 ALR 155 to find that a regulation made under a power to except an area from an area to which an Act would otherwise apply could not be used to except the whole area from the operation of the Act. At [66] the court said that the term ‘except’ does not denote that the minister’s power of determination can be exercised so as completely to extinguish the items within the relevant category or class. ‘Likely’ 12.30  The most frequently cited exposition of ‘likely’ is that of Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346; 27 ALR 367 at 380:

The word ‘likely’ can, in some contexts, mean ‘probably’ in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance … It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’.

The selection of which of these meanings the word ‘likely’ has in particular legislation will require a consideration of the nature of the legislation and the circumstances which must be considered ‘likely’. If a penalty can flow from a failure to predict the probability of the event in question, the higher standard of ‘likelihood’ will probably be necessary: Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 at 395–6; 160 ALR 246 at 338; RJE v Secretary, Department of Justice [2008] VSCA 265; (2008) 21 VR 526 at [21], [53]. If a benefit is to flow from the likelihood of the event, ‘likely’ can have the lesser requirement of ‘more than a remote possibility’: Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett (1998) 82 FCR 524 at 527–8; 52 ALD 499 at 502. The certainty of prediction of the ‘likely’ events will affect the standard: Barrett’s case (weather conditions). If the prediction relates to information within the knowledge of the person making the prediction, a higher standard of likelihood can be assumed: Re Pirri and Secretary, Department of Family and Community Services [2000] AATA 231; (2000) 59 ALD 531 at [15]. For a detailed consideration of the meaning of the word see Bray CJ in Australian Telecommunications Commission v  Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 309–13; Re Vulcan Australia Pty Ltd and Comptroller General of Customs (1994) 34 ALD 773 at 777; Buchanan J in Australian Competition and 433

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Consumer Commission v Metcash Trading Ltd [2011] FCAFC 151; (2011) 198 FCR 297; 284 ALR 662 at [37]ff. ‘Powers’ and ‘functions’ 12.31  These expressions are found in many Acts that relate to statutory

bodies and are used to define what it is that the body can do. Lockhart J in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; 112 ALR 463 said that it was a distinction that is well recognised. His Honour continued at 422; 475: ‘The distinction is between functions or purposes or activities of an administrative body on the one hand, and the powers conferred upon it to perform or execute those functions, purposes and activities on the other.’ Lockhart J also referred to Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; 60 ALR 756 where Bowen CJ had used this distinction. The distinction referred to will apply in many cases but it is something of a counsel of perfection as is recognised in the case cited by Lockhart J in support of his statement. In Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 63; 96 ALR 673 at 677 Lockhart J himself and Northrop J cautioned: The types of statutory contexts in which the expressions ‘functions’ and ‘powers’ of such bodies appear differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; while some statutory definitions of ‘functions’ provide that ‘functions include powers and duties’: see the definition of function in Stroud’s Judicial Dictionary of Words and Phrases, 5th ed, 1986 and Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission [1977] HCA 55; (1977) 139 CLR 117 at 130; 16 ALR 535; Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 677–8; 24 ALR 513; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457; 25 ALR 221.

It would thus seem that the starting point for any consideration of the effect of the two terms will be that which is alluded to by Lockhart J in the Mercantile Mutual case. However, it needs to be recognised that not all references will be as carefully stated as this and in some cases the distinction will not be able to be as readily applied. ‘Reasonably practicable’ 12.32 In Baiada Poultry Pty Ltd v  R [2012] HCA 14; (2012) 246 CLR 92;

286 ALR 421 at [15] the High Court said, in the context of an employer’s obligation to provide a safe system of work: The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a 434

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Drafting Conventions and Expressions

12.34

working environment does not, without more, demonstrate that an employer has broken the duty imposed by [the Act].

‘Specify’ 12.33  A requirement to ‘specify’ something is frequently found in legislation. The Macquarie Dictionary definition of the word is ‘to mention or name specifically or definitely: state in detail’. This requirement for detail and accuracy runs through the cases in which the word has been considered.

In Jolly v District Council of Yorketown [1968] HCA 55; (1968) 119 CLR 347 at 351 Barwick CJ and Owen J said of information required to be specified in a notice of demand for payment that the notice ‘must state in explicit terms the various matters that the sub-section requires to be stated’. In Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49 at 64 Malcolm CJ said ‘ “specify” means make unambiguously clear’. Burchett J in Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569; 123 ALR 29 at 43 said, in relation to a requirement that certain information be specified in a takeover offer notification: The word chosen by the legislature for use in cl 20(2) of s  750 is ‘specify’, a  word which signifies precision. Even such a word must yield to context, since no word has a meaning which remains rigidly fixed, however it is used. A word is not a locked box with static contents; it is more like a living cell, changing as it responds to the environment, which is its context. But no change wrought by the contextual currents enveloping the word ‘specify’ in cl 20 can so transform it that it fails to signify a requirement of clarity and precision. On the contrary, the context of the clause suggests that unambiguous precision was exactly what the draftsman was striving to require. In the previous subclause, which is expressly said not to be limited by the succeeding one, the word was ‘particulars’. Judicial attempts to expound the meaning of the word ‘specify’ have repeatedly fixed upon unambiguous clarity as being connoted by it.

This passage brings out that the meaning of ‘specify’, like any other word used in legislation, will take its meaning from its context. However, the starting point where something must be specified is that it must be stated clearly. 12.34  As the following examples show, this will often be because the reason for the information to be ‘specified’ is that it is for the benefit or protection of a person affected:

• Jolly’s case, above (notification of liability to pay cost of street development); • Gantry’s case, above (terms of takeover offer); • TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 62 FLR 366 at 375; 42 ALR 496 at 503 (certificate of shareholder’s interest in company); • Norvill v Chapman (1995) 57 FCR 451; 133 ALR 226 (notice of report that area a significant Aboriginal area); 435

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• Vanstone v  Clark [2005] FCAFC 189; (2005) 147 FCR 299; 224 ALR 666 at [13] (conduct that constituted ‘misbehaviour’ that could lead to suspension from office); • Re Bill Express Ltd (in liq) [2010] VSC 101; (2010) 238 FLR 329; 77 ACSR 556 at [30] (books to be produced to criminal investigator). However, the level of specificity will be determined by the subject matter. So ‘all the affairs of the company from [a nominated date]’ was considered sufficient to state the matters on which a companies inspector was to report in Bond Corporation Holdings, above. Where a period is to be specified, the period must be fixed, definite and certain: Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177 at 181; 89 ALR 580 at 585. In the context of specification of some matter or thing, regard should be had to a provision in the Interpretation Acts of some jurisdictions which permits the identification of matters or things by referring to a class of such matters or things.1 Presumably this would be possible in other jurisdictions where there is no provision equivalent to the Interpretation Act provision, provided that the method of prescription identified the matters or things with sufficient clarity: cf Clyne v Cardiff (1965) 65 SR (NSW) 213 at 217, 222. The effect of the Commonwealth provision has been interpreted as meaning that it is not necessary to set out lists of matters or things provided that the matters and things to be specified can be identified with certainty and precision from the description of the class: Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294 at 318; 90 LGERA 232 at 259. However, the Interpretation Act section will not avail if the description used to identify the matters or things leaves uncertainty as to what is being specified. So in NAAO v  Secretary, Department of Immigration and Multicultural Affairs [2002] FCAFC 64; (2002) 117 FCR 401; 66 ALD 545 and Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306; 203 ALR 320 the description of certain agencies by a broad statement of their functions was not considered to be of sufficient particularity to have satisfied the requirement that the agencies be specified. The description was so broad that, while the main agencies involved could be identified, there remained uncertainty at the edges as to what other bodies might fall within the description used.

1. Interpretation Acts, 8.53. It should be noted that s 33(3) of the Commonwealth Act replaced s 46(2) which was the subject of the decisions in the cases referred to in this paragraph. 436

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Annexure Supplementary cases and articles

CHAPTER 1

1.4  Principled drafting J M Green, ‘“Fuzzy Law” — A Better Way to Stop “Snouts in the Trough”?’ (1991) 9 C&SLJ 144; P Bayne, ‘Fuzzy Drafting and the Interpretation of Statutes in the Administrative State’ (1992) 66 ALJ 523; L Campbell, ‘Legal Drafting Styles: Fuzzy or Fussy?’ (1996) 3(2) E Law: Murdoch University Electronic Journal of Law; D Lovric, ‘Principles-based Drafting: Experiences From Tax Drafting’ (2010) The Loophole 16. See also Clearer Commonwealth Law: Report of the Inquiry into Legislative Drafting by the Commonwealth, AGPS, Canberra, 1993, pp 128–34. 1.6  Duty of court in relation to legislation R v Holmes; Ex parte Altona Petrochemical Co Ltd [1972] HCA 20; (1972) 126 CLR 529 at 562 per Windeyer J; Vanit v R [1997] HCA 51; (1997) 190 CLR 378 at 393; 149 ALR 1 at 11 per Kirby J; Whittaker v Comcare (1998) 86 FCR 532 at 543; Karanfilov v Inghams Enterprises Pty Ltd [2000] QCA 348; [2001] 2 Qd R 273 at 290; Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 398; 349 ALR 398 per Gordon and Edelman JJ both dissenting. 1.8  Counsel’s argument on interpretation Woodcrest Homes Pty Ltd v  Fair Trading Tribunal [2002] NSWSC  552 at [33]; Director-General Department of Land and Water Conservation v  Jackson [2003] NSWLEC 81; (2003) 125 LGERA 304 at [59]; Design 23 Pty Ltd v Sutherland Shire Council [2003] NSWLEC 90; (2003) 125 LGERA 380 at [67]; Gibson v Western Sydney Area Health Service [2003] NSWIRComm 465 at [32]; Zoological Parks Board of New South Wales  and The Australian Workers’ Union, New  South Wales [2004] NSWIRComm 85 at [56]; New South Wales  Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Gosford City Council [2011] NSWIRComm 1026 at [56]; Clarke v  Tasmania [2013] TASCCA 11; (2013) 24 Tas R 384 at [63]. 1.10  Precedent and interpretation Brennan v Comcare (1994) 50 FCR 555 at 572; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51; 180 ALR 569 at [74]; Ibrahim 437

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v Pham [2004] NSWSC 650 at [23]; R v Fowler [2006] SASC 18 at [56]; Corruption and Crime Commission v Stokes [2013] WASC 282 at [62]–[63]. 1.12  Persuasive authority of decisions interpreting legislation (1)  Judicial comity and interpretation Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 32; 153 ALR 377 at 383–4; Towney v Minister for Land and Water Conservation for New South Wales (1997) 76 FCR 401 at 412; 147 ALR 402 at 412; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121; Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255; 125 ALR 605 at 627; Uddin v Minister for Immigration and Multicultural Affairs [1999] FCA 1041; (1999) 165 ALR 243 at [34]. (2)  Following construction of earlier Full Court Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453 at 470; 160 ALR 184 at 199–200; NATB v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 133 FCR 506 at [61]; Federal Commissioner of Taxation v  Energy Resources of Australia Ltd [2003] FCAFC 314; (2003) 204 ALR 487 at [17]; Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475; 81 ALD 588 at [4] and [89]; SOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56; (2005) 144 FCR 170; 218 ALR 617 at [29]–[32]; Citigroup Pty Ltd v Mason [2008] FCAFC 151; (2008) 171 FCR 96; 250 ALR 7 at [7]–[8]; Tay v Minister for Immigration and Citizenship [2010] FCAFC 23; (2010) 183 FCR 163 at [13]. 1.16  Construction by courts in other jurisdictions ACT: Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47; 224 FLR 243 at [43]. New South Wales: Deputy Commissioner of Taxation (NSW) v  Access Finance Corporation Pty Ltd (1987) 8 NSWLR 557; 18 ATR 871 (Court of Appeal); Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [728] (Court of Criminal Appeal). Queensland: R v Gardiner [1981] Qd R 394 at 412; (1979) 27 ALR 140 at 15; R v Alif [2012] QCA 355; [2013] 2 Qd R 140 at [20]. South Australia: R v Zotti [2002] SASC 164; (2002) 82 SASR 554 at [63]–[65]. Victoria: R v Parsons [1983] 2 VR 499 at 506; (1983) 53 ALR 568 at 575. Western Australian: Zibillari v R [1981] WAR 40 at 42, 49; (1980) 31 ALR 693 at 695, 703. 1.18  Interpretation of uniform legislation Re Excel Finance Corporation Ltd (rec & mgr appt’d); Worthley v England (1994) 52 FCR 69 at 82; 34 ALD 85 at 96; David Grant & Co Pty Ltd v Westpac Banking Corporation 438

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[1995] 2 VR 495 at 499; Huntsman Chemical Co of Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 245 and 269; NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359 at 365–7; Einfeld v HIH Casualty and General Insurance Ltd [1999] NSWSC 867; (1999) 166 ALR 714 at [22]–[29], [43]–[45]; Wright v Mansell [2001] FCA 1519; (2001) 116 FCR 46; 187 ALR 508 at [36]–[37]; Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256; (2003) 135 FCR 206; 203 ALR 51 at [23]–[24] and [172]–[175]; Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286; (2004) 49 ACSR 325 at [13]–[17]; Melbourne University Student Union (in liq) v Sherriff [2004] VSC 266 at [13]; Kennedy v Australian Securities and Investments Commission [2005] FCAFC 32; (2005) 142 FCR 343; 218 ALR 224 at  [81]; Director of Consumer Affairs Victoria v Scully [2013] VSCA 292; (2013) 303 ALR 168 at [13]–[14], [59]. 1.25  Legislation and common law P S Atiyah, ‘Common Law and Statute Law’ (1985) 48 MLR 1; W Gummow, ‘Lecture 1 — The Common Law and Statute’ in Change and Continuity: Statute, Equity and Federalism, Oxford University Press, Oxford, 1999, pp 1, 11; J Beatson, ‘The Role of Statute in the Development of Common Law Doctrine’ (2001) 117 LQR 247; S Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash LR 1; M Leeming, ‘Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room’ (2013) 36 UNSWLJ 1002; P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 Torts LJ 126; David Wright, Common Law in the Age of Statutes: The Equity of the Statute, LexisNexis Butterworths, Sydney, 2015; Michelle Gordon, ‘Analogical Resoning by Reference to Statute: What is the Judicial Function?’ (2019) 42 UNSWLJ 4. 1.26  Duty of Executive to follow interpretation D Pearce, ‘Executive v  Judiciary’ (1991) 2 Public Law 179; M McHugh, ‘Tensions Between the Executive and the Judiciary’ (2002) 36 ALJ 567; M Allars, ‘Executive versus Judiciary Revisited’ in Anthony J Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes, Federation Press, Sydney, 2015, Chapter 4. CHAPTER 2

2.2  Theoretical debate on meaning P  C  Schanck, ‘The Only Game in Town: An Introduction to Interpretive Theory, Statutory Construction, and Legislative Histories’ (1990) 38 U Kan L Rev 815; P  C  Schanck, ‘Understanding Postmodern Thought and its Implications for Statutory Interpretation’ (1992) 65 S Cal L Rev 2507; C R Sunstein and A  Vermeule, ‘Interpretation and Institutions’ (2003) 101 Mich L Rev 885; R A Posner, ‘Reply: The Institutional Dimension of Statutory and Constitutional Interpretation’ (2003) 101 Mich L Rev 952; C R Sunstein and A Vermeule, ‘Interpretive Theory in its Infancy: A Reply to Posner’ (2003) 439

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101 Mich L Rev 972; S Fish, ‘There Is No Textualist Position’ (2005) 42 San Diego L Rev 629; P F Frickey, ‘Structuring Purposive Statutory Interpretation: An American Perspective’ (2006) 80 ALJ 849; M Herz, ‘Purposivism and Institutional Competence in Statutory Interpretation’ (2009) Mich St L Rev 89; A Scalia and B A Garner, Reading Law: The Interpretation of Legal Texts, Thomson/ West, St Paul, MN, 2012; Grant Huscroft and Bradley Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation, Cambridge University Press, New York, 2011. Professor S Corcoran’s chapter, ‘Theories of Statutory Interpretation’ in S  Corcoran and S Bottomley (eds), Interpreting Statutes, Federation Press, Sydney, 2005, identifies and illustrates, by reference to Australian cases, three basic approaches to legislative interpretation that underpin several theories of interpretation. In the following chapter of Interpreting Statutes, ‘The Architecture of Interpretation: Dynamic Practice and Constitutional Principles’, Professor Corcoran articulated a theoretical basis for her support of the interpretive approach outlined in W N Eskridge’s influential book, Dynamic Statutory Interpretation, Harvard University Press, Cambridge, MA, 1994. See  also S Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash LR 1; M Kirby, ‘The Never-Ending Challenge of Drafting and Interpreting Statutes — A Meditation on the Career of John Finemore QC’ (2012) 36 Melb Univ L Rev 140; R Ekins and J Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36(1) Syd LR 39; Joe Campbell and Richard Campbell, ‘Why Statutory Interpretation is Done as it is Done’, Legal Studies Research Paper No 14/79, August 2014, Sydney Law School; (2014) 39 Aust Bar Rev 1; Dale Smith, ‘Is the High Court Mistaken About the Aim of Statutory Interpretation?’ (2016) 44 Fed L Rev 227; Jamie Blaker, ‘A Statute’s Meaning Need Not Be Its Law’ (2018) 46 Fed L Rev 455. 2.4  Legislative intention K Mason, ‘The Intent of Legislators: How Judges Discern It and What They Do if They Find It’ (2006) 27 Aust Bar Rev 253; R Ekins, ‘The Intention of Parliament’ (2010) Public Law 709; Richard Ekins, The Nature of Legislative Intent, Oxford University Press, Oxford, 2012; Richard Ekins and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36(1) Syd LR 39 and the writings cited therein; Jim South, ‘Are Legislative Intentions Real?’ (2014) 40 Monash LR 853; Cheryl Saunders, ‘Constitutional Dimensions of Statutory Interpretation’ in Anthony J Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes, Federation Press, Sydney, 2015, Chapter  3, pp 38–42; Chloe Burnett, ‘Interpretation in the French High Court’ (2017) 44 Aust Bar Rev 95; John Basten, ‘Legislative Intention’ (2019) 93 ALJ 367.

