Director of Public Prosecutions v CN (Unreported, County Court of Victoria, Judge McInerney, 15 March 2012)

Department of Justice v KRL (Unreported, County Court of Victoria, Judge Harbison, 23 March 2012)

PUBLIC LAW - Appeal - Supervision orders under the Serious Sex Offenders (Detention and Supervision) Act 2009 - Nature of appeal from finding that offender an unacceptable risk - Appeal by way of rehearing - Whether conclusion of unacceptable risk was plainly wrong - Appeal from discretionary decision to make supervision order and terms of order attracts principles in House v The King (1939) 55 CLR 499 - Sections 96, 84, 88, 100, 101 and 102 of the Serious Sex Offenders (Detention and Supervision) Act 2009 - Dwyer v Calco [2008] HCA 13; (2008) 234 CLR 124; Mobilio v Balliotis [1998] 3 VR 833 followed.

CHARTER - Construction of s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 - Principle of legality - Whether interpretive obligations under the Charter of Human Rights and Responsibilities Act 2006 applies to finding that offender an 'unacceptable risk' - Construction which least infringes human rights - R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436; Momcilovic v The Queen (2011) 245 CLR 1 considered - Whether s 9 Charter compliant - Whether Charter requires a judicial discretion under s 9(7) to be construed as subject to an implied limitation - Implied limitation inconsistent with text and purpose of the Act - Conditions of supervision order - Additional conditions - Whether conditions must constitute minimum interference with human rights - Section 15(6) exempts core conditions.

PUBLIC LAW - Supervision orders - 'Unacceptable risk' - Section 9(1) - Test to be applied - Degree of likelihood of risk - Whether real likelihood, though not necessarily more likely than not that offender will commit offence - Section 9(5) - Consequences if risk eventuates - Placement of offence within a continuum of seriousness inappropriate - The Secretary to the Department of Justice v AB [2009] VCC 1132 in part disapproved .

PUBLIC LAW - Standard of proof of unacceptable risk - High degree of probability - Section 9(2) - Evidence Act 2008, s 140 - Application of Briginshaw principle - Acceptable and cogent evidence - Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 considered - Queensland, Western Australian and New South Wales regimes considered - Means of managing risk - Section 9(4) - Whether ways in which offender might manage risk may be taken into account. Sections 9(1), 9(2), 9(3), 9(4), 9(5), 9(7), s 15(6) Serious Sex Offenders (Detention and Supervision) Act 2009.

SUPERVISION ORDER AND CONDITIONS - Appeal of Lowe - Error in finding of unacceptable risk - Supervision order set aside.

SUPERVISION ORDER AND CONDITIONS - Appeal of Nigro - No error in finding unacceptable risk or in making supervision order - Conditions imposed unreasonable, unacceptably wide or uncertain - Conditions set aside.

SUPERVISION ORDER AND CONDITIONS - Appeal of Ghebrat - No error in finding unacceptable risk or making supervision order - Condition restricting employment unreasonable measure to ameliorate risk of re-offending - Condition set aside.

For the Victorian Equal Opportunity & Human Rights Commission

Victorian Equal Opportunity & Human Rights Commission

1 Each of these appeals is brought pursuant to s 96 of the Serious Sex Offenders (Detention and Supervision) Act 2009 ('the Act'), and challenges the making of a supervision order under s 9 and conditions attached to the order.

2 Each of the appellants contended that, on the facts relevant to their case, the trial judge had erred in concluding that they posed, within the meaning of s 9(1) of the Act, an unacceptable risk.[1] Each challenged the making of the supervision order under s 9(7).

3 Resolution of these appeals requires examination of the nature of an appeal under s 96 of the Act, the meaning of 'unacceptable risk' in s 9(1), the proper interpretation of ss 9(2), (4), (5), (7) and 15(6), and whether the interpretation of these provisions is influenced by the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). As there were questions of construction raised concerning the provisions of ss 9 and 15 of the Act and the appropriateness of various conditions that have been imposed, the court ordered that a notice under s 35 of the Charter be served on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission ('the Commission'). The notices raised questions as to the interpretation of 'unacceptable risk' and the proper construction of other parts of s 9 of the Act and how ss 12, 13 and 21 of the Charter impact upon those questions. The notices also identified the further question of how (if at all) those human rights affect the exercise of the court's discretion to make or not make a supervision order under s 9(7) of the Act. It will be convenient to deal with these issues in the course of addressing the proper construction of s 9 of the Act.

Summary of conclusions concerning the construction of the Act

4 Our conclusions concerning the construction of the Act may be summarised as follows.

5 The common law presumption in favour of the liberty of the subject underpins the predictive inquiry required under s 9. The test of unacceptable risk should be interpreted so as to limit the enjoyment of the right to liberty and autonomy only to the extent necessary to give effect to the legislative purpose of enhancing community protection. A finding of unacceptable risk is compatible with human rights under the Charter because the threshold requirement depends upon both the severity of the apprehended conduct and the likelihood that the conduct will occur. Some level of risk remains acceptable. The test of unacceptable risk enables an appropriate balancing of competing considerations.

6 Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable. These matters must be established by acceptable and cogent evidence. The principle in Briginshaw[2] is relevant to an evaluation of the quality and sufficiency of the evidence. The court must be satisfied to a high degree of probability that there is an unacceptable risk. That is a standard well above the civil standard and approaching the criminal standard.

7 The test of unacceptable risk does not require a particular degree of risk. It need not necessarily be more likely than not. The lower likelihood of risk stated in s 9(5) is not to be confined to a particular category of offence. The likelihood may be moderate and equate to the average sex offender risk to be unacceptable in a particular case.

8 The potential offending should not be categorised or placed in a continuum of seriousness so as to assume that a particular level of risk must apply to that type of offending. That would remove the flexibility of the test.

9 When considering whether the risk is unacceptable, the prohibition in s 9(4) against considering the means of managing the risk relates to the nature of the conditions that would be imposed if a supervision order were made and their impact upon the offender. In deciding whether the risk is unacceptable the court may take into account treatment, therapy or other rehabilitative measures that the offender might engage in.

10 The discretion under s 9(7) as to whether to make a supervision order is not to be construed as subject to an implied limitation as a result of the Charter. It is contrary to the text and purpose of the Act to imply such a limitation. The legislature intended that once an unacceptable risk is established, and the court in the exercise of its discretion considers that a supervision order should be made, the core conditions must automatically be imposed. Section 15(6) mandates that the court ensure no additional conditions are imposed unless they constitute the minimum interference with the offender's human rights.

11 In the appeal of Lowe, it was apparent to the Court that neither party had considered the nature of an appeal under s 96 of the Act, nor the manner in which the Charter might influence the interpretation of the Act. Hence at the completion of oral argument on 25 October 2012, the Court ordered that the appellant serve the above mentioned notices under the Charter and made ancillary orders for the service and filing of submissions. Given that the pending appeals of Nigro and Ghebrat raised issues similar to those in Lowe, on 8 November 2012 the Court ordered that the appellants in those cases also serve notices under the Charter. Associated orders were made in each case for the service and filing of submissions. On 6 December 2012, the Court heard argument in the appeals of Nigro and Ghebrat, and further submissions in the appeal of Lowe. The Commission intervened[3] and made submissions concerning the influence of the Charter on the interpretation of the Act.

12 Following argument on 13 December 2012 the Court allowed the appeal of the appellant Mr Nigro in part. We confirmed the supervision order made on 15 March 2012 together with the Conditions and Additional Conditions, save for Additional Conditions 7.2, 7.4 and 7.6, which were revoked. On the appeal of the appellant Mr Lowe, the appeal was allowed and the supervision order of 23 March 2012 was revoked. The following are our reasons for those orders in the appeals of Messrs Nigro and Lowe, and in the appeal of the appellant Mr Ghebrat for allowing his appeal in part.

13 For the reasons discussed below, we are of the opinion that the nature of an appeal under s 96 is by way of rehearing on the evidence before the County Court, supplemented by such further evidence as is admitted on the appeal.[4] Subject to the admission of new evidence, the principles stated in House v The King[5] apply both to the decision whether to make a supervision order and to the terms on which the order should be made. However, the test to be applied on an appeal ground directed to a determination with respect to 'unacceptable risk' is whether the decision is plainly wrong or wholly erroneous.[6]

14 Section 79 of the Act provides that a proceeding under the Act, including any appeal, is civil in nature. The current appeals are not, however, brought pursuant to the general right of appeal granted to a party in a civil proceeding by s 74(1) of the County Court Act 1958 but rather pursuant to the specific provisions of pt 7 of the Act.

15 Section 96 of the Act provides that an offender who is subject to a supervision order may appeal to the Court of Appeal against a decision made by a court:

(a) to make the order; or

(b) to renew or extend the order; or

(c) to impose conditions (other than core conditions) on the order; or

(d) to impose a particular period of operation of the order; or

(e) not to revoke the order on a review under Part 5; or

(f) to revoke the order and make a new supervision order or detention order.

16 Sections 97 and 98 provide the Secretary to the Department of Justice and the Director of Public Prosecutions corresponding rights of appeal.

17 Section 99 provides for the institution of an appeal by way of a notice of appeal and makes consequential provisions relating to such notices. It also provides by sub-s (6):

(6) Section 84 and Division 2 of Part 6 (with any modifications) apply to the hearing of an appeal under this Part.

18 Section 84 provides as follows:

(1) The court to which an application is made under Part 2, 3, 4 or 5 may at any time order the offender to whom the application relates to attend for a personal examination by a medical expert or any other person for the purpose of enabling that expert or other person to make a report, or give evidence, to the court.

(2) Nothing in this section empowers the making of an order that would require an offender to submit to a physical examination or in any way actively to cooperate in the carrying out of a personal examination.[7]

19 In turn, s 88 within div 2 of pt 6 provides:

(1) Subject to subsection (2) and Division 4, the ordinary rules of evidence apply to evidence given or called at the hearing under Part 2, 3, 4 or 5.

(2) In making its decision the court may receive in evidence -

(a) the offender's antecedents and criminal history;

(b) any material relied on in an assessment report or progress report relating to the offender;

(c) anything relevant to the issue contained in any medical, psychiatric, psychological or other report tendered in any proceeding against the offender for a relevant offence.

(1) A progress report must address the following matters in relation to an offender -

(a) whether or not the offender has a propensity to commit relevant offences in the future;

(b) efforts made by the offender in the previous 12 months or since the last review to address the causes of the offender's sexual offending behaviour, including whether or not the offender participated in any rehabilitation or treatment programs; and

(c) if the offender has participated in any rehabilitation or treatment programs, whether or not this participation has had a positive effect on him or her;

(d) factors that might increase or decrease any identified risks;

(e) if an additional assessment of the offender has been obtained under section 108, the results of that assessment;

(f) any other relevant matters.

21 Section 100 further amplifies the power of the Court of Appeal to receive new evidence upon the appeal:

In considering an appeal under this Part, the Court of Appeal may -

(a) consider new evidence that is relevant to the application; and

(b) direct the Secretary to provide a new assessment report or progress report in respect of the offender.

22 Sections 96, 84, 88 and 100 thus enable the Court to order and/or receive into evidence an updated assessment report previously obtained under s 109, or progress report previously obtained under s 110.[8]

23 The powers to obtain new evidence have a similar underlying purpose to that identified by the High Court in CDJ v VAJ (No 2)[9] where McHugh, Gummow and Callinan JJ said of s 93A(2) of the Family Law Act 1975 (Cth):

Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedure...[10]

24 It may be noted that once again the power to receive new evidence is not that provided for in r 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005 but rather a specific statutory power.

25 In turn, s 101 gives the Court broad power on an appeal under div 7 to make any order it considers appropriate,[11] including orders to confirm a decision; vary or revoke orders made below; or to set aside a decision and remit the matter to the court below with or without directions.

26 Section 102 enables the Court to make an interim order when it remits a matter to a court under s 101(1)(h) and the making of the interim order is justified and is in the public interest.

27 The main purpose of the Act set out in s 1(1) and the form of the appeal provisions as a whole reflect an intention that the Court will exercise its powers generally in the public interest and more particularly to enhance the protection of the community.

28 An appeal is a creature of statute.[12] In Dwyer v Calco,[13] the High Court referred to the classification of appeals adopted by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd:

(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. [14]

But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh pointed out in Eastman v The Queen:

Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.[16]

30 As such, the nature of an appeal right is to be determined by the proper construction of the statute conferring that right.[17]

31 In our view, s 96 should be understood to provide for an appeal by way of rehearing of the same general character as provided for in s 74 of the County Court Act 1958 'in which the appellate court proceeds on the basis of the record before the court from which the appeal is taken, together with any fresh evidence which may be admitted pursuant to such powers to admit such evidence as may be conferred upon the appellate court.'[18]

32 In Allesch v Maunz,[19] the High Court considered the nature of an appeal pursuant to s 93A of the Family Law Act 1975 (Cth) and distinguished an appeal by way of rehearing from other forms of appeal. Gaudron, McHugh, Gummow and Hayne JJ stated:

For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.[20]

33 In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission,[21] Gleeson CJ, Gaudron and Hayne JJ put the relevant distinctions this way:

It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.[22]

34 In the present case, the Court's powers to obtain and receive new evidence on appeal make it clear that the appeal is not one in the strict sense.

35 On the other hand, the forms of order specifically contemplated by s 101(1) are each expressed by reference to the pre-existing decision or order and include the power to remit the matter for re-decision. These powers and in particular the last- mentioned power (which is complemented by the power to make interim orders) point to an intention that the appeal be by way of rehearing and not by way of an appeal de novo. Although the power to make any order the Court considers appropriate may be regarded as equivalent to a power to make such order as the Court thinks fit, the power here in issue is fundamentally different from that considered in cases such as Re Coldham; Ex parte Brideson (No 2).[23] This is because, unlike the statutory powers under consideration in Brideson (No 2), the Court's powers here culminate in a power to remit for re-decision by the court below.

36 Thus, in the event of an appeal by the Secretary pursuant to s 97 against the refusal of the County Court to make a supervision order, the powers of the Court on appeal are not expressed to include a power to make the supervision order that the Court holds ought to have been made pursuant to pt 2 of the Act. Rather, if the Court exercised the specific powers enumerated, the Court would set aside the decision to refuse to make the order and remit the matter for rehearing before the County Court. Whilst the powers specifically enumerated under s 101 of the Act are expressed to be included within the general power to make any appropriate order, the omission of an express power to make supervision orders suggests that the intention of Parliament was that the jurisdiction to make supervision and detention orders remain with the County Court. This is particularly so given the decision of Parliament to expressly grant the Court a power to make an interim order upon remitter.

37 In our view, the statute is properly understood as conferring a right to appeal by way of rehearing upon the evidence before the County Court and any additional evidence admitted pursuant to the specific powers under s 100 and div 2 of pt 6 of the Act.

38 The question then arises as to what approach the Court should take upon an appeal by way of rehearing to a decision of the character here involved. It is plain that the ultimate decision by the County Court to exercise its powers under s 9(7) of the Act is a discretionary one in the sense referred to by Gleeson CJ in Fardon v Attorney-General (Qld)[24] when considering analogous legislation:

The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.[25]

39 A substantial discretion of the type to which Gleeson CJ refers involves in part the assessment of what relative weight should be given to a series of potentially relevant considerations. No particular opinion as to such weighting can be uniquely right and the judgment is thus discretionary.[26]

40 An appeal in respect of such a decision is subject to the principles stated in House v The King:

Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.'[27]

41 Furthermore, in our view the determination of the intermediate question of whether the offender poses an 'unacceptable risk' of committing a relevant offence in the absence of a supervision order is also so much a question of value judgment based on a matrix of fact and degree that this Court should not interfere with the determination of the County Court unless it is plainly wrong. The decision is one as to where the risk falls within a range of like risks. It depends upon the opinion of a judge familiar with a range of risks within which the relevant risk occurs.[28] A qualitative assessment of this kind should not be easily disturbed. This approach reflects the general principles stated in Coal and Allied that, ordinarily, if there has been no further evidence admitted and there has been no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.[29]

42 The Secretary submits that the determination as to whether there is an 'unacceptable risk' should be regarded as subject to the principles stated in House v The King. The determination of 'unacceptable risk' might be regarded as discretionary in the general sense identified by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied:

'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[30]

43 In Dwyer v Calco, the High Court made clear, however, that the nature of the appellate enquiry in cases such as the present must flow from the terms of the particular statute and not from the broad application of a general notion of discretionary judgment:

The judicial review of administrative decisions made in the exercise of a statutory power or 'discretion' attracts a body of principles which in this Court may conveniently be traced back to what was said by Latham CJ in Shrimpton v The Commonwealth. The exercise of what was called in _House v The Kin_g 'a judicial discretion' to impose a particular sentence or to make a particular order under a power conferred by family provision legislation, attracts, upon subsequent exercise of a 'general appellate power', principles somewhat akin to those developed in public law. The well-known passage in House v The King illustrates this.

Rather different is the situation where statute creates a legal norm, in this litigation that of a 'serious injury', and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision-making process of the primary judge as 'discretionary'.[31]

44 The sense in which Brooking JA used the term 'discretionary judgment' in Mobilio v Balliotis[32] reflected an awareness that the application of it does not necessarily resolve the nature of enquiry upon an appeal:

The phrase 'discretionary judgment' tends to evoke the notion of a discretionary determination to grant or withhold relief, as by granting or refusing custody of a child, or an interlocutory injunction, or an extension of time, or an order dismissing a proceeding for want of prosecution. But it is clear that the principles in House have a wider scope, as indeed that very decision shows (for it held a sentence to be a discretionary judgment).

Some will prefer to speak not only of 'discretionary judgments' but also of 'quasi-discretionary judgments' (a phrase used in New South Wales), or instead to say that House applies not only to discretionary judgments but also to judgments which sufficiently resemble them to attract the same principles. It seems to me not to matter whether this is done or instead the single term 'discretionary judgment' is used for brevity to cover all determinations which are within the scope of House, provided that the label is not allowed to obscure the question falling for determination in the particular kind of case under consideration.

In the family provision case of Singer v Berghouse,[33] Mason CJ, Deane and McHugh JJ in holding that House applied to the review of a decision on 'the jurisdictional question', laid it down that the primary judge 'was in essence making a value judgment in much the same way as a primary judge makes a sound discretionary judgment in personal injury cases when he or she assesses the quantum of damages say for pain and suffering, and for loss of amenities of life.' Accordingly, it had to be shown that the judge had made an 'entirely erroneous estimate' of what, in the circumstances, was an adequate provision for the applicant's proper maintenance.[34]

... we should treat the ultimate finding - that 'serious injury' had not been shown - as, or as akin to, a discretionary determination. By this I mean no more and no less than that the nature of the determination is such that it should be held to be subject to the principles in House v The King: I simply apply to it the convenient label 'discretionary' - or, if you will, 'quasi-discretionary' - to show that it is of such a nature as to be governed by House.[35]

46 Nevertheless, the reasons of Winneke P[36] make clear that he found it unnecessary to characterise the judge's finding on the question of serious injury as 'discretionary' in order to dispose of the appeal. It was enough to say that, in the circumstances of that case, where the judge at first instance had the advantage of seeing and hearing the appellant and other medical witnesses, this Court should not interfere with the judge's decision in the absence of demonstration of specific error, unless the Court is satisfied that it was plainly wrong.[37]

It is enough to say that the expressions here in question, 'serious long-term impairment' and 'severe long-term mental ... disturbance or disorder', each require, so far at least as the words 'serious' and 'severe' are concerned, the judge to make a qualitative assessment which cannot easily be disturbed on appeal unless error can otherwise be demonstrated. In other words I would agree that, in the absence of specific error, a finding as to 'serious injury' is not open to attack on appeal unless it is shown to have been 'plainly wrong'. On the other hand it should be remembered that the task of the judge at first instance under this section is not to exercise a discretion, in the sense of having some choice as to what course to take, but the provision requires a decision whether the proven facts satisfy one or other of the statutory descriptions. Subject to these observations, I would, with respect, agree with what Phillips JA says on this issue.[38]

I agree with Brooking JA that the ultimate task of deciding under s 93(6) on which side of the line a case falls for 'serious injury' purposes is such as to warrant our concluding that, in the absence of specific error, the decision will be set aside only if it is plainly wrong or wholly erroneous.

