Re-enactment presumption

DPP Reference No 1 of 2019 [2021] HCA 26

A 1995 case set the test for criminal recklessness in Victoria as awareness of the accused that serious injury would probably result4.  Later amendments were silent on the test to be applied.  The test in NSW required only a possibility in this regard, and the High Court later also cast doubt on the Victorian case5.

The re-enactment presumption applies where parliament repeats words it can be taken are to bear the meaning judicially attributed to them.  It all depends on circumstances, however.  In some cases, it will be ‘quite artificial’ but in others the presumption has ‘real force’6.  Here, the presumption applied.  If the law was to change, that was for parliament.

This principle is from Episode 77 of interpretation NOW!


4 s 17 of the Crimes Act 1958 (VIC), Campbell [1997] 2 VR 585.

5 Aubrey [2017] HCA 18 (at [45-46]).

6 Reynhoudt (1962) 107 CLR 381 (at 388), Fortress [2015] HCA 10 (at [15]).