When parliament re-enacts provisions courts have construed, it is presumed to have adopted that interpretation as applying to the new law6. This case (at [32-34]) flags a practical difficulty. This is that the strength of the presumption varies with the confidence with which it may be gauged that the legislature knew of the decision, so that absence of an amendment may be seen as a ‘considered choice’.
In this personal injury case7, the court said it was ‘artificial and unpersuasive’ that an earlier decision had been considered and acted on consciously by parliament. iTip – you need to look beneath the surface when seeking to apply this presumption.
This principle is from Episode 73 of interpretation NOW!
6 Pearce 9th ed (at [3.51-3.59]), PSANSW (1985) 1 NSWLR 627 (at 640).