Director of Public Prosecutions v Phillip Lyons (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0106

IN THE MATTER of questions reserved in a proceeding pursuant to s 17B(2) of the Supreme Court Act 1986

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
PHILLIP LYONS (A PSEUDONYM)	Respondent

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JUDGES:	TATE AP, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2018
DATE OF JUDGMENT:	27 September 2018
ORIGINATING PROCESS:	Questions Reserved, Weinberg JA, Supreme Court of Victoria, 7 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 247

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STATUTORY INTERPRETATION – Transitional provisions – Post-sentence detention and supervision regime for serious sex offenders expanded to include offenders who have served custodial sentences for serious violence offences – Repeal of Serious Sex Offenders (Detention and Supervision) Act 2009 – Commencement of Serious Offenders Act 2018 – Whether applications made but not determined before commencement of 2018 Act to be dealt with in accordance with 2009 Act or 2018 Act – Application on 7 August 2018 for renewal of detention order not determined until after commencement of 2018 Act – Reserved questions of law to Court of Appeal – Serious Offenders Act 2018 sch 4 cls 4 and 5.

WORDS – ‘made under this Act’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K Judd QC, Director of Public Prosecutions, with Ms K Churchill and Ms J Davidson	John Cain, Solicitor for Public Prosecutions
For the Respondent	Mr R Backwell	Greg Thomas Barrister & Solicitor
For the Secretary to the Department of Justice and Regulation as amicus curiae	Mr O P Holdenson QC with Mr J O’Connor	Victorian Government Solicitor

TATE AP
KAYE JA
NIALL JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	1
*The application for the renewal of a detention order for Lyons*...........................	3
*Reservation of questions to the Court of Appeal*....................................................	5
*The 2018 Act*..................................................................................................................	8
*The 2009 Act*..................................................................................................................	23
*Does the 2009 Act or the 2018 Act apply?*................................................................	30
*Practical consequences*................................................................................................	39
*Proposed orders*............................................................................................................	39

Introduction and summary

Since 2005 Victoria has had a system for the detention and supervision of serious sex offenders after the expiry of their custodial sentence. The Serious Sex Offenders Monitoring Act 2005 was repealed in 2010 by the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the 2009 Act’). Victoria has recently passed legislation extending the application of the post-sentence detention and supervision regime to include offenders who have served custodial sentences for serious violence offences, in addition to serious sex offenders, pursuant to the Serious Offenders Act 2018 (‘the 2018 Act’). The 2009 Act was repealed with effect from 3 September 2018, that being the date the 2018 Act came into operation. An issue has arisen whether the 2009 Act or the 2018 Act applies in respect of an application by the Director of Public Prosecutions (‘the DPP’) for the renewal of a detention order in respect of a serious sex offender, Phillip Lyons (‘Lyons’).[1] The application was made before 3 September 2018 but was heard, and is to be determined, after that date.
[1]To ensure there is no possibility of the identification of the victims of sexual offending and, pursuant to s 279(1) of the Serious Offenders Act 2018, to ensure that the offender or his whereabouts cannot be identified, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the offender.

The resolution of the issue depends upon the interpretation of the transitional provisions in sch 4 to the 2018 Act. In particular, it turns on the meaning of cl 5(2) of sch 4 which provides that an order made on an application under the 2009 Act that was not determined before the commencement day of the 2018 Act (3 September 2018) ‘is to be made under this Act’.[2]
[2]Emphasis added. See [26] below.

In our view, the clear meaning of cl 5(2) is that ‘this Act’ refers to the 2018 Act. An order for the renewal of the detention order made in respect of Lyons is, therefore, to be determined, and thus made, under the 2018 Act. It is to be made, specifically, under s 73 of the 2018 Act[3] which requires the court to be satisfied[4] that Lyons poses an unacceptable risk of committing a serious sex offence or a serious violence offence or both if the detention order is not renewed[5] and Lyons is in the community. The Court must also be satisfied that a detention order is the only option.
[3]See [25] below.
[4]By reference to ss 62, 63 and 64 of the 2018 Act. See [25] below.
[5]Or a supervision order is not made.

More generally, it is our view that orders in response to applications for a detention order or an interim detention order, a supervision order or an interim supervision order, or for the renewal or extension of those type of orders, or for the review of an order or a condition of such an order, brought but not determined before 3 September 2018, are to be determined, and thus made, under the 2018 Act and in accordance with the statutory criteria in the 2018 Act.

We consider that this construction not only reflects the plain words of cl 5(2) but also the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The application for the renewal of a detention order for Lyons

On 5 September 2017 Weinberg JA, sitting in the Trial Division, made a detention order in respect of Lyons, being satisfied that Lyons posed ‘an unacceptable risk of committing a relevant offence as defined in the [2009] Act if a detention order is not made and [Lyons] is in the community’. The 2009 Act defined ‘relevant offence’ in s 3 as ‘an offence listed in Schedule 1’ to the 2009 Act. The offences listed in sch 1 were all sexual offences. The detention order commenced on 10 September 2017, the date on which Lyons was to complete the service of his custodial sentence, and remained in operation for one year.

The custodial sentence Lyons was serving at the time of the making of the detention order included a period of imprisonment for the offence of knowingly possessing child pornography and failing to comply with a supervision order. The supervision order had been made in February 2012, for a period of eight years, to take effect from the date on which Lyons’ custodial sentence was to be completed for the earlier offences of abducting/detaining a person for the purpose of sexual penetration and for sexual penetration of a child under 16 years. In September 2012, during the supervision order, he was convicted of five charges of threat to inflict serious injury, three charges of making threats to kill, and one charge of unlawful assault. In 2015 he was convicted of making a threat to kill.

On 7 August 2018 the DPP made an application[6] for the renewal of the detention order on the ground that Lyons continued to pose an unacceptable risk of committing ‘a relevant offence’ if released into the community. The application for renewal was based, in part, on a progress report written by Simon Candlish, consultant psychologist[7] and a psychiatric report written by Dr Leon Turnbull, consultant psychiatrist.[8] On the basis of those reports and other materials, the DPP ‘contended that [Lyons] represents a high risk of sexual re-offending which cannot be addressed otherwise than by way of a detention order’.
[6]Under s 45(1) of the 2009 Act, the DPP could, at any time while a detention order was in force, apply to the Supreme Court for the order to be renewed.
[7]Dated 16 June 2018.
[8]Dated 29 July 2018.

The Candlish report details Lyons’ sexual offence history. This included inappropriate sexualised behaviour from the age of 12 years. Lyons was found guilty of a sexual assault at approximately 13 years of age. In 2000, in addition to other violent offences, he was found guilty of committing an indecent act with a child under 16 years and was convicted of wilful and obscene exposure in public in 2002. In 2004 Lyons was convicted of the offences of abducting/detaining a person for the purpose of sexual penetration and sexual penetration of a child under 16 years, mentioned above.

The Candlish report also details Lyons’ non-sexual violent history. At the age of 16 years, Lyons was charged with two counts of unlawful assault, two counts of wilfully damaging property, one count of recklessly causing injury and one count of assault by kicking. It was noted in an earlier assessment report that Lyons had kicked a door off its hinges and assaulted a staff member by bending her finger back and punching her in the face, back and on her arm. In 2003 Lyons was found guilty of one count of assault with a weapon and one count of recklessly threatening serious injury. He was also fined on one count of unlawful assault. In 2004 he was convicted and fined on one count of assault with a weapon. He committed other violent offences during the currency of his 2012 supervision order, some of which are described above.

