Attorney-General (SA) v Woods-Pierce; Treloar v Attorney-General (SA); Shi v Attorney-General (SA) - [2021] SASCA 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ATTORNEY-GENERAL (SA) v WOODS-PIERCE; TRELOAR v ATTORNEY-GENERAL (SA); SHI v ATTORNEY-GENERAL (SA)
[2021] SASCA 112
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)
14 October 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL
The first appeal is an appeal against a decision of a single judge to dismiss an application by the Attorney-General (SA) for an extended supervision order (ESO) in respect of the respondent.
The respondent had been convicted of serious sexual offences and serious violent offences when he was 17 years of age and had been sentenced in the District Court as an adult to seven years imprisonment. On 11 May 2021, the Attorney-General (SA) made an application under the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) for an ESO in relation to the respondent.
The Judge dismissed the application on the ground that the respondent, despite being an adult at the time of the application and having served a sentence of imprisonment, was a youth at the time when he committed the qualifying offending, and as such the Court was precluded from making the order pursuant to s 6(1) of the HRO Act.
Following that decision, the Crown undertook a review of all ESOs in force to identify any other persons whose qualifying offending was committed when they were youths. The appellants in the second and third appeals were the only parties identified in that review and both have appealed on the ground that they were youths when they committed their qualifying offending. Both were sentenced as an adult to imprisonment, and both were adults when the application for an ESO was brought.
The appellant in the first appeal contends that s 6(1) of the HRO Act does not preclude the operation of the HRO Act with respect to adults on the basis that the qualifying offending was committed when they were youths. The appellant submits that s 6(1) of the HRO Act should be construed as only precluding applications for ESOs where the person is a youth at the time the application is made.
Held, per the Court, allowing the first appeal and dismissing the second and third appeals:
1. The disapplication of the HRO Act to youths pursuant to s 6(1) is directed towards the point in time at which the operative provisions are sought to be invoked rather than the time at which he or she committed the qualifying offending.
2. The Court may make an ESO in relation to a person who was a youth at the time they committed their qualifying offending, but was sentenced as an adult to a period of imprisonment, and was an adult at the time the application for the ESO was made.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 5, s 6(1), s 6(2), s 7, s 22; Supreme Court Act 1935 (SA) s 19B; Young Offenders Act 1993 (SA) s 4, s 16, s 17, s 17A, s 29; Criminal Law Consolidation Act 1935 (SA) s 24, s 39, s 48, s 49, s 56, s 63A, s 63B, s 83D, s 137, referred to.
Attorney-General (SA) v Woods-Pearce [2021] SASC 77; Attorney-General (SA) v Smith [2020] SASC 108; Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257; Attorney-General (SA) v Rankine [2020] SASC 163; Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General (SA) v Tipping [2020] SASC 64; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; R v A2 (2019) 93 ALJR 1106; Wichen v The Queen [2021] SASCA 30; Lee v New South Wales Crime Commission (2013) 251 CLR 196; X7 v Australian Crime Commission (2013) 248 CLR 92; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, considered.

ATTORNEY-GENERAL (SA) v WOODS-PIERCE; TRELOAR v ATTORNEY-GENERAL (SA); SHI v ATTORNEY-GENERAL (SA)
[2021] SASCA 112
Court of Appeal – Criminal: Livesey P, Doyle JA and Stanley AJA

THE COURT: The resolution of the three appeals the subject of these reasons turns upon a common issue of statutory interpretation arising under the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act).
The issue relates to the proper construction of the provision in s 6(1) of the HRO Act to the effect that “this Act does not apply in relation to a youth”, and in particular whether this section operates to preclude the Supreme Court from making an extended supervision order (ESO) in relation to a person who is an adult at the time the application for an ESO is made, but was a youth at the time he committed the offences which qualify him as a high risk offender.
For the reasons which follow, it is our view that s 6(1) does not operate in this way. Rather, its operation is confined to precluding the Court from making an ESO in relation to a person who is a youth at the time the application for an ESO is made. It follows that the Court may make an ESO in relation to a person who was a youth at the time of his qualifying offending, but was sentenced as an adult to a period of imprisonment (as opposed to youth detention), and is an adult at the time of the application for the ESO.
