Generalia Specialibus non Derogant

Generalia specialibus non derogant

The principle is summarised in Halsbury's Laws of England, 4th ed, vol 44(1), para 1300:

Basic Definition

"It is difficult to imply a repeal where the earlier enactment is particular, and the later general. In such a case the maxim generalia specialibus non derogant (general things do not derogate from special things) applies. If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general." However, as I said in Stokes v. Brambles Holdings Ltd[1], it is very difficult to apply such canons of construction to amendments to the Workers Compensation Act which do not enact rights but rather limit them or take them away.[2]’

Background of Principles

The principle descends clearly from decisions of the House of Lords in The Vera Cruz[3] and the Privy Council in Barker v Edger [4] and has been affirmed and put into effect on many occasions. Lord Cooke of Thorndon pointed out, however, in Effort Shipping Co Ltd v Linden Management SA [5] that the maxim is not a technical rule peculiar to English statutory interpretation, rather it "represents simple common sense and ordinary usage".

Based on Linguistic Cannons

It is based, like other linguistic canons of construction, "on the rules of logic, grammar, syntax and punctuation, and the use of language as a medium of communication generally.[6] It has to be remembered, as LORD WILBERFORCE observed in Associated Minerals Consolidated Ltd v Wyong Shire Council,[7] that it is still a matter of legislative intention, which the courts endeavour to extract from all available indications.[8] In the matter of development of international law it was observed that:’Our statute law has evolved rules of construction for settling differences as between instruments of equal efficacy, as, for example, generalia specialibus non derogant; but these would not help to decide how much room was to be given to subordinate legislation. In short, a principle of private international law that allows property legislation to operate in the territory of another country, so far from being a principle which resolves the conflict of laws, will create a conflict which it will require the formulation of a new system to settle.’[9]Thus, even if, ……..the 1990 Act contained a power to repeal or modify earlier primary legislation, that power should respect the principle "generalia specialibus non derogant". ‘it might be possible to try to reconcile the sub-clauses by viewing 5(a) as being a general provision and 5(b) as being specific, with the result that the specific provision might take priority over the more general provision. This approach would be in line with the maxim generalia specialibus non derogant.[10]’ 

Halsbury: Definition

The maxim generalia specialibus non derogant on which the applicants relied is dealt with in Volume 44 (1) of Halsbury's Laws of England at paragraph 1300 as follows: -

"1300. Implied repeal of particular enactment by general enactment and principles of Generelia specialibus Non Derogant

It is difficult to imply a repeal where the earlier enactment is particular, and the later general. In such a case the maxim generalia specialibus non derogant (general things do not derogate from special things) applies. If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general.[11]

Case Laws where Maxim Has Been Applied

Reliance was made on the general principle of statutory interpretation, generalia specialibus non derogant, (a general provision does not derogate from a special one). Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects dealt with by earlier legislation, the earlier legislation is not repealed or altered without an indication of an intention on the part of the legislature to do so - The Vera Cruz. [12] 

Commo Sense Rule
This maxim was described by LORD COOKE of Thorndon (Effort Shipping Company v Linden Management [supra]) as representing simple common sense and ordinary usage.[13] The interpretation principle generalia specialibus non derogant is based on the principle that where a state of facts falls within the literal meaning of a wide provision where there is an earlier unrepealed statute obviously intended to cover the state of facts in greater detail and where the effect of the two enactments is not precisely the same it is presumed that Parliament intended the earlier provision to continue to apply:

"Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation you are not to hold that earlier and special legislation indirectly repealed, altered or derogated it from merely by a force of such general words without any indication of a particular intention to do so."(per LORD SELBORNE LJ in The Vera Cruz[14]"

