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Friday, May 7, 2010

Chapter-26- Maxim: Special Considerations-Part-4

Maxim generalia specialibus non derogant does not apply in reverse

‘The maxim generalia specialibus non derogant does not apply in reverse, i.e. where a general Act is followed by a later, specific Act. In this case, the proper course is to apply the usual and overriding presumption that, in the event of inconsistency, the later Act will override the earlier Act.[1]

Maxim where applied specifically

The proposition that the generalia specialibus maxim applies only where two provisions cannot be reconciled[2] does not prevent the underlying principle being invoked when determining whether or not a conflict is in fact irreconcilable.’[3]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[4]’, where ‘contrariety is manifest.[5]’’ In particular I see no scope for the application of the principle that specific provisions such as s. 26 (d) should prevail over general provisions such as s. 25 (1). Such a rule of construction has its place where contrariety is manifest.[6]

General Observations about the Maxim Summarized

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[7] and generalia specialibus non derogant [8] 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”[9] 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[10].”

This is a principle applicable to determining the effect of a later statute on an earlier statute and for resolving a conflict between two sections of the one act[11].

“As to the second ground, namely, the maximum Generalia specialibus non derogant the first requisite is to get a clear understanding of its meaning. In Barker v. Edger[12] it is said:- “The general maxim is, Generalia specialibus non derogant . 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. Each enactment must be construed in that respect according to its own subject matter and its own terms.” Now, the first thing we have to understand is what is the meaning of “separate subject” and “a subsequent general enactment.” In Blackpool Corporation v. Starr Estate Co. [13], as to that rule of construction, it is stated:- “It is that 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. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. An intention to deal with them may, of course, be manifested, but the presumption is that language which is in its character only general refers to subject matter appropriate to class as distinguished from individual treatment. Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest.” Viscount Cave, the present Lord Chancellor, quoted with approval the rule in Barker v. Edger [supra], Lord Cave also, for himself, said: “The rule is clear that a general statute will not, in the absence of clear words, be construed as derogating from special provisions in a previous statute.” The language in those two cases – and they are in accordance with previous authorities – shows that the subject matter in the earlier Act must be the same as that in the later Act before the maximum can have any possible application. ...[14]

[1] Enman v Enman [1942] SASR 131.

[2] see e.g. Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 59 ALJR 689 at 692)

[3] (See Royal Automobile Club v Sydney City Council (1992) 27 NSWLR 282 at 294F-G ,it was further stated that:” “The canons reflect semantic rules, not legal rules. They are not unique to law but rather are rules of general applicability for understanding language. They are common to all legal systems and systems of interpretation. They belong to the field of language. They help determine the range of a legal text’s semantic possibilities. They determine the meaning that the text is capable of bearing. They do not determine the legal meaning that the text bears.” (Aharon Barak, Purposive Interpretation in Law (2005) at 107.) and further that:” To determine the legal meaning it is necessary to adopt a purposive interpretation. The purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely the investigations and reports and other such functions for which the Ombudsman Act and other Acts provide. The words “executing (an) Act” do not necessarily extend to the performance of any statutory function or the exercise of any statutory power. They may not encompass matters of internal administration such as employment of staff.” BASTEN JA also observed about the maxim :” that a general provision cannot derogate from a special or more specific provision is, as the Chief Justice recognises, sometimes difficult to apply. Where appropriate, it is preferable to apply the provisions of the Interpretation Act 1987 (NSW), being the statutorily prescribed approach to statutory interpretation. The well-established approach to the construction of protective provisions, such as s 35A of the Ombudsman Act 1974, accords with the requirement of s 33 of the Interpretation Act that a purposive approach be adopted in construing a provision of an Act, in preference to a construction that would not promote the purpose underlying the Act.” Stating about the ACT BASTEN JA stated that:” Further, there is an issue as to whether s 35A of the Ombudsman Act has any potential operation with respect to a right of appeal conferred on an employee by s 20 of the Government and Related Employees Appeal Tribunal Act. Section 35A refers to “any civil or criminal proceedings”. Clearly an appeal with respect to an appointment is not a criminal proceeding. Nor does it involve an “action or claim for damages”, being the language of an earlier protective provision in the Prisons Act 1952 (NSW): see Vezitis v McGeechan [1974] 1 NSWLR 718, in which the word “action”, although capable of referring to every sort of legal proceeding, was read in its context as referring only to an action for damages. (See also Cowell v Corrective Services Commission (1988) 14 NSWLR 714, 721E-725 (McHugh JA) and 726E-731C and 739E-F (Clarke JA, Priestley JA agreeing.) Although the matter was not fully argued, my tentative view is that an appeal under s 20 is not a “civil proceeding” to which the Ombudsman is “liable” for the purposes of s 35A. A different conclusion was reached in Ainsworth v The Ombudsman (1988) 17 NSWLR 276, 287, but that case was concerned with judicial review proceedings relating to the execution of the statutory function of investigation. In any event, I agree with the Chief Justice that it is not a proceeding “in respect of any act ... for the purpose of executing this or any other Act”.

[4] Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652 at 657

[5] Reseck v FCT [1975] HCA 38; (1975) 133 CLR 45 at 53

[6] Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of Taxation, per DIXON J. [1948] HCA 24; (1948) 77 CLR 1, at p 29 et seq , Butler v. Attorney-General (Vict.), per FULLAGAR J. [1961] HCA 32; (1961) 106 CLR 268, at pp 275-276 , Fonteio v. Morando Bros. Pty. Ltd. (1971) VR 658, at p 662 as stated by STEPHEN J in : RESECK v. FEDERAL COMMISSIONER OF TAXATION [1975] HCA 38; (1975) 133 CLR 45 High Court of Australia

[7] at para [4.28]ff as quoted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation - [2007] AIRC 879 (11 October 2007)

[8] at para [4.32]ffCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation - [2007] AIRC 879 (11 October 2007)

[9] at para [4.28] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation - [2007] AIRC 879 (11 October 2007)

[10] Ibid Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation - [2007] AIRC 879 (11 October 2007)

[11] see D C Pearce, Statutory Interpretation in Australia (1988) at 83 and 149.

[12] Barker v. Edger (1898) A.C., at p.754

[13] Blackpool Corporation v. Starr Estate Co. (1922) 1 A.C., at p.34 per VISCOUNT HALDANE as quoted in [2007] AIRC 879

[14] The Bank Officials’ Association (South Australian Branch) v. The Savings Bank of South Australia [1923] HCA 25; (1923) 32 CLR 276 per ISAAC and RICH JJ , The principle has recently been recognized by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v. Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 where he referred to the statement by Romilly MR in Pretty v. Solly [1859] EngR 249; (1859) 26 Beav 606 at 610 that:

“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...”.”

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