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SEX OFFENDERS REGISTRATION BILL 2004

                                                              Sex Offenders Registration Bill

                                                                          Circulation Print
Victorian Legislation Parliamentary Documents




                                                               EXPLANATORY MEMORANDUM


                                                                                   General
                                                The purpose of this Bill is to reduce the likelihood of certain offenders who
                                                commit sexual offences re-offending by requiring that they keep police
                                                informed of their whereabouts and other personal details for a period of time
                                                and to prevent registered sex offenders working in child-related employment
                                                by making it an offence for them to apply for or engage in such employment.
                                                By providing for the establishment of a Register of Sex Offenders, the Bill
                                                requires certain offenders who are, or have been, sentenced for registrable
                                                offences, to report specified personal details to police for inclusion in the
                                                Register. Such offenders must then report annually to police, unless there is
                                                a change in their personal details beforehand, in which case such change must
                                                also be reported. In addition, the Bill empowers a sentencing court to order
                                                juvenile offenders and offenders who commit certain sexual offences against
                                                adult victims to comply with such reporting obligations.
                                                The Bill further provides that the Police Ombudsman is to monitor
                                                compliance with matters relevant to the establishment and maintenance of the
                                                Register, including access to and the disclosure of Register information.

                                                                                Clause Notes

                                                               PART 1--PRELIMINARY MATTERS
                                                Clause 1    sets out the purposes of the Bill and outlines its main features.

                                                Clause 2    is the commencement provision. The proposed Act comes into
                                                            operation on 1 October 2004.

                                                Clause 3    defines certain words and expressions for the purposes of the
                                                            Bill.

                                                Clause 4    defines the meaning of "finding of guilt" for the purposes of the
                                                            Bill.

                                                Clause 5    defines other reference provisions used in the Bill.



                                                                                       1
                                                551125                                           BILL LA CIRCULATION 4/6/2004

 


 

PART 2--OFFENDERS TO WHOM ACT APPLIES Clause 6 defines a registrable offender for the purposes of the Bill. Sub-clause (1) provides that, subject to sub-clauses (3) to (6), a registrable offender is a person whom a court has sentenced at Victorian Legislation Parliamentary Documents any time for a registrable offence. Sub-clause (2) provides that a person who is either a corresponding registrable offender (the meaning of which is referred to in clause 3 and defined in clause 9) or a New South Wales registrable offender (the meaning of which is referred in clause 3 and defined in clause 10), is also a registrable offender. Sub-clause (3) provides that, unless he or she is a registrable offender because of the operation of sub-clause (2), a person is not a registrable offender merely because he or she-- · as a child committed a Class 1 or Class 2 offence (which offences are listed in Schedules 1 and 2); or · was the subject of certain sentencing orders referred to in, and made under, the Children and Young Persons Act 1989; or · was sentenced in respect of a single Class 2 offence but that sentence did not include either a term of imprisonment or a requirement that the person be under the supervision of a supervising authority or any other person or body. Sub-clause (4) provides that unless a person is a registrable offender because of the operation of sub-clause (2) or is an existing controlled registrable offender (the meaning of which is defined in clause 3), such person is not a registrable offender merely because he or she was sentenced for a registrable offence before 1 October 2004. Sub-clause (5) provides a person is not a registrable offender if he or she is receiving protection under a prescribed foreign witness protection law (the meaning of which is defined in clause 3) or who has the same status as such a person pursuant to an order made under a prescribed corresponding Act. 2

 


 

Sub-clause (6) provides that a person ceases to be a registrable offender if-- · the finding of guilt in respect of the only registrable offence making him or her such is quashed or set aside Victorian Legislation Parliamentary Documents by a court; or · the sentence in respect of that offence is reduced or altered so that he or she would not have been a registrable offender; or · the person is a registrable offender only because he or she is subject to a sex offender registration order (the meaning of which is defined in clause 3 and clause 11) and that order is quashed on appeal. Sub-clause (8) provides that for the purposes of sub-clause (3)(c), a reference to a single offence includes a reference to more than one offence of the same kind arising from the same incident. Clause 7 defines the meaning of registrable offence. Sub-clause (1) provides that a registrable offence is a Class 1 or 2 offence or an offence which results in the making of a sex offender registration order. Sub-clause (2) provides that Class 1 offences are those offences listed in Schedule 1. Sub-clause (3) provides that Class 2 offences are those offences listed in Schedule 2. Clause 8 defines the meaning of Class 3 and Class 4 offences. Sub-clause (1) defines the meaning of a Class 3 offence as an offence listed in Schedule 3 committed against a person other than a child for which a person is sentenced as a serious sexual offender (within the meaning of Part 2A of the Sentencing Act 1991) or would have been so sentenced had he or she not then been under the age of 21 years. Sub-clause (2) defines the meaning of a Class 4 offence as an offence listed in Schedule 4 for which a person is also sentenced, or would have been sentenced, as a serious sexual offender as described in sub-clause (1). Clause 9 sets out who is a corresponding registrable offender for the purposes of the Bill. Clause 10 sets out who is a New South Wales registrable offender for the purposes of the Bill. 3

