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[2026] NSWCA 174
appellant. Appeal allowed by majority. The orders made on 19 June 2026 were set aside and the proceedings remitted to the Common Law Division for determination in accordance with law. The orders also...
The Court of Appeal had to decide whether an ESO application could continue after Benshabir’s prison sentence was set aside on appeal. The majority read the 2018 amendment as allowing the custody or supervision requirement to be met when the application was filed, even though Benshabir had since ceased to be an eligible offender. Kirk JA disagreed, finding that interpretation required too many additions to the statute and conflicted with its wider structure. The appeal was allowed by majority and the proceedings sent back to the Common Law Division. All judges rejected the argument that an ESO application requires a sentence or supervision period of at least 12 months.
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2,593 words · generated 08/10/2026
The State of New South Wales sought an extended supervision order (ESO) against Yaqoob Benshabir under the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act). The appeal concerned a narrow but difficult statutory question: whether the Supreme Court could make an ESO after Benshabir ceased to be an “eligible offender”, where he had been eligible when the State filed its application.
12 cited instruments linked from this judgment.
Benshabir was charged with affray in February 2025. He was later charged with a federal offence relating to possession of violent extremist material. On 12 February 2026, he pleaded guilty to the NSW offence and received a 10-month prison sentence, with a non-parole period of five months. The federal charge was withdrawn on 31 March 2026. The State had filed its ESO summons the previous day, while Benshabir was serving that sentence and was an eligible offender under s 7: [34]-[39], [41].
The critical event occurred on 2 April 2026. The District Court allowed Benshabir’s severity appeal, set aside the prison sentence and imposed a 12-month conditional release order: [45]. As a result, he was no longer serving a sentence of imprisonment and was no longer an eligible offender under the statutory definition. The State’s earlier application was still pending.
The primary judge dismissed the ESO application on the basis that the Court no longer had power to make the order once Benshabir ceased to be an eligible offender: [50]-[53]. The State appealed. Benshabir also filed a notice of contention, arguing that s 23(2) required an offender to have at least 12 months of custody or supervision. All three Court of Appeal judges rejected that argument: [74]-[79].
Ward P and Leeming JA allowed the State’s appeal. Kirk JA dissented and would have dismissed it. The majority set aside the primary judge’s orders and remitted the proceedings to the Common Law Division for determination in accordance with law: [26], [28]. The Court of Appeal did not itself make an ESO or determine the ultimate merits of the State’s application.
The unusual procedural history is important. The appeal arose because the District Court changed the sentence after the State had filed the ESO application. Leeming JA considered that such circumstances were unlikely to recur, while emphasising that the Court still had to resolve the legal question of power: [10]-[11], [17].
The dispute centred on s 20. Its opening words provide that the Supreme Court may make an ESO for “an eligible offender” if specified conditions are satisfied. Section 20(a), after a 2018 amendment, stated that the offender must be in custody or under supervision, “or was in custody or under supervision at the time the original application for the order was filed”. The respondent was no longer eligible when the order would be considered, but had been in custody when the application was filed: [12]-[13], [81]-[85].
The majority and dissent agreed that the text posed a genuine conflict. The statutory definition of “eligible offender” pointed towards a requirement that the person remain eligible when an ESO was made. But the amendment’s parenthetical words appeared to address precisely a case where the offender’s custody or supervision had ended after the application was filed: [17], [19]-[20], [81]-[82].
For the majority, the amendment’s purpose was decisive in choosing between imperfect readings. The 2018 second reading speech explained that the amendment was intended to align the THRO Act regime more closely with the Crimes (High Risk Offenders) Act 2006 regime. It expressly referred to situations where an offender ceased to be in custody or under supervision after the application, including because of an appeal reducing the sentence: [71]-[73]. Leeming JA concluded that the purpose was to extend the regime to people who had been, but were no longer, in custody or under supervision: [24]. Ward P likewise relied on the speech and the alignment purpose: [7].
The majority did not suggest that the State’s reading was textually effortless. Ward P accepted that it required words to be read into both the opening part of s 20 and s 20(c), and could make s 20(a) redundant in light of s 23(1): [5]. Leeming JA also recognised that the construction required an “indirect amendment” to other conditions and that neither competing construction was attractive: [13], [17], [25]. The majority nevertheless concluded that leaving the 2018 words with no work to do would defeat the apparent purpose of the amendment. Leeming JA treated the inserted language as “leading” when reconciling the provisions, noting that the 2018 amendment had to be read with the original Act as a combined legislative statement: [19]-[20].
Kirk JA’s dissent applied the same broad interpretive task but reached the opposite conclusion. His Honour accepted that the amendment was intended to expand the operation of s 20(a), but considered that the words Parliament inserted could not reasonably carry all the changes necessary to make the State’s reading work: [103]-[104], [113]-[117]. In particular, he identified five difficulties. The State’s reading would make all of s 20(a) redundant because s 23(1) already addressed the relevant application-stage requirement; it required implied changes to both the chapeau of s 20 and s 20(c); it conflicted with provisions contemplating current status as an eligible offender and as a person within a terrorism-related category; and it created an anomaly because an interim supervision order could not be made in circumstances where a final ESO might later be made: [107]-[112].
The disagreement therefore was not whether statutory purpose mattered, or whether the amendment was meant to do something. It was about the permissible extent of construction needed to give that purpose effect. The majority considered the amendment’s purpose and timing sufficient to support the State’s reading. The dissent considered the consequences for the statutory scheme too extensive.
The separate s 23(2) issue was more straightforward. Kirk JA explained that the subsection governs when an application can be made. It ensures that the risk assessment is not conducted too far in advance of the likely commencement of an ESO, given that a person’s circumstances and risk may change: [76]. Reading the provision as imposing a 12-month minimum term would introduce a separate qualification that the text did not state and would sit awkwardly with the provisions allowing an ESO of less than 12 months and subsequent orders: [77]-[78]. Ward P and Leeming JA agreed with that reasoning: [2], [16].
Before this judgment, s 20(a) contained the 2018 parenthetical wording, but the Court had not resolved the question presented here: could that language preserve the power to make an ESO where an offender was eligible when the application was filed but not when it was determined? The primary judge had answered no, concluding that the later loss of eligible-offender status removed the Court’s power: [50]-[53].
After the appeal, the Court of Appeal’s majority construction was that the custody or supervision requirement in s 20(a) may be satisfied by reference to the time the original application was filed, even if custody or supervision has since ended. The majority reached that reading because it considered it best reconciled with the 2018 amendment’s express purpose: [7]-[9], [19]-[25]. In practical terms, the appeal established that the change of status after filing did not, on the majority’s construction, itself prevent the ESO application from proceeding.
The judgment did not remove all uncertainty from the statutory text. The majority acknowledged the textual strain involved, including the implied effect on the chapeau and s 20(c): [5], [17], [22]-[25]. Kirk JA’s dissent set out the contrary construction and its implications in detail. The reasoning is therefore important not only for the majority’s answer, but also for identifying the provisions that may require legislative clarification.
The judgment also resolved the separate argument under s 23(2). That provision does not itself require an offender to have a prison sentence or period of supervision lasting at least 12 months. Its function is to limit the time when an application may be made: [74]-[79]. This interpretation was unanimous.
The Court remitted the proceedings rather than deciding whether an ESO should ultimately be made. The order was for determination “in accordance with law”: [26], [28]. The judgment should therefore not be read as determining that the evidence established an unacceptable risk or that an ESO was otherwise appropriate.
At [19], Leeming JA said that the 2018 words “expand the circumstances in which an extended supervision order may be made” to include a case where a person was no longer in custody or under supervision. In plain English, the majority read the amendment as changing the earlier position, rather than as merely restating a condition that had to continue until the order was made.
At [20], Leeming JA said the inserted words were to be treated as the “leading words” in s 20 as amended. The point was not that new words always override the rest of an Act. Rather, he treated the timing and purpose of this particular amendment as important in resolving the tension between it and the existing eligible-offender language.
At [24], Leeming JA stated that the amendment’s purpose was “to extend the regime to cases where the person had been, but was no longer, in custody or under supervision”. This explains why the majority did not accept an interpretation that left the parenthetical phrase without effect.
At [5], Ward P acknowledged that the State’s construction required words to be read into the opening words of s 20 and into s 20(c). This is significant because the majority did not characterise its result as a simple application of ordinary meaning. It accepted substantial difficulty but concluded that the alternative frustrated the amendment’s purpose.
At [77], Kirk JA explained that s 23(2) has a clear timing function and that there was “no imperative” to infer a separate minimum sentence requirement. Put simply, the last-12-months language identifies when an application may be brought, not how long the original prison sentence must have been.
At [116], Kirk JA said the State’s interpretation would make “the tail ... wagging the dog”. This expressed the dissent’s concern that a phrase inserted into one paragraph would have to change several other provisions and disrupt the statutory scheme. The majority considered that difficulty outweighed by the amendment’s purpose; the dissent considered it a reason not to adopt that reading.
The central fact pattern is an ESO application filed while a person is in custody or under supervision and meets the relevant eligible-offender requirements, followed by a later event that ends that status before the application is finally determined. The 2018 second reading speech identified an appeal reducing a sentence as an example of the kind of circumstance the amendment was intended to address: [73]. Benshabir’s case involved a successful severity appeal that set aside the prison sentence and replaced it with a conditional release order: [45].
