This was an appeal against the granting of an extended supervision order under the Serious Sex Offenders Monitoring Act 2005. Section 11 of the Monitoring Act permits the making of an ESO in relation to sex offenders who have completed their sentences where the Supreme or County Court is "satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence."
The Commission made submissions about the operative provisions of the Charter and how section 32 of the Charter affects the interpretation of the discretion to make an extended supervision order.
Previous decisions in Victoria had determined that the test for an order could be satisfied even if the risk assessment of a particular offender was that they were less likely than not to reoffend. All three judges in this decision concluded that the test for granting extended supervision orders required an assessment that the offender was more likely than not to reoffend. One of the three judges said that this interpretation was required by the obligation in section 32 of the Charter to interpret the provision compatibly with human rights.