include them. The rejected rule is overridden or read down by an implied
qualification.
Potentially this form of ambiguity can arise where the competing rules are
enshrined in statute or common law, but for reasons that will now be explained
the main problem lies in two areas - where both rules are in the same statute or
both rules are in common law.
Rules in Statute
Rules in Different Statutes
Where competing or inconsistent rules are contained in separate statutes the
conflict can be resolved by resort to an established principle.
297
This principle
incorporates a general rule that contains an exception.
General Rule
The most basic rule is the maxim leges posteriores priores contrarias
abrogant, that is, later statutes prevail over earlier inconsistent ones.
Alternatively, this maxim can be stated as prior est tempore potior est iure,
that is, something that is earlier in time is stronger in law. In this latter form the
maxim seeks to resolve conflict between competing interests in the same
property as well as conflict between statutes that legislate on the same topic.
Exception to the General Rule
As is generally the
case, the force of the leges posteriores
maxim is
presumptive only and it may therefore be rebutted in a particular case if it can
be shown that the later statute is meant to operate subject to the earlier one. In
this case the earlier statute is an implied qualification or exception to the
operation of the later one, which is read down accordingly. An illustration of
this is the maxim discussed earlier, generalia specialibus non derogant. It
says that general things do not detract from specific ones. When the maxim is
applied the earlier statute survives and the later general statute is read down so
that it no longer conflicts with the earlier more specific statute on the same
subject.
Rules in the Same Statute
The maxims just cited apply only where the competing rules are in separate
statutes. It is possible that they may be in the same statute in which case there
is no standard maxim or rule available to resolve the ambiguity. Here the court
has to divine the intention of the legislature as best it can.
298
297
See Burrows (1976A).
298
An example is the conflict in the Commonwealth Constitution between s122
and s7, which was considered in Western Australia v Commonwealth (Territorial
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