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Sex Offenders Registration Amendment
(Miscellaneous) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Sex Offenders Registration Act 2004 provides for the establishment
of the Register of Sex Offenders in order to reduce the likelihood of
reoffending, to facilitate the investigation and prosecution of future offences
and to prevent registered sex offenders working in child-related employment.
This Bill amends the Sex Offenders Registration Act 2004 to ensure that
the Act is targeted at offenders who pose a risk to the sexual safety of the
community and is not resulting in the inappropriate and unnecessary
registration of other persons.
Currently, all adults who are sentenced for a sexual offence listed in
Schedule 1 or 2 to the Sex Offenders Registration Act 2004 must be placed
on the Register of Sex Offenders (that is, registration is "automatic" by force
of that Act). These offences can be generally described as indictable sexual
offences committed against children. The Bill introduces a scheme enabling
young adults who are found guilty of one or more specified sex offences to
apply in limited circumstances for a court order exempting them from being
"automatically" registered upon being sentenced (a "registration exemption
order"). Persons who have already been "automatically" registered as a result
of being sentenced for a specified offence before the commencement of this
Bill will also be able to apply for a registration exemption order removing
them from the Register of Sex Offenders.
Strong safeguards will apply to ensure that offenders who pose a threat to
the community cannot avoid registration. For instance, the court must refuse
the application for a registration exemption order unless satisfied that the
offender would not otherwise be a registrable offender but for the fact they
were sentenced for one or more specified offences, that any victims of the
specified offences were at least 14 years old, and that the offender poses no
581264 1 BILL LA INTRODUCTION 10/5/2017
risk or a low risk to the sexual safety of one or more persons or of the
community.
There may also be cases where an offender is not eligible under the proposed
new exemption scheme but can later demonstrate, after a period of time of
complying with their reporting obligations, that they are a low risk to the
sexual safety of the community. A court or the Chief Commissioner of
Police may suspend these reporting obligations where the offender is not a
risk to the community. The Bill amends these suspension powers to ensure
their efficient and effective operation.
The Bill also amends the Sex Offenders Registration Act 2004 and the
Crimes Act 1958 to provide police with greater powers to investigate and
monitor registrable offenders by creating a specific search warrant power
for the investigation of suspected offences under the Sex Offenders
Registration Act 2004, and by giving police specific powers to take
fingerprints and forensic samples (that is, in order to obtain a DNA profile) of
registrable offenders.
Existing powers under the Crimes Act 1958 do not enable police to obtain
the fingerprints or a forensic sample from a registrable offender who is
already on the Register if that information has not already been obtained, or
in circumstances where the offender has moved to Victoria and been placed
on the Register of Sex Offenders due to offences they committed elsewhere.
The new powers do not require a police officer to obtain a court order before
requiring a registrable offender to undergo a forensic procedure. This will
reduce administrative burdens on police resources and bring Victoria into line
with most other Australian jurisdictions.
Finally, the Bill makes several miscellaneous amendments to the Sex
Offenders Registration Act 2004 and related Acts, including to clarify
that all registrable offenders are prohibited from engaging in child-related
employment for life.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• to amend the Sex Offenders Registration Act 2004 in
relation to the exemption of certain young adult sex
offenders from the requirements of that Act, the
suspension of reporting obligations under that Act,
investigative powers and procedures under that Act,
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and the prohibition on sex offenders from engaging in
child-related employment; and
• to make other miscellaneous and consequential
amendments to that Act; and
• to amend the Crimes Act 1985 to provide for the taking
of DNA samples from sex offenders; and
• to make consequential amendments to the Criminal
Procedure Act 2009, the Serious Sex Offenders
(Detention and Supervision) Act 2009 and the
Working with Children Act 2005.
Clause 2 provides for the commencement of the Bill. With the exception
of sections 20 and 52, the provisions of the Bill commence on a
day or days to be proclaimed, with a default commencement date
of 1 March 2018 if they are not proclaimed to commence earlier.
Section 20 comes into operation 3 years after the day on which
section 19 comes into operation. Section 52 comes into operation
3 years after the day on which section 51 comes into operation.
Clauses 20 and 52 qualify the power of police officers to take
fingerprints from a registrable offender or direct a registrable
offender to undergo a forensic procedure in accordance with
clauses 19 and 51 by giving a registrable offender a right to
refuse to provide their fingerprints or to undergo a forensic
procedure in certain circumstances. The effect of the delayed
commencement of these provisions is to give police officers
3 years to exercise the powers in clauses 19 and 51 without those
limitations applying.
Clause 3 stipulates that a reference to the "Principal Act" in this Bill is a
reference to the Sex Offenders Regulation Act 2004.
Part 2--Amendment of the Sex Offenders Registration Act 2004
Division 1--Registration exemption orders
Clause 4 inserts into section 3 of the Principal Act definitions of
registration exemption order (being an order made under new
section 11B) and specified offence (a Class 1 or Class 2 offence
listed in new Schedule 5 to the Principal Act). These terms are
used in relation to the amendments made by this Part of the Bill.
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Clause 5 inserts a new Division heading at the beginning of Part 2 of the
Principal Act. This creates a Division structure in that Part.
The new heading is "Division 1--Registrable offenders".
Clause 6 amends section 6 of the Principal Act. Section 6(1) defines a
registrable offender as a person whom a court has sentenced for
a registrable offence. Section 6(2) currently also provides that a
person is a registrable offender if they are a corresponding
registrable offender or a New South Wales registrable offender.
Subclause (1) amends section 6(2) of the Principal Act to provide
that section 6(2) is subject to the qualification in new
section 6(2B).
Subclause (2) inserts new sections 6(2A) and (2B) into the
Principal Act. New section 6(2A) provides that a person is not a
registrable offender merely because the person committed a
specified offence for which the person has been sentenced if a
court declares, by order made under section 11B, that the person
is not a registrable offender in respect of that offence.
New section 6(2B) provides that a person is not a registrable
offender merely because the person is a corresponding registrable
offender or a New South Wales registrable offender in respect of
a specified offence committed in Victoria if a court declares, by
order made under section 11B, that the person is not a registrable
offender in respect of that offence. The purpose of this provision
is to ensure that a registration exemption order made by a court
under section 11B of the Principal Act continues to have effect
even where the person subject to that order travels outside
Victoria and is required to report in the jurisdiction they have
travelled to due to the offence in relation to which the registration
exemption order was made.
Clause 7 inserts a new Division 2 in Part 2 of the Principal Act after
section 11. The new division sets out a range of provisions in
new sections 11A to 11G in relation to the application and
making of registration exemption orders.
New section 11A will enable a person who has been found guilty
of one or more specified offences to apply for a registration
exemption order where specified conditions are met. These
conditions include that--
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• the person was aged 18 or 19 years at any time during
the commission of the offence and at all such times was
not more than 19 years of age; and
• the person has not been found guilty of another
registrable offence that is not a specified offence; and
• the person has not been found guilty of another
specified offence for which application for a registration
exemption order has been refused; and
• the person was not a registrable offender at the time the
person committed the specified offence to which the
application relates; and
• the person is not a corresponding registrable offender or
a New South Wales registrable offender; and
• the specified offence to which the application relates did
not involve more than one victim, unless the specified
offence relates to the possession of child abuse material
or child pornography; and
• if the application relates to more than one specified
offence, each specified offence relates to the possession
of child abuse material or child pornography or each
specified offence was committed against the same
victim.
New section 11B sets out when a court may, and may not, make a
registration exemption order declaring that the applicant is not a
registrable offender in respect of one or more specified offences.
The purpose of these orders is to give the courts greater
discretion to prevent the "automatic" registration of young adults
sentenced for specified offences where they are not a risk, or are
only a low risk, to the sexual safety of one or more persons or of
the community.
Subsections (1) and (2) provide that a court may only make a
registration exemption order where the court is satisfied on the
balance of probabilities that--
• at all times during the commission of the specified
offence or offences any victim is of or over the age of
14 years or any person depicted or described in any
material to which the offence relates is of or over the
age of 14 years; and
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• the applicant poses no risk or a low risk to the sexual
safety of one or more persons or of the community; and
• but for the specified offence or offences to which the
application relates, the applicant would not be a
registrable offender.
The applicant will bear the onus of proving these matters to the
relevant satisfaction of the court.
In considering whether an applicant poses no risk or a low risk to
the sexual safety of one or more persons or of the community, it
is not necessary that the court be able to identify a risk posed by
the registrable offender to the sexual safety of a particular person
or a particular class of person. However, the court must have
regard to--
• the seriousness of the specified offence or offences; and
• the ages of the applicant and any victim of the specified
offence or offences at the time of the commission of the
offence or offences; and
• whether any victim was under the care, supervision or
authority of the applicant at the time of the specified
offence or offences; and
• whether any victim of the specified offence or offences
had a cognitive impairment or mental illness within the
meaning of Subdivision (8E) of Division 1 of Part I of
the Crimes Act 1958 at the time of the commission of
the specified offence or offences; and
• where the application relates to more than one specified
offence--the number and nature of those offences,
including whether the offences arose out of the same set
of circumstances; and
• any other matter that the court considers relevant.
