Zickar v MGH 187 CLR 310

@329

In R v

Reynhoudt (94) Dixon CJ said:

"[T]he view that in modern legislation the repetition of a provision

which has been dealt with by the courts means that a judicial

interpretation has been legislatively approved is, I think, quite

artificial. "

This passage was referred to by Mason ACJ, Wilson and Dawson 11 in

Flaherty v Girgis (95). Their Honours said:

.'Whilst it is true that, where an inference can be drawn from the

tenns in which subsequent legislation has been passed that

Parliament itself has approved of a particular judicial interpretation

of words in an earlier statute, a court should adhere to that

interpretation, the difficulty is in discerning the existence of

parliamentary approval (96). Mere amendment of a statute not

involving any re-enactment of the words in question could seldom if

ever constitute approval of an interpretation of those words. Even

re-enactment of the words in circumstances not involving any

reconsideration of their meaning, as eg, in a consolidating statute,

does not do so (97). At most the principle affords a presumption of

no great weight concerning the meaning of the words used and

cannot be relied upon to perpetuate an erroneous construction …

For the reason given by Dixon CJ, the suggested rule nowadays is

little use as a guide and it will not be pennitted to prevail over an

interpretation otherwise appearing to be correct."