When provisions can be read so as to invalidate them but may also be read in a way that does not, ‘a court must always choose the latter course when it is reasonably open’1. Gageler J in this case (at [75-78]) provides extra insight into this rule2. He points out that a court has no warrant to depart from ordinary principles of interpretation in this context, and cannot prefer one construction ‘merely to avoid constitutional doubt’3 – a court ‘should be wary’.
Challenges to tax laws are common, as are articles about the validity of new measures, like the Commissioner’s remedial power4. iTip – a tax officer must assume validity, but argument before a court to sustain it may call for a more nuanced approach.
This case is from Episode 7 of interpretationNOW!
1 Residual Assco  HCA 33 (at ).
2 Also, s 15A of the Acts Interpretation Act 1901.
3 Today FM  HCA 7 (at [65-66]).
4 Wilson-Rogers (2015) 44 AT Rev 242, for example.