Mr Candlish considers that Lyons falls into the High-risk category for sexual recidivism:

Based on the configuration of risk factors, [Lyons] continues to fall into the High-risk category.
...
... He displays the presence of sexual deviance as well as displaying a high number of traits associated with psychopathy. In the research, psychopathy and deviant sexual arousal has been found to be a potent combination. This combination of deviance with psychopathic traits is highly relevant to risk given that such deviance may be more likely to be acted upon given his impulsivity, disregard for others and poor perspective-taking as well as his poor ability to control his behaviour.

Mr Candlish also conducted an assessment for risk for non-sexual violence. He considers that Lyons has:

definite problems with violent attitudes. He has an extensive history of expressing desires to kill and threatening to kill others. He has displayed chronic hostility, low-level agitation and quickness to anger and to behave aggressively. He has justified and minimised his use of violence. These behaviours are indicative of chronic violent attitudes.

Mr Candlish assesses Lyons ‘as falling into the High-risk category for non-sexual violence’. He outlines the gravity of the consequence of Lyons’ committing further violent offences:

Should [Lyons] re-offend, the impact of his behaviour might range from mild to severe physical injury. Given his frequent threats to kill or seriously injure others as well as his self-report of stabbing others, in the context of ongoing chronic hostility, impulsivity and limited empathic regard, the impact of his behaviour may also be fatal.

The assessment by Mr Candlish is reinforced by that of Dr Turnbull, who says:

Taking together the information and assessments, I cannot with any confidence suggest [Lyons] is now in a position where he will not offend again. Beyond a distaste for custody I do not see a viable plan offered by him that would reduce the likelihood of offending to anything less than more likely than not. My assessment is this man is at high risk of reoffending.

Reservation of questions to the Court of Appeal

The application by the DPP for the renewal of the detention order came before Weinberg JA, sitting as a single judge of the Trial Division, on 4 September 2018. An expert witness had been unavailable to attend a hearing before that date. The DPP’s application was based upon the statutory criteria in the 2009 Act. In particular, the DPP relied on the fact that as at 7 August 2018, the date the application for renewal of the detention orders was made, Lyons was an ‘eligible offender’ as defined in s 4 of the 2009 Act because at the time Lyons was subject to a detention order.[9] She contended that the 2009 Act renders Lyons liable to a detention order on the grounds set out in ss 35 and 36 of the 2009 Act,[10] namely that he poses an unacceptable risk, if he were released into the community, of committing a ‘relevant offence’ as defined in s 3 of the 2009 Act, namely an offence contained in sch 1. As mentioned, each of those offences is a sexual offence.
[9]2009 Act s 4(4B).
[10]See [30] below.

The DPP adopted the position, having regard to the transitional provisions in the 2018 Act, that the determination of the application for the renewal of the detention order continues to be dealt with under the 2009 Act, including the test for the scope of ‘unacceptable risk’ set out in ss 35 and 36 of the 2009 Act, that is, as confined to the commission of a sexual offence, but that any order made would be in accordance with the form set out in the 2018 Act.

Weinberg JA granted leave for the Secretary to the Department of Justice and Regulation (‘the Secretary’) to appear before him as an amicus curiae. The Secretary submitted that it is the 2018 Act that applies to the renewal application and all other applications made before 3 September 2018 but not determined by that date. The 2018 Act expands the eligibility for a detention order, or a supervision order, and the grounds upon which an order can be made to not only ‘serious sex offences’, meaning an offence referred to in sch 1 to the 2018 Act, but also to include non-sexual ‘serious violence offences’, being those offences set out in sch 2 to the 2018 Act. The Secretary submitted that, as from 3 September 2018, all pending applications are to be determined by reference to the provisions of the 2018 Act, including the expanded grounds for making a detention order (ss 62–64)[11] or a supervision order (s 14),[12] namely, that there is an unacceptable risk of the commission of a serious sex offence, or a serious violence offence, or both.
[11]See [25] below.
[12]Ibid.

His Honour was informed that there were other applications in respect of detention or supervision orders that had been filed under the 2009 Act, in both the Supreme Court and the County Court, that are yet to be determined. These include an application for the review of a detention order in the Supreme Court. These applications are also affected by the issue of whether the 2009 Act or the 2018 Act applies to their determination.

On 6 September 2018, at a mention of the Lyons matter, the DPP requested that a question be reserved for the consideration of the Court of Appeal. His Honour acceded to the request and, on 6 September 2018, pursuant to s 17B(2) of the Supreme Court Act 1986,[13] reserved the following three questions in this proceeding for the consideration of the Court of Appeal:

1.Applications for both the renewal of a detention order, and for an interim detention order having been filed prior to 3 September 2018 under the Serious Sex Offenders (Detention and Supervision) Act 2009 but not having yet been finally determined, are these applications to be dealt with in accordance with the provisions of that Act, or the provisions of the Serious Offenders Act 2018?
2.The relevant transitional provisions being cls 4 and 5 in Schedule 4 to the Serious Offenders Act 2018, do the superseded Act and Regulations made under that Act (as understood in cl 5) continue to apply to these applications given that they had not been determined before the commencement day of the Serious Offenders Act 2018?
3.If the provisions of the superseded Act and Regulations continue to apply to these applications, to what extent do they do so?

[13]Section 17B(2) of the Supreme Court Act provides:

The Trial Division constituted by a Judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.

The DPP gave notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission that the questions reserved raised an issue under the Charter of Human Rights and Responsibilities (‘the Charter’) with respect to the interpretation of a statutory provision in accordance with the Charter, namely:

How the provisions of clause 5 of Schedule 4 of the [2018] Act should be construed, in light of:
(a) s 32 of the Charter and the rights to liberty (s 21), privacy (s 13) and freedom of movement (s 12); and
(b) the absence of any discussion in the Statement of Compatibility accompanying the Serious Offenders Bill 2018 identifying that the effect of the transitional provisions was that the provisions of the Bill would apply to the determination of applications and appeals already filed under the [2009] Act or addressing the compatibility of such provisions with the human rights in the Charter.

Neither the Attorney-General nor the Commission has sought to intervene.

On 7 September 2018 Weinberg JA also made an interim detention order[14] for one month and a suppression order with respect to the identification of the offender:

1.[Phillip Lyons] be subject to an interim detention order, pursuant to section 77 of the Serious Offenders Act 2019 (‘the Act’).
2.Pursuant to s 77(2) and 80 of the Act, the interim detention order shall commence operation on 7 September 2018.
3.Pursuant to s 77(2) and 81 of the Act, the period during which the interim detention order remains in operation is 1 month.
4.Any information before the Court in this proceeding that might enable [Phillip Lyons] or his whereabouts to be identified must not be published until the next review under Part 8 of the Act is heard and determined, the Court being satisfied that it is in the public interest to do so pursuant to section 279(1) of the Act.[15]

[14]The interim detention order was made under the 2018 Act on the basis that the DPP accepts that any order made after 3 September 2018 is to be made, as a matter of form, under the 2018 Act.

[15]The suppression order was reaffirmed in this Court on 14 September 2018.

The hearing of the questions reserved came before this Court on 14 September 2018.

The 2018 Act

The 2018 Act defines ‘detention orders’ and ‘supervision orders’ in s 3:

detention order means an order made under section 62 or 73 and includes any extension of the order.
supervision order means an order made under section 14, 24 or 62 and includes any extension of the order.