The judgment’s reasoning concerns the temporal relationship between the filing of an application and the Court’s later determination of it. It is not a general ruling that all eligibility criteria can be assessed only at filing. The majority addressed the interaction of s 20(a), the eligible-offender definition, s 20(c), and the 2018 amendment. The dissent stressed that the statutory language about the offender being a member of a terrorism-related category was expressed in the present tense and depended on current status: [109]-[111].
The other triggering issue considered was a contention that s 23(2) excludes offenders whose custody or supervision lasts less than 12 months. The Court unanimously rejected that proposed minimum-term interpretation: [76]-[79]. The provision’s timing function is relevant where an ESO application is made in the final 12 months of custody or supervision, including where the person is under supervision rather than serving a prison sentence.
The judgment does not determine that the mere filing of an application establishes the remaining requirements for an ESO. The statute separately refers to the categories in s 20(c) and the high-degree-of-probability assessment in s 20(d): [65]. The Court of Appeal decided the construction issue and remitted the case; the underlying application remained for determination.
The supplied judgment contains no subsequent decisions applying or distinguishing this Court of Appeal judgment. It is therefore not possible, on this source alone, to state how later courts have treated it.
The judgment does explain how earlier authorities informed the competing approaches. Leeming JA relied on the approach in Project Blue Sky to identifying “leading” and “subordinate” provisions and referred to Commissioner of Stamps and Institute of Patent Agents v Lockwood in discussing that method: [19]-[20]. He also referred to Plaintiff S297/2013 for the relevance of the timing of an amendment when resolving apparently conflicting provisions: [20].
The judgment discussed State of New South Wales v Kaiser, which had construed the parallel CHRO Act provision as requiring the relevant supervised-offender status at the application stage rather than at the time the order was made. Kirk JA considered that comparison to have limited force because the wording was not identical and the parallel Act’s drafting was itself unclear: [105]. Leeming JA, by contrast, relied on the statutory alignment purpose in considering the relationship between the regimes: [21].
The Court also referred to State of New South Wales v Hamze and Kaiser as previous examples of drafting problems in the related CHRO Act: [119]. Those references provide context for Kirk JA’s observation that the relevant provisions may benefit from clearer drafting, but they are not later treatment of the present decision.
First, the majority’s construction leaves questions about the precise limits of the amendment. The judgment resolved the position where custody or supervision status ended after an application was filed, in circumstances including a successful appeal. It did not give a comprehensive account of how the amended reading applies to every possible change in eligibility or to every category of order under the Act.
Second, the majority accepted that its construction required implied changes to the opening words of s 20 and s 20(c): [5], [17], [22]-[25]. The judgment does not provide a redrafted statutory text specifying exactly how those provisions should operate together. Kirk JA’s dissent identifies why that matters: the defined terrorism-related categories and s 12 both use current-status language, and s 27 provides for interim protection while an ESO application is pending: [109]-[112].
Third, the judgment did not decide whether all forms of community-based supervision, including supervision attached to an intensive corrections order, community correction order or conditional release order, fall within “under supervision” in s 20(a). Kirk JA expressly left that question open because it was unnecessary to decide in this case: [99].
Fourth, the appeal did not determine the evidentiary merits of the proposed ESO. The matter was remitted to the Common Law Division, and the Court of Appeal’s decision addressed the statutory power question rather than the final risk assessment or the suitability of any conditions: [26], [28].
Finally, the judgment itself highlights legislative drafting concerns. Leeming JA noted that the defined labels do not transparently convey all temporal elements of the definitions: [15]. Kirk JA suggested that s 20 and related provisions should be reconsidered as a clear list of criteria assessed at the relevant time: [120]. Whether Parliament later amends the provisions, and how any amendment interacts with the majority’s construction, cannot be determined from this judgment.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Benshabir [2026] NSWCA 174
Hearing dates: 3 August 2026
Date of orders: 27 August 2026
Decision date: 27 August 2026
Before: Ward P at [1]
Leeming JA at [10]
Kirk JA at [29]
Decision: (1) Appeal allowed.
(2) Set aside the orders made on 19 June 2026, and in lieu thereof remit the proceedings to the Common Law Division for determination in accordance with law.
(3) Subject to order 4 below, in 14 days from today grant a certificate under the Suitors Fund Act 1951 (NSW) to the respondent, if otherwise entitled, in respect of the costs of the appeal.
(4) If either side wishes to apply for a different order as to costs, he or it is at liberty to do so by submissions not exceeding 3 pages accompanying the order sought to be filed and served within 7 days of today, with any submissions in response to be filed and served within 7 days thereafter, with a view to any question as to costs being determined on the papers. If neither side applies for any different order as to costs, order 3 above will take effect in 14 days time. If either side applies for any different order as to costs, order 3 above will be vacated.
Catchwords: HIGH RISK OFFENDERS — Extended supervision orders — Application — s 20 of Terrorism (High Risk Offenders) Act 2017 (NSW) required subject of application to be “eligible offender” — respondent eligible offender at time of application — successful severity appeal in District Court resulted in respondent no longer being eligible offender at time application determined
STATUTORY INTERPRETATION — Amendment and repeal — s 20 amended to include words “or was in custody or under supervision at the time the original application for the order was filed” — whether words removed requirement for respondent to be eligible offender at time application determined — no obviously preferable construction — State’s construction required substantial implied additions to statutory text — respondent’s construction rendered inserted words superfluous — presumption against superfluity not determinative — identification of leading and subordinate provisions — importance of legislative intention in context of words inserted by amendment
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 106O, 128C(1), 128E(2), 160A
Crimes (High Risk Offenders) Act 2006 (NSW), s 5B(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 73(2)(b), 89(2)(g), and 99(2)(e)
Crimes Act 1900 (NSW), s 93C
Criminal Code (Cth), s 474.45C(1)
Interpretation Act 1987 (NSW), s 33
Justice Legislation Amendment Act (No 2) 2018 (NSW)
Suitors Fund Act 1951 (NSW)
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4(1), 6-10, 12, 16, 20, 23, 24, 26-29, 33, 34, 53(1)
Cases Cited: Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295
Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101; [2009] UKHL 38
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (2024) 281 CLR 525; [2024] HCA 16
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
Commissioner of Stamps v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453; [1995] HCA 44
Institute of Patent Agents v Lockwood [1894] AC 347
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Lovell [2015] QCA 136; (2015) 252 A Crim R 362
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12
SkyCity Adelaide Pty Ltd v Treasurer of South Australia (2024) 282 CLR 479; [2024] HCA 37
State of New South Wales v Benshabir (Interlocutory) [2026] NSWSC 321
State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348
State of New South Wales v Hamze (2025) 116 NSWLR 578; [2025] NSWCA 22
State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287
Category: Principal judgment
Parties: State of New South Wales (Appellant)
Yaqoob Benshabir (Respondent)
Representation: Counsel:
J Single SC and M Varley (Applicant)
G James KC (Respondent)
Solicitors:
Crown Solicitor’s Office (Appellant)
Crimcorp Defence Lawyers (Respondent)
File Number(s): 2026/264828
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The appellant, the State of New South Wales, sought that the Supreme Court make an extended supervision order (ESO) in respect of the respondent pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). The primary judge held that the Court did not have power to do so given the particular, unusual, facts of the respondent’s case. Those facts were as follows. When the State’s application was filed in the Supreme Court the respondent was an “eligible offender” as defined in s 7 of the Act. At that time he had been sentenced in the Local Court to a term of imprisonment of 10 months with a non-parole period of 5 months for a New South Wales offence. Before the State’s ESO application was determined on a final basis the respondent ceased to be an eligible offender because the District Court set aside his sentence of imprisonment on a severity appeal, such that he was no longer “serving, or … continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence”.
Section 20 of the Act addresses the making of an ESO:
20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk
The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if—
(a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed)—
(i) while serving a sentence of imprisonment for a NSW indictable offence, or
(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and
(b) an application for the order is made in accordance with this Part, and
(c) the Supreme Court is satisfied that the offender is any of the following—
(i) a convicted NSW terrorist offender,
(ii) a convicted NSW underlying terrorism offender,
(iii) a convicted NSW terrorism activity offender, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
The underlined phrase in parentheses was inserted by amendment in 2018.
Section 23(2) of the Act provides that “[a]n application for an extended supervision order in respect of an eligible offender may not be made until the last 12 months of the offender’s current custody or supervision”.
The primary judge determined that as a result of the respondent ceasing to be an eligible offender the Supreme Court did not have power pursuant to s 20 to make the ESO sought by the State. Her Honour also rejected the respondent’s argument that s 23(2) of the Act imposes as a requirement for making an ESO that a defendant has been sentenced to a term of imprisonment comprising a minimum of 12 months (the respondent’s original sentence having been less than that term).
The State appealed on the question whether the Supreme Court has power to make an ESO pursuant to s 20 of the Act in circumstances where the respondent was no longer serving a sentence of imprisonment for an indictable offence, is not on parole, and is not subject to any supervision or custody order under the Act. Three constructions of the parenthesised phrase in s 20 were raised on appeal (the third of which was the construction adopted by the primary judge):
(1) The words do not change the provision’s operation and are, in effect, superfluous. The person must be an “eligible offender” both at the time of the application and when the Court makes an ESO.
(2) The words in parentheses mean there is no requirement for a person to be in custody or under supervision at the time the Court makes an ESO, so long as that requirement was satisfied at the time the ESO application was filed.
