Baldwin v State of New South Wales

1. [1]

   BASTEN JA: On 19 December 2019 Beech-Jones J made an extended supervision order with respect to the applicant under s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“High Risk Offenders Act”). [1] The order was to have effect for a period of two years.

2. [2]

   There is no challenge to the making of the order, but the applicant seeks to challenge the validity of four conditions of the order imposed pursuant to s 11 of the Act.

3. [3]

   Although Mr Baldwin had a right of appeal to this Court pursuant to s 22 of the Act, if exercised within 28 days of the date on which the order was made (s 22(3)), the summons was in fact not filed until 13 March 2020, some three months after the date of the orders. The application for leave to appeal is not opposed. The primary issue sought to be raised is one of some importance and, accordingly, leave should be granted.

Background to the application

1. [4]

   In making an extended supervision order the court must have regard to the criteria of engagement of the power in s 5B, the matters to be considered pursuant to s 9(3) and, in particular, whether the court is satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B(d). Because no issue was raised as to the substance of the order, nor as to 50 of the 54 conditions attached, the factual background may be dealt with briefly.

2. [5]

   The applicant had a record of sexual offences involving children beginning with a conviction in 1978 for an offence of indecent assault with a 15 year old boy. [2] There were similar offences over the years, somewhat intermittently. In 2007 he was convicted of his first offence of transmitting child pornography. [3] As the primary judge noted, “within months” of the sentence expiring for the pornography conviction, he committed further indecent assaults. He was convicted and sentenced to a period of 6 years and 3 months in prison, commencing on 10 May 2010. He was released on parole in February 2015. Thereafter, he was subject to an interim supervision order and, from 14 October 2016, an extended supervision order. Immediately following a direction on 25 November 2016 that he not make contact with any convicted sex offender, he participated, between 26 November 2016 and 31 December 2016, in a number of telephone conversations with a convicted sex offender who was then in custody. He was convicted and given a bond for the breaches of the extended supervision order, which bonds in turn were breached and he was sentenced to a two year community corrections order in October 2018.

3. [6]

   He was arrested again, on 9 August 2019, and sentenced to 3 months and 20 days imprisonment.

4. [7]

   The primary judge noted, and accepted, submissions made for the State that (i) his risk of reoffending was “at least above average”, (ii) he had “limited insight into the risk factors associated with his offending, (iii) it was unlikely that he would attend for treatment absent supervision, and (iv) his compliance with the existing extended supervision order conditions had been relatively poor and had led to him obtaining access to children. [4]

5. [8]

   The judge doubted if “rehabilitation is truly possible”, continuing: [5]

6. [9]

   The 54 conditions which the State sought to have imposed covered 13 separate topics. The judge described the regime under the earlier extended supervision orders as “draconian”; [6] the present conditions also warranted that description. The conditions run for more than seven pages and bear every hallmark of legal drafting.

Conditions attached to order

1. [10]

   The challenged conditions attached to the extended supervision order come in “Part J: Search and seizure”. Condition 39 reads as follows:

2. [11]

   That which is required by condition 39 is the “search and inspection” of the person’s property, and search and examination of his person. (What is encompassed by “examination” of the person need not be explored.) The DSO is the “Department Supervising Officer”; that is, a designated officer within Corrective Services NSW, being the agency responsible for the administration of the High Risk Offenders Act. [7] Thus, the power to direct a search depends on the DSO’s reasonable belief that a search is “necessary” for one of the reasons identified in pars (a)-(c). Putting to one side (a), the scope of which is obscure in relation to the applicant’s proclivities, the reasonable belief must relate to monitoring compliance with the conditions attached to the order.

3. [12]

   There are other conditions which also involve monitoring and reporting. Thus, the first four conditions read as follows:

4. [13]

   On one view, condition 39 sets out, and perhaps limits, the scope of the reasonable directions which can be given under condition 3. In any event, none of conditions 1-4 were challenged.