Section 14 prescribes the state of satisfaction required for a supervision order to be made; s 15 prescribes that the ‘core conditions’ for a supervision order are found in s 31; s 16 prescribes the content of a supervision order; s 24 governs applications for the renewal of a supervision order; s 31 identifies the ‘core conditions’ of a supervision order (different in some respects from the ‘core conditions’ of a supervision order under the 2009 Act); s 61 sets out how the DPP applies for a detention order; s 62 prescribes what the court needs to be satisfied of before making a detention order (by reference to ss 63 and 64); s 63 requires a court to be satisfied that an offender poses an unacceptable risk of committing a serious sex offence or a serious violent offence or both (as mentioned, this is to be contrasted with s 35 of the 2009 which confined the unacceptable risk to the commission of a ‘relevant offence’, being a sexual offence); s 64 requires a court to be satisfied, before making a detention order, that it is necessary for the order to be made; s 65 prescribes the content of a detention order; s 71 sets out how the DPP applies for the renewal of a detention order; s 73 prescribes that the test to be applied for the renewal of a detention order is the test in ss 62, 63 and 64; s 106 provides for a supervision order to be revoked, on review, unless the Court is satisfied that the offender still poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not in effect and the offender is in the community; s 108 provides for a detention order to be revoked, on review, unless the Court is satisfied that the offender still poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order is not in effect and the offender is in the community; and s 169 makes it an offence to contravene a supervision order or an interim supervision order.

14 Determination of application for supervision order
(1)On an application under section 13, the court may make a supervision order in respect of an eligible offender if, and only if, the court is satisfied that—
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not made and the offender is in the community; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not made and the offender is in the community.

(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1)—
(a)the court must have regard to—
(i)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(ii)any other report filed, tendered or made, or evidence given, in relation to the application; and
(iii)any other matter the court considers appropriate; and

(b) the court must not have regard to—
(i) the means of managing the risk; or
(ii)the likely impact of a supervision order on the offender.

(3)For the purposes of subsection (1), the court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk.
(4)The court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The Secretary has the burden of proving that an offender poses or will pose an unacceptable risk under subsection (1).
(6)If the court is satisfied as required by subsection (1), the court may—
(a)make a supervision order; or
(b)make no order.

(7)The court may hear and determine an application under section 13 even if the offender has ceased to be an eligible offender because—
(a)the custodial sentence has been served or has expired; or
(b)the offender is no longer subject to a detention order.

(8)The court may hear and determine an application under section 13 even if the offender is remanded in custody or is serving a custodial sentence.

15 Conditions of supervision order
A supervision order is subject to the core conditions set out in section 31 and any other conditions that the court imposes under Division 3.
16Content of supervision order
(1)A supervision order must state that the court is satisfied that the offender poses an unacceptable risk of committing—
(a)a serious sex offence; or
(b)a serious violence offence; or
(c)both a serious sex offence and a serious violence offence—
if a supervision order is not made and the offender is in the community.

(2)A supervision order must specify—
(a)the name of the offender in respect of whom the order is made; and
(b)the date on which the order is made; and
(c)the date on which the order commences under section 18; and
(d)the period of the order under section 19; and
(e)the conditions of the order under section 15; and
(f)if the order is subject to an intensive treatment and supervision condition—
(i)the period of the condition; and
(ii)the latest date by which an application for the first review of the condition must be made under section 113; and

(g)the latest date by which an application for the first review of the order must be made under Part 8 and the maximum intervals between subsequent reviews.

(3)A supervision order must be signed by the judge constituting the court that made it and include the name of the judge.

24Determination of application for renewal of supervision order
(1)On an application under section 22, the court may—
(a)renew the supervision order; or
(b)revoke the supervision order; or
(c)make no order under paragraph (a) or (b).

(2)An application for the renewal of a supervision order may be heard and determined despite the expiry of the supervision order sought to be renewed.
(3)Subject to this section, section 14 applies to the determination of an application under section 22 as if a reference to an application under section 13 were a reference to an application under section 22.
(4)If the court renews a supervision order, it may—
(a)vary, add or remove any condition of the order; or
(b)vary the maximum intervals between applications for review of the order.

(5)If the court renews a supervision order, the existing supervision order, if any, is revoked on the commencement of the supervision order that is renewed.
(6)The period of a supervision order that is renewed is the period specified under section 19(1).

31Core conditions of supervision order
(1)This section sets out the core conditions of a supervision order that apply to the offender during the period of the order, irrespective of when the order is made.
(2)The offender must not commit a serious sex offence in Victoria or elsewhere.
(3)The offender must not commit a serious violence offence in Victoria or elsewhere.
(4)The offender must not commit an offence referred to in Schedule 3 in Victoria or elsewhere.
(5)If the court requires an offender to reside at a residential facility or the Authority directs an offender to reside at a residential facility, the offender must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
(6)If the court requires an offender to reside at a residential facility or the Authority directs an offender to reside at a residential facility, the offender must obey all instructions given by a supervision officer or a specified officer under section 183.
(7)If the court requires an offender to reside at a residential treatment facility, the offender must not engage in conduct that poses a risk to the good order of the facility or the safety and welfare of offenders or staff at the facility or visitors to the facility.
(8)If the court requires an offender to reside at a residential treatment facility, the offender must obey all instructions given by a supervision officer or a specified officer under section 183.
(9)The offender must not engage in any behaviour or conduct that threatens the safety of any person (including the offender).
(10)The offender must attend at any place directed by the Authority for the purpose of administering the conditions of the order.
(11)The offender must attend at any place directed by the Authority for the purpose of making assessments required by the court, the Secretary or the DPP for the purposes of this Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist the court in determining the need for or the form of any condition of the order).
(12)The offender must report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this subsection.
(13)The offender must notify the Authority of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before commencing the changed or new employment.
(14)The offender must not leave Victoria except with the permission of the Authority granted either generally or in relation to a particular case.
(15)The offender must comply with a direction given by the Authority under the emergency power in section 142.
(16)The offender must obey all instructions given by a community corrections officer or a specified officer under section 209.

61Application for detention order
(1)The DPP may apply to the Supreme Court for a detention order in respect of a person who is an eligible offender at the time when the application is commenced.
(2)An application under subsection (1) is commenced by filing—
(a)a notice of application in accordance with the rules of court, if any; and
(b)an assessment report in respect of the eligible offender or, if the eligible offender is subject to a supervision order or an emergency detention order, a progress report and the most recent assessment report in respect of the eligible offender.

(3)As soon as practicable after an application under subsection (1) is commenced, the DPP must serve on the eligible offender—
(a)a copy of the notice of application; and
(b)a copy of the assessment report and the progress report (if any) filed with the application; and
(c)a notice (in the prescribed form, if any) setting out—
(i)the rights of an eligible offender in relation to the application, including rights of appeal; and
(ii)the procedure for the hearing and determination of the application; and
(iii)the nature of a detention order and a supervision order.

(4)An application under subsection (1) must be discontinued if the offender ceases to be an eligible offender by reason of section 7(4).

62Determination of application for detention order
(1)On an application under section 61, the Supreme Court may make a detention order in respect of an eligible offender if, and only if, the court is satisfied under section 63(1) and is satisfied under section 64(1).
(2)For the purposes of sections 63 and 64, the Supreme Court must be satisfied by acceptable, cogent evidence to a high degree of probability that the offender poses or will post an unacceptable risk.
(3)If the Supreme Court is not satisfied that the risk referred to in section 64(1) would be unacceptable unless a detention order were made, the court may make a supervision order in respect of the offender.
(4)Divisions 2 (other than section 13), 3 and 4 of Part 3 apply, with any necessary modifications, to the making of a supervision order under subsection (3) as if it were a supervision order made under Part 3.
(5)The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.
(6)The Supreme Court may hear and determine an application for a detention order even if the offender has ceased to be an eligible offender because—
(a)the custodial sentence has been served or has expired; or
(b)the offender is no longer subject to a supervision order.

