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Friday, May 7, 2010

Chapter-26 Maxim To establish Intention of legislature-Part-3

Maxim to be used to ascertain the intention of Legislature

‘Approaching the legislative intent here simply by application of the maxim generalia specialibus non derogant is mistaken. The maxim should not be understood to require that a particular provision in one enactment always overrides a general provision in another. Indeed treating a particular provision as being subject to a more general one sometimes (but not always) provides a way in which a statute can be read as a whole. What is however required in statutory construction is the ascertainment of the meaning of the particular provision in dispute in light of the text of the statute read as a whole, its history and purpose.[1] In R v Industrial Commission of South Australia; Ex parte The Fire Brigades Board,[2] a case concerning the interface of the Fire Brigades Act and the Industrial Conciliation and Arbitration Act, KING CJ stated:

“The maxim generalia specialibus non derogant is a canon of construction, and, like all canons of construction, is to be used by courts as an instrument for the ascertainment of the true intention of the legislature as expressed in the statute. The classic exposition of the canon of construction embodied in the maxim is to be found in the judgment of the Earl of Selborne LC in Seward v ‘Vera Cruz’ (1884) 10 AC 59 at p 68:

‘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specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed altered or derogated from merely by force of such general words, without any indication of a particular intention to so.’[3] The principle of construction was summarised by DEANE J as follows:

"As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. `The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative...[4]'. Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter, I consider that the former example of repugnancy is likewise present.[5]"

[1] Knaggs v Director of Public Prosecutions [2007] NSWCA 232, Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 at paras [95], [96]

[2] (1981) 26 SASR 580

[3] Cited from: Sanchez, Marozzi, Punu v ISS Health Services Ltd; Ledo, Jeffery v ISS Health Support Services Pty Ltd; Peel, Visnjic, Galanis-Encheff v ISS Tempo Health Support Services Pty Ltd; Still v Tempo Services Ltd [2008] SAIRC 20 (17 April 2008), South Australian Industrial Relations Court.However, the doctrine did not find any application in a case where it was observed that:” Accordingly, the application of the doctrine “ generalia specialibus non derogant” (general things or words do not derogate from special things or words) as referred to in Hungry Jacks Pty Limited and others v Geoffrey Wilkins and others 71 WAIG 1751 applies. It is argued that the application of that doctrine to the facts in this matter draws the conclusion that the Award does not apply to the Claimant. With all due respect I do not concur with that submission. The doctrine has application where there is a need to give meaning to competing statutory provisions.” Cynthia Ellen Currie v Digital Documents Co (W.A.) Pty Ltd [2006] WAIRComm 5262 (2 August 2006) WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT per G. CICCHINI and further in another case it was stated to apply as per :” We so find. Section 47 deals with that specific issue. Section 50 deals with a general issue of a person who becomes totally incapacitated after receiving lump sum compensation for a loss. The maxim generalia specialibus non derogant (specific excludes the general) applies” as quoted in Re Frank Finnan King and Australia Telecommunications Commission [1984] AATA 256 (6 July 1984) ADMINISTRATIVE APPEALS TRIBUNAL per FRANK FINNAN KING

[4] (per Romilly MR in Pretty v Solly (1859) 26 Beav 606 at 610; 54 ER 1032 at 1034) See also Downey v Trans Waste Pty Ltd [1991] HCA 11; (1991) 172 CLR 167, at 171-172, per MASON CJ, DEANE, GAURDON and McHUGH JJ; Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, at 17, per Gaudron J; at 23-24 per McHUGH, The particular application of this principle, to which Professor Pearce and Mr Geddes referred, was expressed by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672, at 678:

"It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 Gavan Duffy CJ and Dixon J said: `...When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power'."

