TSL v Secretary to the Department of Justice [2006] VSCA (26 September 2006)

The Victorian Court of Appeal (comprising Callaway AP, Buchanan JA and Coldrey AJA) has recently made its first reference to the Victorian Charter of Human Rights and Responsibilities.

The Charter, which received royal assent in July 2006 but does not commence, for the most part, until 1 January 2007, enshrines a body of human rights derived from the International Covenant on Civil and Political Rights.  Among the mechanisms established by the Charter to protect human rights is a requirement that, from 1 January 2008, all statutory provisions must be interpreted and applied, so far as is possible consistent with their statutory purpose, in a way that is compatible with human rights.  The Charter also provides, at s 7, that human rights may only be subject 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’.

TSL v Secretary to the Department of Justice concerned an appeal against the imposition of an extended supervision order against a convicted sexual offender.  The Serious Sex Offenders Monitoring Act 2005 (Vic) provides that an extended supervision order may be made in respect of an offender if the court 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 … and not made subject to an extended supervision order.’

The Court of Appeal in TSL was required to interpret and apply the term ‘likely to commit’.  One possible meaning was that the risk of re-offending be a ‘substantial – a “real and not remote” – chance’.  Another possible meaning was that the word ‘likely’ incorporated the notion of ‘high degree of probability’, such that the Court must be satisfied that there is a high degree of probability that the offender will commit a relevant offence.  In preferring the second meaning, the Court stated that it is ‘almost inconceivable’ that Parliament would have intended that ‘likely’ mean ‘real and not remote’.  The Court stated that:

A person subject to an extended supervision order is a prisoner in all but name.  The threshold would be far too low, in a free society, if a court had a discretion to make an extended supervision order simply because it was satisfied that there was ‘a substantial – a “real and not remote” – chance’ of his or her re-offending.  That is why the word ‘likely’ … is used in the sense of a high degree of probability. [9]

In a footnote to this passage, the Court referred to s 7 of the Charter which, as discussed above, requires that limitations on human rights be demonstrably justifiable having regard to factors such as the nature, extent and purpose of the limitation.  The Court stated, moreover, that while ‘the Charter of Human Rights and Responsibilities Act 2006 is not yet in force, the nature of our society is a legitimate factor to take into account in construing the legislation.’  This is consistent with the established common law position that ‘the provisions of an international human rights convention to which Australia is a party can also serve as an indication of the value placed by Australia on the rights provided for in the convention and, therefore, as indicative of contemporary values’ (Royal Women’s Hospital v Medical Practitioners’ Board of Victoria [2006] VSCA 85, [77]).

The decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2006/199.html.