The procedural background
The first of the three appeals is an appeal by the Attorney-General from a decision of a single judge (David J) dismissing the Attorney-General’s application for an ESO against Mr Woods-Pierce.[1] Her Honour dismissed the application on the ground that, although Mr Woods-Pierce was an adult at the time of the Attorney-General’s application, and was serving a sentence of imprisonment, he was a youth when he committed his qualifying offending (that is, the offending that qualified him as both a serious sexual offender and serious violent offender, and hence as a high risk offender under the HRO Act). Her Honour held that, in those circumstances, s 6(1) of the HRO Act precluded the Court from making an ESO.
[1] Attorney-General v Woods-Pearce (sic) [2021] SASC 77.
Following the delivery of judgment in that matter, the Crown undertook a review of all ESOs in force at the time to identify any other persons who were the subject of an ESO and whose qualifying offending had been committed as youths. The ESOs made against Mr Treloar and Mr Shi, being the appellants in the second and third appeals, were the only two orders identified pursuant to that review. Although both Mr Treloar and Mr Shi committed their respective qualifying offences as youths, they had both (like Mr Woods-Pierce) been sentenced as adults to a term of imprisonment.
Mr Treloar and Mr Shi were informed of David J’s decision, and both subsequently appealed the making of their respective ESOs.
The appeals of Mr Treloar and Mr Shi were brought pursuant to s 22(1) of the HRO Act, the time within which to bring those appeals having been extended by consent. As s 22(1) does not expressly confer a right of appeal from a decision to dismiss an ESO (as opposed to a decision to make an ESO), the Attorney‑General’s appeal was brought pursuant to this Court’s general appellate jurisdiction in respect of decisions of a single judge of this Court under s 19B of the Supreme Court Act 1935 (SA). Given that the appeals raise the same issue of statutory construction, they were heard together.
At the hearing of these appeals, the Attorney-General was represented by the Solicitor-General. Mr Woods-Pierce, Mr Treloar and Mr Shi were each separately represented. For convenience, we shall refer to these three men collectively as ‘the Respondents’, given that that was their status at first instance, and is how they are described in the relevant provisions of the HRO Act.
The factual background
Mr Woods-Pierce
On 3 December 2014, Mr Woods-Pierce was convicted of aggravated kidnapping,[2] aggravated causing harm[3] and rape.[4] The offending was committed in June 2014, while Mr Woods-Pierce was living in supported accommodation under the guardianship of the Minister for Education and Child Development. He was visited at his home by the victim, a 21 year old, female case manager. At the conclusion of the appointment, Mr Woods-Pierce grabbed the victim tightly by her throat and told her that he was going to rape her. Following this, he armed himself with one of the six swords he had on display in the house. The sword was about 1.5 metres in length. He threatened the victim again before striking her in the head with the rear of the blade. The blow opened a gash on her skull, causing pain and bleeding.
[2] Contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[3] Contrary to s 24(1) of the CLCA.
[4] Contrary to s 48(1) of the CLCA.
At some point later, Mr Woods-Pierce told the victim to perform fellatio on him. He threatened to paralyse her with the sword if she tried to run away. Believing the threat, the victim complied. At one stage she gagged while doing so, and Mr Woods-Pierce threatened to kill her if she vomited on him. He proceeded to show the victim child pornography on his laptop. He then vaginally raped her.
Mr Woods-Pierce was 17 years of age at the time of his offending. He entered guilty pleas and was committed to the District Court for sentence as an adult pursuant to s 29 of the Young Offenders Act 1993 (SA) (the YO Act). He was sentenced to imprisonment for seven years with a non-parole period of four years.
