Members of a Class
When a statute wishes to refer expressly to all members of a class it has two
options. It can describe the class, and if it does so accurately all members will
be caught by this provision of the statute. Or it can nominate each individual
member of a class.
Against this
background, consider the case where a statute nominates, and
therefore regulates, one or more members of a class, but not all members.
Assume now that all members of the class seem equally deserving of
regulation by the statute.
277
What does a court do? Clearly it has two options,
and in practice both are used. First, the court can resort to implied extension
and so bring the omitted members within the statute. Argument for this
approach relies on the policy which the statute manifests. Alternatively, the
court can do nothing and allow the statute to operate on its own terms. Urging
this approach in certain circumstances is the expressio unius
maxim of
statutory interpretation.
278
In analysing possible instances of this ambiguity there is naturally great
emphasis placed on the notion of a class of things that contains individual
members. As a matter of terminology, sometimes the class itself is referred to
as a concept or an "abstraction,"
279
and members of the class as
conceptions.
280
As a matter of analysis, however, the existence of a class may
be contentious -
the "abstract concept" that constitutes the class is
"controversial," and conceptions of them are "fallible”.
281
Consequently, the
more fragile is the existence of the class or concept, the more difficult it is to
make out an argument for implied extension.
Argument for extending the scope of the statute by implied extension rests on
policy: in specifying some
members of the class, the conceptions, the
legislature really meant to refer to the whole class, the concept. On this view,
unstated members of the class are included by reference to this imputed
underlying intent. An example occurs in the defence power in art 1 §8 of the
United States Constitution. It grants power to Congress to raise "Armies" and
"a Navy," and, consonantly with this, to regulate "the land and naval forces of
277
See, for example, Adler v George [1964] 2 QB 7.
278
In full form the maxim is expressio unius exclusio alterius est. It translates that
an express reference to one thing is an exclusion of others.
279
Re Wakim
(1999) 198 CLR 511, 522 per Mchugh J. There is also reference in
Eastman v The Queen (2000) 172 ALR 39, 72-73.
280
Goldwsorthy (2000) pp 705-708
281
Goldwsorthy (2000) p 707
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