To demonstrate fully the nature of the ambiguity, it is necessary to illustrate
circumstances for this sign when the
alternative meaning might be plausible.
Assume that a department
store closes for a time to hold an obstacle race to
raise funds for charity. The idea is that a contestant has to start at the ground
floor and work their way up to the top floor. They are given a fixed amount of
play money. For each floor they have to make nominal purchases or sales to
satisfy some criterion that is deliberately worded in a vague or deceptive
manner to add to the fun. If they make the wrong purchase an obstacle higher
up will force them to go back down to the floor where the item is sold and set
out again for the top from that floor. But by making the ‘correct’ purchases
they are able to move from one floor to another and to handle the obstacles
put in their way.
On Floor 3 toy dogs are sold. At the counter there is a sign
“Do you need a companion?” On Floor 5, on the approach to the escalator,
there is the sign: “Dogs must be carried on the escalator”. In this context the
notice clearly means that the contestant needs to have purchased a dog on
Floor 3 and to have it with them now in order to carry it on the escalator. So,
if they did not purchase a dog when they had their opportunity, they need to
return to Floor 3 and purchase a dog to ride on the escalator.
Ambiguity
This example illustrates a simple proposition, namely that language
communicates not only by express words but also by implication, which can
either narrow or widen the natural scope of the words used. When this
happens with a statute, because of the implication a court will read the statute
more widely (an implied extension) or more narrowly (an implied qualification)
than it is written. As lawyers describe it, the provision is either read up or read
down, resulting in either implied qualification or implied extension to the scope
of the statute.
198
A
court disregards the “plain meaning”
199
of the statute and
gives a provision the “strained construction”
200
that this ambiguity begets.
Implication involves two questions. First, are we to read the statute literally
without resort to implication or to read it subject to an implied extension or
198
At first glance it may seem that a qualification narrows the scope of the
statute and an extension widens it, but this may not always be the case. With a
qualification, for example, if the provision that it qualifies is an exemption or
exception then the overall effect of this ambiguity is to widen the main operation
of the statute.
199
Sutherland Publishing Co Ltd v Caxton Publishing Co [1938] 1 Ch 174, 201, per
MacKinnon J
200
Newcastle City Council v GIO
(1997) 149 CLR 623, 642 per McHugh J, citing
Kingston v Keprose
(1987) 11 NSWLR 404, 422, who was citing Mackinnon J in
Sutherland Publishing Co Ltd v Caxton Publishing Co [1938] 1 Ch 174, 201
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