Subsection (3) provides that a court may not make a registration
exemption order in respect of an application referred to in
section 11A(2) or (3). The purpose of this provision is to clarify
that a court may not make a registration exemption order where a
person is not permitted to make an application.
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Subsection (5) requires that, in deciding whether to make a
registration exemption order, the court must take into account
any submissions made by the Chief Commissioner of Police
under new section 11F.
Subsection (7) provides that a registration exemption order must
contain the information, if any, prescribed by the rules of court.
New section 11C provides that an application under new
section 11A may be made not later than 6 months after the day on
which the applicant is first given notice under section 50 or 54 of
the applicant's reporting obligations.
New section 11D sets out how an application under section 11A
for a registration exemption order is to be made. Subsection (1)
provides that an application is made by filing with the court
referred to in subsection (2) a written document that states the
grounds on which the application is made and containing the
information, if any, prescribed by the rules of court.
Subsection (2) provides that an application is to be made--
• to the court that imposed the sentence at first instance
for the specified offence to which the application
relates; or
• if the application relates to more than one specified
offence, to the court of the highest jurisdiction that
imposed a sentence at first instance for any of the
specified offences; or
• to the Magistrates' Court, if the application relates to a
specified offence for which the applicant was sentenced
by a court in a foreign jurisdiction.
Subsection (3) provides that a copy of an application must be
served by the applicant on the Chief Commissioner of Police as
soon as practicable after the application is filed.
New section 11E provides that, on the making of a registration
exemption order, the person in respect of whom the order is made
ceases to be a registrable offender for the purposes of the
Principal Act.
Subsection (2) provides that nothing in new Division 2 of Part 2
of the Principal Act affects any obligation or prohibition that
applies to a registrable offender for any period during with the
person is a registrable offender or the consequences of a failure to
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comply with such an obligation or prohibition. This clarifies that
the making of a registration exemption order does not affect a
person's obligations under the Principal Act for any period in
which the person was a registrable offender prior to the making
of a registration exemption order. For example, if a person
became a registrable offender on 1 July 2014 and, after the
amending Bill commenced, successfully applied for a registration
exemption order, the making of that order does not change the
fact that the person was required to comply with reporting
obligations for the period in between and would still be liable for
any offence committed due to failing to comply with those
reporting obligations in that period.
Subsection (3) provides that a registration exemption order does
not prevent a person becoming a registrable offender if the
person is sentenced for another registrable offence in respect of
which no registration exemption order is made or if the person
becomes a corresponding registrable offender or a New South
Wales registrable offender in respect of an offence other than an
offence to which the registration exemption order relates.
New section 11F provides that the Chief Commissioner of Police
is a party to an application under new section 11A and may make
any submission to the court in respect of the application.
New section 11G sets out some evidentiary rules for the hearing
of an application for a registration exemption order in order to
reduce the impact on any victim of a specified offence that is the
subject of such an application. The court must not grant leave to
cross-examine such a victim in a hearing of an application under
section 11A. Instead, subsection (1) provides that, without
limiting any other evidence that may be adduced, the transcript or
other record of the evidence given by a victim in the trial or
sentencing hearing of the applicant for a specified offence to
which the application relates and a victim impact statement
tendered in the sentencing hearing of the applicant for such an
offence is admissible as evidence in the hearing of an application
under new section 11A.
Clause 8 inserts a new section 30A into the Principal Act, which enables
the Chief Commission of Police to retain copies of documents,
fingerprints or fingerscans, photographs and forensic samples
taken under new section 464ZFAB of the Crimes Act 1958 and
any related material and information within the meaning of
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section 464(2) of that Act taken from or in relation to a
registrable offender who is subject to a registration exemption
order. The Chief Commissioner is only permitted to retain that
information for a law enforcement, crime prevention or child
protection purpose.
Clause 9 inserts a new section 35B into the Principal Act, which provides
that if a court makes a registration exemption order in respect of
a registrable offender and that order is set aside on appeal, the
period during which the registration exemption order was in force
is counted when calculating the remainder of the registrable
offender's reporting period. For example, a person who receives
a fine for a single Class 2 offence (and therefore "automatically"
becomes a registrable offender, having never previously
committed any offences) and is served a notice under section 50
of the Principal Act by the sentencing court on 1 July 2018 will
be required to comply with reporting obligations for a period of
8 years (until 1 July 2026). If, on 1 August 2018, a court makes a
registration exemption order in relation to that person, and that
order is set aside on appeal on 1 October 2018, the person's
reporting period will still cease on 1 July 2026 even though they
did not have to comply with reporting obligations for the period
of 2 months in which the registration exemption order was in
effect.
Clause 10 inserts new section 73H into the Principal Act. New section 73H
is a transitional provision that creates an exception to new
section 11C (which requires that an application for a registration
exemption order be made within 6 months of the day on which
the applicant is first given a notice under section 50 or 54) with
respect to a person who was a registrable offender immediately
before clause 7 commences operation. Under new section 73H,
such a person will be able to apply for a registration exemption
order within 2 years from the day clause 7 of the amending Bill
commences operation or 2 years from the day on which the
offender first receives a notice of their reporting obligations
under section 50 or 54, whichever is later.
Clause 11 inserts new Schedule 5 to the Principal Act. As per the new
definition of specified offence inserted into the Principal Act by
clause 4, Schedule 5 sets out a list of Class 1 or Class 2 offences
in relation to which an application for a registration exemption
order may be made in accordance with new section 11A.
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The Crimes Amendment (Sexual Offences) Act 2016 received
Royal Assent on 6 September 2016 and makes a range of
amendments to Victoria's sexual offences. It also includes
consequential amendments to Schedules 1 and 2 to the Principal
Act, which have yet to commence. The amendments will
commence on 1 July 2017, if not proclaimed earlier. Schedule 5
of the amending Bill includes both the new offences created
under the Crimes Amendment (Sexual Offences) Act 2016 and
the offences in force immediately prior to the commencement of
that Act.
It is possible for persons to be "automatically" registered for
historical sexual offences and for offences committed outside
Victoria (including overseas). Similarly, persons can be
registered for new or updated offences that might replace those
listed in Schedules 1 and 2 to the Principal Act even if they are
not themselves listed in those Schedules. This is because items 6,
9, 10 and 13 of Schedule 1 to the Principal Act and items 26,
26A, 30, 31 and 34 of Schedule 2 provide that such offences
can be Class 1 or Class 2 offences. For example, item 9 of
Schedule 1 provides that any offence under a law of a foreign
jurisdiction that, if it had been committed in Victoria, would have
constituted an offence of a kind listed in Schedule 1 is a Class 1
offence.
Items 6, 7, 9 and 10 of new Schedule 5 capture these same
types of offences where they are of a kind referred to in the new
Schedule. For example, it is intended that an offence against
section 66C of the Crimes Act 1900 of New South Wales
(sexual intercourse--child between 10 and 16) would be a
specified offence because it is an offence of a kind referred to in
item 1(a) of the schedule (sexual penetration involving a child
under the age of 16).
Division 2--Suspension of reporting obligations
Clause 12 amends section 39A of the Principal Act. Section 39A currently
provides that the Chief Commissioner can at any time apply to
the Supreme Court for an order suspending the reporting
obligations of a registrable offender. This clause amends
section 39A to allow an application to be made to a range of
courts, rather than just the Supreme Court.
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New section 39A(2) will provide that, subject to section 39A, the
Chief Commissioner must make an application to the court that
imposed the sentence for the registrable offence committed by
the registrable offender to whom the application relates, or if the
registrable offender has committed more than one registrable
offence, the highest court in which the registrable offender has
been found guilty of a registrable offence.
The general requirements in section 39A(2) are subject to new
sections 39A(3) and (4). New section 39A(3) provides that
where the application relates to a person who has only been
found guilty of a registrable offence in the Children's Court of
Victoria and that offender is of or over the age of 21 years at the
time of application, the application must be made to the
Magistrates' Court.
New section 39A(4) provides that where the application relates to
a person who is only a registrable offender because they are a
corresponding registrable offender or a New South Wales
registrable offender or because they have been sentenced for a
registrable offence outside of Victoria, the application must be
made to the Supreme Court if the offender is of or above 18 years
of age at the time of application. If the offender is under 18 years
of age, the application must be made to the Children's Court.
Clause 13 inserts a new section 39B into the Principal Act, which sets out
the requirements for making an application under section 39(2) or
39A of that Act. Section 39(2) allows a registrable offender, who
is required to comply with reporting obligations imposed under
Part 3 of the Principal Act for the remainder of their life, to apply
to the Supreme Court for an order suspending these obligations in
certain circumstances. As outlined in clause 12, section 39A of
the Principal Act allows the Chief Commissioner to apply to a
court for an order suspending a registrable offender's reporting
obligations.
New section 39B provides that applications under these
provisions are made by filing with the relevant court a written
document stating the grounds on which the application is made
and containing the information, if any, prescribed by the rules of
court.