(3) The words in parentheses in s 20(a) were inserted to deal with a situation in which the defendant was in custody or under supervision at the time the application was filed, but has been released on parole before the application is determined such that they are no longer in physical custody. Since a person who is on parole is still “serving a sentence of imprisonment” within the meaning of s 6 of the Act, they would remain an eligible offender pursuant to s 7 despite no longer being in custody.
The respondent filed a notice of contention in respect of his s 23(2) argument which the primary judge had rejected.
The Court held (Ward P and Leeming JA, Kirk JA dissenting), allowing the appeal and remitting the proceedings to the Common Law Division:
Notice of contention (per curiam)
1. Section 23(2) is directed to a particular topic, being the timing of when an application must be made. The temporal limitation imposed by the section is unsurprising as it ensures that the requisite judgment is not made too far in advance. The subsection thus has a clear operation and purpose. There is no imperative to conclude that a further purpose was sought to be achieved by implication, namely, restricting what sort of offender may be subject to an ESO. The respondent’s contention was rejected: [71]-[79] (Kirk JA); Ward P agreeing at [2]; Leeming JA agreeing at [16].
Construction of s 20 of the Act
Per curiam:
2. In making the 2018 amendment Parliament intended to expand the ways in which s 20(a) could be satisfied to cover situations where the offender had been, but was no longer, in custody or under supervision at the time the application for an ESO was determined: [7] (Ward P); [24] (Leeming JA); [103] and [114] (Kirk JA).
4. The primary judge erred in adopting the third construction insofar as her Honour assumed that “custody” meant imprisonment by way of full-time detention; and that “under supervision” did not include being on parole. The better view is that the Act contemplates “custody” encompassing being detained not only due to imprisonment but because subject to a CDO or IDO under the Act or being subject to an equivalent order under the parallel Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act). Further, “under supervision” includes being subject to supervision on parole. So understood, the third construction gave the words in parentheses in s 20(a) no work to do: [91]-[99] and [102] (Kirk JA); Ward P agreeing at [4]; Leeming JA agreeing at [16].
Per Ward P and Leeming JA:
5. The “presumption against superfluity” was not the right starting point for resolving the relevant constructional issues. The settled principles of construction include the idea of identifying the “leading” and “subordinate” provision so as to alleviate a conflict. The Act and its amendment in 2018 are to be read as a combined statement of the will of the legislature. The new words inserted by the 2018 amending Act are to be regarded as the leading words in s 20 as amended: [19]-[20] (Leeming JA); Ward P agreeing at [8].
Commissioner of Stamps v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453 at 463; [1995] HCA 44; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Institute of Patent Agents v Lockwood [1894] AC 347, referred to.
6. Also relevant was the purpose of the 2018 amendment’s purpose to “align” the regime in the Act with that under the CHRO Act. That legislation in terms permits an ESO to be made in relation to a person who is serving (or who has served) “a sentence of imprisonment for a relevant offence”. The second construction accords with this, while on the first and third constructions, there is no such “alignment”: [7] (Ward P); [21] (Leeming JA).
7. A construction which gives no work at all for the parenthetical words to do (and does not accord with the legislative purpose for the relevant amendment) cannot have been the intention of the legislature when enacting the 2018 amendment. As such the second construction, propounded by the State, was the preferable construction: [8] (Ward P); [25] (Leeming JA).
Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101; [2009] UKHL 38, referred to.
Per Kirk JA, dissenting
9. The presumption against superfluity does not require that a court give meaning to every word of a statute at all costs: [89].
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64; Project Blue Sky; Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295 at [20]; R v Lovell [2015] QCA 136; (2015) 252 A Crim R 362, referred to.
10. There were numerous problems with the second construction, for which the State advocated. First, it rendered the whole of s 20(a) redundant because it would simply duplicate s 23(1). Second, it required a significant implied addition to the statutory text of s 20(a). Third, it also required an implied addition to be read into s 20(c). Fourth, and relatedly, other provisions of the Act envisaged that at the time of the Court making the order the offender is at that time someone falling within one of the three terrorism-related categories. Fifth, it led to the anomalous result that an interim supervision order could not be made to protect the community in a case such as this but an ESO still could be made down the track: [106]-[112].
State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076, referred to.
11. Rejecting the State’s construction would mean that the 2018 amendment failed and the words inserted are in fact redundant. There was much force in the argument that such a conclusion should not be reached. However, there are limits to how far courts can go in seeking to give effect to an apparent intention. The words must be reasonably capable of achieving the identified purpose. The five matters outlined above were substantial departures from what the text and context otherwise require. They were too drastic to be supported by the addition of the words in parentheses in one paragraph of s 20. The Parliament cannot reasonably be taken to have intended that result and the State’s construction could not be accepted: [113]-[117].
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86; State of New South Wales v Hamze (2025) 116 NSWLR 578; [2025] NSWCA 22, referred to.
WARD P: I have had the benefit of reading the respective reasons for judgment of each of Leeming JA and Kirk JA. I do not repeat the background to the present proceeding or the relevant statutory schemes which Kirk JA has set out in his judgment.
For the reasons given by Kirk JA, the respondent’s notice of contention as to the proper construction of s 23(2) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act) should be dismissed. The primary judge correctly rejected the argument that an application for an extended supervision order may only be made if the offender is subject to a term of imprisonment of 12 months or more.
As to the sole issue in the appeal, the proper construction of s 20 of the THRO Act, on which my colleagues disagree, I have concluded that the construction advanced by the State (the second of the three constructions identified by Kirk JA) is to be preferred. I therefore agree with the orders proposed by Leeming JA including as to costs.
Briefly, I have reached that conclusion by reference to the parenthetical words inserted into s 20(a) of the THRO Act by the 2018 amendment. The construction which Kirk JA favours would, as his Honour recognises, leave those parenthetical words no work to do. I do not accept that the third construction (which the primary judge identified) remedies that problem for the reasons given by Kirk JA by reference to the expanded definition of “serving a sentence of imprisonment”.
I accept that the State’s construction in effect requires words to be read into the introductory words of s 20(a) and, as the State conceded, into s 20(c). I also accept that giving full effect to the words in parentheses in s 20(a) may be said to render the whole of s 20(a) redundant (as the requirement there specified on that construction, would already be imposed by s 23(1), which deals with in respect of whom an application for an extended supervision order may be made).
I also see the force of Kirk JA’s exposition of additional difficulties with the State’s construction and that the so-called presumption against superfluity is not determinative.
However, as Kirk JA notes, the second reading speech for the amending 2018 Bill made clear that the intended operation of s 20 was to cover situations where the offender was no longer in custody or under supervision and that the intent was to align the regime under the THRO Act with that under the Crimes (High Risk Offenders) Act 2006 (NSW). As Leeming JA points out, the State’s construction accords with that legislative purpose. That is not achieved by the construction favoured by Kirk JA.
To my mind, a construction which gives no work at all for the parenthetical words to do (and does not accord with the legislative purpose for the relevant amendment) cannot have been the intention of the legislature when enacting the 2018 amendment. My conclusion in this regard is fortified by Leeming JA’s analysis framed in the distinction between leading and subordinate provisions.
20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk
The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if –
(a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed) –
(i) while serving a sentence of imprisonment for a NSW indictable offence, or
(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and
(iii) (Repealed)
(iv) (Repealed)
(b) an application for the order is made in accordance with this Part, and
(c) the Supreme Court is satisfied that the offender is any of the following—
(i) a convicted NSW terrorist offender,
(ii) a convicted NSW underlying terrorism offender,
(iii) a convicted NSW terrorism activity offender, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
Obviously enough, the power conferred by s 20 is only available if each of the conditions in paragraphs (a), (b), (c) and (d) is satisfied. The power is expressed to apply to “eligible offenders”, which term is defined to mean adults who are “serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence”. It might be thought from the use of the defined term “eligible offender” that that too was a criterion for the availability of the power, and indeed one that is more fundamental than those in paragraphs (a) – (d). To anticipate what follows, a great deal of the difficulty presented by this appeal is that the State’s construction requires a direct textual amendment to one of the preconditions to the availability of the power to be regarded as an indirect amendment to other preconditions, including the precondition which might be thought to be fundamental, namely being an “eligible offender”.
I shall now address, for the purpose of putting it to one side, one aspect of the section that is less obvious. Although the notion of a power available only if multiple preconditions are satisfied is familiar, much of s 20 does not bear a natural meaning. That is because of the use the drafter has made of defined terms. For example, a person is “serving a sentence of imprisonment” when that person has been granted parole (by s 6), a result which carries with it the conclusion that the construction upheld by the primary judge fails to give the bracketed words inserted in 2018 (which are underlined above) any work to do.
