//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 679
Supreme Court of NSW
2026-06-19
Yehia J
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 (Interlocutory) (No 2) [2026] NSWSC 679
Hearing dates: 7 May 2026
Date of orders: 19 June 2026
Decision date: 19 June 2026
Jurisdiction: Common Law
Before: Yehia J
Decision: (1) The summons filed 30 March 2026 is dismissed.
(2) The order made by Weinstein J on 1 April 2026 under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) is set aside.
(3) The plaintiff is to pay the defendant’s costs.
Catchwords: HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – extended supervision order – interlocutory application to dismiss summons – where defendant ceases to be an “eligible offender” before final hearing – where term of imprisonment set aside by District Court on appeal – statutory preconditions under s 20 – whether defendant required to be an “eligible offender” at time of both making and determination of application – summons dismissed STATUTORY INTERPRETATION – ss 7 and 20 of the Terrorism (High Risk Offenders) Act 2017 (NSW) – meaning of “(or was in custody or under supervision at the time the original application for the order was filed)” in s 20 – whether s 20 places temporal limitation on definition of “eligible offender” in s 7 – presumption against superfluity JUDGMENTS AND ORDERS – Amending, varying and setting aside – effect of setting aside sentence under s 20 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether sentence null and void ab initio
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 93
Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 11(1), 20(2)
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5B(b), 5I, 5I(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9(1)(a), 10
Criminal Code (Cth), s 474.45C(1)
Justice Legislation Amendment Act (No 2) 2018 (NSW)
Supreme Court Act 1970 (NSW), ss 75A, 103
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 3, 4, 5, 6, 7, 10, 11, 20, 23, 23(2), 24(5), 27, 34(1)(a), 53
Cases Cited: Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295
ENT19 v Minister for Home Affairs (2023) 278 CLR 75; [2023] HCA 18
Hancock v Prison Commissioners [1960] 1 QB 117
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274
New South Wales v Holt (Preliminary) [2021] NSWSC 1076
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
Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
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 Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
The King v Rohan (a pseudonym) (2024) 280 CLR 288; [2024] HCA 3
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 2017
Category: Procedural rulings
Parties: State of New South Wales (Plaintiff)
Yaqoob Benshabir (Defendant)
Representation: Counsel:
J Single SC with C Melis (Plaintiff)
G James AM KC (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Crimcorp Defence Lawyers (Defendant)
File Number(s): 2026/00129370
Publication restriction: Nil
On 21 April 2026, Mr Yaqoob Benshabir (“the defendant/applicant” in these proceedings) filed a notice of motion seeking:
that the order made on 1 April 2026 by Weinstein J under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) be set aside;
that the State of New South Wales’ (“the plaintiff/respondent” in these proceedings) application for an extended supervision order (“ESO”) in respect of the defendant be dismissed; and
that an order for costs be made.
On 7 May 2026, the matter proceeded to hearing before me, during which counsel for the defendant clarified that the application pressed was for this Court to dismiss the plaintiff’s summons filed 30 March 2026 (in which the final relief sought is an ESO against the defendant), and if minded to do so, as a consequential order, set aside the orders made by Weinstein J on 1 April 2026.
These proceedings arise in the rather unique circumstance where, since the filing of the plaintiff’s application for an ESO and the making of the orders by Weinstein J, the defendant has (for reasons that will become apparent) ceased to be an “eligible offender” under s 7 of the THRO Act. That is, the defendant is no longer “serving, or … continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence”.
The material relied upon by the defendant in these proceedings included the following:
an affidavit sworn 21 April 2026 by Mr Kadir Agar, solicitor for the defendant, in which he deposed to the procedural background of this matter, annexing copies of relevant orders and correspondence. The affidavit was read and relied upon in the usual course, with the exception of the last sentence contained at paragraph 11;
written submissions filed 4 May 2026; and
further written submissions (in response to the plaintiff’s further submissions) filed 18 May 2026, in accordance with the directions made by me on 7 May 2026.
The material relied upon by the plaintiff included the following:
written submissions filed 1 May 2026;
written submissions in reply filed 6 May 2026;
further written submission filed 14 May 2026, in accordance with the directions made by me on 7 May 2026; and
a bundle of authorities referred to in the plaintiff’s further written submissions.
On 8 May 2026, the plaintiff also provided to my chambers a copy of the transcript of the District Court proceedings before David DCJ and her Honour’s judgment on 2 April 2026.
The material before me does not include the court book that was before Weinstein J, nor any of the material before Emmett J.
Before turning to consider whether the orders sought by the defendant should be granted, it is necessary to set out the procedural background to this matter.
