Baldwin v State of New South Wales

Conditions attached to order

1. The challenged conditions attached to the extended supervision order come in "Part J: Search and seizure". Condition 39 reads as follows: "39. If the DSO reasonably believes that a search (of the type referred to in sub‑paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must consent to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person."
2. That which is required by condition 39 is the "search and inspection" of the person's property, and search and examination of his person. (What is encompassed by "examination" of the person need not be explored.) The DSO is the "Department Supervising Officer"; that is, a designated officer within Corrective Services NSW, being the agency responsible for the administration of the High Risk Offenders Act. [7] Thus, the power to direct a search depends on the DSO's reasonable belief that a search is "necessary" for one of the reasons identified in pars (a)-(c). Putting to one side (a), the scope of which is obscure in relation to the applicant's proclivities, the reasonable belief must relate to monitoring compliance with the conditions attached to the order.
3. There are other conditions which also involve monitoring and reporting. Thus, the first four conditions read as follows: "Monitoring and Reporting 1. Corrective Services NSW (CSNSW) will administer this ISO/ESO. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must comply with any reasonable direction given by his DSO or their delegate from CSNSW, for the enforcement and implementation of the ISO/ESO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him."
4. On one view, condition 39 sets out, and perhaps limits, the scope of the reasonable directions which can be given under condition 3. In any event, none of conditions 1-4 were challenged.
5. Condition 40 identified the nature of a search of the person under 39(g), which extends to a "garment search" and a "pat-down search". It is ancillary to condition 39; its content is not material to the present argument.
6. Conditions 41 and 42 provide as follows: "41. During a search carried out pursuant to condition 39 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possessor or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address or secondary pre-approved overnight address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 42. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 37 to 40 above."
7. Condition 42 appears to have been taken from an earlier precedent because the reference to conditions "37 to 40 above" are inapt; they should presumably be references to conditions 39 to 41. No argument in this Court concerned the scope and operation of condition 42 which is dependent on the validity of conditions 39 and 40.
8. Condition 41 is an extension of the powers to search (and the requirement to consent to a search) pursuant to condition 39; it confers on the DSO or another person power to "seize" anything found which the DSO reasonably suspects will "compromise", amongst other things, the person's compliance with the order, or which is reasonably suspected of relating to conduct or behaviour associated with an increased risk of the commission of a serious offence.
9. The drafting of this provision is awkward: no doubt a thing may be suspected of compromising the safety of others, but what is meant by compromising compliance with the order is unclear. Although the applicant referred in submissions to the imprecision and uncertainty of the language, that did not constitute a separate ground of challenge to the validity of the conditions.
10. Before identifying the grounds of challenge, it is convenient to note two other aspects of the conditions to which objection was not taken. First, there were several conditions relating to access to the internet and forms of electronic communication. Thus the defendant had to supply a list of all devices used to communicate, including telephones and computers, passwords and codes and details of internet connections. He was also required to obey reasonable directions as to his use of such devices. [8] He was required to produce the devices if required to do so by the DSO and prohibited from deleting records on such devices. He was required to submit to Corrective Services (presumably through the DSO) searching his devices, inspecting their contents, photographing texts and images, downloading data and, if necessary, seizing the device as evidence of a suspected breach of either the extended supervision order or a criminal offence. [9] These provisions, contained in Part I, were detailed and repetitive. [10] No objection was taken to any aspect of them. Yet there was considerable overlap in a practical sense with the conditions which were challenged.

