APPEALED FROM: L v Commissioner, Criminal Injuries Compensation

Commission [2018] TASSC 32

Criminal Law - Procedure - Criminal injuries compensation - Tasmania - Eligibility - Compensation payable where bodily or mental harm results from an offence - "Offence" defined as one that involves violence by one person against another - Construction of definition - "Violence" means actual or threatened physical force - Definition does not extend to an offence that involves coercion and intimidation, emotional abuse and intimidation or economic abuse.

Victims of Crime Assistance Act 1976 (Tas), s 2(1).

Victims Compensation Fund Corporation v Brown [2003] HCA 54, 77 ALJR 1797, considered.

Judgment Number: [2018] TASFC 6

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v CL

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v CL

1. At the conclusion of the hearing of this appeal, this Court ordered that the appeal be allowed, that the orders of the learned primary judge be set aside, and that the originating application be dismissed. The publication of the Court's reasons for those orders was deferred.
2. I have read the reasons of Porter AJ in draft form. I agree with everything he has written. For essentially similar reasons, I concluded that the correct interpretation of the relevant definition of "offence" was that contended for by the Attorney-General, and joined in the making of the orders disposing of the appeal.

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v CL

1. I agree with Porter AJ. I joined in the making of the orders on 28 August 2018 for the reasons expressed by his Honour.

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v CL

[These reasons have been redacted to remove material that could lead to the identification of individuals.]

1. This appeal is about the meaning of a critical provision of the Victims of Crime Assistance Act 1976 (the VOCA Act). Section 4(1) of that Act provides that compensation may be awarded under the Act where a person is killed or suffers injury - "as a result of the act of another person that constitutes an offence ...".
2. In s 2(1) of the VOCA Act, "offence" is defined as follows:

"offence means an offence that involves violence by one person against another and includes a crime under section 127, 127A, 185, 186, 191A or 192 of the Criminal Code."

1. The issue in this appeal is whether the word "violence" means only physical violence or the threat of physical violence, or whether it means much more; in particular, whether it encompasses such things as economic abuse and emotional abuse or intimidation, each of which is an offence under the Family Violence Act 2004 (the FVA).
2. On an application for compensation by the respondent, Criminal Injuries Commissioner Neasey held that the definition of "offence" applied only to physical violence "or violence in its commonly understood sense". On an application for judicial review of that decision, Geason J held that an offence which involved the infliction of harm by "coercion and intimidation", "emotional abuse and intimidation", and "economic abuse", fell within the definition of "offence". His Honour's reference to "harm" must be taken as a reference to death or "injury" as defined, because it is only where a person suffers death or injury that compensation is payable.
3. The Attorney-General appealed to this Court against that decision. On 28 August 2018, the Court ordered that the appeal be allowed, that the orders made by his Honour allowing the application and remitting the matter to the Commissioner be set aside, and that the respondent's originating application be dismissed. The Court said it would later publish its reasons. What follows are my reasons for joining in the making of the orders.

1. The VOCA Act was formerly the Criminal Injuries Compensation Act 1976 (the CIC Act). The name of the Act was changed in June 2005 by an amending Act; the Criminal Injuries Compensation Amendment Act No 23/2005. The word "offence" was not defined in the CIC Act, and the definition set out above was introduced by the 2005 amending Act.
2. In full, s 4(1) of the VOCA Act now provides as follows:

(1) Subject to section 6, compensation may be awarded under this Act where a person is killed or suffers injury -

(a) as a result of the act of another person that constitutes an offence or would have constituted an offence, but for the fact that that other person had not attained a specified age, or was insane, or had other grounds of excuse or justification at law for his or her act; or

(b) in assisting a police officer in the exercise of his power to arrest a person or to take action to prevent the commission of a crime by a person."

1. Before the amendments in June 2005, s 4(1) of the CIC Act was in essentially the same terms, except that the words "or omission" appeared after the word "act". Before and after the 2005 amending Act, the word "injury" was and is "construed as including references to an impairment of bodily or mental health, and also to becoming pregnant": s 2(1) and (2). Section 5(2) prevents an award being made unless the Commissioner is satisfied that that the death or injury was the result of "criminal conduct". That phrase is defined as "an act referred to in s 4(1)(a)", or "the act of a person referred to in s 4(1)(b)".
2. As is apparent, before the 2005 amending Act the meaning of the word "offence" was at large. Under the VOCA Act, the word "offence", being defined as set out above, is now limited in its meaning. The question is to what extent? I note that the offences created by the sections referred to in the definition are as follows:
   • Section 127 - indecent assault.
   • Section 127A - aggravated sexual assault.
   • Section 185 - rape.
   • Section 186 - abduction.
   • Section 191A - kidnapping.
   • Section 192 - stalking.
3. Given the breadth of the range of conduct involved, it is worth setting out at this point what constitutes stalking under s 192 of the Criminal Code. The section is as follows:

(1) A person who, with intent to cause another person physical or mental harm or to be apprehensive or fearful, pursues a course of conduct made up of one or more of the following actions:

(a) following the other person or a third person;

(b) keeping the other person or a third person under surveillance;

(c) loitering outside the residence or workplace of the other person or a third person;

(d) loitering outside a place that the other person or a third person frequents;

(e) entering or interfering with the property of the other person or a third person;

(f) sending offensive material to the other person or a third person or leaving offensive material where it is likely to be found by, given to or brought to the attention of the other person or a third person;

(g) publishing or transmitting offensive material by electronic or any other means in such a way that the offensive material is likely to be found by, or brought to the attention of, the other person or a third person;

(h) using the internet or any other form of electronic communication in a way that could reasonably be expected to cause the other person to be apprehensive or fearful;

(i) contacting the other person or a third person by postal, telephonic, electronic or any other means of communication;

(j) acting in another way that could reasonably be expected to cause the other person to be apprehensive or fearful -

(3) A person who pursues a course of conduct of a kind referred to in subsection (1) and so causes another person physical or mental harm or to be apprehensive or fearful is taken to have the requisite intent under that subsection if at the relevant time the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person physical or mental harm or to be apprehensive or fearful."

1. The appellant argues that the extrinsic materials which relate to the proper construction of the definition are of particular significance. Accordingly, it is also worth setting out at this point the relevant parts of the Minister's second reading speech in relation to the 2005 amending Act:

"[T]his bill has its origins in a broad review of the services provided to victims of crime. The review has already given rise to the Government's Victims of Crime Strategy and the establishment of a Victims Assistance Unit in the Department of Justice. ... The next step in the process is to refine the legislation which governs the Criminal Injuries Compensation Fund to ensure that it meets the needs of victims and directs the resources available to those in most need.

It must be recognised that an additional impetus for change has been the fact that claims on the fund have been increasing at an unsustainable rate. For this reason we have looked at the types of claims which can be made and who can make them to see how many can be better targeted in terms of victim need and severity of crime.

