The Honourable Murray Gleeson AC
now harder to find. To state the obvious, any such entitlement is subject to Pt IVA. At the same time, it should be said that Lord Tomlin made his remarks in the course of rejecting an attempt to treat judicial disapproval of a taxpayer’s conduct as a substitute for applying the language of the Act. It is to be hoped that such an attempt would be as unsuccessful today as it would have been in the past. Liability to tax is not determined by judicial discretion. The rule of law applies both to revenue authorities and to taxpayers, regardless of whether in a particular case it comes down on one side or the other.
The task of interpreting any legal instrument, including an Act of Parliament, involves a search for the meaning of a text. It is instructive to consider the constitutional background to that function. The legislative power of the Commonwealth, exercised by Parliament, and the judicial power of the Commonwealth, exercised by courts, are conferred, and controlled, by the Constitution. The promulgation of the text of an Act is the manner in which Parliament exercises its legislative power. The power is exercised in the form of a verbal command. It is the meaning of the words used by Parliament, that is the meaning of the command, which binds courts and citizens. There is a parliamentary process by which the verbal command comes to be formulated, and there is no single individual whose personal will or intention is to be obeyed. The formulation of the text may involve negotiation, compromise, and on occasions, misunderstanding or ambiguity, whether accidental or deliberate. What matters is the meaning of what Parliament has said, not the mental state, even if it can be discovered, of whoever may have contributed to the choice of language. References to “legislative intention” are useful as reflecting the relationship between Parliament and the courts, but they need to be understood against that constitutional background.11 The process is one of elucidating the
Singh v The Commonwealth (2004) 222 CLR 321 at 331-337.
© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008