 


 

Clause 11 sets out when a sex offender registration order may be made and the reporting obligations of a person subject to such an order. Sub-clause (1) empowers a court finding a person guilty of an offence which is not a Class 1 or Class 2 offence (including a Victorian Legislation Parliamentary Documents Class 3 or Class 4 offence), to order that the person comply with the reporting obligations of the Bill. Sub-clause (2) empowers a court sentencing a person for a Class 1 or Class 2 offence committed as a child, to order that the person comply with the reporting obligations of the Bill even though, because of the operation of clause 6(3)(a), the child is not by reason of that fact alone a registrable offender. Sub-clause (3) provides that the court may only make the order if, after taking into account any matter which it considers appropriate, it is satisfied that the person poses a risk to the sexual safety of one or more persons or of the community. Sub-clause (5) provides that the court may only make the order if it imposes a sentence in relation to the offence (other than certain specified orders) and must make the order concurrently with that sentence. Sub-clause (6) provides that the court may only make the order upon an application by the prosecution. Sub-clause (7) provides that for the purposes of Division 5 of Part 3 of the Bill (which deals with the reporting period), a person found guilty of a Class 3 offence who is made subject to a sex offender registration order is deemed to have been found guilty of a Class 1 offence and a person found guilty of a Class 4 offence or any other offence (other than a Class 3 offence) who is made subject to a sex offender registration order is deemed to have been found guilty of a Class 2 offence. Sub-clause (8) provides that Division 5 of Part 3 of the Bill applies to a person who is made subject to a sex offender registration order notwithstanding that he or she is a child who has been found guilty of, and has been sentenced for, a Class 1 or Class 2 offence only. PART 3--REPORTING OBLIGATIONS Division 1--Initial Report Clause 12 sets out the period within which a registrable offender must report his or her personal details to the Chief Commissioner of Police. 4

 


 

Clause 13 sets out the period within which a registrable offender, whose previous reporting obligations have ceased but who is then sentenced for a registrable offence, must report his or her personal details to the Chief Commissioner of Police. Victorian Legislation Parliamentary Documents Clause 14 refers to the details which must be initially reported by the registrable offender. Sub-clause (1) provides such details to be-- · current and former name(s); · date of birth; · address; · names and ages of any children who generally reside in the same household or with whom the registrable offender has regular unsupervised contact; · employer's name and address; · details of affiliation with any club or organisation which has child membership or participation; · motor vehicle registration and related details; · tattoos or permanent distinguishing marks; · travel plans. Sub-clause (2) provides that for the purposes of this clause a registrable offender-- · does not generally reside at particular premises; · does not generally reside in the same household as a child; · does not have regular unsupervised contact with a child; · is not generally employed at any particular premises; · does not generally drive a particular motor vehicle-- unless in respect of the thing referred to at least 14 days (whether consecutive or not) have elapsed in any period of 12 months. Sub-clause (3) defines when a person is said to be employed for the purposes of the clause. Sub-clause (4) defines when a person is said to be an employer for the purposes of the clause. 5

 


 

Clause 15 sets out the obligations of a person who has been required to report to a corresponding registrar (this does not apply to a person to whom Division 9 ['Protected Witnesses'] applies). These obligations include contacting a nominated person within 7 days after entering and remaining in Victoria. Victorian Legislation Parliamentary Documents Division 2--Ongoing Reporting Obligations Clause 16 provides that a registrable offender must report annually. Sub-clause (1) provides that a registrable offender must report his or her personal details to the Chief Commissioner of Police each year. Sub-clause (2) provides that the registrable offender must make the report by the end of the calendar month of the anniversary of the date of first reporting. Sub-clause (3) provides that if the registrable offender was in government custody (the meaning of which is defined in clause 3) since last reporting, then the details of when and where that custody occurred must be included when reporting. Sub-clause (4) provides that if the registrable offender's reporting period expires, but he or she is then required to report again under clause 13, the date on which he or she first reported is to be taken as the date of first reporting in respect of the current reporting period. Clause 17 provides that a registrable offender must report changes to personal details. Sub-clause (1) provides that a registrable offender must report to the Chief Commissioner of Police any change in his or her personal details within 14 days after that change occurs. Sub-clause (2) provides that a change in respect of certain personal details occurs only on the expiration of the 14 day period referred in clause 14(2). Sub-clause (3) provides that if the personal details of a registrable offender (other than a registrable offender who is subject to Division 9) change while he or she is not in Victoria, such change must be reported to the Chief Commissioner of Police within 14 days after he or she next enters Victoria. 6

