The Honourable Murray Gleeson AC
necessary in the first place. It is a pleasure to participate in an occasion which honours the memory of the late Justice Hill.
I have chosen to speak on statutory interpretation. It also is a topic that, until recently, was neglected in most law schools. Most of the work of modern courts consists of applying and, where necessary, interpreting Acts of Parliament. Modern parliaments legislate on a host of topics previously left to the common law. Their output is vast. Revenue law has always been found in statutes, but the bulk and complexity of the statutes has increased enormously. It is sufficient to compare the size of the Income Tax Assessment Act in 1936 with the current legislation to see the change in Parliament’s approach to its law-making responsibilities. The reasons for the change are complex. Not everybody accepts that the system is made fairer or more efficient by constantly increasing the number of rules. The trend, however, seems irreversible.
Much of the structure of our legislation employs concepts of common law and equity as building blocks. The income tax legislation is a good example. The term “income tax” describes a tax upon gains of a certain kind. The distinction between gains on capital account and gains on revenue account, or income, was originally, and remains, of importance in trust law. In the administration of a settled estate, entitlements of life tenants and remaindermen turn upon that distinction. The distinction was taken up, in the United Kingdom, and in Australia, as a method of identifying a kind of gain that would attract certain fiscal consequences. The distinction can be difficult to apply. In recent years, Parliament has extended its taxing ambitions, but the difference between income and capital gains is still there. Similarly, many provisions within the Act turn upon established legal or equitable concepts. A simple example is Div 6 of Pt III of the 1936 Act, dealing with trust income. Section 96 says that, except as provided in the Act, a trustee shall not be liable as trustee to pay income tax upon the
© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008