(7)The Supreme Court may hear and determine an application under section 61 even if the offender is remanded in custody or is serving a custodial sentence.

63Finding of unacceptable risk
(1)For the purposes of section 62, the Supreme Court must be satisfied that—
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the offender poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order or a supervision order is not made and the offender is in the community.

(2)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court must have regard to—
(a)subject to section 273, any assessment report or progress report filed in relation to the application, whether by the Secretary or the offender; and
(b)any other report filed, tendered or made, or evidence given, in relation to the application; and
(c)any other matter the court considers appropriate.

(3)In determining whether an offender poses or will post an unacceptable risk under subsection (1), the Supreme Court must not have regard to—
(a)the means of managing the risk; or
(b)the likely impact of a detention order or a supervision order on the offender.

(4)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(5)The DPP has the burden of proving that an offender poses or will post an unacceptable risk under subsection (1).

64Detention order only option
(1)If the Supreme Court is satisfied as required by section 63(1), the Supreme Court must be satisfied that—
(a)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious sex offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or a serious violence offence or both would be unacceptable unless a detention order were made; or
(b)in the case of an offender on whom a court referred to in section 8(1)(a) has imposed a custodial sentence for a serious violence offence, the risk of the offender committing, or after release from custody committing, a serious sex offence or serious violence offence or both would be unacceptable unless a detention order were made.

(2)The Supreme Court may determine that an offender poses or will pose an unacceptable risk under subsection (1) even if the likelihood that the offender will commit a serious sex offence or a serious violence offence or both is less than more likely than not.
(3)In determining whether an offender poses or will pose an unacceptable risk under subsection (1), the Supreme Court may have regard to—
(a)the means of managing the risk; and
(b)the likely impact of a detention order on the offender.

65Content of detention order
(1)A detention order must state that the Supreme Court is satisfied that the offender poses or will post an unacceptable risk of committing—
(a)a serious sex offence; or
(b)a serious violence offence; or
(c)both a serious sex offence and a serious violence offence;
if a detention order is not made and the offender is in the community.

(2)A detention order must specify—
(a)the name of the offender in respect of whom the order is made; and
(b)the date on which the order is made; and
(c)the date on which the order commences under section 68; and
(d)the period of the order under section 69; and
(e)the latest date by which an application for the first review of the order must be made under Part 8 and the maximum intervals between subsequent reviews.

(3)A detention order must be signed by the judge who made it and include the name of the judge.

71Application for renewal of detention order
(1)At any time before the expiry of a detention order in respect of an eligible offender, the DPP may apply to the Supreme Court for the renewal of the order.
(2)An application under subsection (1) is commenced by filing—
(a)a notice of application in accordance with the rules of court, if any; and
(b)an assessment report or a progress report in respect of the eligible offender.

(3)As soon as practicable after an application under subsection (1) is commenced, the DPP must serve on the eligible offender—
(a)a copy of the notice of application; and
(b)a copy of the assessment report or progress report filed with the application; and
(c)a notice (in the prescribed form, if any) setting out—
(i)the rights of an eligible offender in relation to the application, including rights of appeal; and
(ii)the procedure for hearing and determining the application; and
(iii)the nature of a detention order and a supervision order.

(4)An application under subsection (1) must be discontinued if the offender ceases to be an eligible offender by reason of section 8(4).
(5)An application for the renewal of a detention order may be made more than once.
(6)An application for the renewal of a detention order may be made even if the offender is remanded in custody or is serving a custodial sentence.

73Determination of application for renewal of detention order
(1)On an application under section 71 to renew a detention order, the Supreme Court may—
(a)renew the detention order; or
(b)revoke the detention order; or
(c)make a supervision order, an interim supervision order or an interim detention order; or
(d)make no order under paragraph (a), (b) or (c).

(2)The Supreme Court may hear and determine an application under section 71 despite the expiry of the detention order sought to be renewed.
(3)Sections 62, 63 and 64 apply to the determination of an application under section 71 as if a reference to an application under section 61 were a reference to an application under section 71.
(4)If the Supreme Court renews a detention order, the existing detention order, if any, is revoked on the commencement of the renewed detention order.
(5)The period of a renewed detention order is the period specified under section 69(1).

106Decision on supervision order-general
(1)Subject to section 107, on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that the offender still poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a supervision order is not in effect and the offender is in the community,
(2)The court may make an order under this section even if the offender is remanded in custody or is serving a custodial sentence.
(3)Section 14(2)(b), (3), (4) and (5) (with any necessary modifications) apply to the review of a supervision order.
(4)Subject to subsections (5) and (6), the court must confirm the supervision order unless—
(a)the court has revoked the supervision order; or
(b)an application for a detention order has been made under section 107.

(5) If the court confirms a supervision order, it may—
(a) vary, add or remove any condition of the order; or
(b)vary the maximum intervals between applications for review.

(6)If the court exercises a power under subsection (5) in respect of a supervision order, the court must ensure that the conditions on the order are in accordance with the requirements of section 14 and Division 3 of Part 3 and make any variations or additions to the conditions that are necessary for this purpose.
(7)Divisions 3 and 4 of Part 3 apply to any variation or addition of a condition of a supervision order under subsections (5) and (6).

108Application for review of detention order

(1)On a review of a detention order, the Supreme Court must revoke the order unless it is satisfied that the offender still poses, or after release from custody will pose, an unacceptable risk of committing a serious sex offence or a serious violence offence or both if a detention order is not in effect and the offender is in the community.
(2)The Supreme Court may make an order under this section even if the offender is remanded in custody or is serving a custodial sentence.
(3)Sections 62, 63 and 64 (with any necessary modifications) apply to the review of a detention order.
(4)If the Supreme Court is not satisfied that the risk would be unacceptable unless a detention order were made, the court may revoke the detention order and make a supervision order.
(5)Part 3 (with any necessary modifications) applies to the making of a supervision order under this section.

169Offence to contravene supervision order or interim supervision order
(1)An offender who is subject to a supervision order or an interim supervision order must not, without reasonable excuse, contravene a condition of the order.
Penalty:Level 6 imprisonment (5 years maximum).

(2)Subsection (1) does not apply to a contravention by the offender of—
(a)a condition relating to medical treatment; or
(b)a condition by engaging in conduct that threatens the safety of the offender or that causes harm to the offender.

Of central importance are the transitional provisions in the 2018 Act. As mentioned, these are contained in sch 4 to the 2018 Act. Relevantly, they include:

Schedule 4—Savings and transitional provisions
2General transitional provisions
(1)Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
(2)This Schedule applies despite anything to the contrary in any other provision of this Act.

4Orders made under superseded Act
(1)A supervision order, a detention order or an interim order that was made by a court under the superseded Act and is in force immediately before the commencement day continues in force under the superseded Act until the first of the following to occur—
(a)the end of the period of operation of the order;
(b)on the revocation of the order by a court under this Act;
(c)on the commencement of another order under this Act that replaces the order;
(d)on the deportation or removal of the offender from Australia under the Migration Act 1958 of the Commonwealth;
(e)on the death of the offender.