That expression derives (as Brooking JA has demonstrated) from cases involving appeals from the assessment of general damages for personal injury. The similarity between such cases and this is brought home, I think, by what was said by Crockett and Southwell JJ in Humphries v Poljak immediately before their Honours used the expressions which have since been so often quoted: that is, that the injury is to be 'judged by comparison with other cases in the range of possible impairments or losses.' It is a decision where the injury falls within a range of like injuries. As the High Court said in Fleming v Hutchinson:

In each case the Court must apply the test of 'seriousness' by evaluating the plaintiff's condition and such an evaluation does not depend upon legal principle. It depends upon the opinion of a judge familiar with a range of conditions within which the instant condition occurs.

That is why such a decision should be set aside only for specific error or if plainly wrong or wholly erroneous.

In consequence of this, however, Brooking JA concludes that a decision of serious injury or no should be characterised as either a 'discretionary judgment' or 'akin to a discretionary judgment' in the sense that, when appealed, it is such as to attract the principles of House v R and Australian Coal & Shale Employees' Federation v Commonwealth. With respect, I see nothing to be gained by taking that further step of characterisation in this instance, where ultimately the application of a statutory test is in issue. It seems to me, perhaps simplistically, that either that further characterisation adds nothing to what has already been said about the difficulty an appellant confronts when the decision under appeal involves a value judgment and questions of degree; or, if it does add something, then what it adds is not altogether clear and the characterisation may not be apt in every case.

In that regard two considerations in particular weigh with me. First, this is not a case of a true discretion; that is not in doubt and, while the assessment of damages, especially for pain and suffering, provides some analogy with the present case (in that both involve an individual evaluation of the facts and questions of degree), the analogy is far from perfect. Once it was decided that on appeal from an assessment of damages by judge alone error still had to be shown, the obvious question was how much error when general damages were at issue; was it enough that the appellate court would have itself awarded something different, even if not very different? (In another context MacBean v Trustees Executors and Agency Co Ltd provides an early example in Victoria of the problem, if not now the solution.) It was in rejecting mere difference of opinion on appeal as bespeaking error below that appellate courts came to emphasise the element of discretion involved in the decision-making for the purpose of identifying the restraints upon their interfering. (It is enough here to refer to the judgment of Priestley JA in Moran v McMahon where the development of this is traced.) Like considerations may well obtain here because of the similarities (the existence of a value judgment and questions of degree), but there remain differences, if only because the assessment of damages allows for a variety of answers which is not so when the question is the simpler one: Is it established that the applicant sustained 'serious injury'? That admits only of a yes or no, despite the value judgment that underlies it.[39]

49 We respectfully agree with the approach of Phillips JA. It accords with the distinction subsequently drawn by the High Court in Dwyer v Calco which we have quoted above.

50 The practical advantage that the County Court enjoys in assessing the evidence at first instance, and to which Winneke P referred, also favours this conclusion. In one of the present cases, the appeal of Ghebrat, the trial judge had the advantage of hearing two witnesses give expert evidence together in a 'hot-tub'. This epitomises the sort of situation where it must be acknowledged that her Honour enjoyed an advantage in observing this interaction, which this Court does not have.[40]

51 The question of 'unacceptable risk' involves a significantly more complex value judgment than a judgment directed simply to the question of whether an offender is likely to commit an offence if released to the community without supervision. The current statute differs materially from the Serious Sex Offenders Monitoring Act 2005 ('the Monitoring Act'), of which Callaway AP (with whom Buchanan and Coldrey JJA agreed) observed:[41]

The appeal is, in part, an appeal against an exercise of discretion. The court 'may', not 'must', make an extended supervision order. The restrictions on appellate intervention in cases such as House v R apply to that exercise of discretion. Those restrictions do not apply to the finding, by the court below, that the appellant is likely to commit a relevant offence if released in the community on completion of his sentence and not made subject to an extended supervision order. That is what might be called 'an ordinary appeal' although, having regard to the terms of s 39 and the lack of any power to receive further evidence, it is probably an appeal in the strict sense. It is our duty to determine whether the finding was flawed, but the onus is on the appellant to demonstrate error.[42]

52 In our view, the same approach should be adopted in the present case as that taken by this Court in Mobilio with respect to the assessment of whether something constitutes a 'serious injury'.[43] Unlike the legislation under consideration in Dwyer v Calco, there is no requirement in legislation in question in the present case that this Court 'shall decide for itself' whether the evidence demonstrates that a specified standard has been met.

53 In IK v Secretary to the Department of Justice,[44] Harper JA (with whom Buchanan and Hansen JJA agreed) said with respect to an appeal of the current kind:[45]

The Secretary has the burden of proving that the offender poses an unacceptable risk of committing a relevant offence; but even if that burden is discharged, the court may in its discretion make no order. On the other hand, of course, if the court does reach the required level of satisfaction, then a supervision order may be made.

The legislation confers a discretion upon the judge by whom the application is determined. That discretion, being conferred on the primary judge and not on a court of appeal, will not be interfered with on appeal unless some error of principle has occurred in its exercise. Such an error may not be identifiable in the reasons given by the judge for her or his conclusion, but that conclusion may be so clearly wrong that an error in the application of principle must have occurred.

That appears, in effect, to be the foundation upon which the first of the grounds of appeal is based. In his written submissions, the appellant contends that '[t]he Court could not be satisfied in the circumstances that the [appellant] posed an unacceptable risk of committing a relevant offence.'

Even so, it would not generally be necessary for a court hearing an appeal from the judge who granted an application of the kind made by the Secretary to examine at length the evidence upon which, at first instance, the success of the application was based. In most circumstances, it would be proper for the appeal court to limit its consideration of the evidence to the extent necessary to determine whether or not there was a basis upon which the decision of the primary judge could be justified (no matter what, were the decision its own, the appeal court would itself have decided).[46]

54 When he came to his conclusions, Harper JA stated:

The question which must now be directly confronted is whether, on the basis of this evidence, there is any error in principle in her Honour's conclusion that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order is not made; and, given that he did pose such a risk, that a supervision order should be made notwithstanding the residual discretion to decline to make it.

...

... In these circumstances, her Honour was in my opinion amply justified in concluding that she had before her acceptable, cogent evidence pointing with a high degree of probability to the conclusion that 'that there is an unacceptable risk of the [appellant] committing relevant further offences unless a supervision order is made.'

Having reached that conclusion, the residual discretion remained: her Honour might, in the exercise of that discretion, and despite her conclusion about the appellant posing an unacceptable risk, have declined to make a supervision order. But the judge's decision to eschew that course was in my opinion open to her. There is, accordingly, no basis upon which this Court can interfere. [47]

55 We respectfully agree that the principles in House v The King apply to an appeal with respect to the County Court's ultimate exercise of discretion upon an application for a supervision order. If, however, the ground of appeal is directed to a conclusion by the County Court that the appellant constituted an 'unacceptable risk', then the test to be applied is simply whether that conclusion was plainly wrong or wholly erroneous. This test flows from the nature of the statutory task and not the application of the principles relating to discretionary judgments. In substance, this was the test that Harper JA applied.

56 It is submitted on behalf of the appellant Mr Lowe that:

(a) the purpose of the Act would be facilitated by the Court of Appeal making its own assessment of the relevant facts as at the date of the appeal;

(b) the nature of the Court's powers encourage the view that it is intended to make its own assessment of the relevant risk upon the evidence before it;

(c) a supervision order is not final in the sense that a jury verdict is and therefore lends itself more readily to re-evaluation;

(d) the satisfaction of the relevant court as to the question of unacceptable risk involves a choice between one of two answers and is not to be compared with the exercise of a sentencing discretion; and

(e) the decision is akin to an evaluation of probative value as against prejudicial effect and must be carried out by the appellate court for itself.[48]

57 We are not persuaded that the main purpose of the Act supports the view that this Court should carry out its own assessment of unacceptable risk in the absence of specific error or an otherwise plainly wrong conclusion.

58 Rather, the broad nature of the factual enquiry in issue encourages the view that this Court should be reluctant to interfere with the decision of a judge who has had the benefit of hearing the oral evidence concerning a potentially complex matrix of fact.

59 This Court is granted ample powers to ensure that its decision does not proceed on a basis that has been superseded by the progress of time after the initial making of the order in issue, but this does not detract from the view that the primary hearing is intended to occur before the judge below.

60 The fact that a supervision order is not 'final' in the same sense as a jury verdict or a sentence directs attention back to the relevant statutory scheme. The Act provides for the fixing of the term of a supervision order (s 12); the expiry and renewal of supervision orders (ss 25-31); the periodic review of supervision orders (s 65); and the review of conditions of supervision orders (s 77). The scheme does not demonstrate an intention other than that the court at first instance is intended to have the primary role in the ongoing assessment of the appropriateness of a supervision order.

61 Further, whilst it is true that satisfaction of the relevant test of unacceptable risk poses a single ultimate issue, that issue falls to be determined by way of a multi-factorial assessment of when a risk falls within a particular range. As such, it is a consideration of like kind to that raised by the assessment on appeal of 'serious injury'.

62 We do not accept the first appellant's submission that the issue is akin to the assessment of the admissibility of a particular piece of evidence. Appeals against decisions not to exclude evidence pursuant to s 137 of the Evidence Act 2008 contemplate that the Court will, as was stated in McCartney:

review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence.[49]

63 On such an appeal, the factual matrix is not in dispute and the appellate court is in as good a position as the judge at first instance to determine the relevant question.[50] In contrast, the present cases require a potentially broad and multi-faceted enquiry directed to a decision in the public interest, where, as we have said, the Court should pay due regard to the advantages enjoyed by the judge at first instance.

64 Accordingly, in our view, the appeal is one by way of rehearing on the evidence before the County Court supplemented by such further evidence as is admitted on the appeal. Subject to the admission of new evidence, the principles stated in House v The King apply both to the ultimate decision as to whether to make a supervision order and as to the terms on which such an order should be made. On the other hand, the test to be applied on an appeal ground directed to the County Court's determination with respect to 'unacceptable risk' is simply whether it was plainly wrong or wholly erroneous.

Construction of the Serious Sex Offenders (Detention and Supervision) Act 2009

65 There is a long history of legislative schemes for preventative detention of offenders who are regarded as a danger to the community. In addressing the lawfulness of such a system, Gleeson CJ observed in Fardon:

Subject to the Constitution, as a general rule it is for the federal Parliament, and the legislatures of the States and Territories, to consider the protection of the safety of citizens in the light of the rights and freedoms accepted as fundamental in our society. Principles of the common law, protective of such rights and freedoms, may come into play in the application and interpretation of valid legislation.[51]

66 The legislature has chosen the way in which the criminal justice system should respond to the case of the prisoner who continues to represent a serious danger to the community upon release. Because predictions of future danger may be unreliable, it has, as a matter of policy, postponed the time for prediction until closer to the point of the prisoner's release.

67 In turn the common law presumption in favour of the liberty of the subject underpins the nature of the predictive inquiry required under s 9. The right to personal liberty is the most elementary and important of all common law rights, identified by Blackstone 'to be an absolute right vested in the individual by the immutable laws of nature' which had never been abridged by the laws of England 'without sufficient cause'.[52] The common law has continued to attach 'momentous significance' and 'supreme importance' to personal freedom.[53]

68 The right to liberty and autonomy explains why the concept of 'unacceptable risk' should be interpreted so as to limit the enjoyment of that right only to the extent that is reasonably necessary to give effect to its legislative purpose. Such an approach accords with the canon of construction that a statute which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right.[54] The role of the principle of legality in the task of construction was referred to by French CJ in Momcilovic v The Queen[55] in these terms:

It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statute be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law.

69 The primary purpose of the Act is to enhance the protection of the community by requiring eligible offenders who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.[56] The secondary purpose is to facilitate the treatment and rehabilitation of such offenders.[57] The statutory regime thus contemplates that some level of risk may remain acceptable even for offenders who have been imprisoned for the most serious of sexual offending. In Attorney-General (Qld) v Ellis, the Queensland Court of Appeal considered that the paramount consideration in making a decision under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) - which mirrors s 9 of the Act - is the adequate protection of the community.[58] The Court in Ellis emphasised that adequate protection does not mean that the prisoner can only be released on supervision if there is no risk to the community. It quoted with approval a passage from Attorney-General (Qld) v Francis[59] in which it was said that 'the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.'[60]

When may a court make a supervision order?

(1) The court may make a supervision order in respect of an eligible offender only if the court is satisfied that the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community.

(2) On hearing the application, the court may decide that it is satisfied as required by subsection (1) only if it is satisfied -

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability -

that the evidence is of sufficient weight to justify the decision.

(3) Subject to this Division, in determining whether or not the eligible offender poses an unacceptable risk as set out in subsection (1), the court must take into account -

(a) subject to section 113, any assessment report or progress report filed in court, whether by or on behalf of the Secretary or the offender; and

(b) any other report made, or evidence given, in relation to the application; and

(c) anything else the court considers appropriate.

(4) In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.

(5) For the avoidance of doubt the court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.

(6) The Secretary has the burden of proving that the offender poses an unacceptable risk of committing a relevant offence.

(7) If the court is satisfied as required by subsection (1), the court may -

(a) make a supervision order; or

(b) make no order.

71 The Act, which came into operation on 1 January 2010, is the successor to the Monitoring Act, which came into operation on 26 May 2005.

72 Section 11 of the Monitoring Act provided that a court may only make an extended supervision order:

if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence ...

73 The power under s 11 permitted interference with the liberty of a person who would otherwise be at large following completion of sentence. Cases concerned with that legislation approached the task of construction on the basis that the legislature had made provision for the fact that there would be an infringement of personal liberty by requiring satisfaction 'to a high degree of probability.' In addition the cases recognised that, where a choice of interpretations is available, ordinary principles of construction favour the interpretation which produces the least infringement of common law rights - the right to be at liberty. Hence, Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice adopted the strongest of the available meanings of the term 'likely'.[61]

74 The court will not impute to the legislature an intention to curtail such a fundamental right save to the extent that the intention is clearly manifested by unmistakable and unambiguous language that indicates that the legislature has directed its attention to the right and has consciously decided upon such curtailment.[62] An example of the displacement of that right may be found in the court's power to grant or revoke custodial and non-custodial supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. That Act presupposes a level of interference with a person's freedom or autonomy in making or varying a supervision order. Hence it was observed in NOM v Director of Public Prosecutions:[63]

The principle of legality and its particularly strong application in the context of a subject's liberty is impliedly displaced by the unmistakable language in s 39 - to the extent the displacement, if any, is necessary for the safety of the community.[64]

75 Under the Act, the court must first determine whether there is an unacceptable risk. That is an evaluative task requiring an assessment of the degree of risk and the gravity of the harm that may eventuate and whether the imposition of restrictions upon the offender's freedom is necessary to advance the purpose of the Act.

76 The threshold test of 'unacceptable risk' was considered by the High Court in Fardon[65] in the context of an attack upon the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13 of that Act is in very similar terms to s 9 of the Victorian Act and is directed to the same purpose. The question was whether certain provisions, including s 13, infringed ch 3 of the Commonwealth Constitution by vesting in the Supreme Court of Queensland functions that were incompatible with the exercise by that court of the judicial power of the Commonwealth contrary to the principles expressed in Kable v Director of Public Prosecutions (NSW).[66] The majority judgments of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ (Kirby J dissenting) concluded that the Act was not beyond the legislative power of the State of Queensland. Section 8 provided in substance that if the court was satisfied that there were reasonable grounds for believing that a prisoner was a serious danger to the community, the court could order that the prisoner's release from custody be supervised or that the prisoner be detained in custody for a further period. Section 13(2) provided that a prisoner was a serious danger to the community 'if there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner were released from custody or if the prisoner is released from custody without a supervision order'. Section 13(3) was in identical terms to s 9(2) of the Victorian Act.

77 Gleeson CJ and Callinan and Heydon JJ rejected the contention that the notion of an unacceptable risk was devoid of practical content. They referred to M v M,[67] which considered 'the magnitude of a risk that will justify a court in denying a parent access to a child'.[68] That criterion and standard was considered appropriate to the balancing of competing considerations. The primary objective of protecting the community from predatory sexual offenders by authorising involuntary detention or supervision in the interests of public safety was described by Callinan and Heydon JJ as a 'protective rather than a punitive enactment'.[69] They considered the yardstick of an unacceptable risk, established according to a high degree of probability by acceptable and cogent evidence, as one which courts historically have had regard to in many areas of the law.[70]

78 Gummow J, with whom Hayne J relevantly agreed, provided guidance as to the content of the phrase 'unacceptable risk'. He referred to a passage from the joint judgment of the court in M v M[71] where the degree of risk had been described as 'a risk of serious harm', 'an element of risk', 'an appreciable risk', 'a real possibility', 'a real risk' and 'an unacceptable risk'. The phrase 'unacceptable risk' was considered best to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.[72]

79 The caution with which such legislation should be construed is reflected in the emphatic dissenting language in Fardon of Kirby J, who said:

The categories of exception to deprivations of liberty treated as non-punitive may not be closed; but they remain exceptions. They are, and should continue to be, few, fully justifiable for reasons of history or reasons of principle developed by analogy with the historical derogations from the norm. Deprivation of liberty should continue to be seen for what it is. For the person so deprived, it will usually be the worst punishment that our legal system now inflicts. In Australia, punishment, as such, is reserved to the judiciary in a case following an established breach of the law. For that the offender 'can be punished [but] for nothing else'.[73]

Here there has been no offence; no charge; no trial. Effectively, the presumption of innocence has been removed. Instead, because of a prisoner's antecedents and criminal history, provision is made for a new form of additional punishment utilising the courts and the corrective services system in a way that stands outside the judicial process hitherto observed in Australia. ...

Imprisonment is not used as punishment in advance for crimes feared, anticipated or predicted in the future.[74]

He concluded that the Queensland provisions were not proportionate; that is, appropriate and adapted to a legitimate non-punitive objective.[75] He considered this result to involve an element of double punishment, as it constituted an increase to the punishment already judicially imposed by reference to the prisoner's earlier convictions and sentence.[76]

Does the Charter affect the construction of s 9(1), (2),(4) or (5)?

