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CRIMES (CHILD SEX OFFENDERS) AMENDMENT REGULATION 2012 (NO 1) (NO 39 OF 2012)
Australian Capital Territory
Crimes (Child Sex Offenders) Amendment Regulation 2012 (No 1)
Subordinate law SL2012–39
made under the
Crimes (Child Sex Offenders) Act 2005, sections 118 and 137
EXPLANATORY STATEMENT
Outline
The Crimes
(Child Sex Offenders) Amendment Regulation 2012 (No 1) amends the
Crimes (Child Sex Offenders) Regulation 2005 (the
CSO Regulation).
The CSO Regulation is made under the Crimes (Child
Sex Offenders) Act 2005. The CSO Regulation supports the Crimes (Child
Sex Offenders) Act 2005 by providing specific operational information.
This information includes how registrable offenders are to report certain
information to ACT Policing, the approved reporting places under the Crimes
(Child Sex Offenders) Act 2005 and the details that are to be included in a
reporting obligations notice.
These amendments support the operation of
the child sex offender monitoring scheme and the prohibition order scheme
inserted by the Crimes (Child Sex Offender) Amendment Act
2012.
The amendments will update the address details for ACT
Policing, will ensure that the corresponding legislative schemes in South
Australia and Tasmania are recognised in the ACT and will allow information on
the child sex offender register to be disclosed to the Commissioner for Fair
Trading. The need for these amendments has arisen due to developments in
jurisdictions outside the ACT, further legislative development in the ACT and
changes to ACT Policing’s reporting details.
This Regulation will
support the operation of the Working with Vulnerable People (Background
Checking) Act 2011 and the child sex offender prohibition order scheme as it
will provide information sharing arrangements between the Chief Police Officer
(CPO) and the Commissioner for Fair Trading.
The Regulation will
prescribe the Commissioner for Fair Trading as a prescribed entity which will
allow the CPO to disclose information, including information about prohibition
orders, on the child sex offender register to the Commissioner of Fair
Trading.
The prohibition order scheme allows the CPO to apply to the ACT
Magistrates Court for an order to prohibit a registrable child sex offender from
engaging in conduct that poses a risk to the lives or sexual safety of a child
or children. Conduct that may be prohibited under an order includes associating
with, or otherwise contacting, stated people or a stated kind of person and
being in stated places or a stated kind of place.
Human Rights
Considerations
Amendments to reporting details for registrable offenders
engage and support the right to liberty and security of the person (section 18,
Human Rights Act 2004). It does this by providing clear guidance on how
registrable offenders are to report to police including reporting personal and
travel details.
Clause 7 engages and limits the right to privacy and
reputation (section 12 Human Rights Act 2004). The human rights analysis
for this provision appears under the summary of clause 7
below.
Summary of Clauses
Clause 1- Name of regulation-
this clause is a formal provision to set out the name of the regulation. The
name of this regulation is the Crimes (Child Sex Offenders) Amendment
Regulation 2012 (No 1).
Clause 2- Commencement- this clause
is a formal provision that provides the commencement date for this regulation.
The regulation will commence on the day after it is notified.
Clause
3- Legislation amended- this is a technical clause stating that the
regulation being amended is the Crimes (Child Sex Offenders) Regulation
2005.
Clause 4- Section 7 (a) to (c) - this clause
substitutes a new email and postal address at section 7. Section 7 provides how
a registrable offender may report their travel details to ACT Policing.
Clause 5- Section 8 (a) to (c) – this clause substitutes a new
email and postal address at section 8. Section 8 provides how a registrable
offender may report changes to their travel details.
Clause 6-
Section 10 (1) – this clause updates the street address for the Woden
Police Station.
Clause 7- Section 16A (1) (o) -
this clause inserts section 16A (1) (o). This amendment to the regulation
is made under section 118 of the Crimes (Child Sex Offenders) Act 2005
(Access to child sex offenders register restricted). The section will include
the Commissioner for Fair Trading exercising functions under the Working with
Vulnerable People (Background Checking) Act 2011 as an entity that is
prescribed to receive personal information on the child sex offenders register
under section 118 (1) (b) (i) of the Crimes (Child Sex Offenders) Act
2005.