On 11 May 2021, the Attorney-General brought an application for an ESO in relation to Mr Woods-Pierce. At that date, Mr Woods-Pierce was an adult and, by virtue of the above offending, was a ‘serious sexual offender’ and ‘serious violent offender’.[5] As he had been sentenced to imprisonment for that offending, he was therefore a ‘high risk offender’ for the purposes of the HRO Act.[6]
[5] HRO Act, s 4.
[6] HRO Act, ss 5(a) and (c).
Mr Treloar
Mr Treloar was convicted of two counts of aggravated robbery,[7] amongst other offences. The two counts were committed within a short time of one another.
[7] Contrary to s 137 of the CLCA.
As to the circumstances of the first offence, in the evening of 13 September 2016, Mr Treloar entered a unit, which was occupied by the two victims, through an unlocked sliding door. He walked into the kitchen of the unit, where the victims were, holding a screwdriver in a menacing fashion. He then took a handbag that was on the kitchen table before escaping.
Approximately two hours later, Mr Treloar (accompanied by another man) approached the victim of the second offence from behind as she was walking through a car park. He grabbed her handbag and attempted to pull it from the victim’s grasp. The victim resisted and fell to the ground. She saw both Mr Treloar and his accomplice, who was holding a screwdriver. They both fled the scene with the victim’s handbag.
Mr Treloar was 17 years of age at the time of his offending. He entered guilty pleas and was committed to the District Court for sentence as an adult pursuant to s 29 of the YO Act for multiple offences (including the above). He was sentenced to imprisonment for three years, eight months and two weeks, with a non-parole period of 24 months.
On 5 June 2020, the Attorney-General brought an application for an ESO with respect to Mr Treloar. At that date, Mr Treloar was an adult and, by virtue of the above offending, was a ‘serious violent offender’.[8] As he had been sentenced to imprisonment for that offending, it was conceded that he was therefore a ‘high risk offender’ for the purposes of the HRO Act.[9]
[8] HRO Act, s 4; CLCA, s 83D(1).
[9] HRO Act, s 5(c).
Mr Shi
On 23 March 2017, Mr Shi was convicted of three counts of aggravated indecent assault,[10] unlawful sexual intercourse[11] and inducing a child to expose themselves,[12] amongst other offences.
[10] Contrary to s 56 of the CLCA.
[11] Contrary to s 49 of the CLCA.
[12] Contrary to s 63B of the CLCA.
One of the counts of aggravated indecent assault was committed between 1 April 2015 and 7 August 2015 against a victim who was a nine year old boy. Mr Shi was his piano teacher. Mr Shi touched the victim’s penis on one occasion, against a background of uncharged conduct.
The victim of the two further counts of aggravated indecent assault and the unlawful sexual intercourse was a 14 year old boy. Again, Mr Shi was the victim’s piano teacher. On 7 August 2015, during a piano lesson, Mr Shi kissed the victim on the lips, masturbated his penis and performed fellatio on him. Mr Shi told him not to tell his parents. However, the victim told his father immediately after the lesson. The matter was reported to the police the same day.
Mr Shi was 17 years of age at the time of his offending. He entered guilty pleas and was committed to the District Court for sentence as an adult pursuant to s 29 of the YO Act for multiple offences (including the above). He was sentenced to imprisonment for three years and six months, with a non-parole period of two years and three months.
On 13 March 2019, the Attorney-General brought an application for an ESO with respect to Mr Shi. At that date, Mr Shi was an adult and, by virtue of the above offending was a ‘serious sexual offender’.[13] As he had been sentenced to imprisonment for that offending, it was conceded that he was therefore a ‘high risk offender’ for the purposes of the HRO Act.[14]
[13] HRO Act, s 4.
[14] HRO Act, s 5(a).
The legislative framework
Section 7 of the HRO Act empowers the Supreme Court, upon an application made by the Attorney-General, to make an order that a person be subject to an ESO if it is satisfied that: (a) the person is a high risk offender; and (b) they pose an appreciable risk to the safety of the community if not supervised under the order. It relevantly provides:
7—Proceedings
(1)The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).
(2)An application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent.
