MR22 v Victorian Civil and Administrative Tribunal

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00285

MR22 (a pseudonym)	Plaintiff
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Defendant
and
LIANNE FINCH	Second Defendant
and
AUSTRALIAN COMMUNITY SUPPORT ORGANISATION	Third Defendant
and
SENIOR PRACTITIONER	Fourth Defendant
and
PUBLIC ADVOCATE	Fifth Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2022
DATE OF JUDGMENT:	1 August 2022
CASE MAY BE CITED AS:	MR22 v Victorian Civil and Administrative Tribunal
MEDIUM NEUTRAL CITATION:	[2022] VSC 426

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ADMINISTRATIVE LAW – Judicial review – Decision of Victorian Civil and Administrative Tribunal to make supervised treatment order (STO) under Disability Act 2006 (Vic) – Plaintiff has intellectual disability – Plaintiff subject to STO that requires him to live in designated accommodation and under constant supervision – Plaintiff’s application for revocation of STO dismissed by Tribunal – Tribunal subsequently ordered new STO – Whether Tribunal’s finding that plaintiff had ‘previously exhibited a pattern of violent or dangerous behaviour’ involved jurisdictional error – Proper construction of the phrase ‘the person has previously exhibited a pattern of violent or dangerous behaviour’ in s 191(6)(a) – Consideration of whether ‘person’ in respect of whom an STO may be made excludes child – Whether provision operates retrospectively – Application of s 191(6)(a) – Tribunal did not err in construing or applying s 191(6)(a) – Proceeding dismissed – Disability Act 2006 (Vic), Pt 8, Div 5, ss 191, 193, 196.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L De Ferrari SC with Ms K Chan	Villamanta Disability Rights Legal Service Inc
For the First Defendant	No appearance
For the Second and Third Defendants	Mr G Hughan	Stary Norton Halphen
For the Fourth Defendant	Ms J Davidson	General Counsel, Legal Services Branch, Department of Families, Fairness and Housing
For the Fifth Defendant	Ms G Cafarella	Office of the Public Advocate

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Disability Act – relevant provisions........................................................................................... 3
Tribunal’s Reasons........................................................................................................................ 8
Revocation application....................................................................................................... 9
Application for a new STO............................................................................................... 14

Construction of s 191(6)(a) of the Disability Act.................................................................... 17
Submissions of MR22........................................................................................................ 18
Submissions of the ACSO parties.................................................................................... 20
Submissions of the Senior Practitioner........................................................................... 23
Submissions of the Public Advocate............................................................................... 25
Consideration..................................................................................................................... 26
What is the purpose of Pt 8, Div 5 of the Disability Act?............................... 28
Should ‘person’ be read down to exclude a child, or a person
below the age of criminal responsibility?......................................................... 32
Should s 191(6)(a) be read to exclude behaviour
before the commencement of the Disability Act?............................................ 35
Did the Tribunal misconstrue s 191(6)(a) of the Disability Act?.................... 37

Application of s 191(6)(a) of the Disability Act....................................................................... 38
Submissions of MR22........................................................................................................ 39
Submissions of the ACSO parties.................................................................................... 40
Submissions of the Senior Practitioner........................................................................... 41
Submissions of the Public Advocate............................................................................... 42
Consideration..................................................................................................................... 42

Disposition................................................................................................................................... 44

HER HONOUR:

Introduction

The plaintiff in this proceeding, who has the pseudonym MR22,[1] is a man in his 50s with an intellectual disability. He is subject to a supervised treatment order (STO) made by the Victorian Civil and Administrative Tribunal on 31 March 2022, under Pt 8, Div 5 of the Disability Act 2006 (Vic). The current STO is the most recent of a series of STOs that have applied to MR22 since 2008. It involves a detailed treatment plan that is implemented by MR22’s disability service provider, the Australian Community Support Organisation (ACSO). Among other things, the treatment plan requires MR22 to live in designated accommodation and be under constant supervision. The terms of the STO prevent MR22 from exercising freedom of movement, and amount to detention for the purposes of the Disability Act.
[1]On 8 February 2022, John Dixon J ordered that the plaintiff is to be known in all matters, both in the documents filed in this proceeding and all references to him in court, by the pseudonym MR22.

The Tribunal made an STO in respect of MR22 on 3 February 2021, for a period of 12 months.[2] In May 2021, MR22 applied to the Tribunal for that STO to be revoked (the revocation application). The Tribunal, constituted by Senior Member Steele, heard the revocation application over nine days between 12 October and 26 November 2021. On 19 January 2022, the Tribunal made orders dismissing the revocation application and confirming the STO.[3]
[2]Disability Act 2006 (Vic), s 193(3)(d). Section 193(3)(d) provides that an STO must specify the period for which the STO is to continue in force, being a period not exceeding one year.
[3]MOT (Human Rights) [2022] VCAT 84 (First Reasons).

On 2 February 2022, Lianne Finch, ACSO’s Authorised Program Officer (APO), applied for a new STO (the application for a new STO).[4] The Tribunal, again constituted by Senior Member Steele,[5] made an interim STO pending the hearing and determination of the application. Following a hearing on 3 March 2022, the Tribunal made the current STO on 31 March 2022.[6]
[4]As directed by the Tribunal, for reasons given in MOT (Human Rights) [2022] VCAT 110.
[5]An application by MR22 seeking reconstitution of the Tribunal was dismissed: MOT (Human Rights) [2022] VCAT 124.
[6]MOT (Human Rights) [2022] VCAT 345 (Second Reasons).

In this proceeding, MR22 seeks judicial review remedies in respect of the Tribunal’s orders of 19 January 2022 and 31 March 2022. He contends that both orders were vitiated by jurisdictional error or error of law on the face of the record, because the Tribunal erred in its construction and application of the Disability Act. The essence of his argument is that the Tribunal was wrong to find that the necessary criteria for making an STO were satisfied in his case, because he had not ‘previously exhibited a pattern of violent or dangerous behaviour’ for the purposes of s 191(6)(a) of the Disability Act, properly construed.

The proceeding was defended by:

(a) Ms Finch and ACSO (ACSO parties), who applied for and are responsible for implementing the STO;

(b) the Senior Practitioner appointed under the Disability Act,[7] who approved the treatment plan that is part of the STO; and

(c) the Public Advocate, who was joined by the Tribunal as a party to both the revocation application and the application for a new STO.[8] The Public Advocate did not play an active role in either application before the Tribunal, and limited her defence of this proceeding to making submissions on the operation of the Disability Act and the interpretation of s 191(6)(a).

The Tribunal did not actively defend the proceeding, indicating that it would abide by the decision of the Court.

[7]Disability Act, ss 23–25.

[8]The office of Public Advocate was established under s 14 of the Guardianship and Administration Act 1986 (Vic) and continues in existence under s 10 of the Guardianship and Administration Act 2019 (Vic), with the functions, powers and duties set out in ss 15 and 16. Section 191(4) of the Disability Act requires an applicant for an STO to give notice to the Public Advocate, who may be joined as a party to the proceeding under s 191(5).

MR22’s case in relation to the proper construction of s 191(6)(a) of the Disability Act relied in part on s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). As required by s 35 of the Charter, MR22 gave notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission of this question of interpretation in accordance with the Charter. Neither the Attorney-General nor the Commission chose to intervene in the proceeding.

For the reasons that follow, I have concluded that the Tribunal did not misconstrue s 191(6)(a) of the Disability Act, and applied it correctly to the facts of the case. There was no error in the Tribunal’s conclusion that MR22 had previously exhibited a pattern of violent or dangerous behaviour, and so the proceeding must be dismissed.

Disability Act – relevant provisions

The Disability Act commenced operation on 1 July 2007, replacing both the Disability Services Act 1991 (Vic) and the Intellectually Disabled Persons’ Services Act 1986 (Vic). Section 1 sets out the main purposes of the Disability Act:

(a) to provide a legislative scheme for persons with a disability which affirms and strengthens their rights and responsibilities and which is based on the recognition this requires support across the government sector and within the community; and
(b) to provide a mechanism by which NDIS participants’ rights are protected in relation to the use of restrictive practices and compulsory treatment.

The objectives of the Disability Act are set out in s 4:

The objectives of this Act are to—
(a) advance the inclusion and participation in the community of persons with a disability;
(b) promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;
(c) facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;
(d) promote and protect the rights of persons accessing disability services;
(e) support the provision of high quality disability services;
(f) make disability service providers accountable to persons accessing those disability services;
(g) ensure the efficient and effective use of public funds in the provision of disability services;
(h) provide a process for authorising the proper use of restrictive practices on NDIS participants;
(i) provide for appropriate compulsory treatment of NDIS participants.

Section 5 states some general principles, including:

(1) Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.
(2) Persons with a disability have the same right as other members of the community to—
(a) be given respect for their human worth and dignity as individuals;
(b)live free from abuse, neglect or exploitation;
(c)realise their individual capacity for physical, social, emotional and intellectual development;
(d) exercise control over their own lives;
(e) participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur;
(f) access information and communicate in a manner appropriate to their communication and cultural needs;
(g) services which support their quality of life.

…

Principles specific to persons with an intellectual disability are set out in s 6(1), including:

The following principles apply specifically in respect of persons with an intellectual disability—
(a) persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development;
(b) persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community;

* * * * *
(e) services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities;
(f) services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.

Part 8 of the Disability Act concerns compulsory treatment. It commences with s 150A, which provides:

Restrictions on liberty or freedom of movement
A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part.
Penalty: 240 penalty units.

For the purposes of Pt 8, ‘detain’ is defined to mean:[9]

A form of restrictive practice used on a person for the purpose of reducing the risk of violence or the significant risk of serious harm the person presents to another person and includes—
(a) physically locking a person in any premises; and
(b) constantly supervising or escorting a person to prevent the person from exercising freedom of movement;

[9]Disability Act, s 3(1) (definition of ‘detain’).