The words “convicted NSW terrorist offender”, “convicted underlying NSW terrorist offender” and “convicted terrorism activity offender” bear meanings than are much narrower than might be thought. Indeed, the fact that those defined terms commence with the participle “convicted” tends to disguise the fact that the definition requires not only that the person have been convicted, but also that he or she be serving a sentence of imprisonment or is continuing to be supervised or detained under the Act thereafter. It is counter-intuitive to think that a person convicted of a terrorism offence ceases to be a “convicted NSW terrorist offender” when that person has served his or her term of imprisonment and is not subject to any supervision under the Act, but that is the effect of the definitions of those terms. It is at least possible that one reason the 2018 amendment was deficient, thereby giving rise to the cost and delay of this appeal, is that the drafter did not fully appreciate the aspects of the definition which are not captured by the defined term. The deficiency is that the word “convicted” standing alone in the defined term is apt to convey that that is the only temporal precondition to a person falling within the definition, whereas in fact the person must not only be convicted but must also be serving a sentence or under supervision. This departs from best practice, and makes the legislation less transparent than it should be. The desirable and usual practice is for the words of a defined term to be chosen as “a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition”, as Lord Hoffmann explained in [2009] 1 AC 1101; [2009] UKHL 38 at [17]. That was said in a commercial contractual context, but the same is true of legislation, and indeed more powerfully, since legislation is not a private bargain between two counterparties, but instead is to be understood by all members of the public. The significance of Lord Hoffmann’s observation is echoed by the more recent recognition by the High Court in (2024) 282 CLR 479; [2024] HCA 37 at [32] that the defined term is part of the context against which the legislation is to be construed. A shorter way of making these points is simply to say that the label selected for the definition matters.
The respondent was arrested and charged with one count of affray contrary to s 93C of the Crimes Act 1900 (NSW) on 13 February 2025 (NSW offence). The charge stemmed from a homophobic attack perpetrated by the respondent and others. He was released on bail. While on bail he was arrested and charged on 25 September 2025 with using a carriage service to possess violent extremist material contrary to s 474.45C(1) of the Criminal Code (Cth) (federal charge).
On 12 February 2026 the respondent pleaded guilty to the NSW offence. He was sentenced in the Local Court to a term of imprisonment of 10 months with a non-parole period of 5 months. His sentence was backdated to commence on 25 September 2025, with the total term set to expire on 24 July 2026.
The respondent was due to be released on parole on 24 February 2026. However, the State Parole Authority determined that he was a “terrorism related offender” who posed a “serious identifiable risk to the safety of the community”: see PJ [12]. This determination appears to have been linked to the federal charge. The statutory parole order accordingly was revoked.
On 4 March 2026, the defendant filed a severity appeal in relation to his sentence for the NSW offence. The appeal was listed for hearing in the District Court on 2 April 2026.
On 30 March 2026 the State filed a summons in the Supreme Court which relevantly sought that an ESO be imposed on the respondent for 12 months.
On 31 March 2026 the federal charge was withdrawn.
A preliminary hearing in relation to the State’s application for an ESO took place in the Supreme Court on 1 April 2026 before Weinstein J. The State sought orders appointing two experts to conduct examinations of the defendant and to provide reports to the Court pursuant to s 24(5) of the Act, and for an interim supervision order (ISO) pursuant to s 27 (the statutory scheme is explained below). The State relied in part on the material supporting the federal charge, notwithstanding that the charge itself had been withdrawn the day before.
Justice Weinstein gave a short statement of findings at the conclusion of the hearing, while indicating that full written reasons would follow. That statement of findings was set out in his Honour’s subsequent judgment: State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348 at [4]. It included the following:
The Summons, application for an extended supervision order and accompanying documentation are made in accordance with the statutory time limit, are in proper form and otherwise comply with the formal requirements of the Act;
Mr Benshabir is an “eligible offender” as defined in s 7 of the Act;
Mr Benshabir is a “convicted New South Wales terrorism activity offender” pursuant to s 10 of the Act;
The preliminary hearing was heard within 28 days after the filing of the application in accordance with s 24(4) of the Act;
I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 24(5) of the Act; and
It does not appear to me that the offender’s custody “will” expire before the proceedings are determined: s 27(a) of the Act.
The last of these conclusions, which I will further explain in the context of the terms of the statute when I publish my full reasons, means that I cannot make the interim supervision order sought by the plaintiff pursuant to s 27 of the Act.
The first five of those findings mean that I must make orders appointing two experts to prepare reports and directing Mr Benshabir to attend those examinations.
His Honour accordingly made orders on 1 April 2026 appointing two experts and directing the respondent to attend examinations with them, and refusing the application for an ISO. His finding that the respondent was a “convicted NSW terrorism activity offender” pursuant to s 10 of the Act was based on the combination of the respondent’s conviction for the NSW offence, and his associations with “several people who are said to advocate support for violent extremism” (at [31]).
His Honour’s sixth finding above, concerning the expiration of the respondent’s custody, was made in relation to s 27. That section provides that for an ISO to be made it must appear to the Court that “the offender’s current custody or supervision will expire before the proceedings [ie the ESO application] are determined” (emphasis added). In his Honour’s reasons for judgment, he said that “[i]n my opinion, ‘will’ should be given its ordinary meaning, that is, what is realistically inevitable as distinct from what may happen or is likely to happen” (at [52]). His Honour found that, “given the unpredictability of the District Court severity appeal”, he could not be satisfied that the respondent’s custody would expire before the proceedings were determined (at [53]).
His Honour made further orders on 1 April 2026, which included the following:
5. The parties have liberty to approach the Duty Judge urgently to have the matter restored on one hour’s notice including out of regular business hours.
6. The parties are to notify the Duty Judge and my chambers of the outcome of the defendant’s severity appeal on 2 April 2026 as soon as practicable.
NOTES
I note the following:-
1. Order number 5 above is made against the possibility that the judge of the District Court of New South Wales hearing the defendant’s severity appeal tomorrow on 2 April 2026 may foreshadow or make orders allowing the appeal and sentencing the defendant to a period of imprisonment which has expired or may expire very soon. Should that circumstance eventuate, the statutory pre-requisite in s 27(a) would be established. It may be that the Judge hearing the severity appeal will stay his or her orders to allow the parties to approach the Duty Judge so that the application for orders pursuant to s 27 of the Act can be further pursued. I note that I have reached the provisional view that the Court’s discretion to make an interim supervision order should be exercised in favour of the State of New South Wales and that the supervision order should be subject to the conditions annexed as Schedule “A” to the Summons.
On 2 April 2026, the day after the preliminary hearing before Weinstein J, the severity appeal was heard and determined in the District Court by David DCJ. Her Honour upheld the appeal in an ex tempore judgment, “quashed” the sentence of imprisonment imposed by the Local Court in respect of the NSW offence, and in lieu thereof imposed a 12 month conditional release order. The parties subsequently agreed that the correct description was that her Honour had “set aside” the term of imprisonment imposed in the Local Court: see PJ [51]-[54].
After these orders were pronounced (a little after 12.30pm), counsel representing the State sought to appear and seek a stay of the orders pending an urgent application to the Supreme Court for an ISO. It is not necessary to consider here whether “the State” and “the Crown” are different parties (as was assumed before her Honour): cf C**hief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (2024) 281 CLR 525; [2024] HCA 16 at [9] and [139]-[149]; The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287 at [109].
Her Honour ultimately declined to rule on the State’s application but noted that the orders would likely not be processed on JusticeLink until approximately 2:30pm. At the request of the parties, her Honour subsequently indicated that the orders would not formally be entered on JusticeLink until 4:30pm that afternoon. Those orders setting aside the term of imprisonment and imposing a conditional release order were duly entered that afternoon.
That afternoon the State filed an urgent application in the Supreme Court for an ISO in respect of the respondent. The application was heard and determined by the Common Law Division duty judge, Emmett J, prior to 4:30pm. His Honour delivered an ex tempore judgment: State of New South Wales v Benshabir (Interlocutory) [2026] NSWSC 321.
Relevantly, Emmett J held that there was nothing in the context of the particular case, on the evidence before him, that would indicate that David DCJ intended her orders not to be effective immediately, or that they were in some way withdrawn or revisited later in the day (at [27]-[29]). On that basis his Honour held that the orders of the District Court had already taken effect and, as a result, the respondent was no longer an “eligible offender” within the meaning of s 7 of the Act. In that context, his Honour was unable to be satisfied that he had the power to make an ISO.
[35] There is no dispute that the combined effect of David DCJ’s orders and Emmett J’s orders means that the defendant no longer fulfils the definition of an “eligible offender” under s 7 of the THRO Act. That is, he is no longer “serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence”.
[36] The question is whether, in light of those circumstances, a final order may still be made by this Court for an ESO against the defendant.
[37] This requires consideration of three issues:
(1) What is the effect of the District Court “setting aside” a sentence?
(2) Does s 23(2) of the THRO Act preclude an application from being made in circumstances where the defendant was never sentenced to a term of imprisonment of 12 months or more?
(3) Does the Court have jurisdiction pursuant to s 20 of the THRO Act in circumstances where the defendant is no longer serving a sentence of imprisonment for an indictable offence nor being supervised under an ISO under the THRO Act?
As to the first issue, her Honour determined that an order of the District Court setting aside a sentence in an appeal from the Local Court does not render that sentence void ab initio. Hence, at the time the State filed its summons in the Supreme Court seeking an ESO, the respondent was serving a sentence of imprisonment for a NSW indictable offence. However, David DCJ’s orders had the result that from 2 April 2026 the respondent was not serving a sentence of imprisonment or under supervision (at [51]-[60]). These conclusions are not challenged on appeal.
As to the second issue, her Honour held that s 23(2) of the Act does not impose as a requirement for making an ESO that a defendant has been sentenced to a term of imprisonment comprising a minimum of 12 months (at [68]-[70]). The respondent challenges this conclusion by way of his notice of contention.
As to the third issue, her Honour held that certain amendments made to s 20(a) in 2018 did not have the effect of removing the requirement that an ESO only be made in respect of someone who is an “eligible offender”. Accordingly, the Court did not have jurisdiction to make an ESO because the respondent had ceased to be an eligible offender on 2 April 2026 (at [99]-[106]). This conclusion is challenged by the State.