(3)     …
(4) The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)     the respondent is a high risk offender; and
(b)     the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
…
A high risk offender is defined in s 5:
5—Meaning of high risk offender
For the purposes of this Act, a high risk offender is—
(a)     a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)     a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;
(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act2006;
(iii)    an offence under section 99I of the Summary Procedure Act 1921;
(iv) an offence prescribed by the regulations for the purposes of this paragraph; or
(c)     a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
(ca)    a terror suspect who is serving a sentence of imprisonment; or
(d)     a person who is subject to an extended supervision order.
Section 6 provides that the HRO Act does not apply in relation to a youth:
6—Application of Act
(1) Subject to subsection (2), this Act does not apply in relation to a youth.
(2) This Act applies (with any modifications prescribed by the regulations) in relation to a youth who is of or above the age of 16 years and is a terror suspect.
The HRO Act adopts the definition of youth set out in s 4 the YO Act, which is in the following terms:
youth means a person of or above the age of 10 years but under the age of 18 years and, in relation to proceedings for an offence or detention in a training centre, includes a person who was under the age of 18 years on the date of the alleged offence.
When considering the Court’s jurisdiction to make an ESO in respect of a young offender, it is useful to distinguish between two issues of statutory construction that arise from these provisions.
The first arises from the requirement in s 5 of the HRO Act that the offender “was sentenced to a period of imprisonment”, or “is serving a sentence of imprisonment”. The issue of construction to which this requirement gives rise is whether the word “imprisonment” in this context extends to any form of custodial confinement, or whether it is limited to incarceration in a prison. The former construction would mean that a person who has been detained in a youth detention centre may qualify as a high risk offender. The latter construction would mean that a person who committed offences as a youth would only qualify as a high risk offender if he or she was sentenced, on an exceptional basis under the YO Act, to a period of imprisonment.[15]
[15] YO Act, ss 16-17A, 29.
As will be seen, this first issue was resolved in favour of the latter construction by Lovell J in Attorney-General (SA) v Smith.[16] We agree with this construction of the word “imprisonment” under s 5 of the HRO Act, and it was not challenged in the present appeals.
[16] Attorney-General (SA) v Smith [2020] SASC 108.
The second issue of construction arises from the provision in s 6(1) of the HRO Act that it “does not apply in relation to a youth”. The Attorney-General contends that this provision operates merely to preclude the Court from entertaining any application for an order under the HRO Act, and hence from making any order under that Act, in relation to a person who is a youth at the time the operative provisions of the HRO Act are sought to be invoked; that is, at the time the application is brought. The Respondents, on the other hand, contend that this provision operates more broadly to preclude the Court from entertaining any application for an order under the HRO Act, and hence from making any order under that Act, in relation to a person who, even though an adult at the time the application is brought, was a youth at the time of his or her qualifying offending.
This second issue was assumed in favour of the Attorney-General’s construction in the first instance decisions in relation to Mr Treloar and Mr Shi. In the first instance decision in relation to Mr Woods-Pierce, David J determined the issue in favour of the Respondents’ construction. That said, her Honour did so in circumstances where counsel for Mr Woods-Pierce submitted, and the Attorney-General conceded, that this second issue had been determined that way by Lovell J in Attorney-General (SA) v Smith, albeit that the Attorney-General challenged the correctness of, and invited David J to overrule, that aspect of Lovell J’s decision. The Attorney-General now contends that this concession was made in error and that, properly understood, Lovell J did not determine the second issue.
It is convenient to commence by reviewing the decisions of Lovell J in Attorney-General (SA) v Smith and David J in Attorney-General v Woods-Pierce, before then undertaking our own analysis of the second construction issue.
The decision in Attorney-General (SA) v Smith
Mr Smith was convicted of two counts of rape (a serious sexual offence for the purposes of the HRO Act) that he committed when 15 years of age. He was sentenced to a period of youth detention for this offending. Over a decade later, when he was an adult, Mr Smith was convicted of three counts of possessing child exploitation material contrary to s 63A of the CLCA. This offending did not constitute a ‘serious sexual offence’, but was qualifying offending for the purposes of s 5(b)(i) of the HRO Act. However, in order for the trigger in s 5(b)(i) to be enlivened, it was also necessary that Mr Smith be a person referred to in s 5(a) (that is, “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”).

