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The Honourable Murray Gleeson AC

Statutory Interpretation

was not seeking to apply any different principle of construction to a revenue Act, but that must be because he treated a revenue Act as an example of a law interfering with existing rights of property. In 1980, in the High Court of Australia, Barwick CJ said:8

“It is for the Parliament to specify, and to do so, in my opinion, as far as language will permit with unambiguous clarity, the circumstances which will attract an obligation on the part of the citizen to pay tax”.

The idea that, unless Parliament has specified, with unambiguous clarity, that a certain set of circumstances will give rise to a liability to tax, then no liability exists, does not reflect the modern approach to interpretation. Not long after Barwick CJ ‘s statements two other members of the High Court said that, in revenue statutes as in other cases, the courts must “ascertain the legislative intention from the terms of the instrument viewed as a whole.9 It should be added that s 15AA of the Acts Interpretation Act 1901 (Cth) applies to taxing Acts as well as others. It provides:

“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”.

It will be necessary to return to the matter of purposive construction. My present point is that the days when, as a matter of principle, taxing Acts were narrowly construed in favour of the taxpayer have gone. Furthermore, judicial references to what Lord Tomlin described in the Duke of Westminster’s Case10 in 1935 as the entitlement of every man to order his affairs so as to attract the least tax are




Federal Commissioner of Taxation v Westraders Pty Ltd (1980) 144 CLR 55 at [2], [1980] HCA 24. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297. Inland Revenue Commissioners v Westminster (Duke) [1936] AC 1 at 19.

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


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