In keeping with this philosophy the bill will only allow claims where there has been a crime of person to person violence, which is defined to include stalking. This approach has been taken with similar schemes in Queensland Victoria and NSW.

Claims for property loss or damage will no longer be allowed in any circumstances. These two changes will keep the focus where it should be - on personal injury claims."[1] [My emphasis.]

1. Lastly, I note that in the FVA, "family violence" is defined as follows:

(a) any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner:

(i) assault, including sexual assault;

(ii) threats, coercion, intimidation or verbal abuse;

(iii) abduction;

(iv) stalking within the meaning of section 192 of the Criminal Code ;

(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or

(b) any of the following:

(i) economic abuse;

(ii) emotional abuse or intimidation;

(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or

(c) any damage caused by a person, directly or indirectly, to any property -

(i) jointly owned by that person and his or her spouse or partner; or

(ii) owned by that person's spouse or partner; or

(iii) owned by an affected child."

1. As originally enacted, the definition in s 7 of the FVA was the same, with the exception of par (c) which was added in October 2015. Section 8 of the FVA creates the offence of "economic abuse". This can be committed by doing one of a number of specified actions with intent to unreasonably control or intimidate a spouse or partner, or cause mental harm, apprehension or fear. The proscribed actions are coercion to relinquish control over assets or income, disposing of property without consent, preventing participation in decisions over household expenditure or the disposition of joint property, preventing access to joint financial assets for the purposes of meeting normal household expenses, and withholding or threatening to withhold reasonably necessary financial support.
2. "Emotional abuse or intimidation" is an offence by virtue of s 9(1). That subsection provides that a person "must not pursue a course of conduct that he or she knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear, in his or her spouse or partner." [sic] The FVA provides for the making of police family violence orders by authorised officers of the rank of Sergeant or above, and the making of family violence orders by courts of summary jurisdiction. Section 35 of the FVA makes it an offence to contravene a police family violence order, an interim family violence order, or a family violence order.

1. ... The respondent applied for compensation. She did not allege any actual physical violence. Her claim was based on allegations of stalking contrary to s 192 of the Criminal Code, and various forms of family violence within the meaning of the FVA; in particular, economic abuse, emotional abuse and breaches of family violence orders.
2. The Commissioner took the view that not all acts of family violence under the FVA were offences for the purposes of the VOCA. The Commissioner explained:

"While much of the conduct referred to in [s 7(a) of the FVA] could comprise or amount to an offence for the purposes of the Act, one exception being 'verbal abuse', significantly less of the conduct referred to in [s 7(b) of the FVA] could do so. 'Economic abuse' and 'emotional abuse or intimidation' are respectively defined (in the context of conduct that is an offence under the FVA) in ss8 and 9 of the FVA. It would appear that no form of economic abuse, with the possible exception of conduct referred to in s8(a) [coercing a spouse or partner to relinquish control over assets or income], might constitute an offence for the purposes of the Act. On the contrary a course of conduct referred to in s9(l) might well be a violent one, although of course it might not.

By s35(l) of the FVA it is an offence to contravene (relevantly) an FVO or a PFVO. While such an offence is a form of family violence itself, it is not one of the deemed violent offences for the purposes of the definition of 'offence' in the Act. It follows that unless an offence of breaching an FVO or a PFVO involves actual violence by one person against another (as it could well do), or the act comprising the breach also amounts to an offence under one or more of the specified provisions of the Code in that definition, the breach of an FVO or PFVO per se is not an offence for the purposes of the Act and thus cannot comprise criminal conduct for the purposes of an application for compensation under the Act.

It seems to me therefore that 'family violence' is a concept essentially restricted to (or at least derived from) the FVA and relevantly there is nothing in that Act, nor in the Act itself, which renders any offence of family violence an offence (involving violence) for the purposes of the Act. The definition of offence in s2(l) of the Act, in my view, is only concerned with physical violence, or violence in its commonly understood sense."

The primary judge's reasons and the grounds of appeal

1. The primary judge set out the background facts, the grounds of the application for judicial review, the relevant provisions of ss 2 and 4 of the VOCA Act, and the Commissioner's reasons. His Honour noted that in the interpretative process, regard is to be had to context and purpose, with the context to include the remainder of the Act and extrinsic materials. His Honour referred to the submission that as the VOCA Act is remedial in nature, it should be given a liberal interpretation. After examining some authorities on that issue, his Honour said that a beneficial construction cannot be relied upon to sustain an interpretation that every victim of every offence is to be compensated, "but in excluding an approach which enlarges the meaning of the Act beyond the actual words used, the authorities do not exclude the adoption of a beneficial construction of the actual language used." His Honour concluded that the relevant words, in their context, should be construed beneficially and given a liberal construction. This passage of the judgment is the subject of a specific ground of appeal; ground 3.
2. The primary judge then rejected Ms L's submission that by the use of the word "includes" in the definition of "offence", the ordinary meaning of the phrase "violence by one person against another" was enlarged. His Honour rejected the argument that the specific offences in the Criminal Code which were included, should be read as examples of included behaviour, and not merely list those matters which were deemed to fall within the definition. His Honour accepted the contrary submission that the composite use of the words in the definition required an interpretation that ascribed a meaning to the word "violence", and then extended that meaning by including the particular offences referred to. (The use of the device "means and includes", and the references to the specific offences are things to which I will return.)
3. His Honour accepted that the explanation for this extension was to overcome the situation dealt with by the Court of Criminal Appeal in R v Evans [1999] TASSC 25, 8 Tas R 325. The proceedings were an application for a 'dangerous criminal' declaration. That required proof of a conviction of a crime involving violence or an element of violence, where the offender had previously been convicted of that type of offence. At first instance, it was said that rape and indecent assault can be committed without violence being involved, and the material did not make out a relevant prior conviction. That decision was overturned on appeal. It was held that rape was a crime that involved violence or an element of violence, irrespective of whether the absence of consent resulted from force, threats or fraud. Similarly, an assault at least involves an element of violence in the requirement for an intentional application of force. These are crimes which are "intrinsically violent". See Wright J at 330-333, Cox J (as he then was) agreeing.
4. In this case, the primary judge went on to note Ms L's submission that "violence" is a word which could be applied to a range of conduct, the scope of which has expanded over time with changes in community attitudes; its meaning has evolved and is now extended beyond the notion of physicality and force, and included notions such as coercion and intimidation, economic abuse, and the notion of abuse or intimidation. His Honour noted that the submission relied upon "fluidity of meaning in the language" and said at [34], "This 'fluidity of meaning' approach, embraces the so called 'always speaking' principle." Again, after considering a number of authorities which discuss this principle, his Honour noted the Attorney's reliance on the Minister's second reading speech in relation to the 2005 amending Act, and said he derived no assistance from the speech; another matter to which I will return.
5. At [46], the primary judge said he was satisfied that it was appropriate to interpret s 2 of the VOCA Act as if it was "always speaking". He went on to consider whether the meaning of "violence" has changed, and if so, whether that affected the meaning to be given to the phrase "offence involving violence". His Honour's application of the "always speaking" principle is the subject of a specific ground of appeal; ground 4. That ground asserts that the proper construction of the Act does not allow ambulatory effect to be given to the phrase, "involving violence".
6. The primary judge went on to note the Macquarie Dictionary definition of "violence" as cited to him by Ms L. He said it included:

"rough or injurious action or treatment; any unjust or unwarranted exertion of force or power as against rights or laws; a violent act or proceeding; rough or immoderate vehemence ... of feeling or language; fury, intensity, severity."