The application for an ESO in relation to Mr Smith raised, and indeed turned upon, the first construction issue identified earlier in these reasons. Mr Smith argued that he did not qualify as a high risk offender because he had not been “imprisoned” for the serious sexual offending. Instead, he had been sentenced to youth detention. The Attorney-General submitted that the term “imprisonment” had a wide and non-technical meaning that included any form of deprivation of liberty or confinement such that it extended to youth detention.
Lovell J determined this issue in favour of Mr Smith, and against the construction contended for in that case by the Attorney-General, holding that “the HRO Act only applies to those persons who have been sentenced to a period of imprisonment, not detention.”[17]
[17] Attorney-General (SA) v Smith [2020] 108 at [36].
The Attorney-General now accepts the correctness of this conclusion in relation to the construction of s 5 of the HRO Act. As we have already mentioned, we consider that this concession was properly made.
However, in the course of his reasoning in support of this conclusion, Lovell J also made reference to s 6(1) of the HRO Act, stating that by reason of that provision the HRO Act did not apply to Mr Smith because he was a youth at the time he committed the rapes and so not a ‘serious sexual offender’ for the purposes of s 5(a) of the HRO Act.[18]
[18] Attorney-General (SA) v Smith [2020] 108 at [33], [36].
In the hearing before Lovell J, the Attorney-General had made a submission that although Mr Smith was a youth at the time of his serious sexual offending, the fact that he had subsequently committed an offence of the kind identified in s 5(b)(i) as an adult had the effect of transmogrifying the youth offending into qualifying offending for the purposes of s 5(a) of the Act. In the present appeals, the Attorney-General contends that Lovell J’s observations in relation to s 6(1) were intended merely in support of his Honour’s rejection of this transmogrification submission, and are not to be understood as addressing, and rejecting, the Attorney-General’s submission in relation to the second construction issue.
While it is not entirely clear to us that Lovell J’s observations were confined in this way, we do not need to reach any conclusion about this. The parties on the present appeals are agreed that this Court can and should reach its own view on the second construction issue.
The decision in Attorney-General (SA) v Woods-Pierce
Mr Woods-Pierce was a youth when he committed his qualifying offending, but was sentenced as an adult to a term of imprisonment. Accordingly, and like the applications in relation to Mr Treloar and Mr Shi, but unlike the application in relation to Mr Smith, the first construction issue did not arise. Rather, the application turned on the second construction issue. It turned on this issue because Mr Woods-Pierce (like Mr Treloar and Mr Shi), while a youth when he committed the qualifying offending, was an adult by the time the Attorney-General brought the application for an ESO.
As mentioned, in submissions before David J, Mr Woods-Pierce submitted, and the Attorney-General conceded, that Lovell J in Attorney-General (SA) v Smith had determined the second construction issue against the Attorney-General; that Lovell J had determined that, by reason of s 6(1) of the HRO Act, the Act did not apply to a person who committed their qualifying offending while still a youth. While the Attorney-General submitted that David J should decline to follow Lovell J on this second construction issue, it is understandable in the circumstances that we have described that David J declined to depart from the agreed interpretation of Lovell J’s reasons. Her Honour thus dismissed the Attorney‑General’s application for an ESO on the basis that Mr Woods-Pierce was a youth when he committed, and was convicted of, the offences that met the definition of ‘serious sexual offence’ and ‘serious violence offence’ for the purposes of s 5, and that s 6(1) of the HRO Act therefore removed Mr Woods‑Pierce from the operation of that Act.
Despite the above, the Attorney-General now submits that, properly understood, Lovell J did not determine the second construction issue in Attorney‑General (SA) v Smith, and that David J erred in determining that issue against the Attorney-General. The Respondents, on the other hand, support the conclusion reached by David J on this issue.