Basis of appeal

1. The draft notice of appeal, as amended, contained two grounds, which read as follows: "1 The Court's imposition of conditions 39, 40, 41 and 42 in Order 2, was beyond the Court's power in that: a. section 11(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (Act) (read with section 9(1) of that Act) does not authorise the Court to impose conditions which abrogate the privilege against self-incrimination which is available to an offender, except insofar as such conditions are expressly provided for in s 11(1)(a) to (n) of the Act; and b. each of the conditions 39, 40, 41 and 42 impermissibly abrogates the privilege against self-incrimination which would otherwise be available to the appellant. 2 The Court's imposition of conditions 39, 40, 41 and 42 in Order 2 was beyond the Court's power in that section 11(1) of the Act (read with section 9(1) of the Act) does not authorise the Court to impose conditions (such as conditions 39, 40, 41 and 42) which: aa. make directions to, or regulate the conduct of, a third party; a. authorise the unlawful conduct of a third party; or b. make compliance with a condition dependent upon the state of mind of a third party."
2. Both grounds required consideration of the power to impose conditions contained in Part 2, Div 4 of the High Risk Offenders Act. The Division contains three sections. Section 13, dealing with variation and revocation of extended supervision orders is not presently relevant. Sections 11 and 12 read as follows: 11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services. 12 Breach of supervision order A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence. Maximum penalty: 500 penalty units or imprisonment for 5 years, or both.
3. It is convenient to deal first with ground 1, which was the focus of the applicant's submissions.

