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2015
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
CRIMES (CHILD SEX OFFENDERS)
AMENDMENT BILL 2015
EXPLANATORY STATEMENT
Presented by
Simon Corbell
MLA
Attorney-General
Crimes (Child Sex Offenders) Amendment Bill
2015
Outline
The Crimes (Child Sex Offenders) Amendment Bill 2015 (the Bill) amends
the Crimes (Child Sex Offenders) Act 2005 (the CSO Act) and the Crimes
(Child Sex Offenders) Regulation 2005 (the CSO Regulation) and makes a
number of consequential amendments to ACT legislation.
The purpose of the
CSO Act is to reduce the likelihood of convicted child sex offenders
re-offending, and to facilitate the investigation and prosecution of future
offences that they may commit by requiring them to keep police informed of their
whereabouts and other personal details for a period of time. The purpose is also
to prevent registrable child sex offenders from working in child related
employment and prohibit registrable offenders from engaging in conduct that
poses a risk to the lives or sexual safety of children.
To achieve this,
chapter 4 of the CSO Act establishes the Child Sex Offenders Register (the
Register) that requires certain offenders who are, or have been, sentenced for
registrable offences to report specified details to police for inclusion in the
Register. These offenders must then report to police annually. If there is a
change in an offender’s personal details, these changes must also be
reported to police. The Register is established and maintained by the Chief
Police Officer (CPO).
Chapter 4 of the CSO Act also regulates who can
access the Register and for what purpose the information contained on the
Register can be disclosed. Section 118 of the CSO Act provides that the personal
information in the Register can only be accessed by a person authorised by the
CPO or under a regulation, for law enforcement functions or activities, and can
only be provided to an entity prescribed by regulation.
The amendments
contained in the Bill fall into six broad categories – amendments to
introduce entry and search powers (including access to encrypted information on
an electronic device) in relation to registrable offenders; amendments to
provide a power for the CPO to apply for the registration of a certain previous
offender; amendments to provide a power for the CPO to apply to remove an
offender from the Register in limited circumstances; amendments to allow a young
offender to apply to a sentencing court to not be registered; amendments to
provide powers for the CPO to issue public notices about registrable offenders
in limited circumstances; and ‘general amendments’ to streamline
administration of the Register. The Bill makes amendments to address issues
raised by ACT Policing relating to the operation of the Register, the ACT
experience of child sex offending issues, and matters arising from national
discussions about the best way to effectively monitor of child sex offenders,
including:
• the introduction of police powers of entry and search based on a specialised warrant application, to verify personal details reported by a registrable child sex offender or their compliance with a prohibition order;
• the introduction of powers allowing police to request a registrable offender’s details relating to encrypted information (including passwords and other access details) under an entry and search warrant;
• new offences punishable by five years imprisonment and/or 500 penalty units where an offender does not comply with entry and search warrant conditions;
• providing a power for the CPO to apply to a court for the registration of certain previous offender;
• introducing a power for the CPO, in limited circumstances, to issue a public notice with the name, description and photograph of a registrable offender;
• amending section 37 of the CSO Act (Offence—offender must report annually) to:
o change the fault element for failing to report; and
o allow reporting of changes in personal details rather than reporting of each individual personal detail;
• allowing, in limited circumstances:
o the CPO to apply to the court to remove a registrable offender from the register; and
o a young offender to apply to a sentencing court to not be registered;
• amending section 59(1)(h) of the CSO Act to require the reporting of modifications to a vehicle owned or driven by a registrable offender and removing s 9 of the CSO Regulation for clarity;
• clarifying that reporting requirements include a requirement to report that certain activities, such as employment, have ceased;
• introducing provisions to provide that a police officer may order that photographs be taken of a registrable offender in certain circumstances;
• a new offence punishable by five years imprisonment and/or 500 penalty units where an offender does not comply with a police order to be photographed;
• amending section 17 of the CSO Regulation to prescribe relevant documents for the purpose of verifying or supporting details provided during a report;
• amending sections 7 and 8 of the CSO Regulation to reflect updated reporting requirements;
• prescribing an approved way of reporting for the purposes of section 64 of the CSO Act; and
• amending other legislation to ensure that all references to
‘child pornography’ read ‘child exploitation material.