 


 

Sub-clause (4) provides a registrable offender who is in government custody for 14 or more consecutive days must report his or her personal details to the Chief Commissioner of Police-- · within 28 days after he or she ceases to be in Victorian Legislation Parliamentary Documents government custody; or · before leaving Victoria-- whichever is the sooner. Clause 18 applies to registrable offenders intending to leave Victoria to travel elsewhere in Australia or overseas. Sub-clause (2) provides that at least 7 days before leaving Victoria, the registrable offender must report the intended travel to the Chief Commissioner of Police and provide details of-- · each place to which he or she intends to go; and · the approximate dates during which he or she intends to be in each place; and · each address or location within each place at which he or she intends to reside (if known) and the approximate dates during which he or she intends to reside at those addresses or locations; and · if he or she intends to return to Victoria, the approximate date; and · if he or she does not intend to return, a statement of that intention. Sub-clause (3) provides that if circumstances make it impracticable for a registrable offender to make the report 7 days before he or she leaves, the registrable offender can still comply with his or her obligations if the required information is reported to the Chief Commissioner of Police at least 24 hours before the intended travel. Clause 19 sets out the obligations of a registrable offender who changes his or her travel plans while out of Victoria. Sub-clause (1) applies the clause to a registrable offender who when outside Victoria decides to-- · extend a stay elsewhere in Australia beyond 13 days; or · change any details given to the Chief Commissioner of Police under clause 18. 7

 


 

Sub-clause (2) provides that as soon as practicable after making the decision, the registrable offender must-- · if he or she decides to extend a stay elsewhere in Australia beyond 13 days, report the details required by Victorian Legislation Parliamentary Documents clause 18(2) to the Chief Commissioner of Police; or · if he or she decides to change any details given to the Chief Commissioner of Police under clause 18, report the changed details to the Chief Commissioner of Police. Sub-clause (3) provides that the registrable offender must make the report in writing sent by post or transmitted electronically to the Chief Commissioner of Police or to any other address or in any other manner prescribed. Clause 20 sets out the obligations of a registrable offender to report his or her return to Victoria or decision not to leave. Sub-clause (1) applies this clause to a registrable offender who under clause 18 was required to report that he or she intended to leave Victoria. Sub-clause (2) provides that if the registrable offender left Victoria, he or she must report his or her return to Victoria to the Chief Commissioner of Police within 14 days after entering and remaining in Victoria for 14 or more consecutive days. Sub-clause (3) provides that if the registrable offender decides not to leave Victoria, he or she must report such change of intention to the Chief Commissioner of Police within 14 days after deciding not to leave. Clause 21 sets out the obligations of a registrable offender to report other absences from Victoria. Sub-clause (1) applies the clause to a registrable offender who, at the time of making a report under this Division, leaves or intends to leave Victoria to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence). Sub-clause (2) provides that the registrable offender must report in general terms to the Chief Commissioner of Police-- · the reason for travelling; and · the frequency and destination of the travel. 8

 


 

Division 3--Provisions Applying to All Reporting Obligations Clause 22 sets out where a report is to be made. Sub-clause (1) provides that a report under Part 3 is to be made-- Victorian Legislation Parliamentary Documents · at the police station directed, if such direction is given in accordance with the regulations; or · at some other place approved by the Chief Commissioner of Police. Clause 23 sets out how a registrable offender must report. Sub-clause (1) provides that the following reports must be made by a registrable offender in person-- · an initial report required by Division 1; · an annual report required by clause 16; · a report of a change of address of the premises at which he or she generally resides or the localities in which he or she can generally be found; and · a report on the acquisition of, removal of, or change to any tattoo or distinguishing mark. Sub-clause (2) provides that a registrable offender may make any other report required to be made either in person or in any other way permitted by the regulations or by the Chief Commissioner of Police, either generally or in the particular case. Sub-clause (3) provides that only a police member approved by the Chief Commissioner of Police may receive a report made in person and only a police member or other person approved by the Chief Commissioner of Police may receive a report made in accordance with sub-clause (2). Sub-clause (4) provides that if a registrable offender attending in person is a child or has a disability (the meaning of which is defined in clause 3 and further referred to in clause 5(2)), which renders it impossible or impracticable for him or her to make a report, then another person (including, for example, an accompanying parent or guardian of the child or carer of the person with the disability) may make the report on the registrable offender's behalf. 9

