Interpreting statutory text — internal ATO documents released

The ATO has released on its legal database a series of what until recently have been internal ATO documents.

The release of these documents in an initiative that the ATO has labelled “iNOW!” (a contraction of “interpretation now”) and is, according to assistant commissioner Gordon Brysland, “a reinvention initiative to drive awareness on what is happening on the statutory interpretation front”.

“iNOW! began as a way to address the need – recognised by top judges – for those working with legislation to get better at reading it,” Brysland says. The iNOW! documents are therefore aimed at improving awareness about statutory interpretation. The documents, which are labelled “episodes”, are not public rulings or legal advice and are not binding on the ATO.

Brysland represents the Tax Counsel Network. Fellow counsel representative Gorana Kolundzic reminds practitioners at the outset of the latest iNow! (which is episode 25 in a series of monthly releases) that with Tax Time, there will be a renewed focus on ATO guidance.

“Sometimes, this will raise the need for interpretation. Where this occurs, remember to apply ordinary purposive principles. Start and finish with the statutory text – this is fundamental.”

She then goes on to explain that practitioners need to consult the context in the widest sense. “Be careful, however, not to substitute what the explanatory memorandum says for the Act. And don’t decide the policy first, then read the statutory words through that lens.”

To that end, the latest iNow! provides four key examples of the nuanced outcomes in interpretations, with an explanation of each. These include concepts from such cases as Aubrey v R {2017) HCA 18, LM Investment Management v EY (2017) QSC 73, Greater Shepparton CC v Clarke (2017) VSCA 107 and also a 2015 article by Justice Susan Glazebrook. There are also links to each reference.

Download iNow! episode 25 (dated June 30, 2017) from here.

The monthly iNow! series began in June 2015, and the ATO says it has made them public in response to growing external interest. Until now, they have been filed under “miscellaneous papers” in the ATO’s legal database.

The episodes released already can be found on the legal database page. Type “interpretation NOW” into the search toolbar on that page and scroll down the resulting list of results to find all 25 episodes (all with CPD value). More episodes will be added each month, so it may be worthwhile to bookmark the page.


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