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Clause 14 amends section 40 of the Principal Act. Section 40 currently sets
out the circumstances in which the Supreme Court may make an
order for suspension upon application under section 39 or 39A of
the Principal Act.
Subclauses (1), (3), (4) and (5) of the amending Bill make
changes to section 40(1A), (3), (4) and (5) of the Principal Act so
that existing references to the "Supreme Court" are substituted
with references to "a court" or "the court". This reflects the
changes in clause 12 which will enable applications under
section 39A of the Principal Act to be made to a court other than
the Supreme Court.
Subclause (2) substitutes section 40(2) of the Principal Act to
provide that a court must not make an order suspending reporting
obligations under section 40, unless it is satisfied that the
registrable offender poses no risk or a low risk to the sexual
safety of one or more persons or of the community and that it is
in the public interest to suspend the registrable offender's
reporting obligations.
Clause 15 substitutes a reference to "the Supreme Court" in section 42 of
the Principal Act for "a court". This reflects the changes in
clause 12 which will enable applications under section 39A of the
Principal Act to be made to a court other than the Supreme Court.
Section 42 will now provide that a court cannot award costs in
respect of proceedings for the suspension of reporting obligations
under Division 6 of Part 3 of the Principal Act.
Clause 16 substitutes the words "a court for the revocation of an order made
by that court" for "the Supreme Court for the revocation of an
order granted" in section 44A(1) of the Principal Act.
Section 44A(1) currently provides that the Chief Commissioner
of Police may apply to the Supreme Court for revocation of an
order to suspend reporting obligations under section 40(1A) of
the Principal Act where circumstances have materially changed.
This reflects the changes in clause 14 which provides, consistent
with the changes in clause 12, that a court other than the Supreme
Court may make an order suspending reporting obligations under
section 40(1A).
Clause 17 amends section 45A of the Principal Act. Section 45A currently
provides that the Chief Commissioner of Police may suspend a
registrable offender's reporting obligations for a period of up to
12 months, where satisfied that the registrable offender does not
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pose a risk to the sexual safety of one or more persons or the
community.
Subclauses (1) and (2) substitute the words "5 years" for
"12 months" in the heading to section 45A and section 45A(1).
This means that the Chief Commissioner of Police may suspend
reporting obligations for up to 5 years.
Subclause (3) inserts the words "or poses a low risk" in
section 45A(2) or the Principal Act. This means that the Chief
Commissioner of Police will have a discretion to suspend a
registrable offender's reporting obligations where satisfied that
the registrable offender does not pose a risk or poses a low risk
to the sexual safety of one or more persons or the community.
The revised test is consistent with the corresponding test that a
court must apply in considering whether to make an order
suspending reporting obligations under the changes made in
clause 14(2).
Clause 18 inserts new section 73I into the Principal Act. This is a
transitional provision clarifying how the amendments made by
clause 14 of the amending Bill apply to applications that were
made to the Supreme Court under section 39A before the
commencement of clause 14 but have not yet been concluded.
In such matters, the application must still be determined by the
Supreme Court. However, the revised test in section 40 of the
Principal Act for suspending reporting obligations, as amended
by clause 14 of the amending Bill, will apply.
Division 3--Investigative powers and procedures
Clause 19 amends section 27 of the Principal Act. Section 27(1) of the
Principal Act currently provides that a police officer receiving a
report by a registrable offender under Part 3 of that Act may take
or cause to be taken the fingerprints or a fingerscan of the
registrable offender if the police officer is not reasonably
satisfied as to the identity of the registrable offender.
Subclause (1) substitutes a new section 27(1) which expands the
existing powers to take fingerprints so that a police officer may
also take the fingerprints or a fingerscan of a registrable offender
if that information is not already held by the Chief Commissioner
of Police.
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To ensure that Victoria Police can obtain the fingerprints of all
registrable offenders, including those no longer subject to
reporting obligations, subclause (2) makes further amendments to
section 27. New section 27(3) provides that a police officer of or
above the rank of senior sergeant may serve, or may cause to be
served, a notice on a registrable offender referred to in new
section 27(1) directing the registrable offender to attend at a
police station specified in the notice within 28 days to have the
fingerprints or a fingerscan of the registrable offender taken.
New section 27(4) requires that a notice under new section 27(3)
state the consequences of failing to comply with a notice, that the
registrable offender receiving the notice may wish to seek legal
advice as to the effect of the notice, and the name, rank and
telephone number of the police officer serving the notice or
causing the notice to be served. The notice must also contain the
prescribed information, if any.
New section 27(5) states that a notice under new section 27(3)
must be served by delivering a true copy of the notice to the
registrable offender personally.
New section 27(6) applies sections 464ZFAA(6), (7) and (8) of
the Crimes Act 1958 to a notice served under new section 27(3)
of the Principal Act as if it were a notice served under that
section. Sections 464ZFAA(6) and (7) of the Crimes Act 1958,
when applied to a notice under section 27(3) of the Principal Act,
provide that, where a person fails to comply with a notice, a
police officer may apply to a magistrate or a registrar of the
Magistrates' Court for a warrant authorising the police officer to,
if necessary, break, enter and search any place where the person
named in the warrant is suspected to be, arrest the person, and
detain them for as long as reasonably permits the taking of the
registrable offender's fingerprints or fingerscan. A magistrate or
registrar may issue a warrant if satisfied a notice was served on a
person in accordance with section 27 of the Principal Act and the
person's fingerprints have not been taken.
Section 464ZFAA(8) of the Crimes Act 1958 in turn applies
section 464ZFA(2), (3), (4), (5), (6) and (7) of that Act to a
warrant issued under section 464ZFAA(7) as if it were a warrant
issued under section 464ZFA(1B). These sections clarify the
scope of a warrant, such as by clarifying that any police officer
may execute the warrant, a magistrate or registrar must give
reasons for their decision to issue the warrant or cause those
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reasons to be recorded in the courts records, that a warrant (in the
context of section 27 of the Principal Act) expires immediately
after the fingerprints or a fingerscan has been taken and that the
police officer executing the warrant must notify a registrar of the
Magistrates' Court when the warrant has been executed.
Clause 20 amends section 27 of the Principal Act by inserting new
subsections (7) to (13). These subsections provide a limitation on
the new powers inserted in section 27 of the Principal Act by
clause 19 of the amending Bill authorising a police officer to take
the fingerprints or a fingerscan of a registrable offender or to
direct a registrable offender to attend at a police station for that
purpose. The limitations apply to the taking of fingerprints or a
fingerscan from a registrable offender who is no longer required
to report to police under the Principal Act.
As a starting principle, it is intended that the reforms in clause 19
will enable Victoria Police to obtain the fingerprints of all
registrable offenders. However, it is also intended that a
registrable offender should be able to have some closure after
they have completed their reporting obligations under the
Principal Act and have not committed any further offences.
Nevertheless, there will be occasions where Victoria Police will
not have a reasonable opportunity to take a registrable offender's
fingerprints under the new powers in clause 19 before the
offender is no longer subject to reporting obligations, such as
where a registrable offender's reporting obligations have expired
before clause 19 commences or where a registrable offender has
been residing outside Victoria and does not return until their
reporting obligations have expired. Clause 20 seeks to provide
an appropriate balance between these competing intentions.
New section 27(7) provides that, if a registrable offender's
reporting obligations under the Principal Act have been
suspended or have expired, a police officer may take the
fingerprints or a fingerscan of the offender under section 27(1)
(as amended by clause 19 of the amending Bill) only if a notice
has been served by a police officer of or above the rank of senior
sergeant under new section 27(3). Subsection (7) is subject to
subsection (8).
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New section 27(8) provides that a registrable offender referred to
in subsection (7) may refuse to have fingerprints or a fingerscan
taken and to attend at a police station in compliance with a notice
under subsection (3) on certain grounds.
Specifically, the first ground for refusal is that a registrable
offender who was a registrable offender on the commencement of
section 19 of this amending Bill may refuse if the offender
demonstrates to the reasonable satisfaction of the police officer
referred to in subsection (3) that that the registrable offender has
been resident in Victoria for not less than 2 years and 6 months in
aggregate during the period between the commencement of
section 19 of this amending Bill and the commencement of
section 20 of this amending Bill. That is, the ground applies
where the registrable offender was residing in Victoria for at
least 2 years and 6 months of the 3 year period immediately
following the commencement of clause 19. To avoid doubt, it
does not matter whether the 2 years and 6 months were one
continuous period. For example, it is intended that a person who
is currently a registrable offender and is no longer subject to
reporting obligations may exercise the right to refuse where they
can demonstrate to the satisfaction of a police officer of or above
the rank of senior sergeant that they were residing in Victoria for
the first 18 months after clause 19 commences, moved to New
South Wales for 2 months and then returned to, and resided in
Victoria for the remaining 16 months.
The second ground applies regardless of when a person became a
registrable offender. The second ground for refusing is if the
registrable offender demonstrates to the reasonable satisfaction of
the police officer referred to in subsection (3) that the offender
has been resident in Victoria for a continuous period of
12 months at any time after the commencement of clause 20 of
the amending Bill and was a registrable offender during the
whole of that period of 12 months.
