Case: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1
Outcome: cited
There is no doubt that consistency in the use of terminology, particularly defined terms, is to be valued highly in any document. Inconsistency in the use of the same or similar words produces confusion in the interpretation of documents. This is why there is a presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute. In statutory construction, consistency of use is no more than a presumption, and a fragile one at that. In Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 10, Gibbs CJ described it as 'not a presumption of very much weight'. His Honour said, 'there is no rigid rule; it all depends on the context'. In the same case at 15, Mason J (with whom Aickin and Wilson JJ concurred) said that the presumption 'readily yields to the context'. If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings. 27 As well as providing examples of inconsistent use of style in numbering and lettering clauses, the Certified Agreement itself provides examples of inconsistency of terminology when it is likely that the same meaning is intended. For instance, it is not easy to see that the references to 'weekly ordinary time wage rate' and 'base ordinary time rate of pay' in cl 8.C.2 and 8.C.3 respectively are intended to mean anything different from 'ordinary time rate of pay' in cl 8.B.4 and in the definition of 'Ordinary Pay' in cl 28. A similar observation might be made about 'regular ordinary time rate of pay' in cl 33.c) and 'total ordinary weekly rate' in cl 24. Nor is there consistency in the approach to the rate of pay for the various types of leave for which the Certified Agreement provides. Clause 19 does not use the term 'ordinary pay', and does not have any other provision as to how the rate of pay for compassionate leave is to be calculated. 28 The choice of incorporation by reference, as the means of providing for long service leave entitlements, itself provides a sufficient reason for ousting the presumption that terminology is used consistently. As I have said, the term 'ordinary pay' comes complete with its own definition in the provisions incorporated by reference. It is as if the provisions incorporated by reference contained different terminology.