 


 

Sub-clause (5) similarly provides that if the registrable offender permitted to make a report other than in person is a child or has a disability rendering it impossible or impracticable for him or her to make the report, then another person may make the report on his or her behalf. Victorian Legislation Parliamentary Documents Clause 24 provides that there is a right to privacy and support when reporting. Sub-clause (1) provides that a person making a report under Part 3 at a police station or a place approved by the Chief Commissioner of Police is entitled to-- · make the report out of the hearing of members of the public; and · be accompanied by a support person and, in the case of a child, must be accompanied by a parent or guardian or, if neither is available, an independent person. Sub-clause (2) empowers a police member or other person receiving the report to arrange for an interpreter to be present when a person is making a report under Part 3. Sub-clause (3) provides that a police member receiving a report must not allow an interpreter to be present unless the interpreter has signed an undertaking not to disclose any information derived from the report except if required or authorised by or under any Act or law to do so. Clause 25 provides that receipt of information is to be acknowledged. Sub-clause (1) provides that the police member or other person receiving the report under Part 3 must acknowledge the making of the report as soon as practicable after receiving it. Sub-clause (2) provides that the acknowledgement must be in writing and given to the person who made the report and must include-- · the name and signature of the police member or other person who received the report; and · the date, time and place where the report was received; and · a copy of the information which was reported. Sub-clause (3) provides that the Chief Commissioner of Police must ensure that a copy of every acknowledgement is retained. 10

 


 

Clause 26 sets out additional matters to be provided when reporting in person. Sub-clause (1) provides that if a report is required to be made in person, the person making the report must also-- Victorian Legislation Parliamentary Documents · present for inspection the registrable person's driver licence (if any) or any other form of identification or other document specified by the regulations; and · provide a photograph of the registrable offender's head and face of a type suitable for use in an Australian passport; and · if not the registrable offender, present for inspection his or her driver licence (if any) or other form of identification specified by the regulations. Sub-clause (2) empowers the police member receiving the report to waive the requirement for an identification document or a photograph if the member takes the fingerprints or a fingerscan of the registrable offender immediately before or after the report is made and, in the case of a child, does so in the presence of a parent or guardian of the child or, if neither is available, an independent person or is otherwise satisfied as to the registrable offender's identity. Sub-clause (3) empowers the police member receiving the report to waive the requirements of sub-clause (1)(c) (which deals with a report by a person other than the registrable offender), if otherwise satisfied as to the person's identity. Sub-clause (4) authorises the police member receiving a report to copy any document presented to him or her for inspection under sub-clause (1)(a) or (c). Sub-clause (5) provides that if a report is made otherwise than in person, the regulations may specify-- · the circumstances in which identification and verification documentation and supporting details are required; and · the manner in which that information or documentation is to be provided-- but may not require an original document to be provided. 11

 


 

Clause 27 sets out the power to take fingerprints or a fingerscan. Sub-clause (1) empowers a police member receiving a report made in person under this Part to take or to authorise the taking of the fingerprints or a fingerscan of the registrable offender if, Victorian Legislation Parliamentary Documents after examining all the material provided or presented, the member is not reasonably satisfied as to the identity of the registrable offender. Sub-clause (2) provides that a police member cannot take or cause to be taken the fingerprints or a fingerscan of a child under sub-clause (1), unless the child is accompanied by a parent or guardian or, if neither is available, an independent person. Clause 28 provides that reasonable force may be used to obtain fingerprints or a fingerscan. Sub-clause (1) provides that before attempting to exercise a power under clause 27, the police member must inform the registrable offender-- · of the purpose for which the power is to be exercised and why the member is not satisfied as to the identity of the registrable offender; and · that if the registrable offender refuses, reasonable force may be used to take his or her fingerprints or to submit him or her to a fingerscan; and · that the fingerprints or fingerscan will be retained by the Chief Commissioner of Police. Sub-clause (2) empowers a police member or an authorised person to use reasonable force to take the fingerprints or a fingerscan of a registrable offender if-- · such person refuses to co-operate voluntarily; and · the use of such reasonable force is authorised by a police member in charge of the police station at the time of the request or a police member of or above the rank of sergeant. Sub-clause (3) provides that if reasonable force is to be used under clause 27 it must, if practicable, be used by a person of the same sex as the registrable offender. 12

 


 

