Secretary to the Department of Justice and Community Safety v SW (a pseudonym)
[2025] VCC 301
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
APPEALS AND POST SENTENCE LIST
Case No. CR-10-01936
| IN THE MATTER of an application under s46 of the Serious Offenders Act 2018 and the Serious Sex Offenders (Detention and Supervision) Act 2009 and IN THE MATTER of an application under section 57(1) of the Serious Offenders Act 2018 for the extension of an Interim Supervision Order and IN THE MATTER of an application under section 28 of the Serious Sex Offenders (Detention and Supervision) Act 2009 for Renewal of a Supervision Order and BETWEEN | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| v | |
| SW (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2025 | |
DATE OF JUDGMENT: | 21 March 2025 | |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v SW (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 301 | |
REASONS FOR JUDGMENT
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Subject:STATUTORY INTERPRETION
Catchwords: Application for interim supervision order – whether application must be made when offender still an eligible offender – whether court had jurisdiction to grant interim supervision order – whether interim supervision order should be renewed
Legislation Cited: Serious Offenders Act 2018; Serious Sex Offenders (Detention and Supervision) Act 2009
Cases Cited:DPP v Lyons [2018] VSCA 247; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Towns (a pseudonym) v Towns (a pseudonym) [2025] VSCA 32; Williams v The Queen (1986) 161 CLR 278; Trobridge v Hardy (1955) 94 CLR 147; Momcilovic v The Queen (2011) 245 CLR 1; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 Queensland v Stradford [2025] HCA 3; DPP v Edwards [2012] VSCA 293
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace KC | Victorian Government Solicitors Office |
| For the Respondent | Ms H Canham | Victoria Legal Aid |
HER HONOUR:
1Subsection 46(1) of the Serious Offenders Act 2018 (“the SO Act”) provides:
“The Secretary may apply to the court for an interim supervision order in respect of an eligible offender who is the subject of an application under section 13 or 22.”
(Emphasis added.)
2On 18 February 2025, the Secretary filed an application for an interim supervision order in respect of the respondent. At the time this application was filed, the respondent was not an “eligible offender” as that term is defined in s8 of the SO Act.
3On 19 February 2025, in circumstances which I will describe in the next section, I granted an urgent application by the Secretary for an interim supervision order against the respondent. I did so having formed the view on the basis of the submissions and evidence before me, that the Court had jurisdiction to make the Order, despite the fact the respondent was not an eligible offender when the application for an interim supervision order was made. However, given the extremely limited notice the respondent had of the application (less than one day), I limited the duration of the Order to a period ending on 28 March 2025. I stated that any application for an extension of the Interim Supervision Order could be determined at a mention date I listed for 20 March 2025. I also emphasised that the respondent could re-agitate the question of whether there was jurisdiction to make the Interim Supervision Order at that hearing.
4The Secretary applied for an extension of the Interim Supervision Order. The application was heard at the mention on 20 March 2025 (yesterday). These are my reasons for decision on that application.
5The critical issue determined in these reasons is whether the Court had the power to make the Interim Supervision Order. The Secretary submits that it did and that, accordingly, the Court can and should now extend the Interim Supervision Order so the extended period of the Interim Supervision Order totalled four months.[1] The respondent submits that it did not, and the Court should dismiss the application for an extension and set aside the Interim Supervision Order.
[1]The maximum allowable period in the absence of exceptional circumstances – see s54(2) of the SO Act.
Background
6The respondent was originally charged with sexual offences in relation to four sex workers, which it was alleged he committed in St Kilda between September and October 2000. He was ultimately convicted of raping only one of these sex workers and sentenced to five years’ imprisonment. His offending was described as follows:
“… It involved [him] accessing sexual services from a sex worker in St Kilda, and [his] ultimate refusal to pay her. [He] grabbed her around the neck with sufficient force that she had difficulty breathing, and whilst maintaining that hold of her neck with one hand, [he] raped her.”[2]
[2]Reasons for sentence of Judge Pullen delivered 27 March 2015 in relation to offences of breach of supervision order (“Pullen sentence reasons”), at paragraph [10]
7He was released on parole on 5 September 2009, but his parole was cancelled on 18 September 2009 after he displayed concerning behaviours, including approaching women in shopping centres asking for sex.[3] He was again released on parole on 8 June 2010. On 12 October 2010, he was convicted in relation to a “road rage” incident and sentenced to an aggregate four months’ imprisonment, to be served by way of an intensive corrections order in relation to offences of reckless conduct endanger serious injury, drive in manner dangerous and fail to stop vehicle after an accident.