Division 5 of Pt 8 provides for STOs, with the purpose of the division set out in s 183:

The purpose of this Division is to provide for the making of a civil order, a supervised treatment order, to enable the detention by a disability service provider or a registered NDIS provider of a person with an intellectual disability who poses a significant risk of serious harm to others.

ACSO is a ‘disability service provider’, as that term is defined in s 3(1) of the Disability Act.

Section 191 contains the criteria that must be met in an application for an STO:

(1) An Authorised Program Officer appointed under this Part by a disability service provider may apply to VCAT for a supervised treatment order to be made in respect of a person—
(a) who has an intellectual disability;
(b) who is receiving residential services;
(c) in respect of whom the disability service provider has prepared a treatment plan approved by the Senior Practitioner;
(d) who meets the criteria specified in subsection (6).

…
(3) An application under subsection (1) or (1A) must include a certificate given by the Senior Practitioner which specifies that the person in respect of whom the application is made—
(a) has an intellectual disability;
(b) is receiving residential services or, in the case of an NDIS participant, is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement;
(c) has a treatment plan approved by the Senior Practitioner and an NDIS behaviour support plan, as the case requires.

…
(6) VCAT can only make a supervised treatment order if VCAT is satisfied that—
(a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;
(b) there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;
(c) the services to be provided to the person in accordance with the treatment plan and an NDIS behaviour support plan, as the case requires, will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;
(d) the person is unable or unwilling to consent to voluntarily complying with a treatment plan and an NDIS behaviour support plan, as the case requires, to substantially reduce the significant risk of serious harm to another person;
(e) it is necessary to detain the person to ensure compliance with the treatment plan and an NDIS behaviour support plan, as the case requires, and prevent a significant risk of serious harm to another person.

The phrase ‘benefit to the person’ is defined in s 3(1) of the Disability Act to mean ‘maximising a person’s quality of life and increasing their opportunity for social participation’.

Section 192 empowers the Tribunal to make an interim STO pending the determination of an application under s 191, if satisfied that ‘it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person’. Section 193 sets out the Tribunal’s powers to make an STO, relevantly:

(1) On an application under section 191, VCAT may—
(a) if it is satisfied that the matters specified in section 191(1) … apply in respect of the person who is the subject of the application, make a supervised treatment order; or
(b) subject to subsection (2) ... if it is satisfied that the matters specified in section 191(1) … apply in respect of the person who is the subject of the application but considers that the treatment plan should be varied, make a supervised treatment order subject to the treatment plan being varied as specified by VCAT; or
(c) if it is not satisfied that the matters specified in section 191(1) … apply in respect of the person who is the subject of the application, dismiss the application.

(2) VCAT must not make a supervised treatment order under subsection (1)(b) unless VCAT is satisfied that the disability service provider or registered NDIS provider, as the case requires, can implement the supervised treatment order and the variation of the treatment plan.
…
(3) A supervised treatment order must—
(a) state that the Authorised Program Officer is responsible for the implementation of the supervised treatment order;
(b) require the person to whom the supervised treatment order applies to reside in—
(i) a residential service, if the application for the order was made by an Authorised Program Officer appointed by a disability service provider; or
…

(c) refer to the treatment plan which must be attached to the supervised treatment order;
(d) specify the period for which the supervised treatment order is to continue in force, being a period not exceeding 1 year.

(4) A supervised treatment order may—
(a) specify conditions to which the person is subject;
(b) require the person to participate in treatment specified in the treatment plan or in treatment specified in the supervised treatment order;

(c) state the intervals at which the supervised treatment order is to be reviewed.

(5) Subsection (3)(d) does not prevent the making of another supervised treatment order before the expiry of the current supervised treatment order.
…

Section 196 enables the Senior Practitioner, the APO, or the person subject to an STO to apply to the Tribunal for a review of the STO or treatment plan, to vary the STO or treatment plan, or to have the STO revoked. On an application for the revocation of an STO, the Tribunal may revoke the STO if it is satisfied that any of the matters specified in s 191(1) have ceased to apply.[10] If the Tribunal is satisfied that those matters continue to apply, it may confirm the STO, in its original terms or subject to any variation that the Tribunal considers appropriate.[11]
[10]Disability Act, s 196(8)(a).
[11]Disability Act, s 196(8)(b).

A person who is subject to an STO who is absent without approval from the residential service at which the person is required to reside may be apprehended by a police officer, and other specified persons, for the purpose of being returned to the residential service.[12] The person is absent without approval if the absence is contrary to conditions specified in the STO, in breach of the treatment plan, or requires the prior approval of the APO and no approval has been given.[13]
[12]Disability Act, s 201(1).
[13]Disability Act, s 201(2).

Tribunal’s Reasons

The Tribunal gave written reasons on 24 January 2022 for refusing MR22’s revocation application (First Reasons), and on 31 March 2022 for deciding to make a new STO (Second Reasons). In its reasons, the Tribunal used the pseudonym ‘MOT’ to refer to MR22. To avoid confusion, in the following summary I have substituted the pseudonym ‘MR22’ for ‘MOT’, including in passages quoted directly from the Tribunal’s reasons.

Revocation application

The introduction to the First Reasons includes the following summary of the factual background to the STO that was then in place:[14]

MR22 has been subject to similar orders since 2008 and before that to various forms of supervision, almost constantly since 1988. In that year, he was charged and convicted concerning two offences against children under the age of 10, one was anal penetration and the other attempted anal penetration. MR22 has a diagnosis of paedophilia and has an intellectual disability. He has not been charged or convicted for any offence since those two in 1988.

[14]First Reasons, [3].

The Tribunal set out the procedural background to the revocation application and referred to the evidence called by the parties, before identifying the relevant provisions of the Disability Act. The definition of ‘detain’, and ss 150A, 183 and 191 were said to indicate the purpose of Pt 8, Div 5:[15]

The purpose is, as the Senior Practitioner submitted, threefold: to protect others from a significant risk of serious harm, to provide services and treatment to the person about whom the order is made that benefit the person, and to ensure that persons with intellectual disabilities are not subjected to restrictive interventions amounting to detention (as defined in section 3 of the Act) without the authorisation and oversight of the Tribunal.

[15]First Reasons, [26].

The next section of the First Reasons is headed ‘How the Charter applies’. The Tribunal explained that the Charter applied in two ways: first, in relation to the interpretation of the Disability Act, and second, because in making a decision on the revocation application the Tribunal was acting as a public authority for the purposes of s 38 of the Charter. Only the former is relevant in this proceeding. The Tribunal explained its approach to statutory interpretation in accordance with the Charter as follows:[16]
[16]First Reasons, [27]–[33] (footnotes omitted in part).

27 Under section 32 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), the provisions of the Act are to be interpreted in a way that is compatible with human rights, so far as is consistent with their purpose.
28 If any provision is capable of more than one meaning, then I must select the meaning which is most compatible with the Charter right at issue.
29 I accept the submission of counsel for the Senior Practitioner that the relevant rights in the Charter include the following:
a. The right to equality in section 8.
b.The right to freedom of movement in section 12.
c.The right to privacy in section 13(a) (which includes personal relationships and activities as well as information).
d.The right to liberty in section 21.

30 I do not agree with the Applicant’s suggestion that the right in section 26 of the Charter not to be tried or punished more than once for an offence is engaged by the imposing or maintaining of a STO.
31 Eligibility for a STO is not based on a criminal offence but upon the person having previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm. A STO is aimed at protecting others, at benefitting the person and at ensuring he is not subjected to detention without authority and oversight from the Tribunal. I agree with the Senior Practitioner’s submissions that this is consistent with jurisprudence in the High Court and in other jurisdictions which distinguish between measures which are punitive and those which are protective.
32 Referring to comments about section 32 of the Charter in the decision of the Court of Appeal in Nigro v Secretary to the Department of Justice,[17] the Senior Practitioner submitted, by analogy with that case, that while the Charter applies to construction of the criteria in section 191(6) of the Act, it adds little to those provisions. I agree. That is because the criteria in section 191(6) already provide for how a balance is to be struck between protection of the community and the individual’s human rights. Those human rights are considered in the following provisions:
[17](2013) 41 VR 359, [80]–[102] (Nigro).
a.The threshold is based on a “significant risk of serious harm” in 191(6).
b.The requirement to consider whether the risk can be reduced by less restrictive means in section 191(6)(b).
c.The requirement that the services to be provided be of benefit to the person, in 191(6)(c).
d.Only allowing a STO to be imposed if the person is unwilling or unable to consent to complying with the treatment plan, in section 191(6)(d).
e.Only allowing and STO to be imposed if it is necessary to detain the person to ensure compliance with the treatment plan and prevent significant risk of serious harm in section 191(6)(e).
f.While the provisions only apply to persons with an intellectual disability, the terms and purpose of the provisions are clear and no other more Charter-consistent interpretation of them is possible.

33 I also agree with the Senior Practitioner’s submissions that section 32 of the Charter supports a broad construction of the term “detain”. I do not see how that definition as a matter of statutory construction can be interpreted more narrowly, or to allow MR22 to be subjected to constant supervision without the Tribunal’s authority and oversight. The narrow construction of “detain” suggested on behalf of MR22 (seeing it as meaning only being physically locked in) is not open as I read the Act and would be incompatible with the Charter and MR22’s rights under it.

After dealing with a number of issues concerning expert evidence, the Tribunal turned to the criteria for making an STO under s 191(6), beginning with the requirement in s 191(6)(a) concerning a pattern of behaviour. I set out this section of the First Reasons in full:[18]
[18]First Reasons, [88]–[100] (footnotes omitted).

