Crimes (High Risk Offenders) Act 2006

The Act applies only to an “offender” as defined in s 4A: a person 18 years or older who has at any time been sentenced to imprisonment (other than a suspended or quashed sentence) to be served by full-time detention or intensive correction in the community following conviction for a “serious offence”. A serious offence is either a serious sex offence (s 5(1)) or a serious violence offence (s 5A).

Serious sex offences encompass a long list of provisions in the Crimes Act 1900 (NSW) Division 10 (sexual assault), specific aggravated offences, child pornography and grooming provisions, plus equivalent interstate and Commonwealth offences including those under the Criminal Code (Cth) relating to child sex tourism, slavery, and online child abuse material (s 5(1)(b4)–(b5), (h3)–(h5)). The definition is deliberately ambulatory: it catches offences that would be serious sex offences if committed today even if they were not so classified at the time of commission (s 5(1)(c1)), and any offence that was once a serious sex offence (s 5(1)(d)).

Serious violence offences are serious indictable offences involving intentional or reckless conduct causing death or grievous bodily harm (including wounding with the requisite intent), murder, manslaughter by unlawful and dangerous act, and attempts, conspiracies or incitement (s 5A). The 2016 amendment clarified that certain forms of felony murder and manslaughter are included (s 5A(2A)).

The practical reach is therefore broad. Any adult who has served a custodial sentence for rape, aggravated sexual assault, sexual intercourse with a child under 10, production or dissemination of child abuse material, murder, or grievous bodily harm with intent will potentially fall within the Act for the rest of their life. Eligibility for an application is further conditioned on the person being a “supervised offender” or “detained offender” at the time the application is made (ss 5I, 13B). This includes those still in custody serving sentences (including aggregate or cumulative sentences where at least one component is a qualifying offence), on parole, subject to an existing ESO, ISO, CDO, IDO or EDO, or in custody on remand (s 4(2)).

The Act also affects victims. Section 21A requires the State to notify recorded victims (or their parents/guardians if under 18) of applications and permits them to provide written or oral statements about the proposed order and conditions. These statements may be kept confidential from the offender if disclosure would risk identifying the victim (s 21A(6)–(7)).

Corrective Services NSW, the NSW Police Force, Justice Health, the Ministry of Health and other “relevant agencies” (s 24AA) are subject to duties to cooperate, share information and participate in the Assessment Committee (Part 4A). The Commissioner of Corrective Services must furnish annual reports on each offender subject to an ESO or CDO (ss 13(2), 19(2)).

Finally, the legislation affects the broader community by authorising significant restrictions on liberty—up to and including indeterminate detention on successive five-year orders—on the basis of future risk rather than past guilt. The Supreme Court, Court of Appeal, Legal Aid Commission and sentencing courts also have specific roles.

Offenders’ obligations
An offender subject to an ESO or ISO must comply with all conditions imposed by the Court (s 11). Mandatory conditions include not leaving NSW without approval (s 11(2)). Common additional conditions are residence approval, electronic monitoring, non-association with named persons, attendance at psychological treatment, prohibition on certain employment or locations, name-change bans, internet-use restrictions and financial disclosure. While in lawful custody the obligations are suspended (ss 10(2), 10C(1A), 18(2)).

Breach of any requirement is an offence (s 12). The offender has the right to be served with the application within two business days (ss 7(1), 15(1)), to receive all relevant material (s 7(2)), to a preliminary hearing, to psychiatric or psychological examination by court-appointed experts (ss 7(4), 15(4)), to appear and be legally represented (s 27), to cross-examine witnesses, to give evidence and to appeal (s 22). Costs cannot be awarded against the offender (s 23). The offender may apply to vary or revoke an order at any time (ss 13, 19).

State’s duties
The State (represented by the Attorney General or prescribed person – s 24A) must file applications in the last nine months of custody or supervision (ss 6(1), 13B(3)), support them with comprehensive documentation addressing every s 9(3) or s 17(4) factor plus a risk assessment report (ss 6(3), 14(3)), and make full and ongoing disclosure of all relevant material (ss 7(2), 15(2)). For EDOs the Commissioner or an Assistant Commissioner must swear an affidavit addressing altered circumstances, inadequacy of the existing order and absence of less restrictive alternatives (s 18CC(1)). The State must notify the Legal Aid Commission of EDO applications (s 18CC(2)).

Corrective Services NSW must provide annual reports to the Attorney General on whether continuation of an ESO or CDO remains necessary (ss 13(2), 19(2)) and must prepare manageability reports (ss 9(3)(d1), 17(4)(d1)).

