Second, the justification for invoking ambiguity of implication generates rules
or guidelines for determining when it is permissible to resort to the ambiguity.
These consist of some general principles from which some operational rules
can be devised. Third, there are illustrations of both implied qualification and
implied extension.
Favouring Implication: Implementing Policy
There is no word the primary meaning of which may not be modified by the
context.
202
Introduction
There is one fundamental justification for invoking ambiguity of implication: it
“is founded on the intent of the legislature”.
203
It therefore enables a court to
abide by the most fundamental requirement of interpretation, which is to
implement the intention that underlies
the statute.
204
Ideally a statute will
implement policy precisely, including only the desired cases and not including
cases that do not come within the policy. In practice this ideal is not easy to
achieve because policy making involves some very uncertain operations such
as making judgments about human behaviour, predicting the shape of society
in the future and taking into account the complexity and variety of situations
that a law will face. Yet legislation is typically made in, and addressed to, a
specific context, so that words can convey meaning “according to the
circumstances in which they are used”.
205
Implication assists a statute to implement the underlying policy by modifying
the letter of the law to preserve its spirit.
206
It makes the statute “consonant to
reason and good discretion”.
207
It avoids making “a fortress out of the
dictionary”
208
by recognising that a statute “does not exist in limbo” but
instead “rests on an assumption that it will operate only in a certain climate and
[when] circumstances of a certain sort will prevail”.
209
In other words, there is
a policy behind the statute that determined the desired scope and operation of
the statute, and reading the statute up or down by reference to an ambiguity of
202
Nicol v Chant (1909) 7 CLR 569, 581, per Sir Samuel Griffith
203
Stradling v Morgan (1560) 75 ER 305, 315. See also Bowtell v Goldsborough Mort
& Co Limited (1905) 3 CLR 444, 457-458, Commercial Union Insurance Co Ltd v Colonial
Carrying Co of New Zealand Ltd [1937] NZLR 1041, 1047-1049.
204
Heydon's Case (1584) 3 Co Rep 7a, 7b
205
Codelfa Construction v State Rail Authority
(1982) 149 CLR 337, 401 per
Brennan J
206
Church of the Holy Trinity v United States (1892) 143 US 457 at 459
207
Stradling v Morgan (1560) 75 ER 305, 315. See also Bowtell v Goldsborough Mort
& Co Limited (1905) 3 CLR 444, 457-458, Commercial Union Insurance Co Ltd v Colonial
Carrying Co of New Zealand Ltd [1937] NZLR 1041, 1047-1049.
208
Cabell v Markham (1945) 148 F2d 737 at 739 per Learned Hand J
209
Morris v Beardsmore [1981] AC 446, 459
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