Episode 90

Gordon Brysland

That legislation is ‘always speaking’ in the present is a baseline assumption in our system of interpretation1.  Some States have even legislated for it2.  The core idea is that words take their current meaning and are not to be ‘locked in a statutory time capsule’3.  One way this is described is that, while the connotation of a word remains stable, its denotation may change and evolve over time.  Two examples from the cases concern the words ‘gas’ and ‘mutilate’4.  The older approach of fixing meaning at the point of enactment – contemporanea expositio – may apply to some very old statutes and rare other categories5.  In America, it applies more generally.  Otherwise, the problem with ‘always speaking’ is how it may apply in a particular situation6iTip – any evolved meaning adopted must be supported by proper evidence and be consistent with legislative purpose.

Gordon Brysland – Tax Counsel Network

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Thanks – Oliver Hood, Jeremy Francis & Jacinta Dharmananda..


1 Aubrey [2017] HCA 18 (at [29-30]), Eaton [2013] HCA 2 (at [97]). 

2 s 8 Interpretation Act 1984 (WA), s 21 Acts Interpretation Act 1915 (SA).

3 Gee [2003] HCA 12 (at [113]), cf Forsyth [2007] HCA 8 (at [99]).

4 Lake Macquarie (1970) 123 CLR 327 (at 331), A2 [2019] HCA 35 (at [169-170]). 

5 Asimakis (2021) 95 ALJ 869 (at 871-872), Fitzpatrick [2001] 1 AC 27 (at 49).

6 cf Meagher (2020) 43 UNSWLJ 191, Goldsworthy (2022) 43 SLR 79.