implication is a means of according the statute with this policy. This approach
receives some support from two common law rules or maxims of
interpretation, the mischief rule and the golden rule.
In its literal sense legislative intent refers to the actual legislative intent of those
who made
the statute. However, courts will sometimes impute an intention to
the legislature on the basis that there are certain general values that the law must
uphold.
Mischief Rule
Some justification for resorting to implication to give expression to the policy
behind a statute comes from a common law rule called the mischief rule. This
exhorts judges to interpret a statute by reference to its policy. In its classic
formulation in Heydon’s Case, the mischief rule urges that a statute be
interpreted “according to the true intent of the makers of the Act”.
210
For this
reason the mischief rule lends some specific support to the use of implication.
Part of this support comes from the general requirement to implement the
policy behind the statute. Part of the support also comes from some specific
statements in the case which assert that the function of the court is to "to
suppress subtle inventions and evasions for continuance of the mischief
[which the statute was designed to eliminate]" and "to add force and life to the
cure and remedy, according to the true intent of the makers of the Act”.
211
A
court may therefore close off a loop hole that otherwise allows evasion of a
rule or evasion of an obvious legislative intent. This can prevent a person
doing "indirectly" something that they are forbidden to do "directly”.
212
Golden Rule
Lord Wensleydale’s golden rule also lends support to reading a provision up
or down to accord with legislative policy.
213
In articulating the rule, His
Lordship referred to the rather extreme case where "the grammatical and
210
Heydon’s
Case
(1584) 3 Co Rep 7a at 7b. Pro privato commodo
means for
private or personal gain while pro bono publico
means for the public good. This
rule has been enunciated in many subsequent cases. See, for example, Lincoln
College’s Case (1595) 3 Co Rep 586 at 596, Mills v Meeking (1990) 91 ALR 16, 30-31 per
Dawson J, Maynard v O'Brien (1991) 78 NTR 16.
211
Heydon's Case (1584) 3 Co Rep 7a, 7b
212
Steiner v Attorney General (1983) 52 ALR 148, 154
213
Grey v Pearson
(1857) 6 HLC 61, 106 per Lord
Wensleydale. Yet even this
departure from the literal meaning was often explained by reference to the
language of the statute. The golden rule was conceived as dealing with “an error
or perceived defect in the text” which appeared “on the face of the Act”
and
occurred because of a mistake “in the wording of the Act” –
see Pearce and
Geddes (2001) p 21. This approach is indorsed, for example, by Griffiths CJ in
President of Shire of Arapiles v Board of Land and Works (1904) 1 CLR 679, 687.
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