1. His Honour quoted a passage from the judgment of Lady Hale in Yemshaw v Hounslow London Borough Council [2011] 1 All ER 912 at [27]-[28], a decision of the Supreme Court of the United Kingdom. His Honour said that Lady hale traced the broadening of the concept of the word "violence", to the point where its meaning includes more than physical force, after which he said:

[49] Further evidencing a broadening in the meaning of the word, in 2011, the definition of 'family violence' in the FVA was expanded to incorporate notions of coercion and control (which are not always accompanied by physical violence or threats): ..." [My emphasis]

1. His Honour then immediately set out the terms of a section headed, "4AB - Definition of family violence". Earlier in his reasons, the primary judge defined "FVA" to mean the 2004 Tasmanian Act. It seems to follow that, as the Solicitor-General observed, rather than s 7 of the Tasmanian FVA, his Honour mistakenly set out s 4AB of the Family Law Act 1975 (Cth), which is the definition of family violence for the purposes of that Act. The definitions are similar in some respects, but not in others. The words "coerces or controls" appear in s 4AB of the Commonwealth Act, but not in s 7 of the FVA. His Honour continued:

"[50] It seems that whereas once it might have been said that 'while all violence against another is abuse, not all abuse will amount to violence', that is no longer so. It appears that the concepts of violence and abuse have been conflated to a significant degree, if not altogether. I respect the force of the reasons articulated by the learned Commissioner, but I cannot agree that the language of s 2 of the Act precludes particular types of conduct, not exhibiting physicality or the infliction of force, from the meaning of 'violence' so as to exclude certain offences from its ambit.

[51] I am persuaded that the meaning to be attributed to 'violence' has evolved. I hold that the Act is 'always speaking' ... 'Violence' according to the mainstream definition of the word, is capable of accommodating acts which are intended to cause harm other than through the application of force to the person of another. I consider that there is no warrant for the narrow interpretation which was adopted in this case. Accordingly I hold that an offence which involves the infliction of harm by coercion and intimidation, emotional abuse and intimidation, and economic abuse, falls within the meaning of an 'offence that involves violence' by one person against another for the purposes of s 2(1) of the Act, without the need for physical violence or the infliction of force. If personal injury ensues, s 4 of the Act is engaged, and it is compensable under the Act." [My emphasis]

1. Ground 1 of this appeal is a simple assertion that the primary judge erred by not construing the phrase "involving violence" as being confined to physical violence or the threat of physical violence. Because of the structure of the primary judge's reasons, it is convenient first to deal with grounds 3 and 4, and then to deal with grounds 1 and 2 together as involving the broader question of the proper interpretation of the definition.

1. As I have noted, the respondent submitted to the primary judge that as the Act is remedial, the definition should be given a liberal construction, a submission that was accepted. In support of the submission to the primary judge, the respondent relied on statements by Wood J in L v Carey [2010] TASSC 54, 20 Tas R 58. That case concerned questions of proof under the VOCA Act where an alleged offender had been acquitted. The primary judge set out part of [23] of her Honour's judgment, as follows:

"It is beyond contention that criminal injuries compensation legislation is properly described as remedial legislation and thus should be construed beneficially and given a liberal construction (see Re Applications of Foster [1982] 2 NSWLR 481 per O'Brien CJ, at 484, Schmidt v South Australia (1985) 37 SASR 570 per Bollen J at 573, Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 per Murphy J at 675). It is regarded as 'unsound' to interpret remedial statutes with meticulous literalism (Re Applications of Foster at 484)."

1. The primary judge said that while the correctness of the approach 'is beyond contention' as Wood J noted, "the approach is not an unconstrained one". That seems to be a reference to the balance of par [23] of her Honour's judgment. That balance, along with [24], reads as follows:

"23 ... However, in having regard to the purpose or object of the Act, and in ascertaining whether a particular interpretation best reflects the purpose or object of the Act (see Acts Interpretation Act 1931, s8A), it must also be borne in mind that there are 'boundaries to the benevolence which the Act distributes': Bollen J [in] Schmidt v South Australia (supra). The fact that an Act is remedial does not enable it to be interpreted to extend the scope of the legislation producing a result that was not intended.

24 It can be seen from the terms of the Act that, like similar legislation from other jurisdictions, there are pragmatic limits to the compensation scheme provided for victims of criminal conduct. An example is the statutory ceiling for the quantum of awards (prescribed maximum under the Act, s6A, is presently $30,000 for a primary victim where there is a single offence, $50,000 where there is more than one offence). In many cases this will be significantly less than an applicant might be entitled to recover at common law."

1. The primary judge also referred to the dissenting judgment of Spigelman CJ in Victims Compensation Fund v Brown [2002] NSWCA 155, 54 NSWLR 668, a case which dealt with a similar legislative scheme, and to the principal judgment of Heydon J on a successful appeal to the High Court: Victims Compensation Fund Corporation v Brown [2003] HCA 54, 77 ALJR 1797 (Brown). The primary judge stated:

"Spigelman CJ said at [11], 'The issue before the Court is the determination of the circumstances in which compensation is payable.' Having noted that the legislation endeavoured to define the circumstances in precise language which did not permit universal recovery[2], he said, 'The Court is not required to give the most expansive possible interpretation of such circumstances'."

1. In the High Court, Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed) before endorsing those quoted statements of Spigelman CJ said:

"[33] To begin consideration of issues of construction by positing that a 'liberal', 'broad', or 'narrow' construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. ... The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language."

1. At [24], the primary judge accepted the proposition that the statutory framework is not enlarged merely because remedial legislation authorises a particular approach to determining the meaning of a provision. His Honour ended the discussion on this point by saying:

"[25] It is the purpose of the provision in the context of the legislation, which governs its interpretation; ADCO Constructions Pty Limited v Goudappel [2014] HCA 18. The purpose of s 2 of the Act is to frame eligibility for compensation. It is clear from the authorities to which I have referred, that the approach generally ascribed to remedial legislation is applicable, but that that approach cannot of itself enlarge the operation of the Act. The language of s 2 has a limiting effect because it defines the class of persons who may be compensated, and thus the victims who are not. A beneficial construction cannot be relied upon to sustain an interpretation that every victim of every offence is to be compensated. But in excluding an approach which enlarges the meaning of the Act beyond the actual words used, these authorities do not exclude the adoption of a beneficial construction of the actual language used. The words of the section, in their context, should be construed beneficially and given a liberal construction_._" [Emphasis added.]