These proposals were subject to consultation with a broad range of stakeholders, including via public submissions, private briefings with key stakeholders, discussions with subject matter experts, and ongoing discussions with ACT Policing and the Human Rights Commission about operational and human rights issues.
Purpose of the Bill
Background
The primary rationale for the introduction of the amendments in this Bill is to enhance ACT Policing’s ability to protect the lives and sexual safety of children in the ACT.
As outlined in the Explanatory Statement to the Crimes (Child Sex Offenders) Amendment Act 2012, this rationale aligns with the Convention on the Rights of the Child (CROC) which was adopted by the United Nations General Assembly in November 1989 and ratified by Australia in December 1990. Two articles in the CROC are directly relevant to the purposes of the CSO Act - article 3 states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration, and article 34 states that parties shall undertake to protect children from all forms of sexual exploitation and sexual abuse. The proposed amendments support these articles as they support the overarching objective of protecting the lives and sexual safety of children in the ACT.
The amendments in this Bill build on the commitment outlined in the 2012 amendments to supporting the ‘doctrine of positive obligations’ which has been discussed in European human rights jurisprudence and defined as the responsibility of governments to undertake measures to protect their citizens. This encompasses the notion that governments not only have the responsibility to ensure that human rights are free from violation, but that governments are required to provide for the full enjoyment of rights.[1] This doctrine has been interpreted as requiring states to put in place legislative and administrative frameworks designed to deter conduct that infringes human rights and to undertake operational measures to protect an individual who is at risk of suffering treatment that would infringe their rights.[2]
In the context of the proposed amendments, these positive obligations apply to children and their families in the ACT, to the broader community, to registrable child sex offenders and to members of ACT Policing who monitor and enforce the obligations under the CSO Act and the registration scheme. The amendments protect the rights and interests of these groups within the Territory’s human rights scheme.
The purpose of this Bill is to address a number of matters raised during national and international discussions and issues raised by ACT Policing relating to child sex offender laws in the ACT, with a specific focus on the operation and administration of the Register.
For example, the efficacy of the available tools to monitor sex offenders has recently been the subject of ongoing national discussion. At the Law, Crime and Community Safety Council meeting of 3 October 2014 Ministers agreed not to support a proposal to publish a national public register including the personal details of all convicted sex offenders.
This is because available empirical evidence demonstrates that public registers are largely ineffective to prevent child sex offences and other sex offences. Megan’s Law, an amendment to a series of laws passed in the United States, was introduced to initiate compulsory “community notification” by providing public access to information about convicted sex offenders. While the laws aim to improve community safety by increasing community awareness of sex offenders considered to be at risk of reoffending, Megan’s Law has not had any demonstrable effect in reducing sexual re-offending, the type of sexual re-offence or first time sexual offence, and has not reduced the number of victims involved in sexual offences.[3]
In addition, since the CSO Act was notified on 29 June 2005, ACT Policing and their counterparts in other Australian jurisdictions have had the opportunity to assess the effectiveness of their registration schemes in the context of work on the Australian National Child Offender Register, and with the benefit of information about operational experience in their local contexts. This has resulted in some jurisdictions making amendments to their child sex offender laws to address monitoring and reporting issues unique to them.
These conversations have provided ACT Policing with the opportunity to assess the effectiveness of the ACT legislative scheme and identify potential amendments that would support their efforts to ensure and maintain the safety of children in the ACT. They have also offered policy makers and legislators in the ACT crucial information and tools about how best to ensure that the purposes of the CSO Act are being met.
The last substantive amendments to the CSO Act were made in 2012 by the Crimes (Child Sex Offenders) Amendment Act 2012 (the 2012 Act). These amendments introduced a new prohibition order scheme into chapter 5A of the CSO Act which provides a power to prohibit some registrable offenders, in certain circumstances, from engaging in certain conduct for a period of time. The 2012 Act also made a number of ‘general amendments’, including inserting offence provisions relating to reporting requirements and contravention of conditions.
Previously, amendments to ACT’s child sex offender laws have ensured consistency with the schemes across all Australian jurisdictions. Although the reforms outlined in this Bill are tailored to the ACT experience of child sex offence issues, they will not affect the overall integrity of the national scheme in relation to child sex offender laws. This approach recognises that although it is important that public policy initiatives to prevent or respond to child sexual abuse (or both) are based on the available evidence about child sex offenders, the profiles that characterise this cohort of offenders are varied and non-homogenous.[4] It also recognises that child sex offender registration is one aspect of monitoring and law enforcement and that there are a broad range of child protection measures that can be adopted by governments.
