Meaning of ‘may’

Walker v Members Equity Bank [2022] FCAFC 184

Under the ASIC Act, prosecution of one offence ‘may be commenced within 3 years after [its] commission’4.  Was this a hard time limit, or did the word ‘may’ make it merely discretionary, optional or permissive?

Wigney J (at [41-50]) went with the former.  While laws providing that a person, court or body may do an act or thing generally confer discretion (subject to contrary intention)5, it was held that ‘may’ was used differently here.  It was only permissive in the sense that prosecution was discretionary within the 3-year limit.  An optional time limit would have no real meaning or utility.  Also, purpose with legislative history and other cases supported a hard time limit6.

This principle is from Episode 92 of interpretation NOW!


4 s 12GB(6) of the Australian Securities and Investments Commission Act 2001.

5 s 33(2A) of the Acts Interpretation Act 1901, Episodes 12, 22 & 34.

6 cf Oates [1999] HCA 35 (at [9]), Parker [2006] NSWSC 390 (at [65]).