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2.12  Contextual interpretation Fox v Commissioner for Superannuation (No 2) [1999] FCA 372; (1999) 88 FCR 416; 167 ALR 197 at [12]–[14]; Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188; (2007) 19 VR 1 at [54]–[55]; Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151; (2007) 161 FCR 419 at  [27]; Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 29 VR 160 at [36]–[37]; Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414; 256 ALR 129 at [8]; Director of Public Prosecutions v Leys [2012] VSCA 304; (2012) 44 VR 1; 296 ALR 96 at [45]–[47]. 2.18  Mills v Meeking applied R v Boucher [1995] 1 VR 110 at 123–4; (1994) 70 A Crim R 577 at 591; Public Trustee v  O’Donnell [2008] SASC 181; (2008) 101 SASR 228 at  [61]; Director of Public Prosecutions v Ali [2009] VSCA 162; (2009) 23 VR 203 at [44]; Cooper v Howard [2012] TASSC 24; (2012) 61 MVR 56 at [16]–[17]; F, BV v Magistrates Court of South Australia [2013] SASCFC 1; (2013) 115 SASR 232 at [10]–[11]. 2.19  When context considered Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [69] per McHugh, Gummow, Kirby and Hayne JJ; Fox v Commissioner for Superannuation (No 2) [1999] FCA 372; (1999) 88 FCR 416; 167 ALR 197 at [12]–[13]; Repatriation Commission v  Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548; 171 ALR 523 at [107]–[108]; Australian Industry Group v Automotive, Food, Metals, Printing and Kindred Industries Union [2003] FCAFC 183; (2003) 130 FCR 524 at [33] and [72]–[75]; Seeto v R [2008] NSWCCA 227 at [38]; Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; (2008) 22 VR 275 at [70]–[71]; Connor Hunter (A Firm) v Keencrest Pty Ltd [2009] QCA 156 at [7]; Nominal Defendant v Uele [2012] NSWCA 271; (2012) 82 NSWLR 308 at [18]; Director of Public Prosecutions v Leys [2012] VSCA 304; (2012) 44 VR 1; 296 ALR 96 at [67]. 2.20  Clear words to be applied Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 245; 92 ALR 521 at 526; Nikolovsky v Government Insurance Office of New South Wales (1992) 28 NSWLR 549 at 559–60 and 561–2; Vanit v R [1997] HCA 51; (1997) 190 CLR 378 at 393–4; 149 ALR 1 at 11–12 per Kirby J; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 109–10; 149 ALR 623 at 639–40 per McHugh J; Whittaker v Comcare (1998) 86 FCR 532 at 543–4; Comcare v Thompson [2000] FCA 790; (2000) 100 FCR 375; 175 ALR 163 at [42]; Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; (2008) 22 VR 275 at [83]; J J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297; 218 IR 454 at [52].

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2.22  Inferring purpose Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [157]; Alcan (NT) Alumina Pty  Ltd v  Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239  CLR 27; 260 ALR 1 at [11] per French CJ; at [50]–[51] per Hayne, Heydon, Crennan and Kiefel JJ; Jomal Pty Ltd v Commercial and Consumer Tribunal [2009] QCA 326; [2010] 2 Qd R 409 at [29]; Witheyman v  Simpson [2009] QCA 388; [2011] 1 Qd R 170 at [51]; Re  CSR Ltd [2010] FCAFC 43; (2010) 183 FCR 358; 265 ALR 703 at [53]; Kline v Official Secretary to the Governor-General [2012] FCAFC 184; (2012) 208 FCR 89; 295 ALR 398 at [18]; Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009 at [40]–[41] per Crennan, Kiefel, Bell, Gageler and Keane JJ; Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213  FCR  449 at [28]–[29]; MyEnvironment Inc v  VicForests [2013] VSCA 356; (2013) 42 VR 456; 306 ALR 624 at [2]–[18]; Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 363 ALR 343 at [80]ff. 2.32  International treaties as aids to interpretation Shipping Corporation of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142 at 159; 32 ALR 609 at 618 per Mason and Wilson JJ; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 124; 57 ALR 472 at 512–13 per Brennan J; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 305; 112 ALR 529 at 535–6; Todhunter v United States of America (1995) 57 FCR 70 at 76–7; 129 ALR 331 at  336; De L v  Director-General, New  South Wales  Department of Community Services [1996] HCA 5; (1996) 187 CLR 640 at 675–6; 139 ALR 417 at 441–2 per Kirby J; Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 112–13; 148 ALR 498 at 500; Morrison v  Peacock [2002] HCA  44; (2002) 210 CLR 274; 192 ALR 173; Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329; (2002) 121 FCR 251; 197 ALR 35 at [14]–[15] and [158]–[159]; Pilkington (Australia) Ltd v  Minister for Justice and Customs [2002] FCAFC 423; (2002) 127 FCR 92; 71 ALD 301 at [26]–[27]; El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202; (2004) 140 FCR 296; 209 ALR 448 at [139]–[148]; Gulf Air Company GSC v  Fattouh [2008] NSWCA 225; (2008) 251 ALR 183; 230 FLR 311 at [24]–[27]; TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361; 311 ALR 387; Iliafi v Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; (2014) 221 FCR 86; 311 ALR 354 at [56]–[59]; Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142; (2014) 46 VR 49 at [29]–[38]. 2.33  International interpretation principles Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161; 158 ALR 1 at [70] per McHugh J (the Hague Rules); Povey v  Qantas Airways Ltd [2005] HCA  33; (2005) 223 442

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CLR 189; 216 ALR 427 at [24]–[25] per Gleeson CJ, Gummow, Hayne and Heydon JJ (the Warsaw Convention); Secretary, Department of Families, Housing, Community and Indigenous Affairs v Mahrous [2013] FCAFC 75; (2013) 213 FCR 532 at [22], [52] (scheduled international social security agreements). 2.41 General words to be given their primary and natural significance Maunsell v  Olins [1975] AC 373 at 382; [1975] 1 All ER 16 at 18 per Lord Reid; Ireland v  Johnson, CEO Department of Corrective Services [2009] WASCA 162; (2009) 189 IR 135 at [31]; Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271; 252 FLR 50 at [42]. 2.43  All words have meaning and effect (1)  General principle Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 574; 12 ALR 333 at 337 per Gibbs J; Leon Fink Holdings Pty Ltd v  Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 679; 24 ALR 513 at 518–19 per Mason J; Maddalozzo v Maddick (1992) 84 NTR 27 at 34; 108 FLR 159 at 166; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 12–13; 110 ALR 97 at 102 per Mason CJ; Western Australian Newspapers Pty Ltd v Warren (1994) 56 IR 340 at 356–7; KP Welding Construction Pty Ltd v Herbert (1995) 102 NTR 20 at 39; Trenerry v Bradley (1997) 115 NTR 1 at 16–17; Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 306 and 317; 145 ALR 621 at 626 and 636; Shell Co of Australia Ltd v City of Melbourne [1997] 2 VR 615 at 643; (1995) 88 LGERA 326 at 355. For more recent express reference to the passage affirming the principle in Commonwealth v  Baume that is referred to in the Project Blue Sky case see Nikolaidis v Legal Services Commissioners [2007] NSWCA 130 at [172]; Maroondah City Council v  Fletcher [2009] VSCA 250; (2009) 29 VR 160; 169 LGERA 407 at [36]; Commissioner of State Revenue (Vic) v Landrow Properties Pty Ltd [2010] VSCA 197; (2010) 79 ATR 800 at [51]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR  252; 267 ALR  204 at [39]; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; (2012) 37 VR 232 at [27]; Hughes v Hughes [2013] FamCAFC 146 at [34]. (2)  Where added by amendment Transport Accident Commission v Treloar [1992] 1 VR 447 at 462; Australian Postal Commission v Melbourne City Council [2005] VSCA 295; (2005) 14 VR 678; 143 LGERA 218 at [20]; Tabcorp Holdings Ltd v Treasurer of Victoria [2013] VSC 324 at [25]; Monadelphous Engineering Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 at [12]. (3)  Difficulty of ascertainment no exception Dunlop v Milton Timber and Hardware Co Ltd [1960] NZLR 1096; R v Smith [1974] 2 NSWLR 586; A Legal Practitioner v Law Society of Tasmania [2005] TASSC 28; (2005) 443

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13 Tas R 448 at [16]; Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 398; 349 ALR 398 per Gordon J dissenting at [449]; Edelman J dissenting at [507]. (4)  Where meaning impossible to discern Secretary, Department of Social Security v Rurak (1990) 26 FCR 1 at 12; 99 ALR 17 at 28; Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; (2004) 60 NSWLR 558; 208 ALR 328 at [74]–[75]; T v T [2008] FamCAFC 4; (2008) 216 FLR 365 at [82]; Ajinomoto Co Inc v Nutrasweet Australia Pty Ltd [2008] FCAFC 34; (2008) 166 FCR 530; 247 ALR 552 at [114]; Hughes v Hughes [2013] FamCAFC 146 at [35]; Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 363 ALR 343 at [86]. (5)  Conflicting provisions Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 (2006); 149 FCR 540; 88 ALD 642 at [25]; Ajinomoto Co Inc v Nutrasweet Australia Pty Ltd [2008] FCAFC 34; (2008) 166 FCR 530; 247 ALR 552 at [115]; Yesodei Hatorah College Inc v Trustees of Elwood Talmud Torah Congregation [2011] VSC 622; (2011) 38 VR 394 at [56]; Fair Work Ombudsman v Pocomwell Ltd (No 2) [2013] FCA 1139; (2013) 218 FCR 94 at [73]. 2.45  Correction of drafting errors Riley v Parole Board of New South Wales (1985) 3 NSWLR 606; Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213 at 216; Peninsula Group Pty Ltd v RegistrarGeneral of the Northern Territory (1996) 136 FLR 8 at 14; Envy Trading v Queensland [1998] 1 Qd R 413 at 417; Re  Lawrie and Secretary, Department of Family and Community Services (1998) 54 ALD 483; New South Wales Crime Commission v Kelly [2003] NSWCA 245; (2003) 58 NSWLR 71 at [22]–[23]; Creer v Estate of Peters [2007] NSWSC 1291 at [5]; Dome Resources NL v  Silver [2008] NSWCA  322; (2008) 72 NSWLR 693 at [32]; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642; 111 ALD 30 at [9]–[12] per French CJ and Bell J; Capital Airport Group Pty Ltd v Director-General of Department of Planning [2010] NSWLEC 5; (2010) 171 LGERA 440 at [26]; Haureliuk v Furler [2012] ACTCA 11; (2012) 6 ACTLR 151; 259 FLR 28 at [24]; DFJ v Secretary to the Department of Justice [2012] VSCA 177; (2012) 36 VR 66 at [81]–[93]. 2.47  ‘And’/‘or’ modification Delaney v Celon (1980) 24 SASR 443 at 445; BP Australia Ltd v South Australia (1982) 31 SASR 178 at 189–91; R v O’Neill (1985) 58 ACTR 26 at 31; Abletone Pty Ltd v Bonview (Tas) Pty Ltd [2008] TASSC 59 at [16]–[26]. 2.49  ‘And’ to be read as ‘or’ Gillespie v Ford (1978) 19 ALR 102 at 107–8; 46 FLR 297 at 301–2; Secretary, Department of Employment, Education, Training and Youth Affairs v  Gray [1999] FCA 1150; (1999) 91 FCR 254; 57 ALD 67 at [23]–[31]; Geaghan v D’Aubert 444

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[2002] NSWCA 260; (2002) 36 MVR 542 at [19]–[38]; Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 at [17]. 2.50  ‘Or’ to be read as ‘and’ Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481–2; Ormerod v Blaslov (1989) 52 SASR 263 at 269–71; Marriage of O’Neill and Smith (1994) 17 Fam LR 386 at 388–9; 121 FLR 222 at 225; Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547; 123 ALR 202 at 207–8; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194–5; 153 ALR 463 at 469–70; Federal Commissioner of Taxation v Industrial Equity Ltd [2000] FCA 420; (2000) 98 FCR 573; 171 ALR 1 at [19]–[20]. 2.52  Implying words Deputy Commissioner of Taxation v  Ganke [1975] 1 NSWLR 252; (1975) 25 FLR 98; Re O’Reilly; Ex parte Australena Investments Pty Ltd (1984) 58 ALJR 36; 50 ALR 577; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 111 ALR 1; Chen v VWA [2001] VCAT 1695. 2.56  Cases following Taylor Di Paola v  Salta Constructions Pty Ltd [2015] VSCA 230 at [44]ff; Trevorrow v Council of City of Gold Coast [2017] QSC 12 at [67]–[68]; Department for Health and Ageing v Li [2018] SASCFC 52 at [96]; HFM043 v Republic of Nauru [2018] HCA 37; (2018) 359 ALR 176; Lordianto v  Commissioner of Australian Federal Police [2018] NSWCA 199 at [59]–[60]; Kiriwina Investment Company Pty Ltd v Green Lees Developments Pty Ltd [2018] NSWCA 210 at [48]; Commissioner of Australian Federal Police v Kalimuthu (No 2) [2018] WASCA 192 at [117]; Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 at [59]–[64]; Return to Work Corporation v Robinson [2018] SASCFC 32; (2018) 130 SASR 394 at [177]–[180]; EHT18 v Melbourne IVF [2018] FCA 1421 at [79]ff. 2.57  Reliance on Cooper Brookes Hospital Benefit Fund of Western Australia Inc v  Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 229–30; 111 ALR 1 at 6–7; Blunn v Cleaver (1993) 47 FCR 111 at 125; 119 ALR 65 at 79–80; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 635 per Brennan CJ, Dawson, Toohey and Gummow JJ; Richardson v Commissioner of Taxation (1997) 80 FCR 58 at 73–4; 150 ALR 167 at 182; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 394–7; 151 ALR 717 at 724–7; Lesi v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 285; (2003) 134 FCR 27; 203 ALR 420 at [47]; Leonard v Jessica Estates Pty Ltd [2008] NSWCA 121; (2008) 71 NSWLR 306; 159 LGERA 420 at [52]; Director of Public Prosecutions v George [2008] SASC 330; (2008) 102 SASR 246; 251 445

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ALR 658 at [193]; Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493; 300 ALR 430 at [48] per French CJ, Hayne, Crennan and Kiefel JJ. 2.58  Consequences of interpretation Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321 at 331–2; 2 ALR 281 at 289 per Barwick CJ; Bistricic v  Rokov [1976] HCA 54; (1976) 135 CLR 552 at 561; 11 ALR 129 at 136 per Jacobs J; Le Cornu Furniture and Carpet Centre Pty Ltd v Parsons (1990) 54 SASR 108 at 113; Occidental Life Insurance Co of Australia Ltd v Life Style Planners Pty Ltd (1992) 38 FCR 444 at 449–50; 111 ALR 261 at 266–7; Clarke v Bailey (1993) 30 NSWLR 556 at 566; Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 at [131]; Roy v Riverland and Fruit Cooperative Ltd (in liq) [2006] SASC 116 at [45]. 2.59  Unjust outcome Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1905) 3 CLR 444 at 456 per Barton J; Brunton v Acting Commissioner of Stamp Duties (NSW) [1913] AC 747; Metropolitan Coal Company of Sydney Ltd v Australian Coal and Shale Employees’ Federation [1917] HCA 64; (1917) 24 CLR 85 at 99 per Isaacs and Rich JJ; Turner v Ciappara [1969] VR 851; Dodd v Executive Air Services Pty Ltd [1975] VR 668; Graham v Niness (1985) 65 ALR 331; Regional Director of Education v International Grammar School Sydney Ltd (1986) 7 NSWLR 302 at 314; Hilton v Commissioner of Taxation (1992) 38 FCR 170; 110 ALR 167; Director of Public Prosecutions (Cth) v  Chan [2001] NSWCA 249; (2001) 52 NSWLR 56 at [13]; Christie v  Neaves [2001] FCA 1401; (2001) 113 FCR 279 at 290–1. 2.61  Taking advantage of own wrong Re a Debtor [1964] 1 WLR 807; Woodcock v South Western Electricity Board [1975] 1 WLR 983; [1975] 2 All ER 545; Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 at 554 per Deane and Gummow JJ; The Firm (Australia) Pty Ltd v  South Sydney Council [1999] NSWLEC 5; Thompson v  Groote Eylandt Mining Co Ltd [2003] NTCA 5; (2003) 173 FLR 72 at [31]–[37]; Deputy Commissioner of Taxation v Craddock [2006] VSC 408; (2006) 204 FLR 274 at [45]; Sorbello v Whan [2007] NSWSC 951 at [27]–[29]; Meridien AB Pty Ltd v Jackson [2013] QCA 121; [2014] 1 Qd R 142 at [20]–[32]; Commissioner of Australian Federal Police v Vo [2015] NSWSC 1523; (2015) 302 FLR 209 at [17]. 2.63  Discussion of plain English Plain English and the Law, Victorian Law Reform Commission, Melbourne, 1986; Clearer Commonwealth Law: Report of the Inquiry into Legislative Drafting by the Commonwealth, House of Representatives Standing Committee on Legal and Constitutional Affairs, AGPS, Canberra, 1993; The Justice Statement, AttorneyGeneral’s Department, Canberra, 1995, pp 120–6. See also N Horn, ‘Black Letters: Epistolary Rhetoric and Plain English Laws’ (2000) 9 Griffith LR 7; B Hunt, ‘Plain Language in Legislative Drafting: An Achievable Objective or a Laudable Ideal?’(2003) 24 Stat LR 112. 446

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CHAPTER 3

3.2  United States’ use of legislative history S Breyer, ‘On the Uses of Legislative History in Interpreting Statutes’ (1992) 65 S Cal L Rev 845; A Scalia, ‘Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws’ in The Tanner Lectures on Human Values, delivered at Princeton University in 1995, a version of which is in A Scalia and A Gutmann (eds), A Matter of Interpretation: Federal Courts and the Law, Princeton University Press, Princeton, NJ, 1998; C E Mammen, Using Legislative History in American Statutory Interpretation, Kluwer Law International, The Hague, 2002; A Vermeule, ‘Three Strategies of Interpretation’ (2005) 42 San Diego L Rev 607 (in which the uses of legislative history and other statutory provisions (including statutes in pari materia) are discussed with reference to the employment of ‘stopping rules’ in the interpretive process. Stopping rules are ‘rules for constraining further search among possible options’: Vermeule at 611.); D Law and D  Zaring, ‘Law Versus Ideology: The Supreme Court and the Use of Legislative History’ (2010) 51 William and Mary L Rev 1653 (an empirical examination of the United States Supreme Court’s use of legislative histories over more than 50 years). See also the articles mentioned at 2.2. For a comprehensive discussion of the use of legislative histories in Germany, England and the United States see  H Fleischer, ‘Comparative Approaches to the Use of Legislative History in Statutory Interpretation’ (2012) 60 Am J Comp L 401. 3.5  Application of common law principles (1)  Common law principles applied after s 15AB Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368 at 375–6; 56 ALR 265 at 271–2; Re Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications (1992) 29 ALD 395 at 408; Lemair (Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167 at 171; Australia & New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 at 291; 119 ALR 727 at 752. (2)  Writing on the ‘modern approach’ J  Allsop, ‘Statutes: Context, Meaning and Pre-enactment History’ (2005 Winter) Bar News: The Journal of the New South Wales  Bar Association 19; R  S  Geddes, ‘Purpose and Context in Statutory Interpretation’ (2005) 2 UNELJ 5 at 18–25; S Crennan, ‘Statutes and the Contemporary Search for Meaning’, Statute Law Society Paper, 1 February 2010; J J Spigelman, ‘The Intolerable Wrestle: Developments in Statutory Interpretation’ (2010) 84 ALJ 822; Jeffrey Barnes, ‘Contextualism: “The Modern Approach to Statutory Interpretation”’ (2018) 41 UNSWLJ 1083. 447

