Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246

McColl JA:

5 Section 9 of the Interpretation Act 1987 should be noted. It provides that, except in so far as the contrary intention appears (s 6) in an Act or instrument “the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion”.

94 In my opinion s 21 of the 2005 Act does not confer a power on the court to act of its own motion to dispense with a jury. Such a power cannot be found in the mere conferral of the power upon the court without an explicit reference to an application for dispensation. Discretionary powers are frequently conferred on courts in language such as “unless the court otherwise orders” (s 21(1)) or “a court may” (s 21(3)), but they do not indicate an intention to confer a power to be exercised by the court of its own motion but, rather, upon proper application: cf Dashwood v Maslin [1909] HCA 62; (1909) 9 CLR 451 (at 459 – 460) per Barton J; Macdougall v Paterson(supra).

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