The correctness of the decisions of Weinstein J and Emmett J, and the significance of David DCJ indicating that her orders would not be entered on JusticeLink until 4:30pm, are not raised in this appeal.
The Bill that became the Act was introduced into the Parliament in 2017. The Attorney General described the Bill as serving to “protect the community from offenders who have reached the end of their prison sentence and pose an unacceptable risk of committing a future serious terrorism offence at the end of their sentence”, doing so by creating “a post-sentence supervision and detention scheme covering New South Wales offenders serving a sentence of imprisonment for an indictable offence”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 2017 at 53.
Section 3 of the Act sets out its objects:
3 Objects of Act
(1) The primary object of this Act is to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage these offenders to undertake rehabilitation.
Part 2 of the Act governs the making of ESOs. The Part delineates two sets of requirements which must be met for an ESO to be made. The first set is in s 23, being requirements with respect to the State making an application to the Supreme Court for an ESO. The relevant time for that set is when the application is made. The other set of requirements is contained in s 20 which, oddly, is placed prior to s 23. It sets out the requirements that must be met for the Supreme Court ultimately to make an ESO.
Section 23 states:
23 Requirements with respect to application
(1) An application for an extended supervision order may be made only in respect of an eligible offender who is in custody or under supervision—
(a) while serving a sentence of imprisonment for a NSW indictable offence, or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(2) An application for an extended supervision order in respect of an eligible offender may not be made until the last 12 months of the offender’s current custody or supervision.
(3) An application must be supported by documentation—
(a) that addresses each of the matters referred to in section 25(3), and
(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert) that assesses the likelihood of the eligible offender committing a serious terrorism offence.
(4) An application may indicate the kinds of conditions (in addition to or instead of the conditions referred to in section 29(1A)) that are considered to be appropriate for inclusion under section 29 in the event that an extended supervision order is made.
A “NSW indictable offence” is defined in s 4(1) to mean an offence against a law of the State for which proceedings may be taken on indictment. An “eligible offender” is defined in s 7 as being someone who is 18 years of age or older and “serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence”. Section 7 is within Div 1.3 of Pt 1 of the Act, which division is headed “Key concepts”. It may be noted that the inclusion in s 23(1) of the requirement that the person be an eligible offender is tautologous of what then follows in s 23(1), apart from the age requirement specified in s 7.
The term “serving a sentence of imprisonment” is defined in s 6 to encompass serving a sentence of imprisonment for the offence “by way of full-time detention” or being on parole in respect of the offence.
The terms “in custody” and “under supervision” are used in s 23 and again in s 20 but they are not defined.
The question of whether to make an ESO, and associated consideration of the s 20 requirements, only arises after the “pre-trial procedures” set out in s 24 have been undertaken. That provision requires, amongst other things, that a “preliminary hearing into the application” be conducted by the Supreme Court within 28 days of the application being filed. If the Court is then satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders appointing at least two qualified psychiatrists and/or registered psychologists separately to examine the person in question and to produce a report. If the Court is not so satisfied then it must dismiss the State’s application for an ESO.
The Act provides for the making of an ISO in certain circumstances while an application for an ESO is on foot:
27 Interim supervision order
The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court—
(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
The maximum term of an ISO is 28 days (s 28(1)(a)). An ISO can be renewed from time to time up to a limit of three months (s 28(7)).
Section 20 then addresses the making of an ESO itself:
20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk
The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if—
(a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed)—
(i) while serving a sentence of imprisonment for a NSW indictable offence, or
(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and
(b) an application for the order is made in accordance with this Part, and
(c) the Supreme Court is satisfied that the offender is any of the following—
(i) a convicted NSW terrorist offender,
(ii) a convicted NSW underlying terrorism offender,
(iii) a convicted NSW terrorism activity offender, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.
10 Convicted NSW terrorism activity offender
(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender—
(a) the offender has at any time been subject to a control order,
(b) the offender has at any time been a member of a terrorist organisation,
(c) the offender—
(i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or
(ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. …
It was not disputed before the primary judge or on appeal that the respondent was a “convicted NSW terrorism activity offender” at the time the State made its application for an ESO.
Section 29(1) of the Act provides that an ESO or ISO “may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate” and provides a non-exhaustive list of 20 potential conditions (some of which have internal variants). Section 29(1A) specifies 18 conditions which an ESO or ISO presumptively must include unless the Court “orders differently”.
The term of an ESO cannot be more than three years (s 26(6)(a)), but second or subsequent ESOs can be made in respect of the same eligible offender (s 26(8)).
Part 3 of the Act deals with continuing detention orders (CDOs) along with interim detention orders (IDOs). Its structure is similar to that of Pt 2.
The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if:
(a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed):
(i) while serving a sentence of imprisonment for a NSW indictable offence, or
(ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order …
A cognate parenthetical phrase was inserted into s 34(1), being the equivalent provision with respect to making a CDO (see underlined passage).
The following was said about these amendments in the second reading speech for the relevant Bill (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 May 2018 at 266):
Items [5] and [6] of schedule 1.22 seek to align orders under the Terrorism (High Risk Offenders) Act 2017 more closely with the equivalent post-sentence scheme that applies to high-risk sex and violent offenders under the Crimes (High Risk Offenders) Act 2006. Under the scheme applying to high-risk sex and violent offenders, the court can make a final order provided that, at the time of application, the offender was a supervised or detained offender. The existing equivalent terrorism provision requires the offender to continue to be a supervised or detained offender at the time the court makes the final decision. The effect of the existing Act is that the Supreme Court may make a final order under the Act only when an offender is in custody or is under supervision.
There may be circumstances in which interlocutory applications or separate proceedings such as appeals that reduce an offender's head sentence result in the offender no longer being deemed in current custody. Items [5] and [6] amend section 20 and section 34 to provide that an extended supervision order or a continuing detention order can be made in respect of an eligible offender who was in custody or under supervision at the time the application for the order was filed, including where the offender has since ceased to be in custody or under supervision.
[70] Section 23(2) simply contemplates risk assessments being undertaken some time proximate to the anticipated release of the offender. It fixes a period for the making of an application and assessment of an offender’s risk. It does not require a defendant be sentenced to a term of imprisonment comprising a minimum of 12 months.
As the heading to s 23 indicates, the provision sets the “requirements with respect to [an] application” for an ESO. Section 23(2) does not state that such an application may only be made with respect to a person who has been sentenced to a term of imprisonment of 12 months or more. The respondent, however, asserts that the section assumes and thereby implicitly requires that that be so.
The subsection is directed to a particular topic, being the timing of when an application must be made. A relevant part of the context is that s 26(1) provides that an ESO commences when it is made, or when the eligible offender’s current custody or supervision expires, whichever is the later. Section 23(2) requires that the application be made no more than 12 months prior to when the ESO would commence operation, namely (commonly) when the current custody or supervision expires. The key evaluative criterion involved in the Court deciding whether to make an ESO is being “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order” (s 20(d)). That criterion looks towards the future based on the information currently available. People, and risks, may change over time. That point is recognised in the three year maximum term of an ESO. In this context the temporal limitation imposed by s 23(2) is unsurprising. It ensures that the requisite judgment is not made too far in advance.
The subsection thus has a clear operation and purpose. There is no imperative to conclude that a further purpose was sought to be achieved by implication, namely, restricting what sort of offender may be subject to an ESO. That topic is addressed distinctly in the requirement that the person be an “eligible offender” and that they also fall within one of the three categories of terrorism-related offender referred to in pars (i)-(iii) of s 20(c). If the Parliament had intended further to qualify who could be subject to an ESO it seems likely that such a qualification would have been addressed in terms.
The respondent did not address how his construction related to the possibility of an ESO being sought when the person was not in custody but under supervision, say under an ESO made previously. As a matter of consistency, his argument must be that an ESO could not be made if the period of supervision was less than 12 months. That would mean that if the Court imposed an ESO of less than 12 months, as it is able to do in light of s 26(6), then that would preclude a subsequent ESO being sought in the future in relation to the person (absent some further qualifying offence). In practical terms that operation tends to undermine either or both the timing flexibility in s 26(6) and the provision in s 26(8) allowing the Court to make a second or subsequent ESO in respect of the person. This aspect of the context, too, militates against the respondent’s construction.
The construction adopted by the primary judge on this issue is correct. The respondent’s contention must be rejected.
The issue raised for determination by the State is whether the Supreme Court has power to make an ESO pursuant to s 20 of the Act in circumstances where the respondent is no longer serving a sentence of imprisonment for an indictable offence, is not on parole, and is not subject to any supervision or custody order under the Act.
The core tension in s 20 is as follows. On the one hand, the chapeau in s 20 provides that the Court “may make an order for the supervision in the community of an eligible offender … if”. There was no dispute that, of themselves, these words contemplate the person being an eligible offender at the time that any ESO is made. As noted, the definition of an “eligible offender” in s 7 requires that the person is serving, or is “continuing to be supervised or detained under the Act after serving”, a sentence of imprisonment for a NSW indictable offence. The respondent has not been an eligible offender since the District Court upheld his severity appeal on 2 April 2026.
