Thursday 10 October 2019

Language matters in the transition to new legislation

The importance of clear and well-drafted transitional provisions was illustrated in the case of Director of Public Prosecutions (DPP) v Lyons (a pseudonym) [2018] VSCA 247 (Lyons).

Key points:

  • Despite some unclear and inconsistent language in the 2018 Act's transitional provisions, the Court focused on the "irresistibly clear" language in Clause 5(2) of Schedule 4 to the 2018 Act and concluded that the application for a renewal of a detention order was to be heard and determined using the 2018 Act.
  • Use clear language when drafting transitional provisions and ensure consistency of word use within clauses! When words can be given a ‘plain meaning’ this interpretation will be followed.
  • A clause will only have a deeming effect if clear and express words are used (e.g. "is deemed to be").
  • When using the Charter to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.


In Victoria, serious sex offenders and serious violent offenders that present an unacceptable risk to the community can be subject to ongoing supervision or detention after they have served their prison sentence. This post sentence scheme is contained in the Serious Offenders Act 2018 (2018 Act), which replaced the Serious Sex Offenders (Detention and Supervision) Act 2009 (2009 Act).

In Lyons, the Department of Public Prosecutions (DPP) sought to renew a detention order against Mr Lyons. The application was made under the 2009 Act; however, before the matter could be heard the 2009 Act was repealed and the 2018 Act commenced.

Which Act should the Court use to make its decision?

If the 2009 Act applied, only Mr Lyons’ risk of sexual re-offending could be considered by the Court. If the 2018 Act applied, the Court could consider Mr Lyons’ risk of sexual re-offending, violent re-offending, or both.

Clause 5(2) of Schedule 4 to the 2018 Act [Applications commenced under superseded Act that have not been determined] contains the transitional provisions and is as follows:

(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day— 

(a) an application for a supervision order, a detention order or an interim order; 

(b) an application for the renewal or extension of an order referred to in paragraph (a);   

(c) an application for the review of an order or a condition of an order referred to in paragraph (a). 

(2) An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act.
[our emphasis added]


The Court of Appeal considered the proper interpretation of the words ‘made under this Act’. The parties' positions were as follows:

  • The DPP submitted that the application should be determined using the 2009 Act (meaning the Court could only consider Mr Lyons’ risk of sexual re-offending) but that the order should be ‘made’ following the form of the 2018 Act. The DPP relied on the text of clause 5(1).
  • The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be made and determined using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.

The Court of Appeal's Judgment - key aspects of the decision

The Court focused on the "irresistibly clear" language in clause 5(2), namely ‘made under this Act’. The Court considered that these words clearly meant the application for a detention order against Mr Lyons was to be heard and determined using the 2018 Act. The Court also considered that this construction is consistent with the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The Court noted that its interpretation does not render clause 5(1) redundant because it operates to ensure that neither the DPP nor the Secretary need to bring fresh applications upon the commencement of the 2018 Act and repeal of the 2009 Act. Clause 5(1) also requires that any question concerning the adequacy of procedural steps taken before 3 September (the commencement date of the 2018 Act) is to be determined in accordance with the 2009 Act.

Some other points made by the Court of Appeal

Deeming provision: If clause 5(2) was a deeming provision, any order made under the 2009 Act would be 'deemed' to be an order made under the 2018 Act. The Court determined that clause 5(2) was not a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in Spear v Hallenstein 1  - the specific words 'is deemed to be' were used).

The Charter of Human Rights and Responsibilities: The Charter requires that, where possible, laws should be interpreted in a way that is compatible with human rights. If the 2018 Act applied, Mr Lyons' human rights would be detrimentally impacted because there would be an interference with Mr Lyons' liberty, freedom of movement and privacy on broader grounds than were previously available under the 2009 Act. However, the Court considered that there was no room for the Charter here because the 2018 Act's words were so clear. Also, the Statement of Compatibility (which records the Act's compatibility with human rights) did not refer to the transitional provisions. The Court held that the Minister's silence on a particular topic cannot be used to draw an inference as to the statute's proper interpretation nor can it be used as a substitute for an objective reading of the words in dispute.

Inconvenience caused? The Court acknowledged that inconvenience would result from the 2018 Act being used to determine the application for Mr Lyons (and for other matters). However, the Court found that some inconvenience is unavoidable when transitioning to new laws.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.

Spear v Hallenstein [2018] VSC 169.

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