[3] Pullen sentence reasons at paragraph [11]
8On 17 December 2010, an interim supervision order was made against the respondent under the Serious Sex Offenders (Detention and Supervision) Act 2009 (“the former Act”). That interim supervision order was extended until, on 16 August 2011, a supervision order was made under the former Act. The supervision order was for a term of five years, expiring on 15 August 2016.
9On 7 November 2013, the Supervision Order was reviewed and confirmed by Judge Pullen. The reviewed Supervision Order included conditions prohibiting the respondent from entering certain parts of St Kilda without the prior written consent of the Adult Parole Board[4] and preventing him knowingly engaging the services of a sex worker.[5]
[4] Condition 4.2 of the Review of Supervision Order made by Judge Pullen on 7 November 2013
[5] Condition 4.6 of the Review of Supervision Order made by Judge Pullen on 7 November 2013
10In November 2014, the respondent breached these conditions of his supervision order in two separate incidents. Judge Pullen describes his offending as follows:
“… On 8 November 2014…[he] attended in Carlisle Street, St Kilda, and engaged in conversation with a sex worker for the purposes of soliciting prostitution. [He] asked the worker to get into [his] car to discuss the services [he] wanted then drove her to the end of the street near the botanical gardens. [He] said to the worker that [he] had ‘never done this before’ and asked if she would agree to give [him] sex without a condom. She refused.
[He] drove the worker to an alley off Blanche Street, St Kilda, behind 120 Barkley Street, St Kilda. [He] asked the worker to take her clothes off and [he] engaged in sexual activity with the worker. … .
… [He] then locked [his] keys in the car with the worker’s belongings inside, including her clothing. [He] told the worker [he] had a spare key, however later admitted to her [he] did not. The worker was naked and frighted (sic) and she walked to a nearby house where the occupant called the police.
…
On 14 November 2014 [he] attended in Grey Street, St Kilda, and agreed to pay a sex worker $100 for a ‘full service’.
[He] drove the worker to a lane behind Coles Express service station at the corner of Barkly Street and Blanche Street, St Kilda. [He] requested sex without a condom and the worker became upset, refusing to engage in that sexual activity. The worker picked up [his] wallet and threw it onto the ground. [He] started yelling and asked her to pick up [his] cards, and [he] called 000.”[6]
[6] Pullen sentence reasons at paragraphs [19]-[27]
11On 13 March 2015, the respondent pleaded guilty to four counts of failing to comply with his supervision order. He was sentenced on 27 March 2015 to a total effective sentence of eight months’ imprisonment.
12On 30 June 2015, the Secretary filed an application for renewal of the Supervision Order under s28 of the former Act.
13On 7 July 2015, the respondent’s permanent visa was cancelled pursuant to s501 of the Migration Act 1958 (Cth).
14On 16 July 2015, upon his release from prison, the respondent was taken into immigration detention.
15By a series of emails received from the parties in August 2015, the Court was informed that the respondent remained in immigration detention. Both parties sought an order adjourning the application for renewal of the Supervision Order sine die. Accordingly, on 20 August 2015, the Court adjourned the Secretary’s application for renewal of the Supervision Order sine die.
16At that stage, no application for an interim supervision order had been made.
17The original Supervision Order expired on 15 August 2016.
18The SO Act commenced on 3 September 2018.
19From the perspective of the Court and the respondent, no further steps were taken in relation to this matter until some nine-and-a-half years later, on 18 February 2025, when the Secretary filed an application for an interim supervision order and requested it to be listed urgently. This resulted in the application coming on for hearing before me on 19 February 2025. The respondent was represented at the hearing on 19 February 2025 by a solicitor from Victoria Legal Aid, who necessarily had extremely limited time to prepare and obtain instructions.
20At the outset of the hearing on 19 February 2025, the Court was informed by Senior Counsel for the Secretary that:
“… in recent days, the Secretary had received information from the Australian Border Force to the effect that [the respondent] may be released tomorrow … pursuant to a bridging visa. … .”[7]
This explained the urgency of the application, it being put that, in the absence of an interim supervision order, the respondent might be released into the community, unsupervised, the next day.
