First, it accepts that some implication is worthwhile and necessary. It is
necessary because implication is firmly embedded in the way that language is
used. It is worthwhile because it achieves good ends.
Second, it also accepts that implication involves modification to the natural or
ordinary meaning of the words of the statute. Consequently it should be
constitutionally accepted when done with restraint in proper circumstances in
order to achieve a worthwhile result. These proper circumstances are defined
by four conditions that must be met before a court can resort to implication:
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Rule (1)
Knowledge of Legislative Intent. The intention of the legislature
can be clearly identified.
Rule (2)
Failure of Words to Fulfil Intent. The words of the
statute as
enacted by the legislature fail to fulfil the legislative intent completely and
precisely.
Rule (3)
Identification of the Qualifying Words. It is possible to identify
with reasonable precision the words that parliament would and could have
used to fulfil its intention.
Rule (4)
Implication Not too Large. Modifying the scope of a provision
(imposing a qualification) or inserting the right words into a statute (adding an
extension) in order to bring the statute into line with the actual intent of the
legislature does not involve too large an alteration to the statute.
Rule 1: Knowledge of Legislative Intent
Rule (1) requires that the intention of the legislature can be clearly identified.
Adding words to a statute or restricting the ambit of words in the statute can
be justified by the obligation to implement “the purpose of [the] legislation”.
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Therefore,
it is necessary for the court to be confident that it knows this
purpose, including “the mischief with which the Act was dealing”.
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In determining the intent of the legislature, courts may utilise the expressio
unius
maxim. In full bloom the maxim says expressio unius exclusio alterius
est.
It translates that an express reference to one thing is an exclusion of
others. It is a presumption of statutory interpretation that operates in some
circumstances, not to invoke an implied extension but rather to guard against
it. It is therefore a hurdle to jump for those wanting to make an extension to a
statute.
245
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302, Inco
Europe v First Choice Distribution [2000] 2 All ER 109, 115 per Lord Nicholls,
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113 per McHugh J (and
the other members of the High Court reached the same conclusion without
referring to the test applied by McHugh J.)
246
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
247
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
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