(c) That "adequate supervision will not be provided by an extended supervision order" .
42 It was submitted on behalf of the defendant that the key to interpreting s.17(3) with the terms "if and only if", "high degree of probability" and "likely". Reference was made to the dicta of McClellan CJ at CL in Gallagher (supra) at [34]. There, his Honour observed:-
"… one potential difficulty with the subsection is the conjunction of that requirement, ie, that the Court be satisfied to a 'high degree of probability', with the question of whether the offender is 'likely to commit a further serious sex offence'. The word 'likely' presently appears to me to be used in its ordinary meaning which, as the High Court pointed out in Boughey v The Queen (1986) 161 CLR at 10 conveys the notion of 'substantial - a real and no remote - chance regardless of whether it is less or more than 50 percent'."
43 McClellan CJ at CL at [35] added:-
"However, it will be necessary to give careful consideration to the context in which the word 'likely' is used in the present legislation upon the final determination of this matter."
44 In the present case, the plaintiff contended for the interpretation in Gallagher (supra). Mr Austin's submission on behalf of the defendant was that this Court should not apply that interpretation but should follow the decision of the Victorian Court of Appeal in TSL v The Secretary to the Department of Justice [2006] VSCA 199. That Court was concerned with the provisions of The Serious Sex Offenders' Monitoring Act 2005 (Vic) (the "Monitoring Act").
45 Section 11(1) of that Act provided:-
"The Court may only make an extended supervision order in respect of an offender if it is satisfied to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he/she is serving, or serving at the time …"
46 In that case, the Victorian Court of Appeal considered the High Court's judgment in Boughey v The Queen (1986) 161 CLR at 10 and the ordinary meaning of the word "likely". Mr Austin observed that, whilst ordinarily there was no reason to think that "likely" must be more than 50%, the Monitoring Act contemplated an extraordinary remedy, namely, requiring a person who had served their sentence to be subject to monitoring if an order was made. He submitted that this had caused the Court to look at the meaning of the words chosen by Parliament and the context in which they appeared.
47 The Victorian Supreme Court concluded that the word "likely", in context, meant that it should not be given its ordinary meaning, but rather than it required a high degree of probability. Mr Austin submitted that that Court preferred a meaning applying a much stricter test because it would be "inconceivable" that Parliament would have intended the word "likely" to bear its ordinary meaning as "all too many offenders are likely in that sense to commit a relevant offence" (at [10]).
48 Mr Austin further submitted that simply to make the decision based on likelihood would mean that too many prisoners, most of whom statistically had a chance of re-offending, would be caught by the legislation. He stated in this respect (defendant's outline of submissions, paragraph (A)(h)):-
"… the section required, first, a standard of proof requiring a high degree of probability of likelihood, which in turn had to be applied to facts which also have a high degree of probability."
49 Reference was made, in this respect, to the observation of the Victorian Court of Appeal at [12]:-
"The conclusion that the word 'likely' in s.11 is used in the sense of a high degree of probability, accords with the main purpose of the Monitoring Act stated in s.1."
50 Section 1 of the Monitoring Act relates to the protection of society. Mr Austin observed that the purposes of the New South Wales Act was both the protection of society and the rehabilitation of the offender. He also observed that s.17(3) uses the words "if and only if it is satisfied" as against the relevant provision in the Victorian scheme which uses the phrase "if it is satisfied".
51 Further reliance in support of the defendant's submissions was placed upon the difference between the scheme that operates under the New South Wales legislation whereby a detention order may be made. In Victoria, only a supervision order can be made.
52 In Attorney General for New South Wales v Tillman [2007] NSWSC 605, Bell J considered the provisions of s.17(3). Bell J rejected the approach in TSL (supra) stating:-
"In this respect it seems to me that the plaintiff's submission that s.17(3) of the Act should be construed in accordance with its terms not by reference to the approach taken to the Victorian Monitoring Act has force."
53 Bell J, in applying the test, stated (at [165]):-
"Taking into account the expert evidence, particularly the opinions of Dr Allnutt and Professor Greenberg and looking at the inferences to be drawn from the defendant's pattern of past offending, upon the standard of proof of high probability, I consider the plaintiff has established that it is likely that the defendant will commit a further serious sex offence if he is not kept under supervision. In this respect, I note Professor Greenberg's opinion … which is that in the absence of treatment over an extended period of time, the defendant's risk of re-offending is greater than the chance of not re-offending."
54 Mr Austin submitted that the approach and interpretation adopted by Bell J was wrong and should not be followed. He relied, in particular, on the principles stated in the case law which emphasises that statutory interpretation requires a Court to have regard to the context of the legislation in the first instance and not merely after some kind of ambiguity is established: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCA 35 per Spigelman CJ at [15].
55 Mr Austin also relied upon the provisions of s.33 of the Interpretation Act 1987 which states that the interpretation of a provision of an Act which would promote the purpose of object underlying it should be preferred to a construction that that would not promote that purpose of object.
56 He submitted that the New South Wales Parliament could not be presumed to have been ignorant of the Victorian Monitoring Act and that the phrase "if and only if" plays an important role in the construction of the provision. In particular, it makes the New South Wales standard of proof "… stricter and reinforces the exceptional nature of the remedy provided for" (defendant's outline of submissions A(o)).
57 Bell J in Tillman (supra) closely examined the analysis of the Victorian Court of Appeal in TSL (supra). Her Honour observed that the Court in that case took into account the provisions of s.7(2) of the Charter of Human Rights and Responsibilities. Her Honour stated that she proposed to adopt (at [27]) the approach favoured by McClellan CJ at CL in Gallagher (supra), namely, to take the words "is satisfied to a high degree of probability" in s.17(3) as the statement of a statutory standard of proof which is higher than the civil standard, but lower than the criminal standard. Her Honour stated at [33]:-
"… I take into account his Honour's observation that the inclusion of the words 'if and only if' emphasises 'the care' with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty."
