Terms implied by law: To exclude or not to exclude?

In 2001, Elisabeth Peden concluded after some study that the process of implication of terms in law was “correspondingly vague and lacking in definite principles”. Over two decades later, that characterisation remains accurate. The varied terminology in judicial use reflects an ambiguity over the normative position occupied by terms implied by law. That, in turn, has given rise to doctrinal and practical uncertainty in relation to the (non-)derogation of such terms and the standard against which any derogation should be scrutinised. A key purpose of this article is to spur reflection on how implication in law interacts with matters of intention, centrality and derogability.