[7] Transcript (“T”) 7, Lines (“L”) 17-20
21In relation to the circumstances giving rise to this urgency, I note that the Court was also informed that:
“… The Secretary received notification back in November 2024 that as a result of a decision of the High Court … had the effect of releasing into the community non-citizens who were being held in detention because of risks to community safety … Further applications were made to the High Court and a decision of the High Court was pending in respect of subsequent applications, which would have had a direct effect on the position of [the respondent]. On 14 November, the Secretary then sought to make application for an interim supervision order because it was believed that the decision of the High Court would be delivered imminently.”[8]
[8] T6, L31 ꟷ T7, L7
22That an application for an interim supervision order was contemplated by the Secretary in November 2024 is confirmed by the fact that the application, despite not being filed and served until 18 February 2025, was dated 14 November 2024.
23If an application had been made for an interim supervision order in November 2024 (or, indeed, steps taken to re-enliven the application for renewal of the Supervision Order), the need for urgency may well have been obviated. An application made at that stage would not have been futile, as s53(1)(c) provides that, where an offender is in immigration detention when an interim supervision order is made, the interim supervision order commences “on the day on which the offender is released from immigration detention”.[9] This did not occur, and there is no evidence before me as to the reason for this. The Court had little choice but to deal with the situation as presented to it.
[9] See also ss19(4), 20 and 54(5) of the SO.
24At the hearing on 19 February 2025, I was persuaded that the Court had jurisdiction to grant an interim supervision order, notwithstanding the fact the respondent was not an eligible offender at the time the application for an interim supervision order was made, essentially on one of two bases:[10]
(a) under the SO Act: s46(1) should be interpreted as requiring the respondent to be an eligible offender at the time the application for renewal of the Supervision Order was made, rather than at the time the application for an interim supervision order was made; or
(b) under the former Act: clause 5(1) of the transitional provisions of the SO Act[11] provided that the former Act continued to apply to an application for renewal of a supervision order made under the former Act, but not determined before the commencement day of the SO Act. An application for an interim supervision order could be seen as part and parcel of an application for renewal of a supervision order, so that the transitional provisions permitted the making of an application for an interim supervision order under the former Act, where an application for a supervision order had been made under the former Act, but not determined by the commencement of the SO Act.
[10]The Secretary’s initial position was that the Order should be made under the SO Act ꟷ see T12, L17-19. However, the Secretary subsequently submitted that order could be made under the former Act ꟷ see T28, L28-T29, L4.
[11] In schedule 4 of the SO Act
25I was also persuaded to exercise this jurisdiction to grant an interim supervision order. However, in view of the very limited time the respondent’s legal representative had to prepare for the hearing and obtain instructions,[12] I did not grant the Secretary the four-month Interim Supervision Order that it sought. Instead, I granted an Interim Supervision Order until 28 March 2025 and listed the proceeding for a mention, in order to “give sufficient time for everybody to come to court with fulsome evidence and submissions in relation to the question of whether a further extension of the interim order should be made”.[13] In delivering my reasons (ex tempore) I stated:
“In the context of the urgent nature of this application and the concerns…expressed very eloquently by Ms Colliver in relation to [the Respondent’s] lack of time to adequately respond to this application, I want to make it clear that any and all findings I have made today are on an interim basis only and [the Respondent] should be considered at liberty to challenge those findings at the next hearing, including the findings in relation to jurisdiction.”[14]
[12]For the record, Ms Colliver did an excellent job presenting submissions on behalf of the respondent given her lack of time to prepare.
[13] T27, L30 ꟷ T28, L2
[14] T36, L4-12
26The Secretary applied for an extension of the Interim Supervision Order by an application formally filed on 13 March 2025. The application was listed to be heard at the mention listed at 9.30am on 20 March 2025. In written submissions filed with the Court at 9.29am that morning, the respondent confirmed that his objection to the jurisdiction of the Court to make the Interim Supervision Order was maintained.
