Case: Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 
Outcome: referred to
Luca LP received interest income on its investments. Luca LP was treated as a company for Australian tax purposes (Div 5A of Pt III of the - ('the 1936 Act')) and paid tax at the rate of 30%. It distributed its after tax income to Industrie LP and DAPFI as general and limited partners respectively. 13 Under the terms of the Industrie Limited Partnership Deed dated 24 August 2005, as amended by amending deed dated 7 September 2005, the entitlement of DAPFI to annual receipts of income was to so much of the 'Adjusted Net Income' of each year as equalled the 'RLPI(US) Distribution Amount' for the year, subject to a proviso that if the Adjusted Net Income differed from the total of the RLPI(US) Distribution Amount and the GPI Distribution Amount payable to the general partners, the excess or shortfall should be shared pro-rata. 14 The 'RLPI(US) Distribution Amount' was calculated by multiplying DAPFI's capital contribution by the 'Agreed Rate,' which was Reuters BBSW less a stipulated spread. 84 Turning to object and purpose, Art 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention), referred to in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 265 per Brennan J (as he then was) as the 'leading and general rule of the interpretation of treaties', provides: '1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' 85 In Applicant A 190 CLR at 253, McHugh J, after referring to what was said by Brennan J in Koowarta 153 CLR, said: 'Commentators differ as to the correct interpretation of Art 31. Differences of opinion exist as to the circumstances in which the "context ... object and purpose" of the treaty may be used to supplement the "ordinary meaning" of the treaty. Inherent in this debate is the question of whether the textual interpretation of the words, embodied in the phrase "ordinary meaning", should be afforded interpretative precedence. Some commentators have argued that the literal meaning has no precedence and that the object of the treaty must always be taken into account [O'Connell, International Law, 2nd ed (1970), vol 1, p 253]; some have argued that the two general levels of inquiry embodied in par 1 of Art 31 have a single combined operation [Brownlie, Principles of Public International Law, 4th ed (1990), p 628; Ris, "Treaty Interpretation and ICJ Recourse to Travaux Pr&eacute;paratoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties:, Boston College International &amp; Comparative Law Review, vol 14(1) (1991) 111]; and some have argued that words and phrases of a treaty are in the first instance to be construed according to their plain and natural meaning and that it is only when the result of such an inquiry is doubtful that one should look to a treaty's context, object and purpose [Shearer, Starke's International Law, 11th ed (1994), pp 435-436]. Australian decisions provide no clear answer as to whether Art 31 requires or merely allows recourse to the context, object and purpose of a treaty in interpreting one of its terms. It is clear that such recourse is, in some circumstances, permissible. On numerous occasions, Australian courts have sought to discern the purpose of a treaty so as to construe a treaty term [Koowarta [1982] HCA 27 ; (1982) 153 CLR 168 at 265-266; Thiel v Federal Commissioner of Taxation (1988) 21 FCR 122 at 160; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 413; SS Pharmaceutical v Qantas [1991] 1 Lloyd's Rep 288 at 295-299]. What is not clear from the decided cases, however, are the circumstances which require or allow recourse to the context, object and purpose of a treaty. Nor have those cases clarified the nature of the relationship between the context, object and purpose of a treaty and the 'ordinary' textual analysis of one of its provisions.'