L v Commissioner, Criminal Injuries Compensation Commission - [2018] TASSC 32

[2018] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: L v Commissioner, Criminal Injuries Compensation Commission [2018] TASSC 32

PARTIES:  L
  v
  NEASEY, F C

COMMISSIONER CRIMINAL INJURIES COMPENSATION COMMISSION

FILE NO:  2427/2017
DELIVERED ON:                   29 June 2018
DELIVERED AT:  Hobart
HEARING DATE:                  20 November 2017
JUDGMENT OF:                   Geason J

CATCHWORDS:

Administrative Law – Judicial Review – Generally – Review of decision of commissioner – Victims of Crime Compensation Act – Statutory interpretation of s 2 of the Act – Interpretation of "offence involving violence by one person against another" – Remedial legislation – Application of the always speaking principle.

Aust Dig Administrative Law [1001]

REPRESENTATION:

Counsel:
             Applicant:  R Blissenden
             Respondent:  No appearance
             Attorney-General:  D Osz
Solicitors:
             Applicant:  Blissenden Lawyers
             Attorney-General:  Solicitor-General

Judgment Number: [2018] TASSC 32
Number of paragraphs: 52

Serial No 32/2018
File No 2427/2017

C L v COMMISSIONER F C NEASEY,
CRIMINAL INJURIES COMPENSATION COMMISSION

REASONS FOR JUDGMENT GEASON J

29 June 2018

The applicant in these proceedings (CL), applied for compensation under s 4 of the Victims of Crime Compensation Act 1976 (the Act). Her claim was for personal injury suffered as a victim of family violence perpetrated by her former husband AL, between 2008 and 2015.
The application was heard before Commissioner Neasey on 8 March 2017. This appeal is brought as a result of a ruling made in that hearing.

Background facts

The applicant married her husband in 2000. In 2008 they moved to Tasmania from Western Australia, where the applicant's husband had been studying for a PhD. They separated in 2013. In her application for compensation CL described her former husband as a psychopath. She said he would rant and rave constantly and get very drunk, refusing to let her sleep. When the applicant's mother came to live with them, he became obsessed with her prospective divorce, apparently talking about affidavits in minute detail, sometimes late into the night.
AL is described as having a controlling personality, demanding to know where CL was at all times. He was critical of her housekeeping habits, chastising her for not getting things right. For a while he controlled her income. She claimed that after they separated, he stalked her, and that she was in constant fear of him, and what he might do to the children. As a result, she started seeing a psychologist. In turn, and because her sleeplessness and anxiety were so severe, she was referred to a psychiatrist.
CL became embroiled in lengthy proceedings in the Family Court with her husband. The applicant describes her husband as "putting her through hell" by using the legal system against her whenever he could.
A police family violence order was issued against AL. Later a court issued family violence order was made. AL breached the orders several times, one night returning to the house in which CL was living with her children, in an intoxicated state, and getting into her bed. AL breached the family violence order so repeatedly that he received a suspended gaol term.
CL's application for compensation included claims for breaches of a family violence order (FVO). The learned Commissioner excluded claims arising from conduct described by the applicants as constituting coercion and intimidation, emotional abuse and economic abuse, as that is defined in the Family Violence Act 2004.

The grounds of appeal

The grounds of the application are as follows:
"1The learned Commissioner's decision involved errors of law within the meaning of S17(2)(f) of the Judicial Review Act in that he determined that only offences:
(a)       Involving actual physical violence by one person against another; or
(b)       Involving violence in its commonly understood sense
were offences for which compensation was available pursuant to the Act.
2That by reason of the errors specified in 1, the learned Commissioner's decision was contrary to law within the meaning of S17(2)(i) of the Act, in that he excluded from consideration in the determination of the compensation to be awarded to the Applicant pursuant to the Act the following:
(a)       Conduct amounting to:
·Coercion and intimidation;
·Emotional abuse and intimidation; and
·Economic abuse within the meaning of the Family Violence Act 2004.
(b)Proven breaches on 7 March 2014 and 13 July 2015 respectively of a Family Violence Order issued in favour of the Applicant."
The applicant seeks an order setting aside the decision of the learned Commissioner and remitting it to him for further consideration.