Clause 29 enables photographs to be taken with consent. Sub-clause (1) provides that a police member receiving a report made in person under Part 3 may, with the consent of the registrable offender, arrange for him or her to be photographed. Victorian Legislation Parliamentary Documents Sub-clause (2) provides that a police member cannot require a registrable offender who is to be photographed to expose specified parts of his or her anatomy. Sub-clause (3) provides that any photograph must be taken-- · in a place where no members of the public are present; and · if practicable, by a person of the same sex as the registrable offender. Sub-clause (4) provides that, if practicable, any police member present in a place while a photograph is being taken must be of the same sex as the registrable offender. Sub-clause (5) provides that a registrable offender who is to be photographed is entitled to be accompanied by a support person and, in the case of a child, must be accompanied by his or her parent or guardian or, if neither is available, an independent person. Clause 30 provides that the Chief Commissioner of Police may, during the reporting period of a registrable offender, retain for law enforcement, crime prevention or child protection purposes, any of the following taken (under Division 3 of Part 3) from or relating to the registrable offender-- · copies of any documents; and · any fingerprints or fingerscans; and · any photograph. At the end of the reporting period, the Chief Commissioner of Police must cause them to be destroyed. Clause 31 provides for reporting by remote offenders. Sub-clause (1) applies the clause to a registrable offender who resides more than the prescribed distance from the nearest police station. Sub-clause (2) provides that a registrable offender need not comply with a time limit concerning the making of a report in person under Part 3 if-- 13

 


 

· he or she, or a person entitled to make the report on his or her behalf, contacts the Chief Commissioner of Police before the time limit expires; and · the Chief Commissioner of Police agrees to allow the Victorian Legislation Parliamentary Documents report to be made at a specific time and place thereafter; and · before the expiration of the time limit, he or she provides the Chief Commissioner of Police, by telephone or other means, with the required information. Sub-clause (3) provides that the Chief Commissioner of Police must ensure that there is a method of recording all agreements made under this clause. Division 4--Suspension and Extension of Reporting Obligations Clause 32 provides for the suspension and extension of reporting obligations. Sub-clause (1) provides that any obligation imposed on a registrable offender by Part 3 is suspended for any period during which he or she is-- · in government custody; or · outside Victoria, unless he or she is a person to whom Division 9 (protected witnesses) or clause 19 (change of travel plans) applies; or · the subject of an order under Division 6 (exemption from reporting obligations) or equivalent order in a foreign jurisdiction. Sub-clause (2) provides that the period for which a registrable offender's reporting obligations continue is extended by any length of time for which those obligations are suspended because he or she is in government custody. Division 5--Reporting Period Clause 33 provides that a registrable offender's reporting obligations in respect of a registrable offence begin when-- · the registrable offender is sentenced for the offence; or 14

 


 

· the registrable offender ceases to be in government custody in relation to the offence-- whichever is the later. Victorian Legislation Parliamentary Documents Clause 34 sets out the length of the reporting period. Sub-clause (1) provides that a registrable offender must continue to comply with the reporting obligations imposed by Part 3 for-- · 8 years if he or she has only ever been found guilty of a single Class 2 offence; or · 15 years if only ever found guilty of a single Class 1 offence or more than a single registrable offence, but not subject to a reporting period for the remainder of the person's life. A reporting period for life applies if a person is a registrable offender in respect of-- · a Class 1 offence and he or she subsequently commits and is found guilty of another registrable offence; or · a Class 2 offence and he or she subsequently commits and is found guilty of a Class 1 offence; or · a Class 2 offence and he or she subsequently commits and is found guilty of another Class 2 offence, and has been found guilty of 3 or more Class 2 offences. Sub-clause (2) provides that a reference in sub-clause (1) to an offence, extends to an offence committed before the commencement of that sub-clause. Sub-clause (3) provides that for the purposes of this clause, 2 or more offences arising from the same incident are to be treated as a single offence (the meaning of which is qualified in clause 5(1)) and 2 or more offences arising from the same incident are to be treated as a single Class 1 offence if at least one of those offences is a Class 1 offence. Clause 35 sets out a reduced period for juvenile registrable offenders. Sub-clause (1) provides that the reporting periods specified in clause 34 do not apply to a person who was a child at the time at which he or she committed each registrable offence. Sub-clause (2) provides, instead, that a reporting period which is half that of an adult registrable offender shall apply or 7 ½ years for what would otherwise be a reporting period for life. 15

 


 