There is no difficulty in reading the general provisions of RIPA, and in particular section 27, as subject to the express statutory rights of private consultation with a lawyer of those in custody. For the reasons that I have given I have concluded that this is the correct approach. Contrary to the majority view, I consider that this is a case for the application of the maxim generalia specialibus non derogant. While RIPA enables authorisation of surveillance of communications to which LPP attaches at common law it does not, in my view, enable authorisation of invasion by covert surveillance of the express rights given by statute to a detainee to consult a lawyer privately. It would not be incompatible with the Convention for power to be granted in exceptional circumstances to carry out such surveillance, but I consider that the power should be granted by a statute that adequately defined those circumstances and prescribed who was to ascertain that they existed. It seems likely that the Strasbourg Court would expect such persons to have judicial status[15].I am further referred to the rule of statutory construction “generalia specialibus non derogant”. In Halsbury’s Laws of England, 4th ed., Volume 44(1), (London, 1995) paragraph 1486 this principle is explained as follows:-

“ Construction of general and particular enactments. …Whenever there is a general enactment in an Act which, if taken in its most comprehensive sense, would override a particular enactment in the same Act, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the Act to which it may properly apply.”

The rule of statutory construction known as “generalia specialibus non derogant” is defined as a rule which requires that “general things do not derogate from special things” (see Murdoch’s Dictionary of Irish Law (4th ed.)). 

In summary the rule provides that where an earlier statute deals expressly and precisely with a particular issue, a later statute, enacted in general terms will not repeal the earlier instrument unless the contrary intention is indicated within the legislation[16]. The rule has been considered in this jurisdiction on a number of occasions [17]. In summary it has been argued, approved and accepted by the Irish courts as a maxim of legislative interpretation. However, most of the cases reported in this jurisdiction concerned conflicts between the provisions of two separate instruments. No specific authority can be readily found which relates to conflict between two sections of the same statute.[18]” This maxim literally means that the general shall not derogate from the particular. This principle is used to deal with difficulties which may arise when a statute is enacted whose provisions conflict with those of an earlier statute. The statute containing general subject matter is generally taken not to affect one which applies to a specific matter. The effect is to prevent the unintentional repeal or qualification of a specific provision by a later one which is general in nature[19].‘Where Parliament has specifically provided a régime for the commencement of proceedings for the offence of having sexual intercourse with an under-age girl, no other more general words, such as are to be found in section 14, are to derogate from that special provision: generalia specialibus non derogant. That was the approach favoured by the majority of the High Court of Australia in Saraswati v The Queen [20], per GAURDON and McHUGH JJ respectively. To put the point another way, the Crown cannot do indirectly what it is forbidden to do directly[21]’.

High Court of Australia
The maxim was considered by the High Court of Australia[22]. In Barker v. Edger[23] it was stated: "When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly." 
This statement was referred to with approval in Blackpool Corporation v. Starr Estate Co[24]]; and in the same case[25] it was referred to the rule as "a rule of construction which has been repeatedly laid down and is firmly established," and expressed the rule in the following terms:—
"Wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. ... Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest."
In Seward v. The Vera Cruz[26] it was said: 
"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."


 The principle as expressed by LORD SELBORNE in Seward v. Vera Cruz[supra] is: "Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation ... that earlier and special legislation" is not to be held "indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."  
 The language of Lord Hobhouse in Barker v. Edger[supra], and of VISCOUNT HALDANE in Blackpool Corporation v. Starr Estate Co.[supra], responds to the same test.[27] But this maxim should not be pressed too far: it is but an aid to construction[28]. In the case of Langley P&J v Yarra Ranges SC[29]where the provisions of Planning and Environment Act 1987 (PE Act) were interpreted it was observed by the court that: In this case I believe this point falls to be decided in accordance with the well recognised maximum of construction - generalia specialibus non derogant . In other words the specific provision inserted at the direction of the Minister must be given weight over the general provisions of the Planning Scheme. The maxim generalia specialibus non derogant thus operates in a context where, if the general provision of one Act, were to apply, it would neutralize the specific provisions of Divisions of the ITAA i.e another Act. Compare O’CONNOR J in Goodwin v Phillips [30]: 
“Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.[31]”
 The leading text on statutory interpretation is Pearce and Geddes Statutory Interpretation in Australia, presently in its sixth edition. The learned authors’ consideration of the maxims expressio unius est exclusio alterius and generalia specialibus non derogant make it clear that the rules or principles to which these maxims refer are properly described as aids to construction and should not be applied in some rigid, mechanical or automatic fashion. The learned authors refer to the leading decisions and note that “the application of the expressio unius approach will be largely one of impression” and observe that “because of ... problems with respect to its use, the expressio unius est exclusio alterius rule is applied by the courts with extreme caution.” They refer, to the judgment of LONG INNES J in Rylands Brothers (Aust) Ltd v Morgan[37] where it was noted that the expressio unius maxim “must always be applied with caution and only in appropriate cases” and adopted the reasoning of Wills J in Colquhoun v Brooks[38] where WILLS J observed:

“I may observe that the method of construction summarised in the maxim expressio unius exclusio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind.”

In Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) the Court observed that the expressio unius maxim

“...must always be applied with care, for it is not of universal application and applies only where the intention it expresses is discoverable upon the face of the instrument ... It is ‘a valuable servant, but a dangerous master’...” [39]

In relation to the maxim generalia specialibus non derogant it was stated:“The generalia specialibus approach should only be called in aid ‘where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation[40].

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[1] Stokes v. Brambles Holdings Ltd [1994] NSWCC 22; (1994) 10 NSWCCR 515

[2] Ogilvie v Jl Smith Engineering Pty Ltd [1996] NSWCC 1; (1996) 12 NSWCCR 623 (2 February 1996)

[1996] NSWCC 1; (1996) 12 NSWCCR 623 (6297/95) Compensation Court of New South Wales: per NEILSON J

[3]The Vera Cruz (1884) 10 App Cas 59

[4] Barker v Edger [1898] AC 748

[5] Effort Shipping Co Ltd v Linden Management SA [1998] AC 605, 627

[6] (Bennion, Statutory Interpretation, 5th ed (2008), p 1155)

[7] Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, 554

[8] Francis Bennion's Statutory Interpretation 2nd ed. (1992) at p. 805: "A linguistic canon of construction reflects the nature or use of language generally. It does not depend on the legislative character of the enactment in question, nor indeed on its quality as a legal pronouncement. It applies in much the same way to all forms of language . . . Linguistic canons of construction are not confined to statutes, or even to the field of law. They are based on the rules of logic, grammar, syntax and punctuation; and the use of language as a medium of communication generally." Cited by LORD COOKE OF THORNDON in Effort Shipping Company Ltd v. Linden Management SA and Others [1998] UKHL 1; [1998] AC 605; [1998] 2 WLR 206 (22nd January, 1998)
URL: http://www.bailii.org/uk/cases/UKHL/1998/1.html
Cite as: [1998] 2 WLR 206, [1998] UKHL 1, [1998] 1 All ER 495, [1998] AC 605

[9]Peer International Corporation & Ors v Termidor Music Publishers Ltd. & Ors [2003] EWCA Civ 1156 (30 July 2003)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1156.html
Cite as: [2003] EWCA Civ 1156 per Lord Justice Aldous

[10] Peabody Trust v Reeve [2008] EWHC 1432 (Ch) (02 June 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/1432.html
Cite as: [2008] EWHC 1432 (Ch) per G MOSS QC

[11].extracted from: C & Ors, Re Judicial Review [2007] NIQB 101 (30 November 2007)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2007/101.html
Cite as: [2007] NIQB 101

[12] The Vera Cruz (1884) 10 App Cas 59 at 68

[13] C & Ors, Re Judicial Review [2007] NIQB 101 (30 November 2007)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2007/101.html
Cite as: [2007] NIQB 101 per CAMPBELL LJ

C & Ors, Re Judicial Review [2007] NIQB 101 (30 November 2007)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2007/101.html
Cite as: [2007] NIQB 101 [14] GIRVAN LJ