Ground 1: privilege against self-incrimination

1. The trial judge noted that the effect of condition 39 turned on the direction that the applicant consent to the search. He observed that if the applicant refused to consent, the search would not be authorised and would amount to a trespass; however, the refusal itself might constitute an offence under s 12 of the Act. [11] The judge then identified the argument based on lack of power as involving two steps. "[81] … The first step was that, as the conditions operate to require a consent to search and seizure, they infringe Mr Baldwin's privilege against self-incrimination. The second step was that the HRO Act, and specifically the power to impose conditions conferred by s 11, does not evince an intention to abrogate that privilege, at least so far as search and seizure conditions are concerned. [82] I accept the first step in the argument. As noted, like Anton Piller orders, proposed conditions 39 to 42 operate to require permission be granted to a search and seizure which would otherwise be a trespass to Mr Baldwin's property or person. If Mr Baldwin does not in fact consent then the relevant actions of the DSO would be a trespass, albeit Mr Baldwin would face a sanction for refusing his consent. This is so because s 11 of the HRO Act only empowers the making of an order 'directing an offender' to comply with a condition. It does not empower the Court to make any form of order which, by its terms, authorises a DSO to enter property per se. Like an Anton Piller order, in this respect it stands in contrast to what is authorised by a search warrant …. As proposed conditions 39 to 42 require an offender to take a step, that is provide consent, which may lead to the discovery of evidence that exposes him to prosecution for an offence, specifically an offence of contravening s 12 of the HRO Act, then they purport to abrogate the offender's privilege against self-incrimination …."
2. Before considering how the judge addressed the second step, it is necessary to identify more precisely how the privilege was engaged. While it is clear that the requirement to consent to a search prevents the search being a trespass to the property or person of the applicant, it is not so clear that a requirement to consent to a search purports to abrogate the privilege against self-incrimination. In Rank Film Distributors Ltd v Video Information Centre [12] Lord Wilberforce identified the Anton Piller orders under consideration as falling under three heads, namely: "(1) Requiring the respondents to supply information. (2) Requiring the respondents to allow access to premises for the purpose of looking for illicit copy films and to allow their being removed to safe custody. (3) Requiring the respondents to disclose and produce documents. The orders under (2) were upheld by the Court of Appeal, and this part of the court's decision was not seriously contested in this House. In any event I am satisfied that there was jurisdiction to make these orders and that the privilege against self-incrimination has no application to them. The privilege against self-incrimination is invoked as regards (1) and (3)."
3. The distinction drawn by Lord Wilberforce is well established in this country. For example, in Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [13] Gibbs CJ, Mason and Dawson JJ, in dealing with a notice in writing issued by the Commissioner to the appellant to produce all its books, records, documents and other working papers relating to its dealings in specific securities, stated: [14] "The provision of a power to search for and seize books under warrant is, we think, significant. That provision cannot be read down by reference to the privilege against self-incrimination for, whilst the privilege, apart from any statutory exclusion, would protect a person against a requirement that he produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion, it has no application to the seizure of documents or their use for the purpose of incrimination provided they can be proved by some independent means. The privilege is not a privilege against incrimination; it is a privilege against self-incrimination: see Andresen v State of Maryland. [15] In relation to documents, the privilege against self-incrimination may be contrasted with legal professional privilege, which, in the absence of clear statutory authority to the contrary, affords protection against the seizure of documents which fall within the ambit of the privilege."
4. The appellant sought to obtain support for a broader operation of the privilege against self-incrimination through reliance on a judgment of the Full Court of the Federal Court, Meneses v Directed Electronics OE Pty Ltd. [16] The Full Court noted at [79], in dealing with the operation of an Anton Piller order: "[79] … The potency of the order lay in the requirement that the persons to whom the order was directed were required to give permission for the entry, search, and the removal of listed things, and to disclose the whereabouts of the listed things and to facilitate access to them. Refusal of permission might amount to a contempt, but absent permission there was no authority to enter the premises …. [80] … In Tate Access Floors Inc v Boswell, [17] Browne-Wilkinson VC held that the privilege against self-incrimination was available to resist the supply of information and the disclosure of documents under an Anton Piller order. As Browne-Wilkinson VC explained …: '… if a man is entitled to refuse to produce documents, it would be strange if the law permitted an order to be made which forced him to admit others to his house for the purpose of seizing those documents.'"
5. If those observations of the Vice Chancellor were understood to extend the protection of the privilege against self-incrimination to requiring consent to a search, that would surely be erroneous. Tate Access was decided eight years after the House of Lords (and the Court of Appeal) had ruled otherwise in Rank Film Distributors. Further, Browne-Wilkinson VC was referring to the entitlement "to refuse to produce documents", as to which the operation of the privilege is undoubted.
6. The distinction was reiterated by the Full Court in Meneses at [85] ("[t]he privilege of an individual against self-incrimination is a deeply entrenched common law right not to answer questions or produce documents or things where there would be a tendency to expose the individual to a criminal charge") and at [89] ("the privileges are not merely privileges against giving testimonial evidence, but extend to grounds upon which the production of documents by way of discovery, a notice to produce, or in response to a subpoena may be resisted"). Following an extensive quotation from the joint reasons of Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd, [18] dealing with production of documents, and a reference to Controlled Consultants, the Full Court continued: "Thus, the privilege against self-incrimination is not available to resist the seizure of documents under a search warrant because the statute under which a search warrant is issued will typically authorise the entry onto premises and the seizure of incriminating documents …. The execution of a search warrant pursuant to a statutory provision of this type does not require an individual to consent to entry, or to identify, or produce incriminating documents. And because the privilege is against self-incrimination, the privilege can only be claimed by the person called upon to produce; it cannot be invoked to resist the production of documents that might incriminate others…."
7. If this passage were read as suggesting that the privilege against self-incrimination is not available to resist the seizure of documents under a search warrant only because there is statutory authority for the warrant, that would be inconsistent with the distinction drawn earlier between the execution of a search warrant and an order for production of documents by the person the subject of the order. As explained in Caltex Refining, the reason why the privilege attaches to an order to produce documents is that "by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given." [19] There is no reason to read the language used by the Full Court in Meneses as extending further and thereby contradicting a basic principle.
8. Bearing this principle in mind, it is far from clear that the privilege is engaged by conditions 39-41. It is true that the applicant was ordered to consent to a search and inspection, and a seizure of material found in the course of such a search or inspection which was believed by the officer to satisfy specified criteria. Those orders have all the hallmarks of a search warrant; as the primary judge correctly stated, the requirement for consent to a search and seizure would prevent what would otherwise be an unlawful trespass to person or property. However, unless the conditions were construed as in some way requiring the applicant to produce documents or things or otherwise assist in identifying possibly incriminating material for the searchers, the privilege is not engaged. Whether a different analysis would apply to other conditions is not presently material.
9. The primary judge, in addressing the second stage of the applicant's argument, accepted that the privilege against self-incrimination could not be abrogated pursuant to a power conferred by statute, unless the statute manifested such an intention by unmistakable and unambiguous language, [20] applying the reasoning of the High Court in Coco v The Queen, [21] Electrolux Home Products Pty Ltd v Australian Workers' Union, [22] and X7 v Australian Crime Commission. [23]
10. The primary judge then noted that a similar principle had been applied in three cases in which similar conditions had been challenged, [24] namely State of New South Wales v John Raymond Holschier, [25] State of New South Wales v Steven Single, [26] and State of New South Wales v Grooms (Final). [27]
11. Counsel for the applicant had submitted, in the judge's words, that "those cases should be distinguished because, in each case the argument proceeded on what was contended to be the false premise that these conditions are analogous to search warrants and thus the court did not address the matter on the basis that such conditions purport to abrogate the privilege against self-incrimination (see, for example, Single at [44])." While the primary judge was not minded to place much weight upon the point of distinction, he accepted that reliance on the privilege against self-incrimination was, arguably, a separate issue and could be addressed on the basis that a contrary finding would not be in conflict with Holschier, Single and Grooms. [28] What was not noted was that the approach adopted in those cases on the basis that there was an analogy to a search warrant might well have been correct, so that the question of abrogation of the privilege was not engaged.
12. On the assumption that the question of abrogation of the privilege needed to be determined, the primary judge then turned to s 11 of the High Risk Offenders Act to consider whether its language demonstrated a sufficiently clear and unambiguous intention to permit the imposition of conditions that abrogated any privilege against self-incrimination.
13. The nature of this exercise was contested. To the extent that there was a necessary implication that a particular type of condition described in a paragraph in s 11(1) necessarily involved abrogation of the privilege, it was necessary to draw a further inference that the abrogation extended beyond a condition of the type so identified. As was clear from the chapeau of s 11(1), the list of possible conditions was not exhaustive; nevertheless, there was nothing in the chapeau itself which supported a general abrogation of the privilege. In effect, a general implied abrogation of the privilege turned upon the pervasiveness of the descriptions from which the inference could be drawn, together with the potential invasiveness of the conditions.
14. Taking the paragraphs in the order in which they appear in the section, the primary judge made the following findings at [89]:

• "Section 11(1)(a) specifically authorises the imposition of a condition requiring an offender to permit a 'visit' by a corrective services officer to their residential premises and to permit the officer to "enter" those premises."
• "Section 11(1)(a1) authorises a condition that requires an offender to grant permission to access a computer in their premises or in their possession. The potential for that to yield incriminating evidence is obvious."
• "[Section] 11(1)(c) authorises the imposition of a condition requiring the offender [to] provide periodic reports."
• "[Section] 11(1)(l) authorises conditions which impose 'any obligation' that could be imposed on an offender under Part 3 of the Child Protection (Offenders Registration) Act if the offender were a registrable person. I have already noted that those obligations include a requirement to provide information. Again, that could clearly include material that is potentially incriminating, such as the details of any car they own or possess."
• "Section 11(1)(n) authorises the imposition of a condition requiring the provision of information in relation to employment or financial affairs."

1. To these could be added the requirement in par (e) to wear electronic monitoring equipment and (k) "to report to police and provide information to police about the conditions imposed on the extended supervision order ... and the offender's residential address". An inference could also be drawn, depending on the scope of the condition, from s 11(1)(m) requiring the person to comply with "specific requirements in connection with the offender's access to and use of the internet".
2. For reasons already noted, the conditions described in (a) and (a1) permit searches which, no doubt, could yield incriminating evidence, as the primary judge noted, and would warrant a requirement to consent, thus preventing such searches and entry constituting unlawful acts of trespass. However, they do not impliedly abrogate a privilege, if the privilege is not engaged by such conduct.
3. Provisions requiring the wearing of electronic monitoring equipment ((e)) and to provide information in relation to employment or financial affairs ((n)) are undoubtedly intrusive and may result in the offender being required to disclose incriminating information, but they are specific in their areas of operation. Ultimately in terms of scope, the question turns upon the powers in (b), (k) and possibly (m), in order to draw a broader inference as to the abrogation of the privilege.
4. The Crown Advocate drew the Court's attention to aspects of the legislative history which supported the view that a broad approach could be taken to the scope of the conditions permitted under s 11. In particular, he referred to an internal government review published in November 2010 which made the following recommendation: [29] "Recommendation 12: That the [Act] is amended by inserting an additional condition that may be imposed by the Court as part of an ESO or ISO under s 11 to provide that the offender must not access the internet for the purpose of viewing child abuse material. The offender must allow the Departmental supervising officer, a parole officer or Community Compliance Group officer access to any computer he may from time to time utilise, for the purposes of examining and investigating his internet activity." The Review noted that similar orders had been made by the court in the absence of specific statutory authority.
5. The Second Reading Speech of the Attorney General in moving amendments in line with the Departmental recommendation was also referred to, although it did not take the matter much further. [30]
6. Further amendments were made in 2014. One in particular should be noted, namely the addition of paragraph (k) dealing with the Child Protection (Offenders Registration) Act 2000 (NSW) ("Child Protection Act"). The terminology of par (k) is extremely awkward. It refers to any obligation "that could be imposed on the offender" under Pt 3 of the Child Protection Act if the offender were a registrable person, and not the subject of a supervision order. [31] The term "could" suggests that there was a discretionary power under the Child Protection Act, which was being adopted in s 11 of the High Risk Offenders Act. That reading would not be correct, because there was no discretionary power under the Child Protection Act; the terms of Pt 3, relevantly in s 16C, imposed obligations on a registrable person.