Clause 20 includes a range of safeguards to ensure that a
registrable offender has sufficient opportunity to understand
whether they may have a right to refuse and to exercise that right
to refuse. As noted above, where a registrable offender is no
longer subject to reporting obligations, any request for that
offender to have fingerprints or a fingerscan taken may only be
made after a police officer of or above the rank of senior sergeant
has served a notice under section 27(3) requiring the offender to
16
attend a police station for that purpose. This ensures that a
registrable offender will have 28 days to consider whether they
intend to seek to refuse to comply with the request.
New section 27(9) requires that a person serving the notice
must also inform the offender, in a manner that is likely to be
understood by the offender, that they may refuse to comply with
the notice, the grounds on which they may refuse, and that the
registrable offender may wish to seek legal advice. If the
registrable offender does not have a knowledge of the English
language that is sufficient to enable the person to understand the
information being provided, the police officer must arrange for
the presence of a competent interpreter (new section 27(12)).
Further, new section 27(11) provides that a police officer may
not require a registrable offender who is no longer subject to
reporting obligations to have fingerprints or a fingerscan taken
without first informing the offender of the possible grounds for
refusal and asking whether the offender wishes to exercise a right
to refuse. Once again, new section 27(12) applies to provide that
if the registrable offender does not have a knowledge of the
English language that is sufficient to enable the person to
understand the information being provided, the police officer
must arrange for the presence of a competent interpreter.
Where a person seeks to exercise their right to refuse under
new section 27(9), a police officer of or above the rank of senior
sergeant must consider any supporting material provided by the
registrable offender (such as a rates notice, rental receipt, bills
or other receipts or statements) when determining whether they
are reasonably satisfied that the registrable offender has
demonstrated that there is a ground for exercising a right to
refuse.
As explained above, clause 20 will commence 3 years after the
day on which clause 19 comes into operation. This will give
Victoria Police a period of 3 years in which they may take
the fingerprints of a person who has been placed on the Sex
Offenders Register, but whose reporting obligations have since
been suspended or expired in accordance with the Principal Act,
without limitation. This is to ensure that Victoria Police has
sufficient time to locate such persons and take their fingerprints
or a fingerscan where that information is not already currently
held by the Chief Commissioner of Police.
17
Clause 21 updates a cross-reference in section 28(1)(a) of the Principal Act.
That section currently provides that, before attempting to take
fingerprints or a photograph of a registrable offender under
section 27 or 27A, a police officer must inform the registrable
offender of the purpose for which the power is to be exercised
and, in the case of a power to take fingerprints under section 27,
why the police officer is not satisfied as to the registrable
offender's identity.
As outlined above, clause 19 creates a further basis on
which a registrable offender's fingerprints where the Chief
Commissioner of Police does not already hold that information.
The requirements in section 28 are not relevant to this new
power. Consequently, clause 21 substitutes the reference to
section 27 with a reference to section 27(1)(b), where the
existing powers have been shifted.
Clause 22 inserts new sections 47A to 47C into the Principal Act to provide
for a specialised search warrant regime with respect to the
investigation of offences against the Principal Act.
New section 47A(1) of the Principal Act empowers a police
officer of or above the rank of senior sergeant to apply to a
magistrate for a search warrant with respect to a particular
premises or place (including a vehicle in or on the premises or
place) if that police officer suspects on reasonable grounds that--
• an offence against the Principal Act has been, is being
or is likely to be committed; and
• it is necessary to search the particular premises or place
in order--
• to investigate or prevent the commission of that
offence or the continuation of the commission of
that offence; or
• to enable evidentiary material to be obtained of
the commission of that offence or of the identity
or location of an offender.
An application for this new search warrant must state the name
and rank of the applicant; the grounds on which the application is
based; the address or description of the particular premises or
place to be searched; a description of a particular thing if the
warrant is sought to search for that thing; details of any previous
18
search warrant applications that have been refused; and any other
prescribed information.
New section 47A(3) states that if a magistrate is satisfied,
by evidence on oath, that there are reasonably grounds for
suspecting an offence against the Principal Act has been, is being
or is about to be committed, and that it is necessary to search the
particular premises or a place to investigate that offence or to
obtain evidentiary material of the offence or the identity or
location of an offender, the magistrate may issue a search
warrant. The search warrant authorises the police officer named
in the warrant and any assistants that police officer considers
necessary--
• to enter the particular premises or place or vehicle
named or described in the warrant; and
• to search for and seize any evidence of the offence
named or described in the warrant, including evidence
of the identity or location of an offender.
These new search warrants must be issued in accordance with the
Magistrates' Court Act 1989 and in the prescribed form under
that Act (new section 47A(4)). The rules to be observed with
respect to search warrants under the Magistrates' Court
Act 1989 also extend to and apply to warrants under new
section 47A (new section 47A(5)).
New section 47A(6) inserts a non-exhaustive definition of
vehicle for the purposes of new section 47A to include a motor
vehicle, aircraft and vessel.
New section 47B specifies when a search warrant issued under
new section 47A expires. Such a warrant will cease to have
effect on the expiry date specified in the warrant; if there is no
expiry date, at the end of the period of one month after its issue,
or when it is executed, whichever is the earliest.
New section 47C provides that if a magistrate issues a warrant
under section 47A, section 465AA of the Crimes Act 1958
(other than subsection (10A)) applies with such changes as are
necessary to give effect to the different context.
When applied in accordance with new section 47C of the
Principal Act, section 465AA of the Crimes Act 1958 will
provide that a magistrate may, on the application of a police
officer of or above the rank of senior sergeant, make an order
19
requiring a specified person to provide any information or
assistance that is reasonable and necessary to allow a police
officer to--
• access data held in, or accessible from, a computer or
data storage device that is on the particular premises
or place (including a vehicle in or on the premises
or place) specified in a warrant issued under new
section 47A or has been seized under the warrant and
is at a place other than the particular premises or place;
• copy to another data storage device data held in, or
accessible from, such a computer or data storage device;
• convert into documentary form or another form
intelligible to a police officer data held in, or accessible
from, such a computer, or data storage device, including
a data storage device to which the data was copied.
Such an application may be made at the same time as an
application is made for a warrant under new section 47A or at
any time after the issue of the warrant.
A magistrate may make the order if satisfied that there are
reasonable grounds for suspecting that--
• data held in, or accessible from, a computer, or data
storage device, will afford evidence as to the
commission of an offence against the Principal Act; and
• the specified person has relevant knowledge of the
computer or device or a computer network of which the
computer or device forms or formed a part of, or
measures applied to protect data held in, or accessible
from, the computer or device.
Further, an order may only be made where the specified person
is--
• reasonably suspected of having committed an offence
against the Principal Act in relation to which the
warrant was issued; or
• the owner or lessee of the computer or device; or
• an employee of the owner or lessee of the computer or
device; or
20
• a person engaged under a contract for services by the
owner or lessee of the computer or device; or
• a person who uses or has used the computer or device;
or
• a person who is or was a system administrator for the
computer network of which the computer or device
forms or formed a part.
A person is not excused from complying with an order to provide
assistance on the ground that complying with it may result in
information being provided that might incriminate the person.
Where the computer or data storage device that is the subject of
the order is seized under the warrant and the order was granted
on the basis of an application made before the seizure, the order
does not have effect on or after the completion of the execution
of the warrant. However, in those circumstances, an application
may be made for a further order relating to that computer or data
storage device.
Where the computer or data storage device is not on warrant
premises, the order must specify the period within which the
person must provide the information or assistance, the place at
which the person must provide the information or assistance, and
the conditions (if any) to which the requirement to provide the
information or assistance is subject.
It is an offence punishable by up to 5 years imprisonment for a
person to fail to comply with an order without reasonable excuse
if--
• the person has relevant knowledge of the computer or
data storage device or a computer network of which the
computer or data storage device forms or formed a part
or measures applied to protect data held in, or accessible
from, the computer or data storage device; and
• the person is informed by a police officer of the order
made under this section and of its terms, and that it is an
indictable offence punishable by imprisonment to fail to
comply with the order.
For the purposes of these new powers, access, data, data held in
a computer and data storage device have the meanings given by
section 247A(1) of the Crimes Act 1958.
21
Division 4--Child related employment and other amendments
Clause 23 substitutes the term "registrable offenders" for "registered sex
offenders" in section 1(1)(b) and (2)(g). The term "registered sex
offender" is not used elsewhere in the Principal Act and this
amendment will ensure the language used in those sections is
consistent with that in the rest of the Act.
Clause 24 amends the definition of government custody in section 3 of the
Principal Act. The definition currently includes a person in the
legal custody of the Secretary of the Department of Justice when
subject to an order of imprisonment, a person in the legal custody
of the Secretary of the Department of Justice when subject to a
detention order under the Serious Sex Offenders (Detention
and Supervision) Act 2009, a person in the legal custody of the
Chief Commissioner of Police when subject to an order of
imprisonment or other order requiring the person to be held in
police custody, a young person who is in the legal custody of the
Chief Commissioner of Police, having been remanded in custody
by a court or bail justice under the Children, Youth and
Families Act 2005, a young person who is detained in a youth
justice centre or youth residential centre under that Act, or a
forensic patient, forensic resident, security patient or involuntary
patient in particular circumstances.