The Judicial Review Act 2000

The grounds of appeal assert errors of law within the meaning of s 17(2)(f) of the Judicial Review Act 2000. I am satisfied that the decision falls within the scope of s 4 of the Judicial Review Act and is a decision to which the Act applies: Grunseth v Resource Planning and Development Commission [2007] TASSC 92, 17 Tas R 55, JR v Criminal Injuries Compensation Commissioner Carey [2008] TASSC 14, 17 Tas R 465.

The Victims of Crime Compensation Act

The Act provides a scheme for the compensation of victims of crime. Section 4 of the Act provides:
"(1) Subject to s 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;".
Offence is defined in s 2 of the Act:
"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."
Violence is not defined in the Act (nor in comparable legislation in other Australian jurisdictions). The learned Commissioner determined that the words "offence involving violence by one person against another", means "offences involving actual physical violence by one person to another, or violence in its ordinarily understood sense". The interpretation he adopted resulted in the exclusion of some proved breaches of the Family Violence Act 2004 (the FVA) from the offences for which compensation was payable under the Act. In relation to the conduct held by the learned Commissioner to be within the scope of the Act an award of compensation was made.

The meaning of "violence" in s 2(1) of the Act

In his reasons for decision the learned Commissioner said that, "The essence of (the) definition is the involvement of personal violence by one person against another." If a crime is committed under one of the specified provisions of the Criminal Code included within s 2(1) of the Act, there is deemed to be committed such an offence.
He gave these reasons:
"Having read the material on the file prior to the hearing it was apparent to me that CL did not allege that at any time AL had perpetrated actual physical violence upon her. For this reason I sought assistance from Mr Blissenden at the hearing as to what was asserted to be the relevant criminal conduct. It is apparent from his subsequent written submissions that it is asserted that that conduct broadly falls into two categories; stalking within the meaning of s192 of the Criminal Code and various forms of family violence, within the meaning of the Family Violence Act 2004 (FVA), in particular economic abuse, emotional abuse and the breach of various family violence orders.
For the purposes of this decision I need to identify the sort of conduct that is capable of comprising criminal conduct under the Act.
By s 2(l) of the Act 'criminal conduct' is defined as (relevantly) an act referred to in s 4(l)(a).
Section 4(l)(a) provides (my emphasis):
(1)Subject to section 6 compensation may be awarded under this Act where a person is killed or suffers injury-
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
By s 2(l) of the Act 'offence' is defined in the following terms:
'offence means an offence that involves violence by one person against another and includes a crime under section 127, I27A, 185, 186, I91A or 192 of the Criminal Code.'
The essence of this definition is the involvement of personal violence by one person against another. However, if a crime is committed under one of the specified provisions of the Criminal Code ('the Code'), there is deemed to be committed such an offence.
Accordingly it seems to me that, s4(l)(b) of the Act aside, nothing that falls outside the definition in s2(l) of 'offence' is capable of comprising criminal conduct for the purposes of an application for compensation under the Act.
Stalking contrary to s192 of the Code is clearly an offence for the purposes of the Act, as is submitted by Mr Blissenden. However, for the reasons that follow, I am of the view that not all acts of family violence under the FVA are offences for the purposes of the Act.
'family violence' is (relevantly) defined by s7 of the FVA as follows:
7         Family violence
In this Act –
family violence means –
(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 …
While much of the conduct referred to in paragraph (a) of the above definition 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 paragraph (b) 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), 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.
.
I am fortified in this view by the comments of Minister Jackson in her Second Reading Speech delivered in support of the Criminal Injuries Compensation Amendment Bill 2005, by which the current definition of 'offence' was inserted in the Act, where she said (my emphasis):
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." [Footnotes omitted.]
CL's application related in part to conduct described as "emotional abuse and intimidation" within the meaning of s 7 of the FVA. Though this conduct was family violence as defined in that Act, it was determined by the learned Commissioner that the conduct fell outside the definition of an offence under the Act. The learned Commissioner found that whilst coercion or intimidation that involved violence in the ordinary sense of the word could amount to criminal conduct for the purposes of the Act, no such conduct had occurred in this case. Accordingly it was beyond the scope of s 4 of the Act and not compensable.
The learned Commissioner gave these reasons:
"Reliance is also had on s 7(b)(ii) of the FVA, ie, 'emotional abuse (and) intimidation'. In this respect I was referred to a very large amount of material…
I have examined all of this material. Much of it concerns the apparently extraordinary abuse by AL of the legal system to his own ends, particularly in the context of the relevant proceedings, various proceedings (original and appellate) concerning the issue and/or breach of various FVOs, and other related proceedings, apparently designed to delay and generally frustrate or prevent any outcome that might be unfavourable to him. In the course of this not only did he reduce CL to tears in the court room but emotionally and physically exhausted her by requiring her to respond to dozens of pointless applications.
However, none of this involved violence by AL against CL within the meaning of the Act. Whilst AL might well, in the words of s 9(l) of the FVA, have pursued a course of conduct that he knew or ought to have known, was likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in L, if the conduct was not accompanied by violence it could not amount to criminal conduct for the purposes of the Act.
I have had regard to the circumstances of these breaches, AL having been found by a magistrate to have been in breach on all three occasions, having pleading [sic] guilty to the first two breaches but not guilty to the third.
Only the first breach involved any form of violence. On the relevant day, AL had been abusing CL at their home to such an extent that a neighbour called the police. Upon their arrival, CL went to open the door and AL grabbed her arm to prevent her from doing so. Rees J described AL as having pulled CL away from the door by this means. I am satisfied that on this occasion I AL assaulted CL, albeit in a relatively minor way." [Emphasis added.] [Footnotes omitted.]
The Court is asked to determine whether the learned Commissioner was correct to exclude compensation for conduct amounting to an offence under the FVA which did not exhibit violence as he had interpreted that term in s 2(1) of the Act.