Ground 2: directions to third party

1. Like ground 1, ground 2 was directed to the imposition of conditions 39-42. There were three limbs to the complaint. The first (par aa) was that the conditions purported to "make directions to, or regulate the conduct of, a third party". In written submissions that complaint was run together with the complaint that s 11 did not authorise the "unlawful conduct" of a third party.
2. Dealing first with the concept of directing or regulating the conduct of a third party, the applicant submitted that such a condition fell outside the chapeau to s 11(1) permitting conditions including "directions requiring the offender" to do certain things.
3. The "third parties" referred to were said to be officers in the Department of Corrective Services responsible for the administration of the Act. Thus condition 39 was said to require the Department Supervising Officer to form a particular belief and then to direct other officers to search and inspect property.
4. This was a semantic objection. The purpose of condition 39 is to require the person the subject of the order to consent to such search and inspection as may be directed. No doubt such permission will not be required unless a departmental officer forms a belief and takes steps to initiate a search. However, that does not mean that condition 39 is not a condition requiring the offender to permit such activity. Were it otherwise, s 11(1)(a) would fall foul of the same objection. It requires the offender to permit an officer to visit his or her residential address and enter the offender's premises, thus assuming conduct of the officer triggering the offender's obligation. Section 11(1)(a1) also is premised on the assumed conduct of a Corrective Services officer in having already obtained access to the offender's premises and sought access to a computer. Those provisions are not properly characterised as directing or regulating the conduct of the Corrective Services officer, although they may assume that an officer has formed a particular belief or been directed to undertake a particular task.
5. In written submissions, the applicant called in aid observations made by this Court in Winters v Attorney General (NSW). [38] Winters concerned the application of a direction "to participate in treatment and rehabilitation programs" pursuant to s 11(d), as then in force. All members of the Court emphasised the fact that the conditions were to be directed to the offender, requiring him to comply with a specified condition. [39] However, the context in which those statements were made was that a proposed treatment program had not become a condition of an extended supervision order. The purpose of the challenge was to obtain a direction that the government pay for a psychologist. The President's analysis ended with the following conclusions: "[31] I have concluded that the Act does not empower the Court to make a direction about participation in a particular treatment or rehabilitation program unless it is one that is available to the offender. It is not available if the program does not exist, if no one is able to provide it or if the offender resides in a part of the State where attendance could not reasonably be required. And I have reluctantly concluded that it is unavailable if it is offered by a private practitioner at rates that are beyond the means of the particular offender. [32] It follows that the Court should not impose a condition that the appellant participate in the treatment that Ms Howell is otherwise in a position to offer. Such a requirement would be both an injustice and a futility."
6. It follows that Winters provides no support for the applicant's challenge. There is a constitutional difference between a court order imposing an obligation on the State to fund private health services and an assumption that certain administrative functions will be carried out by departmental officers. The latter assumption arises whenever a sentence of imprisonment is imposed; it also arises whenever an extended supervision order is made. Ground 2aa must be dismissed.
7. The next ground of challenge (par a) was that the conditions authorised unlawful conduct. According to the applicant's written submissions, a corrective services officer "has no power at common law or under statute to search a person's premises." The respondent's submissions assumed that the ground referred to a search without consent and noted that, the purpose of the condition being to direct the giving of consent, it was not intended to authorise a search without consent. In reply, the application's submission became one based on the fact that a search and seizure might affect third parties, because the condition permitted search and seizure of things whether in the defendant's possession or not, and therefore implied that the power extended to the property of third parties.
8. In fact condition 39 says nothing expressly about third parties. The reference in condition 41 to seizing anything found "whether in the defendant's [possession] or not" does not imply that it extends to seizing the property of others. If third party property is taken, there may be an issue as to the lawfulness of that action. That possibility does not render the condition invalid. Ground 2a should be dismissed.
9. The third limb of ground 2 (par b) complained that condition 39 was invalid because it made "compliance" dependent upon the state of mind of a third party. By that the applicant meant that he had no way of knowing whether the departmental supervising officer had formed a relevant belief and if so on reasonable grounds.
10. As the State noted, the factual assertion was no doubt correct. However, the purpose of requiring a reasonable belief as to specified matters was intended to be protective of the interests of the applicant, by limiting the circumstances in which a search could properly be directed. If the applicant were minded to refuse consent, he would face the risk of committing an offence under s 12 of the High Risk Offenders Act. That circumstance was no different from that faced by a person contemplating resisting arrest, or refusing to comply with the terms a search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21. Such matters do not provide a basis for invalidating conditions 39 or 41. Ground 2b should be dismissed.
11. It follows that there is no substance in ground 2.