5. [14]

   Condition 40 identified the nature of a search of the person under 39(g), which extends to a “garment search” and a “pat-down search”. It is ancillary to condition 39; its content is not material to the present argument.

6. [15]

   Conditions 41 and 42 provide as follows:

7. [16]

   Condition 42 appears to have been taken from an earlier precedent because the reference to conditions “37 to 40 above” are inapt; they should presumably be references to conditions 39 to 41. No argument in this Court concerned the scope and operation of condition 42 which is dependent on the validity of conditions 39 and 40.

8. [17]

   Condition 41 is an extension of the powers to search (and the requirement to consent to a search) pursuant to condition 39; it confers on the DSO or another person power to “seize” anything found which the DSO reasonably suspects will “compromise”, amongst other things, the person’s compliance with the order, or which is reasonably suspected of relating to conduct or behaviour associated with an increased risk of the commission of a serious offence.

9. [18]

   The drafting of this provision is awkward: no doubt a thing may be suspected of compromising the safety of others, but what is meant by compromising compliance with the order is unclear. Although the applicant referred in submissions to the imprecision and uncertainty of the language, that did not constitute a separate ground of challenge to the validity of the conditions.

10. [19]

    Before identifying the grounds of challenge, it is convenient to note two other aspects of the conditions to which objection was not taken. First, there were several conditions relating to access to the internet and forms of electronic communication. Thus the defendant had to supply a list of all devices used to communicate, including telephones and computers, passwords and codes and details of internet connections. He was also required to obey reasonable directions as to his use of such devices. [8] He was required to produce the devices if required to do so by the DSO and prohibited from deleting records on such devices. He was required to submit to Corrective Services (presumably through the DSO) searching his devices, inspecting their contents, photographing texts and images, downloading data and, if necessary, seizing the device as evidence of a suspected breach of either the extended supervision order or a criminal offence. [9] These provisions, contained in Part I, were detailed and repetitive. [10] No objection was taken to any aspect of them. Yet there was considerable overlap in a practical sense with the conditions which were challenged.

Basis of appeal

1. [20]

   The draft notice of appeal, as amended, contained two grounds, which read as follows:

2. [21]

   Both grounds required consideration of the power to impose conditions contained in Part 2, Div 4 of the High Risk Offenders Act. The Division contains three sections. Section 13, dealing with variation and revocation of extended supervision orders is not presently relevant. Sections 11 and 12 read as follows:

3. [22]

   It is convenient to deal first with ground 1, which was the focus of the applicant’s submissions.

Ground 1: privilege against self-incrimination

1. [23]

   The trial judge noted that the effect of condition 39 turned on the direction that the applicant consent to the search. He observed that if the applicant refused to consent, the search would not be authorised and would amount to a trespass; however, the refusal itself might constitute an offence under s 12 of the Act. [11] The judge then identified the argument based on lack of power as involving two steps.

2. [24]

   Before considering how the judge addressed the second step, it is necessary to identify more precisely how the privilege was engaged. While it is clear that the requirement to consent to a search prevents the search being a trespass to the property or person of the applicant, it is not so clear that a requirement to consent to a search purports to abrogate the privilege against self-incrimination. In Rank Film Distributors Ltd v Video Information Centre [12] Lord Wilberforce identified the Anton Piller orders under consideration as falling under three heads, namely:

3. [25]

   The distinction drawn by Lord Wilberforce is well established in this country. For example, in Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [13] Gibbs CJ, Mason and Dawson JJ, in dealing with a notice in writing issued by the Commissioner to the appellant to produce all its books, records, documents and other working papers relating to its dealings in specific securities, stated: [14]

4. [26]

   The appellant sought to obtain support for a broader operation of the privilege against self-incrimination through reliance on a judgment of the Full Court of the Federal Court, Meneses v Directed Electronics OE Pty Ltd. [16] The Full Court noted at [79], in dealing with the operation of an Anton Piller order:

5. [27]

   If those observations of the Vice Chancellor were understood to extend the protection of the privilege against self-incrimination to requiring consent to a search, that would surely be erroneous. Tate Access was decided eight years after the House of Lords (and the Court of Appeal) had ruled otherwise in Rank Film Distributors. Further, Browne-Wilkinson VC was referring to the entitlement “to refuse to produce documents”, as to which the operation of the privilege is undoubted.

