Court of Appeal examines Charter impact on statutory interpretation and the exercise of judicial discretion

Nigro v Secretary to the Department of Justice [2013] VSCA 213 (16 August 2013)


The Victorian Court of Appeal has considered the effect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on statutory interpretation in the course of interpreting statutory provisions governing the making of supervision orders for serious sex offenders. In the context of an ambiguity in a provision and two open constructions that were consistent with the provision's text and purpose, the Court applied the principle of legality and section 32 of the Charter to adopt the interpretation more compatible with an offender's rights to freedom and autonomy.

The Court also considered the relevance of the Charter to the exercise of a judicial discretion. Although it found that the discretion in issue did not have to be exercised so as to ensure minimal interference with human rights, it noted that the existence of unnecessary rights infringements may be relevant to the exercise of the discretion and, in some cases, may have to be taken into account.


The decision arose out of three appeals brought under section 96 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). Each appellant challenged the making of a supervision order under section 9 of the Act. Two appellants also challenged the imposition of additional conditions on their orders under Division 3 of Part 2 of the Act.

In the case of Kenneth Lowe, the appellant had committed indecent assault offences in 1983 and 1990. He appealed against a supervision order made by the County Court in 2012. At the time of the appeal he was aged 79 years, was infirm and resided in an isolated area.

In the case of Casimiro Nigro, the appellant had been convicted of a child pornography offence and the County Court had made a supervision order in relation to him. Mr Nigro challenged the making of the order and the attachment of three additional conditions that restricted his ability to obtain employment, engage in community activities or access technology.

In the case of Adhil Ghebrat, the appellant had been convicted of three counts of rape relating to incidents near nightclubs in 2001 and 2002, and a supervision order had been made in relation to him. Mr Ghebrat appealed against the making of the order and the attachment of three additional conditions that imposed a curfew on him and restricted his ability to consume alcohol or obtain employment.


The Court considered the appeals together because they raised common questions about the statutory construction of various provisions of the Act, which differed from its predecessor, the Serious Sex Offenders Monitoring Act 2005 (Vic), in a number of ways. A key issue in the appeals was the proper construction of the new test for the making of a supervision order: under the new section 9(1), the Court may make a supervision order only if it is satisfied "that the offender poses an unacceptable risk of committing a relevant offence".

Although the parties disputed the meaning of the "unacceptable risk" test, they acknowledged that it was compatible with human rights. The Court agreed, finding that "[t]he 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". Accordingly, there was no need to have recourse to the interpretative obligation in section 32 of the Charter to interpret section 9(1) of the Act.

Using ordinary methods of statutory construction, the Court found that the "unacceptable risk" test required consideration of "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". However, there was ambiguity as to the standard of proof that applied to the test. Section 9(2) of the Act required the Court to be satisfied to a "high degree of probability", but it was unclear whether this standard related to satisfaction of the ultimate question of unacceptable risk, or merely satisfaction as to the evidence establishing the underlying facts, in which case the ordinary civil standard would apply to the ultimate question.

The Court adopted the former interpretation for two reasons. First, the predecessor Act had had a similar standard of proof for its test, and there was no clear Parliamentary intention to lower the standard. Similar legislation in other states also continued to use this standard for the ultimate question. In addition, the Court held that "[t]he principle of legality and the interpretative obligation under the Charter … 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".

Under section 9(7) of the Act, the Court had a discretion to make no supervision order even if it was satisfied that the offender posed an unacceptable risk. The Court rejected an argument that this discretion was subject to an implied limitation, such that if a supervision order would involve an unjustified infringement of human rights, the discretion would have to be exercised to make no order. Although the Court did not rule out the possibility that a broad judicial discretion could be subject to a similar limitation in other contexts, it made its decision on the basis that the contended limitation would be inconsistent with the text and purpose of the Act. Since section 15(6) required that any additional conditions (but not the core conditions) of a supervision order constitute the minimum necessary interference with various rights of the offender, the Court found that it would be inconsistent to require the Court then to refrain from making an order unless the core conditions also constituted the minimum necessary interference with human rights.

In the result, the Court set aside Mr Lowe's order because it considered that the County Court had applied the wrong standard of proof and reached a conclusion as to unacceptable risk that was plainly wrong. The Court upheld the orders made for Mr Nigro and Mr Ghebrat, but set aside all of the challenged additional conditions in Mr Nigro's case, and the employment condition in Mr Ghebrat's case, on the basis that they were unreasonable encroachments on rights. The relevant conditions were found to be uncertain, unreasonably wide or lacking a connection to the specific offences the appellants were said to pose an unacceptable risk of committing.


This decision is marked by the Court's careful deference to Parliamentary intention, as discerned according to ordinary principles of statutory interpretation. In this respect, it follows Momcilovic v The Queen (2011) 245 CLR 1 in holding that section 32 of the Charter does not permit courts to depart from the text and purpose of a statutory provision. The Court's detailed analysis of the meaning of key provisions of the Act will be of great assistance to practitioners working in the area.

Nevertheless, the decision also demonstrates the Court's view that, like the common law principle of legality, Charter rights must be considered in determining which of multiple open interpretations to adopt. This was illustrated in the Court's reasoning on the applicable standard of proof.

Further, while the Court did not consider that the impacts of a supervision order's core conditions on an offender's rights necessarily determined how the section 9(7) discretion must be exercised, it observed that in some circumstances the impacts may be relevant to the exercise of the discretion because "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".

Finally, because section 32 of the Charter was not relied upon in ascertaining the meaning of the unacceptable risk test, it was unnecessary for the Court to resolve uncertainty about whether the proportionality analysis in section 7(2) of the Charter should inform the interpretative process required by section 32. Significantly, the Court accepted that in light of the High Court's decision in Momcilovic, this was again an open question.

The decision can be found at

Christopher Lum is a Law Graduate at Allens.