Legal principles to be applied to interpretation of legislation

In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, the High Court said that in the interpretation of the statute, regard is to be had to context and purpose. Each is to be considered as part of the interpretative process; they are not matters to which reference is had only when ambiguity is discerned. Context includes the remainder of the Act, and extrinsic material such as the Acts Interpretation Act 1931, dictionaries, Law Reform reports, and second reading speeches; see s 8B of the Acts Interpretation Act; s 15 AB of the Acts Interpretation Act 1901 (Cth).

Remedial legislation

The applicant advanced a submission that since the Act is remedial in nature, it should be construed beneficially and given a liberal construction: see L v Carey [2010] TASSC 54, 20 Tas R 58, at [23]-[29], per Wood J. In that case her Honour said:
"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)."
Whilst the correctness of the approach "is beyond contention" as Wood J has noted, the approach is not an unconstrained one.
In Victims Compensation Fund v Brown [2002] NSWCA 155, 54 NSWLR 668, a claim was made for compensation for shock sustained by the applicants as primary and secondary victims. The primary victim had answered a knock at his front door and was violently attacked. He was punched kicked and stabbed in the stomach area with a broken bottle. The secondary victim witnessed the attack. The primary victim claimed for physical injuries and shock; the secondary victim claimed for shock. Each of the claims made in respect of shock were dismissed. At first instance, the assessor determined that the expression "symptoms and disability" which appeared in cl 5 of the relevant Act had a conjunctive, rather than disjunctive meaning. Since no disability arose in consequence of the shock suffered by either applicant, it was held that compensation was not payable. The district court, on appeal, determined that the requirements of the Act were satisfied by the presence of symptoms alone, according the expression a disjunctive meaning. The New South Wales Court of Appeal, by majority, dismissed an appeal against that decision. In a dissenting judgment, Spigelman CJ said at [11], "The issue before the Court is the determination of the circumstances in which compensation is payable." Noting the legislation endeavoured to define those circumstances in precise language which did not permit universal recovery, he said, "The Court is not required to give the most expansive possible interpretation of such circumstances."
The High Court upheld an appeal against that decision: Victims Compensation v Brown [2003] HCA 54, 201 ALR 260. Heydon J, at [33], gave the lead judgment. McHugh ACJ, Gummow, Kirby and Hayne JJ agreed with his Honour's reasons and the orders proposed by him.
"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."
Similarly, in International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45, 246 CLR 455, at 463-464 [26], the court held that the statutory framework is not enlarged merely because remedial legislation authorises a particular approach to determining the meaning of a provision. That was clear, the court said, from the decision in Victims Compensation v Brown (above).