88 The Victorian Civil and Administrative Tribunal (VCAT) cannot make a STO unless satisfied that each of the criteria in section 191(6) of the Act is met. The first of those is in section 191(6)(a):
(a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;

89 The Applicant submitted and I agree that the application of this criterion is not a matter for expert opinion. I must decide what the provision means, make findings about facts, and apply the provision.
90 In 1988, when he was 19 years old, MR22 was charged regarding two separate incidents of sexual offending against young boys. In May 1988, he attempted to anally penetrate an eight-year-old boy, after tying his hands together. The boy ran away. In June 1988, while on bail for the charge in relation to that offence and staying at a respite house, MR22 anally raped a boy with an intellectual disability who was staying at the same house. In relation to those incidents, on 23 April 1991, MR22 was convicted of attempting to sexually penetrate a child under 10 years and of taking part in an act of sexual penetration with a child under 10 years. From June 1988 to August 1989, he was in custody. Upon conviction, he was placed in the community on a good behaviour bond and placed at [name of facility omitted].
91 The Macquarie Dictionary defines “pattern” in the sense used here as “style or type in general”. For the phrase “behaviour pattern” it offers “a recurrent way of acting by an individual or group towards a given object or in a given situation”. Neither of those definitions gives the precise meaning of “pattern” here. It does not help to substitute “style or type”, although that definition suggests that establishing a pattern of behaviour does not require many instances of the behaviour but rather establishment of a kind of behaviour. The definition offered for “behaviour pattern” suggests that the behaviour must recur in order to form a pattern.
92 The Applicant referred to the Collins Dictionary definition of pattern as: “the repeated or regular way in which something is done”. The Applicant contended that two events, never again repeated, are not a “pattern”.
93 In the present case, there is no dispute that two instances of child molestation occurred. There is a dispute in the parties’ submissions about how many times and over what period behaviour must recur if it is to be described as a pattern.
94 The APO submitted that to argue that a third instance of molestation is needed to demonstrate a pattern is to court danger to children in the community.
95 The Senior Practitioner submitted that the question of whether there is a pattern of particular behaviour is context dependent, and that two instances of dangerous behaviour is more easily described as a pattern than two instances of innocuous behaviour. I agree. An analogy for this effect is that two charitable donations would not make me a philanthropist but two thefts from my employer would make me a thief.
96 The context here is that section 191(6)(a) of the Act speaks of the person who has previously exhibited a pattern of behaviour. It specifically does not require that the behaviour continue into the present. Given that context for “pattern”, I reject the Applicant’s submission that the fact MR22 has had no further convictions for such offences means the past behaviour, not repeated in 30 years, should be ignored as past events insignificant to his present profile.
97 Since one purpose of the provisions about STOs in the Act is the protection of others, “pattern” of behaviour in my view can only be read as including a pattern demonstrated by two instances of violent or dangerous behaviour. This criterion is satisfied.
98 In case I am wrong about the definition of a pattern, I add that some incidents described in MR22’s history also indicate a pattern of violent or dangerous behaviour causing or potentially causing serious harm.
99 I do not refer to incidents during his time under various previous STOs mentioned by the APO where MR22 was reported to have indecently assaulted an adult female at an educational facility he was attending (though no charges were pressed) and where in 2014, MR22 reportedly indecently assaulted a fellow female participant at his place of employment. There was insufficient information for me to be comfortably satisfied that these alleged incidents occurred as described.
100 Rather, I refer to the striking description recorded in 2010 of a conversation between a psychologist and MR22’s mother. His mother described him at the age of 8, trying to tie up a 4- or 5-year-old boy, noting that he had an erection at the time. She also listed other instances of such behaviour when MR22 was 10 years old. These are earlier instances of the pattern of behaviour appearing in the offences which occurred in 1988.

The balance of the First Reasons set out the Tribunal’s reasons for being satisfied that the other criteria in s 191(6) of the Disability Act continued to apply, that the treatment plan complied with s 191(7), and that ACSO could implement the treatment plan. The Tribunal also addressed some claims of unauthorised restrictive practices and a submission that MR22’s relationship with ACSO had broken down irretrievably. None of these matters are in issue in this proceeding. It is sufficient to note the following findings of the Tribunal:

(a) MR22 posed a significant risk of serious harm while unsupervised in the community, for the purposes of s 191(6)(b). He required supervision while in the community, because there was a significant risk that he would reoffend if unsupervised. No less restrictive way of providing supervision was then available.[19]
[19]First Reasons, [228], [240].

(b) The services to be provided to MR22 under the treatment plan would benefit him, and would substantially reduce the risk of MR22 reoffending, and so satisfied both criteria in s 191(6)(c).[20]

(c) MR22 was unwilling to consent to the treatment plan, meeting the criterion in s 191(6)(d).[21]

(d) In relation to s 191(6)(e), it was necessary to detain MR22 — in the sense that he would be supervised in accordance with the treatment plan and escorted while in the community — to prevent the significant risk of serious harm that MR22 would pose if he were unsupervised in the community.[22]

[20]First Reasons, [241]–[256].

[21]First Reasons, [257]–[258].

[22]First Reasons, [259].

In conclusion, the Tribunal said:

296 As set out here, I am satisfied in accord with section 196(8)(b) of the Act that the matters specified in section 191(1) continue to apply to MR22 and so the STO is confirmed.
297 Under section 196(8)(b)(ii) of the Act allows the Tribunal to vary the STO. Given the imminent expiry date of the STO I do not propose to make any variations to it.
298 However, I agree with the Senior Practitioner’s submission that a number of issues which arose during the hearing have implications for any further treatment plan for MR22 and should be carefully considered if there is [to] be a further STO and treatment plan.

Application for a new STO

The Second Reasons commenced with an outline of the factual and procedural background to the application for a new STO.[23] The senior member explained why she had made an order under s 98(2A) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to admit into evidence material that was before her in the revocation application. She considered that material to be relevant to the application for a new STO, and important in understanding the background to MR22’s situation. However, the material provided at the hearing on 3 March 2022 was the most relevant.[24]
[23]Second Reasons, [1]–[23].
[24]Second Reasons, [24]–[32].

The Tribunal summarised that evidence, before turning to the criteria for making an STO set out in ss 191(1) and (6) of the Disability Act. Each of the criteria in ss 191(1)(a), (b) and (c) was satisfied.[25] In relation to the criterion in s 191(6)(a), the Tribunal said:[26]
[25]Second Reasons, [76]–[78].
[26]Second Reasons, [85]–[95] (footnotes omitted in part).

A PATTERN OF BEHAVIOUR
85 Section 191(6)(a) of the Act is as follows:
(6) VCAT can only make a supervised treatment order if VCAT is satisfied that—
(a)person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;

86 This criterion refers to matters in the past and does not require evidence about MR22’s current circumstances. In the revocation application, I considered the two offences committed by MR22 in 1988. One offence was attempting to sexually penetrate a child under 10 years and the other was of taking part in an act of sexual penetration with a child under 10 years.
87 I was satisfied that these two offences formed a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm. I also relied on a description from MR22’s mother, describing his behaviour aged 8 and 10 years old, as earlier instances of the pattern of behaviour appearing in the alter offences. Rather than repeat that material, I refer to and incorporate paragraphs 88 to 100 of my written reasons for decision in that matter. I remain of the view that MR22 has previously exhibited a pattern of behaviour as described in section 191(6)(a) of the Act.
88 For this hearing, the Senior Practitioner sought to put forward further evidence about MR22’s pattern of behaviour. The Senior Practitioner notified the Tribunal and the parties on 25 February 2022 that they sought to rely on two documents which were contained in the Tribunal Book for the revocation application but not tendered. The documents are:
a.a letter from Chris Kelly to Craig Warren dated 29 July 1993; and
b.memorandum from Mr Warren to Don Smyth dated 28 October 1993.

89 The documents outline concerns expressed by a staff member and a practitioner apparently supervising MR22 at the time that he tends to attempt to form friendships with children.
90 MR22’s counsel opposed the documents being admitted as evidence. They submitted, relying on the words of Justice Deane in the influential case of Minister for Immigration and Ethnic Affairs v Pochi[27] that when an issue as grave as a person’s liberty is concerned, the fundamental standards of fairness inherent in the concept of procedural due process exclude basing the decision on suspicion and speculation.
91 They submitted that giving any weight to the two documents would be a breach of procedural fairness because they are from 1993, are copies of copies, their existence and purpose is not explained, and the Tribunal cannot know the circumstances or conditions affecting the transfer of information.
92 Importantly, they said, the documents do not identify who made the observations. They are vague and rise no higher than ‘suspicion or speculation’. Further, it was submitted, MR22 was not legally represented when the allegations in the documents were made and he cannot now give evidence about these reports which are, it was submitted, based on suspicion and hearsay.
93 I agree this material could not support a finding that MR22 committed any crime. It is, I agree, likely, as the submissions suggest that MR22 sought out children because he was lonely or immature or unsupported and saw children as having similar interests to himself, while not understanding the potential risk he posed to children at that time.
94 I permitted the documents to be tendered in relation to the question of whether MR22 has in the past exhibited a pattern of violent or dangerous behaviour. I find however that they are not relevant to the question of whether he committed any violent or dangerous act.

95 The material adds a little to the picture of why MR22 posed a risk to children in his youth, but whether he does so now is a matter for current assessment, not for history.

[27](1980) 4 ALD 139, 158.

The Tribunal concluded that the remaining criteria in s 191(6) were satisfied. In summary:

(a) Based on the up-to-date evidence of a psychiatrist and a psychologist, who both knew MR22 well and were currently treating him, the Tribunal was satisfied that MR22 presented a significant risk of serious harm to the community if he was not supervised and monitored.[28] Considering their evidence, the Tribunal was satisfied that the risk could not be reduced ‘in any way less restrictive than the combination of supervision, monitoring, behaviour support and opportunities to practice self-management in gradually increasing amounts and intensity offered by the treatment plan’.[29]
[28]Second Reasons, [126].
[29]Second Reasons, [140].