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3.8  Common law principles applied in South Australia Byrnes v R [1999] HCA 38; (1999) 199 CLR 1; 164 ALR 520 at [24] per Gaudron, McHugh, Gummow and Callinan JJ; MSP Nominees Pty Ltd v  Commissioner of Stamps (SA) [1999] HCA 51; (1999) 198 CLR 494; 166 ALR 149 at [24]–[25] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Nemer v Holloway [2003] SASC 372; (2003) 87 SASR 147 at [100]–[102]; R v B, MA [2007] SASC 384; (2007) 99 SASR 384 at [19], [51]–[53]; R v Clarke [2008] SASC 100; (2008) 100 SASR 363 at [18]–[19]; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; 252 ALR 471 at [50]–[53] per French CJ; Moloney v Motor Accident Commission [2013] SASCFC 58; (2013) 117 SASR 189 at [89]–[90]; Attorney-General (SA) v Bell [2013] SASCFC 88; (2013) 117 SASR 482; 303 ALR 644 at [35]. 3.10  Uses of extrinsic materials in the interpretive process Minister for Immigration and Citizenship v  SZJGV [2009] HCA 40; (2009) 238 CLR 642; 259 ALR 595 at [5], [9] per French CJ and Bell J; at [46]–[47] per Crennan and Kiefel JJ; HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553; 219 ALR 591 at [44]; R v  Bober (No 3) [2010] SASC 31; (2010) 107 SASR 165 at [19]–[20]; Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54; 271 ALR 1 at [52]–[56]; Western  Australia v AH [2010] WASCA 172; (2010) 41 WAR 431 at [179]–[182]; Axiak v Ingram [2012] NSWCA 311; (2012) 82 NSWLR 36 at [58]–[60]; R v El Rifai [2012] SASCFC 98 at [21]–[31]; CSL Australia Pty Ltd v  Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165; 311 ALR 547 at [2]ff; Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12; (2019) 366 ALR 247. 3.11  Constitutional convention debates and referendum materials R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254 at 262; 45 ALR 1 at 6 per Gibbs CJ, Mason and Wilson JJ; at 271–2; 14–15 per Murphy J; Cole v  Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385; 78 ALR 42 at 49; Port MacDonnell Professional Fishermen’s Association Inc v  South Australia [1989] HCA 49; (1989) 168 CLR 340 at 376–7; 88 ALR 12 at 31–2; New South Wales  v  Commonwealth [1990] HCA 2; (1990) 169 CLR 482; 90 ALR 355; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 401–3; 152 ALR 540 at 585–7 per Kirby J; Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322; 209 ALR 355 at [21–[22] per Gleeson CJ; Selim v Lele [2008] FCAFC 13; (2008) 167 FCR 61; 246 ALR 61 at [15]–[17]; Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1; 257 ALR 1 at [115]–[117] per French CJ; Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156; 288 ALR 410 at [346]–[347] per Heydon J. For commentary see  H Burmester, ‘The Convention Debates and the Interpretation of the Constitution’ in G Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide, Vol VI, Legal Books, Sydney, 1986, 448

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p 25; F McGrath, ‘Today’s High Court and the Convention Debates’ (2001) 13 Proceedings of The Samuel Griffith Society 1. 3.12  Teoh’s case Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 152 ALR 540 at [97] per Gummow and Hayne JJ; Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369; (2002) 127 FCR 24; 197 ALR 433 at [73]; Pilkington (Australia) Ltd v Minister for Justice and Customs [2002] FCAFC 423; (2002) 127 FCR 92; 71 ALD 301 at [25]; Plaintiff S157/2002 v  Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [29] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390; (2002) 125 FCR 249; 196 ALR 111 at [114]; Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 70; (2003) 197 ALR 241; 73 ALD 609 at [138]–[151]; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; 209 ALR 182 at [19] per Gleeson CJ; Zhang v Zemin [2010] NSWCA 255; (2010) 78 NSWLR 513; 243 FLR 299 at [125]–[129]; Yeo v Attorney-General (Qld) [2011] QCA 170; [2012] 1 Qd R 276 at [61]–[63]. 3.14  Constitution and international agreements Kartinyeri  v  Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 152 ALR 540 at  [97]–[101] per Gummow and Hayne JJ; at [166]–[167] per Kirby J; Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185; 195 ALR 321 at [254]–[257] per Kirby J; Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124 at [63]–[73] per McHugh J; cf Kirby J at [152]–[192]; Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162; 239 ALR 1 at [181] per Heydon J; cf Wurridjal v  Commonwealth [2009] HCA 2; (2009) 237 CLR 309; 252 ALR 232 at [267]–[273] per Kirby J. See also A Simpson and G Williams, ‘International Law and Constitutional Interpretation’ (2000) 11 Pub LR 205. 3.18  Provision must be ambiguous Repatriation Commission v  Vietnam Veterans’ Association of Australia New South Wales Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548; 171 ALR 523 at [116]; R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 at [55]–[57]; Parrett v Secretary, Department of Family and Community Services [2002] FCA 716; (2002) 124 FCR 299; 69 ALD 359 at [33]–[34]. See  also J J Spigelman, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 ALJ 769 at 771–2. 3.26  Statements of intention Monier Ltd v Szabo (1992) 28 NSWLR 53 at 61–2; Minister for Immigration and Ethnic Affairs v Tang Jia Xin [1994] HCA 31; (1994) 125 ALR 203 at 207; Vanit v R [1997] HCA 51; (1997) 190 CLR 378 at 400; 149 ALR 1 at 16–17 per Kirby J; Cairns Shelfco No 16 Pty Ltd v Queensland [1998] 1 Qd R 228 at 243; R v Young [1999] 449

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NSWCCA 166; (1999) 46 NSWLR 681 at [35]–[36]; Lacey v  Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; 275 ALR 646 at [61] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Gordon v  Commissioner of Police [2011] WASCA 168; (2011) 210 IR 448 at [20]; Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394; (2013) 86 NSWLR 142 at [69]. 3.27  Statements of existing law Transport Accident Commission v Clarke [1994] 1 VR 117 at 121–2; Irving v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 423 at 430; 38 ALD 529 at 535; Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1; 285 ALR 27 at [33]; R v Aubrey [2012] NSWCCA 254; (2012) 82 NSWLR 748 at [36]–[37]; CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165; 311 ALR 547 at [26]. 3.30  Value of extrinsic materials Oates v Consolidated Capital Services Ltd [2009] NSWCA 183; (2009) 76 NSWLR 69; 257 ALR 558 at [126]–[134] per Campbell JA, with whom Spigelman CJ agreed at [1]; but see the comment of Allsop P at [2]–[3]; Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at 147–9; Preston v Commissioner of Fair Trading [2011] NSWCA 40; (2011) 80 NSWLR 359 at [173]–[174]; Sydney Local Health Network v  QY and QZ [2011] NSWCA 412; (2011) 83 NSWLR 321 at [66]. See also Jeffrey Barnes, ‘Statements of Meaning in Parliamentary Debates: Revisiting Harrison v Melhem’ (2018) UNSWLJ Forum 1. 3.35  Use of dictionaries Llewellyn v Resource Management and Planning Appeal Tribunal [2007] TASSC 21 at [36]; National Mutual Life Association of Australasia Ltd v Commissioner of Taxation (Cth) [2008] FCA 1871; (2008) 69 ACSR 250 at [51]; Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236 at [66]. 3.36  Prior statutory provisions Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 578–83; 12 ALR 333 at 340–4 per Mason J; Public Trustee (WA) v State Energy Commission; Re McPherson (dec’d) [1979] HCA 4; (1979) 142 CLR 211; 23 ALR 129; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; Armstrong v Edgecock [1984] 2 NSWLR 536; R v Bradley (1986) 40 NTR 6 at 9–11; Director-General of Department of Corrective Services v  Mitchelson (1992) 26 NSWLR 648; 42 IR 38; Dimozantos v  R (No  2) [1993] HCA 52; (1993) 178 CLR 122; 116 ALR 411; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 366–8; 153 ALR 490 at 497–9 per Brennan CJ; Geaghan v D’Aubert [2002] NSWCA 260; (2002) 36 MVR 542 at [22]; McEvoy v Incat Tasmania Pty Ltd [2003] FCA 810; (2003) 130 FCR 503; 46 ACSR 392 at [8]–[16]; Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR  249; 215 ALR 253 at [12]–[21], [29]–[30]; 450

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HJA Holdings Pty Ltd and ACT Revenue Office [2011] ACAT 91 at [109]; Plaintiff M150 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 255 CLR 199; 309 ALR 225 at [76]ff. 3.37  Repealed provisions (1) London & West Australian Exploration Co Ltd v Ricci [1906] HCA 72; (1906) 4 CLR 617 at 636 per Barton J; Horne v Dalgety & Co Ltd (1913) 33 NZLR 405 at 414–16; Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 568–9; Roberts v Collector of Imposts [1919] VLR 638 at 642–3; Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 26 per Gibbs J; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513; 161 ALR 53 at [64]. (2) Pope v  W S Walker & Sons Pty Ltd [2006] VSCA  227; (2006) 14 VR 435 at [31]; Director of Public Prosecutions v MN [2009] VSCA 312; (2009) 26 VR 563 at [8]; Page v Manningham City Council [2010] VSC 267; (2010) 27 VR 643 at [37]; Patsalis v New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742 at [39]. 3.38  Subsequent amending Acts (1) Amalgamated Wireless (A’sia) Ltd v  Philpott [1961] HCA 31; (1961) 110 CLR 617 at 624; Timothy v Munro [1970] VR 528 at 531; Boehm v Director of Public Prosecutions [1990] VR 494; Wellbridge v Jackson [1990] VR 689 at 693. (2) Hayes v  Cable [1962] SR  (NSW) 1; Federal Commissioner of Taxation v  Bill Wissler (Agencies) Pty Ltd (1985) 16 ATR 952; 81 FLR 471; Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 at 67–8; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 254–5; 77 ALR 8 at 22 per Dawson J; Re Portland Smelter Services Pty Ltd and Comptroller-General of Customs (1990) 12 AAR 270 at 279; Rimmer v Nissen; Ex parte Nissen (1993) 113 ALR 502 at 507; Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 13–14; 115 ALR 14 at 25–6; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 529; 137 ALR 47 at 63; R v Turner (No 16) [2002] TASSC 17 at [53]; Commissioner of Taxation v Energy Resources of Australia Ltd [2003] FCAFC 314; (2003) 135 FCR 346; 204 ALR 487 at [19]–[20]; Worsley Timber 2000 Pty Ltd (in liq) v Commissioner of State Revenue [2007] WASC 155; (2007) 69 ATR 771 at [215]; Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215; (2009) 104 SASR 452 at [313]–[319]; Phoenix International Group Pty Ltd v Resources Combined No 2 Pty Ltd [2009] VSC 425 at [42]–[45]; Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106 at [212]–[217]. 3.39  Doubts about use of subsequent amending Acts (1) Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528 at 541–2; 148 ALR 447 at 459; Logan City Shopping Centre Pty Ltd v  Retail Shop Lease Tribunal [2006] QSC 172; [2007] 1 Qd R 246 at [20]; Flanagan v  Murdoch Community Services Inc [2010] FCA 647; (2010) 188 FCR 300; 115 ALD 697 at [35]; Reardon v Deputy Commissioner of Taxation [2013] QCA 46; (2013) 275 FLR 9 at [32]. 451

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(2) Federal Commissioner of Taxation v Verzyden (1988) 19 ATR 974 at 979 (aff ’d Commissioner of Taxation v Verzyden (1988) 20 FCR 137; 82 ALR 232); Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 at 27–8; 33 ALD 759 at 760; Hassan v Secretary, Department of Family and Community Services (1999) 95 FCR 26 at 33; 57 ALD 643 at 650; Ul-Haque v R [2006] NSWCCA 241 at [33]; Ajinomoto Co Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34; (2008) 166 FCR 530; 247 ALR 552 at [92]–[99]; Braysich v  R [2009] WASCA 178; (2009) 260 ALR 719 at 762; Doughty v  Martino Developments Pty Ltd [2010] VSCA 121; (2010) 27 VR 499 at [32]–[33]; Meridien AB Pty Ltd v Jackson [2013] QCA 121; [2014] 1 Qd R 142 at [45]–[50]; Trustees of Sydney Grammar School v Winch [2013] NSWCA 37; (2013) 83 NSWLR 80 at [157]–[158]. 3.42  Similar Acts Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 (aff ’d Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108); Strachan v Brown [2000] TASSC 142; (2000) 9 Tas R 291 at [19]–[20]; Central Northern Adelaide Health Service v Atkinson [2008] SASC 371; (2008) 103 SASR 89; 252 ALR 168 at [86]; MBD Management Pty Ltd v Butcher [2010] FCA 1071 at [53]. However, cf the reluctance of Edelman J in Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66; (2014) 313 ALR 184 at [118] to adopt this approach. 3.45  Legislative scheme Shaw v  Yarranova Pty Ltd [2006] VSCA 291; (2006) 15 VR 289 at [75]–[76]; Whiley Investments (Qld) Pty Ltd v Pet’s Paradise Franchising (Qld) Pty Ltd [2009] VSC 144 at [15]; Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 29 VR 160 at [77]; Trajkowski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 at [50]; R v Tennant (No 2) [2010] SASCFC 26 at [16]; Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 at [114]; Santos v Western Australia [2011] WASCA 216; Donoghue v Director of Public Prosecutions (WA) [2011] WASCA 239; (2011) 215 A Crim R 1; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425; Russell v  Stephen [2013] WASCA 284; (2013) 237 A Crim R 569. 3.48  Reference to delegated legislation to interpret Act Leue v  Reynolds (1986) 4 NSWLR 590 at 596; Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 577–8; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 244; 77 ALR 8 at 14 per Mason CJ and Gaudron J; Dowling v Commissioner of Water Resources (1991) 74 LGRA 420 at 425; Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai (1994) 51 FCR 416 at 423; 122 ALR 577 at 583–4; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 at [6] and [95]; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101; 249 ALR 44 at [19]; De Gelder v Motor 452

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Accidents Authority of New South Wales  [2009] NSWSC 1173 at [35]–[36]; Waugh Hotel Management Pty Ltd v  Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112 at [93]; Bratic v  Motor Accidents Authority of New South Wales  [2010] NSWSC 1244 at [3]; Wallaby Grip Ltd v  QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 at [21]; Pipe Networks Pty Ltd v  Commonwealth Superannuation Corporation [2013] FCA 444; (2013) 212 FCR 542 at [92]; Marrone v  Employers Mutual Ltd (as an Agent for Workcover Corporation of South Australia) [2013] SASCFC 67; (2013) 116 SASR 501 at [67]–[70]; Moran v Motor Accidents Authority of New South Wales [2013] NSWSC 1135; (2013) 64 MVR 380 at [32]; H Lundbeck A/S v Commissioner of Patents [2017] FCA 56; (2017) 249 FCR 41; 154 ALD 471 at [87]. For UK authority to like effect see Hanlon v Law Society [1981] AC 124; Deposit Protection Board v Barclays Bank plc [1994] 2 AC 367. 3.49  Exceptions to general rule Thorn EMI Pty Ltd v  Federal Commissioner of Taxation (1987) 13 FCR 491 at 496–8; 71 ALR 728 at 733–5; Holzberger v  Secretary, Department of Health and Ageing [2007] FCAFC 68; (2007) 158 FCR 586 at [23]–[25]; Police v  Stevenson [2008] SASC 143; (2008) 192 A Crim R 1 at [44]; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101; 249 ALR 44 at [19]; Maroondah City Council v Fletcher [2009] VSCA 250; (2009) 169 LGERA 407 at [85]; Shire of York v Rosmill Pty Ltd [2010] WASC 189 at [42]; R v Tannous [2012] NSWCCA 243; (2012) 227 A Crim R 251 at [22]; Pipe Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444; (2012) 212 FCR 542 at [94]; Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394; (2013) 86 NSWLR 142 at [70]. 3.52  Re-enactment after judicial decision Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256; (2003) 135 FCR 206; 203 ALR 51 at [171]; Shephard v Chiquita Brands South Pacific Pty Ltd [2004] FCAFC 76 at [19]–[20]; Wilson v McDonald [2009] WASCA 39; (2009) 253 ALR 560 at [23]; Vidler v Federal Commissioner of Taxation [2010] FCAFC 59; (2010) 183 FCR 440 at [29]; Baini v R [2012] HCA 59; (2012) 246 CLR 469; 293 ALR 472 at  [43] per Gageler J; Transport Accident Commission v Kymantas [2012] VSCA 135; (2012) 26 VR 193 at [30]; Tasmania v QRS [2013] TASSC 7; (2013) 22 Tas R 180 at [21]; McIntosh and Anderson [2013] FamCA 164; (2013) 49 FamLR 316 at [41]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 362 ALR 311 at [107], [127]. 3.57  Doubts cast on value of principle Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 329; 140 ALR 156 at 169 per Toohey, McHugh and Gummow JJ; Williams v Oataway [2005] VSCA 137; (2005) 11 VR 529 at 539–40; Re Her Honour Judge Schoombee; Ex parte Attorney-General for Western Australia [2011] WASCA 129; 453