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.
I will approach the interpretation of the words in s 2 of the Act according to this approach.
It was also submitted by the applicant that by the use of the word "includes" in the definition of "offence" in s 2(1), the ordinary meaning of the phrase "that involves violence by one person against another" was enlarged. It was submitted that the specified offences which are included, should be read as examples of included behaviour, and not merely a list of those matters which are deemed to fall within the purview of the definition.
I do not accept that submission. The Attorney-General referred the Court to the decision of the Victorian Court of Appeal in Transport Accident Commission v Hogan [2013] VSCA 335. At [47] the court said that:
"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. This is to be contrasted with the general understanding of the word 'means' which is usually employed if the definition is intended to be exhaustive." [Footnotes omitted.]
The Attorney-General's submission is that the composite usage of these words requires an interpretation that ascribes a meaning to the term "violence", and then extends that meaning by including the particular offences referred to. This has been done to avoid any doubt that the identified offences fall within the scope of the definition, precluding the argument that when any of these offences are committed without physical violence, they are not compensable under the Act. I agree.
I also accept the explanation advanced by the Attorney General, for the provision having been framed this way. It overcomes the situation which arose in R v Evans [1999] TASSC 25, 8 Tas R 325, where at first instance, Crawford J (as he then was), held that rape and indecent assault can be committed against children without violence being involved. The Court of Criminal Appeal disagreed, holding that rape was intrinsically violent. Wright J said, "In my opinion, rape is the quintessential example of criminal violence, whether accomplished by overt brutality or crafty guile, the act of penetration providing the requisite violence to activate the section". The inclusion of the offences named in s 2 of the Act, forestalls the approach taken in R v Evans, at first instance.

The meaning of "violence"