Conclusions

1. It follows from the foregoing reasons that the appeal must fail. Although the appeal is brought in the civil jurisdiction, no costs may be awarded against an offender in relation to any proceedings under the Act, including an appeal: s 23.
2. Accordingly, the appropriate orders are as follows: 1. Grant the applicant leave to appeal pursuant to the summons filed on 13 March 2020. 2. Grant the applicant leave to amend ground 2 in the summons to include par (aa). 3. Direct the applicant to file the amended draft notice of appeal within 7 days. 4. Dismiss the appeal.
3. MACFARLAN JA: I agree with the orders proposed by Basten JA.
4. In respect of Ground 1, I agree with his Honour that there was no error in the primary judge's reasoning, on the assumption that conditions 39 to 42 would otherwise be inconsistent with the privilege against self-incrimination. That assumption should be made as that was the basis on which the primary judge proceeded and the respondent did not contend in this Court that the assumption was incorrect.
5. In respect of Ground 2, I agree with Basten JA's reasoning.
6. EMMETT AJA: This appeal concerns the construction of s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Section 5B of the Act relevantly provides that the Supreme Court may make an extended supervision order (ESO) in relation to certain persons if the Court is satisfied as to certain matters to a high degree of probability. Under s 9(1)(a), the Supreme Court may determine an application for an ESO by making such an order, and in doing so, must have regard to the various considerations set out in s 9(2) to s 9(4). Section 11 relevantly provides that an ESO may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including directions requiring the offender to do various things set out in s 11(1)(a) to s 11(1)(n). On 19 December 2019, a judge of the Common Law Division made an ESO in relation to Mr Wayne Baldwin. It is common ground that Mr Baldwin is a person to whom s 11 applies and that the primary judge was satisfied as to the relevant matters.
7. Under conditions 39 to 42 of the ESO, if the Department Supervising Officer (DSO), or any other person supervising Mr Baldwin as directed by the DSO, believes that a search of the type described below is necessary:

• for the safety and welfare of residents or staff or persons present at Mr Baldwin's approved address;
• to monitor his compliance with the order; or
• because the DSO reasonably suspects that Mr Baldwin has breached the conditions of the ESO or engaged in conduct associated with an increased risk of committing a serious offence; then the DSO may direct, and Mr Baldwin must consent to:
• search and inspection of any part of, or anything in, his approved address;
• search and inspection of any part of, or anything in, any vehicle owned, hired by or under his control;
• search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of Mr Baldwin; and/or
• search and examination of his person. During such a search, Mr Baldwin must allow the DSO or any other person requested by the DSO to seize anything found, whether in his possession or not, which the DSO reasonably suspects will compromise:
• the safety of residents or staff of the Mr Baldwin's approved address;
• the welfare or safety of any member of the public or any other person; or
• Mr Baldwin's compliance with the order; or which the officer reasonably suspects relates to behaviour or conduct associated with an increased risk of Mr Baldwin committing a serious offence.