A registrable offender's reporting obligations under the Principal
Act are affected where they are in government custody. For
example, section 32 of the Principal Act also provides that a
registrable offender's reporting obligations are suspended for any
period during which they are in government custody and that
their total reporting period is extended by an equivalent length of
time. This recognises that no useful protective purpose is served
by requiring a registrable offender who is in custody to comply
with any reporting obligations.
Clause 24 will add 2 further forms of custody to the definition.
The first is where a person is detained in a residential treatment
facility in accordance with a residential treatment order made
under section 82AA of the Sentencing Act 1991. A court may
impose a residential treatment order for up to 5 years requiring
certain offenders to undergo specified forms of treatment.
The second is where a child has been placed in a secure welfare
service in accordance with section 173(2)(b) of the Children,
Youth and Families Act 2005. A child for whom the State has
22
parental responsibility under that Act or in relation to whom the
State is the guardian or may exercise custody rights under the
Adoption Act 1984 may be placed in a secure welfare service
for up to 21 days (or, in exceptional circumstances, a further
21 days) where there is a substantial and immediate risk of harm
to the child.
Clause 25 amends section 6 of the Principal Act which sets out who is a
registrable offender for the purposes of the Act. On becoming a
registrable offender, a person becomes subject to the provisions
of the Principal Act including reporting obligations, the
prohibition on child-related employment and the requirement to
seek approval before making an application for a change of
name.
Subclause (1) substitutes the cross-reference to "subsections (3)"
in section 6(1) of the Principal Act with "subsections (4)".
Section 6(1) currently provides that, subject to subsections (3)
to (6), a registrable offender is a person whom a court has at any
time sentenced for a registrable offence. As outlined below,
subclause (3) repeals section 6(3) of the Principal Act.
Subclause (2) inserts a new section 6(1A) into the Principal Act,
which provides that subject to subsection (5), a person who is
subject to a sex offender registration order made under
section 11(9) of that Act is a registrable offender. This is
currently provided under section 11(10)(c) of the Principal Act
but that provision is being repealed under clause 27(7)(c) of the
amending Bill.
Subclause (3) repeals section 6(3) of the Principal Act.
That section currently provides that a person is not a registrable
offender merely because they have been sentenced (including
where a charge has been dismissed on an undertaking that the
child do or refrain from doing certain acts, or where a child has
been placed on a good behaviour bond) for a Class 1 or Class 2
offence committed as a child. This provision is no longer
required because of changes to the definition of a "registrable
offence" made by clause 26 of the amending Bill.
Clause 26 amends section 7 of the Principal Act, which defines what a
registrable offence is for the purposes of the Act. As explained
above in relation to clause 25 of the amending Bill, the Principal
Act requires that certain persons are required to be registered
23
upon being sentenced for a registrable offence, subject to
exceptions in sections 6(3) to (6).
The current definition of a registrable offence includes a Class 1
offence or a Class 2 offence, which are those offences listed in
Schedules 1 and 2 to the Principal Act, whether the offence was
committed by an adult or child. Section 6(3) currently has the
effect of providing that a person is not a registrable offender
merely because they have been sentenced for such offences
committed as a child.
Subclause (1) simplifies the current requirements by providing
that a registrable offence includes a Class 1 offence or Class 2
offence only when committed as an adult. In accordance with
section 7(1)(c) of the Principal Act, a registrable offence will
also continue to include an offence that results in the making of
a sex offender registration order.
Subclause (2) inserts a note at the foot of section 7(1) of the
Principal Act, which clarifies that any other offence (that is an
offence that is not a Class 1 or Class 2 offence) committed as an
adult or an offence (including but not limited to a Class 1 or
Class 2 offence) committed as a child may result in the making of
a sex offender registration order under section 11(1), (1A), (2)
or (2A) of the Principal Act.
Clause 27 amends section 11 of the Principal Act. Section 11 sets out when
a court may make a sex offender registration order and when
such orders have effect. In accordance with sections 6 and 7 of
the Principal Act, the making of a sex offender registration order
has the effect of making the person subject to that order a
registrable offender for the purposes of the Principal Act.
Subclause (1) inserts a new section 11(1A) into the Principal Act.
New section 11(1A) provides that on an application by a police
officer, the Magistrates' Court may order that a person who is
found guilty by a court of a foreign jurisdiction of an offence
committed as an adult that is not a Class 1 or Class 2 offence
(including a Class 3 or Class 4 offence) comply with the
reporting obligations of this Act (that is, a sex offender
registration order). This ensures that adults who commit offences
outside of Victoria that are not of themselves registrable offences
and subsequently move or return here may be placed on the Sex
Offenders Register.
24
Subclause (2) substitutes new sections 11(2), (2A) and (2AB) for
sections 11(2) and (2A) of the Principal Act. New section 11(2)
will replace current sections 11(2) and (2A), effectively
combining those sections. New section 11(2) provides that if a
court finds a person guilty of an offence committed as a child
(including a Class 1, Class 2, Class 3 or Class 4 offence), it may
order that the person comply with the reporting obligations of
this Act.
New section 11(2A) includes an equivalent provision to new
section 11(1A) for children. It provides that on an application
by a police officer, a court may order that a person who is found
guilty by a court of a foreign jurisdiction of an offence committed
as a child (including a Class 1, Class 2, Class 3 or Class 4
offence) comply with the reporting obligations of the Principal
Act. New section 11(2B) clarifies where an application under
new section 11(2A) must be made. If the person to whom the
application relates is now an adult, it must be made to the
Magistrates' Court, and if the person is a child, it must be made
to the Children's Court.
Subclause (3) amends section 11(2B) of the Principal Act so
that it applies in relation to orders under both new section (2)
and (2A). Section 11(2B) provides that a court may, in such
order, exempt the person to whom it applies from any particular
reporting obligation or modify any particular reporting obligation
for any period during which the person is a child.
Subclauses (4) and (5) amend section 11(5) and (6) of the
Principal Act to reflect the changes made in new sections 11(1A)
and (2A). Section 11(5) as amended restricts the ability of a
court to make a sex offender registration order to where either the
court, or a court of a foreign jurisdiction has imposed a sentence
(other than an order referred to in section 360(1)(b), (1)(c)
or (1)(d) of the Children Youth and Families Act 2005) in
relation to the offence to which the power to make an order
relates. Section 11(6) currently provides that an application for
the making of a sex offender registration order must be made
within 45 days of the sentence being imposed, after which time
a sex offender registration order may not be made. While this
provides certainty around whether or not a person will be placed
on the sex offenders registration order it is not appropriate to
apply this time limit in relation to persons sentenced for offences
committed in a foreign jurisdiction. That is because they may
25
only move or return to Victoria after that period of time, or
Victoria Police may not learn of that offending until a later time.
Subclause (5) amends of the Principal Act to provide that
section 11(6) does not apply to orders referred to in new sections
11(1A) or (2A).
Subclause (6) repeals section 11(8) of the Principal Act, which
currently provides that Division 5 of Part 3 of that Act applies to
a person subject to an order under subsection (2) as it would have
if this Act had not contained section 6(3)(a). Section 11(8) is no
longer required because section 6(3) of the Principal Act has
been repealed under clause 25(3).
Subclause (7) repeals section 11(10)(c) of the Principal Act,
which currently provides that, subject to section 6(5), an offender
in relation to whom a sex offender registration order has been
made under section 6(9) of the Principal Act, in accordance with
section 6B of the Serious Sex Offenders (Detention and
Supervision) Act 2009, is taken to be a registrable offender for
the purposes of the Principal Act. Section 11(10)(c) has been
shifted to section 6 of the Principal Act under clause 25(2).
Subclause (8) inserts a new section 11(11) into the Principal Act.
The section provides that a registrable offender is subject to an
order made under this section for the remainder of the registrable
offender's life, regardless of the period for which the registrable
offender must comply with the reporting obligations of this Act,
unless the order is quashed or set aside by a court.
Clause 28 amends section 14 of the Principal Act, which sets out the details
that a registrable offender must report to police in accordance
with the Act.
Subclause (1) amends section 14(1)(d) of the Principal Act by
removing the requirement that a registrable offender report the
name of each of the localities in which he or she can generally be
found where an offender does not generally reside at any
particular premises. This requirement is no longer required due
to the changes in subclause (2).
Subclause (2) inserts new section 14(1)(daa) into the Principal
Act, which provides that a registrable offender must report details
that are sufficient to identify any place where the person sleeps
on a regular basis. An example is provided at the end of this new
paragraph to clarify that relevant details may include the name
and address of a refuge, shelter or similar premises at which the
26
person sleeps, the details of a vehicle in which the person sleeps
or the address of a park, beach or other outdoor location at which
the person sleeps.