Clause 36 applies an extended reporting period if the registrable offender is still on parole. Sub-clause (1) applies this clause to a registrable offender who is on parole or is an existing licensee (the meaning of which is Victorian Legislation Parliamentary Documents defined in clause 3) and the reporting period in respect of the offence will end before the expiry of the sentence of imprisonment to which the parole or existing licence relates. Sub-clause (2) provides that the reporting period is extended until the expiry of the term of imprisonment to which the parole or existing licence relates. Clause 37 sets out the reporting obligations in respect of a corresponding registrable offender. Clause 38 sets out the reporting obligations in respect of a New South Wales registrable offender. Division 6--Exemption From Reporting Obligations Clause 39 empowers the Supreme Court to exempt certain registrable offenders. Sub-clause (1) applies this Division to a registrable offender who is required to report for life. Sub-clause (2) provides that, subject to certain conditions (including the expiration of 15 years since last being sentenced or released from government custody in respect of a registrable offence), a registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations. Clause 40 empowers the Supreme Court to make an order for suspension. Sub-clause (1) provides that on the application under clause 39(2) the Supreme Court may make an order suspending the registrable offender's reporting obligations. Sub-clause (2) provides that the Court must not make an order unless it is satisfied that the registrable offender does not pose a risk to the sexual safety of one or more persons or of the community. Sub-clause (3) provides that in deciding whether to make the order, the Court must take into account a number of matters including the seriousness of the registrable offender's registrable offences, the period of time since those offences were committed, the age of the registrable offender and the registrable offender's total criminal record. 16

 


 

Clause 41 provides that the Chief Commissioner of Police is a party to an application under clause 39(2) and may make any submission to the court in respect of an application. Clause 42 provides that the Supreme Court may not award costs in respect Victorian Legislation Parliamentary Documents of proceedings under this Division. Clause 43 provides that a registrable offender in respect of whom the Supreme Court has refused to make an order, is not entitled to make a further application to the Court until 5 years have elapsed from the date of the refusal (unless otherwise ordered by the Court at the time). Clause 44 sets out when an order made under this Division ceases to have effect and the circumstances in which it is revived. Sub-clause (1) provides that an order made under this Division ceases to have effect if the registrable offender-- · is made subject to a sex offender registration order; or · is found guilty of a registrable offence; or · becomes a corresponding registrable offender required to report. Sub-clause (2) sets out when an order which otherwise ceased to have effect in accordance with sub-clause (1) is revived. Clause 45 sets out when a registrable offender may apply for a new order exempting him or her from a lifetime reporting obligation in circumstances where a previous exemption order has ceased to have effect. Division 7--Offences Clause 46 provides that it is an offence for a registrable offender to fail to comply with his or her reporting obligations without a reasonable excuse. Sub-clause (1) provides a maximum penalty of 240 penalty units or imprisonment for 2 years for a registrable offender who, without reasonable excuse, fails to comply with his or her reporting obligations. Sub-clause (2) provides those matters to which a court is to have regard in determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations. 17

 


 

Sub-clause (3) provides that it is a defence to proceedings for an offence for failing to comply with a reporting obligation if it is established that the person had not received notice and was otherwise unaware of the obligation. Victorian Legislation Parliamentary Documents Clause 47 provides that it is an offence punishable by a maximum penalty of 240 penalty units or imprisonment for 2 years for a person in purported compliance with Part 3 to furnish information that the person knows to be false or misleading in a material particular. Clause 48 provides that a prosecution for an offence under the Bill may be commenced at any time. Clause 49 provides that a registrable offender is not to be prosecuted for a failure to report his or her intended absence from Victoria as required by clause 18, if such person is found guilty of failing to report his or her presence in a foreign jurisdiction. Division 8--Notification of Reporting Obligations Clause 50 provides when and by whom a written notice is to be given to a registrable offender setting out his or her reporting obligations and the consequences which may arise for failure to comply with those obligations. Clause 51 provides that upon certain orders being made or sentences imposed, a court must ensure that the details of the order or sentence in respect of a registrable offender must be provided to the Chief Commissioner of Police as soon as practicable. Clause 52 provides that where a registrable offender's reporting period has changed since he or she was last notified, the Chief Commissioner of Police must give or cause to be given written notice to the registrable offender as soon as practicable after the change. Clause 53 provides that in respect of a registrable offender who ceases to be in custody, under supervision or upon the happening of other specified events, the supervising authority must as soon as practicable before or after give written notice of that event to the Chief Commissioner of Police. Clause 54 empowers the Chief Commissioner of Police at any time to give written notice to a registrable offender of his or her reporting obligations and the consequences which may arise for failure to comply with those obligations. 18

 


 

