Secretary to the Department of Justice v AB  VCC 1132 (28 August 2009) The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and Responsibilities Act. Significantly, Judge Ross held that the proper construction of s 11 of the Serious Sex Offenders Monitoring Act 2005, as amended by legislation passed following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice, was not compatible with human rights.
AB was convicted for indecent assault (among other offences) and imprisoned for five years. Since his prison sentence ended in October 2008, AB has been subject to an Interim Extended Supervision Orders under the Serious Sex Offenders Monitoring Act 2005.
The Secretary to the Department applied for a 15 year Extended Supervision Order (‘ESO’) for AB, on the basis of an alleged high degree of probability that AB will commit another sexual offence.
Section 11 of the Act provides that an ESO may only 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’ (as defined in the Act; broadly speaking, a sexual offence) if released into the community and not made subject to an ESO (a discretionary, not mandatory, power).
Amendments were made to s 11 following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice  VSCA 265, so that the ‘likelihood’ threshold accommodates a lower level of risk than ‘more likely than not’. Accordingly, s 11(2A) provides that the ‘likelihood’ threshold is satisfied if ‘there is a real risk of the offender committing a relevant offence’, such risk being real and ongoing and which cannot sensibly be ignored given the nature and gravity of the possible offence. This allows for a lower threshold than ‘more likely than not’ (s 11(2B)).
Consideration of the Charter
Judge Ross considered the relevance of the Charter to a proper construction of this provision of the Act. His Honour held that the proper approach to interpreting s 11 of the Act, in compliance with the interpretative obligation in s 32 of the Charter, was to:
- ascertain the meaning of the provision on ordinary statutory construction principles;
- consider whether the meaning of the provision is compatible with the human rights specified in the Charter, which necessarily requires reference to s 7(2) of the Charter (the general limitations provision); and
- if the answer is no, then consider whether it is otherwise possible to interpret the statutory provision, consistent with its purpose, in a way that is compatible with human rights.
His Honour held that the making of an ESO has an effect on a person’s human rights, including ‘the offender’s right 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’ (the same conclusion reached by Nettle JA in RJE), thus making a human rights focussed interpretation of the statutory provision relevant.
In considering whether the limitation on human rights occasioned by s 11 of the Act was reasonable and demonstrably justified (required by s 7(2) of the Charter), Judge Ross took into account, among other things, the Statement of Compatibility in respect of the legislation introducing ss 11(2A) and (2B) of the Act.
His Honour identified various safeguards which exist in relation to ESOs, such as that they are imposed by a Court independent of the executive, they are subject to mandatory periodic reviews, and the offender may seek a review of the ESO by the Court. However, his Honour held that, after taking into account all relevant factors, an ordinary construction of s 11 of the Act was not compatible with human rights (as set out in section 32(1) of the Charter), as he was not satisfied that the limitations on rights imposed by s 11 are reasonable and demonstrably justified.
His Honour further held that there was no alternative construction which would be compatible with human rights and tenable. Given the County Court does not have the power to make a declaration of inconsistent interpretation, this was the end of the Charter issue so far as his Honour was concerned. The consequence was that Judge Ross applied the construction of s 11 which flowed from the application of standard statutory construction principles, notwithstanding his view that such a construction was incompatible with human rights.
Outcome of the application
After considering the assessment reports before the Court (both of which concluded there was a high risk of re-offending), Judge Ross held that he was satisfied, to a high degree of probability, that there was a risk of AB committing a relevant offence, and that the risk satisfied the threshold requirements in s 11 of the Act. His Honour therefore allowed the application for an ESO, but only for a period of 5 years (rather than 15 years as sought by the Secretary). He held that it was necessary to limit the impact on the human rights of the person subject to the order by setting a duration which was the minimum necessary.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCC/2009/1132.pdf.
Jonathan Kelp, Human Rights Law Group, Mallesons Stephen Jaques