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(2011) 58 MVR 315 at [54], [80], [85]–[96]; Minister for Immigration and Border Protection v Kumar [2017] HCA 11; (2017) 260 CLR 367; 343 ALR 33 at [77] per Nettle J (dissenting). 3.58  Continued application of re-enactment presumption Informax International Pty Ltd v Clarins Group Ltd [2012] FCAFC 165; (2012) 207 FCR 298; 294 ALR 691 at [174]; R v Aubrey [2012] NSWCCA 254; (2012) 82 NSWLR 748 at [48]–[50]; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489; 317 ALR 421 at [15]. 3.59 Application of re-enactment presumption to decisions in other jurisdictions National Phonograph Co of Australia Ltd v Menck [1908] HCA 96; (1908) 7 CLR 481 at 529 per O’Connor J; Townsville Harbour Board v  Scottish Shire Line Ltd [1914] HCA 33; (1914) 18 CLR 306; Pearce v  Kitchin (1931) 26 Tas LR 38; Re Application by Carl Zeiss Pty Ltd [1969] HCA 17; (1969) 122 CLR 1 at 5–6; Mitchell Sillar McPhee (A Firm) v First Industries Corporation [2006] WASCA 24; (2006) 32 WAR 1 at [17]. CHAPTER 4

4.2  Act read as whole Busby v Australian Telecommunications Commission (1988) 20 FCR 463 at 468; 83 ALR 67 at 71; Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; (2004) 60 NSWLR 558; 208 ALR 328 at [90]; Victorian Police Toll Enforcement v Taha [2013] VSCA 37; (2013) 49 VR 1 at [18]. 4.7  Words used consistently Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; 7 ALR 383 at 387 per Mason J; Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; (2005) 145 FCR 523; 223 ALR 1 at [14], [16]; Queensland v Forrest [2008] FCAFC 96; (2008) 168 FCR 532; 249 ALR 1445 at [41]; Parmar v Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186; 122 ALD 103 at [18]; Saad v Baron [2012] WASC 507 at [53]; Tasbulk Pty Ltd v Royal Wolf Trading Australia Pty Ltd [2012] TASSC 87; (2012) 22 Tas R 85 at [42]; Norrie v  NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [172]ff; Dionisatos v  Acrow Formwork and Scaffolding Pty Ltd [2015] NSWCA 281; (2015) 91 NSWLR 34 at [23]; WorkPac Pty Ltd v  Skene [2018] FCAFC 131; (2018) 362 ALR 311 at [106]. 4.9  Rebuttal of presumption Australian Telecommunications Commission v  Colpitts (1986) 12 FCR 395; 67 ALR 301; Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 26–8;

454

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79 ALR  1 at  6–7 per  Deane, Dawson and Gaudron JJ; Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 at [61]. 4.18  Act always speaking Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [148]; Hore v Albury Radio Taxis Co-op Society Ltd [2002] NSWSC 1130; (2002) 54 NSWLR 210; Quarmby v Keating [2008] TASSC 71; (2008) 18 Tas R 284 at [41]. 4.21  Legal technical words Davies and Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29 at 42 per Griffith CJ (‘domiciled’); Deputy Federal Commissioner of Land Tax v Hindmarsh [1912] HCA 27; (1912) 14 CLR 334 at 338 per Barton J (‘annuity’); Fisher v Bell [1961] 1 QB 394 (‘offer for sale’); Ashfield Municipal Council v Joyce [1978] AC 122 (PC) (‘charity’); Frendo v Secretary, Department of Social Security (1987) 77 ALR 682 (‘consideration’); R v Turner (No 4) [2001] TASSC 51; (2001) 10 Tas R 81 at [37] (‘fraud’); Transport Accident Commission v Sweedman [2004] VSCA 162; (2004) 10 VR 31; 210 ALR 140 (‘damages’); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249; 215 ALR 253 (‘pawned goods’); C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81; 327 ALR 195 at [34] (‘employee’). 4.44  Expressio unius est exclusio alterius Anthony Lagoon Station Pty Ltd v Aboriginal Land Commissioner (Maurice) (1987) 15 FCR 565; 74 ALR 77; Rana v Human Rights and Equal Opportunity Commission (1997) 74 FCR 451 at 455–6; 155 ALR 128 at  133; Bass v  Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 348–9; 161 ALR 399 at 408; O’Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 at [31]; R v Zuber [2010] ACTSC 107; (2010) 175 ACTR 1 at [78]; McGee v Chitty [2010] WASC 67 at [21]; Innes-Irons v  Forrest [2016] VSC 782 at [41]; Anderson v  Building Appeals Board [2017] VSC 415 at [43]–[47]. 4.47  Expressum facit cessare tacitum Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 678; 24 ALR 513 at 518 per Mason J; Downey v Trans Waste Pty Ltd [1991] HCA 11; (1991) 172 CLR 167 at 180–1; 99 ALR 402 at 412 per Dawson J; Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 23–4; 100 ALR 193 at 208–9 per McHugh J; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276; 131 ALR 353 at 359 per Gummow J; John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 at 434; 83 ALR 606 at 617; Human Rights and Equal Opportunity Commission v Secretary, Department of Immigration and Multicultural Affairs (1996) 67 FCR 83 at 95; 137 ALR 207 at 217; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [80]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144; 280 ALR 18. 455

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4.51  Generalia specialibus non derogant Smith v R [1994] HCA 60; (1994) 181 CLR 338 at 348; 125 ALR 385 at 391; Hoffman v  Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520 at  [11], [215]; Ombudsman v  Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 at [10]; Re Venturex Resources Ltd [2009] FCA 677; (2009) 177 FCR 391 at [19]; Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 255 CLR 199; 309 ALR 225 at [37]; Burridge v Chief Magistrate of Magistrates Court of Australian Capital Territory (No 2) [2018] ACTCA 43; (2018) 86 MVR 117 at [45]ff. 4.57 Deeming (1) City of Hobart v Chen [1966] Tas SR 271; Wainer v Rippon [1980] VR 129; (1979) 29 ALR 643; Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67; (2002) 116 FCR 348; 68 ALD 357 at [24]. (2) Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 at 655; University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447; 56 ALR 1; Re News Corporation Ltd (1987) 15 FCR 227; 70 ALR 419; Revenue and Customs Commissioners v DCC Holdings (UK) Ltd [2010] UKSC 58 at [38]; Baker v Markellos [2012] SASCFC 114; (2012) 114 SASR 379 at [66]–[69]; Plaintiff B9/2014 v Minister for Immigration and Border Protection [2014] FCAFC 178; (2014) 227 FCR 494 at [46]ff; Queensland v Congoo [2015] HCA 17; (2015) 256 CLR 239; 320 ALR 1 at [165]; Ellison v Sandini Pty Ltd [2018] FCAFC 44; (2018) 354 ALR 484 at [209]. (3) Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 32; R v Hughes [2000] HCA 22; (2000) 202 CLR 535; 171 ALR 155 at [24]; Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 256 ALR 32 at [28]–[29]; Matthews v Tap Inn Pty Ltd [2015] SADC 108 at [19]. 4.60  Long title Clunies-Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193 at 199; 55 ALR 609 at 610; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 530; 70 ALR 225 at 237; Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471 at 477; 112 ALR 1 at 5; Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555 at 563; 112 ALR 87 at 89; Fearnley v Finlay [2014] QCA 155; [2014] 2 Qd R 392 at [50]; Lynn v New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 at [55]. 4.64  Objects clause Federal Court: Tickner v Bropho (1993) 40 FCR 183; 114 ALR 409; Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565; 139 ALR 577; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212; 274 ALR 570 at [14]–[18]; CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165; 311 ALR 547. 456

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Other courts: Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188; (2007) 19 VR 1 at [5]; ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158 at  [255]; Hastings Point Progress Assoc Inc v  Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99 at [61]. 4.65  Part and division headings Charlesworth v M J Sterling Pty Ltd [1943] VLR 67; Dominish v Cavallaro [1980] WAR 205; Trenerry v Bradley (1997) 115 NTR 1; Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515; 199 ALR 1 at [137]; Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276 at [37]; Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251; 264 ALR 417 at [26]; Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54; 271 ALR 1 at [61]–[65]. 4.71  Marginal notes: original position Sanderson v Fotheringham (1885) 11 VLR 190; Re Baldwin (1891) 12 LR (NSW) 128; Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42 at 50 per Windeyer J; Greenway v Abishara [1964] VR 587. 4.73  Marginal notes: statutory intervention Re Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342 at [62]; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306; 203 ALR 320 at [45]; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; (2004) 204 ALR 722 at [98]; Director of Public Prosecutions (Cth) v Helou [2004] NSWSC 803; (2004) 185 FLR 378 at [10]–[12]; IMF (Australia) Ltd v Sons of Gwalia Ltd (admin appt’d) [2005] FCAFC 75; (2005) 143 FCR 274; 222 ALR 109 at [61]; Carey v Australian Securities and Investments Commission [2008] FCA 963; (2008) 169 FCR 311; 247 ALR 772 at [8]; Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 at [54]. 4.74  Notes generally Commissioner of Taxation v  Eskandari [2004] FCA 8; (2004) 134 FCR 569 at [39]; Westpac Banking Corporation v Australian Securities and Investments Commission [2009] FCA 1506; (2009) 181 FCR 379 at [24]; Construction, Forestry, Mining and Energy Union v  BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298; 320 ALR 61 at [118]; Director of the Fair Work Building Industry Inspectorate v  Adams [2015] FCA 828 at [31] (but note Director of the Fair Work Building Industry Inspectorate v  McCullough [2016] FCA 1291 at [125]–[126] in relation to the particular legislation under consideration in the last two cases); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514; 316 ALR 1 at [24].

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4.80 Tenses Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69; (1972) 127 CLR 617 at 661; Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 at [27]–[29]; OV v  Members of the Board of Wesley Mission Council [2010] NSWCA 155; (2010) 79 NSWLR 606; 270 ALR 542 at [35]–[36]; Re Culleton (No 2) [2017] HCA 4; (2017) 341 ALR 1 at [29]; Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 350 ALR 404 at [36]; BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; (2017) 252 FCR 97; 155 ALD 450. CHAPTER 5

5.4  Commentary on principle Alexis Henry-Comley, ‘The Principle of Legality: An Australian Common Law Bill of Rights?’ (2013) 15 The University of Notre Dame Australia Law Review 83. Dan Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Syd LR 413. Bruce Chen, ‘The Principle of Legality: Issues of Rationale and Application’ (2015) 41 Monash LR 329. Dan Meagher and Matthew Groves, ‘The Common Law Principle of Legality and Secondary Legislation’ (2016) 39 UNSWLJ 450. Francis Cardell-Oliver, ‘Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality’ (2017) 41 Melb Univ L Rev 30. Bruce Chen, ‘The French Court and the Principle of Legality’ (2018) UNSWLJ 40. Dan Meagher, ‘The “Modern Approach” to Statutory Interpretation and the Principle of Legality: An Issue of Coherence?’ (2018) 46 Fed L Rev 397. John Basten, ‘Legislative Intention’ (2019) 93 ALJ 367. 5.5  Displacement of assumptions Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414; 243 ALR 606 at [107]; Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576; 250 ALR 33 at [68]–[73]; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 52; 252 ALR 471 at [46]. 5.9  Rights falling within principle Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 at [30]; Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249; 196 ALR 111 at [110]–[112]; Minister for Immigration and Multicultural and Indigenous Affairs v  Al Masri [2003] FCAFC 70; (2003) 126 FCR 54; 197 ALR 241 at [82]–[87]; Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 at [217]; NSW Food Authority 458

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v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456; 253 ALR 133 at [97]–[101]. 5.13  Legislation presumed not to have extraterritorial effect Koop v  Bebb [1951] HCA 77; (1951) 84 CLR 629 at 640; Nominal Defendant v  Bagot’s Executor and Trustee Co Ltd [1971] SASR 346 at 364; R v  Rademeyer (1985) 1 NSWLR 285 at 290; 59 ALR 141 at 146; Langford v Commissioner of Corrective Services (1993) 31 NSWLR 662; Danae Investment Trust PLC v Macintosh Nominees Trust PLC (1993) 61 SASR 341. 5.18  Crown not bound Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407; 102 ALR 579, particularly at 446; 616ff; Hawthorn Pty Ltd v  State Bank of South Australia (1993) 40 FCR 137; 112 ALR 691; Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410; 146 ALR 495. 5.25  No alienation of property without compensation Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Goldfields NL (1935) 35 SR (NSW) 400; Johnston, Fear & Kingham v Commonwealth [1943] HCA 18; (1943) 67 CLR 314 at 329 per McTiernan J; Federal Commissioner of Taxation v Northumberland Development Co Pty Ltd (1995) 59 FCR 103 at 113; 138 ALR 89 at 99. 5.31  Conferral of power carries power of performance Australian Securities Commission v Bell (1991) 32 FCR 517 at 528; 104 ALR 125 at 137; Johns v Connor (1992) 35 FCR 1 at 10; 107 ALR 465 at 473; Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25 at 35; 94 LGERA 330 at 341–2; Australian Securities and Investments Commission v Banovec (No 2) [2007] NSWSC 961; (2007) 214 FLR 33 at [26]; Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108; 100 ALD 453 at [37]–[38]. 5.42  Crown no right of appeal Rohde v  Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119 at 128; 66 ALR 593 at 598; Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 25–6; 164 ALR 520 at 535; Bond v R [2000] HCA 13; (2000) 201 CLR 213; 169 ALR 607; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; 275 ALR 646. 5.44  Presumption against invasion of common law rights Harrison v  Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at  [220]–[221]; Daly v Thiering [2013] HCA 45; (2013) 249 CLR 381; 303 ALR 188 at [32]–[33]; Tuohey v Freemasons Hotel [2012] VSCA 80; (2012) 37 VR 180 at [29]–[30]; AttorneyGeneral (NT) v Chaffey [2007] HCA 34; (2007) 231 CLR 651; 237 ALR 373 at [27]. 459

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5.51  Investment of jurisdiction includes procedure Mere Ngareta v  Davy (1894) 13 NZLR 533; Builders Licensing Board v  Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616; 14 ALR 174; Barten v Williams (1978) 20 ACTR 10; Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145; 64 ALR 206; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72; 181 ALR 307; Construction, Forestry, Mining and Energy Union v  Clarke [2007] FCAFC 8; (2007) 156 FCR 291; 239 ALR 107; Crime and Misconduct Commission v Wilson [2012] QCA 314 at [24]. 5.52  Remedy for breach provided Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691 at 701; Grazier’s Association of New South Wales v Durkin [1930] HCA 22; (1930) 44 CLR 29; Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] HCA 20; (1994) 121 ALR 405; Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285; 152 ALR 624. 5.58  Cases after Momcilovic Slaveski v Smith [2012] VSCA 25; (2012) 24 VR 206; Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc [2012] VSCA 91; (2012) 38 VR 569; Victorian Police Toll Enforcement v Taha [2013] VSCA 37; (2013) 49 VR 1; Nigro v Secretary to Department of Justice [2013] VSCA 213; (2013) 304 ALR 535 at [80]–[88]; Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526; Director of Public Prosecutions (Vic) v Rayment [2018] VSC 663 at [102]. CHAPTER 6

6.3  Interpretation of definitions Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152 at [16]–[17]; Sydney Local Health Network v QY and QZ [2011] NSWCA 412; (2011) 83 NSWLR 321 at [49]; Privacy Commissioner v Telstra Corp Ltd [2017] FCAFC 4; (2017) 249 FCR 24; 347 ALR 1 at [58]; Vickers v  Queensland Building and Construction Commission [2019] QCA 66 at [22]–[24]; Goldcoast City Council v Sunland Group Ltd [2019] QCA 118 at [35]–[36]. 6.5  ‘Means’ and ‘includes’ Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353; (1976) 10 ALR 441 at 455; Douglas v Tickner (1994) 49 FCR 509 at 519; 34 ALD 192 at 203; Gardner v  R [2003] NSWCCA 199; (2003) 39 MVR 308; Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327; (2012) 293 ALR 571 at [106]; Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 at [79]; Transport Accident Commission v Hogan [2013] VSCA 335; (2013) 41 VR 112 at [47].

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6.7  ‘Test’ in Dilworth’s case Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) [1978] HCA 10; (1978) 138 CLR 210 at 216; 19 ALR 1 at 4; Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508; 24 ALR 658; MacFarlane v Burke; Ex parte Burke [1983] 2 Qd R 584 at 589; R v Novakovic [2007] VSCA 145; (2007) 17 VR 21 at [6]. 6.9  ‘Means and includes’ Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 at 329–30; 140 ALR 156 at 170; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at [284]–[295]; BHP Billiton Ore Pty Ltd v  National Competition Council [2008] HCA 45; (2008) 236 CLR 145; 249 ALR 418 at [32]; Shell Company of Australia Ltd v Commissioner of State Revenue [2011] VSC 147 at [23]; Transport Accident Commission v Hogan [2013] VSCA 335; (2013) 41 VR 112 at [47]. 6.13  Contrary intention Palos Verdes Estates Pty Ltd v  Carbon (1991) 72 LGRA 414 at 442; Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139 at 150–1; 154 ALR 550 at 561; Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548; 171 ALR 523 at [104]–[105]; RACQ Insurance Ltd v Wilkins [2009] QSC 365; [2010] 2 Qd R 552 at [18]. CHAPTER 7

7.20  Generalia specialibus non derogant Lukey v Edmunds [1916] HCA 25; (1916) 21 CLR 336; Bank Officials Association (SA Branch) v Savings Bank of South Australia [1923] HCA 25; (1923) 32 CLR 276 particularly per Knox CJ at 282 and Higgins J at 299; Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1 at 29; Vanit v R [1997] HCA 51; (1997) 190 CLR 378 at 385; 149 ALR 1 at 5. 7.24  Generalia specialibus rebuttable R v Industrial Appeals Court; Ex parte Metropolitan Fire Brigades Board [1959] VR 345; Ex parte Sutherland Shire Council; Re Cahill [1969] 2 NSWR 437 (where the Court of Appeal was divided as to the application of the maxim); Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1973] 1 NSWLR 229; Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas SR 460 (the general provisions of the Acts Interpretation Act are likely to prevail unless there is a clear intention for them to be displaced).