On 13 February 2025, the defendant was arrested and charged with one count of affray, contrary to s 93 of the Crimes Act 1900 (NSW) (“the index offence”). The facts of that offending were summarised by Weinstein J in his Honour’s judgment, though it is not necessary to repeat them for present purposes: see State of New South Wales v Benshabir (Preliminary) [2026] NSWSC 348 (“Preliminary Judgment”) at [23].
On 14 February 2025, the defendant was granted bail. While on bail, he was arrested and charged on 25 September 2025 with a further offence contrary to s 474.45C(1) of the Criminal Code (Cth), namely, using a carriage service to possess violent extremist material (“the Commonwealth charge”). That charge was withdrawn on 31 March 2026.
On 12 February 2026, the defendant entered a plea of guilty to the index offence and 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 due to expire on 24 July 2026.
The defendant was due to be released on parole on 24 February 2026. However, on that day, the State Parole Authority determined that the defendant (who at the time, was still subject to the Commonwealth charge) was a “terrorism related offender” who posed a “serious identifiable risk to the safety of the community”, and the statutory parole order was revoked.
On 4 March 2026, the defendant filed a severity appeal in relation to his sentence for the index offence, pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”). The appeal was listed for hearing at the District Court at the Downing Centre on 2 April 2026.
Against the possibility that the severity appeal might result in the defendant’s imminent release, on 30 March 2026 the plaintiff filed a summons seeking, inter alia, an ESO against the defendant for a period of 12 months.
The matter was urgently listed for a preliminary hearing on 1 April 2026 before Weinstein J, in which the plaintiff sought an order for the appointment of experts to conduct examinations in respect of the defendant, and an interim supervision order (“ISO”), pursuant to ss 24(5) and 27 of the THRO Act respectively.
Notwithstanding the fact that the Commonwealth charge was withdrawn the day prior (on 31 March 2026), and Weinstein J was so informed, his Honour was of the view that “the circumstances leading up to that offending remain[ed] relevant” (Preliminary Judgment at [26]), and there was no issue with the plaintiff relying on the material supporting the Commonwealth charge as part of the supporting material said to justify the making of an ESO.
At the conclusion of the hearing, his Honour gave short reasons and made the following findings:
The summons and accompanying documentation was in the proper form and the application was brought within the statutory timeframe.
The defendant was an “eligible offender” under s 7 of the THRO Act.
The defendant was a “convicted NSW terrorism activity offender” within the meaning of ss 10 and 11 of the THRO Act, on the basis that he has associations with several people who are said to advocate support for violent extremism.
The preliminary hearing was heard within 28 days of the application being filed.
The matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
Accordingly, his Honour made the orders appointing the experts and directing the defendant to attend the examinations of the experts. However, his Honour refused the application for an ISO.
As stated in his Honour’s full reasons published on 10 April 2026, the application for an ISO was refused on the basis that the threshold requirement in s 27(a), that an “offender’s current custody or supervision will expire before the proceedings are determined”, was not made out (emphasis added). Given the unpredictability of the extant District Court severity appeal, his Honour was not satisfied that the defendant’s current custody or supervision would (as a “realistic inevitability”) expire before the proceedings are determined: Preliminary Judgment at [44]-[53].
Notwithstanding this, his Honour made the following additional orders:
“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.
- 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:-
- 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 2 April 2026 may foreshadow or may 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 defendant’s severity appeal was heard and determined by David DCJ.
Prior to the hearing of the appeal proper, counsel for the defendant and the prosecutor indicated to her Honour that, in light of the orders made by Weinstein J the day prior, an application may be made by the State seeking a stay of any orders, should the appeal be upheld.
Her Honour upheld the severity appeal, “quashed” the sentence of imprisonment imposed by the Local Court in respect of the index offence, and in lieu thereof, imposed a 12-month conditional release order.
I note that the transcript of those proceedings and her Honour’s judgment only became available to the parties on 8 May 2026. Pursuant to the revised judgment transcript, the orders pronounced by her Honour at the conclusion of the hearing were as follows:
“On balance, as I said, I intend to proceed in this matter to allow the appeal, to quash the sentence in the Local Court of imprisonment, and to deal with this matter by way of Conditional Release Order for a period of 12 months from today.
I make the following orders:
1. In lieu of the sentence imposed in the Local Court, imposes a Conditional Release Order with conviction pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months to commence on 2 April 2026 with the following standard conditions:
a. The appellant must not commit any further offences.
b. The appellant must appear before the Court if called upon to do so at any time during the term of the order.
2. The following additional conditions apply to the Conditional Release Order:
a. That the appellant submit to the supervision of a Community Corrections Office for the period of the Order.
b. That the appellant report to the Bankstown Community Corrections office within 48 hours of these orders.”