Section 2 of the Act circumscribes the offences for which compensation is payable by limiting claims to "offences involving violence".
The applicant submits that "violence" is a term which can be applied to a range of conduct, the scope of which has expanded over time with changes in community attitudes; that its meaning has evolved and extends beyond the notion of physicality and force. The applicant submits that it includes conduct directed to injuring a person's mental health, and that "coercion and intimidation", "emotional abuse and intimidation", and economic abuse, fall within the natural and ordinary meaning of "violence" as it is now used and understood. Consistently with that submission, s 7 of the FVA recognises that "family violence" includes direct and indirect threats, coercion, intimidation or verbal abuse, as well as economic and emotional abuse. That definition was enacted in 2004, and the section has been amended as recently as 2015 to bring, inter alia, contraventions of FVOs within the definition.
This submission does not rely solely on the adoption of a beneficial interpretation of the remedial legislation. It relies also upon fluidity of meaning in the language.
This "fluidity of meaning" approach, embraces the so called "always speaking" principle.
In Commissioner of Police (NSW) v Eaton [2013 HCA 2, 252 CLR 1 Gageler J said 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."
In Lake Macquarie Shire Council v Aberdare Council (1970) 123 CLR 327, the question was whether the word "gas" appearing in the Liquefied Petroleum Gas Act 1961 (NSW) meant only coal gas. Barwick CJ said at 331 "I can see no reason why, whilst the connotation of the word gas will be fixed, its denotation cannot change with changing technologies."
In Muin v Refugee Review Tribunal [2002] HCA 30, 170 ALR 601 at [104], McHugh J said:
"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 ss 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'."
And in Aubrey v The Queen [2017] HCA 18 [29] 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."
In Aubrey (above) the High Court considered the phrase "inflicts grievous bodily harm". The appellant had been charged with maliciously causing the complainant to contract a grievous bodily disease (HIV) with the intent of causing her to contract that disease. In the alternative he was charged with maliciously inflicting grievous bodily harm. The Crown case was that the appellant engaged in unprotected sexual intercourse with the complainant whilst HIV positive. The appellant sought an order quashing the count alleging that he maliciously inflicted grievous bodily harm. He did so on the basis that at law he did not inflict grievous bodily harm on the complainant. The district court held that because there was uncertainty as to whether infecting another person with a serious disease constituted inflicting grievous bodily harm the proceedings in relation to that count should be stayed. A Court of Criminal Appeal upheld the Crown's appeal accepting the Crown's contention that "the word inflicts should not be given a limited and technical meaning which requires that the harm resulted from a violent act which creates an immediate result. That being so the transmission of a disease which manifests itself after a period of time can amount to the infliction of grievous bodily harm".
At trial the appellant was convicted on that count. He appealed. He alleged that the indictment disclosed no offence known to the law. A differently constituted Court of Criminal Appeal dismissed his appeal. It adopted the analysis of the court which had heard the interlocutory appeal challenging the indictment.
On appeal to the High Court the majority dismissed the appeal. The appellant's case rested upon a decision of the Court for Crown cases reserved in R v Clarence (1888) 22 QBD 23. In that case nine members of a thirteen member court determined that a man who knew he had a sexual disease and foresaw that it was possible that he could transmit that disease by having sexual intercourse and proceeded to do so without informing her of his condition, could not be convicted of maliciously inflicting grievous bodily harm upon her. That was because, according to the majority judgment, proof of the offence of unlawfully and maliciously inflicting grievous bodily harm required proof of the direct causing of some grievous injury to the body. The uncertain and delayed effect of an infection communicated by an act of sexual intercourse did not satisfy that requirement. In deciding that that case should not be followed, the High Court cited the "always speaking" approach to statutory interpretation. The Court held that the generality of the statutory language it was considering was adaptable to new circumstances and so attracted the operation of that principle. At [30] it said:
"In Ireland, Lord Steyn expressly stated that the decision in Chan-Fook opened up the possibility of applying the provisions of the 1861 Act to new circumstances. Having observed that the correct approach was not to consider the subjective intention of the draftsperson, but to consider whether the words of the 1861 Act extended to a recognisable psychiatric injury when considered in light of contemporary knowledge, his Lordship concluded that the 1861 Act employed the preferred Victorian drafting technique. Thus, it was 'always speaking'. By that, his Lordship appears to have meant that the language of the 1861 Act was adaptable to new circumstances; and if so, his Lordship's approach accorded with the approach in this country…"
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.
There are constraints on the application of the "always speaking" principle; Aubrey (above). They arise when:
1It 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
2An 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.
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.
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.
I am satisfied that it is appropriate to interpret s 2 of the Act as if it was "always speaking". As such, I turn to consider whether the meaning of "violence" has changed, and, if so, whether that effects the meaning to be given to the words "offence involving violence" in s 2 of the Act.
The applicant referred the Court to the dictionary meaning of "violence". The Macquarie Dictionary defines "violence" to include:
"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."
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."
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):
"4AB
Definition of family violence etc
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty."

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.

Conclusion

I am persuaded that the meaning to be attributed to "violence" has evolved. I hold that the Act is "always speaking": Commissioner of Police (NSW) v Eaton (above); Aubrey v The Queen (above); Muin v The Refugee Review Tribunal (above). "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.
I uphold the appeal. The matter will be remitted to the learned Commissioner for a determination of the application in accordance with these reasons.