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7.31  Acts incorporating other statutory provisions Harty v Harcourt; Ex parte Harcourt [1936] St R Qd 1; Perpetual Trustee Co Ltd v Wittscheibe (1940) 40 SR (NSW) 501; Jones and Hannan v Commissioner of Taxes [1942] Tas SR 1; Clarke & Kann v Deputy Commissioner of Taxation (Qld) (1983) 15 ATR 42; McGillivray v Piper [2000] WASCA 245; (2000) 157 FLR 196; 182 ALR 282; Mine Subsidence Board v  Jemena Ltd [2013] NSWCA 465; (2013) 86 NSWLR 161 at [19]. CHAPTER 8

8.5  Reference to earlier authorities Maunsell v Olins [1975] AC 373; Inland Revenue Commissioners v Joiner [1975] 1 WLR 1701; R v Curran [1976] 1 WLR 87; Farrell v Alexander [1977] AC 59. 8.7  Codifying Acts commentary D Lloyd, ‘Codifying English Law’ (1949) Current Legal Problems 155; H R Hahlo, ‘Here Lies the Common Law: Rest in Peace’ (1967) 30 MLR 241; M R Topping and J P M Vandenlinden, ‘Ibi Renascit Jus Commune’ (1970) 33 MLR 170; S J Stoljar (ed), Problems of Codification, Bibliotech, Canberra, 1977; B Donald, ‘Codification in the Common Law System’ (1973) 47 ALJ 160. CHAPTER 9

9.3  Identification of beneficial provisions Accident Insurance Mutual Ltd v  Sullivan (1986) 7  NSWLR  65 at 68; Secretary, Department of Social Security v Knight (1996) 72 FCR 115 at 122; 44 ALD 283 at 289; Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85; 248 ALR 494 at [154]; AIT18 v Australian Information Commissioner [2018] FCAFC 192; (2018) 363 ALR 281 at [77]. 9.7  Excepting provisions Cole v Director-General Department of Youth and Community Services (1986) 7 NSWLR 541; Goundar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300; Richardson v ACT Health & Community Care Service [2000] FCA 654; (2000) 100 FCR 1; Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs [2000] FCA 1164; (2000) 101 FCR 11 at [29]; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580; 173 ALR 518 at [22]. 9.8  Act beneficial and penal Glover v  McDougall [1976] 2 NSWLR 359 at 365; Trade Practices Commission v  Gillette Company [1993] FCA 496; (1993) 45 FCR 466 at 475–6; 118 ALR 280 at 289–90; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 109–10; 149 ALR 623 at 640; Syndicate Club Pty Ltd v Queensland [2003] QSC 104; [2005] 1 Qd R 209 at [49]; Australian Competition and Consumer

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Commission v Wordplay Services Pty Ltd [2004] FCA 1138; (2004) 210 ALR 562 at [94] (aff ’d on appeal: [2005] FCAFC 70; (2005) 143 FCR 345; 219 ALR 363). 9.11  Approach to penal statutes Chandler and Co v  Collector of Customs [1907] HCA 81; (1907) 4 CLR 1719 per O’Connor J; Prior v Sherwood [1906] HCA 29; (1906) 3 CLR 1054 at 1072 per Barton J; Scott v  Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 144 per Barton J; Lyons v  Smart (No 1) [1908] HCA 34; (1908) 6 CLR 143 at 157 per Barton J; Richardson v  Austin [1911] HCA 28; (1911) 12 CLR 463; Sweet v Parsley [1970] AC 132 at 165 per Lord Diplock; Thompson v Mastertouch TV Services Pty Ltd (1977) 15 ALR 487; Saffron v Director of Public Prosecutions (Cth) (1989) 87 ALR 151 at 155 (where the position of third parties was relevant); Chew v R [1992] HCA 18; (1992) 173 CLR 626 at 632; 107 ALR 171 at 174; R v Lavender [2005] HCA 37; (2005) 222 CLR 67; 218 ALR 521 at [87]–[95]; Chief Environmental Regulator of the Environment Protection Authority v  Forestry Corp of New South Wales [2018] NSWLEC 10 at [47]–[54]. 9.17  Civil penalties (1) Comcare v  Commonwealth [2009] FCA 700; (2009) 257 ALR 462 at [69]–[71]; Comcare v  Subsee  Explorer Pty Ltd [2011] FCA 837; (2011) 210 IR 322 at [41]–[44]; Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; (2012) 207 FCR  178; 294 ALR 747 at [68]–[69] (where the issue of deterrence in determining an appropriate penalty is discussed); Comcare v  Commonwealth [2012] FCA 1419; (2012) 132 ALD 480 at [97]. (2) NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; 141 ALR 640; J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA  365; (2000) 172 ALR 532; Minister for Industry, Tourism and Resources v  Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993; Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [22]–[28]; Australian Competition and Consumer Commission v  Qantas Airways Ltd [2008] FCA 1976; (2008) 253 ALR 89 at [25]–[27]; Australian Competition and Consumer Commission v  PRK Corporation Pty Ltd [2009] FCA 715 at [20]–[27]; Australian Communications and Media Authority v  Radio 2UE Sydney Pty Ltd (No 2) [2009] FCA 754; (2009) 178 FCR 199; 258 ALR 254 at [48]–[54]; Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; (2011) 196 FCR 430; 284 ALR 734 at [98]–[103]; Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42; (2012) 288 ALR 702 at [48]–[86]. 9.19  Crown not liable to criminal penalty State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253 at 270; 140 ALR 129 at 135; Telstra Corporation Ltd v  Worthing [1999] HCA 12; (1999) 197 CLR 61; 161 ALR 489 at [22];

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Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309; 252 ALR 232 at [164]. 9.36  Length of concurrent sentences Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364; 103 ALR 307; Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 FLR 162; Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91; (2004) 138 FCR 450; 81 ALD 277; Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475; 81 ALD 588. 9.41  Forfeiture of goods Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118; 132 ALR 449; Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 at [73]; Director of Public Prosecutions v  Helou [2004] NSWSC 803; (2004) 185 FLR 378 at [9]; Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54; 271 ALR 1; Overend v Chief Commissioner of Police (Vic) [2014] VSC 424 at [42]; AD v Commissioner of Australian Federal Police [2018] NSWCA 89; (2018) 357 ALR 148. 9.44  Approach to taxing provisions: commentary R  Allardice, ‘The Swinging Pendulum: Judicial Trends in the Interpretation of Revenue Statutes’ (1996) 19 UNSWLJ 162; M Burton, ‘The Rhetoric of Tax Interpretation — Where Talking the Talk is not Walking the Walk’ (2006) Journal of Australasian Tax Teachers Association 27; J Tretola, ‘The Interpretation of Taxation Legislation by the Courts: A Reflection on the Views of Justice Graham Hill’ (2006) 16 Revenue LJ 73; Edmonds J, ‘Recourse to Foreign Authority in Deciding Australian Tax Cases’ (2007) 36 AT Rev 5; Lindgren J, ‘The Courts’ Role in Statutory Interpretation: The Relevance of Overseas Case Law to Australia’s GST’, speech delivered at the 2009 National GST Intensive Conference, Melbourne, 3–4 September 2009 (the last two cited by Gordon J in Secretary, Department of Transport (Vic) v  Commissioner of Taxation (Cth) [2009] FCA 1209; (2009) 261 ALR 39); M Gleeson, ‘Statutory Interpretation’, Justice Hill Memorial Lecture, 24th National Convention of Taxation Institute of Australia, 11 March 2009: see  ; Justice G T Pagone, ‘Deciding Tax Cases’, New Zealand Law Society Tax Conference, Auckland, 21 September 2017. 9.45  Application to taxing provisions Heward v R [1905] HCA 48; (1905) 3 CLR 117 at 127 per Barton J (this judgment was expressly followed by Griffith CJ in Webb v McCracken [1906] HCA 45; (1906) 3 CLR 1018 at 1022); Australian Mutual Provident Society v Commissioner of Taxes [1917] St R Qd 117 at 122; Commissioner of Taxes v Executors of the Estate of Rubin [1930] HCA 21; (1930) 44 CLR 132 at 148 per Rich J; John Danks & Son Pty Ltd v Collector of Imposts [1944] VLR 172 at 175; Re South Australian Unit 464

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Trusts Pty Ltd [1954] SASR 227 at 232; Crichton v Kiewa Co-operative Distribution Society Ltd [1957] VR 589 at 590. 9.49  GST legislation Reliance Carpet Co Pty Ltd v Commissioner of Taxation [2007] FCAFC 99; (2007) 160 FCR 433; 240 ALR 464, and, on appeal, Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22; (2008) 236 CLR 342; 246 ALR 448; Secretary, Department of Transport (Vic) v Commissioner of Taxation (Cth) [2009] FCA 1209; (2009) 261 ALR 39 at [42]; Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510; 270 ALR 253 at [24]; Commissioner of Taxation (Cth) v Multiflex Pty Ltd [2011] FCAFC 142; (2011) 197 FCR 580; 284 ALR 279 at [37]. 9.56  Exemption and exception provisions National Trustees Executors and Agency Co of Australasia Ltd v R (1893) 19 VLR 132 at 135 per A’Beckett J; Australian Forge and Engineering Co Ltd v Wollaston (1900) 26 VLR 414 at 416; Canwan Coals Pty Ltd v Federal Commissioner of Taxation [1974] 1 NSWLR 728 at 733; (1974) 4 ALR 223 at 227; Federal Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29; 77 ALR 543; Universal Press Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 332 at 337; Shell’s Self Service Pty Ltd v Deputy Commissioner of Taxation (1989) 98 ALR 165 at 178. CHAPTER 10

10.28  Rights of appeal Colonial Sugar Refining Co Ltd v Irving [1905] AC 369; R v McKeown [1940] St R Qd 202; Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161; O’Connor v Argus & Australasian Ltd [1957] VR 374; Howard v Bondfield (1974) 3 ACTR 62. 10.35  Procedural statutes Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322; Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553; Commonwealth v Dixon (1988) 13 NSWLR 601; 82 ALR 359; McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; 104 ALR 257 and John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503; 172 ALR 625 (both relating to private international law principles); James v  Keogh [2008] SASC 273; (2008) 102 SASR  51; Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276. CHAPTER 11

11.12  Factors affecting decision whether obligatory or discretionary Commissioner for Superannuation v Hastings (1986) 70 ALR 625 at 631; Grech v Heffey (1991) 34 FCR 93 at 98; 106 ALR 570 at 575; Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33 at 40–1; 156 ALR 110 at 116.

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11.20 Provisions may produce invalidity in one respect but not in another Re Nicklin Election Petition; Turner v  King [1993] 1 Qd R 513; Wu v  Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 277–8; 135 ALR 583 at 615; Assaf v Australian Electoral Commission [2004] FCAFC 265; (2004) 139 FCR 370; 212 ALR 337. 11.22 Private actions more likely to produce invalidity than public actions SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229; B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120; Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407; 58 ALD 91. 11.23  Ability to control procedure Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; 84 ALR 199; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; 98 ALR 68; Accident Compensation Commission v  Murphy [1988] VR 444; Ryan v  The Grange at Wodonga Pty Ltd [2015] VSCA 17 at [34]; Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 at [76]. 11.25  Enactments relating to court procedure R v Urbanowski [1976] 1 WLR 455; R v Croydon Justices; Ex parte Lefore Holdings Ltd [1980] 1 WLR 1465; Woods v Bate (1987) 7 NSWLR 560 at 567; Re Lawrence; Ex parte Westpork Pty Ltd [2012] WASC 487; (2012) 226 A Crim R 393 at [30]. 11.26  Time limits Jones v  Territory Insurance Office (1988) 55 NTR 17; Re Roberts and Repatriation Commission (1992) 27 ALD 408; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 391; 151 ALR 717 at 721; WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 79 ALJR 94; 210 ALR 190 at [32]; SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260; 239 ALR 734 at [67]; Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318. 11.35 Summary Sheppard J in Van Reesema v Official Receiver in Bankruptcy (1983) 69 FLR 424 at 435; 50 ALR 253 at 266; the Full Court of the Federal Court in Yapeen Holdings Pty Ltd v  Calardu Pty Ltd (1992) 36 FCR 478 at 494; 108 ALR 107 at 123; R D Nicholson J in Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 278; 135 ALR 583 at 615; Merkel J in B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 at 128. See also Accident Compensation Commission v Murphy [1988] VR 444 at 449; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24; 98 ALR 68 at 91 per Pincus J. 466

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CHAPTER 12

12.7  ‘In respect of ’, etc Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276 at 289; 29 ALR 597 at 610; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 490–1; 77 ALR 103 at 106–7; Australian Securities Commission v  Bank Leumi Le-Israel (Switzerland) (1996) 69 FCR 531 at 547; 139 ALR 527 at 542; Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; (1999) 202 CLR 133; Energy Ltd v Commissioner of Taxation [2009] FCAFC 12; Taylor v Owners — Strata Plan No 11564 [2013] NSWCA 55; (2013) 83 NSWLR 1 at [16]. 12.10  ‘Connected with’ Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 295; 131 ALR 319 at 328; R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [28]; Samsonidis v Commissioner of Australian Federal Police (No 2) [2007] FCAFC 159; (2007) 163 FCR 111; 243 ALR 709 at [14]; R v Novakovic [2007] VSCA 145; (2007) 17 VR 21 at [59]; Kanak v Minister for Land and Water Conservation [2000] FCA 1105 (2000) 106 FCR 31; 180 ALR 489 at [44]. 12.13 ‘By’/’under’ R v Clyne; Ex parte Harrap [1941] VLR 200 at 201; Energy Resources of Australia Ltd v Federal Commissioner of Taxation [2003] FCA 26; (2003) 52 ATR 120; 2003 ATC 4024; Mohamed v Minister for Immigration and Citizenship [2007] FCA 1004; (2007) 161 FCR 408; 96 ALD 114 at [13].

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Index References are to paragraphs

A Absolute offences .... 9.28 Absurdities golden rule, and .... 2.8 Act of legislating definition .... 1.2 Acts see also Words always speaking …. 4.14–4.18 amending see Amendments beneficial Acts .... 1.38, 9.1 chapters, parts and divisions .... 1.45 classification of Acts .... 1.28 general, local or personal .... 1.30 object of Acts .... 1.31–1.40 private Acts .... 1.29, 1.30 public Acts .... 1.29, 1.30 scope .... 1.28 codifying see Codifying Acts commencement .... 1.2, 6.1 consolidating see Consolidating Acts declaratory Acts .... 1.39 retrospective operation .... 10.13 enabling Acts .... 1.40 examples in Acts .... 1.49, 4.75 fiscal or taxing Acts see Taxing or fiscal provisions general Acts .... 1.30 incorporated see Incorporation of provisions local Acts .... 1.30 object of Acts .... 1.31–1.40 codifying Acts .... 1.35 consolidating Acts .... 1.32 declaratory Acts .... 1.39 enabling Acts .... 1.40 fiscal or revenue or taxing Acts .... 1.36

interpretation aid as .... 4.63 penal Acts .... 1.37 remedial or beneficial Acts .... 1.38 reprinted or incorporated Acts .... 1.33 statute law revision Acts .... 1.34 overview .... 1.2 parts of Acts see Parts of Acts penal Acts see Penal provisions personal Acts .... 1.30 private Acts .... 1.29, 1.30 public Acts .... 1.29, 1.30 remedial Acts see Remedial or beneficial provisions reprinted Acts .... 1.33, 8.6 retrospectivity see Retrospective operation revenue Acts .... 1.36 sections see Sections similar see Similar Acts statute law revision Acts .... 1.34, 7.29 taxing or fiscal Acts see Taxing or fiscal provisions Acts Interpretation Acts see Interpretation Acts Ambiguities penal provisions .... 9.11 purposive approach, and .... 2.9, 2.17 Amendments change in language .... 4.6, 4.8 consolidating Acts .... 8.2 continuation in force .... 7.27 definitions .... 6.15 retrospective operation .... 10.17 drafting style .... 1.33, 1.50 effect of amendment .... 7.26, 7.27 effect of classification, as .... 7.2, 7.3 469

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Amendments – cont’d extrinsic materials, as .... 3.38 doubts .... 3.39 limits on use .... 3.40 parliament’s view of meaning .... 3.41 Imperial Acts .... 7.30 incorporation .... 1.33 ministerial announcement of intention .... 1.7 overview .... 7.1, 7.2, 7.25–7.27 repeals, distinction .... 7.1, 7.3, 7.25, 7.26 retrospective operation .... 10.15 “after the commencement of this section’’ .... 10.16 definitions .... 10.17 statute law revision Acts .... 1.34, 7.29 textual amendment style .... 1.33, 1.50 ‘this Act’, reference to .... 7.28 ‘And’ ‘and’ to be read as ‘or’ .... 2.49 disjunctive effect .... 2.48 erroneous use .... 2.47 hendiadys .... 4.56 implied conjunction .... 12.2 ‘or’ to be read as ‘and’ .... 2.50 overview .... 2.46, 12.24 printing or drafting errors .... 2.46 Appeals cases affecting rights .... 10.28 Crown’s right of appeal .... 5.42, 9.19 current meaning of words .... 4.16 Assumptions see Legal presumptions; Presumptions

B Beneficial Acts see Remedial or beneficial provisions Bill of Rights see also Human rights Australian position .... 5.1, 5.55 common law .... 5.2 legal presumptions, as .... 5.2 overview .... 5.1 Bills see also Drafting legislative process .... 1.2 parliamentary debates .... 3.1 limitations on uses .... 3.29 second reading speeches .... 3.26

C Cause of action .... 10.34 revival .... 10.36 Civil actions penal provisions and .... 9.38 Civil penalties .... 9.17 Codifying Acts accessibility of law .... 8.13 ‘always speaking’ approach .... 8.12 ‘code’ .... 8.7 common law, and .... 8.7 developments since enactment .... 8.12 differing approaches to interpretation .... 8.9, 8.10 application .... 8.11 overview .... 1.35, 8.7 read by citizens .... 8.13 reference to prior law .... 8.8 technical words .... 8.9, 8.10 Commencement retrospective operation, distinction .... 10.2 Commission reports and committee reports .... 3.3, 3.4 Common law Bill of Rights .... 5.2 codification, and .... 8.7 constructional choice .... 2.13 contemporary approach .... 2.1 contextual interpretation see Contextual interpretation golden rule .... 2.8, 2.45, 2.46 legal presumptions .... 5.34, 5.35 application of presumption .... 5.37 Crown’s right of appeal .... 5.42 equitable principles, and .... 5.36 exposure to penalty .... 5.40 invasion of rights .... 5.43, 5.44, 5.45 legal professional privilege .... 5.41 prosecution proving guilt .... 5.39 protection of the individual .... 5.34 self-incrimination .... 5.37, 5.38, 5.39, 5.40, 5.41 statements of presumption .... 5.35 legislative innovation, and .... 1.25 literal approach .... 2.5–2.7, 2.10, 2.40 definition .... 2.6 golden rule .... 2.8 470