(b) The Tribunal was satisfied that the services to be provided under the treatment plan would be of benefit to MR22. Being prevented from reoffending was a benefit to MR22, as was the supervision and administration of his ‘step-up plan’, which would allow him to demonstrate that he does not pose a risk to the community.[30] The Tribunal was also satisfied that supervision and monitoring under the treatment plan would reduce the risk of serious harm when MR22 goes into the community, both directly and by improving his capacity to self-manage his risk.[31]

(c) While MR22 consented to and cooperated with some elements of his treatment plan and behaviour support plan, he was still opposed to having an STO in place. On that basis, the Tribunal was satisfied that he did not voluntarily consent to either plan.[32]

(d) The Tribunal was also satisfied that it was necessary to detain MR22, by constantly supervising him, to substantially reduce his risk of reoffending.[33]

[30]Second Reasons, [153]–[155].

[31]Second Reasons, [156].

[32]Second Reasons, [158]–[161].

[33]Second Reasons, [166]–[169].

The Tribunal then gave reasons for being satisfied that the treatment plan included the provisions required by s 191(7) of the Disability Act,[34] and could be implemented by ACSO.[35] In conclusion, the Tribunal said:

191 I am satisfied that the criteria in section 191(1) apply to MR22 and that the treatment plan meets the requirements of section 191(7) and section 193(2) of the Act.
192 The treatment plan is dated 3 February 2022, updated in accord with the directions of the Senior Practitioner (in the certificate dated 2 March 2022) and filed with track-changes on 2 March 2022.
193 A STO attaching that treatment plan is made as set out in the above orders.
194 The STO is to end on 1 February 2023, so that the combined period of the interim order made on 2 February 2022 and the order made in this proceeding will be 12 months.
195 While I could have made an order for a shorter time, the evidence shows that MR22 may require the full period to partake in sufficient reduction exercises (step-ups) to be able to progress to being free of supervision while in the community. If that is achieved in a shorter time an application can be made about that.
[34]Second Reasons, [170]–[183].
[35]Second Reasons, [184]–[190].

Construction of s 191(6)(a) of the Disability Act

The first set of issues for consideration concern whether the Tribunal misconstrued s 191(6)(a) of the Disability Act.

Submissions of MR22

MR22 submitted that the purpose of Pt 8 of the Disability Act is to provide a benefit, in the form of required treatment, to the person with an intellectual disability. He rejected any suggestion that another purpose of Pt 8 is the protection of other persons. He supported this argument by reference to [4.9] of the Victorian Law Reform Commission’s report, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (VLRC 2003 Report):[36]

In paras 3.12–18 we discussed concerns about discrimination against people with an intellectual disability. The requirement that persons detained will derive a benefit from detention provides the primary justification for restricting their liberty and is intended to meet these concerns. In other words, we do not propose the introduction of a preventive detention regime that allows people to be detained simply on the grounds that they present a risk to others. In our view, detention should only be authorised where there is evidence that this will improve the person’s quality of life in the long term. The proposed approach is similar to that taken under the Mental Health Act 1986 (MHA), where involuntary admission and detention is permitted where the person requires treatment and that treatment can be obtained by admitting them to an approved service.

[36]Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (Report, November 2003) (footnotes omitted) (VLRC 2003 Report).

MR22 emphasised the discriminatory impact of the provisions of Pt 8, Div 5 of the Disability Act, which authorise the detention of people with intellectual disability only. He argued that this discrimination could only be justified by a purpose of benefiting a person with intellectual disability — which is defined in the Disability Act to mean maximising the person’s quality of life and increasing their opportunity for social participation. If Pt 8 had any other purpose, including a protective purpose, it would be contrary to the rights of persons with intellectual disability under ss 8, 10(c), 12, 13(a), 18, 21, and 22(3) of the Charter, and the International Convention on the Rights of Persons with Disabilities.

MR22 relied on s 32 of the Charter, which he said requires s 191(6)(a) of the Disability Act to be interpreted in the way that is most compatible with the human rights protected by the Charter. In ascertaining the most rights compatible interpretation of s 191(6)(a), he said that the only human rights to be considered are those of an intellectually disabled person who might be subjected to an STO. He argued that the rights of other persons, including those who might be protected by an STO, are not relevant.

As to the text of s 191(6)(a), MR22 focused on the words ‘pattern’ and ‘previously’. He said that the word ‘pattern’ bears its ordinary, natural English meaning, which involves repetition or recurrence. Generally, he submitted, a pattern involves more than two instances of violent or dangerous behaviour, although he was cautious about embracing that as a universal proposition for all cases. MR22 said that the word ‘previously’ calls attention to the time that has elapsed since the relevant behaviour. He submitted that behaviour that at one time had formed a pattern might no longer do so if a long time has passed with no repetition or recurrence of the behaviour, and there is evidence of a clear break in the pattern. In those circumstances, the ‘pattern’ might no longer exist.

MR22 further submitted that there are two constructional choices available within the phrase ‘the person previously exhibited a pattern of violent or dangerous behaviour’:

(a) First, a ‘person’ in respect of whom an STO may be made under Pt 8, Div 5 does not include a child — that is, a person under the age of majority, or alternatively below the age of criminal responsibility. Conduct engaged in by a person as a child is to be excluded from consideration under s 191(6)(a).

(b) Second, the presumption against retrospectivity requires that the provision be interpreted to apply prospectively — that is, only to behaviour engaged in after the commencement of the Disability Act. To interpret s 191(6)(a) to extend to behaviour engaged in before then would have the effect of giving new legal consequences to past events.[37] Even where it appears that Parliament intended a provision to operate retrospectively, it should be given retrospective operation only to the extent intended by Parliament and no further.[38]

[37]Referring to Lodhi v R (2006) 199 FLR 303, [22]–[39] (Spigelman CJ); Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, [26]–[32] (French CJ, Crennan and Kiefel JJ); Perry Herzfeld and Thomas Prince, Interpretation, (Lawbook Co, 2^nd ed, 2020), [9.460]–[9.480] (Herzfeld & Prince).

[38]Lodhi, [25] (Spigelman CJ).

MR22 argued that both the beneficial purpose of the Disability Act, in particular Pt 8, and s 32 of the Charter indicate that the preferable choices are to interpret s 191(6)(a) to mean a pattern of violent or dangerous behaviour:

(a) engaged in by the person as an adult, or alternatively having reached the age of criminal responsibility; and

(b) which occurred after the commencement of the Disability Act on 1 July 2007.

Submissions of the ACSO parties

The ACSO parties submitted that the construction exercise simply involved considering the text, context and purposes of s 191(6)(a) of the Disability Act. They contended that the word ‘pattern’ is not to be construed in a vacuum, but as part of a composite phrase expressing one of several criteria of which the Tribunal must be satisfied before making an STO. They argued that MR22’s submissions sought to isolate the word ‘pattern’ from its legislative context, in a way that was likely to obscure its legislative meaning. The Tribunal’s task was to determine whether MR22 had ‘previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm’.

The ACSO parties said that some assistance in construing the word ‘pattern’ could be found in judicial consideration of the expression ‘a series of offences’ in the definition of ‘related offences’ in s 3 of the Criminal Procedure Act 2009 (Vic). They drew attention to Fleming v R,[39] in which it was held that two offences were sufficient to constitute a ‘series of offences’. They accepted, however, that the legislative context and purpose in Fleming was different from this case.
[39][2021] VSCA 206, [64], citing R v Kray [1970] 1 QB 125 and Ludlow v Metropolitan Police Commissioner [1971] AC 29, 39 (Lord Pearson).

The only temporal limitation in s 191(6)(a) was said to be the word ‘previously’. The ACSO parties pointed out that, grammatically, the phrase is in the present perfect tense — referring to something that has happened in the past, but is not necessarily still happening.

Turning to context, the ACSO parties relied on the criteria set out in ss 191(1) and (6), all of which must be satisfied before the Tribunal can make an STO. The criterion in s 191(6)(a) alone is concerned with past behaviour; the other criteria in s 191(6) are directed to the current risk of harm and whether the risk can be reduced by a treatment plan of benefit to the person. The ACSO parties submitted that this context indicates that the matters set out in paragraphs (b) to (e) of s 191(6) should not be implied into paragraph (a), as MR22 sought to do.

The ACSO parties submitted that protection of other persons is one of the purposes of Pt 8, Div 5 of the Disability Act, as stated in s 183. They accepted that the purpose of protection of others is to be balanced with the rights of a person who may be the subject of an STO, but said that the provisions of Pt 8, Div 5 perform that very function. They drew attention to additional aspects of the VLRC 2003 Report, including Recommendation 4:[40]

‘Benefit’ should be defined in terms of maximising people’s quality of life and increasing their opportunity for social participation. Beneficial treatment includes, but is not limited to, assisting people to reduce their risk of self harm and harm to others.

The ACSO parties embraced the proposition that ‘benefit’ extends to measures designed to keep a person from reoffending and to avoid the significant restrictions on their liberty that may result from involvement in the criminal justice system.

[40]They also referred to VLRC 2003 Report, [4.8] and Recommendation 5.

The ACSO parties rejected the suggestion that s 191(6)(a) should be read down so as not to apply to behaviour engaged in by a person as a child. They said that the provision does not deal with criminal conduct or the commission of a criminal offence, but with behaviour that posed a significant risk of serious harm to the community. The harm that can result from a person’s violent or dangerous behaviour is not affected by the person’s capacity to understand right from wrong.