[26] I will approach the interpretation of the words in s 2 of the Act according to this approach."

1. In this appeal, the appellant's complaint is that the highlighted words appear to be a non-sequitur, and at the very least contrary to what was said by Heydon J in Brown. The respondent submits that the primary judge was alive to the limits of the approach, and correctly asked himself whether the actual words used allowed a liberality of construction, or whether the words put in context, warranted a narrower construction. I must say, with respect, that I have difficulty in understanding the point being made by the primary judge in the italicised words set out above. On the face of it, the two sentences are contradictory. However, as I will show, if the second sentence is read as saying that what can be adopted is a beneficial construction that is reasonably open on the language, some of the difficulty is removed.
2. Based essentially on Brown, it seems to me that the proper approach to the question at hand is as follows. In broad terms, the VOCA Act can be regarded as beneficial legislation, but that characterisation may not be very helpful. The VOCA Act is similar in nature to that considered in Brown. In the Court of Appeal, Spigelman CJ at [9] noted that in a passage that has been frequently cited with approval in Australia, the Supreme Court of the United States said in Rodriguez v United States [987] USSC 36; [1987] USSC 36; 480 US 522 (1987) at 525-526:

'... No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law'."

1. Spigelman CJ continued, at [10], to say that the specificity of the provisions of the legislation indicate the purpose is to provide compensation in accordance with the Act and not otherwise. A broad characterisation may be of more assistance in determining the operation of the section, but that is less so when "specific limited words" are being considered: Heydon J in Brown at [33]. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50, 260 CLR 232 at [33], French CJ, Kiefel, Bell and Keane JJ said, "It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise." It should be borne in mind though, that the present case involves the meaning of a definition which fixes the type of criminal conduct for which compensation is payable.
2. The next point concerns the fundamental proposition that any liberal interpretation adopted must be restrained within the confines of the actual language employed, and what is fairly open on the words used: Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622 at 638; Antico v Heath Fielding Australia Pty Ltd [1997] HCA 35; (1997) 188 CLR 652 at 659-660. The construction must not be unreasonable or unnatural: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11. The ability to choose a construction which promotes a beneficial purpose exists only insofar as any question of construction presents a choice. If, applying the standard means of interpretation, there is only one meaning that is reasonably open, that is the end of the matter.
3. If more than one meaning is reasonably open, or there is a sufficient degree of uncertainty, then the beneficial approach can be given effect to. The fact that the legislation is beneficial does not require a court to find ambiguity where there is none. See Brown (above); Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, 237 CLR 285 at [48] per Hayne, Heydon, Crennan and Kiefel JJ; NSW Aboriginal Land Council v Minister (above) at [32]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [50]- [52] per Ward JA, (Meagher and Barrett JJA agreeing); Kavalee v Burbidge [1998] NSWSC 111; (1998) 43 NSWLR 422 at 441 per Mason P, (Meagher JA agreeing).
4. It is here where I think the primary judge erred. With respect, his Honour seems to have simply assumed that the text and context of the phrase permitted a "narrow" meaning and a "broad" meaning, and then approached the ultimate question of construction assuming that a liberal interpretation should be adopted. His Honour ought first to have looked at what meanings the phrase "offence involving violence" could tolerably bear by way of the application of standard principles, before giving the provision a liberal construction based on the beneficial nature of the legislation. The ground of appeal is itself expressed in a curious way. It alleges that the primary judge erred by, having concluded that that he should apply a beneficial construction, failed to construe the phrase as being confined to physical violence or the threat of it. However, as argued, and to the extent I have outlined, the ground is made out.

1. In his adoption of the always speaking principle, the primary judge referred to a statement of Gageler J in Commissioner of Police (NSW) v Eaton [2013] HCA 2, 252 CLR 1 at 97:

"One principle (reflecting an approach to legislative drafting of very long standing) is that the text of a statute is ordinarily to be read as speaking continuously in the present."

1. His Honour also referred to Muin v Refugee Review Tribunal [2002] HCA 30, 76 ALJR 966 at [104] per McHugh J. The case concerned whether the word "document" extended to information stored on a device and which could be printed. The passage that his Honour set out is as follows:

"Unless the context or purpose of a statute suggests otherwise, the words of its sections are to be given their natural and ordinary meaning. The ordinary dictionary meaning of 'document' is a printed or written paper containing information. That definition of 'document' is not apt to cover the sequence of electronic impulses in the electronic circuits of a computer disc that store information. But it is more than 50 years since Learned Hand J assured us that 'it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary'. The object of s 418(2) and (3) is to ensure that the Tribunal obtains all information in the Department's possession that is relevant to the review of the decision. No violence is done to the object or language of s 418(3) by holding that 'document' includes information that is stored in a computer or a fax machine and which can be printed out by pressing one or more keys or buttons. No reason appears for thinking that Parliament intended to distinguish between information stored on paper and information stored in the electronic impulses of a computer that can be printed on paper by pressing a key or keys on the computer's keyboard. Statutes are always speaking to the present. If we can, we should give the words of a statute - which after all are only the means of conveying ideas and information to the public - a meaning that covers contemporary processes and accords with the object of the enactment. As Justice Holmes once said 'it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before'."

1. The primary judge went on to refer to Aubrey v The Queen [2017] HCA 18, 260 CLR 305 at [29] where the plurality observed, "The approach in this country allows that, if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included." After considering further aspects of Aubrey, his Honour continued:

"[42] The phrase 'things not known or understood' used by the court in Aubrey (above) at [29], embraces meanings 'not understood' at the time the Act came into force. Thus if 'violence' was not understood at the time the Act was passed to embrace the infliction of emotional harm, for example, but its meaning has evolved to include such conduct, then by operation of the 'always speaking' principle that meaning will apply.

[43] There are constraints on the application of the 'always speaking' principle; Aubrey (above). They arise when:

1. It is apparent that the legislation was intended to be confined to dealing with its subject matter on the date on which it was made. This may be clear from the language of the provision; or
2. An established practice has developed in respect of the provision by those who applied it closer in time to the time of its enactment and who, therefore, might be regarded as more aware of the reasons for the provision being so interpreted.

[44] Neither arises in this case. The language of the Act is not expressed in terms which fix the meaning at the time the provision was amended nor do I find that such interpretation can be inferred. No established practice suggestive of a constraint, and based upon an awareness of the purpose of the provision's enactment has been shown.

[45] As to reliance upon the second reading speech, in this case, I derive no assistance from it. In Lembcke v SAS Trustee Corporation [2003] NSWCA 136, 56 NSWLR 737 at 738, Meagher JA said, 'Second reading speeches have almost never any value in elucidating a legal problem'. In this instance I agree with that observation. The second reading speech speaks to the fact that the Act was amended to impose limits on what is compensable. As such it excluded compensation for property damage occasioned by criminal conduct. But that statement did not dictate the adoption of any particular interpretation of the words 'offences involving violence' and nor suggest that its meaning was fixed at that time. To the extent that 'violence' is referred to, the speech does not indicate the adoption of a narrow meaning, nor that either of the interpretative constraints I have referred to are applicable."

