Presumption of Efficacy
Where there is an inconsistency the only alternative to saving the statute by
resort to implication is to treat the relevant part of the statute as meaningless.
Courts, however, are reluctant to do this because it violates the presumption of
efficacy. This is expressed in the maxim ut res magis valeat quam pereat
(that the thing - the legislation - should be valid not invalid).
Golden Rule
Considerable support for implication to resolve an inconsistency comes from
the golden rule of interpretation. In a now classic formulation, Lord
Wensleydale attempted to define the circumstances when a court may depart
from "the grammatical and ordinary sense of the words”.
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He decreed that
these circumstances included the case where adherence to the words would
lead to “some repugnance or inconsistency with the rest of the instrument”. In
this case the court can modify "the grammatical and ordinary sense of the
words" so as to avoid the inconsistency.
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Consequently the occurrence of inconsistency represents a mandate for a
court to resort to implication to eliminate the inconsistency.
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One or other of
the conflicting provisions has to be read down to remove the inconsistency.
Or possibly both will be read down. There is just no alternative to some form
of implied qualification to the scope of at least one and possibly both
provisions except to treat the provision as meaningless.
Illustration
A good illustration of resolution of an inconsistency in a statute comes from
the decision of the High Court of Australia in Western Australia v
Commonwealth.
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This case arose because of an inconsistency between s7
of the Constitution
of the Commonwealth of Australia on the one hand, and
s122 on the other. Section 7 provides for the composition of the Senate,
which is one of the Houses of the Commonwealth parliament. It says that the
"Senate shall be composed of senators for each State, directly chosen by the
people of the State”. Thus, s7 regards the Senate as representing only people
from the states. Section 122, by contrast, authorises the Commonwealth
parliament to make laws that "allow the representation of [a] territory in either
House of the Parliament to the extent and on the terms which it thinks fit”. This
intimates that there can be representatives in the Senate from the territories.
The High Court resolved the conflict and decided the case by treating s7 as
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Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
229
Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
230
Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale
231
Western Australia v Commonwealth (Territorial Senators Case) (1975) 134 CLR
201
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