It must, however, be borne in mind that the rules of construction, including the particular application of the maxim generalia specialibus non derogant must at all times be applied to give effect to the intention of the legislature: Grofam Pty Ltd v ANZ Banking Group (1993) 45 FCR 445 (FCA/FC), at 451. quoted from: Paul William Gunner v Minister for Immigration & Multicultural Affairs [1997] FCA 1492 (19 December 1997), FEDERAL COURT OF AUSTRALIA ,also The principle is stated by O'CONNOR J in Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1 at 14 as follows: "Where there is a general provision which, if applied in its entirety, would neutralise 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." In Maybury v. Plowman [1913] HCA 43; (1913) 16 CLR 468 at 473-4 BARTON ACJ explained the "generalia" principle as follows: "The judgment under appeal turns upon the application of the principle involved in the maxim generalia specialibus non derogant to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision...I wish to quote a passage from the judgment of Wood V-C in Fitzgerald v. Clampneys 2J and H at 54, quoted by STIRLING J in Re Smith's Estate; Clements v. Ward (1887) 35 Ch D 589 at 595. "The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated." In any event the generalia principle is always subject to a contrary legislative intention. The Privy Council in Associated Minerals Consolidated Ltd. v. Wyong Shire Council (1975) AC 538 at 553 said: "The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?" Finally, the principle involves the court in considering the practical ways in which the legislation can operate together and whether, in that context, an irreconcilable conflict really arises: see Royal Automobile Club of Australia v. Sydney City Council (1992) 27 NSWLR 282 at 294 per KIRBY P. The maxim was explained by GAVAN DUFFY CJ and DIXON J in Anthony Horden and Sons Ltd. v. The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 as follows: "When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall
be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the
same instrument which might otherwise have been relied upon for the same power." ‘The maxim is usually applied to reconcile or read down by implication a general power which is inconsistent with a specific power in the same instrument or enactment. It has little, if any, applicability to powers expressly conferred in separate enactments.’ Quoted from :”
Re Honourable Murray Wilcox A Judge of the Federal Court of Australia Ex Parte: Venture Industries Pty Ltd, Harry Kioussis and Penny Kioussis [1996] FCA 1497 (23 May 1996) FEDERAL COURT OF AUSTRALIA.Further in another case it was observed that: The earlier Sydney Harbour Trust Act 1900 and Maritime Services Act were not affected by s.68 of the Local Government Act 1993 because a general statute does not derogate from a specific statute ( generalia specialibus non derogant). By s.33 of the Act of 1900, “exclusive control of the port and of ... wharves ... is vested in the commissioners” (Sydney Harbour Trust Act, s.33), and that control was transferred to MSB by the Maritime Services Act, s.6; and the wharf constitutes an “installation” and a “structure” for the purposes of the Maritime Services Act and thus fell within the control of MSB.2. Even if s.68 of the Local Government Act 1993 was applicable, MSB, as a statutory body representing the Crown, was exempted by s.69. The effect of this exemption, as applying in relation to demolition of the wharf, was to shield C&A as well as MSB since C&A, in effecting demolition pursuant to the lease, would have been acting “for the benefit and in the interest of” MSB (and thus the Crown): Citizens Airport Association v MSB and FAC (1993) 79 LGERA 254; R v Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53; (1949) 79 CLR 428 at p.435 (Latham CJ) and p.438 (DIXON J).At para 3 of this case it has been stated that:” The answer depends on the application of principles of statutory construction. The principles for determining whether there has been an implied repeal arising from inconsistency between statutes were considered by me in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697; (2003) 53 ATR 527 at [101]- [118]. The contrariety test there discussed would apply to this case of inconsistency between two New South Wales statutes. In applying the test, the court will be guided by three main principles: the presumption of consistency (that the legislature did not intend to contradict itself); the “rule of commonsense”, and the maxim generalia specialibus non derogant. I quote from paragraphs [114]-[116] of ISPT Nominees: “The effect of the presumption [of consistency] is that the party that argues that a statute has been implied repealed bears a heavy burden. Moreover, courts should, if reasonably possible, construe a statute in such a way as to avoid the conclusion that a pre-existing statute was impliedly repealed upon the subsequent statute’s enactment. ....The next relevant principle is the ‘rule of commonsense’, which provides that it is rare for one statute in affirmative terms to be found impliedly repealed by another which is also in affirmative words. ....The third relevant principle is the maxim generalia specialibus non derogant, which, in the particular context, is not so much a principle distinct from the other two as a means by which they have been given effect. In order that two statutes might stand together courts often construe subsequent statutes as only providing for special cases and accordingly hold that the pre-existing statute has been derogated from only to the extent of those special cases.” Per case “Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited [2005] NSWSC 1285 (15 December 2005) Supreme Court of New South Wales Decisions

[5] Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455 (FCA/Deane J), at 468-469

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