Parties’ submissions
27At the hearing on 20 March 2025, Senior Counsel initially submitted on behalf of the Secretary that the Interim Supervision Order could be made under the former Act, having regard to clause 5(1) of the transitional provisions in Schedule 4 to the SO Act. However, part way through the hearing, I drew the parties’ attention to the Court of Appeal decision of Director of Public Prosecutions v Phillip Lyons (a pseudonym),[15] which had been located during the course of the hearing, thanks to the excellent legal research skills of my associates. That case made it plain[16] that the Secretary’s contention that the Court had jurisdiction to make an interim supervision order under the former Act could not be maintained. Senior Counsel then reverted to his earlier contention that s46(1) of the SO Act should be interpreted as requiring only that the respondent be an “eligible offender” at the time the application for renewal of the Supervision Order was made. He relied particularly on:
[15] [2018] VSCA 247 (“Lyons”)
[16] Lyons at paragraph [45]
(a) the purpose of the SO Act, which was to:
“… provide for the enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision”;[17]
(b) the practical impact of a finding that the Court lacked jurisdiction, which would see no order made in relation to an offender against whom an application for renewal had been made and who met all the requirements and preconditions for the imposition of an interim order;
(c) the statutory context, particularly:
(i)section 47(4) of the SO Act, which confirmed that the Court may hear and determine an application under s46 “even if the offender has ceased to be an eligible offender”; and
(ii)section 53(2) of the SO Act, which contemplated an interim supervision order commencing after the expiry of the previous supervision order; and
[17] Subsection 1(a) of the SO Act
(d) the fact that the Order would not only be of benefit to the community, but also to the respondent, by providing him supervision, monitoring and treatment as he transitioned back into the community.
28The respondent, on the other hand, maintained that s46(1) should be given its ordinary meaning. As such, it required that, at the time of the application for an interim supervision order, the respondent must be an eligible offender. As he was not, the Court lacked jurisdiction to make the Interim Supervision Order and should not extend it. Counsel for the respondent submitted:
(a) the words of ss46(1) should be given their ordinary meaning, which was that an application for an interim supervision order could only be made in relation to a person who is an “eligible offender”. This was further emphasised by the use of the present tense “is”. Convenience and practicality could not be allowed to replace the words of the section;
(b) this was particularly so, given the grant of an interim supervision order impacted the right to liberty of respondents. In this context, both the principle of legality and the Charter of Human Rights demanded that the ordinary meaning should not be departed from;
(c) this interpretation was also supported by the structure of the SO Act, particularly:
(i)the delineation between the making of the application by the Secretary (governed by s46) and the determination of the application by the Court (governed by s47); and
(ii)the confirmation in s47(1) that an order under s47 may only be made “[o]n an application under section 46”;
(d) it was also supported by the history of the Act. The insertion of the words “eligible offender” into s46(1) of the SO Act could be contrasted with s50(1) of the former Act, which required only that an application may be made in respect of an “offender”. The SO Act also included no equivalent of s50(2), which made it clear that an application for an interim supervision order could be made at any time before an application for renewal was determined, whether or not the offender had ceased to be an eligible offender. This should be viewed as a deliberate choice by Parliament to require an application under s46(1) to be made at a time when the respondent was an “eligible offender”; and
(e) this interpretation did not thwart the legislative purpose of the SO Act. Rather, it reflected the limited and carefully-defined class of persons to whom the SO Act applied, which in turn could have impact on the constitutionality of the provisions.[18]
[18]Relying on Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 (“Fardon”) at 619, paragraph [108] (Gummow J, Hayne J agreeing).
Findings on jurisdiction
29For the following reasons, I have concluded that the Court had no power to grant an interim supervision order against the respondent.
30First, the Secretary’s concession that the Interim Supervision Order could not have been granted under the former Act, was correctly made. Clause 5 of Schedule 4 of the SO Act provides that:
(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—
(a) an application for a supervision order, a detention order or an interim order;
(b)an application for the renewal or extension of an order referred to in paragraph (a);
(c)an application for the review of an order or a condition of an order referred to in paragraph (a).
(2)An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act.”
31The Court of Appeal decision, in Lyons, clarifies that any application determined after the commencement date of the SO Act is to be determined by the Court under the SO Act and not the former Act. Clause 5(1) requires only that “any question concerning the adequacy of procedural steps taken before [the commencement date of the SO Act] is to be determined in accordance with [the former Act]”.[19] Given this, there is no room for an argument that the Secretary’s application for an interim supervision order, made on 18 February 2025, well after the commencement of the SO Act, could have been made under s50 of the former Act.
