14 Oct 2021

Don't be so reckless: Applying the re-enactment presumption in statutory interpretation

By Cain Sibley, Zeng He, Deborah Mak and Isla Tobin

The re-enactment presumption should not be taken to automatically apply when the same words have been re-enacted following judicial interpretation of those words.

The High Court's recent decision in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26 (DPP No.1) revisited how the re-enactment presumption, a principle of statutory interpretation, should be applied. DPP No.1 is a pertinent reminder that there are a number of contextual factors that should be considered in applying the re‑enactment presumption, and that repetition alone of terms or definitions that have previously been interpreted by courts will not necessarily constitute Parliamentary approval of the judicial interpretation.

What is the re-enactment presumption?

The re-enactment presumption in statutory interpretation stands for the proposition that where certain words have been interpreted by a court in a particular way, and where the legislature subsequently repeats those words without any alteration in a subsequent statute, the legislature can be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.

Issue in DPP No.1 and the two standards of "recklessness"

The issue of interpretation considered by the High Court in DPP No.1 was the interpretation of the term "recklessly" in section 17 of the Crimes Act 1958 (Vic), which relates to the offence of recklessly causing serious injury. "Recklessly" was not defined in the Crimes Act.

Different judicial interpretations of "recklessly" in decisions in Victorian courts, NSW courts and the High Court, spanning between 1985 and 2019, required the High Court to consider how "recklessly" should be interpreted in section 17, having regard to the differing judicial interpretations of the term and the re‑enactment presumption. Specifically, the High Court considered whether the standard of recklessness that should be applied for the offence of recklessly causing serious injury should be foresight of the possibility of harm, or foresight of the probability of harm. The High Court's consideration of the interpretation of recklessness engaged the re-enactment presumption, and whether amendments to the Crimes Act could be interpreted as endorsement by the legislature of judicial interpretations of "recklessly".

The High Court's decision in DPP No.1

The High Court found, by a 4:3 majority, that the re-enactment presumption applied in this case to support a construction of "recklessness" to the higher standard of the probability of harm.

All members of the Court accepted that there is "abundant authority" for the proposition that "where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them". The key split between the majority and the minority was in relation to whether, having regard to the various factors to be considered in applying the re-enactment presumption, the legislative history of the Crimes Act for the purposes of section 17 could be taken to constitute legislative approval of the judicial interpretation of the standard of "recklessness".

The majority (Justices Gageler, Gordon and Stewart in a joint judgment, with Justice Edelman writing separately) emphasised that unless and until altered by legislation, the meaning of the term "recklessly" should be consistent with longstanding judicial authority in Victoria, which had adopted the standard of the probability of harm. The majority noted in particular the explanatory materials to the 1997 and 2013 amendments included references to decisions that had applied the probability standard of recklessness. The majority considered this to be significant in its conclusion that these amendments should be taken to apply the probability standard. Their Honours also observed that Parliament could be accepted to be aware of developments in the law, including the long‑standing application of the test of recklessness as it had been applied for at least 25 years. On this basis, the majority considered that any change to the meaning of recklessness was a matter for Parliament to address.

The minority (Chief Justice Kiefel, Justices Keane and Gleeson) did not agree that the legislative changes in 1997 and 2013 were sufficient to demonstrate that Parliament had accepted or approved the interpretation of "recklessness" to a probability standard. The minority stated that "the inaction of the legislature is not a firm basis" for the application of the re-enactment presumption in this case.

Key takeaways

The key takeaway from the decision in DPP No.1 is that the re‑enactment presumption should not be taken to automatically apply when the same words have been re-enacted following judicial interpretation of those words. The re‑enactment presumption requires consideration of a number of contextual factors, the application and relevance of which was noted by all members of the High Court in this case, including:

  • legislative history and the history of judicial interpretation of a definition (including whether the line of authority is settled or well recognised);
  • applying the re-enactment presumption may be artificial if the relevant statute is only consolidated periodically;
  • the subject matter of the legislation, including whether the statute applies to specialised, technical and/or politically sensitive fields is relevant to the application of the re‑enactment presumption because amendments and judicial decisions are carefully scrutinised by those responsible for amendments; and
  • the context of an amendment, including whether the amendment followed a legislative response informed by expert review, consultation (including law reform commissions and advisory committees), and the temporal proximity of a legislative amendment to a particular judicial decision will be relevant to the application of the re-enactment presumption.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.