As the issue is one of statutory interpretation, the parties have approached the present appeals on the basis that this Court should reach its own view as to the appropriate construction of s 6(1) of the HRO Act.
Analysis
In construing s 6(1) of the HRO Act, the Court’s task is to ascertain the intention of Parliament, having regard to the text, context and purpose of the relevant provision. In our view, consideration of these matters supports the construction of s 6(1) contended for by the Attorney-General.
As to the text of s 6(1), the Attorney-General contends that the words used (“this Act does not apply”) direct attention to the operative provisions of the HRO Act, being the provisions contained in Part 2 (Extended Supervision Orders) and Part 3 (Continuing Detention Orders) of the HRO Act. While focusing upon the provision governing the making of an application (s 7(1)), the Attorney-General also refers in this respect to the provisions governing the making of an ESO (s 7(4)); the making of an interim supervision order (s 9(1)); the making of a continuing detention order (s 18(2)); the summonsing, arrest and detention of persons in the event of suspected breach of a supervision order (ss 15 and 16(1)); and the imposition of conditions on a supervision order (ss 11(1) and 17(1)(b)). The Attorney-General contends that the s 6(1) disapplication of the HRO Act to youths is directed towards the point in time at which these operative provisions are sought to be invoked.
We agree with this contention. In our view, the present tense statement that “this Act does not apply in relation to a youth” naturally directs attention to the provisions of the HRO Act which govern its application. It directs attention to the provisions which govern the persons in respect of whom the Attorney‑General may bring an application, and in respect of whom the Court may make an order. The critical provisions in that regard are ss 7(1), 7(4), 9(1) and 18(2). Each of those provisions refers to a person (the respondent to the relevant application) to whom the HRO Act applies, and hence in respect of whom the Court may exercise its powers under the HRO Act. The natural reading of the statement in s 6(1) that the Act does not apply to a youth is that the Act does not apply to a person (or proposed respondent) who is a youth at the time the Attorney‑General seeks to invoke the Court’s powers under the sections to which we have referred.
In contrast to this textual support for the Attorney-General’s construction, it is difficult to identify the textual basis for the Respondents’ construction. On the Respondents’ construction, the Act does not apply if the respondent to an application was a youth at the time he or she committed his or her qualifying offending. It seems to us that this construction assumes that the respondent is not a high risk offender (as defined in s 5) if the qualifying offending occurred at a time when the respondent was a youth. But there is nothing in the text of s 5 (or the definitional provisions which it invokes) which provides a mechanism for applying the exclusion of youths under s 6(1) to the construction of s 5 in this way. To the extent that the Respondents’ construction has a basis at all in the text of ss 5 and 6(1), it involves a less natural construction of that text.
In support of their focus upon the respondent’s age (and hence status as a youth) at the date of the qualifying offending, the Respondents rely upon the extension of the definition of a youth within s 4 of the YO Act to include a person who was under the age of 18 years “on the date of the alleged offence”. We do not think these words assist the Respondents’ construction of s 6(1) of the HRO Act. There are two reasons for this. The first is that this aspect of the s 4 definition of youth only applies “in relation to proceedings for an offence or detention in a training centre”. It would involve a strained interpretation of those words to conclude that they encompass proceedings under the HRO Act. The second is that even if those words could be said to extend to proceedings under the HRO Act, they do not neatly or naturally explain the Respondents’ construction. There remains no textual basis or link for applying this aspect of the definition of a youth in s 4 of the YO Act to the definition of a high risk offender in s 5 of the HRO Act so as to render the HRO Act inapplicable.
We accept that the Attorney-General’s construction has the consequence that an aspect of the definition of “youth” from the YO Act that is expressly picked up by the HRO Act is redundant. It has the consequence that the words appearing after the conjunction “and” in that definition are surplusage. It is also true that if the only aspect of the definition of a “youth” under s 4 of the YO Act that was intended to have operative effect was the reference to a youth being a person “of or above the age of 10 years but under the age of 18 years”, then there seems to have been little point in using the drafting technique of a cross-reference within the HRO Act to this definition from the YO Act. Parliament could very easily have taken the words from the operative part of the definition of a youth and have included them within the HRO Act itself.
