‘may’ and ‘must’

Anchorage Capital Partners v ACPA [2018] FCAFC 6

The High Court recently reminded us that ‘may’ can be used ‘in more than one sense’ 4.  It can mean ‘must’ if there is an obligation to exercise power on defined criteria being met5.  Context is the key. 

In Anchorage, the Act in question consistently used ‘must’ to signify obligation.  Nothing else in the text or beyond showed that ‘may’ was to be other than discretionary6.  It followed, the court held, that ‘may’ did not mean ‘must’ in this legislative context. The outcome was that the court had a genuine discretion to grant rectification by cancelling trademark rights.  iTip – we must be wary of may, and should be careful with must7 (Suna says).

This case is from Episode 34 of interpretationNOW!


4 AFP v Hart [2018] HCA 1 (at [104]).

5 See Episodes 12 and 22.

6 cf s 33(2A) of the Acts Interpretation Act 1901.

7 Adams [2006] HCA 10 (at [29]), Power [2013] NSWCA 428 (at [24]).