(2)Subject to subclauses (3), (4) and (5), the superseded Act and regulations made under that Act continue to apply to an order referred to in subclause (1).
(3)On and from the commencement day, a supervision order or an interim supervision order referred to in subclause (1) is subject to the core conditions set out in section 31 of the Act.
(4)An application for review of an order referred to in subclause (1) or an application for the renewal of an order referred to in subclause (1) is to be made under this Act, including an application for renewal or review of an order made by a court under the superseded Act in respect of an offender who is not an eligible offender under this Act.
(5)An application referred to in subclause (4) is to be determined under this Act, including an application made in respect of an offender who is not an eligible offender under this Act.
(6)On an application for review or renewal of a supervision order, a detention order or an interim order referred to in subsection (1), if the court decides to confirm the order, or renew the order, as the case requires, the court must make a supervision order, a detention order, an interim supervision order or an interim detention order in respect of the offender.

5Applications commenced under superseded Act that have not been determined
(1)Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—
(a)an application for a supervision order, a detention order or an interim order;
(b)an application for the renewal or extension of an order referred to in paragraph (a);
(c)an application for the review of an order or a condition of an order referred to in paragraph (a).

(2)An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act. [16]
[16]Emphasis added.

6Appeals
(1)Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to an appeal made under Part 7 of the superseded Act but not determined before the commencement date.
(2)An order made on an appeal referred to in subclause (1) is to be made under this Act.

7Appeals—remitted matters
A matter remitted by the Court of Appeal under section 101 of the superseded Act on or after the commencement day must be treated by the court to which it is remitted as if it were an application under this Act.

10 Directions and instructions
A direction or instruction given by the Authority under the superseded Act that is in force immediately before the commencement day is taken to be a direction given under Part 11.

12 Proceeding for contravention offence
(1)This Act applies to a criminal proceeding for an offence against section 169 commenced on or after the commencement day, irrespective of when the offence is alleged to have been committed.
(2)Subject to this Schedule, the superseded Act continues to apply to a criminal proceeding commenced under section 172 of that Act before the commencement day, for an offence against section 160 of that Act, as if that Act had not been repealed.
(3)Division 3 of Part 12 of this Act applies to a failure to comply with a condition of an order continued in force by clause 4 as if the failure to comply were a contravention of a condition of an order referred to in section 169 of this Act.

In particular, much attention falls on the terms of cl 5(2) which, as emphasised above, directs that an order responding to an application made under the 2009 Act that has not been determined before the commencement of the 2018 Act ‘is to be made under this Act’.

The 2009 Act

Under s 3 of the 2009 Act, the definitions of a ‘detention order’ and a ‘supervision order’ are as follows:

detention order means—
(a)a detention order made by the Supreme Court under section 36 or section 74; or
(b)a renewed detention order made under Division 4 of Part 3; or
(c)a detention order revived by the Court of Appeal under section 101(1)(f).

supervision order means—
(a)an order made by the Supreme Court or the County Court on an application under Division 1 of Part 2; or
(b)a supervision order made by the Supreme Court under Division 2 of Part 3 or confirmed under section 73; or
(c)a supervision order that is renewed under Division 5 of Part 2; or
(d)a supervision order revived by the Court of Appeal under section 101(1)(f).

As mentioned, s 3 also defines ‘relevant offence’ to mean ‘an offence listed in Schedule 1’, all of which are sexual offences.

Section 16 prescribes the core conditions of a supervision order; s 33 provides for the DPP to apply for a detention order; s 35 prescribes the threshold test for the making of a detention order (as an unacceptable risk of committing a ‘relevant offence’ if a detention order (or supervision order) is not made and the offender is released into the community); s 36 directs that the Supreme Court may make a detention order if it is satisfied that the risk of offending would be unacceptable unless a detention order was made (and if not satisfied that the risk would be unacceptable unless a detention order were made, the Court may make a supervision order or no order); s 45 provides for the DPP to apply for the renewal of a detention order which is governed by the same provisions that apply to an application for a detention order under s 33; s 71 provides that the purpose for the review of a detention order or a supervision order is to determine if the order should remain in operation or be revoked or replaced; s 73 directs the court, on a review of a supervision order, to revoke the order unless satisfied that the offender still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community; and s 74 directs the Supreme Court, on a review of a detention order, to revoke the order unless satisfied that the offender still poses an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community.

16 Core conditions of supervision order
(1)A supervision order must be made subject to all the conditions set out in subsection (2).
(2)The core conditions of a supervision order are that during the period of the order the offender must—
(a)not commit a relevant offence in Victoria or elsewhere;
(ab)not commit a violent offence in Victoria or elsewhere;
(ac)if the court requires, or the Authority directs, an offender to reside at a residential facility, not engage in conduct that poses a risk to the good order of the residential facility or the safety and welfare of offenders or staff at the residential facility or visitors to the residential facility;
(ad)not engage in conduct that threatens the safety of any person, including the offender;
(b)attend any place as directed by the Authority for the purpose of administering the conditions of the order;
(c)attend at any place directed by the Authority for the purpose of making assessments required by the court, the Secretary or the Director of Public Prosecutions for the purposes of this Act (including a personal examination by a medical expert for the purpose of providing the court with a report to assist it to determine the need for, or form of, any of the conditions of the order);
(d)report to, and receive visits from, the Secretary or any person nominated by the Secretary for the purposes of this paragraph;
(e)notify the Authority of any change of employment or new employment (whether paid or unpaid) at least 2 clear days before the date of commencing the new or changed employment;
(f)not leave Victoria except with the permission of the Authority granted either generally or in relation to the particular case;
(g)if the court requires, or the Authority directs, an offender to reside at a residential facility, obey all instructions given by a supervision officer or a specified officer under section 137;
(h)comply with any directions given by the Authority under the emergency power in section 120;
(i)obey all instructions given by a community corrections officer or a specified officer under section 151.

33 Director of Public Prosecutions may apply for a detention order
(1)This section applies if the Director of Public Prosecutions has determined under Part 8 to apply for a detention order in respect of an eligible offender.
(2)The Director of Public Prosecutions may apply to the Supreme Court to make a detention order in respect of a person who is an eligible offender.
(3)The Supreme Court must discontinue an application if since it was made the offender has ceased to be an eligible offender because—
(a)the relevant conviction has been set aside on appeal; or
(b)his or her sentence in respect of that offence is altered so that he or she would not have been an eligible offender had the amended sentence been the original sentence.

(4)The Supreme Court may determine an application even if, since the application was made, the offender has ceased to be an eligible offender because—
(a)the custodial sentence has been served or has expired; or
(b)the eligible offender is no longer subject to a supervision order.

35 Court must first be satisfied that there is an unacceptable risk
(1)On an application under section 33, the Supreme Court may make an order in respect of an eligible offender only if the Court is satisfied that—
(a)the offender poses an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community; or
(b)in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a detention order or supervision order is not made and the offender is in the community on the offender’s release from custody on remand or at the end of the custodial sentence, whichever is earlier.

(2)In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the Supreme Court must, subject to this Division, have regard to—
(a)any assessment report or progress report filed in the Court, whether by or on behalf of the Director of Public Prosecutions or the offender; and
(b)any other report made, or evidence given, in relation to the application; and
(c)anything else the Court considers appropriate.

(3)In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the Supreme Court must not consider the means of managing the risk or the likely impact of a detention order or supervision order on the offender.
(4)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(5)The Director of Public Prosecutions has the burden of proving that the offender poses an unacceptable risk as set out in subsection (1).