After those orders were pronounced, counsel for the State announced their appearance and sought a stay of those orders. A copy of Weinstein J’s orders and judgment were provided to the Court and later marked for identification.
Counsel for the defendant opposed the stay, contending that her Honour was functus officio and therefore lacked jurisdiction, and further, that the State did not have standing. Counsel for the State asked her Honour to exercise her inherent power to permit the State to approach the Court.
Her Honour made no ruling in relation to the stay 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 be formally entered on JusticeLink until 4:30pm that afternoon.
The orders which were entered on JusticeLink were as follows:
“Sentence Appeal Upheld – Order Varied.
The offender, YAQOOB BENSHABIR, is convicted and sentenced to a Conditional Release Order for a period of 12 months to commence on 2 April 2026 and expiring on 1 April 2027.
This Conditional Release Order is subject to the following standard conditions:
a) The offender is not to commit any offence while subject to this Conditional Release Order
b) The offender must appear before the Court if called upon to do so at any time during the term of the Conditional Release Order.
This Conditional Release Order is subject to the following additional conditions:
1. The offender is subject to supervision by a Community Corrections Officer at Bankstown Community Corrections District Office for the period of the Conditional Release Order.
2. That the appellant report to the Bankstown Community Corrections office within 48 hours of these orders.
The stay granted in relation to the following orders is lifted:
Guilty Plea dated 12 February 2026
Convicted dated 12 February 2026”
On the afternoon of 2 April 2026, an urgent application for an ISO was filed in this Court by the plaintiff and heard before Emmett J as the Duty Judge.
It was submitted by the plaintiff that the effect of delaying the uploading of the orders made by David DCJ onto JusticeLink was that the defendant, until such time, remained an “eligible offender” under s 7 of the THRO Act. However, Emmett J disagreed.
His Honour dismissed the application for an ISO with costs and concluded delivering ex tempore reasons at approximately 4:00pm: State of New South Wales v Benshabir (Interlocutory) [2026] NSWSC 321 (“Interlocutory Judgment”).
His Honour noted that, although the Commonwealth charge had been withdrawn, the Court had primary evidence of the material that prompted that charge, and that material was relied on by the plaintiff for the purpose of risk assessment: at [2].
His Honour did not have the benefit of the transcript, but inferred that David DCJ indicated that the orders would not be entered until 4:30pm: at [20]. Notwithstanding this, his Honour concluded that the orders of the District Court had taken effect in the ordinary course, at around 12:30pm, when they were pronounced in open court: at [25].
His Honour was unable to conclude, on the limited evidence before the Court, whether David DCJ’s orders were not intended to be immediately effective. However, his Honour observed that such an intention would not be sufficient in the absence of orders revisiting, revoking or staying the order pronounced: at [25]-[29]. As a result, the defendant was no longer an “eligible offender” under the THRO Act, meaning his Honour lacked the power to make an ISO: at [30]-[33].
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”.
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.
This requires consideration of three issues:
What is the effect of the District Court “setting aside” a sentence?
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?
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?
Resolution of each issue necessarily involves questions of statutory construction.
The defendant submitted the orders sought should be granted at least on the basis that the plaintiff’s application for an ESO was not made “in accordance with this part” (pursuant to s 20(b) of the THRO Act), nor was it “made until the last 12 months” of the defendant’s current custody (pursuant to s 23(2) of the THRO Act). It was contended that, having regard to the clear and plain language of s 23(2), the THRO Act only contemplates the making of applications in respect of sentences of actual custody of a duration of 12 months or longer. As the defendant was sentenced to a term of imprisonment of less than 12 months, the defendant submitted that the plaintiff’s application was not made in accordance with that requirement.
The defendant further submitted that he is no longer amenable to have a final order made against him under s 20 of the THRO Act, on the basis that an order may only be made for a person who, at the time of the making of the order, is an “eligible offender”, i.e. relevantly serving a sentence of imprisonment. It was submitted that the defendant would not be such a person at the time of any hearing for a final order.
The reasons advanced by the defendant in support of construing s 20 of the THRO Act in such a way were as follows.
The defendant submitted that the concept of an “eligible offender” is critical to the operation of the THRO Act, and that the inclusion of those words in s 20 places a “crucial” restriction on the Court’s powers to determine an application by way of final order.
The defendant submitted that the plaintiff’s preferred construction of s 20 of the THRO Act (discussed below) ignores the use of the words “eligible offender” and would render the requirement that a person be an “eligible offender” effectively devoid of meaning. It was submitted that the words in parentheses that appear in s 20 should not be construed as an alternative to, or replacement for, the requirement that a person be an “eligible offender”.
