Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: followed
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] McHugh, Gummow, Kirby and Hayne JJ said: '[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) [1976] HCA 36 ; (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 39), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41 ; (1917) 23 CLR 322 at 332; K &amp; S Lake City Freighters Pty Ltd v Gordon &amp; Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J). [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ( Ross v The Queen [1979] HCA 29 ; (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision ( The Commonwealth v Baume [1905] HCA 11 ; (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigraiton Local Government &amp; Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 12-13,, per Mason CJ). In The Commonwealth v Baume ((1905) [1905] HCA 11 ; 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".' 46 Their Honours held (194 CLR at 384 [78]) that the duty of the court is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have. 47 In ascertaining what meaning the differing expressions in ss 290(2)(c) and 312(1)(e) were taken by the Parliament to have, it is important to bear in mind that each section is concerned with the impact which a conviction may have upon the Authority's performance of its functions in relation to the registration of a migration agent. First, s 290(2)(c) appears in the principal provision dealing with the function of registration, which is an annual event for every migration agent. Secondly, s 312(1)(e) is relevant to the ongoing function of the Authority under s 303 pursuant to which it has a discretion to cancel or suspend the registration of a migration agent or to caution him or her. The occasion for the exercise of that discretion arises if the Authority is satisfied, inter alia, that: '303 ... (f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance;' 48 The evident purpose of s 312 is to cast an obligation on the migration agent to notify the Authority of the events there enumerated so that the Authority can consider whether to revisit, pursuant to s 303 and the scheme of natural justice in Part 3 of Division 3 of the Act, the question of registration. Thus under s 312(1)(a) the migration agent's bankruptcy must be notified and s 303(e) makes bankruptcy a matter which enlivens the Authority's powers to cancel or suspend the migration agent's registration or to caution him or her. And, s 290(2)(g) requires the Authority to take into account an applicant's bankruptcy at any time in considering whether to register him or her as a migration agent. 49 Additionally, s 312(1) deals with events which occur after registration but which, had they occurred beforehand, would have been relevant for the Authority's consideration in deciding whether to register the person as a migration agent. However, it is important in construing these provisions to consider the fact that a contravention of s 312(1) is an offence of strict liability (s 312(2)), while s 290 creates no offence. 59 Gleeson CJ and Gummow J (200 CLR at 397 [25]) held that the term 'law of the Commonwealth' in s 80 of the Constitution refers to laws made under legislative powers of the Commonwealth. They held that an obligation or liability which had its source in the Constitution itself did not arise under a law of the Commonwealth. They continued (200 CLR at 397 [25]): 'The fact that there are laws made by the Parliament which are declaratory of the power implicit in Ch III of the Constitution or which make provision under s 51(xxxix) of the Constitution incidental to the exercise of that power does not bring the case within s 80. ' Hayne J agreed with Gleeson CJ and Gummow J (200 CLR at 428 [108], 429 [113]).