1. Mr Baldwin now seeks leave to appeal from the ESO made by the primary judge on the ground that conditions 39 to 42 of the ESO made were beyond the Court's power. By proposed ground 1, Mr Baldwin contends that the ESO abrogates the privilege against self-incrimination that would otherwise be available to him and that s 11 of the Act does not authorise the Court to impose conditions that have that effect. By proposed ground 2, he contends that those conditions of the ESO are not authorised because s 11 does not authorise the Supreme Court to:

• make directions to, or regulate the conduct of, a third party;
• authorise the unlawful conduct of a third party; or
• make compliance with a condition dependent upon the state of mind of a third party.

1. I have had the opportunity of reading in draft form the proposed reasons of Basten JA. I agree with his Honour, for the reasons proposed that, properly construed, the conditions imposed by the ESO do not impose on Mr Baldwin an obligation to answer questions, to produce documents or to in some other way assist the process of investigation, such as to abrogate the privilege against self-incrimination. Further, even if conditions 39 to 42 would otherwise be inconsistent with the privilege against self-incrimination, the language of s 11 of the Act demonstrates a sufficiently clear and unambiguous intention to permit the imposition of conditions that abrogate any privilege against self-incrimination. There was, accordingly, no error in the primary judge's conclusion. I also agree, for the reasons proposed by Basten JA, that there is no substance in ground 2.
2. I agree with the orders proposed by Basten JA.

Endnotes

1. State of New South Wales v Baldwin [2019] NSWSC 1882 (Primary judgment).
2. Judgment at [22].
3. Judgment at [23].
4. Judgment at [52].
5. Judgment at [57].
6. Judgment at [53]
7. High Risk Offenders Act, s 4(1) Corrective Services NSW, adopting the definition in the Crimes (Administration of Sentences) Act 1999 (NSW), s 3(1).
8. Conditions 32 and 33.
9. Condition 34.
10. Conditions 32-38.
11. Judgment at [80].
12. [1982] AC 380, 425 (HL).
13. (1984) 156 CLR 385; [1984] HCA 6.
14. Controlled Consultants at 392-393.
15. 427 US 463 (1976).
16. [2019] FCAFC 190; 373 ALR 624 (Moshinsky, Wheelahan and Abraham JJ).
17. [1991] Ch 512.
18. (1993) 178 CLR 477 at 502-503; [1993] HCA 74.
19. Caltex Refining at 502 (Mason CJ and Toohey J).
20. Primary judgement at [83].
21. (1994) 179 CLR 427 at 437; [1994] HCA 15.
22. (2004) 221 CLR 309; [2004] HCA 40 at [21].
23. (2013) 248 CLR 92; [2013] HCA 29 at [86]-[87] (Hayne and Bell JJ).
24. Primary judgment at [84].
25. [2016] NSWSC 234 at [42] (Hidden J).
26. [2019] NSWSC 176 at [37]-[51] (Hamill J).
27. [2019] NSWSC 353 at [103]-[113] (Fullerton J).
28. Primary judgment at [86].
29. NSW Government, Justice and Attorney General, Review of the Crimes (Serious Sex Offenders) Act 2006 (November 2010) at [1.6.13].
30. NSW Legislative Council, Parliamentary Debates (Hansard), 24 November 2010, p 28042 at 28044.
31. Emphasis added.
32. NSW Legislative Assembly, Parliamentary Debates (Hansard), 10 September 2014, p 259, 260.
33. Reporting obligations under the Act are suspended whilst a person is subject to a supervision order pursuant to s 15(1)(d) of the Child Protection Act.
34. Primary judgment at [93].
35. (2014) 46 VR 583; [2014] VSCA 182 (Ashley and Neave JJA and Almond AJA).
36. Gemmell at [63] (Ashley JA).
37. (1995) 184 CLR 1 at 16-17 (Toohey, Gaudron, McHugh and Gummow JJ); [1995] HCA 40.
38. [2008] NSWCA 33; 182 A Crim R 107 (Mason P, Giles and Hodgson JJA).
39. Winters at [22], [28] (Mason P); [56] (Giles JA), [121] (Hodgson JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2020