36 Decision to make order
(1)If the Supreme Court is satisfied that the unacceptable risk set out in section 35(1) exists, the Court before making a detention order must be satisfied that the risk of the offender committing a relevant offence would be unacceptable unless a detention order were made.
(2)For the avoidance of doubt the Supreme Court may determine under subsection (1) that an offender poses an unacceptable risk of committing a relevant offence even if the likelihood that the offender will commit a relevant offence is less than a likelihood of more likely than not.
(3)If the Supreme Court is satisfied that the risk would be unacceptable unless a detention order were made, it may make a detention order in respect of the offender.
(4)If it is not satisfied that the risk would be unacceptable unless a detention order were made, the Supreme Court may make a supervision order in respect of the offender.
(5)The Supreme Court may make no order in circumstances where it is empowered to make a detention order or supervision order under this section.
(6)Divisions 2 to 4 of Part 2 (with any necessary modifications) apply to the making of a supervision order under this section as if it were a supervision order made under that Part.

45Renewal of detention order
(1)The Director of Public Prosecutions may, at any time while a detention order is in force, apply to the Supreme Court for the order to be renewed.
(2)An application may continue to be dealt with and determined by the Supreme Court even if since it was made the detention order sought to be renewed has expired.
(3)Subject to this Division, this Act (with any necessary modifications) applies to an application under subsection (1) in the same way as it applies to an application under section 33.
(4)An application for renewal of a detention order may be accompanied by a progress report in respect of the offender instead of an assessment report.
(5)More than one application may be made under subsection (1) for the renewal of a detention order in respect of an offender.
(6)The expiry of the detention order sought to be renewed before it is renewed does not prevent the order being made renewing the detention order or it having effect as a renewed detention order.
(7)An application can be made for renewal of a detention order even if the offender is serving a custodial sentence or is remanded in custody.

71Purpose of review
The purpose of a review is to determine—
(a)whether a supervision order or a detention order should remain in operation or be revoked; and
(b)if a supervision order is revoked, whether the order should be replaced with a difference supervision order or a detention order; and
(c)if a detention order is revoked, whether it should be replaced with a supervision order.

73Decision on supervision order—general
(1)Subject to subsection (3), on a review of a supervision order, the court must revoke the supervision order unless it is satisfied that—
(a)the offender still poses an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community; or
(b)in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a supervision order is not in effect and the offender is in the community on the offender’s release from custody on remand or at the end of the custodial sentence, whichever is earlier.

(2)Sections 9(2), (4), (5) and (6) (with any necessary modifications) apply to the review of a supervision order.
(3)If on a review of a supervision order, the court or the Director of Public Prosecutions considers that a detention order should be made in respect of the offender, the Director may apply to the Supreme Court for the detention order.
(4)Division 2 of Part 3 applies in respect of an application for a detention order under subsection (3).
(4A)The Director of Public Prosecutions may apply to the Supreme Court for an interim detention order in respect of an offender who is the subject of an application under subsection (3) for a detention order.
(4B)Division 2 of Part 4 applies in respect of an application for an interim detention order under subsection (4A).
(5)If the Supreme Court makes a detention order on an application under subsection (3), it must revoke the supervision order.
(6)If an application is made under subsection (3) and the Supreme Court does not make the detention order, it may confirm (subject to subsection (9) and (9A)), or revoke, the supervision order.
(7)The supervision order remains in force until the Supreme Court determines the application under subsection (3).
(8)Subject to subsections (9) and (9A), the court must confirm the supervision order unless—
(a)the court has revoked the supervision order; or
(b)an application for a detention order has been made under subsection (3).

(9) The court may—
(a)vary, add or remove any conditions of a supervision order; or
(b)direct a different period for the period between applications for review.

(9A)If the court exercises a power under subsection (9) in respect of the supervision order, the court must ensure that the conditions on the order are in accordance with the requirements of sections 16 and 17 as in force at the time at which the court exercises that power and make any variations and additions to the conditions that are necessary for this purpose.

(10)Division 3 of Part 2 applies to any variation or addition of a condition of a supervision order under subsections (9) and (9A).

74 Application for review of detention order
(1)On a review of a detention order, the Supreme Court must revoke the order unless it is satisfied that—
(a)the offender still poses an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community; or
(b)in the case of an offender who is serving a custodial sentence or is in custody on remand, the offender will pose an unacceptable risk of committing a relevant offence if a detention order is not in effect and the offender is in the community on the offender’s release from custody on remand or at the end of the custodial sentence, whichever is earlier.

(2)Sections 36(2), (3), (4) and (5) and 37 (with any necessary modifications) apply to the review of a detention order.
(3)If the Supreme Court is not satisfied that the risk would be unacceptable unless a detention order were made, the Court may revoke the detention order and make a supervision order.
(4)Part 2 (with any necessary modifications) applies to the making of a supervision order under this section.

Does the 2009 Act or the 2018 Act apply?

The DPP submits that the effect of the transitional provisions is to preserve the operation of the 2009 Act with respect to applications made before the commencement of the 2018 Act. She submits that this construction is consistent with the principle of statutory interpretation that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.[17] The submission encompasses all applications including applications for detention orders, interim detention orders, the renewal of detention orders, the confirmation or revocation of detention orders on review, supervision orders, interim supervision orders, renewal of supervision orders, and the confirmation or revocation of a supervision order upon review. The preservation of the operation of the 2009 Act means that applications made before the commencement of the 2018 Act are to be determined in accordance with the test of unacceptable risk of the commission of a ‘relevant offence’, namely a sexual offence (as identified in sch 1 to the 2009 Act).
[17]Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, 384 [78].

The adoption of the DPP’s construction of cl 5(2) would have the effect of not exposing those offenders in respect of whom relevant applications were made before the commencement of the 2018 Act to the greater jeopardy associated with the 2018 Act. In particular, the test for assessing whether there is an unacceptable risk of further offending would be limited to a consideration of sexual offences and not to a consideration of the risk that serious violence offences might be committed. The DPP’s submissions are quite properly motivated by the desire to ensure that the Office of Public Prosecutions acts fairly at all times.

The DPP submits that this approach is supported by: (1) the text and context of cl 5; (2) the inconvenience and improbability of result that would flow from the Secretary’s view; and (3) the protection of rights under the Interpretation of Legislation Act1984, the principle of legality, and the Charter.

The DPP relies on the text of cl 5(1) of sch 4 which makes it clear that, subject to subcl (2), all of the provisions of the 2009 Act continue to apply to applications made before the commencement of the 2018 Act. This means that, unless subcl (2) applies, the eligibility conditions, the procedure, and the test for determining any application under the 2009 Act, continue to apply.

She submits that a distinction should be drawn between ‘determining’ an application, as a matter of substance, and the ‘making’ of an order, as a matter of form. With this distinction in mind, the DPP submits that the language of cl 5(2), that an order ‘is to be made under this Act’, supports the view that the 2018 Act is attracted only with respect to the form of an order. On this interpretation, both subcl (1) and subcl (2) of cl 5 have work to do.

The DPP also submits that the context of cl 5(2) is instructive. Clause 4 of sch 4 to the 2018 Act provides for orders made under the 2009 Act to continue in force after the commencement of the 2018 Act. It provides that applications for the review or renewal of those orders are to be ‘made under this Act’ (cl 4(4)) and ‘determined under this Act’ (cl 4(5)). The DPP submits that the Legislature chose different wording for cl 5 where applications ‘made’ under the 2009 Act but not ‘determined’ before the commencement of the 2018 Act are to be the subject of orders ‘made’ under this Act. She invited the inference to be drawn that the choice of language was deliberate. However, she conceded, appropriately in our view, that it is not apparent that there is a systematic or consistent distinction throughout the 2018 Act between the use of the words ‘determined’ and ‘made’.