The defendant contended that, having regard to the second reading speech (see at [77] below) and to the insertion of those words in s 20 in close proximity to the requirements for an “eligible offender”, there is no superfluity or ambiguity that would permit a construction allowing an ESO to be made under the THRO Act where the defendant is not an “eligible offender” at the time the order is made. It was submitted that such a construction would be antithetical to the scheme of the THRO Act, both before and after the amendment.
The plaintiff submitted that the defendant’s notice of motion should be dismissed for the following reasons.
First, on the basis that this Court does not have the power to set aside the orders made by Weinstein J, in circumstances where his Honour made findings as to the statutory preconditions and made an order pursuant to s 24(5) of the THRO Act. The plaintiff submitted that, pursuant to s 53 of the THRO Act and s 75A of the Supreme Court Act 1970 (NSW), the correct procedure would be for the defendant to file an appeal to the Court of Appeal.
Second, contrary to the defendant’s contention, s 23(2) does not preclude an application from being made where the defendant was never sentenced to a term of imprisonment of 12 months or more. The plaintiff submitted that s 23(2) should not be read to include a requirement that, at the time the application is made, an offender be serving a sentence of imprisonment or be subject to supervision for a period of 12 months or more, and that this section governs the timing of the application, not eligibility as assessed by the duration of the sentence. The plaintiff submitted that this section was complied with, there being “no doubt” that the summons was filed within 12 months of the defendant’s sentence expiry.
Third, whilst the defendant is no longer an “eligible offender”, an order for an ESO may be made by the Court so long as the defendant was an “eligible offender” at the time the application was made. The plaintiff submitted that s 20(a) contemplates that an offender may not be in custody or under supervision at the time that an order is made by virtue of the words in parentheses, “or was in custody or under supervision at the time the original application for the order was filed”.
The plaintiff submitted that the defendant’s circumstances fell into the “rare” exception referred to in the second reading speech (see at [77] below) and by N Adams J in New South Wales v Holt (Preliminary) [2021] NSWSC 1076 (“Holt”) at [155]: that is, after an application has been made (when the offender was an eligible offender), a successful appeal has reduced the offender’s head sentence with the result that his or her head sentence has expired by the time of the final orders. Whilst her Honour’s comments were made in relation to s 34(1)(a) of the THRO Act (which pertains to continuing detention orders), it was submitted that they apply equally to s 20 and ESOs.
The plaintiff accepted that, if the Court were to find that the jurisdictional requirements for the granting of final relief under s 20 of the THRO Act (particularly s 20(a)) cannot be satisfied, the Court may be minded to dismiss the plaintiff’s application for an ESO, and will therefore not require any court-appointed expert reports as ordered by Weinstein J for the purpose of a final hearing. It was accepted that, in those circumstances, the Court may choose to make a consequential order setting aside Weinstein J’s orders.
20 Determination of appeals
…
(2) The District Court may determine an appeal against sentence—
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
3 Definitions
…
(3) In this Act, a reference to varying a sentence includes—
(a) a reference to varying the severity of the sentence, and
(b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and
(c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order.
The parties agreed that, despite the terms used when David DCJ’s orders were pronounced in court (i.e. “quashed”) and recorded on JusticeLink (i.e. “varied”), her Honour had “set aside” the term of imprisonment imposed in the Local Court and imposed in lieu thereof a conditional release order. The District Court does not have the power to “quash” a sentence.
Counsel for the defendant conceded that the District Court setting aside the sentence imposed by the Local Court for the index offending did not have the effect of rendering the original sentence void.
In Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30 (“Porret”), the Court of Appeal unanimously held that the exercise of a power to set aside or vary a sentence under s 20 of the CAR Act operates prospectively and extends to cases where the variation includes the exercise of the power under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to set aside the conviction: at [33]-[34] (Bathurst CJ, Macfarlan at [45] and Emmett JJA at [53]-[54] agreeing).
Bathurst CJ’s reasoning was that, in a sentence appeal under s 20, there is no challenge to the conviction, still less an assertion of jurisdictional error. His Honour stated at [33]:
“… it would be anomalous if the exercise of the power [under s 20] would render the effect of the sentence up to the time of the appeal a nullity. Further, it is quite inconsistent with the concept of varying a sentence which as a matter of language would generally only operate prospectively.”
“… in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.
I feel that that must be the right way of construing the section, for otherwise, at least as a matter of theory, the successful appellant against the length of sentence would be a person who had been unlawfully imprisoned as from the date of his conviction and removal to gaol until the time when the Court of Criminal Appeal so pronounced; and all measures of restraint exercised on him (not merely by retaining him in gaol but in other ways) in that interim period would be, at least in theory, tortious wrongs committed against him, were it not that the true intent of such an order and the true meanings of the words in subsection (3) of section 4 of the Criminal Appeal Act, 1907, which enables such an order to be made, is that the Court of Criminal Appeal quashes for the future the original sentence, and substitutes for the future the new sentence which the Court of Criminal Appeal considers the proper sentence, albeit that that sentence itself takes its extent from the original date of the first sentence; that is to say, it is a term of so many years calculated from a starting date which is the same date as the starting date of the sentence which has been, in the sense which I have indicated, quashed.”