6. [28]

   The distinction was reiterated by the Full Court in Meneses at [85] (“[t]he privilege of an individual against self-incrimination is a deeply entrenched common law right not to answer questions or produce documents or things where there would be a tendency to expose the individual to a criminal charge”) and at [89] (“the privileges are not merely privileges against giving testimonial evidence, but extend to grounds upon which the production of documents by way of discovery, a notice to produce, or in response to a subpoena may be resisted”). Following an extensive quotation from the joint reasons of Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd, [18] dealing with production of documents, and a reference to Controlled Consultants, the Full Court continued:

7. [29]

   If this passage were read as suggesting that the privilege against self-incrimination is not available to resist the seizure of documents under a search warrant only because there is statutory authority for the warrant, that would be inconsistent with the distinction drawn earlier between the execution of a search warrant and an order for production of documents by the person the subject of the order. As explained in Caltex Refining, the reason why the privilege attaches to an order to produce documents is that “by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given.” [19] There is no reason to read the language used by the Full Court in Meneses as extending further and thereby contradicting a basic principle.

8. [30]

   Bearing this principle in mind, it is far from clear that the privilege is engaged by conditions 39-41. It is true that the applicant was ordered to consent to a search and inspection, and a seizure of material found in the course of such a search or inspection which was believed by the officer to satisfy specified criteria. Those orders have all the hallmarks of a search warrant; as the primary judge correctly stated, the requirement for consent to a search and seizure would prevent what would otherwise be an unlawful trespass to person or property. However, unless the conditions were construed as in some way requiring the applicant to produce documents or things or otherwise assist in identifying possibly incriminating material for the searchers, the privilege is not engaged. Whether a different analysis would apply to other conditions is not presently material.

9. [31]

   The primary judge, in addressing the second stage of the applicant’s argument, accepted that the privilege against self-incrimination could not be abrogated pursuant to a power conferred by statute, unless the statute manifested such an intention by unmistakable and unambiguous language, [20] applying the reasoning of the High Court in Coco v The Queen, [21] Electrolux Home Products Pty Ltd v Australian Workers’ Union, [22] and X7 v Australian Crime Commission. [23]

10. [32]

    The primary judge then noted that a similar principle had been applied in three cases in which similar conditions had been challenged, [24] namely State of New South Wales v John Raymond Holschier, [25] State of New South Wales v Steven Single, [26] and State of New South Wales v Grooms (Final). [27]

11. [33]

    Counsel for the applicant had submitted, in the judge’s words, that “those cases should be distinguished because, in each case the argument proceeded on what was contended to be the false premise that these conditions are analogous to search warrants and thus the court did not address the matter on the basis that such conditions purport to abrogate the privilege against self-incrimination (see, for example, Single at [44]).” While the primary judge was not minded to place much weight upon the point of distinction, he accepted that reliance on the privilege against self-incrimination was, arguably, a separate issue and could be addressed on the basis that a contrary finding would not be in conflict with Holschier, Single and Grooms. [28] What was not noted was that the approach adopted in those cases on the basis that there was an analogy to a search warrant might well have been correct, so that the question of abrogation of the privilege was not engaged.

12. [34]

    On the assumption that the question of abrogation of the privilege needed to be determined, the primary judge then turned to s 11 of the High Risk Offenders Act to consider whether its language demonstrated a sufficiently clear and unambiguous intention to permit the imposition of conditions that abrogated any privilege against self-incrimination.