As to MR22’s reliance on the presumption against retrospectivity, the ACSO parties disputed that reading s 191(6)(a) of the Disability Act to include behaviour that occurred before its commencement would have a retrospective effect. They referred to Re a Solicitor’s Clerk[41] as authority for the proposition that true retrospectivity is confined to providing that a thing done before the provision came into effect was void or unlawful, and does not extend to providing for future legal consequences by reference to past events. The presumption against retrospectivity is therefore no basis to read down the word ‘previously’.
[41][1957] 1 WLR 1219, 1222–3.

Further, in relation to MR22’s retrospectivity argument, the ACSO parties relied on the following passages from the Minister’s second reading speech for the Disability Bill 2006 (Vic):[42]
[42]Victoria, Parliamentary Debates, Legislative Assembly, 1 March 2006, 418–19 (Ms Garbutt, Minister for Community Services).

Concerns have been raised about a small number of people with an intellectual disability who live in restrictive environments, when they are not subject to a criminal order. These people reside in restrictive living arrangements in residential services due to concern that they might pose a serious risk of harm to members of the community. There are currently no safeguards to protect the rights of these people.
The bill provides for a new civil order – a supervised treatment order, which can be made where a person resides in a restrictive environment because they pose a significant risk of serious harm to others.
The bill outlines a range of provisions in relation to supervised treatment, which are aimed at protecting the rights of people subject to this treatment.
…
These provisions provide clear regulation and transparency around situations which are currently occurring without adequate external scrutiny. The bill will ensure that the rights of people subject to this form of treatment are adequately protected.

They submitted that this passage makes it clear that Parliament intended Pt 8, Div 5 to apply to people who had demonstrated a pattern of violent or dangerous behaviour before the Disability Act came into operation, and were already living in a restrictive environment.

Submissions of the Senior Practitioner

The Senior Practitioner submitted that the Tribunal was correct in construing s 191(6)(a) of the Disability Act as ‘including a pattern demonstrated by two instances of violent or dangerous behaviour’. This construction was said to be supported by the text, context and purpose of the provision and in accordance with the interpretive rule in s 32 of the Charter.

As to text, the Senior Practitioner referred to definitions of ‘pattern’ in the Macquarie Dictionary and the Oxford English Dictionary, from which it is apparent that the word is capable of a wide range of meanings. In particular, the definition of ‘pattern’ does not necessarily require repetition. The Senior Practitioner contended that, on the text of s 191(6)(a), what is required is that a person has ‘previously’ exhibited violent or dangerous behaviour. No temporal restriction is imposed and there is no textual basis for reading in a requirement that the behaviour has occurred recently, in the immediate past, or since the commencement of the Disability Act.

As to context, the Senior Practitioner pointed out that s 191(6)(a) is concerned with a ‘pattern’ in the context of a requirement that the person has ‘previously exhibited a pattern of violent or dangerous behaviour’. He submitted that two instances of strikingly similar sexual offending are well within the ordinary and natural meaning of that phrase.

The Senior Practitioner also contended that one purpose of Pt 8, Div 5 of the Disability Act is to protect the community from a significant risk of serious harm. He accepted that the provisions evince other purposes, including providing services and treatment that are of benefit to people with intellectual disability, and ensuring that they are not subject to detention or other restrictive practices without the authorisation and oversight of the Tribunal. He supported this submission by reference to s 183 of the Disability Act and to the VLRC 2003 Report.[43] The Senior Practitioner joined the ACSO parties in contending that keeping persons with intellectual disability out of prison is a beneficial purpose.
[43]VLRC 2003 Report, [1.8]–[1.24], [1.29], [3.14], [3.27], [4.3]–[4.4].

The Senior Practitioner submitted that s 32 of the Charter adds little to the construction of the criteria in s 191(6). He relied on the reasoning of the Court of Appeal in Nigro v Secretary to the Department of Justice[44] to argue that the criteria in s 191(6) themselves provide for the manner in which the balance is to be struck between protection of the community and the individual’s human rights, and incorporate consideration of those human rights. He submitted that there is no need for the Court to attempt to balance competing rights in order to interpret the provision, given that Parliament has set out in some detail how those rights are to be balanced by the Tribunal.
[44]Nigro, [80]–[88], [102]–[103].

The Senior Practitioner drew attention to provisions of the Disability Act that indicate that it is intended to apply to children as well as to adults: the definition of ‘resident’s guardian’ in s 3(1) and the reference to the needs of children in the principles in s 5(3)(l).

In relation to retrospectivity, the Senior Practitioner submitted that no issue of retrospective penalty arises, because an STO is not imposed as a punishment for past actions. He said that the power to impose an STO operates by way of its own ‘normative structure’ of protecting other persons from a significant risk of serious harm.[45] He argued that a construction of s 191(6)(a) that limits its application to violent or dangerous behaviour committed after the commencement of the Disability Act is not open on the terms of the provision and would be inconsistent with its purposes.
[45]Referring to Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [74] (Gummow J), [215]–[217] (Callinan and Heydon JJ).

Submissions of the Public Advocate

The Public Advocate submitted that the text, context and purpose of the Disability Act supports a narrower interpretation of ‘pattern’ in s 191(6)(a), requiring some similar thread beyond there being more than one instance of violent or dangerous behaviour — some similarity in the nature of the acts, some connection in time, place, complainant or other matter, or a continuity of purpose. She sought to draw some support from the definition of ‘course of conduct charge’ in the Criminal Procedure Act, which provides that more than one incident of the commission of the same offence may be included in a single charge only if, taken together, they ‘amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter’.[46]
[46]Criminal Procedure Act 2009 (Vic), sch 1 cl 4A(2)(d). The Public Advocate also referred to guidance about ‘course of conduct charge’ in the United Kingdom Criminal Practice Directions [2013] EWCA Crim 1631, [14A.10]–[14A.13]; the definition of ‘pattern of conduct’ in the Ohio Rev Code § 2903.211 (2019); and the definition of ‘course of conduct’ in the California Penal Code § 646.9(f) (2008).

In relation to context, the Public Advocate pointed out that s 191(6)(a) sits in addition to the other preconditions to the imposition of an STO set out in paragraphs (b) to (e). She said that it was apparent from that context that s 191(6)(a) was intended to narrow the category of people who may be subject to an STO, so that it would be made only where strictly justified.

The purpose of the Disability Act is, according to the Public Advocate, primarily beneficial towards people with disability. She referred to the Minister’s second reading speech to show that one of the key purposes of the Disability Act is to provide legal safeguards for people with disability whose autonomy and freedoms are subject to significant restrictions, without the authority of a court order.[47] She submitted that the protection of the rights of people with disability is a key principle of the Disability Act, alongside the need to protect others from harm.
[47]See [44] above.

The Public Advocate was critical of the Tribunal’s analysis in relation to the construction of s 191(6)(a). She said that it was wrong to reduce the meaning of ‘pattern’ to a number. She accepted that two instances of past behaviour, including criminal offending, may satisfy the requirement that there be a pattern of violent or dangerous behaviour. However, she submitted that two instances of offending behaviour will not necessarily or always constitute a pattern; something further is required. She reiterated her position that the text, context and purpose of the Disability Act support interpreting ‘pattern’ as connoting some connecting feature between the instances of behaviour.

In relation to the Charter, the Public Advocate agreed with the Senior Practitioner that the Charter adds little to the construction of s 191 of the Disability Act. She endorsed the Tribunal’s conclusion that s 191(6) already provides for how the balance is to be struck. She referred to the authority of ZZ v Secretary, Department of Justice,[48] concerning s 13(2) of the Working With Children Act 2005 (Vic),[49] as another example of a case in which the Court recognised that Parliament had carefully balanced competing rights and interests, leaving little room for the operation of s 32 of the Charter.
[48][2013] VSC 267, [137] (ZZ).
[49]Now repealed and replaced by the Worker Screening Act 2020 (Vic).

Finally, in relation to retrospectivity, the Public Advocate joined with the Senior Practitioner in submitting that Pt 8, Div 5 of the Disability Act does not have a retrospective operation because an STO can only be imposed if there is a current risk of serious harm. In other words, the cumulative effect of paragraphs (a) to (e) of s 191(6) is forward-looking, rather than providing a consequence for past behaviour.

Consideration

The construction of s 191(6)(a) of the Disability Act starts and ends with the text of the provision, and the ordinary grammatical meaning of the words used, with the object of construing it so that its legal meaning is consistent with the language and the legislative purpose of the statute.[50] The words of the provision take some of their meaning from the context in which they appear. The meaning of s 191(6)(a) is therefore to be discerned by considering the text of the provision in its context, including the whole statute in which it is located, legislative history, extrinsic materials, the purpose and policy of the provision, and the mischief it is designed to remedy.[51]
[50]See, eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39].
[51]See, eg, Alcan, [47]; Consolidated Media Holdings, [39].

Where there is a choice to be made between possible meanings of a provision, there is some guidance as to which choice is to be preferred:

(a) A meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[52]

(b) A provision in a statute with a beneficial or protective purpose must be construed so as to give the fullest possible effect to that purpose.[53]

(c) So far as is possible consistent with its purpose, the provision should be interpreted in a way that is compatible with human rights — that is, it should be given the meaning that ‘best accords with the human right in question’.[54] However, it remains unclear how s 32(1) is to be applied in the interpretation of a provision that engages several, competing rights protected by the Charter.[55]

[52]Interpretation of Legislation Act (Vic), s 35(a).

[53]R vACR Roofing (2004) 11 VR 187, [43] (Nettle JA).

[54]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1); Slaveski v Smith (2012) 34 VR 206, [24], [45].

[55]See Michael Brett Young, From Commitment to Culture – The 2015 Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (2015), 145–8. Recommendation 28 of the 2015 Review was supported ‘in principle’ by the Victorian Government, but is yet to be implemented: see Bruce Chen, ‘Revisiting section 32(1) of the Victorian Charter: Strained Constructions and Legislative Intention’ (2020) 46(1) Monash University Law Review 174, 226.