1. It was then that his Honour said it was appropriate to interpret s 2 of the VOCA Act as if it were 'always speaking', as I earlier noted. The ground of appeal alleges error in law "in applying the 'always speaking' principle of statutory interpretation in circumstances where the proper construction of the Act did not allow ambulatory effect to be given to the phrase 'involving violence'." In submissions for the appellant, the Solicitor-General was at pains to point out that the 'always speaking' principle is not a presumption of construction; even describing it as a rebuttable presumption has its difficulties. He referred to Forsyth v Deputy Commissioner of Taxation [2007] HCA 8, 231 CLR 531 at [39] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ:

"The terminology of rebuttable presumption is apt to mislead. What it bespeaks is an exercise in statutory interpretation which seeks to discern what is called the intention of the legislature in enacting the specific provision, having regard to its context, scope and purpose."

1. The respondent countered by noting the criticism of Kirby J in dissent. At [99] his Honour described the joint reasons as reverting to an approach to statutory construction which reflected the previous, and now usually discarded principle, that the words of a statute were to be construed in accordance with their natural meaning as at the date of their enactment. His Honour observed that it was an approach "increasingly creeping back into statutory interpretation of contemporary Australian legislation in" the High Court, something with which he did not agree.
2. I do not see the need to resolve that debate. For the purposes of this case, I respectfully take the view that the plurality did not clearly diverge from the principle as explained by Gageler J in Commissioner of Police (NSW) v Eaton (above) and by McHugh J in Muin v Refugee Review Tribunal (above). That is, ordinarily or if possible, the words of a statute should be treated as ambulatory, speaking continuously in the present and conveying a contemporary meaning. Whether or not that applies in the particular case depends on text, context and purpose.
3. It will not always be assumed that a word or phrase is to be given its current meaning: see the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 8th ed at [4.9]-[4.12], 156-160. Caution must be applied in the exercise of the principle; there is still a question of construction which needs to be decided about whether a particular expression ought to be construed, in the context of the particular legislation in which it occurs, as actually extending to some new state of affairs to which it might arguably extend: Hore v Albury Radio Taxis Co-op Society Ltd [2002] NSWSC 1130, 56 NSWLR 210 at [40]- [43].
4. The principle is more readily applied where the words are of indeterminate scope and of a high level of generality: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91, 57 NSWLR 113 per Spigelman CJ at 145. As the court said in Aubrey, if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included. A fair construction may require a conclusion that the legislation was intended to be confined to things known or current at the date of enactment: Joyce v Grimshaw [2001] FCA 52, 105 FCR 232 at [61]- [69].
5. The appellant's complaints about the primary judge's approach are that his Honour:
   • Failed to recognise and act on the consequences of his state of satisfaction that the inclusion in the definition of the specific crimes under the Criminal Code extended the meaning of the word "violence".
   • Failed to put the definition in its proper context to see whether it was appropriate to give it an ambulatory meaning.
6. The first issue is subsumed within the broader ultimate question of the proper construction, and I will deal with it when considering the remaining grounds and the ultimate question. I will deal with the second issue now. In my view, discussion of the principle in this case is, to borrow the phrase, "apt to mislead". I say that because I think it is based on a false premise. To begin with, that assertion is something that is plainly evident from the legislation I set out earlier. The definition of "offence" was inserted into the newly named VOCA Act in June 2005. The Family Violence Act was enacted in 2004 and commenced on 30 March 2005. Of course, the respondent argued that "offence involving violence" in the VOCA Act includes "family violence" and the related offences. Although the point could operate in favour of either party, it is illogical to treat Parliament as not having had in mind, when enacting the definition of "offence", what it had very recently included within the concept of "family violence" in the FVA.
7. Further, in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56, 144 FCR 170, Branson J (Marshall J agreeing), and Hely J both observed that the term "domestic violence" had for some time in Australia been understood to encompass a wide range of behaviours, only some of which involve actual or threatened physical harm. Her Honour said that executive and legislative use showed that the meaning extended to abuse of power within a domestic relationship, which could involve such things as emotional abuse and economic deprivation: see [14]-[16], [58]-59]. My point is that in terms of the application of the 'always speaking' principle, it is not as though the respondent is urging the adoption of notions that have only gained currency since June 2005. Those were not things not known or understood. That false premise served to obscure the proper approach. The application of the principle means that a word or phrase is given a current meaning. In this case, the issue remained one as to the meaning of the word "violence" in its context, and the application of the principle did not compel the adoption of a contemporary meaning that extends further than actual or threatened physical violence.

1. Derived from the well-known cases of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and Alcan (NT) Alumina (NT) Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 is the short proposition that questions of construction are to be answered by reference to "text, context and purpose": Mok v Director of Public Prosecutions (NSW) [2016] HCA 13, 257 CLR 402 at [37]; Talacko v Bennett [2017] HCA 15, 260 CLR 124 at [65]. Context may include the history and evident policy of a provision or the mischief it was designed to remedy. The purpose may be stated expressly or inferred from the terms of the statute or provision, and may also be elucidated by appropriate reference to extrinsic materials: Newcrest Mining Ltd v Thornton [2012] HCA 60, 248 CLR 555 at [70].
2. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, 248 CLR 378 at [25], French CJ and Hayne J said it was important to recognise that to speak of legislative "intention" was to use a metaphor. The use of that metaphor must not mislead. Their Honours stressed that the duty of the court was to give the words of a statute provision the meaning that the legislature is taken to have intended them to have: Project Blue Sky at 384. Their Honours went on to sound some warnings about judicial activism, saying [omitting references]:

"[25] ... The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

[26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.' (emphasis added)

And as the plurality said in Australian Education Union v Department of Education and Children's Services:

'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose'. (footnote omitted)."

1. In determining the issue, regard needs to be had not only to the phrase "an offence involving violence by one person against another" but to the whole of the definition. Having decided that the proper approach was to give the definition a liberal construction, and that it was appropriate to interpret the definition as if it was 'always speaking', the primary judge, as I earlier noted, went on to refer to the Macquarie Dictionary definition of "violence", and quoted from the judgment of Lady Hale in Yemshaw v Hounslow London Borough Council (above). I will deal with each of those things in turn.
2. I previously set out that part of the Macquarie Dictionary definition noted by the primary judge. In full, it is as follows:

"1 rough force in action: the violence of the wind. 2 rough or injurious action or treatment: to die by violence. 3 any unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage. 4 a violent act or proceeding. 5 rough or immoderate vehemence, as of feeling or language; fury; intensity; severity. 6 a distortion of meaning or fact."

