EMJ18 v Secretary DHA [2024] FCAFC 87
What was said in this case (at [52]) about the expressio unius principle calls for comment8. First, always apply the principle with caution9. Second, this is consistent with the general rejection of rigid rules under our ‘modern approach’. Third, even where the principle may be relevant, it may be of ‘limited utility’.
The facts in this case are not important. What is to note, however, is how older ‘rules of construction’ like expressio unius fit with our ‘modern approach’. As Episode 100 suggests, these ‘rules’ provide us with soft help, rather than hard instruction. Any mechanical application of expressio unius, therefore, is inconsistent with how we are to read statutes.
This principle is from Episode 111 of interpretation NOW!
Footnotes:
8 Express mention of one thing impliedly excludes other things.
9 Wentworth (1992) 176 CLR 239 (250), Pearce 10th ed [4.64], cf Episode 94.