13. [35]

    The nature of this exercise was contested. To the extent that there was a necessary implication that a particular type of condition described in a paragraph in s 11(1) necessarily involved abrogation of the privilege, it was necessary to draw a further inference that the abrogation extended beyond a condition of the type so identified. As was clear from the chapeau of s 11(1), the list of possible conditions was not exhaustive; nevertheless, there was nothing in the chapeau itself which supported a general abrogation of the privilege. In effect, a general implied abrogation of the privilege turned upon the pervasiveness of the descriptions from which the inference could be drawn, together with the potential invasiveness of the conditions.

14. [36]

    Taking the paragraphs in the order in which they appear in the section, the primary judge made the following findings at [89]:

15. [37]

    To these could be added the requirement in par (e) to wear electronic monitoring equipment and (k) “to report to police and provide information to police about the conditions imposed on the extended supervision order ... and the offender’s residential address”. An inference could also be drawn, depending on the scope of the condition, from s 11(1)(m) requiring the person to comply with “specific requirements in connection with the offender’s access to and use of the internet”.

16. [38]

    For reasons already noted, the conditions described in (a) and (a1) permit searches which, no doubt, could yield incriminating evidence, as the primary judge noted, and would warrant a requirement to consent, thus preventing such searches and entry constituting unlawful acts of trespass. However, they do not impliedly abrogate a privilege, if the privilege is not engaged by such conduct.

17. [39]

    Provisions requiring the wearing of electronic monitoring equipment ((e)) and to provide information in relation to employment or financial affairs ((n)) are undoubtedly intrusive and may result in the offender being required to disclose incriminating information, but they are specific in their areas of operation. Ultimately in terms of scope, the question turns upon the powers in (b), (k) and possibly (m), in order to draw a broader inference as to the abrogation of the privilege.

18. [40]

    The Crown Advocate drew the Court’s attention to aspects of the legislative history which supported the view that a broad approach could be taken to the scope of the conditions permitted under s 11. In particular, he referred to an internal government review published in November 2010 which made the following recommendation: [29]

19. [41]

    The Second Reading Speech of the Attorney General in moving amendments in line with the Departmental recommendation was also referred to, although it did not take the matter much further. [30]

20. [42]

    Further amendments were made in 2014. One in particular should be noted, namely the addition of paragraph (k) dealing with the Child Protection (Offenders Registration) Act 2000 (NSW) (“Child Protection Act”). The terminology of par (k) is extremely awkward. It refers to any obligation “that could be imposed on the offender” under Pt 3 of the Child Protection Act if the offender were a registrable person, and not the subject of a supervision order. [31] The term “could” suggests that there was a discretionary power under the Child Protection Act, which was being adopted in s 11 of the High Risk Offenders Act. That reading would not be correct, because there was no discretionary power under the Child Protection Act; the terms of Pt 3, relevantly in s 16C, imposed obligations on a registrable person.

21. [43]

    The intention was explained by the Attorney in the Second Reading Speech introducing the Crimes (High Risk Offenders) Amendment Bill 2014: [32]

22. [44]

    To give effect to paragraph (k), it is necessary to read it as engaged where obligations would have been imposed on the offender under Pt 3 of the Child Protection Act, were the offender not subject to a supervision order. Nevertheless, the reporting obligations were not said in this Court to expand the potential scope of the conditions permitted under s 11(1) to a significant extent. Section 16C of the Child Protection Act provides:

23. [45]

    The judge stated (referring to s 16 but almost certainly intending s 16C):

24. [46]

    Section 16C(4) does require a person to consent, but is not, for that reason, distinguishable from conditions 39 and 41. What might have been inferred from the comparative exercise was that conditions 39 and 41 resemble a consensual power to search, rather than a requirement to answer questions or produce material.

25. [47]

    One other matter should be put aside. The judge reasoned that if provisions requiring compulsory monitoring and reporting were not available, “it is worthwhile noting where a conclusion that such conditions could not be imposed may lead.” [34] The judge concluded that absent such conditions, “the conclusion may follow that the level of risk posed by an offender is such that their continuing detention is warranted rather than being supervised in the community.” The inference was, therefore, that both the structure and purpose of the High Risk Offenders Act, “as well as its subject matter, namely post-offence supervision, manifests to the requisite degree a clear intention to exclude the suggestion that any aspect of the power conferred by s 11(1) is subject to the continued existence of the offender's privilege against self-incrimination.”

