A Brief Word on the ‘Always Speaking’ Approach to Statutory Interpretation: Aubrey v The Queen

By Dan Meagher

Aubrey v The Queen Case Page

If a person passes a sexually transmitted disease to their partner, do they ‘inflict’ harm on that other person? In Aubrey v The Queen [2017] 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 [55]). 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 [35]).

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 which the Court outlined in the following terms (at [29]):

The approach in this country allows that, if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included.

The relevant phrase at issue was ‘inflicts grievous bodily harm’. The joint judgment held that the generality of this statutory language was ‘adaptable to new circumstances’ and so attracted ‘the operation of the always speaking approach’ (at [30]). Namely, that since 1888 ‘subsequent developments in knowledge of the aetiology and symptomology of infection have been such that it now accords with ordinary understanding to conceive of the reckless transmission of sexual disease by sexual intercourse without disclosure of the risk of infection as the infliction of grievous bodily harm’ (at [24]). In the view of the joint judges, this accorded with the approach of Lord Steyn in 1998’s R v Ireland [1997] UKHL 34, where it was held that in ‘light of contemporary knowledge’ the meaning of ‘bodily harm’ in an 1861 Act now included a recognisable psychiatric illness. The decision in Aubrey, then, confirms that the general rule — or default position — of statutory interpretation in Australian law is that statutes are ‘always speaking’. That is, courts presume that the context or application of statutory language may change over time, even though the meaning of the language itself cannot.

… or Do They Sometimes Only Reflect Past Understandings? 
Yet the ‘always speaking’ approach is of ‘relatively recent origin’, according to Pearce and Geddes (at [4.9]). The rule of contemporanea exposition est optima et fortissimo in lege (the contemporaneous reading is the best and strongest legally) long governed the construction of statutes in Anglo-Australian law. In 1889, for example, Lord Esher said in The Longford (1889) 14 PD 34 at 36–7 that ‘[t]he first point to be borne in mind is that the Act must be construed as if one were interpreting it the day after it was passed.’ This approach was endorsed in the earlier editions of Maxwell on the Interpretation of Statutes, the first edition of Cross on Statutory Interpretation, published in 1976, and the House of Lords in 1975 confirmed its orthodoxy. In Australia, O’Connor J did likewise in one of the early judgments of the High Court and we even see evidence of the historical approach as late as 1999 in the Full Court of the Federal Court of Australia (see at [53]).

Yet Aubrey makes clear that in Australia statutes are now presumed to be ‘always speaking’. That position is endorsed by our leading statutory interpretation treatise as well, an authority which the joint judgment cited in support of its characterisation of the ‘always speaking’ approach (at n 51). As to what it entails, that can take a number of forms depending on the relevant factual and statutory context. For example, the orthodox distinction between the connotation and denotation of statutory words permits the scope of a statute to extend to new phenomena whilst its original meaning remains fixed. This is how the joint judgment in Aubrey characterised the approach. It cited in support a 1970 judgment of Barwick CJ. There it was held that the statutory term ‘gas’ extended to liquefied petroleum gas when only coal gas was in common use when the relevant statute was enacted — ‘the connotation of the word “gas” was fixed, its denotation could change with changing technology’ (Barwick CJ, at [14]). Parliament can also incorporate the capacity for statutory dynamism — and so attract the operation of the ‘always speaking’ approach — by choosing language that is open-ended, embodies an inherently flexible standard or common law principle or rule. So conceived there appears ‘no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking’ as Lord Bingham observed in 2003. On this account the essential meaning of statutory words and phrases do not change but the circumstances and contexts in which they fall to be applied do. This accords with how the joint judgment in Aubrey characterised the ‘always speaking’ approach as was detailed above. If so, then to update the meaning of a statute — by substituting current for original meaning — amounts to a constitutionally impermissible judicial amendment (not interpretation) of a statute.

Moreover, even though it is now the default position of statutory interpretation in Australia, the ‘always speaking’ approach does not require in every case the adoption of current statutory meaning (even if linguistically possible). As a technique to ascertain the legal meaning of a statute it is legitimate only to the extent that it accords with the text, context and purpose of the relevant statute being construed. This was the essence of Bell J’s dissent in Aubrey. In the specific context of the case her Honour considered its application to be inappropriate. Relevantly, it is ‘a large step to depart from a decision [Clarence] which has been understood to settle the construction of a provision, particularly where the effect of that departure is to extend the scope of criminal liability’ (at [55]). For Bell J it was not the role of the courts to update a statute the settled meaning of which had stood for over a century: ‘If that settled understanding is ill-suited to the needs of modern society, the solution lies in the legislature addressing the deficiency’ (at [55]).

The Unclear Line between Legislating and Interpreting
In hard cases, then, the application of the ‘always speaking’ approach to update statutory meaning is not without controversy or difficulty. In Aubrey, for example, the joint judgment said that ‘[i]n light of contemporary ideas and understanding, any other result would be productive of considerable inconvenience’ (at [16]). Yet their updating construction — that transmission of a disease through sexual intercourse may constitute the infliction of grievous bodily harm — came at the expense of certainty which Bell J noted was ‘an important value in the criminal law’ (at [73]). Relatedly, as Jeremy Gans points out, its application in Aubrey resulted, necessarily, in the retrospective operation of s 35 of the Crimes Act 1900 (NSW). The new construction changed the legal consequences of a prior event by attaching criminal liability to facts which had already occurred. That is no small matter in a common law system presumptively hostile to retrospective lawmaking for its capacity to undermine the core rule of law values of certainty, accessibility and fairness.

In any event, with a strong constitutional separation of judicial power from the political arms of government the application of the ‘always speaking’ approach in Australia must involve statutory interpretation not judicial legislation. That line is not always clear and it is sometimes contested. Yet maybe with an ever-expanding statute book and the growth in the size and complexity of modern government the political arms of government are prima facie willing to accept this species of judicial updating. That tolerance (if not tacit consent) will likely hold so long as the statutory language is capable of bearing the legal meaning, the underlying purpose of the statute is not frustrated and, most importantly, the updating does not effect a controversial change in social or economic policy upon which the political arms of government and/or wider public would resist or take exception.

AGLC3 Citation: Dan Meagher, ‘A Brief Word on the “Always Speaking” Approach to Statutory Interpretation: Aubrey v The Queen’ on Opinions on High (4 July 2017) <https://blogs.unimelb.edu.au/opinionsonhigh/2016/07/04/meagher-aubrey/>.

Dr Dan Meagher, an Associate Professor at La Trobe Law School, was a visiting fellow at Melbourne Law School’s Centre for Comparative Constitutional Studies in 2013.