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
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  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
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
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:
Those levels as depicted by contour lines at 1 metre
intervals... measured at the geometric horizontal centre of the
A subclause of the scheme provided that:
No site shall be developed or building constructed...with
the height of any part of an exterior wall greater than 8.5
[metres] from mean natural ground level at the base of the
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
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
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 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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