Obviously, this happened because through “inadvertence” Parliament
overlooked an “eventuality”.
250
It failed to see fully what the legislation needed
to say to fulfil its purpose, and in consequence excluded or omitted something
vital from the scope or text of the legislation, or it drafted provisions too
widely so that the provisions includes items and events that the legislature did
not wish to include.
251
Therefore, to interpret the statute as it reads literally
would be
“incongruous”
252
or “capricious and irrational,”
253
especially where
liberty is at stake.
254
In short, there is “clear necessity”
255
to resort to
implication.
Rule 3: Identification of the Qualifying Words
Rule (3) requires that it is possible to identify with reasonable precision the
words that parliament would and could have used to fulfil its intention. Thus,
anyone reading the statute
would quickly and clearly identify the words that
parliament would have had to use to avoid the unintended omission
or
extension.
256
Having universal assent as this requirement specifies confers
some legitimacy on any ensuing implication (indeed it consists of imputed
direct democracy). Without this assurance the court would “cross the
boundary between construction and legislation”.
257
Rule 4: Implication not too Large
Rule (4) requires that modifying the scope of a provision (qualification) or that
adding the right words (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. That is, the modification to the scope of a provision must be “neither
250
Wentworth Securities v Jones
[1980] AC 74, 105-106, per Lord Diplock. See
also Bermingham v Corrective Services Commission of New South
Wales
(1988) 15
NSWLR 292, 302 per McHugh J
251
Bermingham v Corrective Services Commission
(1988) 15 NSWLR 292, 302 per
McHugh J, Inco Europe v First Choice Distribution [2000] 2 All ER 109, 115 per Lord
Nicholls
252
Cooper Brookes v FCT (1981) 35 ALR 151, 157 per Gibbs CJ
253
Cooper Brookes v FCT (1981) 35 ALR 151, 170 per Mason J and Wilson J
254
Bermingham v Corrective Services Commission
(1988) 15 NSWLR 292, 302, per
McHugh J
255
Thompson v Gould [1910] AC 409, 420
256
Bermingham v Corrective Services Commission
(1988) 15 NSWLR 292, 302 per
McHugh J, Inco Europe v First Choice Distribution [2000] 2 All ER 109, 115 per Lord
Nicholls. This line of reasoning - that a reader would quickly and clearly identify
the omitted words -
echoes one of the guidelines that courts use when deciding
whether a contract contains an implied term.
257
Inco Europe v First Choice Distribution
[2000] 2 All ER 109, 115 per Lord
Nicholls
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