construction of the Act the defendant should have been acquitted -
"in" the
place is not "in the vicinity" of it - but the court repaired the obvious defect in
the Act and treated the Act as if it read "in or in the vicinity of" a prohibited
place.
Imputed Legislative Intent
Courts sometimes impute an intention to the legislature on the basis that there
are certain general values that the law must uphold. Justice Brennan succinctly
expressed this notion in the following way: "All statutes are construed against a
background of common law notions of justice and fairness”.
226
This provides
justification for resort to implication because doing so will promote, or prevent
violation of, fundamental values.
Typically these are values widely acknowledged in cases and legal texts, and
implemented in legal doctrines and maxims. Resorting to and supporting these
values can be justified in either of two ways. One justification is relevant to
policy. It rests on the argument that a legislature would not intend to pass laws
which unduly and improperly interfered with accepted legal and social values.
In other words, promoting values is justified by imputing to the legislature a
policy or intention not to willingly violate these values.
A second justification, while noble in spirit is a harder argument to maintain in
reason. It is that courts are guardians of these values and should exercise a
legislative function to uphold them in the face of an assault on them by the
elected legislature. This approach draws on natural law notions of universal
values that laws must uphold in order to be legitimate.
Favouring Implication: Resolving Inconsistency
Introduction
Implication is actually needed, as distinct from being invoked by choice, when
there is an internal contradiction in a statute or other instrument, resulting in
"some repugnance or inconsistency" between the provision and "the rest of
the instrument,"
227
or between the provision and a provision in another
instrument. One part of the statute says or suggests one thing, another part
says or suggests another. In this case an implication is needed to bring all of
the provisions into line. At least one provision has to be read more widely or
narrowly than it is written, and possibly both may be so read. Two canons of
interpretation support this approach, the presumption of efficacy and the
golden rule.
226
Kioa v West (1985) 159 CLR 550, 62 ALR 321, 365 per Brennan J
227
Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
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