A picture of child sex offending
Sexual offending against children is a complex issue that needs to be explored in greater detail, but there is evidence to suggest that both predation and opportunity play a role in child sexual offences.[5] For example, research indicates that opportunity (situational and environmental factors) can play a key role in the commission of sexual offences against children. One study of child sex offenders found that there was a low incidence (less than one-quarter) of chronic sexual offending, a low incidence of stranger abuse (94 per cent abused their own child or a child who they already knew), and a low incidence (approximately 10 per cent) of child pornography use.[6]
It is also well documented in international and Australian studies that most
child sex offenders are known to their victims. The Australian Bureau of
Statistics’ (2005) Personal Safety Survey indicated that of those
who reported having been victimised sexually before the age of 15 years, 11.1
per cent were victimised by a
stranger.[7] More commonly, child
sexual offences were committed by a relative (primarily male), a family friend,
an acquaintance or neighbour, or another known person. However, it should be
noted that male children are abused by strangers at a much higher rate than
female children (18.3 per cent for males, 8.6 per cent for
females).[8]
The incidence and
prevalence of child sexual abuse are difficult to quantify as the offences are
often underreported and difficult to
investigate.[9] The rate of recidivism
of offenders is also difficult to measure and researchers use different
definitions and methodologies to determine the rates they calculate, which are
not necessarily comparable (rates of re-conviction, or re-arrest, or
self-reported re-offending can be
used).[10] Problems are caused by
the period of time over which recidivism is measured, and that the definition of
child sex offender in the studies includes a diverse range of offenders with
diverse
motivations.[11]
Despite
these difficulties, criminological literature indicates that child sex offenders
have low rates of recidivism compared with other types of
offenders.[12] Studies have shown
that most serious violent and sexual criminals do not have previous convictions
for violent or sexual offences and are not reconvicted for violent and sexual
offending.[13]
Further, the diverse range of offenders and varied motivations also impact on the study results, which show that some subgroups of child sex offenders also have higher rates of recidivism than others. For example, for those who target male victims outside of their family, reoffending in the long term is far more likely than for child sex offenders who target female and/or family member victims.[14]
However, the public and media often present child sex offenders as
recidivists who will almost certainly reoffend. The research shows that the
community overestimates the actual rate of recidivism for child sex offenders
and indicates that generally child sex offenders are in fact less likely to
reoffend than many other types of
offenders.[15]
The research
suggests ‘...legislative responses to the risk that a sex offender will
re-offend should be responsive to different levels of risk and not be based on
the common assumption that recidivism is inevitable in all
cases’.[16] Research also
shows that ‘registration does reduce sexual offending by registered sex
offenders against people who are close to them, but not
strangers’.[17]
In an
overwhelming majority of cases, victims of child sexual abuse are either family
members or are known to their offender. As most sex offending against children
occurs in families, the research also indicates that community notification laws
fail to impact significantly on the problem of child abuse. The research
indicates that community notification laws may prevent victims from reporting
abuse, can have prejudicial impacts on criminal trials and can place burdens on
courts by reducing guilty pleas.
Purpose of the
amendments
The amendments in this Bill have been developed based on
experiences of monitoring offenders and administering the Register in the ACT,
and with reference to the information outlined above about the nature and
prevalence of child sex offending.
As previously mentioned, the
amendments contained in the Bill fall into six broad categories –
amendments to:
• introduce entry and search powers (including access to
encrypted information on an electronic device) in relation to registrable
offenders;
• provide a power for the CPO to apply for the registration
of a certain previous offender;
• provide a power for the CPO to apply
to remove an offender from the Register in limited circumstances,
• allow a young offender to apply to a sentencing court to not be
registered;
• provide powers for the CPO to issue public notices in
limited circumstances; and
• make ‘general amendments’ to
streamline administration of the Register.