[19] Lyons at paragraph [45]
32Second, I am satisfied that the respondent was not an eligible offender at the time the application for an interim supervision order was made. Eligible offender is defined in s8 of the SO Act as follows:
“(1)A person is an eligible offender if the person is of or over the age of 18 years and—
(a) the Supreme Court or the County Court or an equivalent court of another State or a Territory has at any time (whether before, on or after the commencement of this Act) imposed on the person, whether at first instance or on appeal from the Supreme Court or the County Court, a custodial sentence for a serious sex offence or a serious violence offence; and
(b)the person is serving in Victoria—
(i)the custodial sentence referred to in paragraph (a), whether or not the sentence is being served concurrently with or cumulatively on a custodial sentence for another offence; or
(ii)a custodial sentence for another offence that is being served cumulatively on the custodial sentence referred to in paragraph (a) that has been served, irrespective of when the sentence was imposed; or
(iii)a custodial sentence for another offence that is being served cumulatively on the custodial sentence referred to in subparagraph (ii) that has been served, irrespective of when the sentence was imposed.
(2) A person is an eligible offender if—
(a)the person is remanded in custody or is serving a custodial sentence for any offence; and
(b)at the time when the person was remanded in custody or began to serve the custodial sentence, the person—
(i)was the subject of an application for a supervision order, a detention order or an emergency detention order; or
(ii)was subject to a supervision order, an interim supervision order, a detention order, an interim detention order or an emergency detention order.
(3)A person is an eligible offender if the person is subject to a supervision order, an interim supervision order, a detention order, an interim detention order or an emergency detention order, whether or not the person is remanded in custody or is serving a custodial sentence.
(4)Despite any other provision of this section, a person is not an eligible offender if on appeal—
(a) the conviction or finding of guilt in respect of the serious sex offence or serious violence offence by reason of which the person is an eligible offender is set aside; or
(b) the custodial sentence is varied and a different sentence is imposed such that the person is not an eligible offender.”
33Prior to his release from prison for his index offending in 2010, the respondent might have been viewed[20] as an eligible offender under s8(1), but no longer. Prior to his release from prison on 16 July 2015 for the breaches of his supervision order, he might have been viewed[21] as an eligible offender under s8(2), but no longer. Prior to the expiration of his supervision order on 15 August 2016, he might have been viewed[22] as an eligible offender under s8(3), but no longer.
[20] But for the fact that the SO Act had not yet commenced.
[21] But for the fact that the SO Act had not yet commenced.
[22] But for the fact that the SO Act had not yet commenced.
34Third, the proper construction of s46(1) is to be “undertaken by reference to the text, context and purpose of the provision”.[23] However, the most useful starting point remains the text of the provision. It is worth considering the text of s46 in its entirety:
[23] Towns (a pseudonym) v Towns (a pseudonym) [2025] VSCA 32 at paragraph [30]
“(1) The Secretary may apply to the court for an interim supervision order in respect of an eligible offender who is the subject of an application under section 13 or 22.
(2) An application under subsection (1) is commenced by filing a notice of application in accordance with the rules of court, if any.
(3) As soon as practicable after an application under subsection (1) is commenced, the Secretary must serve on the eligible offender –
(a) a copy of the notice of application; and
(b) a notice (in the prescribed form, if any) setting out—
(i) the rights of an eligible offender in relation to the application, including rights of appeal; and
(ii) the procedure for the hearing and determination of the application; and
(iii) the nature of an interim supervision order.
(4) An application under subsection (1) may be commenced at the same time as an application under section 13 or 22 or at any later time before the application under section 13 or 22 is determined.
(5) An application under subsection (1) must be discontinued if the offender ceases to be an eligible offender by reason of section 8(4).
(6) An application for an interim supervision order may be made more than once in respect of an eligible offender.”
