According to ordinary principles of statute law the later statute prevails,
267
and
in doing so, repeals impliedly the inconsistent part of the earlier statute.
The generalia
maxim, however, advances an alternative response. It
acknowledges that the earlier specific statute may be making a special
provision for a
special case. Consequently, it is possible that the later statute
making general provision for the subject intended to leave this special
provision in place. If the court accepts that this is the situation, it imposes an
implied qualification on the later general statute to preserve the earlier one and
to avoid the inconsistency. In the result the earlier statute survives in tact and
the later statute is modified to accommodate it.
268
An example involved s62 of the Land Transfer Act 1952
(NZ), which
implemented the basic provision for the Torrens system of land title, namely
that a person had a secure interest in land if and when that interest was
registered in the Land Transfer Office. When this Act was passed there was
already in existence an established system for registering mining interests
(which are a special type of interest in land) in the Mining Office. The Privy
Council applied the maxim and held that these mining interests were an
exception to the general provisions in the Land Transfer Act 1952.
269
Human Rights
Implied qualification can be used to protect human rights. These rights and
freedoms, according to the Western liberal tradition, should be beyond policy
and politics. A citizen should be free to walk around with these rights intact
and immune from interference by any arm of government. A court can
implement these rights by reading down a power, be it legislative, judicial or
executive, to exclude from its scope power to do something that interferes
unduly with human rights. This reading is more apt and easy to justify when
the power is conferred in broad terms. The rationale for this is that "all statutes
are construed against a background of common law notions of justice and
fairness”.
270
Illustrations of Implied Extension
Introduction
There are several cases where implied extension has been used or could be
used. One comes from the Migration Act 1958 (Cth), a second from s92 of
267
The relevant maxim is leges posteriores contrarias abrogant, that is, later laws
override earlier inconsistent laws.
268
Grey v Pearson (1857) 6 HLC 61, 106
269
Miller v Minister for Mines [1961] NZLR 820, [1963] NZLR 560
270
Kioa v West (1985) 159 CLR 550, 62 ALR 321, 365 per Brennan J
 |
 |
 |