Clause 55 provides that a failure by any person, other than a registrable offender, to comply with any procedural requirement imposed by Part 3 or the regulations does not, of itself, affect a registrable offender's reporting obligations. Victorian Legislation Parliamentary Documents Division 9--Modified Reporting Procedures for Protected Witnesses Clause 56 applies this Division to any registrable offender-- · who is a participant in a Victorian witness protection program (as defined in the Witness Protection Act 1991); · in respect of whom an order has been made declaring him or her to be subject to this Division; · who is receiving protection under a prescribed foreign witness protection law or has the same status as such a person under an order made under a prescribed corresponding Act. Clause 57 provides that it is sufficient compliance with the requirements of this Part if the person to whom this Division applies reports such of the required information as the Chief Commissioner of Police requires at the times and in a manner authorised by the Chief Commissioner of Police. Clause 58 provides that the Chief Commissioner of Police must make an order declaring whether this Division applies to certain persons. Sub-clause (1) provides that the Chief Commissioner of Police must make an order declaring whether a registrable offender who is a participant in a Victorian witness protection program and who ceases to be so under the provisions of the Witness Protection Act 1991 is a person to whom this Division applies. Sub-clause (2) provides that on making such an order, the Chief Commissioner of Police must take reasonable steps to notify the registrable offender of the terms of the order. Sub-clause (3) provides that a person who receives such a notification may, within 28 days, apply to the Chief Commissioner of Police for a review of the order. 19

 


 

Sub-clause (4) provides that on receiving an application for a review, the Chief Commissioner of Police must-- · review the order and confirm or reverse it; and · before making a decision, give the applicant a Victorian Legislation Parliamentary Documents reasonable opportunity to state his or her case; and · give written notice of the decision to the applicant. Sub-clause (5) provides that if the decision of the Chief Commissioner of Police is to confirm the order, the notice of the decision must inform the applicant of his or her rights under clause 59. Clause 59 sets out the rights of a person aggrieved by a decision of the Chief Commissioner of Police. Sub-clause (1) provides that a person aggrieved by a decision of the Chief Commissioner of Police in relation to an order under this Division may appeal to the Police Ombudsman against the decision within 3 days after receiving notice of the decision. Sub-clause (2) provides that the Police Ombudsman may make any decision which could have been made by the Chief Commissioner of Police. Clause 60 sets out when a declaratory order made by the Chief Commissioner of Police under this Division takes effect. Clause 61 modifies for the purposes of this Division references to Victoria in certain specified provisions. PART 4--THE SEX OFFENDER REGISTER Clause 62 provides for the establishment of a Register of Sex Offenders. Sub-clause (1) provides that the Chief Commissioner of Police is to establish and maintain the Register. Sub-clause (2) provides the information to be contained in the Register. Clause 63 sets out who may access and disclose information held in the Register. Sub-clause (1) provides that the Chief Commissioner of Police must ensure that-- · the Register is only accessed by those whom he or she authorises; and 20

 


 

· personal information in the Register is only disclosed for law enforcement functions or activities and then only to a government department or public statutory authority or as otherwise required by or under any Act or law. Victorian Legislation Parliamentary Documents Sub-clause (2) provides that the Chief Commissioner of Police must develop guidelines in relation to accessing and disclosure of personal information in the Register and, in so doing, attempt to ensure that access to personal information in the Register is restricted to the greatest extent possible without interfering with the purpose of the Bill. Sub-clause (3) provides that for the purposes of this clause, the Register includes any information from any register maintained under a corresponding Act which is accessible by the Chief Commissioner of Police. Clause 64 provides that it is an offence, punishable by a maximum penalty of 240 penalty units or imprisonment for 2 years, for a person with authorised access to the Register to disclose personal information in the Register except as provided. Clause 65 provides that the Chief Commissioner of Police must ensure that personal information in the Register about a person to whom Division 9 of Part 3 applies cannot be accessed other than by persons authorised by a police member of an approved authority within the meaning of the Witness Protection Act 1991. Clause 66 sets out the rights of a registrable offender in relation to the Register. Sub-clause (1) provides that, if so asked by a registrable offender, the Chief Commissioner of Police must provide him or her with a copy of all reportable information which is held in the Register and which relates to that person. Sub-clause (2) provides that the Chief Commissioner of Police must provide a copy of the registrable offender's reportable information as soon as practicable after being requested to do so. Sub-clause (3) provides that a registrable offender may ask the Chief Commissioner of Police to amend any reportable information (defined in sub-clause (5) held in the Register and which (in relation to the registrable offender) is incorrect. Sub-clause (4) provides that on being satisfied that the information is incorrect, the Chief Commissioner of Police must comply with such request. 21

 


 