The decision in Porret was followed in Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274 at [4] (Meagher JA, Basten JA at [1] and Sackville AJA at [76] agreeing).
Varying a sentence (which includes an order to “set aside” a sentence) does not render the sentence null and void ab initio. At the time the summons was filed on 30 March 2026, the defendant was serving a sentence of imprisonment for the index offence for the purposes of s 23(1)(a) of the THRO Act. He was serving that sentence until it was set aside on 2 April 2026.
Although the sentence was not rendered void ab initio, the defendant was not in custody and ceased serving a sentence, nor was he under supervision, from 2 April 2026.
The remaining questions involve statutory construction of at least two relevant provisions, namely, ss 20 and 23 of the THRO Act, and the interplay between those provisions and ss 6 and 7 of the THRO Act. The task of statutory construction focuses on the text of a provision, considered in context, including the Act as a whole, the purpose of the provision and extrinsic material.
The starting point for the ascertainment of the meaning of a statutory provision is “the text of the statute, whilst at the same time regard is had to context in its widest sense – including its historical context – and purpose”: The King v Rohan (a p**seudonym) (2024) 280 CLR 288; [2024] HCA 3 at [25] (Gageler CJ, Gordon and Edelman JJ) citing SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] and the authorities there cited.
The principles relevant to statutory construction are well-established and were helpfully summarised in State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 (“Kaiser”) by Simpson AJA (Bell CJ and Beech-Jones JA agreeing) at [57]:
“The relevant principles of statutory construction are well established and may be stated briefly. They are:
(1) it is the duty of the court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78];
(2) in the interpretation of a statute the court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33;
(3) the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read ‘in the context’ of the legislation as a whole. ‘Context’ is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); [1985] HCA 48; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2, both quoted by Gageler J in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37]; R v A2 (2019) 269 CLR 507; [2019] HCA 35;
(4) courts must strive to give meaning to every word of the provision to be construed (Project Blue Sky at [71]) and should ‘strain against a construction which gives no work whatsoever to legal language’: Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] (Leeming JA); if possible, some meaning and effect should be given to all the words used in a statute: Commonwealth of Australia v Baume (1905) 2 CLR 405; [1905] HCA 11, cited by 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 (the presumption against surplusage). The rule is subject to the qualification that it may be displaced if there is good reason to do so: Lim at 13.
(5) a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment (the principle of legality): Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19] (Gleeson CJ); and
(6) legislation that affects personal liberty will be given a strict construction: Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139; [1980] HCA 49, and the authorities there cited.”
The THRO Act clearly reflects a legislative intention to abrogate or curtail, in some circumstances, personal liberty, either by way of continued detention or supervision in the community. The primary object of the THRO 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: s 3(1). However, another object of the THRO Act is to encourage these offenders to undertake rehabilitation: s 3(2).
The approach to be taken when there is an apparent inconsistency between provisions within an act was addressed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”), where McHugh, Gummow, Kirby and Hayne JJ stated (under the heading “[c]onflicting statutory provisions should be reconciled so far as is possible”) at [69]-[71]:
“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[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.’” (Footnotes omitted.)
“The context of the words, consideration of the consequences of adopting a provision’s literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, ‘statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means’. Where conflict appears to arise in construing an Act, ‘the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’, and this ‘will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”’. Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.” (Footnotes omitted.)
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.
The defendant’s essential argument on this point, as I comprehend it, is that the application could not have been brought in accordance with the THRO Act to obtain an ESO at the final hearing, because the application was not made in the last 12 months of the defendant’s current custody or supervision, given the defendant was only ever sentenced to a term of 10 months’ imprisonment. The defendant’s submission in this regard is misconceived.
There is no judicial authority to support the defendant’s contention that s 23(2) of the THRO Act imparts an additional eligibility requirement that for an ESO application to be valid, there has to be a minimum sentence of 12 months’ imprisonment or supervision. Nor is that interpretation available from the text of the provision interpreted in its context.
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.
The question as to whether this Court has jurisdiction to make an ESO in circumstances where the defendant is no longer an eligible offender and will not be an eligible offender at the time of making any such order, is a complex question that is not assisted by the ambiguity in s 20 of the THRO Act.