35The following can be drawn from this text:
(a) the natural and ordinary meaning of the words of s46(1) are that the application for the interim supervision order may only be made in respect of an “eligible offender”. This is further emphasised by the use of the present tense “is” for the subsequent clause, which suggests that the application is to be made in relation to an eligible offender who “is”, at that point in time, the subject of an application under s13 (for a supervision order) or s22 (for renewal of a supervision order;
(b) the term “eligible offender” is repeated twice in s46(3), which deals with the service of the application on the eligible offender. This is consistent with the respondent being required to be an eligible offender at the time the application is commenced, given this subsection is addressing a period of time which is “as soon as practicable” after the application was commenced. The term “eligible offender” is also repeated in s46(6), which provides that an application for an interim supervision order may be made more than once, but only “in respect of an eligible offender”. Again this suggests a parliamentary intention that a respondent be an eligible offender when an application is made. However, the term “eligible offender” is not used in s46(5), which addresses the situation where an “offender ceases to be an eligible offender”. This demonstrates an awareness by Parliament of the distinction between “offender” and “eligible offender”, and an available alternative terminology to express that distinction; and
(c) on the other hand, s46(4) states that an application under s46(1) may be commenced “at any later time before the application under section 13 or 22 is determined”. This could be viewed as supporting the view that an application need not be made in respect of a person who was an eligible offender at the time the application was made. However, the express words of this subsection confirm that any application must be made “under” s46(1). This imports the requirements of s46(1), including that the respondent be an “eligible offender” at the time of the making of the application.
36Fourth, if one then broadens the lens to consider the words of s46 in their statutory context, further support is found for the view that an application under s46(1) can only be made when the respondent is an eligible offender:
(a) section 8 of the Act sets up specific and limited circumstances in which a person who has been convicted of a serious sex offence or serious violence offence may be viewed as an “eligible offender”. This term is then used in relation to each application that may be made under the Act;
(b) section 47(4) provides that the Court may hear and determine an application under s46 even if the offender has ceased to be an eligible offender. However, the SO Act repeatedly delineates between the making of the application (on the one hand) and the determination of the application (on the other). Thus, s46 concerns an application for an interim supervision order, and sets out the requirements for such an application; and s47 concerns the determination of an application under s46, and sets out the requirements for such an application. This same structure is reflected in s13 (application for supervision order) and s14 (determination of application for supervision order); s22 (application for renewal of supervision order) and s24 (determination of application for renewal of supervision order; s61 (application for detention order) and s62 (determination of application for detention order); and s75 (application for interim detention order) and s76 (determination of application for interim detention order). In this context, s47(4) provides no support for the view that an application may be made under s46(1), even if the offender has ceased to be an eligible offender. It concerns the manner in which an application (validly brought under s46) may be heard and determined, not the circumstances in which such an application can be made;
(c) there are repeated references to immigration detention in the SO Act. The circumstance that an offender may spend time in immigration detention was thus considered by Parliament, and addressed by provisions such as s53(1)(c) and s54(5), which provide that an interim supervision order commences on the day which an offender is released from immigration detention and any time spent in immigration detention does not count in calculating the period of an interim supervision order; and
(d) the SO Act repeatedly draws a contrast between the term “eligible offender” used when compliance with s8 was required; and “offender” used when compliance with s8 was not required.[24]
[24] See for example, ss12; 36; 53; 63; and 65.
37Fifth, if one broadens the lens again to include the former Act, Parliament had available to it language which made it clear that an application for an interim supervision order could be made, even though the respondent was no longer an eligible offender. It chose not to carry over that language into the SO Act. I accept the respondent’s submission that the shift away from this clear language supported the view that Parliament intended that an application for an interim supervision order under the SO Act could only be made in relation to an eligible offender.
38Sixth, the primary purpose of the SO Act is:
“… to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious sex offences or certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing detention or supervision …”[25]
[25] Section 1 of the SO Act.
39Further, in making any decision under the SO Act, the Court must “give paramount consideration to the safety and protection of the community”. However, it does not follow from this expression of statutory purpose that the Court ought strain the meaning of s46(1) in order to find that it has power to grant an interim supervision order in an individual case.
40I do not accept Senior Counsel for the respondent’s submission that such an interpretation would leave a “lacuna” in the Act. The Secretary could have applied for an interim supervision order prior to the expiry of the Supervision Order. If such an application were made under the former Act, it would (after commencement of the SO Act) be determined under the SO Act.[26] Such an application would not have been futile merely because the respondent was in immigration detention at the time it was made. It could have been made and adjourned sine die. If determined before the respondent was released from immigration detention, it could have been made for a period of up to four months that did not commence until the moment the respondent was released from immigration detention.[27] The Secretary could also have proceeded with its application for a renewal of the Supervision Order. That the Secretary did not do so in this case is not a basis for retrospectively interpreting the words of the SO Act so as to provide a means to apply for an interim supervision order where a respondent is not an eligible offender.