The purpose of the amendments
to introduce entry and search powers (including access to encrypted information
on an electronic device) in relation to registrable offenders is to ensure that
ACT Policing can verify the personal details reported by registrable child sex
offenders, and confirm compliance with prohibition order conditions where
applicable. This practical amendment will enhance ACT Policing’s ability
to monitor registrable offenders and provide a further significant protection
for the lives and sexual safety of children in the ACT. These amendments support
the purpose at section 6 (1) (a) (i) and (ii) to reduce the likelihood of
reoffending and facilitate the investigation and prosecution of future offences
that registrable offenders may commit. The amendments also support the purpose
of prohibiting registrable offenders from engaging in conduct that poses a risk
to the lives or sexual safety of children (CSO Act s 6 (1) (c)).
The purpose of the amendment to provide a power for the CPO to apply for the registration of a certain previous offender is to allow ACT Policing to address the situation where a person has convictions for child sex offences prior to the establishment of the register in the ACT, and there is strong evidence that the person continues to pose a broad risk to children. Where there is not enough intelligence to make a further conviction that could lead to the person becoming a registrable offender ACT Policing currently has no ability to monitor the person. The introduction of this power will support the purpose of reducing the likelihood that the person will reoffend and prohibiting conduct that poses a risk to the lives or sexual safety of children (CSO Act s 6 (1) (a) (ii) and (c)).
The amendment providing the power for the CPO to apply to remove an offender from the Register in limited circumstances will support the purposes outlined in section 6 of the CSO Act by ensuring that those offenders who are assessed as no longer likely to reoffend or engage in conduct that poses a risk to the lives or sexual safety of children are no longer required to report. As a result, ACT Policing will better use existing resources to monitor those registrable offenders who continue to present a risk to the community. Similarly, the purpose of the amendments to allow a young offender to apply to a sentencing court to not be registered is to ensure that registration is consistent with the intent of the legislative scheme, and is sensible and consistent with rights. When sentencing a young offender for an offence that deems them a registrable offender, the circumstances of the offending often indicate that an ongoing risk is non-existent. This purpose of this provision is to recognise that registration may not be appropriate in all circumstances.
The purpose of the amendment to provide the CPO with a power to issue public notices with the name, photograph and a description of a registrable offender in limited circumstances is to ensure that registrable offenders who are avoiding their reporting obligations and pose a threat to the community are quickly located. This will enhance ACT Policing’s ability to monitor registrable offenders and ensure that the safety of children and the community is maintained. This amendment will support the purposes of reducing the likelihood of a registrable offender reoffending and facilitating the investigation and prosecution of any future offences that the registrable offender may commit.
The primary purpose of the general amendments is to provide ACT Policing with modern tools to monitor registrable child sex offenders and to ensure the safety of children and the community. The general amendments will also ensure that the CSO Act distinguishes the nature of monitoring and administration activities in the ACT where appropriate and provide ACT Policing with administrative efficiencies where possible.
Human rights considerations –
overview
The amendments made in this Bill have been carefully considered in the
context of the purposes of the CSO Act. Specific attention was given to the
overarching objective of protecting the lives and sexual safety of children in
the ACT, and also to balancing the rights and interests of children, the
community and offenders within the Territory’s human rights scheme.
The
purposes of the CSO Act are described at section 6 of the Act. The purposes are
to:
• reduce the likelihood that certain offenders who commit sexual offences against children will reoffend;
• facilitate the investigation and prosecution of future offences that these offenders may commit;
• prevent registrable offenders from working in child related employment; and
• prohibit registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.
In order to achieve these purposes the Bill engages a number of the
rights in the ACT’s Human Rights Act 2004 (the HR Act). The
amendments outlined in the Bill provide a good example of the importance of
balancing the human rights of a person affected by changes in the law against
the rights and interests of the community to protect children from sexual
assault and violence.
This Bill engages, and places limitations on, the
following HR Act rights:
• section 8 - Recognition and equality before the law;
• section 11- Protection of family and children;
• section 12- Privacy and reputation;
• section 13- Freedom of movement;
• section 15- Peaceful assembly and freedom of association;
• section 16- Freedom of expression;
• section 18- Right to liberty and security of person;
• section 21- Fair trial;
• section 22- Rights in criminal process; and
• section 25- Retrospective criminal laws.
The Bill also
engages, and supports, the following HR Act rights:
• section 11- Protection of family and children;
• section 12- Privacy and reputation;
• section 18- Right to liberty and security of person; and
• section 21- Fair trial.
