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Thursday, 2 November 1911


Senator KEATING (Tasmania) . - Senator de Largie has said that, in using illustrations of the word " may " in other parts of the Act, I drew upon parts where it is not used in the compulsory sense. Let me take the first illustration to which I drew attention. Section 13 of the Act reads -

The Governor-General may appoint three persons in each Slate to be Commissioners, one of whom, if his services are obtainable, shall be the Surveyor-General. . . .

That is for the purpose of dividing the State. The previous section says -

Each State shall be distributed into Electoral Divisions, equal in number to the number of members of the House of Representatives,to be chosen therein -

There is no doubt that the State has to be divided; that is compulsory. Then it is provided how the Governor-General may appoint three persons. I take it that "may" is not used there in an optional sense at all. What I am drawing attention to is that invariably, whether the word is used in an optional or obligatory sense in respect to the Governor-General, we have used the word " may." If we now adopt the word " shall " we may do a perfectly good thing, according to Senator Rae, in making- the meaning abundantly clear, but the advantage of it will be more than counterbalanced by the disadvantage of the confusion arising in the interpretation of the word " may " used elsewhere.


Senator Rae - Could we not make subsequent amendments to get over that difficulty ?


Senator KEATING - That would involve the amendment of the whole Act, and several other Acts. If we were to put in the Bill a clause to the effect that wherever " may " is used in the Act, it is to be taken as " shall," we should then use " shall " in cases where " may " is used in an optional sense. By adopting "shall" in this clause, we will cast doubt on the use of "may " where no doubt exists at present in respect of a number of other sections of the Act. How far-reaching the consequences may be it is hard for me or anybody else at this juncture to say ; but I think that the Minister will be well advised in adhering to the established practice in draftsmanship. He need not entertain any doubt as to what will be the consequences of the adoption of the word, but he must indulge in a good number of speculations as to what will be the consequences of using " shall " in this provision and " may " in several other provisions, in which a duty is assigned to the GovernorGeneral.







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