limited by implication to laying down the general provisions for representation
in parliament. These had to be read subject to the special provision in s122 for
representatives from the territories.
Opposing Implication: Usurping the Legislature
While there may be good argument for implication, there are arguments against
it. First, it is “quite contrary to the letter” of the law.
232
For a court to read an
implication into a statute violates the rule of law, which decrees that the law
should be changed only by the legislature
233
(this attitude is sometimes labelled
the “new textualism”.
234
) Only then does the citizen have proper certainty as to
what the law is.
235
Second, any judgment that a statute should be read subject
to an implication, and any judgment as to the extent of the implication, are
likely to be subjective. What one person regards as a perspicacious
understanding of policy another may regard as merely a purely personal
view.
236
Inevitably there will be differences in outlook between judicial views as
to what is right and wrong, and as to what is the true policy of the legislature.
This leaves the way open for a judge to inject their own views of the matter
into the statute by resort to implication. Because of this, implication becomes a
major tool of judicial activism
237
and “an invitation to judicial law making”.
238
232
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.
233
Consequently in Royal College of
Nursing v DHSS
[1981] AC 800, [1981] 2
WLR 279, at p 303 Lord Edmund Davies described implication with which he did
not agree as “redrafting with a vengeance”.
234
Justice Antonin Scalia of the US Supreme Court is a proponent of this – see
Zeppos (1991), Karkkainen (1994), Schacter (1998).
235
R v The Judge of the City of London Court [1892] 1 QB 273, 301-302 per Lopes
LJ
236
As the High Court perspicaciously pointed out in McCawley v The King
(1918) 26 CLR 9, 24 ALR 413, just because a judge disagrees with a policy it is not
absurd or unjust.
237
See, for example, Australian Capital Television v Commonwealth (1992) 177 CLR
108. A famous and controversial example of this ambiguity arose in the Kisch Case,
R v Wilson; Ex parte Kisch
(1934) 52 CLR 234. Here the statute authorised a
Commonwealth official to administer a dictation test to any prospective entrant
"in a European language”. Kisch was a radical political figure and a national of
Czechoslovakia. He was asked to submit to a test in Scottish Gaelic. The High
Court of Australia held that in this context of immigration legislation a European
language referred to a language “which in some politically organised European
community is regarded as the common means of communication” (p 244), and
thus did not include Scottish Gaelic.
238
Scalia (1997)
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