1. The Shorter Oxford Dictionary contains the following definition of violence:

"1 The exercise of physical force so as to cause injury or damage to a person, property etc; physically violent behaviour or treatment ... 2 The state or quality of being violent in action or effect; great force or strength in operation; vehemence, severity, intention ... 3 Strength or intensity of emotion; further passion ... 4 The action or an act of constraining or forcing unnatural change upon something."

1. The use of dictionaries as extrinsic aids presents some difficulties. They are an obvious resource when courts are enjoined to treat words as having been used in their ordinary sense. They "may offer a reasonably authoritative source for describing a range of meanings of a word, including obsolete meanings", and "can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose": House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [28] per Mason P. The word or phrase must be interpreted in its context, assisted as it may be, but not necessarily bound by one of a variety of dictionary definitions: Falconer v Pedersen [1974] VicRp 24; [1974] VR 185 at 187.
2. I am not sure that the definitions assist much. It is true that the word "violence" has at least one meaning not immediately associated with physical force or an effect of severity or intensity. As Branson J observed in Sok (above) at [22], the usage of "violence" reflected in the third of the meanings attributed to the noun by the Macquarie Dictionary (above), is where there is a significant power disparity between two individuals, and the more powerful individual unjustly and deliberately exercises his or her greater power so as to dominate or control the less powerful one.
3. Ironically, an example of a much wider meaning than physical force appears in the passage of the judgment of McHugh J from Muin (above), in which his Honour said, "No violence is done to the object or language of [the provision] by holding that 'document' includes information that is stored in a computer ...". Such an expression is one not uncommonly heard in arguments in courts. However, the dictionary meanings do not clearly show that the word "violence", on its own, comfortably encompasses notions such as economic abuse or intimidation.
4. In the present case, after noting the Macquarie Dictionary definition without comment, the primary judge went on to say:

"[48] The Court was also referred to a decision of the Supreme Court of the United Kingdom, in Yemshaw v Hounslow London Borough Council [2011] 1 All ER 912 at [27]-[28]. Lady Hale traces the broadening of the concept of the word 'violence', to the point where its meaning includes more than physical force. In that case Lady Hale said:

'[27] "Violence" is a word very similar to the word "family". It is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. There is no comprehensive definition of the kind of conduct which it involves in the Housing Act 1996: the definition is directed towards the people involved. The essential question, as it was in Fitzpatrick, is whether an updated meaning is consistent with the statutory purpose - in that case providing a secure home for those who share their lives together. In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere.

[28] That being the case, it seems clear to me that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on. The purpose of the legislation would be achieved if the term "domestic violence" were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, suitably adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996:

"'Domestic violence' includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm"."

1. In Yemshaw, Lords Hope and Walker JJSC agreed with Lady Hale JSC. The case concerned the meaning of the phrase "domestic violence" in the Housing Act 1996. That was defined as including physical violence, threatening or intimidating behaviour and any other form of abuse, which directly or indirectly may give rise to the risk of harm. The context was the provision by a local authority of accommodation to homeless persons. A person was not to be treated as having accommodation unless it was accommodation which it would be reasonable for the person to occupy. A proviso was that "It is not reasonable for the person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him or persons associated with him in a particular way."
2. In the present case, the appellant submitted that Yemshaw is of no assistance, while the respondent argued that his Honour's reference to this case was no more than an illustration of development and change in the meaning and concept of violence. To illustrate the point that Yemshaw is of no assistance, the Solicitor-General referred to R (Jones) v First-tier Tribunal [2013] UKSC 19; [2013] 2 AC 48. That case concerned a criminal injuries compensation scheme authorised by statute. The scheme provided for compensation attributable to "a crime of violence", but the phrase was not defined. The facts gave rise to consideration of what amounted to "a crime of violence". The driver of a truck swerving in an unsuccessful attempt to avoid hitting a man who had suddenly run onto the road and stood in front of it. The man was killed and the truck collided with another vehicle driven by the claimant, who sustained serious injuries. The man who ran onto the road intended to commit suicide, and the issue concerned his state of mind in relation to harm being caused to others.
3. The court in Jones consisted of three of the five justices who sat on the Yemshaw case; Lord Hope, Baroness Hale and Lord Walker JJSC. In Jones the principal judgment was delivered by Lord Hope; Lord Carnwath agreed and made some additional comments; Lord Hope, Baroness Hale and Lord Sumption JJSC agreed with both. The appellant's point was that Yemshaw is not mentioned in any of the judgments, although that may not be surprising given the different contexts of the two cases. In any event, at [25] Lord Hope quoted from Lord MacFadyen in C, Petitioner (1999) SC 551, where his Lordship said there was a valid distinction between the criminal act and its consequences:

"The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done, rather than at the consequences of what was done. As Lawton LJ pointed out in Webb, 'most crimes of violence will involve the infliction or threat of force but some may not; it may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature. But it is for the light they cast on the nature of the criminal act rather than for their own sake the consequence may be relevant'."

1. The reference to Webb is to R v Criminal Injuries Compensation Board, Ex parte Webb [1997] QB 74 at 79. In Jones, Lord Hope went on to refer to R (August) v Criminal Injuries Compensation Appeals Panel [2000] EWCA Civ 331; [2001] QB 774 per Buxton LJ at [19] in which the approach of Lawton LJ in Webb was followed. Lord Hope agreed with the suggestion in that case that Webb was the leading authority on the construction of "crime of violence" and said that no material derogating from the guidance given in that case had emerged. The full passage of the judgment of Lawton LJ in Webb at 79-80 is as follows:

"In my judgment, [counsel's] submission that what matters is the nature of the crime, not its likely consequences, is well founded. It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence. ... Most crimes of violence will involve the infliction or threat of force but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences, ...".

