Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: applied
As in any statutory interpretation case, one begins with the plain language before moving to considerations of context, purpose and legislative history: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355. 7 In favour of the Commissioner's construction there are two points. First, there is the parallelism of the two "for" subclauses. The most natural reading of a series of subclauses each beginning with the same word is that each is co-equal and each attaches to the full predicate preceding the first item in the list. An alternative way of putting the point (and this is the second point on the Commissioner's side) is to realise that the subsequent repetition or omission, as the case may be, of the preposition "for" is a matter of style and emphasis that does not change the meaning. 8 This is the case with s 38(5). The second use of "for" in the opening words of the provision was not intended to set up an independent subclause not limited or modified by "in or on a rail vehicle". That is made clear by the absence of the conjunction "or" between heating and lighting and the presence instead of a comma. If the "for air-conditioning, heating, lighting" subclause was really independent of the "for any purpose" subclause, it would read: "Use in equipment in or on a rail vehicle for air-conditioning, heating [ or ] lighting or for any purpose incidental to using the rail vehicle." To put it another way, the sentence would stand on its own even if everything from "or for any purpose" through to the end of sub-clause (c) were deleted. Here, however, the lack of the additional "or" demonstrates that "any purpose," rather than being the first item in a new list untethered to the "air-conditioning, heating, lighting" list, is in fact item number four in a list of objects of the first "for" and the repetition of "for" is for rhetorical purposes only. Moreover, in modern legislative drafting, a comma is generally not used to separate the penultimate and ultimate items in a list: see e.g. s 33 of the Act (containing no commas between the penultimate and ultimate items in any of the three lists). Thus, the presence of the comma between heating and lighting indicates that heating is not the penultimate item and that in fact lighting, which is not followed by a comma, is the penultimate item and "any purpose" is the ultimate item. 9 In other words, the language of s 38(5) is to be read as follows: "Use in equipment in or on a rail vehicle for [(1)] air-conditioning, [(2)] heating, [(3)] lighting or for [(4)] any purpose incidental to using the rail vehicle[.]" The contrary reading advanced by Asciano - "Use in equipment [A] in or on a rail vehicle for [(1)] air-conditioning, [(2)] heating, [(3)] lighting or [B] for any purpose incidental to using the rail vehicle" - must be rejected. Once it is accepted that there is really only one preposition "for" - the first one - followed by a list of four objects, the whole of Asciano's argument falls away. As noted earlier, Asciano accepts that the first three items - air-conditioning, heating and lighting - are constrained by the phrase "in or on a rail vehicle"; if "any purpose" is merely the fourth item in that same list, it follows that it must also be so constrained. 10 For those reasons, I do not consider the language of s 38(5) to be ambiguous when considered on its own. 13 Asciano relies on both the broader context of s 38 as well as that of s 53 itself in support of its construction. As to s 38, Asciano submits that if the Commissioner's reading of s 38(5) is adopted, then s 38(3)(g) will become superfluous, contrary to the well-known maxim of statutory construction that every effort should be made to give all the words of a statute some work to do: Project Blue Sky , 194 CLR at 382. This argument depends on the premise that "in connection with" in s 38(3)(g) and "incidental to" in s 38(5) have the effectively the same meaning. When pressed, the Commissioner was not able to identify any relevant difference in meaning; however, as will be seen below, I do not consider it necessary to make a definitive finding in that regard. 14 With respect to s 53, Asciano focuses on the parenthetical clause "(otherwise than for the purpose of propelling a road vehicle on a public road)," arguing that if all purchases for off-rail activities were already excluded by the s 38 definitions, there would be no need for the exclusion in the substantive provision. Asciano reinforces the point by noting that there is no equivalent parenthetical exception for "use in marine transport" (see s 53(3)), while the parenthetical exceptions for use in mining operations and use in primary production carve out "any vehicle" in the former but only "road vehicles" in the latter. These contrasts are emphasised to make the point that Parliament must have carefully considered and tailored the exceptions in each case. 19 It may well be that the introduction of s 38 has in fact made the parenthetical language in s 53(3) superfluous. Asciano submits that to the extent that there is any conflict between the operative s 53 and the definitional s 38 , the substantive provision must prevail: Project Blue Sky , 194 CLR at 382. That proposition is of course true, but it does not assist in resolving the present case because there is no conflict. Section 53(3) says only that fuel purchases for use in propelling a road vehicle along a public road are not eligible for credits. As to whether any other purchases for off-rail use are or are not eligible, s 53 is simply silent. In other words, this is not a situation where the substantive provision says X and the definition says "not X"; rather, this is a case where the substantive provision says "not X" (i.e. propelling a road vehicle along a public road) and the definition says "not X" and "not Y" (i.e. other off-rail activities).