26. [48]

    To the extent that reasoning depended upon an assumption that a continuing detention order might remain an alternative to an extended supervision order in the community it was open to challenge. In many cases that would be so, and in many cases the State seeks such orders in the alternative. However, in other cases that will not be so and, indeed, a detention order was not sought in the present case. More importantly than the present circumstances, in terms of statutory construction, is the set of criteria in s 13B of the High Risk Offenders Act with respect to the making of a continuing detention order. Such an order may be made with respect to a “supervised offender”, if the offender (i) is under supervision when the application for the detention order is made, and (ii) is a person found guilty of a contravention of his or her existing supervision order or, because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made: s 13B(4)(a). In short, there will be persons serving an extended supervision order with respect to whom a continuing detention order would not be an available alternative. The assumption that such an alternative will exist in some cases should not carry weight in determining whether s 11, with respect to the conditions imposed on supervision orders, abrogates the privilege against self-incrimination, because the alternative may be worse for the offender.

27. [49]

    Finally, before the primary judge the applicant submitted that s 11 should only be construed as abrogating the privilege only to the extent expressly contemplated by that provision. The Court was taken to the decision of the Victorian Court of Appeal in Gemmell v Le Roi Homestyle Cookies Pty Ltd (In liq). [35] That case concerned the scope of an express abrogation of the privilege pursuant to s 597(12) of the Corporations Act 2001 (Cth), with respect to a compulsory examination of company directors suspected of insolvent trading. Apart from the proposition that the legislation should not be read more widely than is required by its terms, [36] the case has little relevance to the present case.

28. [50]

    Following the passage set out at [45] above, the reasoning of the primary judge continued:

29. [51]

    This reasoning contains four elements of constraint which are important. First, when referring to the possible preservation of “some small residual aspect of the privilege against self-incrimination”, the judge had in mind the limitation that the conditions which may be permitted must qualify as “appropriate” within the chapeau to s 11(1). Whether or not particular conditions are appropriate will depend on the court’s assessment of the nature and scope of the risk of committing another serious offence (if not kept under supervision) posed by the particular offender: s 5B(d).

30. [52]

    Secondly, it follows that the nature of the risk will flow from the offender’s history of offending. That history may be quite limited in scope; for example it may cover sexual assaults on young children and obtaining child abuse material over the internet. A condition which required the offender to provide information with respect to other offences for which he has no past history and of which he may be suspected would not constitute the subject matter of an appropriate condition. The offender’s privilege against self-incrimination would extend to other conduct extraneous to the purpose underlying the supervision order. Privilege may, in such a case, have a wide area of operation; I do not understand the primary judge to have intended otherwise by the reference to a “small residual aspect of the privilege”, when that language is read in context.

31. [53]

    Thirdly, the conclusion at [92] limits the scope of the abrogation of the privilege to disclosure of information or evidence as to compliance with the conditions of the supervision order. Those conditions must be appropriate conditions and the function of the impugned conditions is to monitor compliance with an otherwise appropriate condition. In my view that constrained approach is consistent with the purpose and effect of s 11, read in its statutory context.

32. [54]

    Fourthly, the judge was correct to identify the statutory purpose as involving a primary object of community safety. That does not mean, however, that the court is constructing an exception to the privilege to promote a purpose of community protection, absent statutory authority. This is not a breach of the principle explained in Reid v Howard, [37] relied upon by the applicant, “that the privilege is not to be modified or abrogated in favour of some different protection by judicial decision, but that its modification or the substitute of some different protection can effectively be achieved only by legislation.”