[26]See the transitional provisions in Schedule 4 of the SO Act, as interpreted by the Court of Appeal in Lyons.
[27] Section 53(1)(c)
41Indeed, the very purpose of s8 and the strict and limited circumstances in which it applies, appears to be to limit the category of person in respect of whom an application for a supervision order (or interim supervision order) may be made to those either in custody or already subject to an interim supervision order. That the making of a supervision order or interim supervision order is not so limited does not detract from this point. An application invokes the jurisdiction of the Court. The timing of the making of an application is within the control of the Secretary, who presumably has access to records of the dates on which offenders will be released from custody and on which supervision orders expire. On the other hand, the hearing and determination of such an application is not (solely) within the control of the Secretary. In this context, it is consistent with the purpose of the statute that Parliament would impose a requirement upon the Secretary to apply while a respondent is still an “eligible offender”, although not requiring the respondent to still be an “eligible offender” at the time a supervision order (or interim supervision order) is made. The practical consequences of not making an interim supervision order in the particular circumstances of this case might have been relevant to any discretion to make or not make an interim supervision order. They do not justify interpreting s46(1) in the manner contended for by the Secretary.
42As pointed out by counsel for the respondent, requiring applications under s46(1) to be made at a time when the respondent is an “eligible offender” can also be viewed as reflecting a Parliamentary intention to recognise the importance of limiting encroachments upon the fundamental common law value of liberty. It also potentially impacts upon the constitutionality of regimes, such as that in place under the SO Act, which deprive a person of their liberty for reasons other than punishment.[28]
[28]See Fardon at 619 [108] in which Gummow J effectively suggested that the constitutional validity of the Act in question may have been “imperilled” if the connection between the operation of the Act and conviction by usual judicial processes was too remote.
43Lastly (and the importance of this factor is by no means intended to be minimised because of its positioning in these reasons), an interim supervision order, even though temporary in nature, has the power to severely restrict the liberty of a respondent. The right to liberty is “‘the most elementary and important of all common law rights’”.[29] Its protection is also enshrined in s21 of the Charter of Human Rights and Responsibilities. Yes, the respondent has been convicted of a serious sex offence (among other offences). However, he has been sentenced for that crime and served his sentence. To deprive a person of their liberty for reasons other than court-ordered punishment for a criminal offence is a very significant matter. The principle of legality presumes that Parliament would only provide authority to do so by clear and unequivocal language.[30] This means that a court would not ordinarily interpret a statute as doing so if there is more than one open interpretation.[31] There is no such clear and unequivocal language in this case. Indeed, if anything, the plain words of the section are to the effect that an application can only be made in respect of an “eligible offender”.
[29]Williams v The Queen (1986) 161 CLR 278 at 292, paragraph [9] citing Trobridge v Hardy (1955) 94 CLR 147 at 152
[30] Momcilovic v The Queen (2011) 245 CLR 1 at 45-6, paragraph [43]
[31]North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 581, paragraph [11]
44I find that an application under s46(1) of the SO Act for an interim supervision order can only be made at a time when the respondent is an “eligible offender” within the meaning of s8. Accordingly, there was no jurisdiction to grant the Interim Supervision Order, and it should not be extended.
Would I have granted an interim supervision order on the material before the Court?
45The respondent submitted that, even if the Court had jurisdiction, it should not extend the Supervision Order, as the material in support of the application was insufficient to meet the criteria in s47(1)(b) for grant of an interim supervision order that “it appears to the court that the documents in support of the application under section … 22 would, if proved, justify the making or renewal of a supervision order”.[32] The respondent submitted that this required the Court to be satisfied that the documents in support of the application to renew the Supervision Order would “if proved” amount to “acceptable, cogent evidence to a high degree of probability that the offender poses or will pose an unacceptable risk”[33] of committing a serious sex offence or serious violence offence if in the community without a supervision order.
[32]Section 47(1)(b)
[33] Section 14(3), read in conjunction with s24(3)
46As I have found that the Court lacked jurisdiction to make the original Interim Supervision Order, it is not necessary I determine this issue. However, for completeness, I record that, had I formed the view that the Court had jurisdiction, I would have granted the extension of the Interim Supervision Order.