Victims’ rights
Victims recorded on the Victims Register receive notice of applications and may furnish written statements before the final hearing or make oral statements (which the Court may hear via CCTV and in the absence of the offender unless the victim consents to their presence) (s 21A). Statements may be withdrawn or amended. Confidentiality is protected; non-consensual disclosure to the offender is prohibited unless the Court is satisfied redaction can occur without identifying the victim (s 21A(6)–(7)).

Court’s duties
The Supreme Court must treat community safety as paramount (ss 9(2), 17(2)), consider the enumerated statutory factors, and give reasons. It may make ESOs even on a CDO application and vice versa (s 17(1)). It must not consider an offender’s intention to leave NSW (s 9(4)). On appeal the Court of Appeal may make interim orders but the original order continues unless stayed or varied (s 22(4)–(4C)).

Agencies’ duties
Relevant agencies must cooperate, share information and assist the Assessment Committee (s 24AF). The Committee itself must review risks, coordinate functions, monitor performance, develop guidelines and conduct research (s 24AC).

The only direct criminal offence created by the Act is breach of an ESO or ISO (s 12), punishable by 500 penalty units or 5 years’ imprisonment or both. Proceedings for this offence may be dealt with on indictment (s 25A(2)). Breach is also a statutory ground for making or varying a CDO (ss 13B(4)(a)(i), 17(4)(j), 17(4)(k)).

Non-compliance with an Attorney General’s information-gathering order under s 25 carries 100 penalty units (corporations) or 100 penalty units and/or 2 years’ imprisonment (individuals). Failure to comply with a court direction to attend psychiatric examination is indirectly enforced through the Court’s power to draw adverse inferences on the ultimate risk assessment.

Enforcement of supervision conditions is primarily by Corrective Services NSW officers who have statutory powers of entry, search and seizure under the conditions themselves and under the Crimes (Administration of Sentences) Act 1999. Electronic monitoring is facilitated by s 11(1)(e). Serious breaches commonly result in immediate arrest, revocation applications and, where risk has crystallised, fresh CDO applications.

Detention orders are enforced by warrant of committal (s 20). A warrant authorises police to arrest and convey the offender and the governor of the correctional centre to detain them. EDOs, being ex parte and time-critical, are executed immediately upon making.

The Act contains protective provisions: good-faith acts or omissions in the administration of the Act attract immunity (s 26). Evidentiary certificates as to suspension and expiry dates are admissible (s 28A). Protected records of the Assessment Committee (minutes and deliberations) are inadmissible (s 28B).

The Act is expressly designed to sit beside, and in some cases override the ordinary operation of, other legislation. Section 5AA provides that the Act does not limit the making of orders under the Terrorism (High Risk Offenders) Act 2017; supervision or detention under that Act may be treated as equivalent for the purposes of risk assessment and eligibility under this Act. Conversely, an ESO or CDO under this Act does not prevent a terrorism ESO or CDO.

Risk assessments and conditions routinely intersect with the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004. Compliance with those regimes is a mandatory consideration (ss 9(3)(g), 17(4)(g)) and an ESO may impose the full suite of reporting obligations that would apply to a registrable person (s 11(1)(l)).

The Crimes (Administration of Sentences) Act 1999 supplies definitions of “correctional centre”, “Corrective Services NSW”, “corrective services officer” and “parole”. Annual reporting obligations, the Victims Register and parole decision-making all feed into this Act. Information obtained under this Act may, with provider consent, be used in State Parole Authority proceedings (s 25(4)).

The Crimes Act 1900 (NSW) supplies the underlying offences that trigger the regime. The definitions in ss 5 and 5A incorporate specific sections (e.g. ss 61I, 61J, 66A, 66EA) and concepts of aggravation, recklessness and grievous bodily harm. The Criminal Procedure Act 1986 governs the summary/indictable election for s 12 breach proceedings (s 25A).

Commonwealth legislation is directly incorporated: the Crimes Act 1914 (Cth) child sex tourism and child pornography provisions, the Criminal Code (Cth) slavery, sexual servitude and online child abuse material offences, and the Customs Act 1901 (Cth) child pornography import offences all qualify as serious sex offences. Federal recognizance release orders are deemed part of a sentence of imprisonment for eligibility purposes (s 5I(4)–(5)).

The Bail Act 2013 does not apply to proceedings under this Act except for s 12 or s 25(2) offences (s 28). The Supreme Court Act 1970 and its rules govern practice and procedure where this Act is silent (ss 21, 29).

The Act is not a sentencing statute; it operates after the sentence has been served. However, sentencing courts must warn offenders of the possible application of the Act (s 25C), though failure to do so does not invalidate the sentence or prevent later orders.

