General Utility of the principle emerging out of the Maxim
The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character[1].
The generalia specialibus maxim has a particular application when the question is whether a specific provision is to be regarded as repealed by an inconsistent general provision of a later enactment.[2] The same general means of resolving inconsistency may, however, also be invoked where the inconsistency occurs within the one enactment.[3] If the legislature can be seen to have provided for the specific kind of factual circumstances that have occurred, its ‘special’ provision for them will prevail over an inconsistent general provision in the same Act, within which those circumstances also fall. ‘The generalia specialibus maxim, ... , is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage[4]’’ No doubt the reason why the generalia specialibus maxim has had a particular application in the context of separate Acts is that the legislature is more likely to have overlooked an inconsistent specific provision located somewhere within the vast corpus of earlier statutes, than it is to have overlooked an inconsistent specific provision within the same statute[5].’ It has been said that the operation of the maxim is "rarely so simple" as the passage quoted from Barker v Edger suggests[6]. KIRBY P, as his Honour then was, set out a number of principles which were said to emerge from the decisions relating to the maxim generalia specialibus non derogant, including the following:
"Respectful of the law made by Parliament, courts will not readily assume that words of apparently general application are to be narrowly confined.[7]’. It is for the party seeking to confine such words to show that this is necessary to avoid an irreconcilable inconsistency or repugnancy between the statutory duties said to be in conflict.[8]’ There must be such conflict that the words necessarily `import a contradiction.[9]'....
‘In the absence of express repeal of earlier or other statutory provisions, it will normally be presumed that Parliament intended the two statutes to work harmoniously together so that each operates within its respective field of application.[10]’. To invoke the maxim it is essential that it should be shown that `effect cannot be given to both provisions at the same time', for otherwise such effect must be given out of deference to the imputed will of Parliament.[11]’....
‘In giving meaning to the language used by Parliament in succeeding statutory provisions, the court will not look to hypothetical or possible conflicts. Legislation being concerned with the highly practical business of lawmaking, the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together and whether, in that context, an irreconcilable conflict of duties really arises. In answering this question it is relevant to consider whether one of the statutes applies to a special class or subject matter whereas the other applies to a more general or wider subject matter.[12]’
[1] Ombudsman v Laughton [2005] NSWCA 339 (30 September 2005, Supreme Court of New South Wales - Court of Appeal, per SPIGELMAN CJ
[2] Pearce and Geddes, Statutory Interpretation in Australia (5th ed, Butterworths, 2001) at [7.18]–[7.21]; Bennion, Statutory Interpretation (4th ed, Butterworths, 2002) at 255-257; Craies on Statute Law (7th ed, Sweet & Maxwell, 1971) at 377-380.
[3] Pearce and Geddes at [4.30]; Bennion at 998-999; Craies at 222-223, and cases referred to in those works, such as, Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) (1980) 44 FLR 455 .
[4] Effort Shipping Co Ltd v Linden Management SA (‘The Giannis NK’) [1998] UKHL 1; [1998] 1 All ER 495 at 513 per LORD COOKE
[5] Per Hoffman [supra]
[6] Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 686; [1975] AC 538 at 553. In Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 (CA) at 292-7,
[7] see Fullagar J in Butler v Attorney-General for the State of Victoria [(1961) [1961] HCA 32; 106 CLR 268] (at 276)
[8] see, eg, Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 11
[9] see Garnett v Bradley (1878) 3 App Cas 944 at 966; Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 at 360; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 509;
[10] see Hack v Minister for Lands (New South Wales) [1905] HCA 37; (1905) 3 CLR 10 at 23; Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468 at 473, 480; Lukey v Edmunds [1916] HCA 25; (1916) 21 CLR 336 at 341, 352; Bank Officials' Association (South Australian Branch) v Savings Bank of South Australia [1923] HCA 25; (1923) 32 CLR 276 at 288; South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 626; Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499 at 506-7; 62 ALR 151 at 158
[11] Kutner v Phillips [1891] 2 QB 267 at 272; Hack v Minister for Lands (New South Wales) (at 23f); Hill v Hall (1876) 1 Ex D 411 at 413, 414; Flannagan v Shaw [1920] 3 KB 96
[12] see Associated Minerals Consolidated Ltd v Wyong Shire Council (ibid at 686-687; 554); cf Sarris v Penfolds Wines Pty Ltd [1963] SR (NSW) 10; 79 WN (NSW) 601; Sydney City Council v Paul Dainty Corporation Pty Ltd [1984] 3 NSWLR 104 at 107; see also SGG Edgar, Craies on Statute Law, 7th ed (1971) at 377ff."
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