Subclause (3) amends section 14(1)(dc) of the Principal Act so
that a registrable offender no longer has to report the business
address of their internet service provider.
Subclause (4) substitutes the words "number (if any) of any
motor vehicle or caravan" for "number of any motor vehicle" in
section 14(1)(h) of the Principal Act. That section currently
provides that a registrable offender must report to police the
make, model, colour and registration number of any motor
vehicle owned by, or generally driven by them. Subclause (4)
extends that requirement to caravans.
Subclause (5) amends section 14(2) to clarify, for the purposes of
the changes made in subclause (2), that a registrable offender
sleeps at a place on a regular basis if the person sleeps at that
place more than once in any period of 14 days.
Clause 29 amends section 16 of the Principal Act to enable the Chief
Commissioner of Police to more efficiently schedule the
annual reports of registrable offenders who are also subject
to a supervision order under the Serious Sex Offenders
(Detention and Supervision) Act 2009 and are required to
reside in a residential facility as a condition of that order.
Subclause (1) inserts new section 16(5), which provides that
despite the requirement in section 16(2) that a registrable
offender must make an annual report to police by the end of the
calendar month in which the anniversary of the date on which he
or she first reporting in accordance with the Principal Act, a
registrable offender who is residing in a residential facility as a
condition of a supervision order made under the Serious Sex
Offenders (Detention and Supervision) Act 2009 must make
the report the on the day specified by the Chief Commissioner of
Police by written notice served on the registrable offender.
Subclause (2) inserts new section 16(6), which provides that such
a notice must specify a date that is within the calendar month in
which the anniversary of the date on which the registrable
offender first reported in accordance with this Act or a
corresponding Act falls.
27
Clause 30 amends section 23 of the Principal Act to ensure that section is
consistent with the amendments made to section 14 of the
Principal Act by clauses 28(1) and (2) of the amending Bill by
substituting subsection (1)(c) for new subsections (1)(c) and (ca).
Section 23(1)(c) currently provides that a registrable offender
must make a range of reports to police in person, including a
report of a change of address of the premises at which he or she
generally resides, or if he or she does not generally reside at any
particular premises, the localities in which he or she can
generally be found.
New sections 23(1)(c) and (ca) will require that a registrable
offender must report in person to police a change of address of
the premises at which the person generally resides, and details
that are sufficient to identify any place where the person sleeps
on a regular basis.
Clause 31 inserts new section 50(1A) into the Principal Act. Section 50(1)
provides that a registrable offender is to be given a written notice
of his or her reporting obligations and the consequences that
may arise if he or she fails to comply with those obligations.
New section 50(1A) provides that such a notice must include
the details (if any) prescribed by the regulations. For example,
it may be that regulations could be made for the purpose of
requiring a notice to include information about other obligations
and requirements that apply to a registrable offender such as the
fact they are prohibited from engaging in child-related
employment under Part 5 of the Principal Act.
Clause 32 inserts new section 54(2) into the Principal Act. Section 54
provides that the Chief Commissioner of Police may, at any time,
cause written notice to be given to a registrable offender of his or
her reporting obligations and the consequences that may arise if
he or she fails to comply with those obligations (for example,
because a notice was not, or cannot, be given under section 50).
New section 54(2) makes an equivalent change to that in
section 50(1A) under clause 30 of the amending Bill by
providing that such a notice must include the details (if any)
prescribed by the regulations.
Clause 33 repeals section 66F(1)(b), (c) and (d) of the Principal Act.
Under section 66F, a court must give a registrable offender a
written notice when it makes an interim prohibition order under
the Principal Act. The purpose of the written notice is to explain
28
the effect of the interim prohibition order. Sections 66F(1)(b),
(c) and (d) provide that such notices must set out the date on
which the interim prohibition order was made, the date it ends
and the conditions included in the interim prohibition order.
However, this information will already be included in the interim
prohibition order, a copy of which must be provided with the
written notice. This amendment will, therefore, avoid
unnecessary duplication of information.
Clause 34 repeals section 66O(1)(b), (c) and (d) of the Principal Act.
Under section 66O, a court must give a registrable offender a
written notice when it makes a final prohibition order under the
Principal Act. The purpose of the written notice is to explain the
effect of the interim prohibition order. Sections 66O(1)(b), (c)
and (d) provide that such notices must set out the date on which
the final prohibition order was made, the date it ends and the
conditions included in the final prohibition order. However, this
information will already be included in the final prohibition
order, a copy of which must be provided with the written notice.
This amendment will, therefore, avoid unnecessary duplication of
information.
Clause 35 substitutes a new section 66Z(1) into the Principal Act.
Section 66Z(1) currently provides that a police officer who
seizes a thing under section 66Y must photograph or otherwise
record the thing seized. However, it may be more efficient or
practicable for another police officer or police employee to be
responsible for recording an item that was seized under
section 66Y, instead of imposing that obligation on the police
officer who seized the item. Consequently, new section 66Z(1)
will provide that all things seized pursuant to the seizure powers
set out under section 66Y of the Principal Act must be
photographed or otherwise recorded.
Clause 36 repeals section 66ZL(4)(b)(ii) and (iii) of the Principal Act.
Under section 66ZL(4)(b), a court must give a registrable
offender a written notice when it varies a prohibition order
under the Principal Act. The purpose of the written notice
is to explain the effect of the prohibition order as varied.
Sections 66ZL(4)(b)(ii) and (iii) provide that such notices must
set out the date on which the order varying the prohibition order
was made and the conditions included, removed or altered by the
order varying the prohibition order. However, this information
29
will already be included in the order varying the prohibition
order, a copy of which must be provided with the written notice.
This amendment will, therefore, avoid unnecessary duplication of
information.
Clause 37 repeals section 66ZM(2) of the Principal Act. That section
requires a court that makes an order revoking a prohibition order
under the Principal Act to give the registrable offender that was
subject to the prohibition order a written notice. The purpose of
the written notice is to explain the effect of the order to revoke a
prohibition order. Such notices must set out the date on which
the order revoking the prohibition order was made and state
that the prohibition order has been revoked. However, this
information will already be included in the order revoking the
prohibition order, a copy of which must also be provided to the
registrable offender. This amendment will, therefore, avoid
unnecessary duplication of information.
Clause 38 repeals section 66ZN(3)(b)(ii) and (iii) of the Principal Act.
Under section 66ZN(3)(b), a court must give a registrable
offender a written notice when it makes an order extending the
duration of a final prohibition order under the Principal Act.
The purpose of the written notice is to explain the effect of the
order extending the duration of the final prohibition order.
Sections 66ZN(3)(b)(ii) and (iii) provide that such notices must
set out the date on which the order extending the duration of the
final prohibition order was made and when the final prohibition
order (as extended by that order) ends. However, this
information will already be included in the order extending the
duration of the final prohibition order, a copy of which must be
provided with the written notice. This amendment will,
therefore, avoid unnecessary duplication of information.
Clause 39 repeals section 66ZT(1)(b), (c) and (d)(i) and amends
section 66ZT(1)(e) of the Principal Act. Under section 66ZT, a
court must give a registrable offender a written notice when it
makes a registration order under the Principal Act. The purpose
of the written notice is to explain the effect of the registration
order. Sections 66ZT(1)(b), (c), (d)(i) and (e) provide that such
notices must set out the date on which the registration order was
made, any variations made to the corresponding prohibition order
by the registration order, the effect of those variations and when
the registration order ends. However, this information will
30
already be included in the registration order, a copy of which
must be provided with the written notice. This amendment will,
therefore, avoid unnecessary duplication of information.
Clause 40 repeals section 66ZZ(3)(b) and (c) of the Principal Act.
Under section 66ZZ(3), a court must give a registrable offender
a written notice when it varies a registration order under the
Principal Act. The purpose of the written notice is to explain the
effect of the registration order as varied. Sections 66ZZ(3)(b)
and (c) provide that such notices must set out the date on which
the order varying the registration order was made and the
conditions of the corresponding prohibition order included,
removed or altered by the order varying the registration order.
However, this information will already be included in the order
varying the registration order, a copy of which must be provided
with the written notice. This amendment will, therefore, avoid
unnecessary duplication of information.
Clause 41 repeals section 66ZZA(2) and (3) of the Principal Act.
Those subsections require a court that makes an order revoking a
registration order under the Principal Act to give the registrable
offender that was subject to the registration order a written
notice. The purpose of the written notice is to explain the effect
of the order to revoke a registration order. Such notices must set
out the date on which the order revoking the registration order
was made and state that the registration order has been revoked.
However, this information will already be included in the order
revoking the registration order, a copy of which must also be
provided to the registrable offender. This amendment will,
therefore, avoid unnecessary duplication of information.
Clause 42 amends the heading to Part 5 of the Principal Act, substituting
Registered sex offenders for Registrable offender, as clause 43
of the Bill repeals the definition of registered sex offender from
the Principal Act.