[15] McE, Re (Northern Ireland) [2009] UKHL 15 (11 March 2009)
URL: http://www.bailii.org/uk/cases/UKHL/2009/15.html
Cite as: [2009] UKHL 15

[16] Keane v. Western Health Board [2007] 2 I.R. 555; 2000 No. 8232P [F.L. 13256]per QUIRKE J. at p. 559:-

[17] (see DPP v. Grey [1986] I.R. 317 and National Authority for Safety and Health v. Fingal County Council [1997] 2 I.R. 547)

[18] In this case the High Court of Ireland was considering the Section 77 of the Safety, Health and Welfare at Work Act 2005 Act provides, inter alia, that it is an offence to:-

[19] X v. Department of Justice, Equality and Law Reform [2005] IEIC 7 (22 May 2005)

URL: http://www.bailii.org/ie/cases/IEIC/2005/7.html
Cite as: [2005] IEIC 7 per KEVIN MURPHY

[20] Saraswati v The Queen (1991) 172 CLR 1, 17-18 and 23-24

[21] R v. J [2004] UKHL 42 (14 October 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/42.html
Cite as: [2004] 3 WLR 1019, [2005] 1 Cr App R 19, [2005] 1 AC 562, [2004] UKHL 42, [2005] 1 All ER 1 per LORD RODGER OF EARLSFERRY

[22] Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia Prosecutor [1923] HCA 25; (1923) 32 CLR 276 (6 June 1923) per KNOX CJ

[23] (1898) A.C., at p. 754 per LORD HOBHOUSE

[24] (1922) 1 A.C., at p. 38.

[25] 1922) 1 A.C., at p. 34.

[26] (1884) 10 App. Cas., at p. 68. per LORD CHANCELLOR

[27] Banks Officials[supra] per HIGGINS J

[28] Bank Officials [supra] per STARKE J i

[29] Langley P&J v Yarra Ranges SC [2002] VCAT 221 (11 December 2001

[30]Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14:

[31] Deputy Commissioner[supra]

[32] The Bank Officials' Association (South Australian Branch) v. The Savings Bank of South Australia1923) 32 C.L.R. 276 at 281-285, 291-292 ; Maybury v. Plowman (1913) 16 C.L.R. 468 at 473-474; Pesic v. South Sydney Municipal Council[1978] 1 N.S.W.L.R. 135 at 141-142; Butler v. Attorney-General for the State of Victoria1961) 106 C.L.R. 268 at 276, 290-291; and Saraswati v. The Queen. (1991) 172 C.L.R. 1 at 17-18

[33] In re Smith's Estate; Clements v. Ward 35 Ch. D., 589.

[34] Wood V.C. in Fitzgerald v. Champneys 2 J. & H., 31, at p. 54.

[35] In re Smith's Estate; Clements v. Ward 35 Ch. D., 589, at p. 595. as cited in Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468 (5 September 1913) ,HIGH COURT OF AUSTRALIA per BARTON A.C.J.

[36] Mullens v Federal of Taxation [(1977) 140 CLR 330]see also: W P Keighery Pty Ltd v Federal of Taxation [(1957) 100 CLR 66]; Federal of Taxation v Sidney Williams (Holdings) Ltd [(1957) 100 CLR 95]; and Federal of Taxation v Casuarina Pty Ltd [(1971) 127 CLR 62]. The subsequent authorities – Federal of Taxation v Patcorp Investments Ltd. [(1976) 140 CLR 247, esp. at pp 298-299]; Slutzkin v Federal of Taxation [(1977) 140 CLR 314]; and Cridland v Federal of Taxation [(1977) 140 CLR 330]

[37] Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161

[38] Colquhoun v Brooks 19 QBD 400 at 406

[39] [1982] HCA 2; (1982) 148 CLR 88

[40]Purcell v Electricity Commission of New South Wales [1985] HCA 54 [supra]; (1985) 60 ALR 652 at 657), where ‘contrariety is manifest: Reseck v FCT [1975] HCA 38; (1975) 133 CLR 45 at 53.