Constructional choice

DBE17 v Commonwealth [2019] HCA 47

A major theme in interpretation over the past decade has been the development of constructional choice theory.  Consider the text in its widest context and select the alternative which best achieves the legislative purpose.  Nettle J in this case shows how to do it.  Did reference to ‘all proceedings’ extend to proceedings of any kind, or was it confined to judicial review proceedings?7 

Having regard to the history, purpose and consequences of the alternative, Nettle J (at [34]) held only judicial review proceedings were caught.  Two other recent High Court cases also provide more expansive tutorials on constructional choice8.

This case is from Episode 56 of interpretation NOW!


7 s 486B(1) of the Migration Act 1958 (CTH).

8 A2 [2019] HCA 35 (at [35-37]), BMW [2019] HCA 45 (at [49-94]).