Clause 43 amends section 67(1) of the Principal Act by repealing the
definition of registered sex offender. Clauses 25 to 27 clarify
that all persons who become subject to reporting obligations
under the Principal Act are registrable offenders under section 6
of that Act. Consequently, there is no longer a need to separately
refer to a registered sex offender in the Principal Act.
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Clause 44 amends the heading to section 68 and amends section 68(1) of the
Principal Act, substituting registered sex offender for registrable
offender. This is consistent with the amendments in clause 43.
Clause 45 amends the heading to section 70J and amends section 70J(1) of
the Principal Act by removing reference to "extended supervision
orders" and "interim extended supervision order". These orders
were made under the Serious Sex Offenders Monitoring
Act 2005. That Act has since been repealed and there are no
offenders still subject to those orders. Consequently, there is no
need to for section 70J to refer to those orders.
Clause 46 amends section 70P(1)(a) of the Principal Act, substituting
registered sex offender for registrable offender. This is
consistent with the amendments in clause 43.
Clause 47 inserts new section 74A into the Principal Act to enable the
authority having for the time being power to make rules
regulating the practice and procedure of a court to make rules of
the court for or with respect to any matter for which provision is
to be made under the Principal Act by rules of court.
New section 74A has been included in the Principal Act to
enable the efficient operation of new Division 2 of Part 2 of the
Principal Act (which will be inserted into that Act by clause 7
and enable a court to hear and determine applications for
registration exemption orders) and new section 39B (which will
be inserted into that Act by clause 13 and states how an
application for the suspension of reporting obligations under
section 39 and 39A is made). New section 74A will enable the
authority to make rules of court with respect to those matters, as
permitted in new sections 11B(7), 11D(1)(b) and 39B(b) of the
Principal Act.
Clause 48 repeals item 8 of Schedule 1 to the Principal Act. Item 8
currently makes an offence against section 270.6 of the Criminal
Code of the Commonwealth, where the person against whom the
offence is committed is a child, a Class 1 offence. That offence
has since been repealed from the Criminal Code of the
Commonwealth. Item 13 of Schedule 1 will ensure that for
historical offences, an offence against section 270.6 of the
Criminal Code of the Commonwealth will continue to be a
Class 1 offence in those circumstances.
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Clause 49 amends Schedule 2 to the Principal Act to qualify when certain
offences are Class 2 offences for the purposes of the Act.
Subclause (1) amends items 12, 13, 13A, 14, 14A, 15, 15A
and 16 of Schedule 2 to the Principal Act. Section 43(8) of the
Crimes Amendment (Sexual Offences) Act 2016 will insert
these items into the Principal Act when it commences operation.
As currently drafted, these items make a range of new sexual
offences child abuse material Class 2 offences for the purposes of
the Principal Act except if the offence only relates to child abuse
material of a kind that depicts or describes a person who is, or
who appears or is implied to be, a child as a victim of torture,
cruelty or physical abuse where the torture, cruelty or abuse is
not sexual. Subclause (1) will amend the qualification so that
these offences will be Class 2 offences except if the offence only
relates to child abuse material that depicts or describes a person
who is, or who appears or is implied to be, a child as a victim of
cruelty or physical abuse, where the cruelty or physical abuse is
not sexual. The effect of this amendment is to provide that these
offences are Class 2 offences where the offending relates to child
abuse material that depicts or describes a person who is, or who
appears or implied to be, a child as a victim of torture regardless
of whether the torture is sexual.
Subclause (2) amends item 28 of Schedule 2 to the Principal Act.
That item makes an offence against section 270.7 of the Criminal
Code of the Commonwealth a Class 2 offence where the person
against whom the offence is committed is a child. When the
Principal Act was enacted, section 270.7 of the Criminal Code
of the Commonwealth covered the deceptive recruitment for
sexual services. The provision has since been amended by the
Commonwealth to apply to the deceptive recruitment for any
labour or services. To reflect the broader scope of the offence,
item 28 will be amended so that the offence is only a Class 2
offence where the person against whom the offence is committed
is a child and in circumstances where the conduct causes the
victim to be deceived about the fact that the engagement is to
involve the provision of sexual services, or the nature of sexual
services to be provided.
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Subclauses (3) to (6) amend items 28AB(v) and (vi), 28AC(iii),
(iv) and (v), 28A(iv) and (iva) and item 29 of Schedule 2 to the
Principal Act. Those items make a range of sexual offences
under the Criminal Code of the Commonwealth and the Customs
Act 1901 of the Commonwealth that involve child abuse material
Class 2 offences. These items will be amended to qualify that,
consistent with the amendments in subclause (1), the offences are
Class 2 offences except if the offence only relates to material that
depicts, represents or describes a person who is, or appears to be,
or is implied to be, a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual.
Part 3--Amendment of the Crimes Act 1958
Clause 50 amends the definition of related material and information in
section 464(2) of the Crimes Act 1958. That definition currently
applies in relation to a sample taken in a forensic procedure
conducted in accordance with sections 464R to 464ZA or
section 464ZF or 464ZFAAA of the Crimes Act 1958.
The amendments in clause 50 will also apply the definition in
relation to a sample taken in a forensic procedure conducted in
accordance with new section 464ZFAB of the Crimes Act 1958.
This amendment ensures that the related amendments under
clauses 52 and 54 concerning the retention and destruction
requirements for samples taken in a forensic procedure
conducted in accordance with new section 464ZFAB of the
Crimes Act 1958 also applies to any related material and
information, being notes and audiovisual recording made of the
forensic procedure and any information which may identify the
person contained in any record of or report relating to the
forensic procedure and in any copy of a record or report.
Clause 51 amends section 464ZA of the Crimes Act 1958 so that it may
apply in relation to the conducting of a forensic procedure in
accordance with new section 464ZFAB of that Act.
Section 464ZA enables a police officer, with such assistance they
consider necessary, to use reasonable force to assist a medical
practitioner, nurse, midwife, dentist or person authorised under
section 464Z to conduct a forensic procedure. This amendment
will also ensure that the safeguards for exercising those powers
and the conducting a forensic procedure will apply in relation to a
forensic procedure conducted in accordance with new
section 464ZFAB.
34
Clause 52 inserts new section 464ZFAB into the Crimes Act 1958, which
will create a new power under which a police officer may direct
a registrable offender to undergo a forensic procedure for the
taking of a sample from any part of the body, if the Chief
Commissioner of Police does not already have forensic sample
from the registrable offender.
To ensure that Victoria Police can obtain a forensic sample from
all registrable offenders, including those no longer subject to
reporting obligations, new section 464(3) provides that a police
officer of or above the rank of senior sergeant may serve, or may
cause to be served, a notice on a registrable offender directing the
registrable offender to attend at a police station specified in the
notice within 28 days to undergo a forensic procedure.
A notice under new section 464ZFAB(3) must state the
consequences of failing to comply with a notice, that the
registrable offender receiving the notice may wish to seek legal
advice as to the effect of the notice, and the name, rank and
telephone number of the police officer serving the notice or
causing the notice to be served. A notice must also contain the
prescribed information, if any.
New section 464FZAB(5) states that a notice under new
section 464ZFAB(3) must be served by delivering a true copy
of the notice to the registrable offender personally.
New section 464FZAB(6) applies sections 464ZFAA(6), (7)
and (8) of the Crimes Act 1958 to a notice served under new
section 464FZAB(3) as if it were a notice served under that
section. Sections 464ZFAA(6) and (7), when applied to a notice
under section 464ZFAB(3), provide that, where a person fails to
comply with a notice, a police officer may apply to a magistrate
or a registrar of the Magistrates' Court for a warrant authorising
the police officer to, if necessary, break, enter and search any
place where the person named in the warrant is suspected to be,
arrest the person, and detain them for as long as reasonably
permits the conduct of the forensic procedure. A magistrate or
registrar may issue a warrant if satisfied a notice was served on a
person in accordance with 464ZFAB and the person has not
undergone the forensic procedure.
Section 464ZFAA(8) of the Crimes Act 1958 in turn applies
section 464ZFA(2), (3), (4), (5), (6) and (7) of that Act to a
warrant issued under section 464ZFAA(7) as if it were a warrant
35
issued under section 464ZFA(1B). These sections clarify the
scope of a warrant, such as by clarifying that any police officer
may execute the warrant, a magistrate or registrar must give
reasons for their decision to issue the warrant or cause those
reasons to be recorded in the courts records, that a warrant (in the
context of section 464ZFAB of the Crimes Act 1958) expires
immediately after the forensic procedure has been completed
and that the police officer executing the warrant must notify a
registrar of the Magistrates' Court when the warrant has been
executed.
New section 464FZAB(7) provides that a sample taken during
the forensic procedure and any related material and information
(as per the amended definition of related material and
information under clause 50) may be retained indefinitely.
However, the power to retain such information is subject to new
section 464ZFAB(8). That provision states that subsection (7)
does not apply if, on appeal against conviction, the finding of
guilt of the registrable offender in respect of an offence is
quashed or set aside and, but for that offence, the person would
not be registrable offender.