The legislative history shows progressive expansion. The original 2006 Act (then called the Crimes (Serious Sex Offenders) Act) was a response to high-profile sexual reoffending cases and was deliberately limited to sex offenders. The Crimes (Serious Sex Offenders) Amendment Act 2013 renamed the Act, extended it to serious violence offenders, introduced the unified “unacceptable risk” test (ss 5B–5D), replaced the old “high risk sex offender” and “serious sex offender” terminology, and created new application pathways for supervised offenders who breach or whose circumstances change (new ss 5I, 13B). These changes were driven by a perceived gap in managing violent offenders who posed comparable community risk.

The Crimes (High Risk Offenders) Amendment Act 2014 added the emergency detention regime (Division 3A), strengthened the Assessment Committee, introduced inter-agency cooperation duties (Part 4A) and refined victim statement procedures. The 2014 changes responded to cases where risk escalated suddenly while an offender was on supervision and existing powers were considered too slow.

The Crimes (High Risk Offenders) Amendment Act 2017 was the most substantial rewrite. It substituted the core order-making provisions (ss 5B–5D), expanded eligibility to cover federal sentences and cumulative sentences (ss 5I, 13B), clarified that the Court need not find reoffending more likely than not (s 5D), added new mandatory considerations (e.g. likelihood of compliance, options to reduce risk), aligned the regime with the newly enacted terrorism high-risk offenders legislation (s 5AA), and introduced the terrorism sub-committee within the Assessment Committee. These amendments were prompted by reviews showing that the 2013 changes had not been fully effective and by the need for consistency across the two parallel high-risk offender schemes.

Subsequent minor amendments have fine-tuned definitions (2021, 2024), expanded Commonwealth offence lists to capture evolving online child exploitation methods, adjusted victim statement confidentiality, and clarified protected records (s 28B, inserted 2021). Schedule 2 transitional provisions have repeatedly extended the Act’s reach to past offences and existing sentences, ensuring the scheme is not defeated by temporal limits.

The overall trend has been from a narrowly targeted sex-offender supervision law to a broad, sophisticated, multi-agency preventive detention and risk-management framework that sits at the outer edge of civil-liberty constraints.

The regime has been repeatedly upheld against constitutional challenge. In Fardon v Attorney-General (Qld) (2004) 223 CLR 575 the High Court (by 6:1) upheld analogous Queensland legislation, rejecting arguments that it offended the Kable principle or involved the exercise of non-judicial power. NSW courts have consistently applied that reasoning to this Act. The Supreme Court and Court of Appeal have emphasised that the proceedings are civil, the standard is “to a high degree of probability” (a standard higher than balance of probabilities but lower than beyond reasonable doubt), and the Court retains a genuine evaluative discretion.

Key controversies have centred on the breadth of the “unacceptable risk” test. In State of New South Wales v Simcock [2016] NSWSC 155 the Court accepted that risk need not be more likely than not. That position was legislatively confirmed in s 5D after some first-instance doubt. Courts have also grappled with the weight to be given to static versus dynamic risk factors, the reliability of actuarial tools, and the extent to which an offender’s refusal to participate in treatment can be taken as increasing risk (see, for example, the mandatory considerations in ss 9(3)(e), 17(4)(e)).

The use of EDOs has attracted procedural fairness criticism because they are made ex parte on affidavit evidence. The 120-hour maximum and the statutory requirement that they be used only where no other means can manage the imminent risk (s 18CC(1)(c)) have been strictly policed. Courts have refused EDOs where the State could have acted earlier under ordinary variation powers.

Controversies also surround conditions that amount to de facto detention—24-hour curfews, GPS monitoring that effectively confines an offender to a small radius, or residence in secure “supervision units”. The Court has power to tailor conditions but must ensure they are reasonably necessary to manage risk; overly onerous conditions risk being varied on review or struck down on appeal.

Public debate has focused on the ethical legitimacy of preventive detention of people who have completed their sentences. Civil liberties groups argue that the scheme blurs the line between punishment and protection and risks net-widening. Victims’ advocates, conversely, argue that the regime is essential given historically high recidivism rates for certain sex and violent offences. The annual reports of the Assessment Committee and the statutory review required by s 32 have generally supported continuation while recommending tighter procedural safeguards and better resourcing of community treatment programs.

No High Court decision has invalidated the NSW scheme, but continued litigation on the margins—particularly around the interaction with federal sentencing, the use of hearsay in risk assessments, and the standard of appellate review—remains likely.

Most practitioners miss that the Act applies to any past conviction meeting the definition, no matter how old, provided the person is still serving a sentence (including on parole) or subject to an existing order when the application is made. There is no “sunset” on qualifying offences (see ss 4A, 5(1)(d), 5A(3)(c) and the repeated extension of the scheme in Schedule 2).

The “altered circumstances” gateway for CDOs against supervised offenders (s 13B(4)(a)(ii) and (6)) is wider than many realise. A single breach, even if not prosecuted to conviction, or a deterioration in mental health or withdrawal from treatment, can trigger a detention application. Courts have accepted that the mere allegation of breach can be taken into account (s 17(4)(k)).

