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Friday, May 7, 2010

Chapter-28 Expressio unius est exclusio alterius -

Construction on the principles contained in expressio unius est exclusio alterius Maxim

In Rylands Brothers (Aust) Ltd v Morgan[1] where his Honour noted that the expressio unius maxim “must always be applied with caution and only in appropriate cases”[2] and adopted the reasoning in Colquhoun v Brooks[3]where it was stated that:“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) [4]where 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’...” [5]

After reviewing relevant authorities, the authors of Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, said at 4.28

... [T]he application of the expressio unius approach will be largely one of impression. Factors affecting the question will include the precision in the drafting of the legislation and the similarity of the subject matter in the provisions being considered.[6]. Probably, also, it will be relevant to consider whether the Act in which the provisions occur has been amended extensively as this increases the risk of provisions being inconsistent unintentionally. Because of these problems with respect to its use, the expressio unius est exclusio alterius rule is applied by the courts with extreme caution. When it is followed, it is used more often as a bolster to a predetermined interpretation than as a rule that produces a result in itself... [7]

In a case before High Court of Solomon Islands the matter to be considered was if the ‘wild birds’ should be included in the definition of the ‘goods’ Customs Management Regulations 1907 (Cap. 63) The counsel argued, because wild birds are not "goods" as defined in the Act. So that by making the Order prohibiting the export of an item which was not "goods" within the meaning of the Act. Counsel sought to support his argument by comparing the definition of "goods" contained in the preceding legislation which was the Customs Management Regulations 1907 (Cap. 63). Under the 1907 legislation, the word "goods" was defined as -

"'goods' includes any animal, money, bills, notes, bonds or any movable property of any kind whatever."

Pursuant to the powers conferred by section 82 of the 1907 statute, the High Commissioner made an order prohibiting the export of certain enumerated goods such as:

"20. Birds, other than domestic fowls, alive or dead, or their skins or plumage"

The present Customs and Excise Act (Cap. 58) came into force on 1 April 1960 replacing the Customs Management Regulation, 1907 (Cap. 63). By section 2 of the present Act, "goods" is defined as:

"goods' includes all kinds of goods, wares, merchandise and livestock."

Applying the expressio unius exclusio alterius rule says counsel, "wild birds" are excluded from the class of "goods" as defined. Thus counsel says the Minister acted beyond his powers when he made the order prohibiting the export of wild birds.It is interesting to note that the 1907 Customs Management Regulation No. 2 of 1907 (Cap. 63) was enacted -

"to provide for the collection and management of the Revenue of customs."

where the
Customs and Excise Act, No. 2 of 1960 (Cap. 58) was enacted to -

"provide for the imposition, collection and management of customs and excise duties, the licensing and control of warehouses and of premises for the manufacture of certain goods, the regulation and control and prohibition of imports and exports and for matters incidental thereto and connected therewith."

It must be obvious that the two statutes were enacted embracing the different policy decisions of the respective government of the day. The fact that in the 1907 statute the word "goods" was defined to include -

"any animal, money, bills, notes, bonds or movable property of any kind whatever."

and in the present status the word "goods" is defined to include -

"all kinds of goods, wares, merchandise and livestock."

clearly expressed the intention of the legislature as to the meaning to be given to the word
"goods" in the two statutes. The draftsmen in the two statutes chose to use certain words to define "goods", in the respective statutes. The draftsman in the 1907 Regulation chose to specify those matters to be covered under the definition of "goods". The draftsman of the 1960 Act chose to use words of general character when defining the word "goods". Such a practice is not unusual.But the fact that one Act specifies a particular matter and the other is silent on the point does not necessarily mean that the expressio unius rule should be applied.

The maxim
"expressio unius exclusio alterius" is no more than an aid to construction and must be watched since its application to the two contrasting statutes here concerned may well lead to a misconception of the rule. The rule is, however, a valuable tool but one which must be watched. As Wills, J., stated in Colquhoun -v- Brooks[supra]:

"I may observe that the method of construction summarised in the maxim 'expressio unius exlusio alterius' is one that certainly to be watched. ……………………………………………………………"

On appeal to the Court of Appeal Lopes, LJ, said:

"The maxim 'expressio unius exlusio alterius' has been pressed upon us. ………to be applied, leads to inconsistency or injustice."

As I have earlier stated that changing circumstances and policy decisions resulted in the change of the states and in particular the provision encompassing the definition of
"goods". In Dean -v- Wiesengrund [8] after considering the warning expressed by Wills, J and Lopes, LJ in Colquhoun -v- Brooks went on to say:

"Doubtless there are instances where matters expressly mentioned may be regarded as comprehensive, complete and all-inclusive; but I fail to see that the maxim can be applied to the provisions in the 1917 and 1920 enactments. Decisions of policy might account for the provisions enacted. Furthermore, if the maxim is being considered, I should have thought that it ought to be considered separately in regard to the tenant's position."