While these are relevant considerations, we do not think they carry much weight in the present case. The incorporation of a definition from another piece of legislation is not an uncommon legislative technique. It may be explained by a desire to ensure the harmonious operation of different pieces of legislation, rather than mere expediency. And if harmonisation rather than expediency was the rationale for the use of this technique, then it is unremarkable that the definition to which cross-reference has been made is a simple one that could easily have been repeated within the HRO Act itself. Given the centrality of the YO Act to the criminal law’s interaction with young offenders, there is nothing unexpected or unlikely about Parliament intending to ‘pick up’ the core of that definition (which reflects Parliament’s intention as to the relevant age range for a youth), and indeed doing so without intending to give the entirety of that definition work to do. In our view, recognition that some of the words incorporated by cross-reference are surplusage is of less concern than a conclusion of surplusage might have been in the context of construing words included within the HRO Act itself.
We would also add in this context that, even on the Respondents’ construction, the reference to “proceedings for … detention in a training centre” in the definition of youth in the YO Act would be surplusage. So the issue is the extent of the surplus language in the definition that has been incorporated by way of cross-reference, rather than whether there are any surplus words at all.
Turning to the context in which the critical words in s 6(1) of the HRO Act appear, both the Attorney-General and the Respondents seek to make something of their being subject to, and juxtaposed with, the provision in s 6(2) that the Act does apply “in relation to a youth who is of or above the age of 16 years and is a terror suspect”.
In our view, the terms of s 6(2) provide some, albeit limited, support for the Attorney-General’s construction. We divine that support from the use of the present tense in s 6(2) and the clear focus in that subsection upon the age and status of the relevant person (the potential respondent to an application under the HRO Act) at the time the Act is sought to be invoked through the bringing of an application. This focus of s 6(2) aligns with, and is naturally complementary with, the Attorney-General’s construction of s 6(1).
More significantly, we consider that the Attorney-General’s construction of s 6(1), with its focus upon the age of the potential respondent at the date the application is made, is consistent with the evident purpose of the HRO Act.
Under s 3 of the HRO Act, the object of the Act is “to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders”. It is apparent that the risk from which the HRO Act seeks to protect the community is the risk presented by a respondent offender at the time of their proposed release from imprisonment into the community (s 7(4)). This purpose finds expression in the decision-making process by which ESOs are to be made, including the requirement that an application may only be made within 12 months of the relevant expiry date (s 7(2)), and that the Court must take into account expert evidence prepared at a time temporally proximate to this date and addressing the risk the respondent would present if released (s 7(3)).
In our view, this understanding of the purpose of the HRO Act supports an intention on the part of the Parliament that the focus under the HRO Act be upon an assessment of the risk presented by the respondent offender at the time of the application rather than at some point in the past (such as when the qualifying offending was committed). It thus supports, in our view, a construction of the Act that has its applicability determined by reference to the person’s age and status as at the time of the application. Further, to the extent that the disapplication of the HRO Act to youths represents a view that it is not appropriate to subject such persons to an ESO, this again supports a construction of s 6(1) that directs attention to their status as at the time the Attorney-General seeks to invoke the Court’s power to make an ESO.
In summary, while reference to the respondent’s age at the time he or she committed the qualifying offending would be consistent with the criminal law’s usual focus upon culpability, the purpose of the HRO Act supports a focus upon the risk presented by the respondent and the appropriateness of subjecting the respondent to a regime intended to address that risk. A construction of s 6(1) that requires reference to the respondent’s age at the date of the application for an order under the HRO Act would be consistent with this understanding of the purpose of the HRO Act.
The Respondents point to the rehabilitative purposes of the HRO Act as supporting their construction of s 6(1). However, given the potential for ESOs to be tailored to promote rehabilitation,[19] it is not clear to us how that purpose is said to support a construction of s 6(1) that would narrow the application of the HRO Act to persons on the basis that they were youths at the time of their qualifying offending. To the contrary, and as the Attorney-General submits, the making of an ESO in relation to an adult (albeit that they were a youth at the time of their qualifying offending) may, in all the circumstances, present the best opportunity for them to rehabilitate themselves.
