Leeming JA states in a recent case1 – ‘The task is to construe the difficult language enacted, rather than better language that was not enacted’. This arose in the context of the meaning of ‘custody’ under high risk offenders legislation, where relevance of the presumption against surplusage became an issue. Leeming JA emphasised that the presumption is just that (a presumption) which ‘does not itself dictate the outcome’. Neither was it the ‘right starting point’ here. The correct analysis involved determining the leading and subordinate provisions to resolve any conflict between them2. Asking whether parliament could have used ‘better language’ to achieve its purposes was not of assistance. Comment – Edelman J in the High Court has also stressed the fact that presumptions of this kind are ‘only loose aids’, and that this one in particular ‘seldom … carries much weight’3.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 NSW v Benshabir [2026] NSWCA 174 [23], Ward P agreeing [8].
2 Project Blue Sky [1998] HCA 28 [70], Plaintiff S297 [2014] HCA 24 [25].
3 Palmanova [2025] HCA 35 [72], Farmer [2025] HCA 38 [105] resp.