As stated above, s 23 provides that an application for an ESO may be made only in respect of an eligible offender who is in custody or under supervision while serving a sentence of imprisonment for a NSW indictable offence, or under an existing ISO, ESO, interim detention order or continuing detention order. Section 23 deals with the requirements in respect of the making of an application, as opposed to the making of an order. However, it is important to note that an application can only be made in respect of an eligible offender. Similarly, an order can only be made in respect of an eligible offender.
Section 7 of THRO Act defines an “eligible offender” as a person who is:
(a) 18 years of age or older, and (b) serving, or is continuing to be supervised or detained under this Act after serving, a sentence of imprisonment for a NSW indictable offence.
(a) the person is serving a sentence of imprisonment for the offence by way of full-time detention, or (b) the person is on parole in respect of the offence.
20 The 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 …
…
Importantly, “in custody” (as contemplated by s 20) means something different to “serving … a sentence of imprisonment for a NSW indictable offence” under s 7 (the definition of “eligible offender”). The phrase “in custody” under s 20 relates to a person’s imprisonment by way of full-time detention, whereas the phrase “serving a sentence of imprisonment” is defined by s 6(b) to also include a period served on parole in respect of the offence.
The words in parentheses in s 20 were inserted in 2018 by the Justice Legislation Amendment Act (No 2) 2018 (NSW). The second reading speech explained that (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 2017 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.”
The amendments made to the THRO Act did not expand the definition of “eligible offender”. This raises a question of how the requirement to be an “eligible offender” sits with the words in parenthesis in s 20(a).
This difficulty was noted in the context of consideration of s 34 of the THRO Act by N Adams J in Holt at [155]:
“Secondly, the relevant second reading speech explains that the 2018 amendments to ss 34(1)(a) and 20(a) of the THRO Act were made with the stated intention of capturing the situation where a person was an eligible offender at the time that the application was brought, no IDO or ISO had been made and (apparently without any notice to the State) an offender’s sentence was suddenly reduced before the final hearing such that it expired by the time of the final hearing. It seems to me that the amendment made to s 34(1)(a) in 2018 to capture this (seemingly rare) situation has resulted in a potential ambiguity in s 34(1)(a). Although s 34 expressly states that a person must be an ‘eligible offender’ as a statutory precondition to a CDO being made, s 34(1)(a) now also provides that the eligible offender need not be currently detained or supervised. A person who is not currently detained or supervised is not an ‘eligible offender’. For reasons I have provided, I am satisfied that the statutory requirement to be an eligible offender remains unaltered since the 2018 amendment to s 34(1)(a). Despite this, the amendment to s 34(1)(a) has created an ambiguity that was no doubt unintended.” (Emphasis in original.)
N Adams J was not dealing with the precise issue under consideration here. However, her Honour was clearly of the view that that the words in parentheses in s 34(1)(a) (which are identical to the words in parentheses in s 20(a)), must be read consistently with the requirement that a person must be an eligible offender at the time of final orders. It is accepted that the defendant in these proceedings is now not an eligible offender, nor would he be at the time of the making of final orders.
The plaintiff relied on Kaiser in support of the contention that the Court has jurisdiction to make an ESO even where an individual is no longer an “eligible offender”, as long as he/she was an “eligible offender” at the time of the making of the application (that is, at the time the summons was filed). However, Kaiser can be distinguished from the present case.
In Kaiser, the State of New South Wales had filed a summons seeking a continuing detention order, or alternatively, an ESO in respect of Mr Kaiser under the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”). At the time of filing, Mr Kaiser was serving a sentence of imprisonment for manslaughter (therefore “serving a sentence” within the meaning of s 5I(2)(a)(i) of the CHRO Act). The State later filed an amended summons seeking only an ESO, at which time Mr Kaiser was serving sentences for other offences that were being served partly concurrently with, and partly consecutively upon, the manslaughter sentence (therefore “serving a sentence” within the meaning of s 5I(2)(a)(iv) of the CHRO Act). Accordingly, it was undisputed that at each time an application was made, Mr Kaiser was a “supervised offender” eligible to be made the subject of an application for an ESO under the CHRO Act: at [26]-[32]; [43].
However, by the time of the final hearing those sentences had expired, meaning Mr Kaiser was not serving a sentence within the meaning of any of the s 5I(2)(a) categories, nor was he under supervision so as to make him a “supervised offender” within the meaning of s 5I(2)(b): at [31]-[32].
The primary judge found that Mr Kaiser was not a “supervised offender” for the purposes of s 5B(b) of the CHRO Act and accordingly dismissed the amended summons. Mr Kaiser appealed the decision pursuant to s 103 of the Supreme Court Act 1970 (NSW).