80 It is necessary then to consider the interpretive obligation under s 32 of the Charter. It provides that:

32 Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

81 The Commission submitted that the interpretive obligation required one to also have regard to s 7(2) of the Charter. It states that:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

82 The High Court and the Court of Appeal in the Momcilovic appeals made clear that s 32(1) of the Charter does not permit an interpretation of the statutory provision which overrides the intention of Parliament in the Act.[77] Both rejected the argument that the insertion into s 32(1) of the words 'consistently with their purpose' was intended to reflect the approach to s 3(1) of the Human Rights Act (UK) adopted by the House of Lords in Ghaidan v Mendoza that the court where necessary 'depart from the intention of the Parliament which enacted the legislation'.[78]

83 Interpretations of statute are to be determined by the application of existing rules of construction which include the powerful presumption that 'in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual".'[79] The Court of Appeal in Momcilovic viewed s 32(1) as embracing and affirming this presumption in emphatic terms.[80] In the High Court French CJ observed that the Charter mandates an attempt to interpret statutory provisions compatibly with human rights.[81] He did not consider there to be anything in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. French CJ said:

The sub-section limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits.[82]

84 Gummow J, with whom Hayne J agreed, also expressed the view that the reference to 'purpose' in such a provision as s 32(1) is to the legislative 'intention' revealed by consideration of the subject and scope of the legislation in accordance with principles of statutory construction and interpretation. The reasoning in Project Blue Sky Inc v Australian Broadcasting Authority[83] was said to apply a fortiori where there is a cannon of construction mandated not by the common law but by a specific provision such as s 32(1).[84] Crennan and Kiefel JJ also considered that the process referred to in s 32(1) was one of interpretation in the ordinary way. Bell J considered that the requirement of consistency with purpose in s 32(1) directs attention to the intention, objectively ascertained, of the enacting Parliament.[85]

85 Section 32(1) is not to be viewed as establishing a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute.[86] Accordingly, as was observed in Slaveski v Smith,[87] the court must discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky.[88] The statute is to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality is applied. The human rights and freedoms set out in the Charter incorporate or enhance rights and freedoms at common law. Section 32(1) thus applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.[89]

86 We approach the construction of s 9 of the Act in that way.

87 That said, the Commission's primary argument relies upon what is said to be a majority view that can be identified from the division of opinion in the High Court in Momcilovic concerning the relationship between ss 32(1) and 7(2). The division of opinion was summarised in Slaveski v Smith[90] and also in Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc.[91] In Slaveski v Smith the court said:

The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36. In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) 'cannot inform the interpretative process which s 32(1) mandates' but is engaged only when and if 'the statutory provision under consideration imposes a limit on its enjoyment'. '[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter'. In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue. It followed, as Gummow J put it, that '[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2). Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task, but his Honour held that both s 7(2) and s 32(1) were invalid.

Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed.[92]

88 Slaveski and Operation Smile have left open the question whether this Court should follow its own decision in Momcilovic or whether, as the Commission urges, it should follow the view expressed by four members of the High Court in Momcilovic that the interpretative task required by s 32 brings in the proportionality analysis under s 7(2). For reasons that follow, it is unnecessary to resolve this uncertainty. Only the Commission placed any emphasis on s 7(2) of the Charter and then only to argue that proportionality became relevant to the ambit of the discretion under s 9(7) of the Act.

The decision in Secretary, Department of Justice v AB and the finding that provisions of the Monitoring Act were not Charter-compliant

89 In order to address the question of how the interpretative obligation under the Charter might affect the construction of the provisions of the present Act, it is convenient to begin with the conclusion reached by Judge Ross (as he then was) in Secretary, Department of Justice v AB[93] that s 11 of the Monitoring Act was not Charter compliant. Section 11[94] specified as a threshold criteria that the court be satisfied 'that the offender is likely to commit a relevant offence'. That test was qualified by amendment in 2009 to the effect that an offender is 'likely to commit an offence' if 'there is a risk... that is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending'[95] and which specified that the determination that an offender is 'likely to commit an offence' may be made where the likelihood was 'less than more likely than not'.[96]

90 In his reasons for judgment, Judge Ross concluded inter alia that:

• the making of a supervision order under s 11 had profound effects on the rights to freedom of movement, privacy, freedom of association, liberty and the right not to be subject to medical treatment without his or her full free and informed consent.
• s 11 was not compatible with human rights within the meaning of s 32(1) of the Charter.
• it was appropriate to have regard to the extent to which rights might be limited by instructions and directions that may be given by the Secretary or the Parole Board under s 16, the power for which flowed automatically from the decision to make a supervision order.
• as s 11(2B) of the Monitoring Act 2005 permitted a determination that an offender was likely to commit a relevant offence on the basis of a lower threshold than more likely than not, this fortified the conclusion that the limitations on human rights were not Charter compliant.
• the range of sexual offences set out in the Schedule to the Act 'may be placed on a continuum ... in terms of their nature and gravity, from the less serious to the more serious;'
• the possession of child pornography may be regarded in relative terms as being at the lower end of the spectrum while offences such as rape, sexual penetration of a child and offences against children and other victims who are particularly vulnerable such as those with intellectual incapacity or who are dependent on the offender may be at the higher end.[97]

91 In essence Judge Ross concluded that 'the more grave the offending the lower the threshold.' As his Honour considered a choice of interpretation was available as to the point on the continuum where the determination that an offender is likely to commit a relevant offence may be made on the basis of a lower threshold than more likely than not, he was of the view that the interpretation should be favoured which least encroached on human rights. His Honour therefore concluded that the point at which the lower threshold applied was at the higher end of the continuum of relevant offences.[98]

92 In enacting the terms of ss 9(1), (2), (4), (5), (7), 15(6) and 20(2) of the Act shortly after the decision in AB, the legislature was apparently influenced, at least to some extent, by the findings made in AB that there were provisions in the repealed Act that were not compatible with human rights.

93 It must be recognised at the outset that the risk assessment under the Monitoring Act involved only the question of likelihood and was thus only a quantitative assessment. That is to be contrasted with an assessment of 'unacceptable risk' under the Act, which calls for a qualitative as well as a quantitative assessment.

94 The Commission accepted that the Charter does not govern the meaning of ss 9(1), (2), (4) or (5) of the Act. The contention that these provisions are Charter-compliant rested upon the proposition that the limitations that they impose on human rights are demonstrably justifiable and satisfy s 7(2) of the Charter. The submission also rested upon the recognition that no human rights were affected until an order was made under sub-s (7).

95 The Commission argued that s 9(4) of the Act does not preclude the Court from considering how risks might be managed by the offender if no supervision order were made. While sub-s (4) precludes the Court from taking into account the impact which a supervision order would have on the offender, the Court must weigh in the balance that the core conditions that would be automatically imposed if a supervision order were made will necessarily impinge upon the offender's freedom and autonomy. The Commission thus submits that s 9 of the Act authorises supervision orders to be made that will necessarily involve significant restrictions on the offender's rights under the Charter. For example, s 12 provides that:

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

96 The Commission further submits that if the Court exercises its discretion to impose additional conditions, either from the list of conditions in s 17(1) (where the offender should reside, treatment and rehabilitation, control over the use of alcohol or drugs) or other conditions under ss 18-20 (including conditions authorising the Adult Parole Board to give directions), the supervision order will further restrict additional human rights including the right to liberty (s 21), freedom of association (s 16(2)) and freedom from medical treatment without full and free consent (s 10(c)). The Commission therefore submits that the interpretation of s 9 engages human rights in a way that attracts the operation of s 32 of the Charter.

97 The Commission acknowledged that it is only at the point where a court actually makes a supervision order that s 9 of the Act has any effect on human rights. It accepted that the threshold was sufficiently high to justify the core conditions, such that they were proportionate to the risk to community safety. The Commission accepted that the two components of 'unacceptable risk', likelihood of occurrence and the consequences of such an event, did not require modification in order to be compatible with human rights, so long as the discretion to make an order was appropriately limited. But it was said that 'satisfaction of the threshold condition is a necessary, but not sufficient condition for such an effect'.

98 The Commission's primary submission was that s 32 of the Charter, in conjunction with s 7(2) of the Charter, requires s 9(7) to be construed as subject to the limitation that the discretion is exercised in a manner compatible with the offender's human rights. That submission depended upon acceptance that s 7(2) of the Charter informs the interpretive task under s 32. The Commission asserts that on this approach s 32 does not affect the interpretation of sub-s (1) but it does affect the width of the discretion to make a supervision order under sub-s (7). We shall return to this contention when dealing with s 9(7).

99 The appellant Mr Lowe contended that, as the value of liberty both at common law and under the Charter are central to the operation of the 'unacceptable risk' test, their relevance does not arise through the interpretive rules embodied in the principle of legality or s 32 of the Charter, but rather because those values were necessarily weighed in the balance in determining how much of a risk society would accept. There was therefore no need to resolve the constructional question arising under s 9(1) by reference to the Charter and accordingly s 32 had no work to do.

100 In the course of oral argument the Commission eschewed any suggestion that the Charter modifies the meaning of 'unacceptable risk'. It accepted that the threshold test should be construed in accordance with its ordinary meaning. That meaning would be demonstrably justified by reference to the Charter.

101 The Commission acknowledges that the phrase 'unacceptable risk' sets the threshold before a court has power to make a supervision order sufficiently high that restrictions on human rights that may arise from a supervision order may be capable of justification, particularly as the decision as to whether the offender poses such a risk is made by the court; the court must be satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight for the court to conclude that the offender poses an unacceptable risk; and the burden of proving that the offender poses that risk is on the Secretary. Although the Commission contended that sub-s (1) engages Charter rights, it recognised that the test of 'unacceptable risk' is compatible with human rights because the threshold requirement depends upon both the severity of the apprehended conduct and the likelihood that that conduct will occur.

102 We agree. No party maintained that s 32 of the Charter affected the interpretation of s 9(1). Our conclusion about the meaning of the term 'unacceptable risk' in s 9(1) is arrived at by the application of ordinary principles of statutory interpretation. Those principles require consideration of the statutory text, its context and purpose, and the common law rule which favours the interpretation which least encroaches on individual freedom. The grammatical meaning and apparent purpose of the provision is clear.

103 The evaluative task in determining an 'unacceptable risk' necessarily involves consideration of the values accorded to liberty at common law and the values ascribed to the rights in pt 2 of the Charter. Those considerations are intrinsic to the notion of an unacceptable risk, which requires those values to be balanced against the risk. Were it otherwise, any risk would be unacceptable. The threshold test in s 9(1) provides for the manner in which the court may strike a balance between protection of the community and the restriction of the offender's human rights. Although the impact on the offender of the making of an order is excluded from the test, the conceptual value of individual liberty and other human rights remain to be weighed in the balance. Though the test of unacceptable risk involves no prediction of the impact of an order on the particular individual, it necessarily involves consideration of the value which is placed on liberty and other human rights. The legislative framework for s 9 contemplates that the nature of any order that is made and its effects upon the offender, including its impingement upon his rights, are matters to be taken into account when exercising the discretion under sub-s (7). So much was not in issue on the appeal. The legislature thus seeks to achieve a balance between the offender's rights and the right of members of the public to be protected against the risk of the offender committing further sexual offences. When the degree of risk and its nature makes it unacceptable has been left to the courts to determine.

104 Before we turn to an analysis of s 9 of the Act it is convenient to make some reference to the corresponding statutory regimes in Western Australia and New South Wales and the way they have been construed. We shall later refer more extensively to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and the terms of s 13(3) which were adopted in s 9(2) of the Victorian Act.

105 Sections 9(1) and (2) of the Act are similar, although not identical to, s 7(1) and (2) of the Dangerous Sexual Offenders Act 2006 (WA). Subsection (2) of the Western Australian provision requires the Director of Public Prosecutions to satisfy the court by acceptable and cogent evidence and to a high degree of probability that there is an unacceptable risk. Notwithstanding differences in the provisions, the observations of the Western Australian Court of Appeal in Woods v Director of Public Prosecutions (WA)[99] and Italiano v State of Western Australia[100] as to the meaning of the word 'unacceptable' are instructive. Steytler P and Buss JA said in Woods:

The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made.[101]

106 The phrase 'unacceptable risk' in s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) was said in Director of Public Prosecutions (WA) v Williams, and repeated in Director of Public Prosecutions (WA) v GTR, to require the judge to consider whether:

having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.[102]

107 Section 17(1) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), which is similar in terms to s 11 of the Monitoring Act, was considered in Tillman v Attorney-General (NSW)[103] and Cornwall v Attorney-General (NSW).[104] Unlike s 9 of the Act, s 11 of the Monitoring Act and the 2006 New South Wales Act provided that the standard of proof was a high degree of probability as to the future likelihood of relevant re-offending.

108 The New South Wales legislation was amended in 2010 to adopt a scheme more similar to that set up in Victoria and Queensland for the protection of the community through the management of serious sex offenders. It was thought that there were advantages in a cross-jurisdictional body of case law being developed.[105] Like its Victorian and Queensland counterparts, the New South Wales Act now provides that the court is not required to determine the risk of a person committing a serious sexual offence is more likely than not in order to determine that the person poses an unacceptable risk.[106]

109 In State of New South Wales v Richardson (No 2),[107] Davies J adopted the reasoning in Williams[108] and GTR[109] that the word 'unacceptable' involves a balancing exercise having regard to a variety of considerations which include the nature of the risk (the commission of a serious sexual offence with serious consequences for the victim), the likelihood of the risk occurring, and the consequences for the offender if an order is made without the offender having committed the offence and with the offender having already been punished for whatever offence they have already committed. That approach has been followed in subsequent decisions of the New South Wales Supreme Court.[110] In New South Wales v Thomas (Preliminary),[111] R A Hulme J expressed a tentative view that the test for unacceptable risk is satisfied if there is a risk that the person will commit a serious sex offence 'which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made'.[112] Although some concern has been expressed that this formulation imports considerations beyond the words of the section,[113] that formulation was approved by Simpson J in New South Wales v Conway[114] and in State of New South Wales v Kas.[115]

110 The competing considerations adverted to in Fardon were identified in GTR[116] as the nature of the risk (the commission of a serious sexual offence with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[117]

111 An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[118] Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.[119]

112 The process of reaching a predictive conclusion about risk is not a novel one, there being much jurisprudence pertaining to common judicial assessments of dangerousness amongst other things.[120] However the assessment of future possibilities and risks of criminal behaviour is not easily reconcilable with fundamental legal values and traditional concepts of proof.

113 It is clear that the Act contemplates that some level of risk is acceptable in a democratic society that values the rights of an individual to freedom and privacy. As we have said, it involves a balancing of the nature of the risk and the likelihood of its occurrence against the fundamental value which society accords to individual liberty.[121] The risk must be of such an order and the consequences if it eventuates such as to require the individual's liberty to be constrained in derogation of the value which society places on individual liberty.

114 The appellant Mr Lowe contended that given the value accorded to individual liberty by society 'the risk must be a very significant one' before the risk could be characterised as 'unacceptable'. It was submitted that the Act was targeted at the 'exceptional prisoner who despite incarceration persists as such a high risk of reoffending that the risk of unsupervised release is unacceptable'. The regime, it was said, is inconsistent with the 'average' sexual offender being targeted by the 'unacceptable risk' test. Were the Act to cover the average sexual offender, it was said that a different presumptive regime might have been expected to one that requires the Secretary to obtain a detailed report and to discharge a high onus, and which invests a discretionary power in the court to refuse to make such an order even where the unacceptable risk test is satisfied.

115 The appellant Mr Ghebrat too contended that, if the prospective recidivism of an offender was no more than the average for an offender who has committed a sexual offence, then the offender cannot be an unacceptable risk for the purpose of s 9. Thus, where an offender was assessed to be a moderate risk - which is the standard or average risk of an offender for a relevant offence - were the risk to be unacceptable, the application of the legislation would no longer be exceptional but would become the norm.

116 These arguments cannot be sustained. First, there is nothing in the text that calls for such a construction. It is contrary to the intention informed by the contextual material. In the second reading speech the Minister for Corrections noted that the Bill made clear that the test for supervision does not require that the offender is 'more likely than not' to commit another sexual offence. He said that in some cases the gravity and nature of the possible offending may satisfy the judicial officer 'that even a small likelihood of reoffending is an unacceptable risk and sufficient to warrant the imposition of a detention order or supervision order'.[122] For the avoidance of doubt Parliament has also said in sub-s (5) that the court may determine that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood of that occurrence 'is less than a likelihood of more likely than not'. Further and in any event, the test is plainly intended to operate by reference to risk to the community and not by reference to standards of risk fixed by relative rates of recidivism. The Act makes no implicit assumption as to risk occasioned by 'average' offenders. Evidence as to that risk informs the task but does not determine the application of the relevant criterion.

117 To prescribe what degrees of risk may or may not be unacceptable would remove the test of its necessary flexibility. The legislature has deliberately selected a threshold test that does not specify a particular degree of risk. Rather, the test requires an assessment of the risk and a consideration of the nature and gravity of the relevant offence and the magnitude of the harm that may result having regard to the manner in which the offender had previously committed such an offence. It is the combination of these factors that will determine whether the risk of occurrence is of a sufficient order to make the risk unacceptable.

118 The test in s 9 involves the distinct elements of the standard of proof and the matter which must be established. The reasoning in the joint judgment in RJE[123] relating to s 11 of the Monitoring Act is apposite. Under s 11, the factum probandum was that the offender is likely to commit an offence if a supervision order is not made and he is in the community. The language of s 11 governing the standard of proof - a high degree of probability - was not to be read as governing the factum probandum. The standard of proof was expressed in terms of high degree of probability, whilst that which must be established was expressed as the likelihood of committing a further offence.[124] There was no warrant for treating the distinct elements of s 11 as if they were merged into one. Section 9 should be construed in the same way.

119 In the context of bail applications, public interest considerations may lead to bail being granted though the risk of the commission of an offence whilst on bail is relatively high or refused though the risk be minimal.[125] The phrase 'unacceptable risk' was found in s 4(2)(d)(i) of the Bail Act 1997. In the context of a bail application, Redlich J (as his Honour then was) in Haidy v Director of Public Prosecutions[126] considered the question of the degree of risk required to constitute an unacceptable risk. He observed that as the offender's liberty was at stake 'a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient'.[127] He said:

It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. Davies v Taylor [1974] AC 207, 212; Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 325 (Gleeson CJ). To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which having regard to all relevant circumstances makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk. R v Phung [2001] VSCA 81; McBain v Director of Public Prosecutions [2002] VSC 321.[128]

120 Such an approach is consonant with the view expressed in a number of the authorities in respect of not dissimilar legislation that the question is whether, on the evidence before it, the court is satisfied that there is a real likelihood, though not necessarily more likely than not, that the offender will commit an offence whilst on bail.[129] This approach is reflected in s 9(5) of the Act.

Section 9(5) - Whether more or less than a likelihood of more likely than not

121 The explanatory memorandum to the Serious Sex Offenders (Detention and Supervision) Bill 2009 referred to cl 9(5) in these terms:

Clause 9(5) clarifies that, for the avoidance of doubt, cl 9(1) permits a determination that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.

122 Following the decision in RJE, the legislature amended both ss 11 and 23 of the Monitoring Act to provide that the requisite degree of likelihood could be less than more likely than not. Section 11(2A) and (2B) were introduced to make clear that the risk did not have to be so high as to be more likely than not. That such a degree of risk may constitute an unacceptable risk is now reflected in s 9(5) of the Act.

