These reasons for not resorting to implication have led some judges to
formulate rules prohibiting it. Thus Lord Mersey asserted: “It is a strong thing
to read into an Act of parliament words which are not there” and “it is [also] a
wrong thing”.
239
In a similar vein Justice Stephen said that “it is no part of the
judicial function to fill gaps disclosed in legislation”.
240
There is a good
constitutional reason for this stance. As Lord Simonds put it “[i]f a gap is
disclosed, the remedy lies in an amending Act,” and not in a “usurpation of the
legislative function under the thin disguise of interpretation”.
241
In essence, implication is generally undesirable because it usurps the legislative
function by altering the literal meaning of a statute. However, an implied
extension is more overtly legislative and is legislative to a greater degree than
implied qualification, so much of the opposition to implication is directed to it.
Resolution of the Conflict: Restricted Implication
Introduction
Clearly there is a conflict in both policy and principle between arguments
favouring implication as an interpretive device and arguments opposing it.
242
This is also reflected in judicial inconsistency -
sometimes courts
utilise an
implied extension
or qualification,
243
and sometimes they refuse to do it.
244
A
plausible resolution of this conflict is made by an approach that does two
things.
239
Thompson v Gould
[1910] AC 409, 420. See also Western Australia v
Commonwealth (1975) 134 CLR 201, 251, 7 ALR 159, 191.
240
Marshall v Watson (1927) 124 CLR 640, 649
241
Magor & St Mellon's RDC v Newport Corporation [1952] AC 189, 191. See also
Inco Europe v First Choice Distribution [2000] 2 All ER 109, 115 per Lord Nicholls.
242
Re Prince of Blucher
[1931] 2 Ch 70, R v Ellis
(1844) 6 QB 501, 115 ER 187,
Tinkham v Perry [1951] 1 KB 547. For a difference of opinion between Lord Denning
and Lord Simond about whether courts should fill the omission of the legislature
see Magor & St Mellon's RDC v Newport Corporation [1952] AC 189. For discussion of
relevant cases see Pearce and Geddes (2001) pp 40-45
243
Adler v George [1964] 2 QB 7, Anstee v Jennings
[1935] VLR 144, Minister for
Immigration v Mayer (1985) 61 ALR 609. For illustrations of where courts have and
have not resorted to this ambiguity see Pearce and Geddes (2001) pp 40-45.
244
Whiteley v Chappell (1868) LR 4 QB 147. There, s3 of 14 & 15 Vict c105 created
an offence for a person to "personate any person entitled to vote at such election”.
The accused had personated a person who had died. Since a dead person is not
entitled to vote the court held that the accused was not guilty. For illustrations of
where courts have and have not resorted to this ambiguity see Pearce and Geddes
(2001) pp 40-45.
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