Clause 53 amends section 464ZFAB of the Crimes Act 1958 by inserting
new subsections (9) to (14). These subsections provide a
limitation on the new powers inserted in new section 464ZFAB
of the Crimes Act 1958 by clause 52 of the amending Bill
authorising a police officer to direct a registrable offender to
undergo a forensic procedure or to direct a registrable offender
to attend at a police station for that purpose. The limitations
apply in relation to registrable offenders who are no longer
required to report to police under the Principal Act.
Consistent with the approach taken in clauses 19 and 20, it is
intended that the reforms in clause 52 will enable Victoria
Police to obtain a forensic sample from all registrable offenders.
However, it is also intended that a registrable offender should
be able to have some closure after they have completed their
reporting obligations under the Principal Act and have not
committed any further offences. Nevertheless, there will be
occasions where Victoria Police will not have a reasonable
opportunity to request that a registrable offender undergo a
forensic procedure under the new powers in clause 52 before the
offender's reporting is no longer subject to reporting obligations,
such as where a registrable offender's reporting obligations have
36
expired before clause 52 commences or where a registrable
offender has been residing outside Victoria and does not return
until their reporting obligations have expired. Clause 53 seeks
to provide an appropriate balance between these competing
intentions.
New section 464ZFAB(9) of the Crimes Act 1958 provides
that, if a registrable offender's reporting obligations under the
Principal Act have been suspended or have expired, a police
officer may direct the registrable offender to undergo a forensic
procedure under section 464ZFAB(2) (as inserted by clause 52 of
the amending Bill) only if a notice has been served by a police
officer of or above the rank of senior sergeant under new section
464ZFAB(3) of the Crimes Act 1958. Subsection (9) is subject
to subsection (10).
New section 464ZFAB(10) of the Crimes Act 1958 provides that
a registrable offender referred to in subsection (9) may refuse to
have undergo a forensic procedure and to attend at a police
station in compliance with a notice under subsection (3) on
certain grounds.
Specifically, the first ground for refusal is that a registrable
offender who was a registrable offender on the commencement
of section 52 of this amending Bill may refuse if the offender
demonstrates to the reasonable satisfaction of the police officer
referred to in subsection (3) that that the registrable offender has
been resident in Victoria for not less than 2 years and 6 months
in aggregate during the period between the commencement of
section 52 of this amending Bill and the commencement of
section 53 of this amending Bill. That is, the ground applies
where the registrable offender was residing in Victoria for at least
2 years and 6 months of the 3 year period immediately following
the commencement of clause 52. To avoid doubt, it does not
matter whether the 2 years and 6 months were one continuous
period. For example, it is intended that a person who is currently
a registrable offender and is no longer subject to reporting
obligations may exercise the right to refuse where they can
demonstrate to the satisfaction of a police officer of or above the
rank of senior sergeant that they were residing in Victoria for the
first 18 months after clause 52 commences, moved to New South
Wales for 2 months and then returned to, and resided in Victoria
for the remaining 16 months.
37
The second ground applies regardless of when a person became
a registrable offender. The second ground for refusing is if the
registrable offender demonstrates to the reasonable satisfaction of
the police officer referred to in subsection (3) that the offender
has been resident in Victoria for a continuous period of
12 months at any time after the commencement of clause 53 of
the amending Bill and was a registrable offender during the
whole of that period of 12 months.
Clause 53 includes a range of safeguards to ensure that a
registrable offender has sufficient opportunity to understand
whether they may have a right to refuse and to exercise that right
to refuse. As noted above, where a registrable offender is no
longer subject to reporting obligations, any direction that the
offender undergo a forensic procedure may only be made
after a senior police officer has served a notice under section
464ZFAB(3) of the Crimes Act 1958 requiring the offender to
attend a police station for that purpose. This ensures that a
registrable offender will have 28 days to consider whether they
intend to seek to refuse to comply with the request.
New section 464ZFAB(11) of the Crimes Act 1958 requires
that a person serving the notice must also inform the offender,
in a manner that is likely to be understood by the offender, that
they may refuse to comply with the notice, the grounds on which
they may refuse, and that the registrable offender may wish to
seek legal advice. If the registrable offender does not have a
knowledge of the English language that is sufficient to enable the
person to understand the information being provided, the police
officer must arrange for the presence of a competent interpreter
(new section 464ZFAB(14)).
Further, new section 464ZFAB(13) of the Crimes Act 1958
provides that, before a registrable offender who is no longer
subject to reporting obligations undergoes a forensic procedure,
a police officer must, in a manner likely to be understood by
the registrable offender, inform the offender of the possible
grounds for refusal and ask whether the offender wishes to
refuse. Once again, new section 464ZFAB(14) applies to provide
that if the registrable offender does not have a knowledge of the
English language that is sufficient to enable the person to
understand the information being provided, the police officer
must arrange for the presence of a competent interpreter.
38
Where a person seeks to exercise their right to refuse under new
section 464ZFAB(10) of the Crimes Act 1958, a senior police
officer must consider any supporting material provided by the
registrable offender (such as a rates notice, rental receipt, bills
or other receipts or statements) when determining whether
they are reasonably satisfied that the registrable offender has
demonstrated that there is a ground for exercising a right to
refuse.
As explained above, clause 53 will commence 3 years after the
day on which clause 52 comes into operation. This will give
Victoria Police a period of 3 years in which they may obtain a
forensic sample from a person who has been placed on the Sex
Offenders Register but whose reporting obligations have since
been suspended or expired in accordance with the Principal Act.
This is to ensure that Victoria Police has sufficient time to locate
such persons and direct them to undergo a forensic procedure
where the Chief Commissioner of Police does not currently have
a forensic sample from the person.
Clause 54 inserts new section 464ZFC(1)(ab) into the Crimes Act 1958 to
provide that the Chief Commissioner must destroy, or cause to be
destroyed, any sample and any related material and information
taken in a forensic procedure from a registrable offender, if
the finding of guilt of the registrable offender for an offence is
quashed or set aside and, but for that offence, the person would
not be a registrable offender.
Clause 55 amends section 464ZFD(1) of the Crimes Act 1958 to provide
that information (which may include identifying information)
obtained from an analysis of samples taken or conducted under
new section 464ZFAB and that may be retained under the
Crimes Act 1958 may be included in the Victorian DNA
database system kept by the Chief Commissioner of Police
under section 464ZFD(1).
39
Part 4--Amendment of the Criminal Procedure Act 2009
Clause 56 amends the definition of sentence in section 3 of the Criminal
Procedure Act 2009 to include a registration exemption order
made under new section 11B of the Principal Act (inserted by
clause 7). A registration exemption order is a court order that
declares that a person is not a registrable offender in respect of
a specified offence (being a Class 1 or Class 2 offence listed in
new Schedule 5 of the Principal Act). Amending the definition
of sentence to include decisions to make a registration exemption
order ensures these orders are subject to the same appeal rights
as sex offender registration orders made under section 11 of the
Principal Act. Similarly, it is also intended that a decision to
refuse to make a registration exemption order will also fall
within the definition of sentence under the Criminal Procedure
Act 2009.
Part 5--Amendment of the Serious Sex Offenders (Detention and
Supervision) Act 2009
Clause 57 amends section 6B(2) of the Serious Sex Offenders
(Detention Supervision) Act 2009. That section currently
provides that a sex offender registration order under the Sex
Offenders Registration Act 2004 made in the circumstances
referred to in section 6B(1) (that section provides for the making
of mandatory sex offender registration order made when a court
makes, confirm or renews a supervision order or adds, varies or
confirms a condition of a supervisor order under the Serious Sex
Offenders (Detention Supervision) Act 2009) must be for a
period of not less than 15 years.
This is inconsistent with new section 11(11) of the Principal Act
(inserted by clause 27(2)), which provides that a registrable
offender remains subject to a sex offender registration order for
the remainder of the registrable offender's life unless the order is
quashed or set aside by a court. To ensure that section 6B(2) of
the Serious Sex Offenders (Detention Supervision) Act 2009 is
consistent with new section 11(11) of the Principal Act, clause 57
of the amending Bill amends section 6B(2) of the Serious Sex
Offenders (Detention Supervision) Act 2009 so that it provides
that a sex offender registration order made in the circumstances
referred to in section 6B(1) must require that the person comply
with the reporting obligations under the Principal Act for a period
of not less than 15 years.
40
Part 6--Amendment of the Working with Children Act 2005
Clause 58 amends section 39A(a) of the Working with Children Act 2005
to align terminology between that Act and the Principal Act.
Section 39A(a) currently provides that a registered sex offender
within the meaning of section 67 of the Principal Act must not
apply for a working with children check. However, clause 44
amends section 67(1) of the Principal Act to repeal the definition
of registered sex offender. Consequently, new section 39A(a)
will now provide that a registrable offender within the meaning
of section 3 of the Principal Act must not apply for a working
with children check.
Part 7--Repeal of the amending Act
Clause 59 provides for the repeal of the amending Act on the first
anniversary of the first day on which all of its provisions are in
operation. The repeal does not affect the continuing operation of
the amendments made by the amending Act (see section 15(1) of
the Interpretation of Legislation Act 1984).
41