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The Honourable Murray Gleeson AC

Statutory Interpretation

the scope of certain powers conferred on the Commissioner. The constitutional context in which those powers were to be understood was vital. The Court pointed out that the constitutional validity of the statutory provisions conferring the powers depended upon certain propositions:

“First, for an impost to satisfy the description of taxation in s 51(ii) of the Constitution it must be possible to distinguish it from an arbitrary exaction. Secondly, it must be possible to point to the criteria by which the Parliament imposes liability to pay the tax; but this does not deny that the incidence of a tax may be made dependent upon the formation of an opinion by the Commissioner. Thirdly, the application of the criteria of liability must not involve the imposition of liability in an arbitrary or capricious manner; that is to say, the law must not purport to deny to the taxpayer ‘all right to resist an assessment by proving in the courts that the criteria of liability were not satisfied in his case’.”

In brief, an informed understanding of extent of the powers conferred upon the Commissioner required an appreciation of the constitutional limits on Parliament’s capacity to confer such powers. It is reasonable for a court to expect that Parliament would understand and respect those limits, and it is reasonable for Parliament to expect that a court would interpret its language in that light.

Context, of course, may be narrower and more specific. It is commonplace for a statutory text to take its meaning from its immediate context, which may be a related provision, or the Part or Division of an Act in which the text is included. Latin maxims are no longer fashionable; it is enough to say that words, like people, may be judged according to the company they keep.

A more difficult conceptual problem may arise where the words of an enactment, understood in a wider or narrower context of the kind I have described, have a certain meaning, the words remain unaltered, but the context later changes. The answer to the problem in a given case may depend upon the nature and

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


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