By Dan Meagher
If a person passes a sexually transmitted disease to their partner, do they ‘inflict’ harm on that other person? In Aubrey v The Queen  HCA 18, the High Court opted to read the word ‘inflicts’ in a NSW statute in light of the way twenty-first century readers would understand the link between sex and disease, rejecting an earlier, more limited reading by nineteenth century judges. This choice of statutory approaches left Michael Aubrey to serve a five year prison term for recklessly passing HIV to his unwitting lover in 2004.
Are Australian Statutes ‘Always Speaking’ …?
In Aubrey, the High Court applied the ‘always speaking’ approach to statutory interpretation to s 35(1)(b) of the Crimes Act 1900 (NSW). As a consequence, it was held that a person having sexual intercourse with another causing them to contract a grievous bodily disease could amount to the infliction of grievous bodily harm. In doing so the Court overturned the settled understanding of what constituted the ‘infliction of grievous bodily harm’ within the meaning of s 35(1)(b). That statutory meaning — which had stood for more than a century — was ‘that the “uncertain and delayed operation of the act by which infection is communicated” does not constitute the infliction of grievous bodily harm’ (Bell J, at ). As was noted in the joint judgment of Kiefel CJ, Keane, Nettle and Edelman JJ, ‘until this case, Clarence [the 1888 authority for that settled statutory meaning] had not been distinguished or judicially doubted in New South Wales’ (at ).
The joint judgment offered nine reasons why Clarence should no longer be followed. A central plank of that reasoning — and the focus of this brief comment — was the endorsement and application of the ‘always speaking’ approach Continue reading