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The ‘Always Speaking’ Approach to Statutes (and the Significance of Its Misapplication in Aubrey v The Queen)


Dan Meagher

This article clarifies the nature and scope of the ‘always speaking’ approach to statutes in Anglo-Antipodean law. To do so is important. For whilst it is now considered interpretive orthodoxy to treat statutes as ‘always speaking’, what that entails in terms of doctrine and application is not always clear. It is, however, recognised that whether or not a statute attracts the operation of the ‘always speaking’ approach can sometimes be a difficult question to answer. In order to do so judges have at their disposal the interpretive tools (and method) provided by the ‘modern approach’ to statutory interpretation. Indeed, in these cases maybe close attention to the contextualism which lies at the heart of the ‘modern approach’ is a more satisfactory way of determining the legal meaning of a statute than to presume that it is ‘always speaking’.

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(2020) 43(1) UNSWLJ 191: