Principle of legality

NSW v Kaiser [2022] NSWCA 86

This case is about whether a prisoner convicted of manslaughter was a ‘supervised offender’ against whom an ‘extended supervision order’ could be made6.  He said this would restrict his rights contrary to the ‘principle of legality’, which meant the power to make the order should be construed strictly7.

The court said (at [60-62]) the clear intention of the legislature was to curtail liberty and protect the community.  There was, therefore, ‘limited (if any) scope for the application of the principle of legality’8.  Meaning was not to be derived in this context by seeking to apply a general presumption ‘against the very thing the legislation sets out to achieve’.

This principle is from Episode 86 of interpretation NOW!


6 s 5I of the Crimes (High Risk Offenders) Act 2006 (NSW).

7 Al-Kateb [2004] HCA 37 (at [19]), Smith (1980) 147 CLR 134 (at 139) cited.

8 Lee [2013] HCA 39 (at [314]), cf DM Management [2000] HCA 7 (at [43]).