On the other hand, the words in parentheses in s 20(a) which were added in 2018 – “or was in custody or under supervision at the time the original application for the order was filed” – suggest that it does not matter if the person is no longer in custody or under supervision as at the time the Court makes an ESO, so long as that condition was fulfilled when the application first was filed.
Three possible constructions of the words in parentheses in s 20(a) were raised in relation to this issue; the first two were identified in the Court below by the State, and the third was raised by the primary judge. The first construction is that the words do not change the provision’s operation and are, in effect, superfluous. The person must be an “eligible offender” both at the time of the application and when the Court makes an ESO.
The second construction is that advanced by the State. The words in parentheses mean there is no requirement for a person to be in custody or under supervision at the time the Court makes an ESO, so long as that requirement was satisfied at the time the ESO application was filed. As a consequence, the person need not be an eligible offender at the time an ESO is made, insofar as the s 7(b) requirement for that notion – that the person “is … serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence” – need not be satisfied at that time. Thus an ESO could be made against the respondent, as he was in custody serving a relevant sentence when the application was filed, even though he is no longer doing so, nor on parole, nor subject to supervision.
The third construction is the one identified by the primary judge, which was supported on appeal by the respondent. The words in parentheses in s 20(a) were inserted to deal with a situation in which the defendant was in custody or under supervision at the time the application was filed, but has been released on parole before the application is determined such that they are no longer in physical custody. Since a person who is on parole is still “serving a sentence of imprisonment” within the meaning of s 6 of the Act, they would remain an eligible offender pursuant to s 7 despite no longer being in custody. This construction was preferred by her Honour because she considered it gave the parenthetical phrase work to do without undermining the core requirement that the defendant be an eligible offender.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
Their Honours spoke of a court striving to give meaning to every word. They did not say that this must be done at all costs. Furthermore, one of the judgments cited in support of the first sentence was that of Mason CJ in Chu Kheng Lim v Minister for Immigration*, Local Government and Ethnic Affairs* (1992) 176 CLR 1 at 12-13; [1992] HCA 64. In that passage his Honour quoted approvingly a statement by Viscount Simon that “[t]he rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out” (the Chief Justice’s emphasis). His Honour went on to hold that certain words in the statute being construed were best understood to be tautologous, and thus superfluous, because otherwise the words in question would infringe fundamental principles relating to personal liberty where they were not clear enough to achieve that result.
Each of the three constructions identified in this case have significant factors weighing against them. In the end, the constructional choice comes down to which construction is the least problematic. Before turning to the comparative merits of these constructions it is necessary to address the meaning of two other notions.
Section 20(a) speaks of the offender being “in custody or under supervision”. As noted, “custody” is not defined in the Act. The primary judge assumed that “custody” has its ordinary meaning, that is, full-time detention: PJ [100]. Her Honour earlier suggested that it should be understood to mean serving a term of imprisonment by way of full-time detention: PJ [76]. That suggestion should not be accepted insofar as it limits the meaning of “custody” to full-time detention as a result of the person having been sentenced to a term of imprisonment. The Act contemplates “custody” also encompassing being subject to a CDO or IDO under the Act or being subject to an equivalent order under the parallel Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act); for example:
Section 16(2)(b) of the Act provides that “detention or custody under a continuing detention order made under the [CHRO Act] may be treated for the purposes of this Act as equivalent to detention or custody under a continuing detention order made under this Act”.
Section 33, in Pt 3 of the Act, defines “detained offender” in that Part to include a person “who is in custody” while “serving a sentence of imprisonment for a NSW indictable offence” or under an existing CDO, IDO or emergency detention order.
Section 20(a) itself refers to an offender being in custody or under supervision under an existing ISO, ESO, IDO or CDO. The reference to “custody” must there encompass the subsequent references to the two types of detention order.
Similarly, “custody” cannot be read as a synonym for the frequently used concept of “serving a sentence of imprisonment”, as that would not pick up being detained pursuant to a CDO or the like.
There is no reason to consider that “custody” means different things in different sections of the Act. Thus “custody” as used in s 20(a) should be understood to refer to being in full-time detention, whether pursuant to a sentence of imprisonment, a CDO, IDO or some other such order. This conclusion is consistent with the State’s submissions.
Section 20(a) then employs the complementary notion of being “under supervision”. Neither that notion, nor the word “supervision” itself, is defined in the Act. Clearly the notion encompasses being subject to an ESO or ISO under the Act. The State argued that it also encompasses being subject to supervision whilst on parole. It referred to s 128C(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), which provides that it “is a condition of a parole order that the offender is to be subject to supervision, as prescribed by the regulations”. However, a person who is on parole is not necessarily subject to a supervision condition. Section 128E(2) of the CAS Act provides that a community corrections officer “may, by order in writing and subject to the regulations, suspend the application of a supervision condition to an offender for a period or periods or indefinitely”.
160A Relationship of parole orders to high risk offender orders
(1) An offender’s obligations under a parole order made in respect of a sentence for a NSW offence are suspended while the offender is subject to—
(a) an extended supervision order, an interim supervision order, an interim detention order or an emergency detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or
(b) an interim detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code.
(2) For the purposes of Division 3 of Part 7, the offender’s obligations under the extended supervision order or interim supervision order are taken to be obligations under the parole order.
Note.
Consequently, the offender’s parole order may be revoked under Division 3 of Part 7 if the offender fails to comply with his or her obligations under the supervision order.
(3) A parole order made in respect of a sentence for a NSW offence to which an offender is subject is revoked if—
(a) a continuing detention order is made against the offender under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or
(b) a continuing detention order is made against the offender under Division 105A of Part 5.3 of the Commonwealth Criminal Code.
Section 160A makes clear that the Parliament contemplated that the CAS Act and the Act, along with the CHRO Act, would work together.
Further, an integral feature of the Act is that it expressly provides that the notion of “serving a sentence of imprisonment” – which repeatedly is invoked in the Act – includes a person who was on parole. There would be an odd disjunction if, despite that fact, the Act was construed to provide that an ESO could not be made for a person on parole because the words “in custody or under supervision” s 20(a) did not encompass being on parole. It seems unlikely that such a disjunction was intended.
In this context, it is reasonable to conclude, as the State submitted, that the notion of being “under supervision” in s 20(a), amongst other provisions, encompasses an offender who is on parole, at least insofar as they are subject to a supervision order.
A number of other forms of criminal punishment can involve a supervision condition, including an intensive corrections order, a community correction order, and a conditional release order: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 73(2)(b), s 89(2)(g), and s 99(2)(e), respectively. Further, the Drug Court may make a “community supervision order” for offenders in certain circumstances: CAS Act, s 106O. It is not necessary to determine whether any of these could fall within the notion in s 20(a) of being “under supervision”. Even if they did, it would still be necessary pursuant to ss 20 and 23 to show both at the time of the application and at the time of the making of the ESO that the offender was serving a sentence of imprisonment or was under one of the identified forms of order under the Act, so the issue would not arise.
The State is correct to argue that the first construction gives the added words in parentheses in s 20(a) no work to do. The principle against superfluity thus weighs heavily against adopting the construction.
The primary judge considered that the third construction did give some effect to those words. Her Honour suggested those words extend the operation of the provision to cases where the person was no longer in custody in the sense of being subject to full-time detention but was on parole.
The State submitted that her Honour erred in that reasoning. It said that regardless of the words in parentheses, an offender on parole would fall within s 20(a) because they would be “under supervision … while serving a sentence of imprisonment for a NSW indictable offence”. The State’s submission is correct. Her Honour seems to have proceeded on the basis that “custody” means custody whilst serving a period of full-time imprisonment, and “supervision” means only supervision pursuant to an order under the Act and does not include potential supervision whilst on parole. Neither of those propositions should be accepted, for the reasons just outlined. Thus her Honour’s third construction, like the first construction, gives the words in parentheses no work to do. The first and third constructions coalesce. For that reason, in what follows it is sufficient and appropriate to weigh up the respective merits of the first and second constructions, and leave the third aside.
The State also relied on the second reading speech for the amending Bill which introduced the words in parentheses in s 20(a), along with the equivalent provision dealing with CDOs, s 34(1)(a). The relevant passage is set out above at [73]. The speech makes it relatively clear that the amendment was intended to expand the operation of s 20 (and s 34) so as to encompass situations where the offender was no longer in custody or under supervision, including because of an appeal determined after the application for an ESO (or CDO) was lodged. That is the current situation of the respondent. Adopting the first or third constructions would defeat the intended effect of the amendment. That fact also weighs heavily against adopting those constructions.
That being said, neither the second reading speech nor the other extrinsic materials addressed how the amendment to s 20(a) would interact with the reference in the section to the person being an eligible offender, and to the requirement that the person fall within one of the terrorism-related categories identified in s 20(c). Those omissions lead to some of the difficulties with the State’s preferred construction, as addressed below.
The State also argued that its construction would render this aspect of the Act consistent with the equivalent provision in the CHRO Act, whereas the first and third constructions would not. This Court held in State of New South Wales v (2022) 108 NSWLR 476; [2022] NSWCA 86 that s 5B of the CHRO Act – which plays a similar role to s 20 of the Act – should be construed such that the person need only have been a “supervised offender” at the time of application, and need not be such at the time of the Court making the order. In my view this argument of the State has very limited force, given the wording is far from identical and, as illustrates, the drafting in the CHRO Act is by no means clear: see similarly PJ [92]-[95].
There are numerous problems with the State’s construction.