33. [55]

    There is, accordingly, no error in the primary judge’s reasoning, on the assumption that conditions 39 to 42 would otherwise be inconsistent with the privilege against self-incrimination. However, for the reasons explained above, properly construed those conditions do not impose on the applicant an obligation to answer questions, to produce documents or to in some other way assist the process of investigation, with the result that the privilege against self-incrimination would not in any event be engaged by the proper exercise of the powers conferred by those conditions.

Ground 2: directions to third party

1. [56]

   Like ground 1, ground 2 was directed to the imposition of conditions 39-42. There were three limbs to the complaint. The first (par aa) was that the conditions purported to “make directions to, or regulate the conduct of, a third party”. In written submissions that complaint was run together with the complaint that s 11 did not authorise the “unlawful conduct” of a third party.

2. [57]

   Dealing first with the concept of directing or regulating the conduct of a third party, the applicant submitted that such a condition fell outside the chapeau to s 11(1) permitting conditions including “directions requiring the offender” to do certain things.

3. [58]

   The “third parties” referred to were said to be officers in the Department of Corrective Services responsible for the administration of the Act. Thus condition 39 was said to require the Department Supervising Officer to form a particular belief and then to direct other officers to search and inspect property.

4. [59]

   This was a semantic objection. The purpose of condition 39 is to require the person the subject of the order to consent to such search and inspection as may be directed. No doubt such permission will not be required unless a departmental officer forms a belief and takes steps to initiate a search. However, that does not mean that condition 39 is not a condition requiring the offender to permit such activity. Were it otherwise, s 11(1)(a) would fall foul of the same objection. It requires the offender to permit an officer to visit his or her residential address and enter the offender’s premises, thus assuming conduct of the officer triggering the offender’s obligation. Section 11(1)(a1) also is premised on the assumed conduct of a Corrective Services officer in having already obtained access to the offender’s premises and sought access to a computer. Those provisions are not properly characterised as directing or regulating the conduct of the Corrective Services officer, although they may assume that an officer has formed a particular belief or been directed to undertake a particular task.

5. [60]

   In written submissions, the applicant called in aid observations made by this Court in Winters v Attorney General (NSW). [38] Winters concerned the application of a direction “to participate in treatment and rehabilitation programs” pursuant to s 11(d), as then in force. All members of the Court emphasised the fact that the conditions were to be directed to the offender, requiring him to comply with a specified condition. [39] However, the context in which those statements were made was that a proposed treatment program had not become a condition of an extended supervision order. The purpose of the challenge was to obtain a direction that the government pay for a psychologist. The President’s analysis ended with the following conclusions:

6. [61]

   It follows that Winters provides no support for the applicant’s challenge. There is a constitutional difference between a court order imposing an obligation on the State to fund private health services and an assumption that certain administrative functions will be carried out by departmental officers. The latter assumption arises whenever a sentence of imprisonment is imposed; it also arises whenever an extended supervision order is made. Ground 2aa must be dismissed.

7. [62]

   The next ground of challenge (par a) was that the conditions authorised unlawful conduct. According to the applicant’s written submissions, a corrective services officer “has no power at common law or under statute to search a person’s premises.” The respondent’s submissions assumed that the ground referred to a search without consent and noted that, the purpose of the condition being to direct the giving of consent, it was not intended to authorise a search without consent. In reply, the application’s submission became one based on the fact that a search and seizure might affect third parties, because the condition permitted search and seizure of things whether in the defendant’s possession or not, and therefore implied that the power extended to the property of third parties.

8. [63]

   In fact condition 39 says nothing expressly about third parties. The reference in condition 41 to seizing anything found “whether in the defendant’s [possession] or not” does not imply that it extends to seizing the property of others. If third party property is taken, there may be an issue as to the lawfulness of that action. That possibility does not render the condition invalid. Ground 2a should be dismissed.

9. [64]

   The third limb of ground 2 (par b) complained that condition 39 was invalid because it made “compliance” dependent upon the state of mind of a third party. By that the applicant meant that he had no way of knowing whether the departmental supervising officer had formed a relevant belief and if so on reasonable grounds.

