It is clear from the original text that the phrase before the colon is the definition and the phrases after the colon are uses of the definition. Yet FaHCSIA suggests that to the ordinary meaning of the word, a failure to ‘according do something is not merely an absence of any action, but performance of something due, required or The reference to promised’. something as an element of the definition is misplaced. ‘promised’ The assertion that cannot refer to the absence of particular action also ‘failure’ seems to ignore the first definition of which is set out in the ‘failure’ following way: 1. the act of failing; a proving unsuccessful; lack of success: his effort ended in failure; the campaign was a failure (emphasis added) One of the definitions of ‘failing’ is: 3. in the absence or default of: failing payment, we shall sue The attempt by to increase the threshold for what constitutes a FaHCSIA’s based on dictionary definitions is unconvincing. ‘failure’ Case law suggests that the has a broad range of meanings and that its word ‘fail’ meaning in a particular statute will depend on context. FaHCSIA refers to Ingram v Ingram, in which Jordan CJ said: where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the upon the context in which it is word, ‘fail’ depends found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it . In other cases it may mean an … omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible . In other cases; it … may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded.110
It is clear from the original text that the phrase before the colon is the definition and the phrases after the colon are uses of the definition. Yet FaHCSIA suggests that ‘according to the ordinary meaning of the word, a failure to do something is not merely an absence of any action, but of something due, required or promised’. The reference to something ‘promised’ as an element of the definition is misplaced. The assertion that ‘failure’ cannot refer to the absence of particular action also seems to ignore the first definition of ‘failure’ which is set out in the following way: 1. the act of failing; a proving unsuccessful; lack of success: his effort ended in failure; the campaign was a failure (emphasis added) One of the definitions of ‘failing’ is: 3. in the absence or default of: failing payment, we shall sue The attempt by FaHCSIA’s to increase the threshold for what constitutes a ‘failure’ based on dictionary definitions is unconvincing. Case law suggests that the word ‘fail’ has a broad range of meanings and that its meaning in a particular statute will depend on context. FaHCSIA refers to Ingram v Ingram, in which Jordan CJ said: where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word, ‘fail’ depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it … . In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible … . In other cases; it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded.110 performance