Human Rights Considerations
The nature of the
right affected (section 28 (2) (a))
Section 12 of the Human Rights Act
2004 provides:
everyone has the right-
(a) not to have his or her
privacy, family, home or correspondence interfered with unlawfully or
arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
As noted in the explanatory statement for the Crimes (Child Sex
Offenders) Amendment Act 2012, the right to privacy and reputation has been
described as protecting a broad range of personal interests that include
physical or bodily integrity, personal identity and lifestyle (including
sexuality and sexual orientation), reputation, family life, the home and home
environment and correspondence (which encompasses all forms of
communication).[1]
General
comment 16 from the Office of the High Commissioner for Human Rights describes
this right as the right of every person to be protected against arbitrary or
unlawful interference with their privacy, family, home or correspondence as well
as unlawful attacks against a person’s honour and reputation. The comment
notes that the term ‘unlawful’ means that no interference can take
place except in cases envisaged by the
law.[2]
The term
‘arbitrary interference’ is described by General comment 16 as
intending to guarantee that even interference provided by law should be in
accordance with the provisions, aims and objectives of the ICCPR and should be
reasonable in the particular
circumstances.[3]
Therefore, it
is reasonable to suggest that a person’s right to privacy can be
interfered with, provided that the interference is provided by law and is
reasonable in the
circumstances.[4]
The
importance of the purpose of the limitation (section 28 (2) (b))
The
purpose of this provision is to allow the Chief Police Officer to disclose
information on the child sex offenders register to the Commissioner for Fair
Trading for the purposes of assessing the registered offender’s
suitability for registration under the Working with Vulnerable People
(Background Checking) Act 2011.
Nature and extent of the
limitation (section 28 (2) (c))
This amendment will limit a registrable
offender’s right to privacy because it will allow the CPO to disclose
information on the child sex offenders register, including the existence of a
prohibition order and the contents of the prohibition order, to the Commissioner
for Fair Trading.
Relationship between the limitation and its
purpose (section 28 (2) (d))
The purpose of this amendment is to ensure
that the Commissioner for Fair Trading considers the existence of a prohibition
order or other relevant information on the child sex offenders register when
assessing an application of a registered offender for registration under the
Working with Vulnerable People (Background Checking) Act 2011.
Any less restrictive means reasonably available to achieve the
purpose (section 28 (2) (e))
This provision will ensure that the
Commissioner for Fair Trading is provided with information that is critical for
an assessment of a registered offender under the Working with Vulnerable
People (Background Checking) Act 2011. There is no less restrictive means of
achieving this purpose.
Clause 8- New section 18 (da) and (db)
- this clause will include a child sex offender registration order under
South Australia’s Child Sex Offenders Registration Act 2006 and
offender reporting orders under Tasmania’s Community Protection
(Offender Reporting) Act 2005 as corresponding child sex offender
registration orders.
Clause 9- New section 19 (da) and
(db) - this clause will include the Child Sex Offenders Registration Act
2006 (SA) and the Community Protection (Offender Reporting) Act 2005
(TAS) as corresponding laws.
[1] Lester, QC., Pannick QC
(General editors), 2005, Human Rights Law and Practice, Second edition,
LexisNexis UK, p.261.
[2] Office
of the United Nations High Commissioner for Human Rights, Human Rights
Committee, 1988 ‘General Comment No.16: the right to respect of privacy,
family, home and correspondence, and protection of honour and reputation’,
para.3. Available:
http://www.unhchr.ch/tbs/doc.nsf/0/23378a8724595410c12563ed004aeecd
[3]
Ibid, para.4.
[4] Explanatory
Statement for the Crimes (Child Sex Offenders) Amendment Bill 2012, page
9.