Presumption of validity

Burgess v Commonwealth [2020] FCA 670

When it is argued that a provision is constitutionally invalid4, a presumption of validity applies on the basis that parliament ‘did not intend to pass beyond constitutional bounds’5 – see Episode 7.

This presumption, said Besanko J (at [96]), is not to be pushed beyond its ‘proper limits’.  Courts should not strain to give a meaning to provisions that is artificial or departs markedly from the ordinary meaning to preserve validity6.  In the present case, given the construction in favour of validity was not strained, the presumption applied.  iTip – be careful not to trample on ordinary interpretation principles ‘merely to avoid constitutional doubt’7.

This principle is from Episode 62 of interpretation NOW!


4 In this visa cancellation case, parts of s 196 of the Migration Act 1958 (Cth).

5 Munro (1926) 38 CLR 153 (at 180), Pearce 9th ed (at [5.11]).

6 International [2009] HCA 49 (at [42]), cf NAAJA [2015] HCA 41 (at [79]).

7 NAAJA [2015] HCA 41 (at [76]), Gaynor [2020] NSWCA 48 (at [53]).