The DPP further submits that the subclause relating to appeals, cl 6(2), uses the same language as cl 5(2), namely, that an order made on an appeal that is yet to be determined after the commencement of the 2018 Act ‘is to be made under this Act’. Under both the 2009 Act and the 2018 Act, fresh evidence may be adduced on appeal.[18] A consequence of the application of the 2018 Act to the determination of pending appeals is that, according to the DPP, an appeal might become in effect a hearing de novo given that the risk of offending would extend to both a serious violence offence as well as a serious sex offence. Expert evidence might have to be adduced for the first time in relation to the question of whether the risk of the commission of an offence of serious violence is unacceptable. The DPP submits that if Parliament had intended this consequence, much clearer language would been used.
[18]The 2009 Act s 100; the 2018 Act s 119.

The DPP also points to the inconvenience that would occur if the 2018 Act applies. For example, on the Secretary’s construction, if a judge, quite appropriately, chooses to reserve judgment on an application made before the commencement of the 2018 Act, and deliberates upon it until a date after the commencement of the 2018 Act, this has the result that the judge must then apply the statutory criteria under the 2018 Act. If the DPP chooses to rely upon the risk that an offender might commit a serious violence offence, in addition to reliance upon the risk of the commission of a serious sex offence, it may be necessary for the judge to re-open the hearing for further evidence to be adduced and additional submissions made. The DPP submits that the Legislature can hardly have intended that the test to be applied will be dependent on the contingencies associated with when a judge delivers judgment. Rather, the Legislature must be taken to have intended an orderly transition that gives certainty to the parties. An application made under the 2009 Act should only have to address the criteria prescribed under the 2009 Act.

The DPP also relies on s 14(2) of the Interpretation of Legislation Act in support of her construction. Section 14(2) provides that the repeal of an Act does not affect rights accrued under the repealed legislation. It relevantly provides:

14       Provision as to effect of repeal etc of Acts
...
(2) Where an Act or a provision of an Act—
(a)       is repealed or amended; or
(b)       expires, lapses or otherwise ceases to have effect—
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears—
...
(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

The DPP submits that the Secretary’s construction would alter the accrued rights of offenders, namely, the right to have their proceedings determined in accordance with the law under which the applications were commenced. She submits that the language used in cl 5(2) does not ‘expressly’ manifest an intention to affect those rights.

She further submits that the principle of legality and s 32(1) of the Charter[19] support her construction. If the 2018 Act were to apply, there would be an interference with the right to liberty,[20] the right to privacy,[21] and the right to freedom of movement[22] on grounds not previously available under the 2009 Act. Such an intention ought not be ascribed to the Legislature in the absence of a statement of ‘irresistible clearness’.[23] She also points to the Minister’s Statement of Compatibility with the 2018 Act which fails to mention the transitional provisions. This indicates, she submits, that Parliament ought not be taken to have intended that the transitional provisions would interfere with rights.
[19]32 Interpretation
(1)     So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
[20]21 Right to liberty and security of person
(1)     Every person has the right to liberty and security.
(2)     A person must not be subjected to arbitrary arrest or detention.
(3)     A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
(4)     A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.
(5)     A person who is arrested or detained on a criminal charge —
(a)must be promptly brought before a court; and
(b)has the right to be brought to trial without unreasonable delay; and
(c)must be released if paragraph (a) or (b) is not complied with.
(6)     A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend —
(a)for trial; and
(b)at any other stage of the judicial proceeding; and
(c)if appropriate, for execution of judgment.
(7)     Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must —
(a)make a decision without delay; or
(b)order the release of the person it finds that the detention is unlawful.
(8)     A person must not be imprisoned only because of his or her inability to perform a contractual obligation.
[21]13 Privacy and reputation
A person has the right —
(a)     not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)     not to have his or reputation unlawfully attacked.
[22]12 Freedom of movement
Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
[23]Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, 63 [191] (Tate JA, referring to a statement by Gleeson CJ in Al-Kateb v Godwin (2004) 219 CLR 562, 577 [19]–[20] with respect to the test identified in the fourth edition of Maxwell on Statutes as referred to by O’Connor J in Potter v Minahan (1908) 7 CLR 277, 304).

By contrast, the Secretary[24] submits that the difficulty for the DPP is that the language of cl 5(2) is irresistibly clear. We agree. The words in cl 5(2) providing that an order is ‘to be made under this Act’ must refer to the 2018 Act. The reference to ‘this Act’ can have only one meaning. ‘This Act’ cannot tenably refer to the 2009 Act.
[24]At the hearing of the questions reserved, the Court reaffirmed the leave granted to the Secretary to appear as amicus on the basis that there was otherwise an absence of a proper contradictor. Lyons was represented by counsel who made no written or oral submissions.

In our view, once the 2018 Act commenced on 3 September 2018, the statutory direction in cl 5(2) that orders made on applications made under the 2009 Act but not yet determined are ‘to be made under this Act’ means that the source of power or authority to make the order must be identified within the 2018 Act.[25] Thus, the renewal of a detention order must be made by the Supreme Court under s 73 of the 2018 Act which requires that the statutory criteria in 62, 63 and 64 be satisfied.[26] If an order is not made under s 62 or s 73 of the 2018 Act it is not a ‘detention order’ within the meaning of the 2018 Act.[27]
[25]Griffith University v Tang (2005) 221 CLR 99, 130–1 [89].
[26]See [25] above.
[27]See [24] above.

An order on a review of a detention order has its source of power or authority in s 108 which also requires that the statutory criteria in 62, 63 and 64 be satisfied.[28] Unless a source of power or authority can be identified within the 2018 Act, it is impossible to say that the orders are made ‘under this Act’.
[28]Ibid.

This approach also gives cl 5(1) work to do. Subclause (1) of cl 5 ensures that the applications it describes do not lapse upon the commencement of the 2018 Act and repeal of the 2009 Act; there is no need for the DPP or the Secretary to bring fresh applications. Subclause (1) of cl 5 requires that any question concerning the adequacy of procedural steps taken before 3 September is to be determined in accordance with the 2009 Act. These include, for example, the obligation on the DPP or the Secretary, under s 80(1), as soon as practicable after the application is made, to serve on any other party to the application a copy of the application and any assessment report or progress report that accompanied the application, and the obligation, under s 80(2), to serve on the offender, as soon as practicable after the application is made, a notice setting out the offender’s rights in relation to the application, the procedure for hearing and determining the application, and the nature of the order for which the application is made. The jurisdiction of the court enlivened by the applications made before 3 September remains invoked. Subclause (2) of cl 5 then directs that those pending applications stand to be determined by the court under the 2018 Act.

On the DPP’s construction, the source of power for orders to be made after 3 September 2018 in response to an application made before that date is to be found in the relevant sections of the 2009 Act. In respect of the renewal of a detention order the power lies in ss 35 and 36 (and s 45) of the 2009 Act.[29] However, an order made under ss 35 and 36 of the 2009 Act is manifestly not an order ‘made under this Act’ within the meaning of cl 5(2) of sch 4 to the 2018 Act. It does not satisfy the definition of a ‘detention order’ under the 2018 Act.[30]
[29]See [29] above.
[30]See [24] above.

