The 'unacceptable risk' test in s 9(2) of the Crimes (Serious Sex Offenders) Act 2006 (NSW), as amended in 2010, does not require that the risk of committing a serious sex offence be more likely than not; a risk that is less likely than not may still be 'unacceptable'. The test is provisionally satisfied where the risk is present to a sufficient degree that the safety and protection of the community cannot be ensured without an order. The new formulation is no more stringent than the previous 'likely to commit' test. These constructions are provisional and subject to further argument at the final hearing.
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