The parties’ arguments about the proper construction of s 191(6)(a) of the Disability Act raised many different issues. It seems logical to address them in the following order:

(a) What is the purpose of Pt 8, Div 5 of the Disability Act?

(b) Should a ‘person’ in respect of whom an STO may be made under Pt 8, Div 5 be read down to exclude a child, or a person below the age of criminal responsibility?

(c) Should s 191(6)(a) be read to apply only to behaviour exhibited since the commencement of the Disability Act on 1 July 2007?

(d) Did the Tribunal misconstrue s 191(6)(a) of the Disability Act?

What is the purpose of Pt 8, Div 5 of the Disability Act?

While I accept that benefiting people with intellectual disability is a significant purpose of the Disability Act, it is not the only purpose of Pt 8, Div 5. Having regard to the text of the provisions of Pt 8, Div 5, in the context of the whole statute, and the extrinsic materials for the Disability Act, it is apparent that Pt 8, Div 5 of the Disability Act was enacted with three complementary purposes, namely:

(a) to provide services and treatment of benefit to people with intellectual disability;

(b) to protect the community from a significant risk of serious harm; and

(c) to provide safeguards to protect the rights of people with intellectual disability.

Within Pt 8, Div 5, s 183 explicitly provides that the purpose of the division is to provide for the making of an STO to enable the detention of ‘a person with an intellectual disability who poses a significant risk of serious harm to others’. This alone makes it clear that Pt 8, Div 5 has a protective purpose. The provisions of Pt 8, Div 5 set up a carefully balanced scheme for the making of an STO by the Tribunal only where it is satisfied that it is both of benefit to the person with intellectual disability and necessary to protect other persons from a significant risk of serious harm. This balance is exemplified by the criteria specified in s 191(6). The division also provides a number of safeguards to ensure that limits on the rights of persons with intellectual disability are both authorised and subject to supervision and review.[56]
[56]Disability Act, ss 185–9, 193–6.

Generally within the Disability Act, ss 1, 4, 5, and 6 all indicate the statute’s broad purposes of providing services of benefit to people with disability and promoting and protecting their rights, while also providing for the authorised use of restrictive practices and appropriate compulsory treatment.[57] Outside of Pt 8, Div 5, there are a number of provisions that enable the rights of a person with disability to be restricted if necessary for the protection of others.[58]
[57]See especially Disability Act, ss 4(h)–(i), 5(3)–(6). See also Pt 6B – Use of restrictive practices by registered NDIS providers, Pt 7 – Use of restrictive practices by disability service providers, Pt 8 – Compulsory treatment.
[58]See, eg, Disability Act, ss 140, 145A, 147, 152.

As to the extrinsic materials, the Disability Act was informed by the analysis and recommendations of the VLRC 2003 Report. MR22 relied on a passage of the VLRC 2003 Report, in which the VLRC said that ‘the requirement that persons detained will derive a benefit from detention provides the primary justification for restricting their liberty’.[59] On a fair reading of the VLRC 2003 Report, it is plain that the VLRC did not consider benefit alone to be a sufficient justification for detention — it also had to be necessary to protect others from a significant risk of serious harm. In the two paragraphs that preceded the one relied on by MR22, the VLRC set out its view of the matters that would justify the detention of a person with an intellectual disability:[60]
[59]VLRC 2003 Report, [4.9], set out at [33] above. MR22 also cautioned against over-reliance on extrinsic materials to discern legislative purpose, referring to Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [34] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), [74]–[75] (Heydon J).
[60]VLRC 2003 Report, [4.7]-[4.8] (footnotes omitted).

4.7 The Commission recognises that provisions allowing detention of people with an intellectual disability restrict their freedom on the basis of an assessment of what they might do, rather than because they are being punished for committing an offence. Such provisions are difficult to apply because of problems in making accurate predictions about whether or not a person with a disability will behave dangerously in the future. They are potentially discriminatory, because people without an intellectual disability cannot normally be detained because of the risk of future harm.
4.8 In the Commission’s view, detention is only justified if
•    the person has previously exhibited violent or dangerous behaviour, which has harmed others seriously, or exposed another person to a significant risk of serious harm to others;
•    the risk that they may harm others cannot be substantially reduced by using other less restrictive measures;
•    the person will derive some long term benefit because of the services and treatment provided during the period of detention; and
•    the services that will be provided to the person during the period of detention will benefit the person by reducing the risk that he or she will harm others.

The passage at [4.9] referred to an earlier discussion of discrimination against people with intellectual disability. In the course of that discussion, the VLRC said:[61]
[61]VLRC 2003 Report, [3.14]–[3.18] (footnotes omitted).

3.14 The Commission recognises that provisions that allow people to be detained, or subjected to restrictive practices without their consent, are potentially discriminatory. In our view, however, it is sometimes justifiable to control the behaviour of people with an intellectual disability or cognitive impairment to prevent them harming themselves or others. In practice, some people are already being subjected to restraint or seclusion to prevent them harming themselves, staff, or other residents in the same service. Others have their freedom of movement curtailed to prevent harm to themselves or other members of the community. As noted in Chapter 1, the existing controls on these measures are relatively ineffective. A legislative framework is required to control and monitor these practices.
3.15 One of the main aims of our recommendations is to enhance the accountability of service providers by ensuring that:
•    there are clear criteria that indicate when that people can be detained, confined or subjected to other restrictive practices without their consent;
•    a person who is directly affected by the decision, and any other interested party, can seek a review of the decision; and
•    restrictive practices which restrict the freedom of people with an intellectual disability are systematically monitored and regulated in a manner appropriate to the type of service which is provided.

3.16 Victorian legislation already prescribes a process for treating people with a mental illness without their consent, in cases where (amongst other criteria) this is necessary for their own health or safety, or in order to prevent harm to others. Similarly, the Health Act 1958 allows the restriction of a person’s behaviour or movement to prevent the person transmitting an infectious disease.
3.17 The Commission believes that similar powers and controls are required in relation to people with intellectual disability or other cognitive impairment whose behaviour places others at risk of serious harm. Care and treatment without consent may be necessary because people lack the capacity to control behaviour or to understand the nature or consequences of risk, and they may, because of their disability, require specialised services or treatment that will reduce the future likelihood of harm.
3.18 The recommendations in this Report will not permit people to be detained or be subjected to restrictive practices without their consent, unless it can be shown that they derive some benefit from that process. Detention, or the use of restrictive practices must prevent them harming themselves or help them to modify their behaviour so that they do not harm others, in ways that benefit them. The application of this principle is discussed in more detail in the next section. It is the need to demonstrate benefit that makes the proposed framework non-discriminatory. The requirement of benefit differentiates the proposed framework from civil detention laws that allow people to be detained solely for the purposes of preventing them from committing crimes that will harm others.

In short, the VLRC considered that detention of people with intellectual disability can only be justified if it achieves both protection of others at risk of serious harm and benefit to the person detained. In addition, the VLRC considered that detention should only be authorised within a legal framework that safeguards the rights of those who may be detained. These three purposes are reflected in Pt 8, Div 5 of the Disability Act.

I add that the protective and beneficial purposes of Pt 8, Div 5 are not necessarily in conflict. It may be of benefit to a person with intellectual disability to be provided with services and treatment designed to prevent them from committing offences against other persons and facing criminal prosecution and possible imprisonment. Avoiding these experiences is likely to maximise the quality of life of a person with intellectual disability and increase their opportunity for social participation.[62] Conversely, involvement in the criminal justice system is not generally conducive to these outcomes.

Should ‘person’ be read down to exclude a child, or a person below the age of criminal responsibility?

[62]Disability Act, s 3(1) (definition of ‘benefit to the person’). See [17] above.

The word ‘person’ is used in Pt 8, Div 5, including in s 191(6), and throughout the Disability Act. A ‘person’ is defined in s 3(1) to include ‘a body or association (corporate or unincorporate) and a partnership’. This extends the definition of ‘person’ in s 38 of the Interpretation of Legislation Act 1984 (Vic), which includes ‘a body politic or corporate as well as an individual’. The broad definition of ‘person’ in the Disability Act tends against reading that word down, in Pt 8, Div 5, to exclude a child or a person below the age of criminal responsibility.

There is a presumption that a word has the same meaning throughout a statute. The strength of the presumption depends on the context, the legislative history, and ‘the view the court forms of the care taken by the drafter in their choice of words’.[63]
[63]Herzfeld & Prince, [5.170].

The Disability Act contains a number of indications that it is intended to apply to children as well as to adults with disability. These include:

(a) One purpose of the Disability Act is to provide a legislative scheme for persons with a disability.[64] A ‘disability’, in relation to a person, is defined to mean a sensory, physical or neurological impairment or acquired brain injury with certain characteristics, an intellectual disability, or a developmental delay.[65] The term ‘developmental delay’ is defined to mean ‘a delay in the development of a child under the age of 6 years’.[66] It is significant that one type of disability for the purposes of the Disability Act occurs only in children under the age of six.
[64]Disability Act, s 1(a).
[65]Disability Act, s 3(1) (definition of ‘disability’).
[66]Disability Act, s 3(1) (definition of ‘developmental delay’).

(b) The principles set out in s 5 of the Disability Act require disability services and regulated disability services to have regard for the needs of children with a disability, and preserve and promote relationships between the child, their family and other persons who are significant in the life of the child.[67]

(c) Section 6(3) makes specific provision as to how it is to be determined whether or not a person over the age of five years has an intellectual disability.

(d) Part 7 of the Disability Act, which concerns the use of restrictive practices, applies not only to persons who receive disability services, but also to certain children with disability who are placed with an out of home care service under the Children, Youth and Families Act 2005 (Vic).[68]

[67]Disability Act, s 5(3)(l).

[68]Disability Act, s 133(1).