123 The appellant Mr Lowe contended that notwithstanding that s 9(5) permits a finding of unacceptable risk even if the reoffending is not shown to be more likely than not, ordinarily proof would be required that an offence was more likely than not to occur. It was said that that was so because the section is permissive in its terms while sub-s (5) is cast in the language of an exception to the norm, using the terms 'may' and 'even if'. That was said to follow because s 9(5) had been introduced to reflect the view expressed in AB[130] that a threshold lower than more likely than not may apply. Only in exceptional cases will the risk be relevantly unacceptable where it is not shown that it is more likely than not. Such an approach is said to be consistent with Parliament's reintroduction, in s 9(5), of a provision in substantially identical language to s 11(2B) of the Monitoring Act and which had been interpreted in AB[131] as permitting satisfaction of the test at a lower standard than more likely than not only in the case of the greatest offending. For the following reasons we reject that submission.

124 Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult.[132] The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed.[133] The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments.[134] A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

125 However the Secretary rightly contended that it did not follow that where the assessment was that the level of risk was moderate and equated to the average sex offender risk, the circumstances could not in a particular case amount to an unacceptable risk. The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.

126 A number of parties submitted that although the observations in AB were made within the context of the statutory regime which set the threshold by reference to whether an offender was likely to commit a relevant offence, the concept of a continuum of offences remains useful for courts in considering what combination of likelihood of offending and gravity or severity of affect if offending occurs will result in a risk that is 'unacceptable' within the terms of s 9(1) of the Act. The appellant Mr Nigro submitted that his offence was to be viewed as being at the lower end of the scale of relevant offences as set out in the decision in AB. The submission was maintained that the court should take account of where a particular offence sits in the continuum because the notion of unacceptable risk involves some degree of comparison of offences within the schedule. The judge at first instance in Nigro took issue with the observations in AB that child pornography should be placed towards the lower end of the continuum of relevant offences as victims of child pornography were vulnerable members of the community. By reference to principles of sentencing and the maximum penalty for the offence, the judge at first instance had concluded that the possession of child pornography should be viewed as a graver offence.

127 Each of the appellants submitted that the court should have regard to the degree of seriousness of the consequences of such offence as the appellant is at risk of committing. That, it was said, requires some assessment of the particular way in which the offender is thought likely to commit a further offence.

128 The Commission acknowledged that it does not follow that because the gravity of possible offending must be considered, any risk of an offence of the kind that falls outside the category of 'grave' can be unacceptable only if the likelihood of the offence being committed is greater than 'more likely than not'. The Secretary submitted that it may not be necessary for the court to have regard to the gravity and consequences of prospective offending where the magnitude of the risk of re-offending is of a particularly high order. Some support for that view may also be derived from s 1(1), which provides that the main purpose of this Act is to enhance the protection of the community. The Secretary and Commission both submitted that it was not appropriate to attempt to identify a category of offences of grave character such that any offence falling outside that category should be accompanied by a likelihood of 'more likely than not'.

129 The placement of the offence within a continuum is not appropriate. To do so would involve 'striving for greater degree of definition than the subject is capable of yielding'.[135] It would detract from the flexibility which the test brings to the evaluative process. The legislature in fixing a maximum sentence has expressed its view about how seriously a particular type of offence should be regarded. There are inherent difficulties in seeking to categorise sexual offences in terms of their gravity. Every sexual offence may, depending upon the circumstances of its commission, have grave consequences for a victim. For that and other reasons the maximum penalty for each relevant offence is substantial. By inserting each relevant offence into the schedule, the legislature has expressed its intention that the offence be treated as of such a serious order that it could be the subject of a finding of unacceptable risk. The appellants' contention invites the court to encroach upon what is a function of the legislature, namely to determine the level of seriousness of each particular offence in the schedule. It also invites a mechanistic approach to the required assessment by reference to criteria not specified in the statute.

130 It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is 'unacceptable.' That gravity will depend upon the offender's likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

131 It was also submitted on behalf of Mr Nigro that a supervision order and its conditions could only relate to the relevant offence which the court is satisfied the offender poses a risk of committing and that it will not be sufficient that the conditions reasonably relate to any risk of reoffending. It is correct that the order and conditions must relate to the offence which it is assessed might be committed. However, the threshold test need not be confined to one offence. The judge may conclude that the offender poses an unacceptable risk of committing a range of relevant offences. It would not, we think, be surprising if there were cases in which, having regard to an offender's history and the risk assessment, a judge was satisfied there was an unacceptable risk in relation to a number of relevant offences.

Standard of proof of unacceptable risk and 'high degree of probability' in s 9(2)

132 Section 79 of the Act provides that the proceedings are civil in nature. Section 140(1) of the Evidence Act 2008 provides that the standard of proof is on the balance of probabilities.

133 Each appellant submitted that the threshold of unacceptable risk had to be very high; otherwise it would not be Charter-compliant. Reference was made to the standard of proof of a high degree of probability set out in s 9(2) but, with one exception, no party actually contended that the standard set out in s 9(2) related to satisfaction of unacceptable risk.

134 The appellant Mr Nigro submitted that the question of the level at which a risk ceases to be acceptable depends upon the value which is to be accorded to an individual's freedoms and rights. It was said that because the consequences of the making of an order are so draconian and impact so severely on those freedoms and rights 'the Court needs to be satisfied of its unacceptability to a very high standard'. However the submission acknowledged that it is the making of the order which impinges upon the offender's freedoms and rights. It was implicit in each submission that a standard higher than the civil standard must apply.

135 So far as we are aware, no court applying the common law has ever recognised the existence of a third standard of proof.[136] The learned authors of Cross on Evidence state 'that there are no more than two standards of proof recognised by the law'.[137] The question that thus arises is whether the text of s 9 supports the contention that the level of satisfaction required by sub-s (1) is a standard of proof other than the civil standard of proof. We accordingly turn to the construction of s 9(2).

Section 9(2) - High degree of probability as to sufficiency of the evidence to justify the decision

136 Section 9(2) provides:

(2) On hearing the application, the court may decide that it is satisfied as required by subsection (1) only if it is satisfied -

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability -

that the evidence is of sufficient weight to justify the decision.

137 The standard of proof of a high degree of probability in s 11(1) of the Monitoring Act[138] related to the degree of satisfaction that the offender was 'likely to commit a relevant offence'.[139] In RJE, Maxwell P and Weinberg JA considered the standard of proof in s 11:

In a criminal trial, the standard of proof is 'beyond reasonable doubt'; in a civil trial, the standard of proof is 'on the balance of probabilities'. The Monitoring Act imposes a standard of proof which is sui generis. It was contended for RJE that the requirement that the court be satisfied 'to a high degree of probability' should be equated with the criminal standard of proof. Counsel for the secretary, on the other hand, argued that Parliament would have used the language of 'beyond reasonable doubt' if it had been intended to impose the criminal standard of proof; and that, although the standard of proof was clearly higher than that required in a civil proceeding, it was not to be equated with the criminal standard.

We note that the discussion in Cross on Evidence of the different standards - or 'degrees' - of proof opens with the following statement by Denning J in Miller v Minister of Pensions[140] about the criminal standard:

That degree [of proof] is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt must not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.[141]

On this view, the standard of proof adopted in s 11(1) of the Monitoring Act is no less stringent than the criminal standard itself. It is unnecessary, however, to explore this matter further. Plainly enough, Parliament's use of the phrase 'high degree of probability' requires the judge before making an ESO to feel a high degree of satisfaction that the secretary has proved 'the existence of the likelihood' referred to in s 11(1). Adapting what Dixon J said in Briginshaw v Briginshaw,[142] the gravity of the consequences under the Monitoring Act which flow from an affirmative finding of likelihood means that the satisfaction which the subsection requires 'should not be produced by inexact proofs, indefinite testimony or indirect inferences'. Again:[143]

... [T]he importance and gravity of the question make it impossible to be reasonably satisfied on the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. [144]

138 Section 7(2) of the Western Australian Dangerous Sexual Offenders Act 2006 does not contain the concluding words of s 9(2) of the Act and has been consistently construed to mean that the unacceptable risk must be proved to the standard of a high degree of probability.[145] It is sometimes referred to as a standard of proof lying somewhere between the civil standard and the criminal standard.[146] In GTR Steytler P and Buss JA found that the words 'high degree of probability' in the context of s 7 a provision similar in terms to s 11 of the Monitoring Act required a third standard of proof, 'being more than the civil standard but less than the criminal standard that there is an unacceptable risk of the kind mentioned in s 7(1).'[147] However, Corboy J in State of Western Australia v West[148] regarded the standard of a high degree of probability to apply to proof of the factor or factors that make the risk unacceptable.[149]

139 The terms of ss 9(2), 17(2) and (3) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), like the Western Australian provisions, state that the court may not make the relevant order unless satisfied 'to a high degree of probability that the offender poses an unacceptable risk'. The standard of satisfaction relates to the ultimate issue, rather than the quality of the evidence supporting that issue. Like its Western Australian counterparts, those provisions have consistently been construed as requiring a standard of proof higher than the civil standard but lower than the criminal standard of proof of unacceptable risk.[150] In Cornwall,[151] the New South Wales Court of Appeal examined s 17(2) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), which permitted an extended supervision order to be made 'if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision'. The Court (Mason P, Giles and Hodgson JJA) cited Tillman,[152] which itself considered the decision of this court in TSL,[153] and went on to observe:

The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' as explained in TSL.

On that approach, when one comes to the second element of s 17(3), what is required is satisfaction to a high degree of probability (that is, beyond a mere balance of probabilities) that adequate supervision will not be provided by an extended supervision order; that is, that even if there is an extended supervision order, the offender will nevertheless still be likely to commit a further serious sex offence.[154]

140 Under this Act, the legislature has removed any designation of a standard of proof from s 9(1). Notwithstanding the change in language of sub-s 9(2) from s 11 of the Monitoring Act, it was contended by the appellant Mr Lowe that the standard of proof of a high degree of probability related to the factum probandum - that is, the unacceptable risk.

141 The question of construction that arises is whether the standard of proof in s 9(2) relates to the ultimate issue of unacceptable risk or only to the level of persuasion that the evidence must attain which will support the ultimate conclusion. Section 9(2) is drafted in a most unsatisfactory form and is not free from difficulty. It replicated s 13(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). It refers to satisfaction 'by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision'. The reference twice to 'evidence' is problematic as is the application of a standard of high degree of probability to the sufficiency of the 'weight' of the evidence. The second limb of the requirement is capable of supporting more than one construction. One construction is that the Court must be satisfied to a high degree of probability that the weight of the evidence establishes an unacceptable risk. Another is that the Court is satisfied to a high degree of probability of the evidence establishing the foundational facts forming the basis of the decision. The assessment of unacceptable risk, being evaluative and predictive, necessarily involves inferential reasoning from circumstantial evidence. The requirement that the evidence be of sufficient weight to justify the decision might be thought to direct attention to the combined probative force of the evidence as distinct from the degree of satisfaction of individual circumstances. Such weight can only be assessed by reference to the degree that it is probative of the ultimate fact in issue, namely whether an offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community.

142 On this view, because s 9(2) requires the Court to satisfy itself not simply to a high degree of probability as to the reliability of the evidence which forms the basis of the relevant inference, but as to whether it is satisfied to a high degree of probability that the evidence is of sufficient weight to justify the decision, the subsection ensures that the Court will be satisfied to a high degree of probability of the ultimate fact in issue.

143 The contrary view is that this requirement is not plainly spelled out.

144 There are a number of decisions at first instance dealing with the Queensland provision identical to s 9(2) of the Act, where the high degree of probability has been said to relate to unacceptable risk.[155] There are other decisions at first instance in Queensland which are expressed in the terms of the statute and which appear to treat the standard as applicable to the sufficiency of the evidence, not the finding of unacceptable risk;[156] or which suggest that the standard of proof is the civil standard applying the principle in Briginshaw.[157] In none of these cases was the question before the court whether the standard applied to the evidence or to the ultimate decision. In Attorney-General (Qld) v Ellis, both the majority and dissenting judgments quoted an extensive passage from the judgment at first instance in which the judge had said that she was not satisfied 'to a high degree of probability that there is an unacceptable risk'.[158] The appeal did not however concern the issue of the standard of proof and the standard applied by the judge at first instance was not the subject of any criticism. There appears otherwise to be no authoritative decision based on s 13(3) of the Queensland Act which would as a matter of comity require this court to prefer a particular construction of s 9(2).

145 There are four judgments in Fardon[159] which refer to s 13(3). In Fardon (to which we have already made reference) the issue before the High Court was whether the Queensland Act was incompatible with judicial functions as it compromised the institutional integrity and independence of the court from legislative and executive functions. In that context, Gleeson CJ said of the legislation that 'it requires the Court to adjudicate on the claim by the Executive that a prisoner is "a serious danger to the community" in accordance with the rules of evidence and "to a high degree of probability".'[160] McHugh J made a number of observations about the Queensland Act in order to demonstrate that when determining an application under that Act the Supreme Court is exercising judicial power. He said:

It has to determine whether, on application by the Attorney-General, the Court is satisfied that 'there is an unacceptable risk that the prisoner will commit a serious sexual offence' if the prisoner is released from custody (s 13(2)). That issue must be determined in accordance with the rules of evidence (s 13(3)). It is true that in form the Act does not require the Court to determine 'an actual or potential controversy as to existing rights or obligations.' But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the Court under this Act are of the same jurisprudential character as in those cases. The Court must first determine whether there is 'an unacceptable risk that the prisoner will commit a serious sexual offence'. That is a standard sufficiently precise to engage the exercise of State judicial power**.** Indeed, it would seem sufficiently precise to constitute a 'matter' that could be conferred on or invested in a court exercising federal jurisdiction. Third, if the Court finds that the Attorney-General has satisfied that standard, the Court has a discretion as to whether it should make an order under the Act and, if so, what kind of order(s 13(5)). The Court is not required or expected to make an order for continued detention in custody. The Court has three discretionary choices open to it if it finds that the Attorney-General has satisfied the 'unacceptable risk' standard. It may make a 'continuing detention order', a 'supervision order' or no order. Fourth, the Court must be satisfied of the 'unacceptable risk' standard 'to a high degree of probability' (s 13(3)(b). The Attorney-General bears the onus of proof. Fifth, the Act is not designed to punish the prisoner. It is designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment. The objects of the Act expressed in s 3 are:

(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.[161]

146 Gummow J (with whom Hayne J relevantly agreed) said:

The requirements in s 13(3) respecting the cogency of acceptable evidence and the attainment by the Supreme Court of a high degree of probability are important in considering the validity of s 13, given the nature of the ultimate issue in a s 13 application for a continuing detention order. That is the existence of an unacceptable risk of commission of a 'serious sexual offence' as defined, if the 'prisoner' as defined is released from custody.[162]

147 Callinan and Heydon JJ in their joint judgment stated, in the course of responding to a submission that the Queensland Act inflicts punishment without judicial trial, that the Act was a protective measure which contained many of the safeguards of a judicial trial. Referring in that context to s 13 they said:

These points should be made about the section which empowers the Court to make an order for the detention of a prisoner. First, the prisoner's release must be shown to present an unacceptable risk of the commission by him of a serious sexual offence. In so deciding, the Court may only act upon 'acceptable, cogent evidence' (s 13(3)(a)) and the degree of satisfaction that it must reach is one of 'a high degree of probability' (s 13(3)(b)) .....

The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law.[163]

148 Only the Secretary made any reference to the judgments in Fardon, and then only to the observations of McHugh J. It was submitted that the observations made were no more than obiter dicta and not even 'considered dicta'. It is trite to observe that this Court is bound by a decision of the full High Court, and where it is in point it is not open to this court to take the view that the matter should now be decided differently.[164] It is therefore necessary to determine whether these observations form part of a decision which is in point. The ratio decidendi of a case (that is, the principle for which the case is a binding precedent) has been described as any rule of law expressly or impliedly treated by the judge as a necessary or indispensable step in reaching the judge's conclusion, having regard to the line of reasoning adopted by the judge.[165] According to Butterworths' introductory textbook, Laying Down the Law:

The distinction between ratio and obiter, therefore, can be stated thus: pronouncements of legal principle necessary for the judge's decision on the established facts of the case are the ratio or rationes decidendi of the case, whereas pronouncements of legal principle which are not strictly necessary to the decision will be obiter dicta only.[166]

149 The observations in each of the judgments in Fardon were made in the context of an altogether different issue to the one with which we are concerned. And, as the recorded arguments in the authorised report confirm, the issues before the High Court did not concern the meaning of s 13(3) or to what matters the standard of proof applied. For the purpose of the issue there under consideration it does not appear to have been necessary to their conclusions whether the standard of satisfaction related to the ultimate issue or the facts upon which the ultimate finding was to be made. We therefore doubt that they are seriously considered obiter dicta as discussed in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[167] Nevertheless although we are not bound to give effect to those observations, we regard it as significant that McHugh, Callinan and Heydon JJ each understood s 13(3) to mean that the standard of proof of a high degree of probability applied to the finding of unacceptable risk. It is not clear whether the Chief Justice and Gummow J so viewed the provision.

150 Turning to the Act, the explanatory memorandum to the Serious Sex Offenders (Detention and Supervision) Bill 2009 referred to cl 9(2) in these terms:

Clause 9(2) sets out the standard of evidence that applies to cl 9(1). The Court must be satisfied to a high degree of probability that the evidence presented by the Secretary is of sufficient weight to justify the decision to make a supervision order. The Court must also be satisfied that the evidence presented by the Secretary is acceptable and cogent.

151 In the second reading speech the Minister for Corrections referred to the standard of a 'high degree of probability... that the evidence is of sufficient weight to justify the decision'.[168] He noted that a similar test with analogous evidentiary provisions was utilised in the Queensland detention legislation which had been upheld by the High Court in Fardon. We have noted that some of the judges in Fardon clearly understood the standard of proof in s 13(3) of the Queensland provision to apply to the ultimate question.

152 The Secretary contended that the standard of a high degree of probability specifies the degree of satisfaction as to the facts relied upon, not the ultimate judgment as to whether there was an unacceptable risk. The provision should be construed so that proof to a high degree of probability attaches to the foundational facts upon which the evaluative judgment of an unacceptable risk must rest. The standard would then relate to the quality of the evidence in order to ensure that a finding of unacceptable risk is Charter-compliant. The repeal of the Monitoring Act, which provided for the standard of proof that the Court be satisfied 'to a high degree of probability that the offender is likely to commit a relevant offence if released in the community', was relied upon as supporting that conclusion. Instead of retaining the standard of proof for the threshold test, it was submitted that the legislature has now chosen to apply the standard of 'a high degree of probability' to the sufficiency of the weight of the evidence to justify the decision of an unacceptable risk. The argument has a degree of circularity, as it assumes the matter in issue to be established.

153 It is true that the concept that facts may sometimes be required to be proved to a higher standard than the ultimate question is not a novel one. Such an approach was advocated in the different setting of Re H (Minors),[169] where Lord Nicholls said of the concept of an unacceptable risk as to whether a child is likely to suffer significant harm in the future that the threshold for denying contact to an accused parent should be low enough to protect an alleged victim from existing or future harm but the relevant facts needed to attain that threshold should be proven to a standard high enough to guarantee protection for innocent parents.