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limitations .... 2.8 purposive approach, and .... 2.5, 2.9, 2.10 statutory approach, and .... 2.18, 2.19, 2.40 taxing provisions .... 2.14, 9.42, 9.50, 9.51 mischief rule .... 2.9, 2.12, 2.18, 2.19 modern approach .... 2.1, 2.11 purposive approach see Purposive approach self-incrimination .... 5.37 abrogation of privilege .... 5.37, 5.41 exposure to penalty, and .... 5.40 prosecution proving guilt .... 5.39 scope of presumption .... 5.38 statutory recognition .... 5.38 Common law principles see also Legal presumptions advantage of own wrong .... 2.61 ‘and’ .... 2.46 disjunctive effect .... 2.48 consequences of an interpretation .... 2.57–2.59 alternative constructions .... 2.57, 2.60 limits of argument .... 2.60 purposive approach, as .... 2.58 drafting and printing errors .... 2.45 ‘and’ and ‘or’ .... 2.46 drafting oversights .... 2.53 ensuring validity .... 2.62 erroneous use of words .... 2.47 extrinsic materials .... 3.1, 3.15, 3.19, 3.26 ambiguity .... 3.18 Constitutional Convention debates .... 3.11 context .... 3.9, 3.10 international agreements .... 3.12–3.14, 3.22 interpretive process, use in .... 3.9, 3.10 mischief discovery .... 3.4, 3.5, 3.8, 3.9 parliamentary and executive materials .... 3.3–3.8, 3.15 referendum materials .... 3.11 statutory purpose .... 3.9, 3.10 textualism .... 3.6, 3.7 general words .... 2.41

legal meaning .... 2.42 primary and natural significance .... 2.41 implying words .... 2.52, 2.53 clear necessity test .... 2.52, 2.53 drafting oversights .... 2.53 preconditions .... 2.53 purpose of legislation .... 2.53 ‘reading down’ words .... 2.54 strained construction .... 2.53 Taylor’s case …. 2.54 text based implications .... 2.55 limitation words .... 2.44 meaning and effect to all words .... 2.43 amendments .... 2.43 ‘or’ .... 2.46 conjunctive effect .... 2.48 statutory affirmation of approach .... 2.51 overview .... 2.40 South Australia, application in …. 3.8 status of principles .... 2.40 ut res magis valeat quam pereat .... 2.62 Composite phrases .... 4.13 Conjunction implied .... 12.2 Consolidating Acts amendments .... 8.2 assumption not to alter law .... 8.2 date of effect .... 8.3 incorporated Acts, distinction .... 1.33 overview .... 1.32, 8.1 re-enactment presumption .... 3.54 reference to earlier Acts .... 8.4, 8.5 Constitution acquisition of property on just terms .... 5.25, 10.10 inconsistent state laws .... 7.13, 7.19 international agreements, and .... 3.14 legal presumptions .... 5.11 retrospective operation .... 10.9, 10.10 Constitutional Conventions use of debates .... 3.11 Contextual interpretation Act to be read as a whole .... 4.2, 4.33 division of Act into Parts .... 4.4 expressions within sections .... 4.3 scope of sections .... 4.3

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Contextual interpretation – cont’d consistent use of words .... 4.6, 4.7, 4.8 definitions .... 6.13 mischief rule, and .... 2.12 noscitur a sociis .... 4.33 overview .... 1.5, 2.1, 2.11, 2.12, 4.2 Cooperative federalism schemes .... 3.47 Corporations penal statutes .... 9.21 Courts see also Jurisdiction; Previous interpretations approaches to interpretation .... 1.8, 1.27 constitutional function .... 1.7 duties regarding interpretation .... 1.6, 1.7 counsel’s argument .... 1.8 legislative innovation, and .... 1.25 obligatory and discretionary provisions .... 11.6 exercise of jurisdiction .... 11.9 general powers .... 11.10 non-compliance with procedure .... 11.25 relief powers .... 11.11 overview .... 1.3 procedural amendments .... 10.23 state and territory courts .... 1.16, 1.17 Commonwealth legislation .... 1.16, 1.17 uniform legislation .... 1.18–1.22 Crown appeal, right of .... 5.42, 9.19 bound by statute .... 5.9, 5.17, 9.19 application of presumption .... 5.17–5.18 reformulation of presumption .... 5.20 statutory statement .... 5.19 penal sanctions against .... 5.22, 5.60, 9.19 prerogative powers .... 5.21, 5.60 property rights .... 5.21, 5.60 Customary usage of words .... 4.28

D De minimis approach .... 4.31, 11.36 Declaratory Acts overview .... 1.39 retrospective operation .... 10.13

Deeming extension of meanings .... 4.58 fictional sense .... 4.57 overview .... 4.57 use of ordinary meaning .... 4.58 Definitions see also Maxims; Words act of legislating .... 1.2 amendment .... 6.15 retrospective operation .... 10.17 contrary intention .... 6.2, 6.12 determining .... 6.13 ‘deemed’, use of word .... 4.58 derivatives of .... 6.11 displacement of .... 6.12, 6.13 drafting contrary intention .... 6.12 ‘means’ and ‘includes’ .... 6.6 substantive material .... 6.14 function .... 6.3 general issues .... 6.4 incorporated Acts .... 7.38 incorporation by reference .... 6.4 interpretation .... 6.3 general issues .... 6.4 Interpretation Acts .... 6.1 legislation .... 1.2 literal approach .... 2.6 ‘means and includes’ .... 6.9 use of composite phrase .... 6.9 ‘means’ and ‘includes’ .... 6.5 Dilworth’s case .... 6.7 drafting problems .... 6.6 guides to effect .... 6.8 ordinary meaning, and .... 6.4 other definitional forms .... 6.10 regulations, failure to make .... 4.12 retrospective operation .... 10.17 substantive provisions, as .... 6.4, 6.14 Delegated legislation application of Interpretation Acts .... 3.15, 3.16 extrinsic materials, as .... 3.48 application of Interpretation Acts .... 3.15, 3.16 exceptions to general rule .... 3.49 regulations treated as if enacted in Act .... 3.50 failure to make .... 4.12

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overview .... 1.2 parliamentary committees .... 5.1 purpose or object approach .... 2.16 regulations treated as if enacted in Act .... 3.50 repeal, implied .... 7.18 retrospective operation .... 10.11 titles of legislation .... 1.2 treated as if enacted in Act .... 3.50 Dictionaries choice .... 3.34 definitions, and .... 6.4 inclusion in legislation .... 6.1 use in interpretation .... 3.33, 4.1 limitations .... 3.35 Discretionary provisions see Obligatory and discretionary provisions Divisions see Parts of Acts Documents legal documents drafting .... 1.5 interpretation .... 1.5, 2.2 meaning discovery .... 2.2 uncertainties of language, and .... 1.4, 2.2 Double tax agreements .... 2.37–2.38 Drafting approaches to drafting .... 1.4 communication difficulties .... 1.4 complexity of task .... 1.4–1.6, 2.25 content of legislation .... 1.4 contrary intention .... 6.12 definitions contrary intention .... 6.12 ‘means’ and ‘includes’ .... 6.6 substantive material .... 6.14 difficulties for drafters .... 1.4 errors in legislation .... 2.45, 2.53 ‘and’ and ‘or’ .... 2.46 exception clauses .... 4.70 ‘fuzzy law’ approach .... 1.4 implying words .... 2.52, 2.53 intended effect .... 1.4, 2.53 Interpretation Acts, and .... 6.1 legal documents .... 1.5 notes .... 4.74 overview .... 1.4 plain English drafting .... 2.63

provisos .... 4.69, 4.70 purpose or object approach, and .... 2.25 referential style .... 1.50 style .... 1.33, 1.50 ‘subject to’ .... 4.53, 12.4 textual amendment style .... 1.33, 1.50 Drafting conventions concluding words .... 12.3 ‘despite’ .... 12.4 implied conjunction .... 12.2 ‘notwithstanding’ .... 12.4 overview .... 12.1 ‘so far as’ .... 12.4 ‘subject to’ .... 12.4 Drafting expressions ‘all’ .... 12.23 ‘and’ .... 12.24 ‘as the case may be’ .... 12.25 ‘avoidance of doubt’ .... 12.26 ‘circumstances beyond control’ .... 12.27 connections or relationships .... 12.6 ‘based on’ .... 12.15 ‘because of ’ .... 12.11 ‘by’ .... 12.13, 12.14 ‘by reason of ’ .... 12.11 ‘connected with’ .... 12.10 ‘consequence of ’ .... 12.12 ‘have regard to’ .... 12.17 ‘in accordance with’ .... 12.14 ‘in connection with’ .... 12.10 ‘in relation to’ .... 12.7, 12.8, 12.9 ‘in respect of ’ .... 12.7, 12.8, 12.9 ‘result of ’ .... 12.16 ‘under’ .... 12.13 ‘contrary intention’ .... 12.28 ‘except’ .... 12.29 ‘exempt’ .... 12.29 ‘functions’ .... 12.31 ‘includes’ .... 6.5 ‘likely’ .... 12.30 ‘means’ .... 6.5 miscellaneous expressions .... 12.22–12.34 ‘or’ .... 12.24 overview .... 12.5 ‘powers’ .... 12.31 ‘reasonably practicable’ .... 12.32 ‘removal of doubt’ .... 12.26 ‘specify’ .... 12.33, 12.34 473

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Drafting expressions – cont’d temporal expressions .... 12.18 ‘as soon as possible’ .... 12.19 ‘as soon as practicable’ .... 12.20 ‘forthwith’ .... 12.21 ‘immediately’ .... 12.21 Duties see Obligatory and discretionary provisions

E Ejusdem generis absence of genus .... 4.37 application of rule .... 4.35, 4.37 general followed by specific words .... 4.40 intention not to limit general words .... 4.38, 4.39 limitations on use .... 4.41 ‘other’, use of word .... 4.36 overview .... 4.34 Enabling Acts .... 1.40 Equitable principles legal presumptions .... 5.36 Errors in legislation .... 2.45, 2.46 Evidence linguistic development of a word .... 4.12 Examples in Acts interpretation aid, as .... 4.75 status .... 1.49, 4.75 Exception clauses .... 4.70 Executive see also Crown documents .... 1.2 duty to follow court’s interpretation .... 1.26 Executive materials see Parliamentary and executive materials Expert evidence linguistic development of a word .... 4.12 Expiry of Acts .... 7.7 Explanatory memoranda .... 3.3, 3.5, 3.10, 3.28 Expressio unius est exclusio alterius application of approach .... 4.44, 4.45 cautions against use .... 4.45

expressum facit cessare tacitum, and .... 4.46 Interpretation Act, and .... 4.45 overview .... 4.43 provisos, and .... 4.69 rejection of application .... 4.45 Expressum facit cessare tacitum application of principle .... 4.46, 4.50 expressio unius, and .... 4.46 general approach .... 4.46 limitation of principles .... 4.48, 4.50 procedure designated .... 4.47 savings provisions .... 4.49 Extraterritoriality legal presumption .... 5.2, 5.12 comity of nations .... 5.12 examples of application .... 5.14 foreign law .... 5.15 legislating extraterritorially, distinction .... 5.12 rebuttal of presumption .... 5.14 statutory recognition .... 5.13 penal provisions .... 9.18 Extrinsic materials amending Acts .... 3.38, 3.39 limits on use .... 3.40 parliament’s view of meaning .... 3.41 common law principles .... 3.1, 3.15, 3.19, 3.26 ambiguity .... 3.18 Constitutional Convention debates .... 3.11 context .... 3.9, 3.10 international agreements .... 3.12–3.14, 3.22 interpretive process, use in .... 3.9, 3.10 mischief discovery .... 3.4, 3.5, 3.8, 3.9 parliamentary and executive materials .... 3.3–3.8, 3.15 referendum materials .... 3.11 statutory purpose .... 3.9, 3.10 textualism .... 3.6, 3.7 Constitutional Convention debates .... 3.11 cooperative federalism schemes .... 3.47 delegated legislation .... 3.48 application of Interpretation Acts .... 3.15, 3.16 474

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exceptions to general rule .... 3.49 regulations treated as if enacted in Act .... 3.50 dictionaries see Dictionaries extent of use .... 3.1 international agreements .... 3.12, 3.15 explanatory notes .... 3.22 Interpretation Acts .... 3.22 Teoh principle .... 3.12, 3.13 Interpretation Acts .... 3.15 application .... 3.15, 3.16 Australian Capital Territory .... 3.23 delegated legislation .... 3.15, 3.16 international agreements .... 3.22 judicial commentary .... 3.21 limitations on operation .... 3.18 limitations on uses .... 3.26–3.30 operation .... 3.17 ordinary meaning .... 3.17, 3.18 possible applications .... 3.32 state equivalents .... 3.16, 3.23–3.25 underlying purpose or object .... 3.18 Victoria .... 3.24–3.25 legal presumptions, displacement .... 5.7 legislative schemes .... 3.45–3.46 limitations on uses existence and relevance of material .... 3.29 existing law statements .... 3.27 legislation intention statements .... 3.26 parliamentary debates .... 3.30 reference not obligatory .... 3.28 value of material .... 3.30 overview .... 2.12, 3.1 parliamentary and executive materials .... 3.1, 3.3, 3.15, 3.26 ambiguity .... 3.18 distinctions in uses .... 3.4 earlier cases .... 3.4, 3.5 Federal Court’s approach .... 3.6 Interpretation Acts .... 3.15 judicial commentary .... 3.21 South Australia .... 3.8 textualism .... 3.6, 3.7 Victoria .... 3.25 parliament’s view of meaning .... 3.41 parts of Acts .... 4.59

practice directions .... 3.31 prior statutory provisions .... 3.36 public servant’s evidence on policy .... 3.30 re-enactment presumption .... 3.51–3.53 application .... 3.52, 3.58, 3.59 considered decisions of court .... 3.55 consolidating Acts .... 3.54 decisions in other jurisdictions .... 3.59 exceptions .... 3.53 superior courts .... 3.56 value of presumption .... 3.57 referendum materials .... 3.11 repealed provisions .... 3.37, 7.8 similar Acts .... 3.42 definitions in .... 3.44 in pari materia principle .... 3.42, 3.43 legislative schemes .... 3.45–3.46 South Australia .... 3.8 statutory purpose .... 3.9, 3.10, 3.19 uniform legislation .... 3.20, 3.47 Victorian provisions .... 3.24–3.25 oral evidence .... 3.25

F Fiscal Acts see Taxing or fiscal provisions Footnotes in Acts Act, not part of .... 1.49 reference to .... 4.74 Forfeiture of goods .... 5.27, 9.41 Forms .... 11.30, 12.14 ‘Fuzzy law’ drafting .... 1.4

G General Acts .... 1.30 Generalia specialibus non derogant application of rule .... 7.21, 7.22, 7.23 general approach .... 4.51 identification of dominant provision .... 4.53 limitations on principle .... 4.52 overview .... 4.51, 7.20, 7.21 rebuttal of approach .... 7.24 ‘subject to this Act’ .... 4.53 underlying rationale .... 7.21, 7.23 475

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Golden rule .... 2.8, 2.45, 2.46 Goods forfeiture of .... 5.27, 9.41 Government bodies statutory exemptions .... 5.30 Government-related documents overview .... 1.2 Grammatical aids see Intrinsic or grammatical aids GST legislation overview .... 9.49 purposive approach .... 9.49

H Headings Chapters, Parts and Divisions .... 1.45, 4.65 affecting scope of section .... 4.65, 4.66 general sections .... 4.67 interpretation aid, as .... 4.66 sections, to .... 1.47, 4.71–4.73 interpretation aid, as .... 4.71 Hendiadys .... 4.56 Human rights see also Rights and liberties Australian Capital Territory legislation .... 2.29, 5.1, 5.55, 5.56 interpretation .... 5.56, 5.57, 5.58, 5.59 legal presumptions, and .... 5.57–5.59 principle of legality .... 5.57–5.59 court’s approach .... 5.1 dialogue model .... 5.1, 5.59 international human rights .... 5.53 overview .... 5.1 parliamentary committees .... 5.1 principle of legality, and .... 5.53, 5.57–5.59 purpose or object approach .... 2.29 Queensland legislation .... 2.29, 5.51, 5.55, 5.56 remedial or beneficial provisions .... 9.2 Victorian legislation .... 2.29, 5.1, 5.55 bundling approach .... 5.58 interpretation .... 5.56, 5.57 legal presumptions, and .... 5.57–5.59 principle of legality .... 5.57–5.59

I Imperial Acts amendments .... 7.30 repeals .... 7.5 implied repeals .... 7.17 Implied repeals see Repeal In pari materia principle see also Similar Acts .... 3.42, 3.43 Incorporation of provisions adaptation of incorporating provisions .... 7.35 date of effect of incorporation .... 7.34 definitions .... 7.38 identifiable incorporating provisions .... 7.32 interpretation problems .... 7.36–7.37 overview .... 1.33, 7.31 unconstitutional provisions .... 7.33 ‘under this Act’ .... 7.36 Individual rights see Human rights; Rights and liberties International agreements coming into effect .... 10.18 Constitution, and .... 3.14 domestic incorporation .... 1.23, 2.30, 3.12 consistency in approach .... 1.23, 2.31, 3.12, 3.22 double tax agreements .... 2.37–2.38 general rule .... 2.34 interpretive principles .... 2.33–2.36, 3.12 unincorporated agreements .... 2.39, 3.12 double tax agreements .... 2.37–2.38 extradition treaties .... 2.38 extrinsic materials .... 3.1, 3.12, 3.15 explanatory notes .... 3.22 Interpretation Acts .... 3.22 Teoh principle .... 3.12, 3.13 interpretation .... 2.39 principles for .... 2.33 reference, by .... 3.22 legal presumptions .... 5.24 legislation giving effect to, interpretation of .... 2.30–2.32 ratification .... 2.30 retrospective operation .... 10.18 476