In my judgement, the term "goods" must be confined to "goods" as defined in the present Act and must be construed using the words used by the legislature. I do not see any justification for the application of the "expression unius" principle in construing the definition of "goods" in the present Act. To employ the maxim to the definition of goods in the present Act in my view, would lead to uncertain and capricious operation of the law.
The definition of
"goods" in the present Act covers "all kinds of goods, wares, merchandise and livestock." and in my judgement that covers all those items specified by the Minister in paragraph (c) of the Order dated 15 June 1992 of the prohibited exports. The Minister has the power to do so and he had not acted ultra vires his powers[9].

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

[2] Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161at 168

[3]Colquhoun v Brooks 19 QBD 400 at 406 per WILLS J

[4]Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW [1982] HCA 2; (1982) 148 CLR 88

[5]Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW [1982] HCA 2; (1982) 148 CLR 88 at 94 as quoted in [2007] AIRC 879 wherein it was stated that:” More importantly, I am not persuaded that the expressio unius approach is properly applicable to the construction of s.458. I am simply not persuaded that the words of s.458, when construed in context, evince an intention by the legislature that parties should be confined to submissions only and should not be permitted to call evidence. The Act is not the finest example of the draftsperson’s art. In my view, this is a case where, to adopt the words of Wills J, it never struck the draftsperson that the thing supposed to be excluded needed specific mention of any kind. It seems to me that the purpose of s.458 is to ensure that, notwithstanding the short timeframe within which the Commission must endeavour to determine applications for ballot orders “Also see Colquhoun v. Brooks (1888) 21 QBD 52, at p 65 . (at p94)

[6]DFCT v Lincoln Industrial Cleaners Pty Ltd (1975) 7 ALR 118; Lyford v Commonwealth Bank of Australia [1995] FCA 1261; (1995) 130 ALR 267 at 270

[7] Quoted from :CFMEU v Hadgkiss [2007] FCAFC 197 (20 December 2007FEDERAL COURT OF AUSTRALIA per NORTH J

[8] Dean -v- Wiesengrund [1955] 2 All E.R. 432, at 443,per MORRIS LJ;see also Re: HARASH LATA RANIGA IRT Reference No. N92/00092 #NUMBER 1236 Number of pages - 10 Preferential Family Visa [1992] IRTA 2582 (1 September 1992); Applicant: Pravin Kumar Raniga Principal: Harash Lata Raniga IRT Reference: N92/00092 #number 1236 [1992] IRTA 1236 (1 September 1992; Stassen Exports Limited v. Brooke Bond (Ceylon) Limited and Another - SLR - 63, Vol 2 of 1990 [1990] LKSC 10; (1990) 2 Sri LR 63 (9 October 1990) ; Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 (28 March 1983); The Queen v. Cie Imm. BCN Ltée, [1979] 1 S.C.R. 865 ; The Queen v. Cie Imm. BCN Ltée, [1979] 1 S.C.R. 865 ; La Reine c. Cie Imm. BNC Ltée, [1979] 1 R.C.S. 865; Morris v Federated Liquor and Allied Industries Employees' Union of Australia [1978] FCA 35; (1978) 35 FLR 60 (13 September 1978)wherein the standard quote of LORD HERSCHELL was stated as :” Colquhoun v. Brooks: "It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light on the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act" (1889) 14 App Cas 493, at p 506 . (at p68)”; Attorney General (Que.) v. Stonehouse, [1978] 2 S.C.R. 1015; Murray Bay Motor Co. Ltd.. c. Belair Insurance Company, [1975] 1 R.C.S. 68; Jarvis v. Associated Medical Services Inc., [1964] S.C.R. 497; TATA IRON AND STEEL CO. LTD. V. THE STATE OF BIHAR [1962] INSC 260 (24 September 1962); Benning v Sydney City Council [1958] HCA 48; (1958) 100 CLR 177 (29 October 1958); Federal Commissioner of Taxation v French [1957] HCA 73; (1957) 98 CLR 398 (18 November 1957); THE BENGAL IMMUNITY COMPANY LIMITED V. THE STATE OF BIHAR & ORS [1954] INSC 120 (4 December 1954) ; ALLIANCE DES PROFESSEURS CATHOLIQUES DE MONTRÉAL v. LABOUR RELATIONS BOARD, [1953] 2 S.C.R. 140; George v Federal Commissioner of Taxation [1952] HCA 21; (1952) 86 CLR 183 (3 November 1952); Commissioner of Inland Revenue v Morris, Hedstrom Ltd [1937] FJSC 1; [1937] 3 FLR 224 (3 December 1937; Robertson v Federal Commissioner of Taxation [1937] HCA 32; (1937) 57 CLR 147 (26 July 1937) ; Maye v Colonial Mutual Life Assurance Society Ltd [1924] HCA 26; (1924) 35 CLR 14 (27 June 1924); Mount Morgan Gold Mining Co Ltd v Commissioner of Income Tax (Qld) [1923] HCA 37; (1923) 33 CLR 76 (16 August 1923); Williams v Singer [1920] UKHL 2 (17 May 1920) URL: http://www.bailii.org/uk/cases/UKHL/1920/2.html ,Cite as: [1921] 1 AC 65, [1920] UKHL 2

[9]Regina v Perfili [1992] SBHC 12; HC-CRC 032 of 1992 (3 November 1992) per MURIA ACJ

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