154 If the words of the statute bore only that one clear meaning we would be required to give it that meaning. But the matter of construction is not without difficulty, partly because, as we have set out above, there are conceptual and logical difficulties arising from the way in which terms have been employed. The words of Dixon CJ in Commissioner for Railways (NSW) v Agalianos[170] are here apposite that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. As we have said, the words of s 9(2) are capable of bearing more than one construction. One such meaning would attract the principle of legality - the presumption that the legislature does not intend to interfere with common law rights and freedoms except by clear and unequivocal language. As there is a constructional choice open, the principle requires that the provision be construed so as to avoid or minimise its encroachment upon rights and freedoms at common law. We must give it the meaning which best accords with ensuring that the enjoyment of the human rights in question are not defeated or diminished, so long as that meaning is consistent with both the grammatical meaning and apparent purpose of the enactment.[171]

155 The construction advanced by the Secretary cannot therefore be sustained. To conclude that it was the legislative intent that a high standard no longer applies to the factum probandum as it did under s 11 of the Monitoring Act and continues to do in the New South Wales and Western Australian equivalent legislation would in our opinion require clear and unmistakeable language. There is nothing to indicate in any contextual material that the legislature had such an intention in relation to a statutory regime which automatically restricts the offender's right to move freely in Victoria and affects his right to privacy. It is apparent from s 15 of the Act that a supervision order results in an offender being bound forthwith to attend at any place directed by the Adult Parole Board for the purpose of administering the conditions or for assessment; to report to or receive visits from the Secretary; and not leave Victoria without permission. The principle of legality and the interpretive obligation under the Charter therefore require the construction more compatible with the offender's right to freedom and autonomy when such an interpretation is open and consistent with the purpose of the statute.

156 In assessing whether there is an unacceptable risk, the court must therefore identify those matters which establish the risk and those that bear upon whether the risk is unacceptable. The judge must consider whether or not those matters have been proved by acceptable cogent evidence. The judge must be satisfied by the evidence to a high degree of probability that there is an unacceptable risk. That involves a standard well above the civil standard and approaching the criminal standard.

157 We should also address the question raised by some of the parties, as to whether the principle in Briginshaw applies to a finding of unacceptable risk. The argument was advanced on the assumption that unacceptable risk was to be proved to the civil standard as advocated by the Secretary. The appellant Mr Ghebrat submitted that it would be problematic to apply the civil standard subject to the principle in Briginshaw to the task required by sub-s (1) as sub-s (4) precluded the judge from taking account of the impact of a supervision order on the offender. If one were not permitted to have regard to the deleterious consequences of an order for the offender in relation to his liberty, the statutory regime precluded what would normally be part of the Briginshaw analysis as to the likely consequences flowing from an order.

158 By virtue of s 79 of the Act, any proceeding on an application for a supervision order, and any appeal relating to such an application, 'are civil in nature'. In the context of the civil standard being the correct standard the High Court said of the Briginshaw principle in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...[172]

159 Section 140 of the Evidence Act 2008 - and in particular sub-s (2) - reflects these notions.[173] It provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

160 As was explained in NOM v Director of Public Prosecutions,[174] s 140(2) of the Evidence Act 2008 reflects the principles in Briginshaw and is to be so understood. Section 8 of the Evidence Act 2008 provides that it does not affect the operation of the provisions of any other Act.

161 Whatever the standard of proof is under the Act, s 9(2)(a) is undoubtedly intended to reflect the Briginshaw principle. It is formulated in recognition of the gravity of the consequences flowing from the making of a supervision order. To borrow from Neat Holdings, it requires that 'clear or cogent or strict proof' is necessary to justify the making of a supervision order. Adapting the observations of Dixon J in Briginshaw, the finding 'should not be produced by inexact proofs, indefinite testimony or indirect inferences'.[175] The proofs must survive careful scrutiny and appear precise and not loose and inexact.[176]

162 The section employs a demanding standard of proof, though less than the criminal standard, offering a measure of protection to the person against whom an order is sought by requiring that the evidence be of a particular cogent quality and that the demanding standard apply to the level of satisfaction required to justify the decision. This and other provisions in the Act such as s 15(6) reflect a legislative recognition that the evidence itself should attain a sufficiently high standard of proof before there could be a justifiable interference with the human right of liberty. In NOM, in the context of a different statutory regime, the court observed of the Briginshaw principle that the fact finder must feel an actual persuasion of the occurrence or the existence of the fact in issue before it can be found. In concluding that the principle in Briginshaw applied, the court in NOM said:

In a more visceral sense, the nature of these proceedings and the gravity of the consequences flowing from findings of fact within them, also strike at the core of the appellant's liberty as a subject of the State. The significance of these matters should, quite rightly, bear upon the state of satisfaction of the judge determining such questions of fact if the principle in Briginshaw can be applied to such proceedings.[177]

163 For these reasons, the principle in Briginshaw as reflected in s 9(2)(a) is relevant in evaluating the quality and sufficiency of the evidence.

164 The present Act involves a new statutory regime which does not require the court to determine whether the offender is 'likely to commit a relevant offence', as was the test under the Monitoring Act.

165 The concept of unacceptable risk is a flexible one which is 'calibrated to the nature and degree of the risk so that it can be adapted to the particular case'.[178] The variety of considerations which bear upon unacceptable risk will include the type of sexual offence that the person may commit, the likelihood of that occurring, and the nature and gravity of harm that it may cause.

166 The inquiry should not commence by placing the potential offending within a continuum or assume that a particular level of risk must apply to a particular type of offence. To place the gravity of a particular offence within a continuum and require that a particular threshold of likelihood be applied to it is inappropriately prescriptive and removes the necessary flexibility of the test of 'unacceptable risk'. Section 9(1) does not call for the making of a choice between two thresholds of risk. Neither is it correct to approach the task on the basis that the lower threshold (the existence of which is acknowledged in s 9(5)) is applicable only in exceptional or grave cases. As a matter of construction s 9(1) does not require a court to identify a category of grave offences, and confine the operation of s 9(5) to that category. There is no threshold requirement of 'exceptional circumstances' before s 9(5) becomes relevant to the level of risk necessary to engage s 9(1).

167 The evaluative task requires the court to assess the degree of likelihood of the occurrence of the risk and the nature of the risk and its consequences. These matters must be established by cogent acceptable evidence having regard to the seriousness and gravity of the decision to be made. The court must be satisfied to a high degree of probability that the offender poses an unacceptable risk.

Section 9(4) - Court not to consider means of managing risk and likely impact of supervision order on offender for purpose of sub-s (1)

In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender.

169 No party submitted that sub-s (4) given its ordinary interpretation was incompatible with human rights.

170 In the explanatory memorandum to the Serious Sex Offenders (Detention and Supervision) Bill 2009, cl 9(4) was explained thus:

Clause 9(4) lists the matters to which the Court must not have regard in determining whether the offender poses an unacceptable risk of committing a relevant offence if a supervision order is not made and the offender is in the community. The Court must not consider the means of managing the risk or the likely impact of the supervision order on the offender in determining whether or not there is an unacceptable risk. These issues would be addressed when the Court determines what are the appropriate and proportionate conditions of the supervision order under Division 3.

171 The appellant Mr Nigro submitted that, contrary to the view of the judge at first instance, the court must consider whether the risk posed by an offender can or will be managed in any other way by having regard to measures that would otherwise be in place to manage the appellant in the community and which made the risk acceptable and removed the need for a supervision order. The appellants submitted that sub-s (4) prevents a court only from taking account how the risk might be managed or its effect of the order upon the offender. They contend that the two limbs of sub-s (4) were related concepts and should be read ejusdem generis. They prohibit only a necessarily speculative consideration of the nature and length of any order and its effect upon the offender.

172 The Secretary contended that sub-s (4) did not permit the court to take into account particular consequences for the offender in the making of the order; namely, the means that might be employed to manage the risk or the impact of the order upon the offender. The subsection had been inserted to avoid 'human rights' arguments as to the nature of the conditions that might be imposed or their likely effect on the offender being considered at the threshold stage. However it was accepted that the judge could take those considerations into account in respect of the exercise of the discretion under sub-s (7).

173 The Secretary drew attention to the fact that under the Western Australian regime the evaluative and predictive finding of unacceptable risk includes consideration of 'the serious consequences for the offender' of being exposed to further detention or onerous supervision.[179] Such observations may be found in the reasons of Wheeler JA in Director of Public Prosecutions (WA) v Williams[180] which were subsequently approved by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR[181] and to which we have referred. Senior counsel for the Secretary acknowledged however that there was no extrinsic material to support the argument that sub-s (4) was intended to remove that consideration from the evaluative task under sub-s (1).

174 The appellant Mr Lowe submitted that while the nature of the conditions which might be imposed was precluded from consideration, the extent to which the imposition of particular conditions might reduce the risk to an acceptable level was not.

175 The Secretary further submitted that the subsection has a broader reach and excludes consideration of risk management where no supervision order is in place. The phrase 'means of managing the risk' in sub-s (4) related to any means by which the offender within the community was seeking to manage the risk. It was said that, had the legislature intended to confine sub-s (4) to the means of managing risk under a supervision order, the words 'under this Act' would have been inserted after the phrase 'managing the risk'.

176 We reject that submission. In our view the prohibition embodied in sub-s (4) relates to the means of managing the risk that would be implemented were an order to be made, including the effect which any of the conditions imposed may have upon the offender. It precludes looking forward to take account of the means of managing the risk, by way of conditions made under the order, or the impact of such conditions on the offender. Subsection (1) requires an assessment of whether a risk is unacceptable where an offender is within the community without a supervision order. Such an assessment would in the absence of a clear contrary intent require the court to consider whether there are any aspects of the offender's present circumstances which bear upon the risk of reoffending. There are persuasive reasons for so concluding.

177 Section 9(3) of the Act requires the Court to take account of any assessment report for the purpose of sub-s (1) in determining whether there is an unacceptable risk. Section 109 provides that an assessment report must address, inter alia, efforts made by the offender to address the causes of his or her sexual offending including whether he or she has actively participated in any rehabilitation or treatment programs (sub-s (1)(c)) and whether or not participation in a rehabilitation or treatment program has had a positive effect on him or her (sub-s (1)(d)). Plainly, the words 'means of managing the risk' in sub-s (4) cannot relate to the efforts made by the offender to manage the risk because the court is explicitly required to take those matters into account.

178 In the absence of a clear contrary intention, to treat the prohibition as precluding the court from considering what means are presently or might be employed by the offender to manage the risk, were no order made, would be a constructional choice which did not minimise encroachment upon the rights and freedoms of the offender. In our view, more explicit language would be required had it been Parliament's intent to exclude from consideration the manner in which a potential risk can be managed when determining whether the risk is unacceptable. Further the construction which produces least incongruity and better accords with the evaluative task required by sub-s (1) is that the 'means of managing the risk' does not include the steps which the offender has taken or might take to address his risk of re-offending. Only the impact of a supervision order on the offender has been explicitly excluded as a consideration under the threshold test. To give the words the meaning advanced by the Secretary would exclude 'means' which are or might be employed by the offender to address risk as a consideration from 'unacceptable risk' but would not exclude the effect on the offender of such 'means' from consideration. Not surprisingly, no submission was advanced to support that construction. The better construction of the provision is thus that the two limbs of s 9(4) should be read together as relating to the nature of the conditions that would be imposed if an order was made and the effect they would have on the offender. Subsection (4) enables the court to take account of treatment, therapy or other rehabilitative measures which the offender might engage in and which are relevant to the evaluation of whether the risk is unacceptable.

Section 9(7) - Whether the Charter enables a judicial discretion to be construed as subject to an implied limitation

179 The premise on which the Commission's primary submission rests is that the interpretive obligation under the Charter enables a broad judicial discretion conferred by statute to be construed as subject to human rights limitations. For the reasons that follow, we have concluded that to imply a limitation in sub-s (7) would be inconsistent with the text and statutory purpose of the Act. It is therefore unnecessary that we reach a concluded view on the question of whether the interpretive obligations under the Charter could affect the construction of such a broad judicial discretion. However in deference to the extensive and careful submissions advanced by the Commission and the Secretary on this question, we will make some observations concerning their principal arguments.

180 The Secretary challenged the Commission's contention that the discretion in sub-s (7) is to be exercised in conformity with Charter obligations. She submitted that to imply a limitation on the exercise of a judicial discretion is inconsistent with the structure of the Charter in which Parliament, by s 38 of the Charter, has only imposed a duty on public authorities in relation to the exercise of their discretionary powers.

181 Reference was made to Kracke v Mental Health Review Board[182] in which Bell J concluded that s 32(1) of the Charter 'imposes a particular interpretation on provisions which confer open-ended discretions.'[183] He repeated that statement in Re Lifestyle Communities Ltd (No 3).[184] However the board or tribunal with which Bell J was concerned were public authorities within the meaning of the Charter and were thus bound by s 38(1) of the Charter to act in a way compatible with human rights.[185] In Kracke, Bell J significantly qualified the application of the principle in two respects. First, it would have no application if it was inconsistent with the statutory purpose.[186] Second, drawing upon the observations of Chamberlent J in Hein v Director (CFCS) and Carrol,[187] Bell J said that 'it is not the interpretation and compatibility with human rights of the authorising discretion that is in issue; it is the compatibility with human rights of the exercise of the discretion.'[188]

182 The Secretary contended with some force that while s 38 of the Charter makes it unlawful for a public authority to act in a manner incompatible with human rights, such an obligation is not to be applied to the exercise of a court's discretion. It was submitted that neither the Supreme nor County Court is a public authority and is not obligated to impose core conditions only if satisfied that they are reasonable limits that are demonstrably justifiable. In Slaveski v The Queen[189] an argument of the Commission was rejected that s 38(1) of the Charter applied to a trial judge who it was said acts in an administrative capacity within the meaning of s 4(1) of the Charter and thus as a public authority within the meaning of s 38(1) of the Charter in determining to grant or refuse an adjournment of the trial. Nettle and Redlich JJA in their joint judgment observed that the character of the function is to be taken from the nature of the tribunal or court in which the function is reposed, and that where it is reposed in a trial judge it is to be inferred that it is to be exercised judicially and thus that the character of the function is judicial. Plainly the exercise of the discretion under sub-s (7) is a judicial function.

183 The Commission relied upon the recognised constraint that a discretion must be exercised by the repository of a power in accordance with any applicable law. That principle was expressed in the joint judgment of Dixon, McTiernan and Fullagar JJ in Wilcox Moflin Ltd v New South Wales.[190] It was also referred to in the reasons of Brennan J in Miller v TCN Channel 9 Pty Ltd,[191] both being cases concerning s 92 of the Commonwealth Constitution. The Commission referred to Wotton v Queensland[192] in which the High Court held that where a statutory power or discretion is 'susceptible to exercise' in accordance with a Constitutional restriction on power, the provision must be interpreted so as to authorise only decisions that comply with the restriction on power. The Commission submitted that as the confinement of a statutory discretion in accordance with the above approach was emphasised by the High Court to be a result of the process of statutory interpretation, then it must also be possible to interpret a wide statutory discretion so as to avoid an unjustifiable infringement of the human right that is protected by the Charter. Where that is possible is thus a matter of interpretation. The Commission therefore submitted that s 32(1) of the Charter required such an interpretation to be adopted unless that interpretation was shown not to be consistent with the purpose of the relevant provision.

184 The Commission further drew upon the reasoning of the Canadian Supreme Court in Slaight Communications Inc v Davidson.[193] The interpretative obligation under s 32 of the Canadian Charter operates as a limitation on legislative power[194] and the powers of the adjudicator under the Canada Labour Code were all derived from statute. It was submitted that a general and imprecise discretion should be interpreted so as to not permit the infringement of Charter rights.

185 The decisions of the House of Lords in Re S (Care Order) (Implementation of Care Plan)[195] and R (Gillan) v Commissioner of Police of the Metropolis[196] provide some guidance as to the propriety of using the interpretative obligation to govern or restrict the exercise of a statutory discretion. Those decisions suggest that ordinarily there will be no warrant for using the interpretative obligation to impose restrictions upon the statutory power itself, challenges being confined to the exercise of the power.[197] Whether the principles derived from Wotton and Slaight support the conclusion that a broad judicial discretion may be subject to an implied limitation so that it may not be exercised where to do so would involve an unjustified limitation with rights is open to serious question.

186 In dealing with the proper interpretation of s 11 of the Monitoring Act, Nettle JA in RJE[198] responded to a similar submission advanced by the Commission, noting the difficulty in applying Slaight when, under the statutory regime of the Monitoring Act, the court decides whether the offender is likely to commit a relevant offence and the Secretary and the Adult Parole Board might thereafter issue directions to the offender under s 16 on the basis that the court had determined that he or she was likely to commit a relevant offence.

187 Section 32 would have no scope for operation if its application required a rearrangement of the statutory scheme and an alteration of the assignment of powers and responsibilities between distinct entities specified in the scheme. The statutory regime under the Act is not dissimilar to the Monitoring Act, as the Adult Parole Board continues to have a critical role in making decisions and giving directions in relation to the core conditions after a finding of an unacceptable risk and the making of an order.

Would an implied limitation to the exercise of the discretion under s 9(7) be consistent with the text and purpose of the Act?

188 The discretionary power must be understood as confined to the subject matter, scope and purpose of the statute.[199] Even if a broad judicial discretion were to be subject to the implied limitation, for s 32 to affect the interpretation of a statutory judicial discretion the limitation would have to be consistent with the purpose and text of the statutory provisions.

189 The primary submission of the Commission is that by necessary implication s 9(7) requires that the judicial discretionary power must be exercised having regard to the rights of the offender and the question of proportionality under s 7(2) of the Charter. Subsection (7) is to be properly interpreted as only empowering the court to make a supervision order if, in the particular circumstances pertaining to an offender, the order involves a limitation on the rights of the offender that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. It submits that the court cannot lawfully exercise its discretion to make a supervision order if it is not satisfied that the core conditions that will automatically be imposed are reasonable limits that are demonstrably justifiable in the circumstances. Assuming, without deciding, that the interpretive obligation under the Charter enables a broad judicial discretion to be construed as subject to an implied limitation, would the limitation for which the Commission contends be consistent with the text and purpose of the Act?

Conditions of supervision order

(1) A supervision order is subject to conditions imposed by the Court.

(2) The conditions are -

(a) Core conditions imposed under s 16; and

(b) Any other conditions imposed under this division.

(3) The primary purpose of the conditions is to reduce the risk of reoffending by the offender.

(4) The secondary purpose of the conditions is to provide for the reasonable concerns for the victim or victims of the offender in relation to their own safety and welfare.

(5) In order to reduce the risk of reoffending by the offenders, the conditions may promote the rehabilitation and treatment of the offender.

(6) The Court must ensure that any conditions of the supervision order (other than the core conditions) -

(a) constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purpose of the conditions; and

(b) are reasonably related to the gravity of the risk of the offender reoffending.

191 Once a supervision order has been made, s 16(1) of the Act requires all of the core conditions set out in sub-s (2) to be imposed. They are:

(2) The core conditions of a supervision order are that during the period of the order the offender must -

(a) not commit a relevant offence in Victoria or elsewhere;

(b) attend at any place as directed by the Adult Parole Board for the purpose of administering the conditions of the order;

(c) attend at any place directed by the Adult Parole Board for the purpose of making assessments required by the court, the Secretary or the Director of Public Prosecutions for the purposes of this Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist it to determine the need for, or form of, any of the conditions of the order);

(d) report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;

(e) notify the Adult Parole Board of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before the date of commencing the new or changed employment;

(f) not leave Victoria except with the permission of the Adult Parole Board granted either generally or in relation to the particular case;

(g) if the court requires an offender to reside at a residential facility, obey all reasonable instructions given by a supervision officer that are necessary to ensure the good order of the residential facility or the safety and welfare of offenders or staff or visitors to the facility;

(h) comply with any directions given by the Adult Parole Board under the emergency power in section 120.