[19] See s 7(6)(f) as to the relevance of rehabilitation to the making of an ESO.
We conclude by observing that we do not think that the principle that penal statutes ought to be strictly construed is of any assistance to the resolution of the construction of s 6(1).
The first reason for this view is that the HRO Act serves a protective rather than penal purpose. This is apparent from the statement of the object of the Act in s 3 (“to protect the community from … appreciable risk of harm”), and from the references to the paramountcy of the safety of the community in ss 7(5) and 18(3). It is also supported by authority.[20] We accept that the imposition of an ESO burdens a respondent, and that the breach of an ESO may result in that person being the subject of a continuing detention order. While not creating any criminal offence or otherwise exposing the respondent to criminal liability, the HRO Act does expose the respondent to detention within a prison. However, as the Attorney-General submits, while this might in some situations suffice to characterise legislation as punitive or penal in nature, “that characterisation may be displaced by an evident non-punitive protective purpose”.[21] Given the protective purpose pursued by the HRO Act, we do not consider that the principle relied upon by the Respondents is applicable to the construction of s 6(1).
[20] See for example, Attorney-General(SA) v Moyle (No 2) (2019) 134 SASR 257 at [21] (Hinton J); Attorney-General (SA) v Rankine [2020] SASC 163 at [8] (Lovell J); Attorney-General (SA) v Drion [2020] SASC 120 at [67]-[68] (Livesey J); Attorney-General (SA) v Tipping [2020] SASC 64 at [39] (Nicholson J).
[21] Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at [39]-[41] (Kiefel CJ, Bell, Keane and Steward JJ).
Secondly, and in any event, to the extent that the principle might apply, its operation is confined to situations where real ambiguity persists after the application of the ordinary rules of construction.[22] For the reasons already given, we consider that the application of those rules resolves the question of construction in favour of the Attorney-General’s construction of s 6(1).
[22] R v A2 (2019) 93 ALJR 1106 at [52] (Kiefel CJ and Keane J).
We would add that, in our view, recourse to the principle of legality likewise does not assist the Respondents in the present case. It is true that the imposition of an ESO, and consequential exposure to a continuing detention order, involves a substantial burden upon, and impairment of, the liberties of the person subject to the supervision or detention. However, the principle of legality has only a limited role to play where, as here, the legislation to be construed has amongst its objects the abrogation or curtailment of the particular freedom or liberty in respect of which the principle is sought to be invoked.[23] Certainly this is so where, as here, we have reached the conclusion, through the application of the ordinary rules of construction, that the Attorney-General’s construction is preferred, and indeed that the Respondents’ construction is not reasonably open.[24]
[23] Wichen v The Queen [2021] SASCA 30 at [27] (Kelly P, Lovell and Bleby JJA); Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [313]-[314] (Gageler and Keane JJ); X7 v Australian Crime Commission (2013) 248 CLR 92 at [24] (French CJ and Crennan J), [119], [125] (Hayne and Bell JJ), [158] (Kiefel J).
[24] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ).
Conclusion
For the reasons given, we would adopt the Attorney-General’s construction of s 6(1) of the HRO Act with the consequence that the Act applies, and the Court may make an ESO, in relation to a person who was a youth at the time they committed their qualifying offending, but was sentenced as an adult to a period of imprisonment, and was an adult at the time the application for the ESO was brought.
There is no dispute that each of Mr Woods-Pierce, Mr Treloar and Mr Shi were adults and met the definition of high risk offenders at the time that the respective ESO applications were made by the Attorney-General. We therefore allow the Attorney-General’s appeal in Mr Woods-Pierce’s matter, and remit the Attorney-General’s application for an ESO in that matter for further consideration by a judge of this Court. We dismiss Mr Treloar’s and Mr Shi’s appeals.