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Chapter 36: Statutory powers and their characterisation: discretion or duty?

Chapter 36: Statutory powers and their characterisation: discretion or duty?

pp. 553-571

Authors

, La Trobe University, Victoria, , University of Western Australia, Perth,
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Summary

[36.1] Statutory powers confer authority that enables a person or body to do what would otherwise be illegal or ineffective. They do so in two broad ways: by conferring discretions and imposing duties. This chapter focuses on the meanings of ‘may’, ‘shall’ and ‘must’ and on a question of characterisation that often arises in relation to them: namely, should the words be characterised as conferring a discretion or as imposing a duty, at least in certain circumstances?1

Keywords

  • Statutory Powers
  • conferring discretions
  • imposing duties
  • legislative drafting
  • interpretative disputes
  • common use
  • legal meaning
  • intention of the legislature
  • prima facie

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