The ultimate question for the Court of Appeal was whether the definition of “supervised offender” for the purpose of making an ESO under the CHRO Act needed to be satisfied both at the time of filing and at the time of the final hearing. This required consideration of whether the words “within the meaning of section 5I” in s 5B(b) incorporate the words in the chapeau to s 5I(2) “when the application for the order is made”.
The Court of Appeal was not concerned with any provision under the THRO Act, but rather the interpretation of ss 5B and 5I of the CHRO Act. Section 5I provides in full (emphasis added):
5I Application for extended supervision order
(1) An application for an extended supervision order may be made only in respect of a supervised offender.
(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision) —
(a) while serving a sentence of imprisonment —
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
5B Making of extended supervision orders — unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if —
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
“[74] The respondent placed significant emphasis on the use of the present tense in s 5B(b), relying on the decision of this court in Tannous (a decision with respect to s 5B(d)) to support the proposition that, to come within that paragraph, the defendant must, at the time of determination, be a ‘supervised offender’. I have no difficulty with the proposition that the status of ‘supervised offender’ must exist at the time of determination: as set out above, the question is not when the defendant must have that status, but what is encompassed in the term ‘supervised offender’. Reference to the use of the present tense in par (b) of s 5B throws no light on that question.
[75] Nor does the respondent’s next argument, which was that, if s 5B(b):
‘… is interpreted to include an offender who was a supervised offender at the time of the application but is no longer, then the effect of such an interpretation is to significantly extend those offenders caught by the power to make an [extended supervision order]’.
[76] The fallacy in that argument is that it assumes the answer to the critical question — that is, it assumes that a ‘supervised offender’ is a person serving a relevant sentence (‘in relevant custody’) or under relevant supervision at the time of determination, without reference to the parenthesised words in s 5I(2). True it is that, if the parenthesised words form part of the definition of ‘supervised offender’, the class of offenders in respect of whom an extended supervision order may be made will be wider than it would be if those words do not form part of the definition. That is because, absent the parenthesised words, the s 5B(b) reference to ‘supervised offender (within the meaning of section 5I)’ would be a reference to ‘an offender who is (as at the date of determination) in relevant custody or under relevant supervision’.
[77] The parenthesised words change the temporal direction of s 5I. They make it clear that it is at the time of the application that a defendant is required to meet one or other of the s 5I(2)(a) or (b) criteria. A clear inference is that, provided that the defendant is in relevant custody or under relevant supervision at the time the application is made, it is not necessary that he or she also come within one or other of those categories at the time of determination.”
“[91] The parenthesised words in s 5I (‘when the application for the order is made’) contribute nothing to s 5I. Absent those words, s 5I(2) would read:
‘A supervised offender is an offender who is in custody or under supervision …
(a) while serving a sentence of imprisonment …’
[92] Section 5I would then provide that an application for an extended supervision order may be made only in respect of an offender (within the meaning of s4A) who is in custody or under supervision as described in subs (2)(a)(i)–(iv) or (b). The present tense ‘is’ would mean that an application may only be made in respect of an offender in that category at the time the application is made.
[93] The parenthesised words are given operative effect by s 5B(b). Accordingly, s 5B(b) requires that the defendant to an application be in relevant custody or under relevant supervision at the time the application is made, and does not require that that custody or supervision be in existence at the time of determination of the application. The only purpose served by the parenthesised words that I can see is to make clear that the status of ‘supervised offender’ must exist at the time the application is made. It is a clear inference that that status is not required to exist at the time of determination. This approach is consistent with the legislative history.”
“In my opinion it is sufficiently clear that the legislative purpose in the insertion of the parenthesised words in s 5I(2) was to provide that an extended supervision order may be made where the offender had the status of ‘supervised offender’ at the time the application was made, whether or not that status continued to exist at the time the court comes to its determination of the application. That is consistent with the two previous versions of the legislation.”
Accordingly, the Court of Appeal held that s 5B(b) of the CHRO Act requires that a defendant be in custody or supervision of the type specified in s 5I(2) at the time an application for an ESO is made, but it does not require that the defendant remain subject to the same custody or supervision at the time the Court decides whether to make an ESO: at [1], [2], [77], [93], [100].
In short, Kaiser does not advance the plaintiff’s position for the following reasons.
Firstly, in light of the distinctions between the CHRO Act and the THRO Act, Kaiser provides limited assistance in properly construing the tension that arises between s 7 and s 20 of the THRO Act.
Secondly, there is a difference between the definition of “supervised offender” (under the CHRO Act) and “eligible offender” (under the THRO Act). Under the CHRO Act, “supervised offender” for the purposes of an ESO is not defined within a standalone provision but rather within the provision which pertains to the making of an application (s 5I(2)). Further, the definition of “supervised offender” expressly places a temporal limit on eligibility, by inclusion of the words “when the application for the order is made” in s 5I(2): see Kaiser at [76].
