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The Honourable Murray Gleeson AC

Statutory Interpretation

it has pursued that purpose. In such a case, to identify the general purpose may not be of assistance in finding the point at which a balance has been struck or a political compromise reached.14 Again, some legislation, including income tax legislation, pursues inconsistent purposes. In the case of a complex statute that has been amended many times, and is the work of dozens of differently constituted legislatures, this is highly likely.

An example of such a problem in the Act may arise when it is necessary to relate general anti-avoidance provisions to provisions that have been inserted for a purpose of encouraging taxpayers to pursue a certain course of action by attaching to such action a fiscal advantage. It has long since been established that it is perfectly constitutional for Parliament to use revenue laws to encourage certain forms of investment or business activity. A law may have the character of a law with respect to taxation, and so be within the competence of the Federal Parliament, even if it is also a law with respect to the promotion of the Australian film industry, or the advancement of primary production. When the Parliament holds out a tax advantage as an inducement to some form of conduct, some people will engage in that conduct who would not have done so but for the tax advantage. If it were not so, the inducement would be pointless. Some people, by leveraging or otherwise, might contrive to magnify their advantage beyond what was foreseen or intended by the policy-makers.

A taxing Act will rarely be a seamless robe, and identifying a legislative purpose with sufficient confidence and precision to solve a problem of the meaning of the text may be difficult.

14

See, for example, in the area of criminal law, Kelly v The Queen (2004) 218 CLR 216.

© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008

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