192 Fundamental to the Commission's submission was the contention that the control of the core conditions by reference to s 32 of the Charter informed by reference to s 7(2) was not inconsistent with the purpose of the Act. The Commission argued that s 15(6) of the Act contains an express statutory recognition that rights should not be infringed in an unjustified way but sub-s (6) applies only to additional conditions. There is a gap in the protection of human rights in relation to the core conditions. The Commission thus contends that s 32 of the Charter applies to the discretion under sub-s (7) so that the core conditions are effectively made subject to the same constraints as those imposed in respect of the additional conditions by s 15(6).

193 The Commission's submission cannot be sustained. In our view such a construction is inconsistent with the text and purpose of the Act.

194 First, the court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a relevant offence.

195 Second, the court has power to refuse to make a supervision order notwithstanding satisfaction that there is an unacceptable risk.

196 Third, the court may take account of the core conditions that would be imposed and their effect on the offender in exercising the discretion. Rights will be infringed by both core and additional conditions. Relevant to the exercise of the discretion are the means by which the risk would be managed if an order were made, namely the conditions that would or could be imposed and their impact upon the offender. The legislative regime enables a court to take into account other less restrictive means of managing the risk and the likely impact of conditions on the offender before determining whether to make an order. These considerations, irrelevant for the purposes of the threshold test in sub-s (1), become relevant to the exercise of discretion in sub-s (7). At that time the impact on the offender, informed by the principle of legality, must be taken into account[200] before the discretion is exercised unfavourably to the offender. The court must consider whether the limitations on the offender's human rights are necessary to protect the community from the risk that the offender poses.

197 Fourth, the court may make an order which carries with it the core conditions, the primary purpose of which are to reduce the risk of re-offending.

198 Fifth, the core conditions may not constitute the minimum interference with the offender's human rights.

199 Sixth, ss 15(6)(a) and (b) provide that the court must ensure that any additional conditions that it would impose must constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary to ensure the purpose of the conditions and that such conditions are reasonably related to the gravity of the risk of the offender re-offending. The maxim 'expressum facit cessare tacitum'[201] thus applies, as no such requirement is expressed in relation to the core conditions and the discretionary decision to make an order. Further, s 15(6) exempts the core conditions from the considerations set out in ss 15(6)(a) and (b). In relation to core conditions the court is not directed to ensure that they constitute the minimum interference with the offender's human rights or that they are reasonably related to the gravity of the risk of the offender re-offending. That obligation is confined to the imposition of additional conditions. However that is not to say that there cannot be circumstances in which the fact that the core conditions are regarded as infringing the offender's human rights beyond the extent which is necessary to give effect to the purpose of the Act may not be viewed as relevant to the exercise of the discretion. Like the principle of legality, the Charter forms part of the body of law in Victoria which must, subject to a contrary intent, be taken into account where a discretion is to be exercised which affects Charter rights.

200 Seventh, additional conditions must relate to the risk found to exist. If they do not they will not satisfy 'the primary purpose' of the conditions (s 15(3)), will not constitute the 'minimum interference with the offender's liberty, privacy or freedom of movement' (s 15(6)(a)) and will not be 'reasonably related to the gravity of the risk of the offender reoffending' (s 15(6)(b)).[202]

201 Eighth, even though the court may make an order with the consequence that one or more core conditions do not constitute the minimum interference with the offender's human rights and do not reasonably relate to the gravity of the risk of the offender reoffending, the Adult Parole Board, which is the supervising entity in relation to core conditions 16(2)(b), (c), (e), (f) and (h), is obliged to comply with s 20(2), which is in these terms:

The Adult Parole Board should aim to ensure that any directions it gives -

(a) constitute the minimum interference with the offender's liberty, privacy or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and

(b) are reasonably related to the gravity of the risk of the offender reoffending.

202 Ninth, the obligation arising under s 20(2) applies to any directions which the court authorises the Adult Parole Board to give in relation to the operation of any condition (s 20(1)).

203 Tenth, in the absence of contrary indication, the apparent legislative intent behind the Act is that courts should decide on supervision orders because they would adopt a judicial approach to assessment of risk.[203] The appellate court's comparative familiarity with judicial discretions and their usual confines and its ability to detect error in its unreasonable exercise[204] is recognised by pt 7 of the Act, which provides for appeals to the Court of Appeal from the exercise of the discretion.

204 The primary purpose of the conditions[205] is to reduce the risk of re-offending, that purpose being consistent with the purpose of the Act specified in sub-s 1(1). Subsection 15(6) mandates that the court should ensure that additional conditions constitute the minimum interference with the offender's human rights but excepts from that obligation the core conditions. Having regard to the statutory regime of ss 9 and 15 we would reject the submission that there is to be implied within sub-s (7) the constraint for which the Commission contends. To construe s 9(7) as subject to an implied restriction so as to require the court to refrain from making an order unless the core conditions constitute the minimum interference with the offender's human rights and are demonstrably justifiable would be inconsistent with this statutory regime, which has specified the extent to which the court is obliged to ensure that its orders are Charter-compliant.

205 On 23 March 2012, a judge of the County Court made a supervision order under the Act with respect to the appellant. The period during which the order was to remain in force was three years. Attached to the order were the mandatory core conditions specified in s 16 of the Act, together with four additional conditions permitted by s 17.

206 At least one of the four additional conditions constituted a significant encroachment of the appellant's freedom of movement.[206] The additional conditions were:

(a) [The appellant] must reside each night at [a specified address], or where otherwise directed by the APB[207] (Residence) and must not move from this address without the prior written consent of the APB.

(b) [The appellant] must attend for assessment and participate in treatment, programs or activities as directed by Corrections Victoria's Sex Offender Programs or the APB.

(c) [The appellant] must not knowingly initiate or maintain person to person contact with female children under the age of 16 years in circumstances where no other person over 18 years is present unless he has the prior written consent of the APB.

(d) [The appellant] must have no contact whatsoever either directly or indirectly with the victims of his offences except with the prior written consent of the APB.

207 By Notice of Appeal, and an accompanying Written Case, dated 24 April 2012, the appellant seeks revocation of the order. He appeals on five grounds:

1. The trial judge erred in being satisfied on the evidence to the requisite standard that the appellant met the test in section 9(1) of [the Act].
2. The trial judge erred in the process of reasoning by which she concluded the appellant posed an unacceptable risk.
3. The trial judge erred in reasoning that because an 'actual child' was at risk, a lower likelihood of reoffending would satisfy the test.
4. The trial judge erred in determining the order on the basis of future, rather than present, unacceptable risk.
5. New evidence relevant to the application for a supervision order ought to be admitted.

208 The appellant, who will soon turn 80 years, was born on 21 December 1932. He is physically infirm, and his mobility is restricted as a result of the partial amputation of his left leg following a serious tractor accident in November 1981. Presently he resides with his wife in a house on 10 acres at the waterfront of Lake Charm. The property is about 1.6 kilometres from the local shop and 18 kilometres from Swan Hill. He is dependent on his wife for a range of activities.

209 Following a trial in the County Court in February and March 2004, the appellant was found guilty by a jury of 14 counts of indecent assault with aggravating circumstances on persons under the age of 16 years. The maximum penalty for that offence was ten years' imprisonment.[208] On 4 June 2004, when the appellant was aged 71 years, he was sentenced as a serious sexual offender[209] to a total effective sentence of eight years and six months imprisonment, with a non-parole period of six years and nine months.

210 It is unnecessary to recite the facts surrounding the offences in detail. Each offence took place at the appellant's residence at Lake Charm or the district of Lake Charm. There were three female victims, 'A', 'B' and 'C', who at relevant times respectively were aged 10, 8 and 10 years. The appellant, who was aged between 53 and 58 at the time of offending, was the great-uncle of A, and was a friend of the parents of B and C. The offences against A took place in 1983; and against B and C in 1990. Most of the activities the subject of the counts involved touching or rubbing the vagina of the victims (either inside or outside the clothing), although one count with respect to A, and two counts with respect to B, involved the appellant licking the vagina. One count involved the appellant placing A's hand on his exposed penis.

211 The circumstances of aggravation for each count arose from the appellant's prior convictions.[210] There were 11 convictions from seven court appearances between 1959 and 1990. Convictions in 1976 and 1990 were for indecent assaults on young females.

212 At the time of sentence the appellant was aged 71 years. He is now aged 79 years.

213 Risk assessments were carried out by a psychiatrist, Dr Danny Sullivan, on behalf of the appellant, and a clinical and forensic psychologist, Dr Sophie Reeves, on behalf of the Secretary.

214 Dr Sullivan provided two reports, dated 18 March 2012 and 21 April 2012. The first of those was provided to the primary judge, while the latter was exhibited to an affidavit filed in this Court in support of the 'new evidence' ground. In his first report, Dr Sullivan expressed the view that the appellant 'is at moderate risk of sexual reoffending'; and that if further offending were to occur, 'it would potentially involve girls of primary school age'. In his second report he explained, 'Moderate risk relates to a group of offenders whose assessed risk of future offending is broadly consistent with the overall reoffending rate within the population of interest, that is, male incarcerated sexual offenders'. (It should be noted that Dr Sullivan's explanation of 'moderate risk' was the 'new evidence' referred to in the fifth ground of appeal.) Dr Sullivan also observed that 'risk prognostication is inaccurate'; and that 'sexual offenders as a general class are at much lower risk of reoffending than most other offenders'.

215 Dr Reeves compiled a report dated 24 August 2011, together with an addendum dated 19 March 2012. She also gave evidence and was cross-examined in the County Court proceeding. In her initial report Dr Reeves said that the appellant's 'risk of engaging in future sexual offending is moderate'. She repeated in her addendum that the appellant's 'risk of sexual recidivism regarding pre-pubescent females remains at a moderate level'. In her oral evidence Dr Reeves again repeated that the risk level remained 'moderate'. When asked to comment on Dr Sullivan's report of 18 March 2012, she said, 'I think we're saying the same things'.

216 Additionally, on the appeal[211] the Secretary also relied on a report of a consultant psychiatrist, Dr Debra Wood, of Forensicare, dated 4 May 2004, which had been placed before the original sentencing judge. In particular, considerable weight was sought to be attributed to Dr Wood's opinion that the appellant was a 'lifetime risk' of reoffending, and the risk was 'unlikely to reduce with time'.

217 In the appellant's written submissions, three principal reasons were advanced in support of the contention that the appellant should not be considered an unacceptable risk:

• first, the expert evidence showed that the appellant was no more likely to reoffend than the average sexual offender;

• second, the offending was not so grave as to justify a finding of unacceptable risk if the likelihood was less than more likely than not; and

• third, consideration of the appellant's personal circumstances was bound to lead to the conclusion that he was not an unacceptable risk.

218 In oral argument, the appellant's counsel advanced six reasons why a supervision order should not be made:

• third, imprisonment has had the effect of specifically deterring him from further offences;

• fourth, due to his isolated location, the appellant will not have access to any in the risk group and, in any event, the fact of his offending is known to the local community;

• fifth, there presently are no family members in the risk group of eight to 12 years of age (his granddaughter is four years of age); and

• sixth, the Department of Human Services has an interest in the case.

219 Moreover, during oral argument two claimed specific errors made by the primary judge emerged with clarity. First, attention was drawn to the fact that the judge in her reasons seemed to accept the submission made to her by counsel for Secretary that even if she 'was to find that there was only a small likelihood of reoffending, the potential gravity in relation to the victims, and the impact of the offending on the community would be such as to justify the making of the order in this case'.[212] It was submitted that by taking into account the impact of the offending on the community the primary judge took into account an irrelevant consideration. The impact of the offending on the community, so it was argued, is not a factor that the Act contemplates as being relevant to the making of a supervision order.

220 Second, it was submitted that specific error was to be found in the judge's reasons when she said, 'I assess the nature and the gravity of the risk both to the granddaughter and also to any other female children with whom the [appellant] may come into social contact to be extremely high'.[213] It was argued that the judge had conflated two considerations, in that ordinarily it might be expected that the expression 'extremely high' relate to an assessment of the likelihood of the risk eventuating, as opposed to the nature and gravity of any eventuating risk.

221 The Secretary did not object to the reception of the 'new evidence'[214] of Dr Sullivan as to the meaning of 'moderate risk', but maintained that it was open to the primary judge notwithstanding to be satisfied that the appellant relevantly poses an unacceptable risk. It was argued that the judge made no error of principle; and specifically that there was no error in the judge finding that the risk of the appellant committing a relevant offence was to be judged on the standard of less than more likely than not. Considerable reliance was placed on the opinions expressed by Dr Wood in her 2004 report.

222 In oral argument during the Lowe hearing, the Secretary invited the Court to adopt the reasoning of Judge Ross at [226] of his judgment in AB.[215] The Secretary argued that as an actual child was at risk, this was, according to its place on the continuum, an offence of the gravest kind so that a lower threshold of likelihood than more likely than not would apply

223 We think there is substance in the appellant's submissions that the judge was wrong to find that the appellant relevantly posed an unacceptable risk. He is elderly and infirm. He is geographically isolated. He has, in practical terms, little prospect of contact with children in the identified risk group. And he has not offended for over 20 years.

224 The confluence of those factors leads to the conclusion, in our opinion, that the appellant cannot be regarded as an unacceptable risk in the manner contemplated by the Act. Thus we think that the finding of the primary judge that the appellant relevantly posed an unacceptable risk was plainly wrong.

225 In so concluding, it must be remembered that by virtue of s 9(1) of the Act the County Court may make a supervision order if satisfied that the offender poses an unacceptable risk of committing a relevant offence, and must take into account the matters set out in s 9(3). In addressing the issue of unacceptable risk before the primary judge, counsel for the Secretary drew her Honour's attention to the relevant second reading speech,[216] where the Minister said:

In some cases the gravity and nature of that possible offending and its impacts on the community and possible future victims may satisfy the judicial officer that even a small likelihood of reoffending is an unacceptable risk and is sufficient to warrant the imposition of a detention order or supervision order.

226 The court is, of course, called upon to construe the Act, not the second reading speech. In so doing, it is necessary to bear steadily in mind the purposes to be found in s 1.[217] But the question for the court must always be whether there is an unacceptable risk of committing a relevant offence. Insofar as the judge may have taken into account the impact to the community in determining whether there was an unacceptable risk of committing a relevant offence, so to do was to take into account an irrelevant consideration.

227 Further, insofar as the judge assessed the 'nature and the gravity of the risk' both to the granddaughter and also to any other female children with whom the appellant may come into social contact to be 'extremely high', it appears that she has, as the applicant submitted, indeed conflated distinct concepts. By virtue of s 9(2)(b) the judge was required be satisfied 'to a high degree of probability' that 'the evidence is of sufficient weight to justify the decision' that the offender poses an unacceptable risk of committing a relevant offence. The primary judge, however, attached an assessment of an 'extremely high' risk to the nature and gravity of the offence.

228 For these reasons we allowed the appeal and set aside the orders of the County Court.

229 On 15 March 2012, a judge of the County Court made a supervision order with respect to the appellant which was to remain in force for five years. The order had attached to it the mandatory core conditions specified in s 16 of the Act, together with six additional conditions under s 17.[218]

230 Three of the additional conditions were challenged on the appeal. They were:

7.2 [The appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him, having contact with children under the age of 16 years, except with the prior written consent of the Adult Parole Board;

7.4 [The appellant] must not join, affiliate with or engage in community activities or sporting clubs in which there are likely to be children under the age of 16 years attending or participating in the community activities or sporting clubs except with the prior written consent of the Adult Parole Board;

7.6 [The appellant] must comply with the directions of the Adult Parole Board when accessing technology that can store, produce, reproduce or transmit images.

231 The Notice of Appeal dated 11 April 2012, and Written Case, seek to agitate five grounds of appeal:

1. The learned judge erred in the formulation of the test of unacceptable risk under s 9(1) of the Act.
2. The learned judge erred in concluding that s 9(4) of the Act precluded him from taking into account measures that would be put in place to reduce the risk of the appellant's re-offending if a supervision order was not made and he was in the community.
3. The learned judge erred in failing to take into account matters relevant to the exercise of his discretion under s 9(7) of the Act.
4. The learned judge erred in imposing a supervision order for a period of five years.
5. The learned judge erred in imposing conditions 7.2, 7.4 and 7.6 on the appellant.

232 On 14 April 2010 the appellant pleaded guilty in the County Court to one count of using a carriage service to access child pornography. He was sentenced to be imprisoned for three years, to be released after serving two years of the sentence on a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth).

233 The Secretary to the Department of Justice filed an application for a supervision order on 12 December 2011, the appellant at that time being an 'eligible offender' within the meaning of s 4 of the Act.

234 There were several prior convictions in the appellant's record which were relevant. They include an assault with intent to rape, dealt with by the Children's Court in 1986, for which the appellant received a supervision order; making a false report to police and arson in the County Court in 1991, for which he was fined $250 and was released on a bond to be of good behaviour; sexual penetration with, and indecent act with or in the presence of, a child, in the County Court in 1996, for which the appellant was sentenced to a community based order for two years; and possessing child pornography in 2006, for which the Magistrates' Court imposed a wholly suspended sentence of imprisonment for six months.

235 On 15 March 2012, a judge of the County Court found that the appellant posed an unacceptable risk of committing a child pornography offence if not made subject to a supervision order.

236 The principal judge had before him several psychological and psychiatric opinions contained in a variety of reports. He relied on reports of Ms Beatrice Raymond, a psychologist; Dr Nathaniel Popp, a neuropsychologist; and Dr Danny Sullivan, to whom we have referred. The judge found that essentially there was no dispute as to the appellant's psychological profile.

237 Thus, Ms Raymond concluded that the appellant lacked coping skills; that he was motivated by a deviant sexual arousal predominantly concerned with young boys under 12; and that he operated with a large degree of impulsivity and a low tolerance for frustration. She also concluded that the appellant had below-average cognitive functioning and noted that in her opinion there was a moderate to high risk of the appellant's sexual re-offending. Ms Raymond determined that the victims of any re-offending by the appellant would most likely be any young children used in developing pornography.

238 The judge considered that Dr Popp's report was confirmatory of the matters raised in, and conclusions drawn from, Ms Raymond's report.

239 So far as Dr Sullivan's report was concerned, the judge noted his observation that the appellant was cognitively borderline (although had shown insight into his offending). Dr Sullivan indicated that the appellant had acknowledged his difficulties with literacy, and the difficulties he faced in life generally as a result of his sexual arousal by young children. In Dr Sullivan's opinion, the appellant was of moderate to high risk of future sexual offending, particularly with respect to the offences of child pornography. He concluded that there was a much higher risk of offences concerning child pornography and a much lower risk of offences involving 'contact', given the elapse of 15 years since the appellant's last contact offence.

240 A number of authorities dealing with the concept of 'unacceptable risk' were canvassed by the judge. Of relevance, the judge remarked that he did not necessarily agree with the views of Judge Ross in AB[219] concerning child pornography being on the lower end of the continuum of sexual offences.

241 Further, the judge expressed the view that he was specifically required to refrain from taking the effect of any release order into account in determining unacceptability of risk.

