The Honourable Murray Gleeson AC
A recent example of judicial consideration of legislative purpose, illuminated by parliamentary history, is W R Carpenter Holdings Pty Ltd v Commissioner of Taxation15, where the High Court rejected a submission that Div 13 of the 1936 Act was to be read as confined to international arrangements having tax avoidance as their primary object. The criteria for the application of the provisions in question were not expressed to include a requirement of a tax avoidance motive and the High Court’s appreciation of the purpose of Div 13 led it to reject an attempt to read such a requirement into those criteria. It should be acknowledged, however, that discussing legislative purpose at a level which throws light on a problem of interpretation is not a purely mechanical task, and there are occasions when the relevant purpose of an enactment is no more evident than the meaning of the words in which it has been expressed. In most cases, if the purpose of legislation were clear there would be no room for argument about what it meant. Even so, the modern insistence upon purposive construction is important in that it denies the literalism as a sufficient method of expounding the meaning of a statutory text.
There is an aspect of purposive statutory interpretation which has a wider importance affecting relations between courts and the Parliament. Words such as the “will” or the “intention” of the legislature, or the “purpose” of legislation, provided their objectivity is understood, reflect the constitutional imperative that a court is to apply statute law as enacted by Parliament. A deliberate failure or refusal by a court to do so would be an infringement of basic principle. But, of course, it may happen that a court will interpret an Act of Parliament in a way that Parliament believes misunderstands the purpose or intent of what Parliament has enacted. In such a case, it is always open to Parliament to amend the legislation. This is an important safety net for the courts. The
 HCA 33; (2008) 82 ALJR 1211.
© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008