There is nothing to indicate that ‘person’ has a more confined meaning in Pt 8, Div 5. Section 191(1) sets out the characteristics of a ‘person’ in respect of whom an application for an STO may be made.[69] It would have been a simple matter to exclude children, or persons below the age of criminal responsibility, from that provision, had that been the intention.
[69]See [16] above.

The Disability Act was enacted in 2006 as a new legislative scheme for persons with disability, to replace both the Intellectually Disabled Persons’ Services Act and the Disability Services Act. As originally enacted, it was a coherent and carefully structured Act of Parliament, which included the provision made for STOs in Pt 8, Div 5. My impression is that the drafters used considerable care in their choice of words, the definition of key words and phrases, and the exposition of the objectives and principles of the Disability Act.

The Disability Act has been amended numerous times since 2006, with extensive amendments in 2019 related to the advent of the National Disability Insurance Scheme.[70] The conceptual structure of the statute remains intact, despite these amendments. There has been no amendment to the s 3(1) definitions of ‘person’ or ‘disability’. The amendments to Pt 8, Div 5 provide no basis for a conclusion that ‘person’ now has some more limited meaning in that division.
[70]Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 (Vic).

On that basis, I consider that ‘person’ in s 191(6)(a) of the Disability Act carries the broad meaning that it has elsewhere in the Disability Act, and includes a child.

Even if the alternative meaning was available, I do not consider that s 32(1) of the Charter directs that it is the meaning to be preferred.

First, as I have explained, the purposes of Pt 8, Div 5 include protecting the community from a significant risk of serious harm, as well as providing services and treatment of benefit to people with intellectual disability, and safeguarding their rights. I do not see how, consistently with all of those purposes, s 191(6)(a) can be read as excluding violent or dangerous behaviour engaged in by a person as a child.

Second, I am not persuaded that it would be the meaning that is most compatible with human rights. I accept that the human rights of persons with disability who may be subject to an STO are of great importance, including the equality rights in s 8 of the Charter, the right to freedom of movement in s 12, the right to privacy in s 13(a), and the right to liberty protected by s 21. A narrow reading of s 191(6)(a) might promote these rights. However, the protective purpose of Pt 8, Div 5 also directs attention to the rights of persons at risk of serious harm, including their rights to life, liberty and security of the person and, in the case of children, such protection as is in their best interests.[71] These rights tend against reading down the provision to exclude violent or dangerous behaviour engaged in by a person as a child. Section 32 provides no real guidance in the interpretation of a provision that engages competing rights.[72]
[71]Charter, ss 9, 21 and 17(2).
[72]See [61(c)] above.

I accept the submissions of the Senior Practitioner and the Public Advocate, that s 32(1) of the Charter adds little to the construction of the criteria in s 191(6). Section 191(6) represents Parliament’s judgment as to how the Tribunal is to strike a balance between the human rights of an individual person with disability and the rights of other persons in the community who may be at risk of serious harm.[73]

Should s 191(6)(a) be read to exclude behaviour before the commencement of the Disability Act?

[73]Nigro, [101]–[103]; ZZ, [137].

It was not controversial that a statutory provision is presumed not to operate retrospectively, and that only clear language will rebut that presumption.[74] What was in dispute was whether s 191(6)(a) of the Disability Act has any retrospective operation and, if so, whether the words of the provision express or necessarily imply that intention.
[74]See generally Herzfeld & Prince, [9.460]–[9.660].

According to the authors of Interpretation,[75] the word ‘retrospective’ is used in two different senses. The first sense is sometimes also referred to as ‘retroactivity’, and describes legislation that is expressed to have legal effect at a time before it was enacted. Section 191(6)(a) plainly does not have retrospective operation in this sense. The Tribunal had no power to make an STO under Pt 8, Div 5 of the Disability Act before it came into operation on 1 July 2007, and an STO only has legal effect from the time it is made.
[75]Herzfeld & Prince (n 37).

The second, extended sense in which ‘retrospectivity’ is used is to describe a law that alters or interferes with legal rights and liabilities by reference to events that occurred before its enactment.[76] This extended presumption against retrospectivity was explained by French CJ, Crennan and Kiefel JJ in Australian Education Union v General Manager of Fair Work Australia:[77]
[76]Ibid [9.470]–[9.480].
[77](2012) 246 CLR 117, [26] (footnotes omitted). See also ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, [27] (French CJ, Crennan, Kiefel and Keane JJ), [48]–[50] (Gageler J).

The common law principles of interpretation require careful consideration of the adjective “retrospective” in its application to statutes. Interference with existing rights does not make a statute retrospective. Many if not most statutes affect existing rights. As Fullagar J said in Maxwell v Murphy:
“I think that the word ‘retrospective’ has acquired an extended meaning in this connection. It is not synonymous with ‘ex post facto’, but is used to describe the operation of any statute which affects the legal character, or the legal consequences, of events which happened before it became law.”

In Chang Jeeng v Nuffıeld (Australia) Pty Ltd Dixon CJ referred to “the rules of interpretation affecting what is so misleadingly called the retrospective operation of statutes”. Repeating a passage from his judgment in Maxwell v Murphy, the Chief Justice said:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

The extended presumption against retrospectivity applies to protect vested or accrued rights and liabilities.[78] It is reflected in provisions such as s 14(2) of the Interpretation of Legislation Act, which provides that the amendment or repeal of an Act or a provision of an Act does not affect ‘any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision’, unless the contrary intention expressly appears. It does not, however, apply to a law that merely provides new consequences for past events. It is therefore necessary to distinguish between ‘a statute which operates retrospectively, by altering rights or liabilities accrued as a result of events which have occurred before the coming into force of the statute’ and ‘a statute which operates prospectively, by taking account of antecedent facts and circumstances as a basis for future prescription’.[79]
[78]Herzfeld & Prince, [9.500]–[9.520].
[79]R v Roussety (2014) 24 VR 253, [18] (Nettle JA). See also Robertson v City of Nunawading [1973] VR 819, 824.

In my view, Pt 8, Div 5 of the Disability Act does not have retrospective operation, in the extended sense, if s 191(6)(a) is understood to include any violent or dangerous behaviour exhibited by a person before the commencement of the Disability Act. Under Pt 8, Div 5 an STO may be made in relation to a person, with prospective operation, having regard to a range of circumstances including the person’s past behaviour. It is significant that an STO may not be made unless the Tribunal is satisfied that there is currently a significant risk of serious harm to another person and that the STO will reduce that risk. It was not suggested that an STO designed to reduce future risk would alter or interfere with any vested or accrued legal right of the person subject to the STO.

In any event, s 191(6) of the Disability Act contains a clear expression of Parliament’s intention that the criteria for making an STO include whether the person has exhibited a pattern of violent or dangerous behaviour at any time before the STO is made. This is the natural meaning of the word ‘previously’, which is used in s 191(6)(a) without qualification. The meaning is reinforced by the use of the present perfect tense in the phrase ‘has previously exhibited’. That tense is used to refer to events that have occurred in the past, and may be — but are not necessarily — still occurring.

On that basis, I do not consider that it is open to read s 191(6)(a) as applying only to behaviour exhibited after the commencement of the Disability Act. Even if that construction were available, it would not further the protective purpose of Div 8, Pt 5 of the Disability Act,[80] and is not the interpretation that most accords with human rights.[81]
[80]See [63]–[69] above.
[81]See [77]–[80] above.

It follows from these conclusions that it was open to the Tribunal to have regard to evidence of MR22’s behaviour before the commencement of the Disability Act in determining whether he had previously exhibited a pattern of violent or dangerous behaviour, including behaviour engaged in by him as a child of eight and ten years old.

Did the Tribunal misconstrue s 191(6)(a) of the Disability Act?

It remains to determine whether the Tribunal misconstrued the phrase ‘previously exhibited a pattern of violent or dangerous behaviour’ as including a pattern demonstrated by two instances of violent or dangerous behaviour.

As the Senior Practitioner submitted, the word ‘pattern’ is capable of a wide range of meanings. The relevant senses of the definition of ‘pattern’ in the Macquarie Dictionary are ‘style or type in general’ and ‘an example or instance’. Helpfully, the Macquarie Dictionary defines ‘behaviour pattern’ to mean ‘a recurrent way of acting by an individual or group towards a given object or in a given situation’. The Oxford English Dictionary gives numerous senses in which ‘pattern’ is used, the most relevant being ‘a regular and intelligible form or sequence discernible in certain actions or situations; esp. one on which the prediction of successive or future events may be based’.

This last sense of ‘pattern’ is, in my view, the sense in which it is used in s 191(6)(a) of the Disability Act. It is consistent with the context of s 191(6), which directs the Tribunal’s attention first to whether there has been a pattern of behaviour in the past, before turning to an assessment of future risk and appropriate means to reduce that risk. It is also consistent with the complementary beneficial and protective purposes of Pt 8, Div 5 to require that, before a person can be subject to an STO, they must previously have displayed some regular and intelligible form or sequence of behaviour that exposes others to a significant risk of serious harm — as a basis for the assessment of future risk.

The Tribunal understood MR22 to submit that two instances of child molestation were not sufficient to amount to a pattern for the purposes of s 191(6)(a), and rejected that submission. MR22’s submission in this proceeding was perhaps more nuanced — that a pattern involves repetition or recurrence, and would generally involve more than two instances of violent or dangerous behaviour. Also important, in MR22’s submission, was the time that has elapsed since the relevant behaviour, and whether there is evidence of a clear break in the pattern.

I do not consider there was any error in the Tribunal’s conclusion that, for the purposes of s 191(6)(a), a pattern of violent or dangerous behaviour can be demonstrated by two instances of such behaviour. That is not to say that, in all cases, two instances of violent or dangerous behaviour necessarily constitute a pattern. Much will depend on the nature of the behaviour, its timing, the circumstances in which it occurred, and the circumstances in which it has (or has not) been repeated.