10. [65]

    As the State noted, the factual assertion was no doubt correct. However, the purpose of requiring a reasonable belief as to specified matters was intended to be protective of the interests of the applicant, by limiting the circumstances in which a search could properly be directed. If the applicant were minded to refuse consent, he would face the risk of committing an offence under s 12 of the High Risk Offenders Act. That circumstance was no different from that faced by a person contemplating resisting arrest, or refusing to comply with the terms a search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21. Such matters do not provide a basis for invalidating conditions 39 or 41. Ground 2b should be dismissed.

11. [66]

    It follows that there is no substance in ground 2.

Conclusions

1. [67]

   It follows from the foregoing reasons that the appeal must fail. Although the appeal is brought in the civil jurisdiction, no costs may be awarded against an offender in relation to any proceedings under the Act, including an appeal: s 23.

2. [68]

   Accordingly, the appropriate orders are as follows:

   1. (1)

      Grant the applicant leave to appeal pursuant to the summons filed on 13 March 2020.

   2. (2)

      Grant the applicant leave to amend ground 2 in the summons to include par (aa).

   3. (3)

      Direct the applicant to file the amended draft notice of appeal within 7 days.

   4. (4)

      Dismiss the appeal.

3. [69]

   MACFARLAN JA: I agree with the orders proposed by Basten JA.

4. [70]

   In respect of Ground 1, I agree with his Honour that there was no error in the primary judge’s reasoning, on the assumption that conditions 39 to 42 would otherwise be inconsistent with the privilege against self-incrimination. That assumption should be made as that was the basis on which the primary judge proceeded and the respondent did not contend in this Court that the assumption was incorrect.

5. [71]

   In respect of Ground 2, I agree with Basten JA’s reasoning.

6. [72]

   EMMETT AJA: This appeal concerns the construction of s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). Section 5B of the Act relevantly provides that the Supreme Court may make an extended supervision order (ESO) in relation to certain persons if the Court is satisfied as to certain matters to a high degree of probability. Under s 9(1)(a), the Supreme Court may determine an application for an ESO by making such an order, and in doing so, must have regard to the various considerations set out in s 9(2) to s 9(4). Section 11 relevantly provides that an ESO may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including directions requiring the offender to do various things set out in s 11(1)(a) to s 11(1)(n). On 19 December 2019, a judge of the Common Law Division made an ESO in relation to Mr Wayne Baldwin. It is common ground that Mr Baldwin is a person to whom s 11 applies and that the primary judge was satisfied as to the relevant matters.

7. [73]

   Under conditions 39 to 42 of the ESO, if the Department Supervising Officer (DSO), or any other person supervising Mr Baldwin as directed by the DSO, believes that a search of the type described below is necessary:

8. [74]

   Mr Baldwin now seeks leave to appeal from the ESO made by the primary judge on the ground that conditions 39 to 42 of the ESO made were beyond the Court’s power. By proposed ground 1, Mr Baldwin contends that the ESO abrogates the privilege against self-incrimination that would otherwise be available to him and that s 11 of the Act does not authorise the Court to impose conditions that have that effect. By proposed ground 2, he contends that those conditions of the ESO are not authorised because s 11 does not authorise the Supreme Court to:

9. [75]

   I have had the opportunity of reading in draft form the proposed reasons of Basten JA. I agree with his Honour, for the reasons proposed that, properly construed, the conditions imposed by the ESO do not impose on Mr Baldwin an obligation to answer questions, to produce documents or to in some other way assist the process of investigation, such as to abrogate the privilege against self-incrimination. Further, even if conditions 39 to 42 would otherwise be inconsistent with the privilege against self-incrimination, the language of s 11 of the Act demonstrates a sufficiently clear and unambiguous intention to permit the imposition of conditions that abrogate any privilege against self-incrimination. There was, accordingly, no error in the primary judge’s conclusion. I also agree, for the reasons proposed by Basten JA, that there is no substance in ground 2.

10. [76]

    I agree with the orders proposed by Basten JA.