The Assessment Committee’s minutes and deliberations are completely protected from production or admissibility (s 28B). This can surprise parties seeking to test the provenance of risk opinions that have clearly been shaped by multi-agency discussion.

Section 11(1)(ea) residence approval by the Commissioner is not a mere formality; refusal can render an ESO practically unworkable, yet the Commissioner’s decision is not directly reviewable in the ESO proceedings. Practitioners must therefore litigate manageability under s 9(3)(d1) aggressively at the primary hearing.

Many overlook that an ESO can be made at the same time as a CDO with the ESO expressed to commence on expiry of the CDO (s 25B). This “stacking” avoids the gap that would otherwise exist if a further application had to be filed near the end of the CDO.

The federal recognizance release order provision (s 5I(4)) brings many Commonwealth child-sex offenders within the regime even though their federal sentence structure differs from NSW sentences. Commonwealth offenders released on recognizance are deemed to be “serving a sentence of imprisonment” for the entire recognizance period.

Finally, the 120-hour EDO is not renewable; the State must use the time to prepare a full ISO or CDO application. Attempting to use successive EDOs for the “same occasion of altered circumstances” is expressly prohibited (s 18CB(2)).

For offenders and their legal representatives
Obtain and scrutinise every piece of supporting documentation at the earliest opportunity (ss 7(2), 15(2)). Engage forensic psychologists or psychiatrists early to prepare competing risk assessments that address the precise statutory factors in ss 9(3) and 17(4). Focus evidence on dynamic risk factors that can be reduced through treatment, the availability of a comprehensive management plan in the community, and concrete examples of past compliance. Where an ESO is inevitable, propose a tightly drafted set of conditions that are the least restrictive necessary to address the specific risks identified; vague or overly broad conditions invite later variation applications. Comply strictly with every condition; even technical breaches can trigger detention applications. Keep detailed records of participation in treatment programs and any obstacles (transport, waiting lists, cultural appropriateness) to use on review or variation hearings. If risk appears to have moderated, gather fresh expert evidence and apply under s 13 or s 19 for revocation; the onus remains on the State but fresh evidence of changed circumstances is powerful.

For Corrective Services NSW and other agencies
Maintain meticulous, contemporaneous records of compliance, breaches, treatment participation and any deterioration in risk indicators. Prepare manageability reports that are realistic rather than aspirational; courts are increasingly sceptical of plans that rely on under-resourced programs. Ensure the annual reports required by ss 13(2) and 19(2) are evidence-based and candid. Participate fully in the Assessment Committee and terrorism sub-committee; the information-sharing and protocol obligations in Part 4A are mandatory. When an EDO is contemplated, the Assistant Commissioner’s affidavit must demonstrate that all less restrictive alternatives have been exhausted—document every attempted intervention.

For the State (Solicitor for Public Prosecutions / Crown Solicitor)
File applications with ample time for proper preliminary hearing processes. Ensure supporting documentation addresses every statutory factor; omission invites dismissal at the preliminary stage. For supervised offenders seeking detention, prove the “altered circumstances” threshold with precision (s 13B(6)). Where an ESO is sought, have a draft conditions schedule ready that is evidence-based and proportionate. Notify victims promptly and facilitate their statements without compromising confidentiality. On appeal, be prepared to defend the Supreme Court’s evaluative judgment; the Court of Appeal will not lightly substitute its own risk assessment.

For the Supreme Court
Maintain the statutory focus on community safety as the paramount but not sole consideration. Require clear, current expert evidence; stale reports are of limited weight. Where expert opinions diverge, give transparent reasons for preferring one over another. Tailor conditions to the identified risk rather than adopting standard templates. For EDO applications, insist on strict compliance with s 18CC and the 120-hour outer limit. Use the power to make ESOs on CDO applications (and vice versa) creatively to avoid unnecessary detention where a robust community management plan exists.

General compliance tips

• Track all order expiry dates meticulously; the nine-month pre-expiry window is strict.
• Use the Assessment Committee’s best-practice guidelines when formulating risk assessments and management plans.
• Document every decision not to apply for an order so that the annual reporting cycle can demonstrate reasoned exercise of discretion.
• Stay abreast of amendments to the Crimes Act 1900, Commonwealth child exploitation legislation and the Terrorism (High Risk Offenders) Act 2017, because each new qualifying offence automatically expands the pool of potential subjects.

Compliance with the Act is not merely procedural; it requires continuous, evidence-based risk assessment, transparent inter-agency cooperation and a willingness to place the least restrictive but still effective measure before the Court. Failure at any point can result in preventable reoffending or, conversely, unjustified deprivation of liberty.