Australia: Defined Terms in Legislation – Not Always Black and White

The fact that a term is 'defined' in legislation does not necessarily prevent debate as to its correct meaning. Whilst they are usually helpful in interpreting legislation, defined terms can sometimes mislead or confuse. Equally, if a term is to be interpreted in a way which departs from a specific definition, care should be taken to ensure that the legislation will allow it.

Laws should be clear and unambiguous and defined terms in legislation are aimed at assisting in the interpretation and application of the law. On occasions, however, they can be a source of consternation. The fact that a term is defined is not necessarily conclusive as to its meaning, either because the definition itself is unclear, or because it does not make sense in context.

Legislators routinely apply disclaimers in definition sections. In Western Australia, for example, the phrase "unless the contrary intention appears" is often used. In years gone by, a common disclaimer was "subject to the context." Both phrases leave open the possibility that despite being carefully defined, a term might carry a different meaning when read in the context of another provision. However, it must be remembered that the term has been defined for a reason and therefore should only be departed from with caution.

In Franco v City of Nedlands [2012] WASAT 53, the State Administrative Tribunal of Western Australia (SAT) revisited some of the basic principles governing the interpretation and application of defined terms in legislation (including subsidiary legislation), which can be summarised as follows:

• The "contrary intention" disclaimer will be implied, even if it does not appear in a definition section;
• An obvious meaning will give way to a different meaning if the context suggests an intention to use the defined word in a different sense;
• Common law allows extrinsic material to be considered when working out whether a contrary intention can be shown. This gives rise to an inquiry into the context and purpose of the legislative provision; and
• A contrary intention may be shown if the application of the defined term in the circumstances of a particular case leads to an absurd or unreasonable result, or a result that is repugnant to the fundamental intention of the legislative provision.

For the City of Nedlands, the definition of "mean natural ground level" in a town planning scheme proved to be one such source of consternation. The term was defined to mean:

A subclause of the scheme provided that:

To work out whether the permitted wall height for the applicant's proposed development would be exceeded, the City had historically applied a method where the mean natural ground level was measured at the base of each end of the wall and divided by two.

The applicant argued that a 'centroid' method should instead be used, where the measurement was taken at the geometric centre of the lot.

He succeeded. SAT was not satisfied that the application of his interpretation of the defined term in the circumstances led to an absurd or unreasonable result, or a result that was repugnant to the fundamental intention of the clause. Whilst the City had favoured a different interpretation over some years, it did not give their interpretation the edge against a more compelling interpretation.

Regulators involved in the drafting of subsidiary legislation should be wary that defined terms do not give rise to unintended consequences. Those interpreting them should similarly be aware that a definition may not necessarily be the last word on the matter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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