242 Finally, the judge refused to exercise the discretion under s 9(7)(b) not to make a supervision order.

243 In summary, the appellant contended that the offence that the appellant was at risk of committing was a child pornography offence, which is at the lower end of the continuum of relevant offences and, so far as risk to the community is concerned, is 'qualitatively less than where contact offences are involved'. It was submitted that a five year operational period for the order was unjustified. Condition 7.2, which restricted the appellant's employment, was unjustified, since it had not been found that the appellant was an unacceptable risk of committing a contact offence, and the appellant had not committed any offence in the course of employment. Further, it was submitted that condition 7.4 was not justified for the same reasons as condition 7.2 and, additionally, the terms of the order were so broad as to be uncertain. Similarly, condition 7.6, which related to access to technology, was criticised for being vague and uncertain.

244 On the hearing of the appeal the Secretary did not seek to uphold condition 7.6, but maintained that the appellant posed relevantly an unacceptable risk. However, it was submitted that the appellant's deviant sexual arousal to children is 'pervasive and enduring', and his access to child pornography was an outlet for his deviant sexual arousal (although 'contact offending' could not be ruled out). The appellant's offending was impulsive, and his risk of reoffending was added to because of his level of cognitive functioning (the appellant having an IQ of 77). It was submitted that offences of child pornography involve the exploitation of children, and that the appellant's offending was at 'the severe end of the range for such material'. The duration of the order of five years was justified, as were conditions 7.2 and 7.4.

245 In our view, although the supervision order of five years' duration was justified (with the majority of the conditions as originally fixed), the three additional conditions made under s 17 of the Act (conditions 7.2, 7.4 and 7.6) should not be permitted to stand. We turn first to condition 7.6.

246 The consequences of breaching a condition of a supervision order can be grave.[220] It is thus necessary that the terms of any condition attached to a supervision order be sufficiently clear as to be capable of ready compliance. The terms of condition 7.6 are so opaque, and in turn its intended reach so obscure, that it is not readily capable of compliance. Thus it was realistic of the Secretary to concede on the appeal that condition 7.6 should not be upheld. Condition 7.6 is unreasonable, and should be set aside.

247 By condition 7.2 the appellant must not, without the consent of the Adult Parole Board, 'obtain paid or unpaid employment, or undertake voluntary work which involves him, having contact with children under the age of 16 years'; and by condition 7.4 he must not, without the consent of the Adult Parole Board, 'join, affiliate with or engage in community activities or sporting clubs in which there are likely to be children under the age of 16 years'. In our opinion, each of these conditions is, in the circumstances of this case, unreasonable and an unjustifiable encroachment on the appellant's human rights. It has not been found that the appellant is an unacceptable risk of committing a contact offence, the assessment of unacceptable risk being restricted to offences of child pornography. Moreover, it has not been shown that there is any connection between his employment (and possible contact with children under 16) and the offences he is said to be an unacceptable risk of committing. Nor has a connection been shown between his attending or participating in community activities or sporting clubs where there may be children under 16.

248 Thus we are of the opinion that conditions 7.2 and 7.4, which restrict the appellant's employment and engagement with community activities or sporting clubs, to be unreasonable. We would add that the terms of condition 7.4 were unacceptably wide, and so broad as to be uncertain. It can be tested this way. To 'affiliate with ... sporting clubs' may simply mean to join. Taken at face value, condition 7.4 might be read as preventing the appellant from holding membership of a football club, and attending football matches at weekends where there will likely be children under 16, without the prior written consent of the Adult Parole Board. In circumstances where he has not been assessed as being an unacceptable risk of committing a contact offence, a condition expressed in the terms of 7.4 plainly is unreasonable.

249 For these reasons, we would allow the appeal and set aside conditions 7.2, 7.4 and 7.6. In all other respects we would confirm the orders appealed from.

250 On 11 December 2011, a judge made a supervision order against the appellant under s 9 of the Act. The order was to remain in force for three years. It had attached to it the core conditions required by s 16, and twelve additional conditions under s 17 of the Act.

251 Three of the additional conditions under s 17 are the subject of distinct challenge:

6.2 [The appellant] must be present at the residence[221] between 11.00pm and 6.00am unless otherwise directed by the Adult Parole Board;

6.3 [The appellant] must abstain from the consumption of alcohol except with the prior written consent of the Adult Parole Board;

6.6 Unless otherwise directed by the Adult Parole Board, [the appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him attending, contacting or entering into people's homes and/or attending or entering licensed venues.

252 By Notice of Appeal dated 2 April 2012, the appellant relies on the following grounds:

1. Finding that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order was not made and the appellant was in the community; and

ii. Making a supervision order; and

iii. Making a supervision order of three years' duration.

1. The learned trial judge erred, in determining that the appellant had a significant and ongoing issue with alcohol use.
2. The learned trial judge erred by giving inappropriate weight to the fact that the appellant was on methadone.
3. The learned trial judge erred by making the following conditions part of the supervision order:
   1. [The appellant] must be present at the 'Residence' between 11pm and 6am unless otherwise directed by the Adult Parole Board;
   2. [The appellant] must abstain from the consumption of alcohol except with the prior written consent of the Adult Parole Board;
   3. Unless otherwise directed by the Adult Parole Board, [the appellant] must not obtain paid or unpaid employment, or undertake voluntary work which involves him attending, contacting or entering into people's homes and/or attending or entering licensed venues.

253 Shortly prior to the hearing of the appeal, the appellant gave notice of his intention to seek to add a fifth ground:

1. The learned trial judge erred in holding that the standard to be applied pursuant to s 9(2)(b) of [the Act] when determining applications was that held in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

254 We would grant leave to add ground 5 but, for reasons we will shortly discuss, reject it.

255 The appellant, who is now aged 29 years, is an 'eligible offender' under s 4 of the Act since he was convicted in 2003 of three counts of rape relating to two separate incidents.

256 Of the three counts, two related to the digital penetration of a female victim. The incident when this occurred took place in the early hours of the morning of 22 December 2001.

257 Following being charged over this incident, the appellant was released on bail. Whilst on bail, on 24 February 2002 he committed the third count of rape. The third count involved penile penetration of a second victim in the early hours of the morning.

258 At the time of offending the appellant was 18 years of age, having been born on 21 April 1983. Following a plea in the County Court, on 1 March 2003 the appellant was sentenced to a total effective sentence of seven years three months' imprisonment with a non-parole period of three and a half years on three counts of rape and one count of robbery.

259 On 15 May 2006, the appellant was released on parole. That parole was due to expire on 21 November 2009. On 11 March 2009, however, he was remanded in custody for offences of armed robbery and unlawful assault alleged to have been committed in August 2008.

260 Following a trial at which he was convicted by a jury, on 17 March 2011 a judge of the County Court sentenced the appellant to be imprisoned for those offences for three years, with a non-parole period of two years. Pre-sentence detention of 678 days was declared.

261 On 24 May 2011, another judge of the County Court sentenced the appellant for offences of trafficking heroin and common law assault to a total effective sentence of two months imprisonment, with 65 days being declared by way of pre-sentence detention.

262 The appellant appealed the March 2011 convictions, and on 12 October 2011 the Court of Appeal quashed the convictions and sentence an ordered a retrial.[222]

263 By order of the Chief Judge, on 26 October 2011 the appellant was released on bail pending the re-trial.

264 A notice of discontinuance was filed on 1 February 2012 by the Director of Public Prosecutions.

265 It is to be noted that despite further alleged offending committed whilst on parole, the appellant's parole was not cancelled (although none of the offences allegedly committed while on parole consisted of sexual offences).

266 While the appellant was in custody following his arrest in March 2009, the Secretary to the Department of Justice made an application that the appellant be subjected to an Interim Extended Supervision Order or Extended Supervision Order under the Monitoring Act.

267 On 20 November 2009, Judge Sexton refused to make an Interim Extended Supervision Order on the basis that the making of the order was not justified or in the public interest. In doing so, she relied upon a report prepared by forensic psychologist Dr Karen Owen, dated 24 August 2009. Dr Owen opined that:

• there is no established progression of offending or extensive history of sexual offences;
• the relevant offences were committed when the appellant was aged 18 years, and he has undergone developmental changes and has had significant psychological intervention;
• the offences occurred immediately following a period of war experienced in another county for which the appellant was diagnosed with post-traumatic stress disorder; and
• the general and violent offending of the appellant causes overestimation of his sexual re-offence risk on the _Static-9_9.

268 In Dr Owen's opinion, the appellant was at moderate to high risk of committing a sexual offence. Having considered Dr Owen's report, Judge Sexton said that she did not believe the appellant 'likely to be a real and ongoing risk of relevant offending.'

269 Before the appellant was released on bail in October 2011, however, the Secretary obtained additional reports from Dr Michael Davis, dated 3 August 2011, and Dr Owen, dated 14 January 2010.[223] The Secretary contended that imposing a supervision order on the appellant was appropriate pursuant to the Act.

270 Following a three day hearing in the County Court before the primary judge, on 1 December 2011 the judge ordered that the appellant be made the subject of a supervision order commencing on 1 December 2011 and remaining in force for three years. A date of two and half years from the date of the supervision order was fixed as being the latest date for the first review of that order. The judge also imposed the core conditions required by s 16 of the Act, and two sets of additional conditions.

271 The primary judge found that the appellant posed an unacceptable risk of committing a relevant offence if in the community and not made subject to a supervision order. In so doing, she relied upon the reports prepared by Dr Owen, Dr Davis, and Mr Cummins. The judge had regard to the appellant's drug use, alcohol use, background, and his own sexual abuse as part of a 'significant number of ongoing issues' related to the appellant's risk of committing a relevant offence.

272 Dr Davis had concluded that the appellant was a 'moderate to high' risk of committing a relevant offence. Similarly, Dr Owen's finding was that the appellant was as a 'moderate to high' risk of committing a relevant offence. Mr Cummins' opinion was that the appellant was a 'moderate' risk of committing a relevant offence.

273 Both Mr Cummins and Dr Davis agreed the appellant required ongoing treatment in order to mitigate his risk of committing a relevant offence in the future; and both agreed that two years was an appropriate period with a review after eighteen months.

274 In opposing the making of the order, the appellant's counsel submitted that while there was a risk of the appellant committing a relevant offence in the future, it was not an unacceptable risk as defined and required by the Act. He submitted that the appellant was remorseful for his sexual offending and had not committed any other sexual offences; and that since 14 December 2009 the appellant had not provided any positive drug analysis screens. Counsel acknowledged, however, that for a significant period since March 2009 - until 26 October 2011 - the appellant had been in custody.

275 Counsel for the Secretary relied on a significant volume of material which, he submitted, supported his submission that an order should be made, the appellant being an unacceptable risk of committing a relevant offence. In particular, he referred to the remarks of the judge sentencing the appellant on 24 May 2011 for trafficking heroin and unlawful assault, who noted that the appellant had relapsed into heroin use.

276 Ms Jenny Hosking, of the Sex Offender Management Branch within Corrections Victoria, gave evidence in support of the curfew sought by the Secretary. She noted that the appellant's offences occurred in the context of attending nightclubs late at night. Since this was a 'high-risk time', a curfew would reduce risk of harm to the community. Ms Hosking was content with a curfew proposal of 11.00pm to 6.00am.

277 In deciding to make the supervision order sought, the judge took into account that Mr Cummins and Dr Davis considered that their conclusions were 'very, very close'. They had agreed that it was probably alcohol that triggered the appellant's previous sexual offending in 2003; and they also agreed the appellant's alcohol and drug use remained an ongoing issue (although Mr Cummins considered alcohol was of less relevance based on the history of recent abstinence provided to him by the appellant). The judge noted that Dr Davis concluded the appellant was addicted to opiates, and Mr Cummins agreed the appellant was going to be an opiate addict for a considerable period.[224] Finally, Mr Cummins stated it was appropriate that the appellant receive treatment and be monitored; while Dr Davis agreed that whilst the appellant needed an opportunity to prove himself in the community, he also required structured supports.

278 The original four grounds of appeal attacked the finding that the appellant was an unacceptable risk of committing a relevant offence if a supervision order was not made, and hence the making of the order. Further, the length of the order was criticised,[225] as were the conditions relating to curfew, alcohol consumption and conditions of employment. It was claimed that the judge erred in finding that the appellant had 'significant and ongoing issue with alcohol abuse', and that she gave inappropriate weight to the fact that the appellant was on methadone.

279 In support of those grounds the appellant's counsel pointed out that the appellant was 18 years of age when he committed the relevant offences, but was now 28. He had not been convicted of any sexual offences since being released from custody, and those of which he had been convicted were of a much lower order of seriousness than the rapes. Moreover, so it was submitted, the appellant had completed sex offenders' and anger management programs in prison, and had undergone drug and alcohol treatment. It was argued that the appellant had demonstrated insight into his offending, together with victim empathy and remorse. He was no longer abusing alcohol, was participating in a methadone program and had some history of employment while on parole. The expert opinions, it was submitted, found no sexual deviant risk factors, or that the appellant was suffering from any specific sexual problem. Dr Owen found that there is 'no lengthy established pattern of sexual offending; and Dr Davis found that he is not a high risk offender.

280 The Secretary's counsel submitted that the finding that the appellant was an unacceptable risk was open on the evidence. It was pointed out that the two incidents involving rape were a mere 18 days apart (the second occurring whilst the appellant was on bail), and occurred in the early hours of the morning in the vicinity of nightclubs in South Yarra. The judge had referred to a 'significant number of ongoing issues', alcohol being one. She had not, it was submitted, singled out any particular issue, but rather it was the sum of them that was important. Rather than methadone treatment, it was the appellant's opioid dependence that was important. Given the time at which the offences had been committed, the curfew, it was submitted, was proper. Further, it was submitted that the alcohol condition was not objected to by the appellant's counsel, and was in any event appropriate given the connection between the appellant's alcohol use and the offences. The employment conditions were appropriate since they addressed the appellant's ability to be in 'opportunistic situations with strangers'.

281 We can detect no error in any of the primary judge's findings with respect to grounds 1, 2 and 3. These grounds impugn the finding that the appellant posed an unacceptable risk; the making of the supervision order; the duration of the order; and the judge's approach to the appellant's alcohol and methadone use.

282 Approaching the issue of unacceptable risk in the manner discussed earlier in these reasons, in our opinion the judge was entitled to find having regard to the continued existence of a number of risk factors that there was a high degree of probability that the appellant posed an unacceptable risk of committing a relevant offence if a supervision order was not made and the appellant was in the community. We think it to be highly significant that the two incidents of rape were only 18 days apart (the second whilst the appellant was on bail), in the early hours, close to nightclubs, and in the context of considerable consumption of alcohol.

283 Moreover, we think that the making of the supervision order was justified by the opinion evidence that was before the court. Both Dr Owen and Dr Davis considered that the appellant posed a moderate to high risk of committing a relevant offence, while Mr Cummins considered the risk to be moderate (that is, no more than the average offender). The preponderance of opinion was that the appellant required ongoing treatment in order to mitigate his risk of committing a relevant offence in the future, and generally it was agreed that two years was an appropriate period with a review after eighteen months.

284 Although it is contended by the appellant that the judge had determined that the appellant was an unacceptable risk because he had an ongoing issue with alcohol abuse, we think it is more correct to say that the judge determined that the appellant had a 'significant number of ongoing issues', alcohol abuse being one. And although it might be true to say that the appellant had not been shown to have abused alcohol since being granted parole, and that he had demonstrated a capacity to remain abstinent for considerable periods, it is also accurate to observe - as Dr Owen did in her first report - that the appellant has shown a capacity for a 'rapid return to his previous addiction without apparent significant precursors other than ongoing psychological issues'. The part played by the abuse of alcohol in the commission of the rapes, and the appellant's history of alcohol abuse, is a relevant factor to be taken into account in the constellation of factors relevant to the determination of unacceptable risk. In our view the primary judge did not err in regarding it as such.

285 Further, we think that the primary judge was entitled to take into account the appellant's opioid abuse as a relevant factor in determining whether the appellant posed an unacceptable risk. Although it might legitimately be argued that the appellant's adherence to a methadone program reduced his risk of committing a relevant offence whilst he participated in it, the judge was entitled to regard the underlying opiate dependence as one of a number of relevant factors in determining whether the appellant relevantly posed an unacceptable risk. It seems to us that, on a fair reading of the judge's reasons, it was the appellant's opiate dependence, rather than his participation in a methadone programme, that the judge regarded as relevant. She was entitled to do so.

286 Before discussing ground 4 - on which we think the appellant should enjoy partial success - it is convenient to discuss proposed ground 5. We would grant the appellant leave to add this ground of appeal.

287 Ground 5 asserts that the judge erred in holding that the standard to be applied pursuant to s 9(2)(b) of the Act is that held in Briginshaw.[226] As we have stated, in our analysis of s 9(2)(a), those matters which are relied upon to establish the risk to be unacceptable must be proved by acceptable cogent evidence. That requirement is intended to reflect similar notions to those found in Briginshaw and s 140(2) of the Evidence Act 2008. That the risk is unacceptable must be proved to a high degree of probability.

288 The appellant contends that the judge erred in stating that the standard was that in Briginshaw. As we have said, the principle in Briginshaw does not prescribe a standard. That said and whatever her Honour intended by that observation, we reject the contention that her Honour applied an incorrect standard. The judge made very clear in comprehensive reasons that the standard she was required to and did apply was a high degree of probability. The judge referred a number of times to the standard of satisfaction set out in s 9(2).[227] She also referred to some of the judgments of the High Court in Fardon to which we have made reference. She quoted passages from the decisions of the Western Australian Court of Appeal in Williams[228] and GTR[229] in which reference is made to the observations of in Fardon that the Queensland legislature had adopted an appropriate 'criterion and standard.'[230] Finally her Honour correctly summarised the test that she intended to apply as follows:

Therefore the test may be stated as being whether the Secretary has satisfied the court to a high degree of probability on acceptable and cogent evidence that the offender (AG) poses an unacceptable risk of committing a relevant offence if released and not on a supervision order, without regard to the condition that may be imposed, or other means of managing the risk, nor the impact of a supervision order on the offender. Satisfaction as to the unacceptability of that risk may even be reached if the likelihood of committing a relevant offence is less than more likely than not.[231]

289 For reasons which we will shortly explain, the criticisms of conditions 6.2 (curfew) and 6.3 (alcohol consumption) of the supervision order should not be upheld. Condition 6.6 (employment and entry to premises) should, however, be set aside.

290 Given that the rape offences occurred in the early hours of the morning, in our opinion a condition which imposes a limited curfew between 11.00pm and 6.00am - as condition 6.2 does - is a not unreasonable way of mitigating the risk of the appellant committing like offences. The attack on condition 6.2 is without substance.

291 Further, given the connection between the appellant's alcohol consumption and the rapes, a condition such as 6.3 - which seeks to limit the appellant's alcohol consumption - is a reasonable manner of endeavouring to mitigate the risk of the commission of relevant offences related to alcohol use. Condition 6.3 is not unreasonably wide, in that it does not prohibit alcohol consumption absolutely, but rather imposes limits on its consumption. The appellant may still consume alcohol with the prior written consent of the Adult Parole Board. Additionally, that this condition should not be regarded as unreasonable might be gauged from the fact that the appellant's counsel made no objection to it before the primary judge. Criticism of this condition should be rejected.