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schedules of Acts .... 2.30 Teoh principle .... 3.12, 3.13 unincorporated agreements .... 2.39, 3.12 International human rights principle of legality, and .... 5.53 International law see also International agreements interpretive principles .... 2.33 legal presumptions .... 5.24 Interpretation see also Drafting analogical use of statutes .... 1.25 common law approaches see Literal approach; Purposive approach common law principles see Common law principles composite phrases .... 4.13 contemporary approach .... 2.1 context see Contextual interpretation court’s approach .... 1.8, 1.27, 2.1 court’s duties .... 1.6, 1.7 counsel’s argument .... 1.8 difficulties for interpreters .... 1.4 executive’s duty to follow .... 1.26 extrinsic aids see Extrinsic materials golden rule .... 2.8 intention of parliament .... 1.5, 2.3, 2.4, 2.60 international agreements see International agreements intrinsic aids see Intrinsic or grammatical aids legal documents .... 1.5, 2.2 legislative histories .... 3.2 literal approach see Literal approach mischief rule see Mischief rule; Purposive approach overview .... 1.1, 1.4, 2.1 precedent, and .... 1.9–1.11 presumptions see Presumptions previous interpretations .... 1.9, 3.51 binding precedent .... 1.9–1.11 circumstances of departure .... 1.12, 1.13 Commonwealth legislation .... 1.16, 1.17 consistency with individual liberty .... 1.14 erroneous interpretations .... 1.14, 1.19

factors influencing adherence .... 1.14, 1.15 limits of law-making .... 1.15 persuasive authority .... 1.12, 1.13, 1.16–1.22 prospective overruling .... 1.24 re-enactment presumption .... 3.51–3.59 similar legislation .... 1.10 uniform legislation .... 1.18–1.22 principle of legality .... 5.1 private Acts .... 1.29 prospective overruling .... 1.24 public Acts .... 1.29 purposive approach see Purposive approach statutory requirements see Purpose or object approach textualism .... 3.6 theoretical debate .... 2.2 tribunals .... 1.3 uniform legislation .... 1.18–1.22, 3.47 Interpretation Acts application of Acts .... 6.2 contrary intention .... 6.2 change in language .... 4.8 contextual interpretation .... 2.11 contrary intention .... 6.2 definitions .... 6.1 contrary intention .... 6.2 delegated legislation .... 3.15, 3.16 expressio unius .... 4.45 extrinsic materials see Extrinsic materials incorporation by reference see Incorporation of provisions legal presumptions .... 5.9 Crown .... 5.19 displacement of assumptions .... 5.9 extraterritorial effect .... 5.13 obligatory and discretionary provisions .... 11.13 overview .... 6.1 parts of Acts .... 4.59, 4.64 purpose or object approach .... 2.14 actual words of statute .... 2.20 Commonwealth provision .... 2.15 delegated legislation .... 2.16 drafting, and .... 2.25

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Interpretation Acts – cont’d effect of amendments .... 2.15 general statements of purpose .... 2.21, 2.22 inferences of purpose .... 2.22 interpretation of provisions .... 2.17, 2.18 limitations by reference to purpose .... 2.23 literal approach, and .... 2.18, 2.40 operation of provisions .... 2.17–2.20 penal provisions .... 9.12 purposive approach, and .... 2.17, 2.40 state and territory provisions .... 2.16, 2.26–2.29 statements of purpose .... 2.21 ‘strained construction’ .... 2.24 range of matters .... 6.1 retrospective operation .... 10.37 Interpretation sections amendment of definitions .... 6.15 contrary intention .... 6.12 determining .... 6.13 derivatives of definitions .... 6.11 displacement of definitions .... 6.12, 6.13 general issues .... 6.4 ‘means and includes’ .... 6.9 use of composite phrase .... 6.9 ‘means’ and ‘includes’ .... 6.5 Dilworth’s case .... 6.7 drafting problems .... 6.6 guides to effect .... 6.8 other definitional forms .... 6.10 overview .... 6.3 substantive provisions, as .... 6.14 Interpretive theories .... 2.2 Intrinsic or grammatical aids see also Syntactical presumptions; Parts of Acts; Words Act to be read as a whole .... 4.2 division of Act into Parts .... 4.4 expressions within sections .... 4.3 noscitur a sociis .... 4.33 scope of sections .... 4.3 de minimis approach .... 4.31 dictionaries .... 3.33–3.35, 4.1 division of Act into Parts .... 4.4

examples in Acts .... 4.75 expressions within sections .... 4.3 nature of instrument .... 4.29 examples of application .... 4.30 noscitur a sociis .... 4.33 order of reading sections .... 4.5 overview .... 4.1, 4.59 paragraphing of sections .... 4.79 punctuation .... 4.76–4.78 scope of sections .... 4.3 tenses .... 4.80

J Judicial decision Act amended after .... 3.51–3.59 precedent .... 1.9–1.11 re-enactment after, see Re-enactment presumption Jurisdiction legal presumptions .... 5.2, 5.48–5.50, 5.60 application of presumption .... 5.49 court procedure .... 5.51 obligatory and discretionary provisions .... 11.9 ousting of .... 5.2, 5.48–5.50 penal .... 9.15 procedural amendments .... 10.23 remedies .... 5.52 waiver of conditions .... 11.29

L Legal documents see also Documents drafting .... 1.5 interpretation .... 1.5, 2.2 Legal presumptions Bill of Rights, as .... 5.2, 5.55 common law doctrines .... 5.34, 5.35 application of presumption .... 5.37 Crown’s right of appeal .... 5.42 equitable principles, and .... 5.36 exposure to penalty .... 5.40 legal professional privilege .... 5.41 prosecution proving guilt .... 5.39 protection of the individual .... 5.34 self-incrimination .... 5.37, 5.38, 5.39, 5.40, 5.41 statements of presumption .... 5.35 478

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Index

common law rights, invasion of .... 5.34, 5.43, 5.44, 5.45 Constitution, enactment within .... 5.11 Crown .... 5.17, 5.60 appeal, right of .... 5.42 application of presumption .... 5.17–5.18 bound by statute .... 5.9, 5.17–5.18 penal sanctions against .... 5.22, 9.19 prerogative powers .... 5.21 property rights .... 5.21 reformulation of presumption .... 5.20 statutory statement .... 5.19 displacement of presumptions .... 5.5, 5.9 extraterritorial effect .... 5.14 extrinsic materials .... 5.7 implication .... 5.5 legal professional privilege .... 5.41 parliament’s intention .... 5.3, 5.7 parliament’s right .... 5.9, 5.10 proprietary interests .... 5.27 self-incrimination .... 5.37, 5.41 tests for displacement .... 5.6 equitable principles .... 5.36 extraterritorial effect .... 5.2, 5.12 comity of nations .... 5.12 examples of application .... 5.14 foreign law .... 5.15 legislating extraterritorially, distinction .... 5.12 rebuttal of presumption .... 5.14 statutory recognition .... 5.13 foreign law .... 5.15 rebuttal of presumption .... 5.16 formulation of presumptions .... 5.9 fundamental rights and principles .... 5.2, 5.8–5.10, 5.60 identification .... 5.10 government bodies .... 5.30 statutory exemptions .... 5.30 human rights .... 5.1, 5.55 human rights legislation .... 5.55 bundling approach .... 5.58 international law .... 5.24 Interpretation Acts extraterritorial effect .... 5.13 jurisdiction .... 5.60 application of presumption .... 5.49

court procedure .... 5.51 ousting of jurisdiction .... 5.2, 5.48–5.50 legal representation .... 5.47 overview .... 5.2, 5.60 powers, performance of .... 5.31 delegation .... 5.32 principle of legality .... 5.3, 5.4, 5.8, 5.9, 5.34 application .... 5.3, 5.4 cases .... 5.4 endorsement .... 5.8 future of principle .... 5.53, 5.54 human rights legislation .... 5.57–5.59 international human rights .... 5.53 parliament’s intention .... 5.3, 5.4 parliament’s onus .... 5.3 scope of rights .... 5.53 proprietary interests .... 5.2, 5.26 application of presumption .... 5.26, 5.27 compensation .... 5.25, 5.26 interference with interests .... 5.26, 5.27 invasion of statutory rights .... 5.28–5.29 recognised rights and principles .... 5.10, 5.60 list of .... 5.60 religious equality .... 5.23 remedies .... 5.52 federal legislation .... 5.50 retrospective operation see Retrospective operation self-incrimination .... 5.37, 9.27 abrogation of privilege .... 5.37, 5.41 exposure to penalty, and .... 5.40 prosecution proving guilt .... 5.39 scope of presumption .... 5.38 statutory recognition .... 5.38 statutory rights .... 5.46 proprietary interests .... 5.28–5.29 Legal professional privilege legal presumption .... 5.41 displacement of presumption .... 5.41 Legal representation legal presumption .... 5.47 Legal technical words .... 4.21, 4.22

479

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Legislation see also Interpretation act of legislating .... 1.2 Acts see Acts analogical use of statutes .... 1.25 bills see Bills common law development and .... 1.25 content of legislation .... 1.4 definition .... 1.2 delegated see Delegated legislation drafting see Drafting finding the law .... 1.3 legal presumptions see Legal presumptions; Presumptions meaning of legislation .... 1.7, 1.10, 2.1 overview .... 1.2 source of law, as .... 1.3 Legislative history overview .... 3.2 United States .... 3.2 Legislative innovation common law and .... 1.25 Legislative schemes delegated legislation .... 3.49 extrinsic materials .... 3.45–3.46 Legislature see Parliament Liabilities see Retrospective operation Liberties see Rights and liberties Limitation Acts procedural nature .... 10.26 Literal approach see also Purposive approach definition .... 2.6 golden rule .... 2.8 limitations .... 2.8 overview .... 2.5–2.7, 2.11 purposive approach, and .... 2.5, 2.9, 2.10 statutory approach, and .... 2.18 taxing provisions .... 2.14, 9.42 tax avoidance schemes .... 9.50, 9.51 Local Acts .... 1.30

M Mandatory see Obligatory and discretionary provisions Marginal notes see also Headings interpretation aid, as .... 4.71–4.73 overview .... 4.71–4.73

Maxims de minimis non curat lex .... 4.31, 11.36 ejusdem generis .... 4.34–4.41 expressio unius est exclusio alterius .... 4.43–4.45, 4.69 expressum facit cessare tacitum .... 4.46–4.50 generalia specialibus non derogant .... 4.51–4.53, 7.20–7.24 in pari materia .... 3.42, 3.43 leges posteriores contrarias abrogant .... 7.9 noscitur a sociis .... 4.33 reddendo singula singulis .... 4.55 ut res magis valeat quam pereat .... 2.62 ‘Means’ .... 6.5 Mischief rule .... 2.9, 2.12, 2.18, 2.19

N Noscitur a sociis .... 4.33 Notes interpretation aid, as .... 4.74 status .... 1.49, 4.74

O Objects clause see Purpose or objects clauses Obligatory and discretionary provisions affirmative words .... 11.5, 11.21 breach of obligatory provisions .... 11.1, 11.18, 11.35 ability to control procedure .... 11.23 affirmative words .... 11.21 consequences determine interpretation .... 11.19 court procedure .... 11.25 de minimis approach .... 11.36 forms .... 11.30 impossibility of compliance .... 11.28 invalidity .... 11.20, 11.21, 11.22, 11.23, 11.24 legislation making requirements .... 11.27 nature of compliance .... 11.31–11.34 necessity for compliance .... 11.18 no compliance .... 11.34 obligatory compliance .... 11.32 partial compliance .... 11.33 private actions .... 11.22 480

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protection of persons .... 11.24 strict compliance .... 11.19 summary of position .... 11.35 time limits .... 11.26 waiver of rights .... 11.29 case discussion .... 11.2 classification problems .... 11.1 consequences of interpretation .... 11.3, 11.19 court procedure .... 11.25 courts .... 11.6 exercise of jurisdiction .... 11.9 general powers .... 11.10 relief powers .... 11.11 de minimis approach .... 11.36 directory, use of term .... 11.1 discretionary .... 11.1 court’s general powers .... 11.10 court’s relief powers .... 11.11 examples of rulings .... 11.14, 11.16 factors affecting classification .... 11.12 obligation to exercise discretion .... 11.17 obligatory in another respect .... 11.4, 11.6 public officers .... 11.8 examples of court rulings .... 11.14 cases where provision discretionary .... 11.16 cases where provision obligatory .... 11.15 grant of discretion .... 11.2 consequences of interpretation .... 11.3 permissive words .... 11.5 grant of power .... 11.6 courts .... 11.9, 11.10 public officers .... 11.6, 11.7, 11.8 imposition of duty .... 11.3 affirmative words .... 11.5 consequences of interpretation .... 11.3 discretionary terms .... 11.6 permissive words .... 11.5 Interpretation Act, effect .... 11.13 mandatory, use of term .... 11.1 obligatory .... 11.1 court’s jurisdiction .... 11.9

discretionary in another respect .... 11.4 examples of rulings .... 11.14, 11.15 factors affecting classification .... 11.12 public officers .... 11.6, 11.7, 11.8 waiver of rights .... 11.29 overview .... 11.1, 11.2 permissive words .... 11.5 public officers .... 11.6, 11.7, 11.8 Offences see also Penalties absolute offences .... 9.28 continuing offences .... 9.34, 9.35 corporations .... 9.21 multiple offenders .... 9.32 offender not to be punished twice for same offence .... 9.22 second or subsequent offences .... 9.20 ‘Or’ ‘and’ to be read as ‘or’ .... 2.49 conjunctive effect .... 2.48 erroneous use .... 2.47 implied conjunction .... 12.2 ‘or’ to be read as ‘and’ .... 2.50 overview .... 2.46, 12.24 printing or drafting errors .... 2.46 statutory affirmation of approach .... 2.51

P Paragraphing of sections .... 4.79 Parliament bills .... 3.3 bills debated .... 3.1 limitations on uses .... 3.29 executive materials see Parliamentary and executive materials extrinsic materials see Extrinsic materials intention of parliament .... 1.5, 2.3, 2.4, 2.60 displacement of presumptions .... 5.3, 5.7 principle of legality .... 5.3, 5.4 parliamentary and executive materials see Parliamentary and executive materials parliamentary committees .... 5.1 delegated legislation .... 5.1 human rights .... 5.1 481

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Parliament – cont’d presumptions, displacement of parliament’s intention .... 5.3, 5.7 parliament’s right .... 5.8, 5.9 principle of legality parliament’s intention .... 5.3, 5.4 parliament’s onus .... 5.3 retrospective operation of laws passed by .... 10.9 view of law .... 3.41 Parliamentary and executive materials commission and committee reports .... 3.3, 3.4 common law principles .... 3.3, 3.15, 3.26 distinctions in uses .... 3.4 earlier cases .... 3.4, 3.5 South Australia .... 3.8 textualism .... 3.6, 3.7 explanatory memoranda .... 3.3, 3.5, 3.10, 3.28 extrinsic materials .... 3.1, 3.3, 3.15, 3.26 ambiguity .... 3.18 distinctions in uses .... 3.4 earlier cases .... 3.4, 3.5 Federal Court’s approach .... 3.6 Interpretation Acts .... 3.15 interpretive process, use in .... 3.9, 3.10 judicial commentary .... 3.21 South Australia .... 3.8 textualism .... 3.6, 3.7 Victoria .... 3.25 Federal Court’s approach .... 3.6 Interpretation Acts .... 3.15 legal presumptions, displacement .... 5.7 overview .... 3.3 parliamentary debates .... 3.1, 3.3, 3.4 limitations on uses .... 3.30 South Australia .... 3.8 second reading speeches .... 3.5, 3.26, 5.7 Victoria .... 3.25 Parts of Acts Act to be read as whole, and .... 4.4 chapters .... 1.45 contextual approach, and .... 4.4 Divisions .... 1.45, 4.65 exception clauses .... 4.70 Headings .... 1.45, 4.65

affecting scope of section .... 4.66 general sections .... 4.67 Interpretation Acts .... 4.59, 4.64 long title .... 1.43, 4.60 marginal notes .... 4.71–4.73 notes .... 1.49, 4.74 objects clause .... 4.63, 4.64 overview .... 1.41, 4.4, 4.59 Parts .... 1.45, 4.65 use of headings .... 4.65, 4.68 preambles .... 1.42, 4.62, 4.65 provisos .... 4.69, 4.70 purpose or objects clauses .... 1.44, 2.21, 4.63, 4.64 general statements of purpose .... 2.21, 2.22 inferences of purpose .... 2.22 interpretation aid, as .... 4.64 schedules .... 1.48, 4.68 international agreements .... 2.30 sections see Sections short title .... 1.43, 4.61 simplified outline .... 4.64 statement of intention .... 4.63, 4.64 titles or names .... 1.43 long title .... 1.43, 4.60 short title .... 1.43, 4.61 use in interpretation .... 4.59 Penal Acts see Penal provisions Penal jurisdiction .... 9.15 Penal provisions see also Legal presumptions; Penalties absolute offences .... 9.28 ambiguities .... 9.11 approach to interpretation .... 9.10, 9.11 former approach .... 9.10 present approach .... 9.11, 9.12 strict adherence to words .... 9.13 beneficial provisions, and .... 9.1, 9.8 civil actions and .... 9.38 civil penalties .... 9.17 corporations .... 9.21 Crown .... 5.22, 5.60, 9.19 defendant’s position .... 9.16 extraterritorial operation .... 9.18 failure to specify penalty .... 9.31 fixed penalties .... 9.33 forfeiture of goods .... 9.41 former approach .... 9.10 482

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inability to comply .... 9.14 jurisdiction .... 9.15 ‘liable to’, meaning .... 9.30 mandatory penalties .... 9.33 multiple offenders .... 9.32 ‘not less than’ penalty, meaning .... 9.29 offender not to be punished twice for same offence .... 9.22 overview .... 1.37, 9.1, 9.39 pecuniary penalties .... 9.17 present approach .... 9.11, 9.12 proof provisions .... 9.37 purpose or object approach .... 9.12 remedial provisions, and .... 9.1, 9.8 retrospective operation .... 9.23, 10.19 change in penalty after charge .... 9.24 extensions of time to bring prosecution .... 9.25 post-offence changes in sentencing law .... 9.26 presumption against retrospectivity .... 9.23 second offences .... 9.20 self-incrimination .... 9.27 strict adherence to words .... 9.13 subsequent offences .... 9.20 Penalties see also Offences; Penal provisions civil penalties .... 9.17 concurrent sentences .... 9.36 continuing offences .... 9.34, 9.35 exposure to penalty .... 5.40 fixed penalties .... 9.33 implied repeals, and .... 7.14 legal presumptions .... 5.40 ‘liable to’ .... 9.30 ‘not less than’ .... 9.29 pecuniary penalties .... 9.17 repeals, implied .... 7.14 Personal Acts .... 1.30 Plain English drafting .... 2.63 Powers see also Obligatory and discretionary provisions conferral and performance .... 5.31 delegation .... 5.32 legal presumptions .... 5.31 Practice directions extrinsic materials .... 3.31