By contrast, “eligible offender” under the THRO Act is defined in a standalone provision which, unlike “supervised offender”, makes no distinction between the timing of the making of an application as opposed to the timing of the making of an order. Clearly, as a matter of statutory construction, in order for the Court to have jurisdiction, the offender must be an “eligible offender” both at the time of the making of the application and the time of its determination.
What work then do the words in parentheses in s 20(a) of the THRO Act have to do?
It is a basic principle of statutory interpretation that words in a statute are not ordinarily to be construed as superfluous or insignificant: Project Blue Sky at [71]; Australian Postal Commission v Melbourne City Council (2005) 14 VR 678; [2005] VSCA 295 at [20] (Charles and Nettle JJA); R v Lovell [2015] QCA 136; (2015) 252 A Crim R 362 at [14] (Holmes JA, Gotterson and Philippides JJA agreeing).
The plaintiff submitted that there are only two potential constructions which could be advanced in respect of the words in parentheses in s 20(a) of the THRO Act:
First, the words in parentheses are superfluous and are to be ignored, with the definition of eligible offender in s 7 providing the relevant eligibility requirements for the purpose of s 20 at both the time an application is filed and the time any ESO is made.
Second, the words in parentheses are enlivened or given work to do in the limited circumstances contemplated by the legislature to put a temporal limitation on the definition of eligible offender in s 7 for the purpose of s 20.
I do not agree with the position advanced by the plaintiff that there are only two potential constructions. There is a third construction that does give the parenthesised words in s 20(a) work to do. They are not rendered superfluous or insignificant.
As stated at [76] above “in custody” refers to the status of an offender in full-time detention. Prior to the 2018 amendment, the jurisdiction of the Court to make an ESO was only enlivened if, at the time of the making of the order, the offender was in full-time detention or under supervision, notwithstanding the fact that the definition of “eligible offender” may have been met because the defendant was serving a sentence of imprisonment within the meaning of s 6(b): that is, on parole in respect of the offence.
Following the amendment to s 20(a), the words in parentheses ensured that the Court had jurisdiction to make an ESO where at the time of the making of the order the offender was not “in custody” or under supervision, as long as the offender was “in custody” or under supervision at the time the original application for the order was filed.
The work achieved by the words in parentheses relates to where an offender is no longer “in custody” at the time of the making of the order but is on parole in respect of the offence. As long as the offender was “in custody” or under supervision at the time the application was filed, the fact that the offender is on parole at the time of the making of the order does not dissolve the Court of jurisdiction.
This third construction aligns with the clear intention of Parliament for the definition of “eligible offender” in s 7 to provide an eligibility requirement both at the time of making an application and at the time the Court is making an order.
It is improbable that the framers of the legislation would have intended to remove the requirement of a person being an “eligible offender” in light of the fact that both ss 20 and 23 of the THRO Act expressly refer to such a requirement in terms. Furthermore, there has been no amendment to the definition of an “eligible offender”, which demonstrates a clear intention to retain, as a necessary eligibility criterion, that a person is serving, or is continuing to be supervised or detained under the THRO Act after serving, a sentence of imprisonment for a NSW indictable offence.
As stated in the second reading speech, the 2018 amendments were intended to capture the rare situation where a person was an eligible offender at the time an application is made, but an appeal reduces their head sentence, such that the offender is no longer deemed to be in current custody or supervision at the time of the final hearing. For reasons expressed above, this includes situations where an offender’s sentence is reduced with the result that they are on parole, but it does not extend to the rarer situation where a person ceases to be an “eligible offender” entirely.
It follows that the Court does not have jurisdiction to make an ESO because the defendant is not an “eligible offender”. Accordingly, the summons must be dismissed, and as a consequential order, the order made by Weinstein J for the appointment of experts set aside.
I make the following orders:
The summons filed 30 March 2026 is dismissed.
The order made by Weinstein J on 1 April 2026 under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) is set aside.
The plaintiff is to pay the defendant’s costs.
**********
State of New South Wales
Benshabir (Interlocutory) (No 2)
(2005) 14 VR 678
(2023) 278 CLR 75
(2019) 367 ALR 274
(1998) 194 CLR 355
(2014) 86 NSWLR 467
(2010) 241 CLR 252
(2022) 108 NSWLR 476
(2017) 262 CLR 362
(2024) 280 CLR 288
(1985) 157 CLR 309
(1997) 187 CLR 384
(2019) 269 CLR 507
(2014) 88 NSWLR 594
(1905) 2 CLR 405
(1992) 176 CLR 1
(2004) 219 CLR 562
(1980) 147 CLR 134