First, the State’s construction in fact creates a more significant problem of superfluity than the first construction does. Section 20(a) requires that the offender is in custody or under supervision (or was when the original application was filed) while serving a sentence of imprisonment for a NSW indictable offence or under an ISO, ESO, IDO or CDO. The effect of the State’s construction – giving full effect to the words in parentheses – is that the requirement is satisfied so long as it was met when the application was originally filed. Yet exactly that requirement is already spelt out in s 23(1) of the Act. Whereas the first construction renders the words in parentheses in s 20(a) redundant, the State’s construction renders the whole of s 20(a) redundant. This point might have been enough of itself to reject the State’s construction, except perhaps for the fact that the words in parentheses were added by amendment and that can be argued to have additional significance (see above at [88]). Even if that argument were accepted, however, there are additional difficulties.
Second, the State accepted that its construction required that the reference in the chapeau of s 20 to the Court being empowered to “make an order for the supervision in the community of an eligible offender” had to be read as though it read “for the supervision in the community of a person who is, or was at the time of the original application*,* an eligible offender”. That is a significant implied addition to the statutory text. Moreover, the second reading speech for the 2018 amendments itself referred to the person being an “eligible offender” when the order is made (see above at [73]), as N Adams J noted when considering the parallel amendment to s 34(1)(a) of the Act: State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076 at [140]; see also PJ [80] and [103]-[104].
Third, s 20(c) requires that the Court “is satisfied that the offender is any of the following”, then lists the three categories of terrorism-related offenders. Each of those categories, as defined in ss 8-10 of the Act, require that the person either “is serving” a sentence of imprisonment for a certain type of offence or “is continuing to be supervised or detained under this Act” after serving such a sentence. And they each also require that the person be an “eligible offender” (as discussed in the following paragraph). The categories thus look to the current status of the offender. The need for such currency is made clear by the use of the present tense in s 20(c). The State accepted that its construction required that an implied addition be read into s 20(c) to the effect that the second “is” be read as “is, or was at the time of the original application,”. Again, that is a significant implied addition.
Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. ... The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said in Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641, of the means used to achieve the purpose: “The legislature has plainly missed fire”. Lord Diplock, in an extra judicial comment on that decision has said, that “if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”: “The Courts As Legislators”, The Lawyer and Justice (Sweet & Maxwell) (1978) at 274.
It is apparent that the Parliament intended to expand the ways in which s 20(a) could be satisfied when it enacted the 2018 amendment. And it may well be that it meant to provide that it was sufficient if the requirement that the offender be serving a sentence of imprisonment for a NSW indictable offence or subject to supervision was satisfied only at the time the original application was filed, and not also when the Court came to make an ESO. Rejecting the State’s construction means that the 2018 amendment failed and the words inserted are in fact redundant. There is much force in the argument that such a conclusion should not be reached.
However, as McHugh JA implicitly accepted in Kingston, there are limits to how far courts can go in seeking to give effect to an apparent intention. The words must be reasonably capable of achieving the identified purpose. Construction “begins and ends with the statutory text understood in context and in light of the statutory purpose”: Palmanova at [4] (footnote omitted). As Mason CJ, Wilson and Dawson JJ said in Re Bolton; Ex p**arte Beane (1987) 162 CLR 514 at 518; [1987] HCA 12:
It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
The will of the Parliament is expressed in the whole of the Act, not just in the amendment: note Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [25]. The subsequent enactment of the amendment has some relevance in determining the hierarchy of apparently conflicting provisions: ibid. But timing alone is not determinative. The construction put by the State fundamentally alters the operation of s 20. It renders redundant the entirety of the paragraph into which the amendment was inserted, being a more significant redundancy than the alternative construction. It involves reading significant words into the chapeau of the section, and then again into s 20(c). It is in tension with the operation of s 12. And it creates an anomaly with respect to the operation of s 27. These are substantial departures from what the text and context otherwise require. They are too drastic to be supported by the addition of the words in parentheses in one paragraph of s 20. The tail would be wagging the dog. The Parliament cannot reasonably be taken to have intended that result.
The State’s construction cannot be accepted. The words employed in the parentheses in s 20(a) cannot properly be given any work to do. The presumption against superfluity does not apply because, to invoke the words quoted by Mason CJ in Chu Kheng Lim, there is good reason to the contrary.
This construction is different to the one adopted by the primary judge but the result is the same. The Supreme Court did not and does not have power to impose an ESO on the respondent under s 20. That is so because after his severity appeal was upheld in the District Court he was no longer an eligible offender under the Act; he no longer satisfied the criterion in s 20(a); and he no longer satisfied the criterion in s 20(c). In those circumstances it was appropriate to dismiss the State’s application.
One further point should be made about this somewhat surprising result. The analysis above illustrates that on any view the drafting of s 20, amongst other provisions, is flawed. This Court has twice previously identified poor drafting in the related CHRO Act. It said in State of New South Wales v Hamze (2025) 116 NSWLR 578; [2025] NSWCA 22, partly in reference back to the decision in Kaiser:
[35] The drafting of the [CHRO] Act is not a model example of the craft. For example, as noted above at [15], this court has held that the reference in s 5B(c) to s 5I was a mistake and should be taken to refer to s 6. The requirement in s 5B(b) that the person be a supervised offender within the meaning of s 5I is repetitive of what is required by s 5I itself. And the drafting of s 5A(1)(a1) simply does not scan, even if the meaning is apparent. …
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State of New South Wales
Benshabir
[2026] NSWSC 679
(2005) 14 VR 678
(2024) 281 CLR 525
(1992) 176 CLR 1
(1995) 184 CLR 453
(1987) 11 NSWLR 404
(2025) 99 ALJR 1362
(2014) 255 CLR 179
(1998) 194 CLR 355
(1987) 162 CLR 514
(2024) 282 CLR 479
(2025) 116 NSWLR 578
(2022) 108 NSWLR 476
(2026) 100 ALJR 287
Appeal allowed by majority. The orders made on 19 June 2026 were set aside and the proceedings remitted to the Common Law Division for determination in accordance with law. The orders also provided, subject to any further costs submissions, for a Suitors Fund Act 1951 (NSW) certificate for the respondent if otherwise entitled. Kirk JA would have dismissed the appeal.
Accordingly, on the issue of construction of s 20(a), I agree with Leeming JA notwithstanding that this requires some “violence” to the Act (as Leeming JA himself recognises).
LEEMING JA: This appeal, brought as of right following the dismissal of the State’s application for an extended supervision order under the Terrorism (High Risk Offenders) Act 2017 (NSW), turns on a single question of law. The question is one of power: is there power to make an Extended Supervision Order (or “ESO”) where, following orders for a person’s examination being made when the person was serving a term of imprisonment, the person’s appeal against sentence has subsequently been allowed with the effect of setting aside the custodial sentence and replacing it with a non-custodial sentence?
I have had the considerable advantage of reading the reasons for judgment of Kirk JA, who explains the statutory regime, unusual procedural background, reasons of the primary judge and the parties’ submissions. The background is unusual because it is scarcely likely that the State would choose to apply for an ESO where an appellate court has found that the person should never have been imprisoned in the first place, and where charges for terrorism-related offending have been withdrawn. Although I have reached a different ultimate conclusion from that reached by Kirk JA and the primary judge, it is worth saying at the outset that the circumstances presented by this appeal are unlikely to recur.
I shall for the most part not reproduce the matters contained in Kirk JA’s reasons; what follows presupposes familiarity with the statutory scheme and the parties’ submissions. Even so, it is convenient to begin with s 20 of the Act, underlining the words added in 2018 shortly after it was enacted in 2017:
The notice of contention, which would confine the application of the legislation to persons sentenced for a period of imprisonment of 12 months or more was rejected by the primary judge and should also be rejected for the reasons given by Kirk JA, with which I agree. The reasons given by the primary judge fail to recognise the expanded definition of “serving a sentence of imprisonment” in s 6, and must be rejected as Kirk JA explains. The result is that there are two constructions for which the parties contend.
The State’s submissions focussed upon the bracketed words “(or was in custody or supervision at the time the original application for the order was filed)” in s 20(a), acknowledging that if those words bore their ordinary meaning, then they detracted from the primacy of the notion of an “eligible offender”, and also required some distortion of the prima facie meaning of s 20(c). The respondent said that those words inserted in 2018 should not be understood as subverting basal aspects of the regime, notwithstanding that that carried with it the consequence that the words had no work to do and the 2018 amendment failed to achieve anything. Neither outcome is especially attractive. It is difficult to give the words added in 2018 all of the work they must bear in order to effectuate the State’s construction, and it is difficult to give them no weight at all as the respondent contends. But the difficulty of the task does not absolve this Court from resolving the question of power giving rise to this appeal.
A great deal of attention was given in the parties’ submissions to the “presumption against superfluity” – the idea that all words should be given work to do. The presumption is just that – a presumption – and does not itself dictate the outcome to a question of construction. In fact, I do not think it is the right starting point.