Application of s 191(6)(a) of the Disability Act

The next broad issue for consideration is whether the Tribunal misapplied s 191(6)(a) of the Disability Act to the facts of this case.

Submissions of MR22

MR22 submitted that, even if the Tribunal were permitted to take into account the 1988 offences, it erred in its application of the phrase ‘previously exhibited a pattern of violent or dangerous behaviour’. He took issue with two aspects of the Tribunal’s reasoning.

First, he impugned the Tribunal’s conclusion, at [95] of the First Reasons, that ‘two instances of dangerous behaviour is more easily described as a pattern than two instances of innocuous behaviour’. He argued that this conclusion lacked an evident and intelligible basis, because the only behaviour that s 191(6)(a) is concerned with is violent or dangerous behaviour. Without that baseline — namely, that the behaviour is violent or dangerous — there is no need to consider whether the behaviour amounts to a pattern.

Second, MR22 contended that the Tribunal was wrong to dismiss as irrelevant the absence of any repetition of similar offending behaviour in the previous 30 years. He argued that absence of repetition is relevant to the establishment of a pattern in the first place, separate and distinct from the question of whether a pattern (once established) is continuing. He said that the Tribunal had made the mistake of reasoning backwards from the facts of the case to the construction of the provision.[82]
[82]Referring to DLJ18 v Minister for Home Affairs (2019) 273 FCR 66, [6] (Flick J).

In MR22’s submission, the Tribunal was unduly distracted by the nature of the behaviour, and failed to appreciate the relevance of the time that had elapsed since he last exhibited any violent or dangerous behaviour. As a result, he argued, the Tribunal had asked the wrong question and reached a legally unreasonable conclusion about the existence of a jurisdictional fact, and had fallen into jurisdictional error.[83]
[83]Referring to Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29, [62]–[66], [108] (North J).

MR22 went on to contend that the error was not saved by the Tribunal’s alternate finding — at [98] to [100] of the First Reasons — that the incidents described by MR22’s mother to have occurred when he was eight and ten years old also indicated a pattern of violent or dangerous behaviour. In addition to the construction arguments that I have already considered,[84] MR22 submitted that:

(a) Even if one were to consider the further incidents, there would still be no ‘pattern’ given that there has been no repetition of the behaviour since 1988;

(b) The Tribunal’s finding was based on deficient and unreliable evidence — a hearsay account of a conversation between MR22’s mother and a psychologist, neither of whom gave evidence before the Tribunal. This second- and third-hand hearsay did not amount to cogent and compelling evidence capable of producing a state of reasonable satisfaction that these incidents had actually occurred. The alternate finding involved jurisdictional error because it was not based on logically probative evidence.[85]

[84]See [37] and [81]–[93] above.

[85]Referring to Cotterill, [91]–[99] (North J); BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420, [142] (Wigney J, in dissent).

Submissions of the ACSO parties

The ACSO parties submitted that there was no error in the Tribunal’s finding that the two offences committed by MR22 in 1988 amounted to a pattern of violent or dangerous behaviour that met the criterion in s 191(6)(a). They emphasised the similarities between the two offences and the lead up to them, and submitted that they were sufficient to amount to a pattern. They reiterated that two offences could form a pattern, with no need to identify an unspecified further number of victims of similar behaviour. They rejected the suggestion that s 191(6)(a) requires a continuing pattern of behaviour, and submitted that it is sufficient if the pattern of behaviour has been exhibited in the past.

The ACSO parties also supported the Tribunal’s reasoning that two instances of dangerous behaviour are more easily described as a pattern than two instances of innocuous behaviour. They accepted that the analogy drawn between theft and philanthropy was imprecise, and perhaps inapt, but said that the Tribunal’s conclusion was nonetheless correct. They submitted that the whole context of MR22’s offending behaviour demonstrated a pattern.

In relation to the Tribunal’s alternate finding, the ACSO parties pointed out that the Tribunal is not bound by the rules of evidence and was entitled to receive hearsay evidence. They submitted that the additional evidence was more than enough to establish a pattern of violent or dangerous behaviour.

Submissions of the Senior Practitioner

The Senior Practitioner submitted that, on their own, the two offences committed by MR22 in May and June 1988 were sufficient to amount to a ‘pattern of violent or dangerous behaviour causing serious harm’. He also drew attention to the striking similarities between the two instances of MR22’s offending behaviour — on both occasions MR22 isolated his young male victims in order to sexually assault them by anal penetration (attempted on the first occasion). He said that it was not clear how many more times MR22 contended that similar behaviour had to be repeated before it would amount to a pattern for the purposes of s 191(6)(a).

In relation to the distinction drawn by the Tribunal between dangerous and innocuous behaviour, the Senior Practitioner said that violent or dangerous conduct might more readily form a pattern than might daily, innocuous behaviour. He accepted that the analogy involving a philanthropist and a thief might not be appropriate, including because they were labels suggesting future conduct.

The Senior Practitioner further argued that it was open to the Tribunal to have regard to other conduct of MR22, including the material referred to at [100] of the First Reasons. He pointed out that MR22 had been on notice of the intention to rely on the reports of Leanne Cusack, the psychologist who recorded the disclosures by MR22’s mother, but had not required Ms Cusack to attend the Tribunal hearing for cross-examination.

Submissions of the Public Advocate

The Public Advocate agreed with MR22 that the Tribunal’s statement that ‘two instances of dangerous behaviour is more easily described as a pattern than two instances of innocuous behaviour’ was unhelpful. The example given by the Tribunal conflated the criteria in paragraphs (a) and (b), by giving a future label to a person based on their past behaviour. The Public Advocate said that the example demonstrated the need to consider the whole context of a person’s past behaviour in order to determine whether it constitutes a pattern. She submitted that whether that behaviour amounts to a ‘pattern of violent or dangerous behaviour’ for the purposes of s 191(6)(a) is a question of fact for the Tribunal.

Otherwise, the Public Advocate confined her submissions to the operation of the Disability Act and the proper interpretation of s 191(6)(a), including in relation to the Tribunal’s alternate finding.

Consideration

I accept that the Tribunal’s analogy involving philanthropy and theft, at [95] of the First Reasons, was not apposite. Unlike s 191(6)(a), which looks only to previous behaviour, the analogy involved the application of a future label based on a person’s past behaviour.

However, the analogy was merely illustrative. Bearing in mind that I should not subject the Tribunal’s reasons to overzealous scrutiny,[86] I do not think that the inapt analogy demonstrates any error in the Tribunal’s reasoning. It did not detract from the correctness of the proposition that it was used to illustrate — namely, that the question whether there is a pattern of behaviour is context dependent. Whether certain behaviour demonstrates a pattern is necessarily a question of fact, the answer to which depends on the context in which the behaviour took place. I agree with the Senior Practitioner that two instances of violent or dangerous behaviour, with strikingly similar features and context, might more readily amount to a pattern than two instances of commonplace, unremarkable behaviour. This was the submission that the Tribunal accepted at [95] of the First Reasons.
[86]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

It is conceivable that behaviour that at one time formed a pattern might no longer do so due to some change in circumstances. The time that has elapsed since the last instance of violent or dangerous behaviour, and relevant events during that time, are part of the context in which the Tribunal must determine whether particular behaviour amounts to a pattern for the purposes of s 191(6)(a). The Tribunal clearly had regard to the fact that MR22 had not exhibited violent or dangerous behaviour since 1988. The fact that the behaviour had not been repeated in 30 years was specifically mentioned in [96], and is referred to elsewhere in the First Reasons.[87] It is apparent that the Tribunal did not consider this to have broken the pattern. This finding was well open to the Tribunal, given its earlier finding that MR22 had been under various forms of supervision almost constantly since 1988.[88]
[87]First Reasons, [3], [103], [222]. See also Second Reasons, [3].
[88]First Reasons, [3]; see also [103], [222]–[228].

There was no error in the Tribunal’s reasoning at [96] of the First Reasons. The Tribunal was correct to observe that the word ‘previously’ in s 191(6)(a) does not require that the behaviour continue into the present. It was also correct to conclude that MR22’s offending behaviour in 1988 should not be ignored because it had not been repeated since.

The Tribunal’s alternate finding, taking into account dangerous behaviour exhibited by MR22 as a child, was also free from error. It is the case that a finding that a person has exhibited a pattern of violent or dangerous behaviour causing serious harm to another person, or exposing another person to a significant risk of serious harm, should only be made on the basis of cogent evidence that is logically probative of that finding. The matters noted in Ms Cusack’s February 2010 report were in my view sufficiently cogent to be logically probative of MR22’s past behaviour. While the evidence was hearsay, it was a record made by a registered psychologist who was undertaking a psychological risk assessment of MR22 of a disclosure made by MR22’s mother to the psychologist. The Tribunal could feel comfortable giving some weight to that evidence, including because MR22 did not require Ms Cusack’s attendance at the hearing.[89] Taken together with the evidence of the offences committed by MR22 in 1988, the evidence provided a rational basis for the Tribunal’s conclusion at [98] of the First Reasons.
[89]On 27 July 2021 the Tribunal made procedural orders in preparation for the hearing of the revocation application. Order 13 was ‘By 13 September 2021, MR22 may notify the other parties he intends to summon any further witness who has provided material in support of a Supervised Treatment Order for MR22 in the past and who is not on a list of witnesses filed by another party’. Ms Cusack’s report was among the material provided in support of previous STOs, but she was not required to attend the hearing.

MR22 has not established any error in the Tribunal’s application of s 191(6)(a).

Disposition

MR22 has not made out a case for any of the remedies he seeks, and so the proceeding must be dismissed. I will hear the parties on the question of the costs of the proceeding.

[2022] VSC 426

1 August 2022