Alternatively, on the DPP’s construction, the source of power to make an order for the renewal of a detention order would reside in cl 5(2) of sch 4 to the 2018 Act. This approach has the consequence that the source of power for the making of the order resides in the 2018 Act. It is thus consistent with the language of cl 5(2). However, cl 5(2) does not in its terms purport to confer any power on a court; it rather appears to impose a requirement that the making of an order must have its source of power (elsewhere) within the Act. Moreover, a ‘cl 5(2) order’ is not a ‘detention order’ as defined under the 2018 Act.[31]
[31]Ibid.

The DPP ultimately accepts that her construction is tantamount to treating cl 5(2) as a deeming provision. Her construction amounts to reading the words ‘an order ... is to be made under this Act’ as meaning ‘an order ... is to be made [under the 2009 Act] as if it were made under this Act’. That is, for example, an order made under ss 35 and 36 of the 2009 Act is to be taken to be an order under the 2018 Act. However, in our view, this approach would neither be faithful to the text nor the context of cl 5(2). Clause 5(2) is not expressed in language that has a deeming operation. It can be contrasted with the transitional provisions in sch 1 to the Coroners Act 2008 considered in Spear v Hallenstein,[32] particularly cl 8:
[32][2018] VSC 169.

8 Applications commenced under old Act
(1)Subject to clause 10, if a hearing of an application to the Supreme Court has begun under section 18, 28, 29, 30, 35, 59 or 59B of the old Act [the Coroners Act 1985] and the application is not completed before the commencement day, the old Act continues to apply on and from the commencement day to the application.
(2) Despite subclause (1), the determination of the application by the Supreme Court under that subclause is deemed to be a determination of the Supreme Court under section 87 of the new Act [the Coroners Act 2008].[33]

[33]Emphasis added.

It is apparent from the statutory language of cl 8(2) that it is expressly intended to have a deeming operation; that is, it is intended to create what the Secretary described as a ‘fiction’, namely, that a determination of an application made in accordance with the Coroners Act 1985 is taken to be a determination under the Coroners Act 2008. In other words, a determination is, fictitiously, taken to be something it is not. As reflected in cl 8(2), such an intent requires clear language.

The language of cl 5(2) of sch 4 to the 2018 Act, that an order ‘is to be made under this Act’ is starkly different. As the Secretary submits, and we agree, it is not the form of language used to create a fiction.

Furthermore, within sch 4 to the 2018 Act there are many examples where the Legislature has expressly used statutory language to have a deeming operation that also contrasts with the language used in cl 5(2). For example, cl 7[34] provides that where, on an appeal, the Court of Appeal remits a matter to the court which made the decision under appeal, after the commencement of the 2018 Act, the remitted matter is to be treated by the court to which it is remitted ‘as if it were an application under this Act’.[35]
[34]See [26] above.
[35]Emphasis added.

Clause 12, in respect of proceedings commenced on or after 3 September 2018 for contravention offences for breaches of conditions of supervision orders, expressly provides for the 2009 Act to continue to apply ‘as if that Act had not been repealed’.[36]
[36]Emphasis added.

When the statutory language of cl 5(2) is compared to the language of cl 7 or cl 12, all of which appear within the same schedule directed towards governing the transition between the 2009 Act and the 2018 Act, it is apparent that when the Legislature intended to achieve a deeming operation it chose suitable fiction-creating language. It did not do so with respect to cl 5(2).

The proposition that cl 5(2) has a deeming operation is unsupported and we reject it.

More generally, we consider that the plain meaning of cl 5(2) is apparent from the text. We consider that the meaning has such irresistible clarity as to evince a manifest contrary intention to the operation of s 14(2) of the Interpretation of Legislation Act even if it were accepted that there were relevant accrued rights (on which we express no opinion). For the same reason we do not consider that the principle of legality or the Charter can support the relevant preservation of the 2009 Act. In particular, we do not consider that the absence of any reference to cl 5(2) in the Minister’s Statement of Compatibility is a basis upon which this Court should make a constructional choice. A Statement of Compatibility expresses a Minister’s opinion. The words of a Minister cannot substitute for the statutory test.[37] The failure of a Minister to deal with a matter in a Statement of Compatibility cannot properly be treated as revealing the meaning of a statutory provision, objectively construed.
[37]Lacey v A-G (Qld) (2011) 242 CLR 573, 592 [44].

We accept that our conclusion may cause inconvenience with respect to some applications. We address some practical consequences below. We accept that there may be a need for a further hearing to be conducted in some matters. These consequences flow in part from the inevitable need for a starting date for new legislation that replaces a former regime. They also flow as a consequence of the decision by the Legislature to ensure that, with respect to applications for renewals of detention orders and the like, the enhanced protection to the community afforded by the new regime is to begin from the commencement of the 2018 Act.

Practical consequences

The DPP indicated that, if the Secretary’s construction is adopted, it is unlikely that, with respect to her application for the renewal of a detention order for Lyons, there would be any need for her to rely on the risk of the commission of a serious violence offence because Lyons has consented to the renewal of the detention order for the duration of 18 months. She also considers it unlikely that she would need to rely on the risk of the commission of a serious violence offence with respect to her application for a review of a detention order that is currently before the Supreme Court. However, she reserves her right to do so upon further examination of the matter. With respect to the other applications, either in the Supreme or County Court, the question of whether the risk of the commission of a serious violence offence is to be relied upon would be determined on the basis of the circumstances of each individual case. These are all matters ultimately for the DPP’s decision-making and the control of the court in which the application is pending.

Clearly, if the DPP is to rely upon the risk of the commission of a serious violence offence on any application made under the 2009 Act she would need to put the offender on notice and give the offender an opportunity to respond. This would be necessary to observe the obligation to afford procedural fairness. As indicated above, this may mean that, in respect of some applications, a further hearing is required. This is a regrettable inconvenience but we consider that the transition from one legislative regime to another inevitably gives rise to some inconvenience.

Proposed orders

In our view, the questions reserved by Weinberg JA on 6 September 2018 for the consideration of the Court of Appeal, pursuant to s 17B(2) of the Supreme Court Act 1986, should be answered as follows:

Question 1
Applications for both the renewal of a detention order, and for an interim detention order having been filed prior to 3 September 2018 under the Serious Sex Offenders (Detention and Supervision) Act 2009 but not having yet been finally determined, are these applications to be dealt with in accordance with the provisions of that Act, or the provisions of the Serious Offenders Act 2018?
Answer
The applications for the renewal of a detention order, and for an interim detention order, should be determined and thus dealt with in accordance with the Serious Offenders Act 2018.
Question 2
The relevant transitional provisions being cls 4 and 5 in Schedule 4 to the Serious Offenders Act 2018, do the superseded Act and Regulations made under that Act (as understood in cl 5) continue to apply to these applications given that they had not been determined before the commencement day of the Serious Offenders Act 2018?
Answer
They continue to apply: (1) insofar as cl 5(1) in Schedule 4 to the Serious Offenders Act 2018 ensures that those applications do not lapse; and (2) to determine the adequacy of any procedural steps taken by the parties in the application before 3 September 2018.
Question 3
If the provisions of the superseded Act and Regulations continue to apply to these applications, to what extent do they do so?
Answer
Unnecessary to answer further.

The application for the renewal of a detention order with respect to Lyons should be dealt with by Weinberg JA in accordance with the 2018 Act.

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[2018] VSCA 247

27 September 2018