1. In relation to the quoted passage from Yemshaw, decisions relating to the meaning of "domestic violence" can be found in Australia. For instance, the phrase appeared in the Migration Regulations 1994 (Cth) as considered in Sok v Minister for Immigration (above). The suffering of domestic violence by a person was a relevant consideration in respect of a particular subclass of visa. Under reg 1.23(1), a person was taken to have suffered domestic violence if (among other things) a court had convicted the alleged perpetrator of an offence of violence against the person. More broadly, by reg 1.23(2)(b), a reference to domestic violence was taken to be a reference to violence against the alleged victim or his or her property that caused the alleged victim, or a member of the family, to fear for, or to be apprehensive about, the alleged victim's personal wellbeing or safety.
2. At [26], Branson J said that inherent in the notion of "violence", whether physical or non-physical, is an element of vehemence or severity; for this reason a question of judgment is involved in determining whether particular conduct constitutes violence. At [27], her Honour concluded that the better view of the regulation was that the violence referred to was not restricted to physical violence. The majority declined to follow obiter comments in Cakmak v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 257, 135 FCR 183. In that case, the word "violence" in the same regulation was said to mean the application of physical force or the threat of it such that the alleged victim was caused to fear, or be apprehensive about, his or her wellbeing or personal safety.
3. It might well follow from all of this that if an attempt is made to ascribe a "mainstream" meaning to the word "violence", the most commonly used and understood meaning is that of physical force, threats of physical force, and physical intimidation. In the present case, the primary judge seemed to take Yemshaw as evidencing a broadening in the meaning of the word "violence". However, the discussions in the cases just mentioned involved direct consideration of the phrase "domestic violence". That is a phrase which Parliament did not use in the VOCA Act, nor the synonymous "family violence". As I earlier noted, that phrase has had an established meaning for a not inconsiderable period of time; one which went considerably further than physical violence or the threat of it.
4. That leads to consideration of the significance of the statutory definition of family violence which the primary judge set out after the reference to Yemshaw. Although the intention may have been to refer to s 7 of the FVA, it was the definition of "family violence" in the Family Law Act 1975 (Cth). This was said by his Honour to be further evidence of a broadening in the meaning of the word "violence". The appellant's position is that if taken from either Act, it is irrelevant to the construction of the definition of "offence" in the VOCA Act. The appellant submitted that the VOCA Act is not a like or analogous Act to the other two, and there is no foundation for resorting to that other definition for assistance. As to this point, a definition in an Act is heavily dependent on context. Even where comparison with an analogous Act can be made, it is very unlikely that there is any legitimate foundation for resorting to a definition in one, to modify or qualify a definition in another: Yager v The Queen (1997) 139 CLR 29 at 43 per Mason J. Generally, see the discussion in Statutory Interpretation in Australia (above) at [3.36]-[3.38], 128-131.
5. The respondent submitted that the primary judge's reference was not made for a direct interpretative purpose, but was to show the evolution of the concept of "violence", and highlight "the contemporary understanding ('mainstream meaning') of the word." I would accept that the VOCA Act is not in pari materia with the FVA or the Family Law Act (Cth), but I think the words used by the primary judge indicate that his Honour's purpose was as submitted by the respondent. However, having said that, I think this ultimately suffers from the same sort of difficulty as assuming the pieces of legislation are analogous when they are not, or assuming they are, and using one definition to construe another. The process is just a little more circuitous. Just because "family violence" has been given particular meanings in other statutes, it does not follow that those meanings are of any use in determining what meaning is to be given to the ordinary word "violence" in its context.
6. On one view, the respondent seeks to have the meaning of "violence" interpreted so that it includes domestic violence, in its extended sense as discussed by Branson J. That is the context in which the case has been argued, but the primary judge said that the mainstream definition of "violence" is capable of accommodating acts which are intended to cause harm other than through the application of force to the person of another, going on to hold that an offence which involves the infliction of harm by coercion and intimidation, emotional abuse and intimidation, and economic abuse, falls within the definition without the need for physical violence or the infliction of force. That broadens the scope of the operation of the VOCA Act even more, and to a quite considerable extent.
7. As the Solicitor-General submitted, if his Honour's "mainstream definition" is correct, quite a few crimes under the Criminal Code would become offences involving violence if harm were intended. Resulting mental harm would be compensable. Some of the examples given were fabricating evidence under s 97, bringing a fictitious action on a penal statute under s 104, perverting justice under s 105, criminal defamation under s 196, and causing a person to receive a letter threatening injury to property under s 276. More broadly, it seems to me that there is a variety of offences of dishonesty, neither involving an element of physical violence nor inherently violent, which could fall within the definition if mental harm were intended. Common crimes such as stealing and dishonestly obtaining a financial advantage may constitute economic abuse. It might be argued that the interpretation adopted by the primary judge is restricted to crimes by one person against another who are in a relationship, but what his Honour held is not so confined on its face.
8. As to the terms of the definition, it will be recalled that the primary judge accepted the proposition that the result of the use of the device "means and includes" in the definition, is that the matters included, extended the meaning to be given to the word "violence". That accords with the most common and "orthodox" use of the drafting device: Statutory Interpretation in Australia (above) at [6.60], 309. The word "includes" commonly signifies the extension or enlargement of the ordinary meaning of a word or expression, but it may also be employed by way of clarification. The use in this way avoids any doubt that what is identified by the inclusion falls within the scope of the designated meaning: International Litigation Partners Pty Ltd v Chameleon Mining NL (above); Transport Accident Commission v Hogan [2013] VSCA 335, 41 VR 112 at [47], and the cases cited in Statutory Interpretation in Australia at [6.60], 309.
9. In this case, the respondent did not contend that the primary judge was wrong. Counsel submitted that where a meaning is expressed in terms of "includes" and may be seen as at least partially expansive, it should not be treated as exclusive but as operating cumulatively upon the ordinary meaning and conferring added meaning for the purposes of the legislation_: Federal Commissioner for Taxation v St Hubert's Island Pty Ltd (in liq)_ [1912] HCA 78; (1978) 138 CLR 210 per Stephen J at 216. Counsel submitted that there is no rule of construction which requires inclusive words to be used as exclusive of any elements which would otherwise fall within the meaning or expression being defined: Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 per Barwick CJ at 588. In addition, it was submitted that the "means and includes device can be used by way of clarification": TAC v Hogan (above ) at [47].
10. Those propositions can be taken as correct, but on the construction advanced by the respondent, what would be included in the meaning of an "offence which involves violence by one person against another", would be far wider than those things which are specifically included by way of enlargement. Stalking under s 192 of the Criminal Code is the best example. To me, it is quite clear that the designated meaning is of narrower import than what is specifically included by way of reference to the particular sections of the Code. The primary judge correctly described the operation of the drafting device, but it is not consistent with his ultimate conclusion.

1. The purpose of the Act is to provide compensation in certain circumstances. There are limitations to its operation, and there is a need to look to the whole of the Act. Relevant provisions are as follows. Section 4(2), (3) and (4), introduced by the 2005 amending Act, respectively allows compensation to be awarded to "primary", "secondary", and "related" victims. A secondary victim is a person who suffers injury as a result of witnessing an offence, or a parent, step-parent or guardian of a primary victim who was under 18 at the time of the offence. A related victim is a spouse or a child, stepchild, brother, sister, stepbrother or stepsister of a primary victim; a parent or step-parent of a primary victim who was over 18 years of age at the time of the offence; or a person in a personal relationship within the meaning of the Relationships Act 2003 with a primary victim.
2. Section 4(2) provides as follows:

"(2) In respect of the injury of a primary victim, compensation awarded under this Act may be awarded to the primary victim in respect of any one or more of the following matters:

(a) expenses actually and reasonably incurred by the primary victim as a result of the injury;

(b) the cost of medical, dental, psychological or counselling services which the Commissioner is satisfied the primary victim will require in the future;

(c) loss of wages or salary by the primary victim as a result of his or her total or partial incapacity for work arising from the injury;

(d) the pain and suffering of the primary victim arising from the injury;

(e) expenses reasonably incurred by the primary victim in claiming compensation."

