To illustrate this maxim, assume there is a
statute that exempts fishmongers
from a certain legal liability. Assume first of all that the statute says nothing
about whether employees and agents who act on behalf of fishmongers are
also exempt. In that case the question would be open to dispute. On the one
hand, it could be argued that by logical implication the statute intended to
exempt employees and agents, even though they are not specifically
mentioned. This is an illustration of implied extension of a statute. On the other
hand, it could be argued that the statute does not refer to employees and
agents and it therefore does not exempt them. Clearly there is no obvious way
of deciding between these two arguments.
Now let us vary the position and assume that the statute has a section that
specifically exempts employees but makes no mention of agents. What is the
position of agents? In such a situation, the expressio unius presumption may
apply. An express reference has been made to employees but no mention
made of agents. If expressio unius
did apply, agents would not be included
within the exemption.
Expressio unius
operates in situations where some of the things that might
have been implied are in fact spelt out. Specification of these matters raises the
presumption that the legislature decided not to rely on implication but fully
addressed its mind to all of the possibilities. Therefore it spelt out those that it
wanted to be covered, and those it did not mention it meant to exclude.
Presumption, however, is an unruly beast, ridden by many but tamed by few,
and the maxim is of uncertain application. Therefore it must be used with great
care.
248
Rule 2: Failure of Words to Fulfill Intent
Rule (2) requires that the words of the statute as enacted by the legislature fail
to fulfil the legislative intent completely and precisely. So, in the particular
case, giving words their natural meaning would not fulfil this purpose. As
Justice McHugh put it, the words are “unyielding”
in this regard because the
literal meaning is a clear departure from the manifest intention of the
legislature.
249
248
O'Sullivan v Farrer (1989) 89 ALR 71
249
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302, citing
James Hardie v Seltsam (1988) 159 ALR 268, 288 per Kirby J, Inco Europe v First Choice
Distribution [2000] 2 All ER 109, 115 per Lord Nicholls
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