Nigro v Secretary to the Department of Justice

In the case of Nigro v Secretary to the Department of Justice, the applicants, Nigro, Lowe, and Ghebrat, appealed against the making of supervision orders under the Serious Sex Offenders (Detention and Supervision) Act 2009. The applicants were all convicted sex offenders deemed to pose an unacceptable risk of reoffending. The central legal issue before the court was whether the findings of unacceptable risk were correct, and if so, whether the conditions of the supervision orders were appropriate. The case was heard in the Supreme Court of Victoria.

The court had to decide whether the Secretary’s findings that the applicants posed an unacceptable risk were plainly wrong, particularly in light of the high standard of proof required under the Act. The court also considered the applicability of the Charter of Human Rights and Responsibilities Act 2006 to the interpretation of the Serious Sex Offenders (Detention and Supervision) Act 2009. Furthermore, the court examined whether the supervision order conditions were reasonable and the least intrusive means necessary to manage the risk posed by the applicants. The principles in House v The King and the relevant sections of the Serious Sex Offenders (Detention and Supervision) Act 2009 guided the court’s analysis.

The court found that the Secretary's conclusion that Lowe posed an unacceptable risk was plainly wrong, and thus the supervision order for Lowe was set aside. Regarding Nigro, the court upheld the finding of unacceptable risk but found some conditions of the supervision order to be unreasonable, unacceptably wide, or uncertain, and these conditions were set aside. In the case of Ghebrat, the court also upheld the finding of unacceptable risk but found the condition restricting employment to be an unreasonable measure to ameliorate the risk of reoffending, and this condition was set aside. The reasoning was grounded in the need to balance the rights of the offenders with the protection of the community, and the orders were crafted to be the least intrusive necessary to achieve this balance.