unreasonable nor unnatural,”
258
nor “too large or too much at variance with the
enacted words”.
259
Abiding by Rule (4) prevents a court from trespassing into
the forbidden field of legislation.
260
Illustrations of Implied Qualification
Introduction
Implied qualification restricts or narrows the natural meaning of a word or
phrase. To refer to our example above, the sign "Dogs must be carried on the
escalator" is potentially addressed to two classes of person, those who have a
dog and those who do not have a dog. Common sense indicates that the sign
is really addressed to only one class, those who have a dog. Thus the sign is
read subject to an implied qualification or restriction, namely that it does not
apply to those who do not have a dog. Otherwise, to comply with the
direction before riding on the escalator a person without a dog would have to
obtain a dog and then carry it.
There are many ways in which courts use and impose implied qualification.
Some examples from areas such as criminal law, administrative law, statutory
interpretation and human rights will illustrate this.
Criminal Law
In criminal law both the doctrine of mens rea (that a guilty mind is a necessary
ingredient for a criminal offence) and the common law defences operate as
implied qualifications on the scope of criminal statutes. These reflect the view
that criminal liability depends on moral guilt as well as causation of harm.
Another illustration from criminal law is the maxim ex turpi causa non oritur
actio – no action arises from a wrong cause. In other words, a person cannot
profit by their own wrong doing. In Beresford
v Royal Insurance
Major
Beresford had run up huge gambling debts.
261
He had insured his life for
50,000 pounds. Only minutes before the policy expired Beresford committed
suicide. Being a man of honour he did this to pay his gambling debts with the
258
IW v City of Perth
(1997) 146 ALR 696, 702, per Brennan CJ, cited with
approval in Newcastle City Council v GIO
(1997) 149 CLR 623, 642 by Mason CJ,
Dawson, Toohey, Gaudron and McHugh JJ
259
Bates (2000) p 142
260
Inco Europe v First Choice Distribution
[2000] 2 All ER 109, 115 per Lord
Nicholls, citing Lord Diplock in Jones v Wrotham Park Settled Estates [1976] 2 All ER
393, 404; [1977] Ch 1, 18
261
Beresford v Royal Insurance Co Ltd (1936) 52 TLR 650; [1937] 2 KB I97
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