47The Secretary relied upon a report of Dr Karen Owen dated 18 February 2025, which assessed the respondent as at high risk of committing a serious sex offence if in the community and not subject to a supervision order. That report was necessarily provisional, as Dr Owen had not had the opportunity to conduct a proper assessment on the respondent. The Secretary also relied upon detailed reports of Dr Michael Davis dated 23 August 2010, 19 July 2011, 16 April 2013 and 27 May 2015. I find that the Court may consider each of these reports as part of “the documents in support of the application for renewal”. It is not limited to any documents filed together with the original application for renewal. Indeed, it is not uncommon for an application under the SO Act to be first filed without any supporting documents.
48I also take into account the fact that the respondent has been subject to some form of supervision when in the community (either because subject to parole or a supervision order) since his first release on parole in 2009. Even so, concerning issues have arisen which have led to the cancellation of his parole on one occasion and further offending (albeit not the commission of a serious sex offence). Since 16 July 2015, a period of nearly ten years, he has been held in immigration detention. Although there is evidence (filed shortly before this hearing) that the respondent has received psychological counselling during immigration detention, the Court has no real details as to its nature, extent or efficacy. There is a lot to be said for the Secretary’s submission it is in the interests of both the community, and the respondent himself, that he be transitioned back into the community with the benefit of a supervision order and the controlled, graduated process and access to rehabilitative services that entails.
49Section 47(1)(b) is somewhat curiously worded. It is not clear what is intended by the words “documents…if proved”. In the case of an expert report, it may be that this should be interpreted as requiring the Court to consider whether, if the opinions expressed in the report are accepted, there would be an unacceptable risk if a respondent was in the community and a supervision order was not made. If that were the case, clearly an order granting or extending the Interim Supervision Order could be made. However, I will assume, as submitted by the respondent, those words imported a further requirement that the Court be satisfied the material filed in support of the application was “acceptable, cogent evidence [which establishes unacceptable risk] to a high degree of probability”.
50In this respect, the provisional nature of Dr Owen’s opinion does not prevent it being capable of being viewed as acceptable, cogent evidence capable of establishing an unacceptable risk to a high degree of probability. Risk assessments are, almost by definition, uncertain and speculative exercises. It is not uncommon for them to be performed in a context where an offender is uncooperative. The fact that better or more comprehensive information might be obtained, which could lead to a more accurate assessment, does not exclude the grant of a supervision order. Indeed, in some circumstances it may be the very uncertainties about the boundaries and nature of the risk which makes that risk unacceptable and justify the grant of a supervision order.
51Having regard to Dr Owen’s report, Dr Davis’ reports and the respondent’s history since completing his sentence for the index offence, I am satisfied that the documents filed in support of the renewal application would, if proved, provide acceptable, cogent evidence, to a high degree of probability that the respondent poses an unacceptable risk if in the community without a supervision order in place. Of course, that does not gainsay a later finding by the Court, having considered all the material relied upon in relation to the renewal application, that it is not satisfied that there is such an unacceptable risk. There may also be an adverse inference available if the Secretary chooses not to obtain additional evidence that has been recommended by Dr Owen.
Appropriate orders
52Given my conclusion that the Court lacked jurisdiction to grant the Interim Supervision Order, it is not appropriate that I extend it. Accordingly, the Secretary’s application for an extension of the Interim Supervision Order is not granted.
53The respondent further submitted that I should “set aside” the Interim Supervision Order. It is an interesting question, which I do not propose to determine on this application, whether or not an order of the County Court made without jurisdiction is a nullity and can be ignored.[34] However, in DPP v Edwards,[35] the majority of the Court of Appeal held that the County Court has no inherent or implicit power to “set aside” a decision if it subsequently forms the view it was made without jurisdiction. Unlike the situation in Edwards, in this case the Court has an express power under s58(1)(b) of the SO Act to revoke an interim supervision order on an application to review an interim supervision order. Given this, the best way forward is to record, in these reasons (as I have), that I have determined the Court lacked jurisdiction to make the Interim Supervision Order; and to make an order under s58(1)(b) of the SO Act that, if not a nullity, the Interim Supervision Order made 19 February 2025 is revoked.
[34]See Walker, K, “When can a Court’s Decision be Ignored?”, (2023) 46(2) Melbourne University Law Review 572; but query whether the High Court decision of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3, particularly the reasoning of Edelman J impacts on this question.
[35] [2012] VSCA 293
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