The settled principles of construction in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 include the idea of identifying the “leading” and “subordinate” provision so as to alleviate a conflict. The 2017 Act and its amendment in 2018 are to be read as a combined statement of the will of the legislature (cf Commissioner of Stamps v Telegraph Investment Company Pty L**td (1995) 184 CLR 453 at 463; [1995] HCA 44). However, the identification of the “leading” provision is not undertaken as if s 20 had emerged in its present form from the Parliament. Instead, fairly shortly after the enactment of the original Act, the Justice Legislation Amendment Act (No 2) 2018 (NSW) inserted the bracketed words within paragraph (a). It is impossible to give those words any meaning save that they expand the circumstances in which an extended supervision order may be made to a case where a person was no longer but had formerly been in custody or under supervision. As was emphasised in the parties’ submissions, that does violence – in the sense of imposing a further extension – upon the fundamental notion of “eligible offender” as well as the criterion in s 20(c). Yet, the ordinary meaning of the words, strengthened by the purpose emerging from the extrinsic materials, is precisely that.
As I see it, the starting point for resolving the question of construction presented in this appeal is one of identifying the “leading” and “subordinate” provisions, as Lord Herschell explained in Institute of Patent Agents v Lockwood [1894] AC 347 at 360, in a passage adopted by the High Court in Project Blue Sky at [70]. And that question can have but one answer. This is a case where the timing of the amendment assists in determining the hierarchy of the apparently conflicting provisions: see Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [25]. The new words inserted by the 2018 amending Act are to be regarded as the leading words in s 20 as amended.
One further aspect of the legislative purpose was to “align” the regime with that under the Crimes (High Risk Offenders) Act 2006 (NSW). That legislation in terms permits an ESO to be made in relation to a person who is serving (or who has served) “a sentence of imprisonment for a relevant offence”: s 5B(a). The State’s construction accords with this, while on the construction for which the respondent contends, there is no such “alignment”.
As Kirk JA points out, giving force to the ordinary meaning of the bracketed words inserted in 2018 carries with it a series of textual problems. It is decidedly odd from a policy perspective that an ISO is not available in the same extended circumstances, although that is an obvious consequence of the decision in 2018 to amend only the provisions dealing with final orders, and not interim orders. The State’s construction is also difficult to reconcile with the regime in s 12. There is also considerable violence done to s 20 itself if the bracketed words are to do work. They expand the operation of “eligible offender” in the opening words of the provision, and alter the criteria in s 20(c).
There are limits to what may be achieved as a matter of construction by identifying the 2018 bracketed words as the “leading provision”. What Parliament has not done is to add, say, a new s 20A to the effect “Notwithstanding anything else in this Act, an ESO may be made if the person was in custody or under supervision when the application was originally made”. But it is infrequently of any use to identify different statutory language which would not give rise to the issue of construction presented in litigation. The task is to construe the difficult language enacted, rather than better language which was not enacted.
The issue boils down to this. This Court must if available favour a construction which will promote the statutory purpose: Interpretation Act 1987 (NSW), s 33. The relevant statutory purpose includes that of the 2018 amendment. The purpose of that legislation differed from that of the original statute – that is the nature of an amendment. The purpose was to extend the regime to cases where the person had been, but was no longer, in custody or under supervision.
To reiterate, it is no small thing to conclude that the 2018 amendment, which self-evidently reflected a purpose of expanding the class of persons against whom an ESO could be sought to include those who were no longer in custody or under supervision because of successful appeals, failed to achieve any of that purpose. That said, it is also no small thing for the 2018 words to carry with them the implied expansion of other parts of the Act. Would it be doing too much violence to the Act to give the 2018 bracketed words their natural meaning which accords with the legislative purpose? Although as Kirk JA observes this is a finely balanced case, I have concluded that the construction propounded by the State is the preferable construction. I think that is, on balance, the legal effect of the addition of the words in brackets in s 20(a).
For those reasons, I propose that the appeal be allowed. The orders made on 19 June 2026 should be set aside. The proceedings should be remitted to the Common Law Division for determination in accordance with law.
This appeal has been brought about because of drafting infelicities which are no fault of the respondent. In accordance with s 55 of the Act, the State did not seek a costs order in its favour. I favour the view that the respondent should have the benefit of a certificate under the Suitors Fund Act 1951 (NSW). However, the parties have not been heard on this. If either side proposes a different order, he or it may do so by further written submissions. The costs at first instance should be left in the discretion of the judge in the Common Law Division who deals with the summons.
I propose these orders:
Appeal allowed.
Set aside the orders made on 19 June 2026, and in lieu thereof remit the proceedings to the Common Law Division for determination in accordance with law.
Subject to order 4 below, in 14 days from today grant a certificate under the Suitors Fund Act 1951 (NSW) to the respondent, if otherwise entitled, in respect of the costs of the appeal.
If either side wishes to apply for a different order as to costs, he or it is at liberty to do so by submissions not exceeding 3 pages accompanying the order sought to be filed and served within 7 days of today, with any submissions in response to be filed and served within 7 days thereafter, with a view to any question as to costs being determined on the papers. If neither side applies for any different order as to costs, order 3 above will take effect in 14 days time. If either side applies for any different order as to costs, order 3 above will be vacated.
KIRK JA: The appellant, the State of New South Wales, sought that the Supreme Court make an extended supervision order (ESO) in respect of the respondent, Mr Yaqoob Benshabir, pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act). The primary judge, Yehia J, held that the Court did not have power to do so given the particular, unusual, facts of the respondent’s case: State of New South Wales v Benshabir (Interlocutory) (No 2) [2026] NSWSC 679 (PJ or Primary Judgment).
When the State’s application was filed in the Supreme Court the respondent was an “eligible offender” as defined in s 7 of the Act. Before the State’s application was determined on a final basis the respondent ceased to be an eligible offender because of a successful severity appeal determined by the District Court in the respondent’s favour. The primary judge determined that as a result the Supreme Court did not have power to make the ESO sought by the State. The State has appealed from that judgment, by right: note s 53(1) of the Act. The issue turns on construction of s 20(a) of the Act.
The respondent has raised a further issue by notice of contention. Section 23(2) of the Act provides that an application for an ESO “may not be made until the last 12 months of the offender’s current custody or supervision”. The respondent asserts that this requirement limits the class of person over whom an ESO may be imposed to persons whose term of custody or supervision exceeds 12 months.
The primary judge’s conclusion was correct on both issues, although my reasoning differs from her Honour’s on the construction of s 20. The appeal should therefore be dismissed.
In what follows I first explain the background to the matter (at [34]-[54]), then set out the relevant statutory provisions (at [55]-[73]), after which it is convenient to address the notice of contention issue (at [74]-[79]) before turning to the issue raised by the State on appeal (at [80]-[120]).
The practical difference between the second and third constructions is that the third extends only to a situation in which the offender has been released from custody but is on parole, while the second extends to any offender who has been released from custody or is no longer subject to supervision, whether they are on parole or not.
There was little dispute as to the applicable principles of statutory construction. A provision must be construed taking account of its text, context and purpose: see, eg, Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362 at [4]-[6]. That context includes the whole of the relevant statute. The legislature is presumed to speak in a coherent manner, with the provisions of the legislation giving effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70].
The State emphasised the presumption against superfluity. The State noted it has been held that that principle applies with greater force to a provision added by amendment: Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295 at [20]; R v Lovell [2015] QCA 136; (2015) 252 A Crim R 362 at [14]. The plurality in Project Blue Sky said the following with respect to the principle (citations omitted):
Section 160A of the CAS Act also provides:
Fourth, and relatedly, s 12 of the Act provides that the State may apply to the Supreme Court “for a declaration that the person is” an offender falling within one of the three terrorism-related categories (emphasis added). Such an application may be made before an application is made for an ESO or CDO, or whilst such an application is pending (s 12(2)). The Court may make the declaration if satisfied that the person “is” such a person (s 12(3)). Such a declaration is said to take effect when made and remain in force until it expires or is revoked (s 12(4)), where it will expire after 15 months or when the connected application for an ESO or CDO is finally determined (s 12(5)). The effect of a declaration is that the State is not then required to establish for the purpose of proceedings under Pt 2 or Pt 3 that the person “is” (a) an eligible offender or (b) falls within the three terrorism-related categories (s 12(8)). The fact that after a declaration is made it is not then necessary to establish that the person is an eligible offender illustrates that to fall within one of the three terrorism-related categories the person must be an eligible offender.
Thus s 12 provides for a declaration about the person currently falling within one of the three terrorism-related categories, as manifest by the repeated use of the present tense. The effect of such a declaration is to relieve the State of having subsequently to establish that the person falls within those categories and that they are an eligible offender. Such a declaration has ongoing effect for a specified period covering the pendency of an application for an ESO or CDO. The implicit premise of this aspect of the scheme is that the current status of the person as an eligible offender falling within one of the three terrorism-related categories is of ongoing significance; it is not something which only mattered as at the time the original application was filed. This section reinforces what is otherwise suggested by the terms of ss 8-10 and 20(c), namely that at the time of the Court making the order the offender is at that time someone falling within one of the three terrorism-related categories. This aspect of the scheme, too, militates against the State’s construction.
Fifth, s 27 of the Act authorises the making of an ISO if it appears to the Court that “the offender’s current custody or supervision will expire before the proceedings are determined” and another criterion is satisfied (see above at [63]). The provision enables an order to be made so as to protect the community whilst the application for an ESO is underway. The State accepted that an ISO could not be sought against the respondent as his current custody has now expired and he is not under supervision. It is somewhat anomalous that an ISO cannot be made to protect the community in a case such as this but, on the State’s construction, an ESO still could be made down the track. If the statutory scheme was meant to encompass making such an ESO, there is no apparent reason why the Parliament would not have intended to permit an interim protective order to be made. That point reinforces the conclusion that the scheme is not meant to encompass making ESOs in such circumstances.