1. Compensation payable to secondary and related victims is not dissimilar in nature but with adjustments appropriate to the type of victim[3]. Under s 5, apart from the Commissioner needing to be satisfied that death or injury resulted from criminal conduct, there are some restraints in place. In determining whether or not to make an award, the Commissioner must have regard "to any behaviour, condition, attitude, or disposition of the victim that appears ... to have directly or indirectly contributed to the injury or death": s5(3). By s 5(3A) the Commissioner is not to make an award to a person if that person has failed to do any act or thing which, in the opinion of the Commissioner, the person should reasonably have done to assist in the identification, apprehension, or prosecution of any person alleged to have committed the criminal conduct. Further, s 5(4) enables the Commissioner to refuse to make an award if satisfied that the person has an adequate remedy in civil proceedings in respect of the conduct, and if making an award can take into account any amount recovered or likely to be recovered.
2. Section 6A(1) provides that the total amount payable "in respect of any particular criminal conduct" must not exceed the prescribed maximum. Section 6A(2) provides that "particular criminal conduct" is to be construed as a reference to a single offence, a series of offences committed by the same offender, or a series of offences committed simultaneously or consecutively "by offenders acting in concert". Presently, the prescribed maximum compensation is $30,000 for a primary victim where there is a single offence ($50,000 where there is more than one offence), $20,000 for a secondary victim, and $10,000 for a related victim, but there is a "pool" of $50,000 applicable to related victims in respect of "any particular criminal conduct": Victims of Crime Assistances Regulations 2010, reg 4.
3. Section 6 provides that compensation must not be awarded:
   • in respect of a death or injury caused by or arising out of the use of a motor vehicle;
   • by way of exemplary, vindictive or aggravated damages;
   • for loss of, or damage to property;
   • in relation to any compensation referred to in s 4, for which compensation has been paid, or is payable under compensation law,
   • expenses claimable under Pt 2 of the Health Insurance Act 1973 (Cth), or from a registered health benefits organisation.
4. Section 6 was substituted by the 2005 amending Act. Previously, it imposed limits on the amount of awards. The proposed s 6 was the subject of some controversy during the debate on the amending Act; in particular, the fourth point above, now s 6(1)(d). It seems that the original proposal was that an award could not be made where there was an eligibility for workers compensation. The number of police and prison officers making claims under the Act for "top up payments" as it was described by the Minister, was a frequent topic during the Bill's progress. This proposal was modified to enable an award for matters not covered under compensation law, particularly awards for pain and suffering, that not being compensation payable under compensation law. There was a further proposal, abandoned during the Parliamentary process, to prevent awards where there was a "prisoner-on-prisoner assault". One of the concerns was collusion, but ultimately this exclusion was not proceeded with.
5. Earlier in these reasons, I set out what are said to be the critical parts of the Minister's second reading speech in relation to the 2005 amending Act. The appellant argues that a predominant reason expressed for the amendments was the fact that claims on the fund had been increasing at an unsustainable rate, and it was therefore necessary to look at the types of claims that could be made. As the Minister said, in keeping with this philosophy, claims would only be allowed where there has been a crime of person-to-person violence. It will be recalled that the primary judge said he derived no assistance from the second reading speech, expressing agreement with an observation of Meagher JA in Lembcke v SAS Trustee Corporation [2003] NSWCA 136, 56 NSWLR 736 at [7]: "Second reading speeches have almost never any value in elucidating a legal problem".
6. Counsel for the respondent embraced the proposition that in this case, no assistance can be derived from the second reading speech. However, at the same time, counsel seemed to accept the proposition that extrinsic materials, although not usually assisting in ascertaining the meaning of the provision, were of use in establishing purpose or a mischief sought to be addressed. As to this, he cited A2 v The Queen [2018] NSWCCA 174 at [471]- [472], per Hoeben CJ at CL, Ward JA and Adams J, in turn referring with approval to Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 390 per Spigelman CJ at [12]-[13], Mason P at [162]-[172]. That is the assistance they provide in this case. It is quite clear that a primary concern was the funding for claims under the then existing regime. At the same time as creating additional classes of "victims" who could claim, the obvious purpose was to restrict the range of criminal conduct for which claims could be made. That included limiting claims to ones where there had been a crime of person to person violence, which, as the Minister said, is defined to include stalking. None of that does suggests the scope of operation of the Act as suggested by the respondent.
7. This Court was provided with a large volume of Parliamentary material covering second reading debates and discussions in committee stages in both Houses of Parliament. Suffice it to say that there are frequent references to such things as "assault", "physical injury", "bodily harm", "sexual abuse", and "sexual assault". Neither counsel was able to identify anything in the material that supported the view that the definition of "offence" was meant to encompass anything beyond physical violence, the threat of physical violence, and the conduct the subject of the specific sections of the Criminal Code. There is certainly no mention of domestic violence, family violence or notions of intimidation or emotional abuse beyond what might be caught by the offence of stalking under s 192. Neither is there anything which suggests contemplation of the notion of economic abuse.

1. The task of the court is to interpret the words used by Parliament; it is not divine its intent: Harrison v Melhem (above) per Spigelman CJ at [16], Mason P at [159]. However, the intention of Parliament is not meaningless; the court's duty is to give effect to it, but only as expressed in the legislation: Mason P at [161]. I have explained that I thought the primary judge erred in two specific respects in relation to his approach to the construction issue. Those errors related to the application of presumption in relation to a liberal interpretation given in the context of beneficial legislation, and the 'always speaking' principle. Whatever the social and moral desirability of the construction contended for by the respondent may be, I am persuaded that a fair reading of the VOCA Act does not allow an interpretation of the definition to include extended notions of what might be understood as "domestic violence" or "family violence", let alone the even wider operation that may be the consequence of what the primary judge held.
2. In my view, the words "offence involving violence by one person against another" in the context in which they appear, have the more common meaning of physical force or the threat of it, and not the far more expanded notions as contended for by the respondent. The inclusion of the specific sections in the definition is explained by reference to R v Evans (above). I think it is clear that those inclusions expand on the narrower meaning, for the reasons I have given. Were it to have been the intention to include such offences as exist in ss 8 and 9 of the FVA, I would have expected some specific reference to that type of conduct. The extrinsic Parliamentary materials support this view. In my opinion, the conclusion that the construction contended for by the appellant is correct, is inescapable.

[1] The clause note for the relevant amending clause stated that the effect was to "restrict claims to crimes of violence against the person".

[2] Spigelman CJ did not actually use the words set out by the primary judge. Those words come from the judgment of Heydon J in the High Court, Brown at [33], and seem to be an interpretation of what Spigelman CJ said at [10], viz:

"In any event, the very specificity of the provisions of the legislation indicate the legislative purpose is to provide compensation in accordance with the Act and not otherwise."

[3] Funeral expenses actually and reasonably incurred are payable to any person in relation to the death of the primary victim. Secondary victims who are parents, step-parents or guardians can receive expenses other than funeral expenses. The same applies to related victims, who may also receive compensation for financial loss if they were dependent on the primary victim.