58 Her Honour also noted the observations of McClellan CJ at CL that it would be necessary to give careful consideration to the context in which "likely" is used in s.17(3) on final hearing. Following reference to dicta of Gibbs CJ and of Mason, Wilson and Deane JJ in Boughey (supra), her Honour concluded that:-
"… The Act requires the Court to be satisfied of the likelihood of future offending. In this context it is not clear that likelihood is to be equated with 'a real chance', which I take to be a prediction falling well short of probability, albeit one that is more than a mere possibility. I have approached the determination in this case upon the basis that 'likely' in this context conveys the sense that it is probable, as distinct from possible, that the defendant will commit a further serious sex offence."
59 Her Honour went on to state at [30]:-
"The plaintiff must establish to a high degree of probability that (1) the defendant is likely to commit a further serious sex offence if he is not kept under supervision and (2) that adequate supervision will not be provided by an extended supervision order. If the plaintiff establishes both, the Court may make a detention order. In the event the plaintiff establishes (1) but does not establish (2) the Court may make an extended supervision order. The Court retains a discretion not to make either order."
60 In his written submissions, Mr Austin contended that the Victorian Court of Appeal's reference in TSL to the Charter of Human Rights did no more than state, what in the absence of the Charter, the common law would have required; a respect for basic common law principles. These, he contended (defendant's outline of submissions, A(s)):-
"… include the right to liberty, an aversion to preventative detention, and a requirement for proportionality in sentencing. So much has been recognised in relation to the legislation which allows for indefinite determination. It has been held that this legislation is exceptional and to be sparingly exercised and to be sparingly exercised, and then only in clear cases: Moffit v Crown [1998] 2 VR 229 at 255 per Hayne JA."
61 Mr Austin further submitted:-
"(u) As a corollary to the argument that the powers be sparingly exercised and only in exceptional cases it can be asserted that legislation which derogates from fundamental common law principles must be interpreted so far as possible in a way that respects those principles unless a contrary intention is shown. Courts do not require a Charter or Rights and Responsibilities to do this."
62 In support of this submission, specific reliance was placed upon the words of the section, in particular, "if and only if" and "a high degree of probability" which operate in conjunction with the word "likely". Reliance was also placed upon the scheme of the Act and what was said in the Second Reading Speech and s.33 of the Interpretation Act 1987 as well as the legislation and what was contended was its "extraordinary" application. Finally, it was submitted that any interpretation must respect fundamental human rights and common law principles unless the contrary intention is shown.
63 The final submission on this question of construction was that "… this extraordinary legislation, with its extraordinary consequences, must call for an extraordinary interpretation of likelihood - a high degree of probability" (defendant's outline of submission, A(w)).
64 In support of this latter submission, it was contended that to hold otherwise would mean that the large bulk of offenders would be caught by the test, given the real risk that anyone gaoled for a sexual (or other offence for that matter) was at risk of committing a further offence.
65 It is relevant at this point to refer to the principles of judicial comity, for they have a bearing upon whether there exists a basis upon which I ought follow and adopt the interpretation of s.17(3) as enunciated by Bell J or whether another course is and should be taken by me in relation to that question.
66 In Mustac v Medical Board of Western Australia [2007] WASC 128, Martin CJ stated at [38] that the practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each Court in a judicial hierarchy to follow and apply decisions of any Court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of Courts of co-ordinate jurisdiction, or as between a Court in one judicial hierarchy, and a Court the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way. Martin CJ there observed that the practice was well described by Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 CLR 201 in the following terms at 204:-
"The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same Court. Even a decision of a single justice of the High Court exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this Court: Businessworld Computers Pty Limited v Australian Telecommunications Commission (1988) 2 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity, usually follow the decision of another judge at first instance … unless he is convinced that the judgment was wrong', Halsbury, 4th ed, Vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. … Understood as expressing a usual or general rule, the following statement of Rogers J in Hamilton Island Enterprises Pty Limited v FCT [1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:-
'In my view, it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising Federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of co-ordinate authority was clearly wrong, I would follow his decision.'"
67 Martin CJ also referred to the decision of Street CJ in Regina v Abbrederis [1981] 1 NSWLR 530 at 542 wherein it was stated:-
"As a matter of precedent, this Court is not, of course, bound by the decision of the Full Court of Victoria. But I have not the slightest doubt that, where a Commonwealth statute has been construed by the ultimate appellate court within any State or Territory, that construction should, as a matter of ordinary practice, be accepted and applied by the Courts of other States and Territories, so long as it is permitted to stand unchanged either by the Court of origin or by the High Court. The risk of differing interpretations amongst the States is thus negated and, in practical terms, a uniform application of Commonwealth laws throughout Australia is assured."
68 In the circumstances of the present matter, the decision of the Victorian Court of Appeal being concerned with Victorian legislation different in terms than the New South Wales Act, such decision cannot be taken as authoritative in relation to the provisions of s.17(3). Furthermore, given that Bell J specifically examined the Victorian Act the subject of that decision, her Honour having closely considered its provisions, construed "likely" to mean "probable". In those circumstances, there is no basis for departing from or taking a different approach to the construction of s.17(3) to that set out in the judgment of Bell J unless I concluded that there existed a basis upon which I could conclude that the decision of Bell J was clearly wrong. I have closely examined her Honour's judgment and there is no basis for so concluding. In those circumstances, I decline to depart from the construction of s.17(3) as enunciated by Bell J and apply it to the present application.