Preambles interpretation aid, as .... 4.62, 4.65 overview .... 1.42, 4.62 use .... 1.42 Precedent interpretation, and .... 1.9–1.11 overview .... 1.9 Prerogative legislation not to limit .... 5.21 Presumptions consistent use of words .... 4.6, 4.7 change in language .... 4.6, 4.8 rebuttal of presumption .... 4.9 legal see Legal presumptions overview .... 1.5 re-enactment presumption see Reenactment presumption syntactical see Syntactical presumptions Previous interpretations binding precedent .... 1.9–1.11 circumstances of departure .... 1.12, 1.13 Commonwealth legislation .... 1.16, 1.17 state and territory courts .... 1.16, 1.17 consistency with individual liberty .... 1.14 erroneous interpretations .... 1.14, 1.19 factors influencing adherence .... 1.14, 1.15 judicial comity .... 1.12 limits of law-making .... 1.15 overview .... 1.9, 3.51 persuasive authority .... 1.12, 1.13 Commonwealth legislation .... 1.16, 1.17 uniform legislation .... 1.18–1.22 prospective overruling .... 1.24 re-enactment presumption see Re-enactment presumption similar legislation .... 1.10 uniform legislation .... 1.18–1.22 Principle of legality see Legal presumptions Printing and drafting errors .... 2.45, 2.46 Prior statutory provisions extrinsic materials .... 3.36 Private Acts .... 1.29, 1.30 483

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Privilege against self-incrimination see Self-incrimination Procedural Acts see also Retrospective operation costs .... 10.24 court structure .... 10.23 extension of time .... 10.25 jurisdiction alterations .... 10.23 limitation Acts .... 10.26 meaning .... 10.22 overview .... 10.21, 10.22, 10.27 retrospective operation .... 10.21, 10.22, 10.34 cases affecting rights .... 10.34 cases concerning procedure .... 10.23– 10.27 cases not concerning procedure .... 10.28–10.33 cause of action .... 10.34, 10.36 court’s approach .... 10.34 summary .... 10.35 statute of frauds .... 10.26 Proof provisions .... 9.37 Proprietary interests acquisition of on just terms .... 5.25, 10.10 legal presumptions .... 5.2, 5.26 application of presumption .... 5.26, 5.27 compensation .... 5.25, 5.26 interference with interests .... 5.26, 5.27 invasion of statutory rights .... 5.28 Prospective overruling .... 1.24 Protective provisions .... 9.9 Provisos .... 4.69, 4.70 Public Acts .... 1.29, 1.30 Public officers grant of power .... 11.6, 11.7, 11.8 Punctuation interpretation aid, as .... 4.76–4.78 Purpose or object approach actual words of statute .... 2.20 Commonwealth provision .... 2.15 effect of amendments .... 2.15 interpretation .... 2.15, 2.21 delegated legislation .... 2.16

developments .... 2.14 drafting, and .... 2.25 general statements of purpose .... 2.21, 2.22 inferences of purpose .... 2.22 interpretation of provisions .... 2.15, 2.18 limitations by reference to purpose .... 2.23 literal approach, and .... 2.18 operation of provisions .... 2.17–2.20 overview .... 2.14 penal provisions .... 9.12 purposive approach, and .... 2.17 state and territory provisions .... 2.16 Australian Capital Territory .... 2.26, 2.29 human rights legislation .... 2.29 Queensland .... 2.27, 2.29 South Australia .... 2.28 Victoria .... 2.29 statements of purpose .... 2.21 ‘strained construction’ .... 2.24 Purpose or objects clauses general statements of purpose .... 2.21, 2.22 inferences of purpose .... 2.22 interpretation aid, as .... 4.64 overview .... 1.44, 2.21, 4.63, 4.64 Purposive approach see also Literal approach application of rule .... 2.9, 2.10 context .... 2.11 implying words .... 2.55 literal approach, and .... 2.5, 2.9, 2.10 mischief rule, and .... 2.9 origins of approach .... 2.9 overview .... 2.3, 2.5, 2.9, 2.40, 2.58 statutory approach, and .... 2.17, 2.40 taxation provisions .... 9.49

R Reddendo singula singulis .... 4.55 Re-enactment presumption application .... 3.52, 3.58 decisions in other jurisdictions .... 3.59 considered decisions of court .... 3.55

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consolidating Acts .... 3.54 decisions in other jurisdictions .... 3.59 exceptions .... 3.53 overview .... 3.51–3.53 superior courts .... 3.56 value of presumption .... 3.57 Referendum materials .... 3.11 Regulations see Delegated legislation Religious equality legal presumption .... 5.23 Remedial Acts .... 1.38, 9.1 Remedial or beneficial provisions approach to interpretation .... 1.38, 9.2 application of approach .... 9.2 liberal approach .... 9.2 purpose of legislation .... 9.2 excepting provisions .... 9.7 human rights .... 9.2 identification of beneficial provisions .... 9.2 application examples .... 9.5 legislation must be ‘beneficial’ .... 9.4 restraints on beneficial interpretation .... 9.3 intended subject of benefit .... 9.6 overview .... 1.38, 9.1 penal provisions, and .... 9.1, 9.8 protective provisions .... 9.9 restraints on beneficial interpretation .... 9.3 Remedies federal legislation .... 5.50 legal presumptions .... 5.50, 5.52 right and remedy bound .... 10.32 Repeal see also Interpretation Acts amendment, distinction from .... 7.1, 7.3, 7.25, 7.26 date of effect .... 7.6 effect of classification, as .... 7.3 expiry of Acts .... 7.7 extrinsic materials, as .... 3.37, 7.8 generalia specialibus non derogant see Generalia specialibus non derogant Imperial Acts .... 7.5 implied repeal .... 7.17 implied repeals .... 7.9, 7.10, 7.23 delegated legislation .... 7.18 different penalties .... 7.14

generalia specialibus non derogant see Generalia specialibus non derogant Imperial Acts .... 7.17 inconsistent state laws .... 7.13, 7.19 limitation on implication .... 7.11, 7.12 limiting later legislation .... 7.16 reading competing Acts together .... 7.15 reference to ‘repeal’ .... 7.10 test of inconsistency .... 7.13 invalidity of legislation .... 7.4 later in time, by .... 7.9 overview .... 7.1 savings provisions .... 4.49 Reprinted Acts overview .... 1.33, 8.6 use of .... 8.6 Retrospective operation amending Acts .... 10.15 ‘after the commencement of this section’ .... 10.16 definitions .... 10.17 commencement, distinction .... 10.2 constitutional validity .... 10.9, 10.10 declaratory Acts .... 10.13 definitions .... 10.17 delegated legislation .... 10.11 effect .... 10.3, 10.7 future operation on past events .... 10.4, 10.5 international treaties .... 10.18 Interpretation Acts, and .... 10.37 legal presumptions .... 5.33 meaning .... 10.3 overview .... 10.1 parliament’s power to pass .... 10.9 penal provisions .... 9.23, 10.19 change in penalty after charge .... 9.24 extensions of time to bring prosecution .... 9.25 post-offence changes in sentencing law .... 9.26 presumption against .... 10.1, 10.2 penal provisions .... 9.23 procedural statutes .... 10.22 rationale .... 10.8 rebuttal of presumption .... 10.12 statements of principle .... 10.1 procedural statutes .... 10.21, 10.34 485

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Retrospective operation – cont’d appeal rights .... 10.28 cases affecting rights .... 10.34 cases concerning procedure .... 10.23–10.27 cases not concerning procedure .... 10.28–10.33 cause of action .... 10.34, 10.36 court’s approach .... 10.34 damages calculation .... 10.30 extinguishment of claim .... 10.29 interest calculation .... 10.30 limitation of claim .... 10.29 meaning .... 10.22 review rights .... 10.28 right and remedy bound .... 10.32 summary .... 10.35 trial rights .... 10.31 rebuttal of presumption .... 10.12 result of holding Act as .... 10.7 rights or obligations affected, requirement .... 10.6 tax legislation .... 9.48, 10.20 validating Acts .... 10.14 Revenue Acts see Taxing or fiscal provisions Rights and liberties see also Human rights; Interpretation Acts; Legal presumptions approach to interpretation .... 9.39 forfeiture of goods .... 9.41 penal statute presumption .... 9.39 search warrants .... 9.40 common law rights, invasion of .... 5.34, 5.43, 5.44, 5.45 forfeiture of goods .... 9.41 retrospectivity see Retrospective operation search warrants .... 9.40 statutory rights .... 5.46 proprietary interests .... 5.28–5.29

S Savings provisions .... 4.49 Schedules of Acts international agreements .... 2.30 interpretation aid, as .... 4.68 overview .... 1.48, 4.68

Search warrants approach to interpretation .... 9.40 Second reading speeches .... 3.5, 3.26, 5.7 Sections conflict between sections .... 4.5 later section prevails .... 4.5, 4.54 contextual approach .... 4.3 division of sections .... 4.79 expressions within sections .... 4.3 headings to sections .... 1.47, 4.71–4.73 interpretation aid, as .... 4.71 limitation of scope .... 4.3 order of reading .... 4.5 overview .... 1.46 paragraphing of sections .... 4.79 provisos in .... 4.69 Self-incrimination abrogation of privilege .... 5.37, 5.41 common law doctrine .... 5.37 legal presumption .... 5.37, 9.27 abrogation of privilege .... 5.37, 5.41 exposure to penalty, and .... 5.40 prosecution proving guilt .... 5.39 scope of presumption .... 5.38 statutory recognition .... 5.38 Similar Acts definitions in .... 3.44 in pari materia principle .... 3.42, 3.43 legislative schemes .... 3.45–3.46 overview .... 1.10, 3.42 taxing provisions .... 9.54 Simplified outline .... 4.64 State and territory courts Commonwealth legislation .... 1.16, 1.17 conflicting decisions .... 1.16 uniform legislation .... 1.18–1.22 Statements of intention see Purpose or objects clauses States and territories extrinsic materials .... 3.16 Australian Capital Territory .... 3.23 Victoria .... 3.24–3.25 human rights legislation .... 2.29, 5.1, 5.55, 5.56 interpretation .... 5.56, 5.57, 5.58, 5.59 legal presumptions, and .... 5.57–5.59 principle of legality .... 5.57–5.59 486

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inconsistent state laws .... 7.13 purpose or object approach .... 2.16 Australian Capital Territory .... 2.26, 2.29 human rights legislation .... 2.29 Queensland .... 2.27, 2.29 South Australia .... 2.28 Victoria .... 2.29 Statute law revision Acts Commonwealth legislation .... 7.29 court’s approach .... 7.29 overview .... 1.34, 7.29 Statutes in pari materia see Similar Acts Statutory requirements see Purpose or object approach Statutory rights legal presumptions .... 5.46 proprietary interests .... 5.28–5.29 ‘Strained construction’ .... 2.24, 2.56 Subordinate legislation see Delegated legislation Sunset clauses .... 7.7 Superior class limitation .... 4.42 Syntactical presumptions see also Words deeming .... 4.57 extension of meanings .... 4.58 fictional sense .... 4.57 use of ordinary meaning .... 4.58 ejusdem generis .... 4.34 absence of genus .... 4.37 application of rule .... 4.35, 4.37 general followed by specific words .... 4.40 intention not to limit general words .... 4.38, 4.39 limitations on use .... 4.41 ‘other’, use of word .... 4.36 expressio unius est exclusio alterius .... 4.43 application of principle .... 4.44 cautions against use .... 4.45 expressum facit cessare tacitum, and .... 4.46 Interpretation Act, and .... 4.45 rejection of application .... 4.45 expressum facit cessare tacitum .... 4.46 application of principle .... 4.46, 4.50 expressio unius, and .... 4.46 general approach .... 4.46

limitation of principles .... 4.48, 4.50 procedure designated .... 4.47 savings provisions .... 4.49 generalia specialibus non derogant .... 4.51 identification of dominant provision .... 4.53 limitations on principle .... 4.52 ‘subject to this Act’ .... 4.53 hendiadys .... 4.56 later section prevails over earlier .... 4.54 noscitur a sociis .... 4.33 overview .... 4.32 reddendo singula singulis .... 4.55 superior class limitation .... 4.42

T Taxation discretion in assessment .... 9.55 double tax agreements .... 2.37–2.38 international law .... 2.37, 2.38 Taxing or fiscal Acts .... 1.36, 9.1 Taxing or fiscal provisions approach to interpretation .... 9.42–9.44 application of approach .... 9.45 general approach .... 9.42, 9.45, 9.46 arbitrary exaction .... 9.46 avoidance schemes .... 9.45, 9.50, 9.51 complexity of legislation .... 9.43 consistent use of words .... 9.52 contestability requirement .... 9.47 discretion in assessment .... 9.55 exemption and exception provisions .... 9.56, 9.57 GST legislation .... 9.49 international law .... 2.37, 2.38 liability to taxation .... 9.46 ability to contest .... 9.47 literal approach .... 2.14, 9.42 tax avoidance schemes, and .... 9.50, 9.51 meaning of words .... 9.53 current usage .... 9.53 objection provisions .... 9.58 overview .... 1.36, 9.1, 9.42 retrospective operation .... 9.48, 10.20 review provisions .... 9.58 487

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Taxing or fiscal provisions – cont’d right of recovery .... 9.59 similar Acts .... 9.54 technical words .... 9.53 Taylor’s case …. 2.54 Technical words codifying Acts .... 8.9, 8.10 legal technical words .... 4.21, 4.22 activities outside legal meaning .... 4.22 non-legal meanings .... 4.23–4.24 admission of evidence .... 4.25 general v technical usage .... 4.26 ‘technical’ requirement .... 4.27 taxing provisions .... 9.53 Tenses .... 4.80 Textualism .... 3.6 Time drafting expressions .... 12.18 ‘as soon as possible’ .... 12.19 ‘as soon as practicable’ .... 12.20 ‘forthwith’ .... 12.21 ‘immediately’ .... 12.21 later repeals earlier .... 7.9 limits on .... 11.26 Titles of Acts long title .... 1.43, 4.60 interpretation aid, as .... 4.60 short title .... 1.43, 4.61 interpretation aid, as .... 4.61 Travaux préparatoires .... 2.31, 2.39 Tribunals interpretation, and .... 1.3

U Uniform legislation extrinsic materials .... 3.20, 3.47 overview .... 1.18, 3.47 previous interpretations, persuasive authority of .... 1.18–1.22 conflicting prior decisions .... 1.20–1.22 law not applicable in all jurisdictions .... 1.19 uniform interpretation favoured .... 1.18 United States legislative histories .... 3.2 Ut res magis valeat quam pereat .... 2.62

V Validating Acts retrospective operation .... 10.14

W Words see also Definitions; Maxims; Syntactical presumptions ‘always speaking’ .... 4.14, 4.17, 4.18 date of enactment .... 4.14, 4.15 addition of .... 2.54–2.56 affirmative .... 11.5, 11.21 change in meaning .... 4.20 change in scope .... 4.20 composite phrases .... 4.13 consistent use .... 4.6, 4.7 amendments .... 4.6, 4.8 change in language .... 4.6, 4.8 rebuttal of presumption .... 4.9 taxing provisions .... 9.52 contemporaneous exposition .... 4.16 current meaning .... 4.11–4.12, 4.14, 4.15 date of enactment .... 4.14–4.16 legal technical words .... 4.22 taxing provisions .... 9.53 customary usage .... 4.28 different words not expressing different ideas .... 4.10 general words .... 2.41 legal meaning .... 2.42, 4.16 primary and natural significance .... 2.41 hendiadys .... 4.56 implying words .... 2.52, 2.53 clear necessity test .... 2.52, 2.53 drafting oversights .... 2.53 purpose of legislation .... 2.53 strained construction .... 2.53 text-based implications .... 2.55 indefinite meanings .... 4.2 legal interpretation .... 4.16 legal technical words .... 4.21, 4.22 activities outside legal meaning .... 4.22 limitation of scope .... 2.44, 4.2 meaning and effect to all words .... 2.43 ordinary meaning .... 1.5, 2.11, 2.41, 4.11–4.12 Act indicating departure .... 4.11 date of enactment .... 4.14 488

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Index

permissive words .... 11.5 ‘reading down’ words .... 2.54 ‘reads up’ .... 2.54 taxing provisions .... 9.52, 9.53 technical words codifying Acts .... 8.9, 8.10 legal technical words .... 4.21, 4.22 non-legal .... 4.23–4.27 taxing provisions .... 9.53 technologically neutral .... 4.19 Words and phrases see also Definitions; Maxims; Words ‘after the commencement of this section’ .... 10.16 ‘all’ .... 12.23 ‘always speaking’ .... 4.14, 4.17, 4.18, 8.12 ‘and’ .... 2.46, 2.48, 2.49, 12.2, 12.24 ‘as soon as possible’ .... 12.19 ‘as soon as practicable’ .... 12.20 ‘as the case may be’ .... 12.25 ‘avoidance of doubt’ .... 12.26 ‘based on’ .... 12.15 ‘because of ’ .... 12.11 ‘by’ .... 12.13, 12.14 ‘by reason of ’ .... 12.11 ‘circumstances beyond control’ .... 12.27 ‘code’ .... 8.7 ‘connected with’ .... 12.10 ‘consequence of ’ .... 12.12 ‘contrary intention’ .... 6.2, 6.12, 12.28 ‘deemed’ .... 4.57, 4.58 ‘despite’ .... 12.4 ‘directory’ .... 11.1 ‘except’ .... 12.29 ‘exclusively’ .... 2.44 ‘exempt’ .... 12.29

‘forthwith’ .... 12.21 ‘functions’ .... 12.31 ‘have regard to’ .... 12.17 ‘immediately’ .... 12.21 ‘in accordance with’ .... 12.14 ‘in connection with’ .... 12.10 ‘in relation to’ .... 12.7, 12.8, 12.9 ‘in respect of ’ .... 12.7, 12.8, 12.9 ‘includes’ .... 6.5, 6.6, 6.7, 6.8 ‘liable to’ .... 9.30 ‘likely’ .... 12.30 ‘mandatory’ .... 11.1 ‘means’ .... 6.5, 6.6 ‘means and includes’ .... 6.9 ‘not less than’ .... 9.29 ‘notwithstanding’ .... 12.4 ‘only’ .... 2.44 ‘or’ .... 2.46, 2.48, 2.50, 2.51, 12.2, 12.24 ‘powers’ .... 12.31 ‘primarily’ .... 2.44 ‘principally’ .... 2.44 ‘reasonably practicable’ .... 12.32 ‘related to’ .... 12.7, 12.9 ‘removal of doubt’ .... 12.26 ‘result of ’ .... 12.16 ‘shall be taken to be’ .... 4.57 ‘so far as’ .... 12.4 ‘solely’ .... 2.44 ‘specify’ .... 12.33, 12.34 ‘subject to’ .... 4.53, 12.4 ‘this Act’ .... 7.28 ‘under’ .... 12.13 ‘under this Act’ .... 7.36 ‘unless the contrary intention appears’ .... 6.2, 6.12, 6.13 ‘with respect to’ .... 12.7

489

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