qualification? Second, if there is an implied extension or qualification, how
wide or narrow should it be? Frequently there is great uncertainty in answering
one or both of these questions. This is the reason why implication is a cause
of ambiguity.
With personal and intimate communication the context will frequently make it
clear that a qualification is intended and will indicate the scope of the
qualification. With law, however, in the absence of this guidance from the
context,
the situation is otherwise. Most laws are cast
in general terms as
distanced communications, addressed not to a single person but to all
persons, and addressed not to a specific time but to operate until repealed. So
the context of a law is not as specific, immediate, identifiable and unchanging
as the context of spoken language. As a result implication is far less certain in
legislation than it is with personal communication.
Ambiguity and Arguments
It is part of the ordinary process of legislative construction to qualify the
generality of words.
201
Ambiguity
of implication
maintains a special relationship with the arguments
that it generates. To explain this, the starting point is the proposition that any
text potentially has ambiguity of implication, constituted by two meanings, one
that is literal and one that it is a
qualification. So, the ambiguity is technically
always possible. However, this ambiguity will generally be most apparent in
those cases where it has some chance of success. This happens because the
argument for a qualified meaning is obvious. In other words, the qualification
will be obvious when the argument in favour of it is also obvious. If we know
that this is the case we can avoid confusion by recognising the two facets of
what we see – the ambiguity and the arguments in favour of it. But despite this,
for more abundant caution it is worth actively considering this ambiguity even
when arguments for it are not immediately apparent.
Outline
Discussion of ambiguity of implication proceeds in three stages. First, there is
discussion of
justification for implication. This involves looking at the
arguments or reasons favouring and opposing implication. There are two
broad circumstances where there is some justification or argument for invoking
it to read a statute up or down. These are to accord the statute with the policy
that underlies it, or to avoid in internal inconsistency where one part of the
statute says one thing and another part says another. There are also arguments
against implication because it involves a court assuming a legislative function.
201
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 279, per Mahoney JA
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