PART 5--REGISTERED SEX OFFENDERS PROHIBITED FROM CHILD-RELATED EMPLOYMENT Clause 67 defines certain words and expressions for the purposes of this Part, including "child-related employment", "employment" and Victorian Legislation Parliamentary Documents "registered sex offender". Clause 68 provides that a registered sex offender is to be excluded from child-related employment. Sub-clause (1) provides that it is an offence punishable by a maximum penalty of 120 penalty units or imprisonment for 12 months for a registered sex offender to apply for or engage in child-related employment. Sub-clause (2) provides that in a proceeding for an offence against sub-clause (1), it is a defence to the charge for the accused to prove that he or she did not know that the employment was child-related employment. Clause 69 sets out a number of offences in respect of a person who fails to disclose the fact that he or she has been charged with a registrable offence. Sub-clause (1) provides that it is an offence punishable by a maximum penalty of 60 penalty units for a person engaged in child-related employment not to disclose to his or her employer within the period specified, the fact that he or she has been charged with a registrable offence. Sub-clause (2) provides that it is an offence punishable by a maximum penalty of 60 penalty units for a person applying for child-related employment not to disclose to his or her prospective employer a pending charge for a registrable offence. Sub-clause (3) provides that it is an offence punishable by a maximum penalty of 60 penalty units for a person who has applied for child-related employment and whose application is current, not to disclose to his or her prospective employer within the period specified, the fact that he or her has been charged with a registrable offence. Clause 70 provides that it is an offence punishable by a maximum penalty of 60 penalty units for a person to give another person any information acquired under clause 69. The clause further provides a number of exceptions, including the giving of such information to a court or tribunal in the course of legal proceedings or to enable the investigation or the enforcement of a law. 22

 


 

PART 6--OTHER MATTERS Clause 71 provides for the exclusion of liability under the Bill in respect of certain persons. Sub-clause (1) provides that an act or omission by a person in Victorian Legislation Parliamentary Documents good faith in the administration or execution of the Bill does not subject the person personally to any action, liability, claim or demand. Sub-clause (2) provides that section 86J of the Police Regulation Act 1958 (which deals with the protection of the Police Ombudsman and officers of the Police Ombudsman), extends to any act purporting to be done by the Police Ombudsman or officers of the Police Ombudsman in pursuance of the Police Ombudsman's functions under Part 4 of this Bill. Clause 72 in defining the meaning of a "spent conviction", further provides that the fact that an offence in respect of which a registrable offender has been found guilty becomes spent, does not affect either the status of the offence as a registrable offence for the purposes of the Bill or the reporting obligations of the registrable offender. Clause 73 provides that in proceedings under this Bill, a certificate signed by the Chief Commissioner of Police or by a police member authorised in writing by the Chief Commissioner of Police and certifying that the Register contains certain information or that a person failed to notify information is, absent proof to the contrary, evidence of the details specified in the certificate. Clause 74 provides that it is the intention of the Bill to alter or vary section 85 of the Constitution Act 1975. Clause 75 provides that the Governor in Council may make regulations with respect to the matters referred to therein. PART 7--AMENDMENT OF OTHER ACTS Clause 76 provides for an amendment to the Ombudsman Act 1973 to include that the Police Ombudsman is to also monitor compliance with Part 4 of the Bill by the Chief Commissioner of Police and other persons authorised to access the Register. Clause 77 provides for an amendment to the Ombudsman Act 1973 to include a new Division requiring the Chief Commissioner of Police and other authorised persons to give the Police Ombudsman any assistance that the Police Ombudsman reasonably requires to enable the Police Ombudsman to exercise 23

 


 

the functions required by Part 4 of this Bill. This clause also provides for a further amendment to the Ombudsman Act 1973 authorising the Police Ombudsman to enter at any time premises occupied by the police at which the Police Ombudsman reasonably believes are documents relevant to the Register of Sex Victorian Legislation Parliamentary Documents Offenders and to inspect or copy documents so found. Clause 78 provides for an amendment to the Ombudsman Act 1973 empowering the Police Ombudsman to give the responsible Minister a written report on the results of inspections undertaken and compliance by the Chief Commissioner of Police and other authorised persons with Part 4 of this Bill. This clause also provides that, if requested by the responsible Minister, the Police Ombudsman must give to him or her a report on the results of any inspections carried out and of the compliance by the Chief Commissioner of Police and other authorised persons with Part 4 as soon as practicable after receiving the request. Clause 79 provides for a consequential amendment to the definition of "sentence" in Division 1 of Part VI of the Crimes Act 1958. SCHEDULES Schedule 1 lists Class 1 offences. Schedule 2 lists Class 2 offences. Schedule 3 lists Class 3 offences. Schedule 4 lists Class 4 offences. 24

 


 

 


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