292 We take a different view, however, with respect to condition 6.6, which provides that the appellant 'must not obtain paid or unpaid employment, or undertake voluntary work, which involves him attending, contacting or entering into people's homes and/or attending or entering licensed venues' unless directed by the Adult Parole Board. This condition is, we think, unreasonably wide. The rape offences were not committed in the context of any employment (paid or unpaid) or in people's homes. And although the rape offences were committed in the vicinity of licensed premises, there was no apparent connection between his entry to licensed premises and the rapes. Thus, in our opinion, condition 6.6 is not a reasonable measure to ameliorate the risk of relevant offending. It is far too wide and is an unjustifiable encroachment on the appellant's freedom of movement.[232] This condition should be set aside.

293 For these reasons, we would allow the appeal in part and set aside condition 6.6 of the supervision order. In all other respects the orders of the County Court should be confirmed.

[1] Ground 2(a) in the appeal of Lowe; ground 1 in the appeal of Ghebrat; ground 2(a) in the appeal of Nigro.

[2] [1938] HCA 34; (1938) 60 CLR 336.

[3] See s 40 of the Charter.

[5] [1936] HCA 40; (1936) 55 CLR 499.

[7] Section 89 provides that the Court may take into account the co-operation of an offender in obtaining assessment and progress reports including a report obtained under s 84(1).

[8] Section 109 provides:

(1) An assessment report must address the following matters in relation to the offender -

(a) whether or not the offender has a propensity to commit relevant offences in the future;

(b) the pattern or progression to date of sexual offending behaviour on the part of the offender and an indication of the nature of any likely future sexual offending behaviour on his or her part;

(c) efforts made to date by the offender to address the causes of his or her sexual offending behaviour, including whether he or she has actively participated in any rehabilitation or treatment programs;

(d) if the offender has participated in any rehabilitation or treatment programs, whether or not this participation has had a positive effect on him or her;

(e) relevant background of the offender, including developmental and social factors and other offending behaviour;

(f) factors that might increase or decrease any identified risks;

(g) if an additional assessment of the offender has been obtained under section 108, the results of that assessment;

(a) the medical expert's assessment of the risk that the offender will commit another relevant offence if released in the community and not made subject to a detention order or supervision order; and

(3) In stating an assessment and the reasons for it under subsection (2), the medical expert may have regard to any additional assessment obtained under section 108 in respect of the offender.

[11] Section 101:

(1) On an appeal under this Division, the Court of Appeal may make any order the Court considers appropriate including an order to -

(b) revoke the supervision order or the renewed supervision order; or

(c) revoke the detention order or renewed detention order; or

(d) revoke the interim order or extended interim order; or

(e) if the relevant decision was to vary or add a condition to a supervision order, revoke the variation or revoke or vary the condition; or

(f) if the decision was to revoke a supervision order or detention order or an interim order, make an order reviving the order; or

(g) if the decision was to revoke a supervision order and make a detention order, revoke the detention order and restore the supervision order; or

(h) set aside the decision and remit the matter to the court which made that decision, with or without any directions.

(2) If the Court of Appeal remits a matter to a court under subsection (1)(h), that court may make or renew a supervision order or detention order or make or extend an interim order in respect of the offender even if -

(a) the offender is not then an eligible offender because he or she is no longer serving a custodial sentence, except where -

(i) the relevant conviction has been set aside on appeal; or

(ii) his or her sentence in respect of that offence is altered so that he or she would not have been an eligible offender had the amended sentence been the original sentence; or

(b) the order to be renewed or extended has expired -

(3) A direction under subsection (1)(h) may include directions as to whether or not the court to which the matter is remitted should be constituted by the judge who made the decision appealed from.

[12] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 ('Dwyer v Calco'), 128 [2]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 124 [20].

[13] [2008] HCA 13; (2008) 234 CLR 124.

[14] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 ('Sperway'), 619-622, cited in Dwyer v Calco, [2008] HCA 13; (2008) 234 CLR 124, 128 [2]; see also Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297-298 (Glass JA).

[15] Dwyer v Calco [2008] HCA 13; (2008) 234 CLR 124, 128 [2].

[16] [2000] HCA 29; (2000) 203 CLR 1, 40-41 (citations omitted).

[17] See also Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38, 42 [7].

[18] Dwyer v Calco, 133 [22]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 124-5 [20]-[22].

[19] [2000] HCA 40; (2000) 203 CLR 172.

[20] Ibid 180-1 [23] (emphasis added; citations omitted).

[21] [2000] HCA 47; (2000) 203 CLR 194 ('Coal v Allied')

[22] Ibid 203-4 [12]-[14] (citations omitted; emphasis added).

[23] [1990] HCA 36; (1990) 170 CLR 267 ('Brideson (No 2)'), 272 discussed in Coal and Allied [2000] HCA 47; (2000) 203 CLR 194, 204 [15]-[16].

[24] [2004] HCA 46; (2004) 223 CLR 575 ('Fardon').

[26] NOM v DPP [2012] VSCA 198, [47] ('NOM').

[27] Coal and Allied [2000] HCA 47; (2000) 203 CLR 194, 205 [21] (citations omitted), citing House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. See also NOM [2012] VSCA 198, [41]-[48] and Italiano v The State of Western Australia [2009] WASCA 116, [4]-[6].

[28] Cf Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211 applied by Phillips JA in Mobilio v Balliotis [1998] 3 VR 833, 858.

[29] Coal and Allied [2000] HCA 47; (2000) 203 CLR 194, 203-4 [12]-[14]; see [33] above.

[30] [2000] HCA 47; (2000) 203 CLR 194, 204-5 [19] (citations omitted; emphasis added).

[31] Dwyer v Calco, [2008] HCA 13; (2008) 234 CLR 124, 138-9 [39]-[40] (citations omitted; emphasis added).

[32] [1998] 3 VR 833 ('Mobilio').

[33] [1994] HCA 40; (1994) 181 CLR 201, 211-2.

[34] Ibid 839 (Ormiston JA 853-4 and Phillips JA 858-9, with whom Charles JA 860 agreed, preferred to use the term discretionary judgment in a narrower sense).

[35] Mobilio [1998] 3 VR 833, 842 (citations omitted).

[40] See also the discussion by Campbell JA in R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, 474-5 [74].

[41] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 118 [17].

[42] Section 11 of the Monitoring Act provided:

(1) A 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 or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

(2) The Secretary has the onus of proving the existence of the likelihood referred to in sub-section (1).

(3) In determining whether the offender is likely to commit a relevant offence in the circumstances described in sub-section (1), the court must, subject to sub-section (5), have regard to -

(a) any assessment report filed in court, whether by or on behalf of the Secretary or the offender; and

(b) any other report made, or evidence given, by a medical expert -

and may have regard to anything else that it considers appropriate.

Section 11 was further considered in RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526.

[44] [2012] VSCA 12.

[45] [2012] VSCA 12, [30]-[33].

[46] Ibid [30]-[33] (citations omitted).

[48] McCartney v The Queen [2012] VSCA 268, [32]-[45] ('McCartney').

[51] [2004] HCA 46; (2004) 223 CLR 575, 590 [14].

[52] See Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, 292 (Mason and Brennan JJ).

[53] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, 76-7 [86]-[88] (Black CJ, Sundberg and Weinberg JJ).

[54] In re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 523 (Brennan J).

[55] (2011) 245 CLR 1, 46 [43] ('Momcilovic').

[58] Attorney-General for the State of Queensland v Ellis [2012] QCA 182 ('Ellis').

[59] [2006] QCA 324; [2007] 1 Qd R 396 ('Francis').

[60] Ellis [2012] QCA 182, [21]; see Francis [2006] QCA 324; [2007] 1 Qd R 396, 405 [39].

[61] [2008] VSCA 265; (2008) 21 VR 526, 537 [37] ('RJE').

[62] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 492 [30] (Gleeson CJ).

[63] [2012] VSCA 198.

[65] [2004] HCA 46; (2004) 223 CLR 575.

[66] [1996] HCA 24; (1996) 189 CLR 51.

[67] [1988] HCA 68; (1988) 166 CLR 69.

[68] Fardon [2004] HCA 46; (2004) 223 CLR 575, 593 [22] (Gleeson CJ; 657 [225] Callinan and Heydon JJ).

[71] [1988] HCA 68; (1998) 166 CLR 69.

[77] R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 437 [74]; Momcilovic v The Queen (2011) 245 CLR 1.

[78] [2004] UKHL 30; [2004] 3 All ER 411 (Lord Nicholls).

[79] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 492 (Gleeson CJ).

[80] [2010] VSCA 50; (2010) 25 VR 436, 465 [104].

[81] Momcilovic v The Queen (2011) 245 CLR 1, 50.

[83] [1998] HCA 28; (1998) 194 CLR 355.

[86] R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 459 [82].

[87] (2012) 34 VR 206, 214 [20] (Warren CJ, Nettle and Redlich JJA).

[88] [1998] HCA 28; (1998) 194 CLR 355.

[91] [2012] VSCA 91, [29]-[30] (Warren CJ and Cavanough AJA).

[93] [2009] VCC 1132 ('AB').

[97] [2009] VCC 1132, [226].

[99] [2008] WASCA 188; (2008) 38 WAR 217; (2008) 190 A Crim R 356.

[100] [2009] WASCA 116.

[101] Woods v DPP (WA) [2008] WASCA 188; (2008) 38 WAR 217, 241 [86].

[102] DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, 312 [63] (Wheeler JA); DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, 315 [26] (Steytler P and Buss JA).

[103] [2007] NSWCA 327; (2007) 70 NSWLR 448; 178 A Crim R 133 ('Tillman').

[104] [2007] NSWCA 374 ('Cornwall').

[105] The State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220, 227-8 [26] (Davies J).

[106] Section 9(2A) Crimes (Serious Sex Offenders) Amendment Act 2010.

[107] [2011] NSWSC 276; (2011) 210 A Crim R 220.

[108] [2007] WASCA 206; (2007) 35 WAR 297, 312 [63].

[109] [2008] WASCA 187; (2008) 38 WAR 307, 315 [26].

[110] The State of New South Wales v Darrego [2011] NSWSC 1449, [25]-[27]; Attorney-General for the State of New South Wales v Steadman [2013] NSWSC 170, [66].

[111] [2011] NSWSC 118.

[113] State of New South Wales v Darrego [2011] NSWSC 360, [11] (McCallum J).

[114] [2011] NSWSC 588, [30].

[115] [2012] NSWSC 1139.

[116] [2008] WASCA 187; (2008) 38 WAR 307, 315 [26].

[118] IK v Secretary to the Department of Justice [2012] VSCA 12, [66] (Harper JA).

[121] TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109, 113 [10] (Callaway AP); RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526, 537 [37] (Maxwell P and Weinberg JA), 552 [99] (Nettle JA).

[122] Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2009, 4036 (Bob Cameron).

[123] [2008] VSCA 265; (2008) 21 VR 526, 534 [25] (Maxwell P, Weinberg JA).

[124] See the similar task of construction followed with respect to s 11 of the Monitoring Act in RJE [2008] VSCA 265; (2008) 21 VR 526, [26].

[125] R v Wakefield (1969) 89 WN Pt 1 (NSW) 325.

[126] [2004] VSC 247.

[127] Ibid [15]. See also Dunstan v DPP [1999] FCA 921; (1999) 92 FCR 168; Williamson v DPP (Qld) [1999] FCA 921; (1999) 107 A Crim R 358, [21].

[129] Dunstan v DPP [1999] FCA 921; (1999) 92 FCR 168, (1999) 107 A Crim R 358; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union [1979] FCA 85; (1979) 27 ALR 367 (Deane J).

[131] [2009] VCC 1132, [230].

[132] Fardon [2004] HCA 46; (2004) 223 CLR 575, 622-4 [123]-[126] (Kirby J); Attorney-General v David [1992] VicRp 53; [1992] 2 VR 46, 61-2 (Hedigan J).

[134] RJE [2008] VSCA 265; (2008) 21 VR 526, 534 [16].

[135] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, [22].

[136] Cross on Evidence (9th Aust Ed), Heydon JD, [9001], [9005], [9010].

[138] ARM v Secretary to the Department of Justice (2008) 29 VR 472; RJE [2008] VSCA 265; (2008) 21 VR 526, 534 [25] (Maxwell P, Weinberg JA).

[139] ARM v Secretary to the Department of Justice (2008) 29 VR 472, 475 [13].

[142] [1938] HCA 34; (1938) 60 CLR 336, 362.

[143] Ibid 368; see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521 per the court.

[145] DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; DPP (WA) v Lyddieth [2012] WASC 246; DPP v Corbett [2012] WASC 438.

[146] DPP for Western Australia v Narkle [2010] WASC 7, [7] (Hall J); DPP for Western Australia v AMT (No 3) [2012] WASC 485.

[147] DPP for Western Australia v AMT (No 3) [2012] WASC 485, [29], [34].

[148] State of Western Australia v West [2013] WASC 14.

[150] Attorney-General (NSW) v Tillman [2007] NSWSC 605, [27]; Cornwall v Attorney-General (NSW) [2007] NSWCA 374, n 21; State of New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220; State of New South Wales v Elmore [2011] NSWSC 837, [3]; State of New South Wales v Reed [2012] NSWSC 308, [36]; State of New South Wales v Vinh Le [2013] NSWSC 348, [36].

[151] Cornwall [2007] NSWCA 374.

[152] Tillman [2007] NSWCA 327; (2007) 70 NSWLR 448.

[153] TSL v Secretary, Department of Justice [2006] VSCA 199; (2006) 14 VR 109.

[154] Cornwall [2007] NSWCA 374, [21]-[22]. See also New South Wales v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220, 228-30 [27]-[30] (Davies J); Tillman [2007] NSWCA 327; (2007) 70 NSWLR 448, 452 [27] (Bell J).

[155] Attorney-General for the State of Queensland v Hynds [2010] QSC 436; Attorney-General for the State of Queensland v Ellis [2011] QSC 382; Attorney-General for the State of Queensland v Larry [2011] QSC 120.

[156] Attorney-General for the State of Queensland v Williams [2010] QSC 248; Attorney-General for the State of Queensland v AB [2010] QSC 418; Attorney-General for the State of Queensland v Lawrence [2012] QSC 386; Attorney-General for the State of Queensland v Jerome [2013] QSC 69; Attorney-General for the State of Queensland v Inkerman [2013] QSC 18; Attorney-General for the State of Queensland v Fardon [2013] QSC 12; Attorney-General for the State of Queensland v Kanaveilomani [2013] QSC 86.

[157] See Harvey v Attorney-General for the State of Queensland [2011] QCA 256, [10] (Margaret McMurdo P). See also Attorney-General (Qld) v Kanaveilomani [2013] QSC 86, [63]; Attorney-General (Qld) v Sutherland [2006] QSC 268, [27].

[158] [2012] QCA 182, [14].

[159] [2004] HCA 46; (2004) 223 CLR 575.

[164] Foster v Northern Territory of Australia [1999] FCA 1235, [28] (French, Tamberlin, Sackville JJ).

[165] Rupert Cross and J.W. Harris, Precedent in English Law (Clarendon Press, 4th ed., 1991), 72.

[166] Catriona Cook, Robin Creyke, Robert Geddes and David Hamer, Laying Down the Law (LexisNexis Butterworths, 6th ed., 2005) [5.15] (emphasis added).

[167] [2007] HCA 22; (2007) 230 CLR 89.

[168] Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2009, 4036 (Bob Cameron).

[169] [1996] AC 563, [1996] 1 FLR 80.

[170] [1955] HCA 27; (1955) 92 CLR 390.

[171] Slaveski v Smith (2012) 34 VR 206, 215 [24].

[172] [1992] HCA 66; (1992) 110 ALR 449, 449-50 (Mason CJ, Brennan, Deane and Gaudron JJ) (citations omitted)

[173] Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20, 40-41 [65] (Branson J).

[174] NOM [2012] VSCA 198, [112]-[124].

[175] [1938] HCA 34; (1938) 60 CLR 336, 362.

[176] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[177] NOM [2012] VSCA 198, [91].

[178] John Fogarty, 'Unacceptable Risk - A Return To Basics' (2006) 20 AJFL 249, 252; DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, 315 [27].

[179] Italiano v State of Western Australia [2009] WASCA 116, [4], [46] (Buss JA).

[181] [2008] WASCA 187; (2008) 38 WAR 307.

[182] [2009] VCAT 646; (2009) 29 VAR 1.

[184] [2009] VCAT 1869, [75]-[91].

[185] DPP v Ali (No 2) [2010] VSC 503.

[186] [2009] VCAT 646; (2009) 29 VAR 1 [211].

[187] [2006] 29 RFL (6th) 109, 57 BCLR (4th) 118.

[188] [2009] VCAT 646; (2009) 29 VAR 1, [210].

[189] [2012] VSCA 48.

[190] [1952] HCA 17; (1952) 85 CLR 488, 522.

[191] [1986] HCA 60; (1986) 161 CLR 556, 613-4.

[192] [2012] HCA 2; (2012) 246 CLR 1.

[193] [1989] 1 SCR 1038.

[195] [2002] UKHL 10; [2002] 2 AC 291.

[196] [2006] EWHC 3165; [2006] 2 AC 307.

[197] See Jack Beatson, Stephen Grosz, Tom Hickman, Rabindra Singh QC and Stephanie Palmer_, Human Rights: Judicial Protection in the United Kingdom_ (London, Sweet & Maxwell, 2008) [5-117].

[198] [2008] VSCA 265; (2008) 21 VR 526, 555 [111].

[199] Ha v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, 49.

[200] DPP v Ali (No 2) [2010] VSC 503, [42] (Hargraves J).

[201] When there is express mention of certain things then anything not mentioned is excluded.

[203] NOM [2012] VSCA 198, [65].

[204] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 536 (Brennan J).

[208] Section 44(2) of the Crimes Act 1958 as then in force.

[209] Section 6F of the Sentencing Act 1991.

[210] At the relevant time previous findings of guilt for certain sexual offences constituted aggravating circumstances: s 46(4) of the Crimes Act 1958.

[211] It appears that although Dr Wood's report was tendered as an attachment to an affidavit which was before the primary judge, she mistakenly believed that she had not received it.

[215] [2009] VCC 1132, [230].

[216] Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2009, 4036 (Bob Cameron).

(1) The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision.

[218] There are also conditions under s 20 of the Act, which we need not further consider.

[219] [2009] VCC 1132.

[220] By s 160(1) of the Act, failure, without reasonable excuse, to comply with a condition of a supervision order, is punishable by imprisonment for five years.

[221] The 'Residence' is a specified address where the appellant's family resides 'or where otherwise directed by the Adult Parole Board'.

[222] Ghebrat v The Queen (2011) 214 A Crim R 140.

[223] The report was incorrectly dated 14 January 2009.

[224] Both agreed that the appellant's dosage of 120 to 130 milligrams of methadone daily was high.

[225] On the hearing of the appeal, however, counsel conceded that if the finding that the appellant was an unacceptable risk properly was open, then the length that the order was to be in force was unobjectionable.

[226] [1938] HCA 34; (1938) 60 CLR 336.

[227] Secretary to Department of Justice v AG (Unreported, County Court of Victoria, Judge Pullen, 1 December 2011), [27], [28], [37], [52].

[228] [2007] WASCA 206; (2007) 35 WAR 297, 312 [63].

[229] [2008] WASCA 187; (2008) 38 WAR 307.

[231] Secretary to Department of Justice v AG (Unreported, County Court of Victoria, Judge Pullen, 1 December 2011) [57].