Any engagement with these rights needs
to be carefully considered with section 28 of the HR Act in mind to determine
whether the engagement is proportionate and can be demonstrably justified in a
free and democratic society, and the least restrictive means available to
achieve the purposes of protecting the human rights of children and young people
and their families.
As noted in the background section of this
explanatory statement, the amendments in the Bill have also been developed in
line with the ‘doctrine of positive obligations’ which encompasses
the notion that governments not only have the responsibility to ensure that
human rights are free from violation, but that governments are required to
provide for the full enjoyment of
rights.[18] Consideration of this
responsibility supports the positive protection of the right of children,
families, and the community to enjoy their human rights and supports the right
to the protection of family and children and the right to liberty and security
of person (HR Act, ss 11 and 18).
Limitations on human rights -
section 28 (2) of the HR Act
The preamble to the HR Act notes that
although human rights are necessary for individuals to live lives of dignity and
value, few rights are absolute. However, they may be subject only to the
reasonable limits in law that can be demonstrably justified in a free and
democratic society.
Section 28 (2) of the HR Act provides the framework
that is used to determine the acceptable limitations that may be placed on human
rights in the Territory. Section 28 requires that any limitation on a
fundamental right must be authorised by a Territory law, be based on evidence,
and be reasonable to achieve a legitimate aim. Whether a limitation is
reasonable depends on whether it is proportionate. Proportionality requires that
a limitation is necessary and rationally connected to the objective; the least
restrictive in order to accomplish the object; and not have a disproportionately
severe effect on the person to whom it
applies.[19]
The Government acknowledges that the amendments in the Bill engage
and limit the human rights of a section of the ACT community - namely
registrable offenders. However, the Government believes that limitations are
proportionate and justified in the circumstances because limits are the least
restrictive means available to achieve the purpose and to protect the human
rights of others – children and young people and their families. This view
is based on the section 28 (2) analysis on the limitations for each human right
that the Bill engages in the detail stage below.
Although greater
analysis on the engagement of each human right is provided under the specific
provisions, a number of the amendments in the Bill engage the section 8 right to
recognition and equality before the law, section 12 right to privacy and
reputation, section 18 right to liberty and security of the person, and section
22(2)(i) right to not self-incriminate. This warrants a general discussion of
these rights.
Section 8- Recognition and equality before the
law
Section 8 of the HR Act provides:
(1) Everyone has the right to
recognition as a person before the law.
(2) Everyone has the right to enjoy
his or her human rights without distinction or discrimination of any
kind.
(3) Everyone is equal before the law and is entitled to the equal
protection of the law without discrimination. In particular, everyone has the
right to equal and effective protection against discrimination on any
ground.
The nature of the right affected (s 28 (2)
(a))
The entry and search warrant provisions, amendments introducing
the power to apply to register a certain previous offender and to issue a public
notice, amendments to the fault element for failing to report annually, and the
amendment to provide a power for a police officer to photograph an offender
engage section 8 of the HR Act because they only apply to a particular category
of people. The limitations imposed by these provisions apply only to registrable
offenders and certain previous offenders, and therefore limit the right of that
group of people to enjoy their human rights without distinction or
discrimination.
The right to equality and non-discrimination is a
fundamental human right that is essential to the protection and respect of all
human rights. In the context of policy and legislation development, equality
before the law means that public officials and members of the judiciary must not
act in a discriminatory way when enforcing the law. The right to equal
protection of the law prohibits discrimination in law or in practice in any
field regulated by public authorities.
Section
8 of the HR Act is based on article 26 of the International Covenant on Civil
and Political Rights (ICCPR) which provides for the ‘right to equality
before the law’. The Office of the High Commissioner for Human Rights
(UNHRC) has highlighted the importance of this provision in General Comment 18,
stating that ‘non-discrimination, together with equality before the
law...constitute a basic and general principle relating to the protection of
human rights’.[20]
However, the committee also observes that:
‘not every
differentiation of treatment will constitute discrimination, if the criteria for
such discrimination are reasonable and objective and if the aim is to achieve a
purpose which is legitimate under the
Covenant’.[21]
Human rights law recognises that formal equality
can lead to unequal outcomes, and that sometimes to achieve substantive equality
differences in treatment may be necessary. It also recognises that not every
difference of treatment amounts to discrimination. Provided the distinction is
reasonable and objective, and is designed to achieve a legitimate purpose, it
will not infringe section 8.[22]
In addition, while section 7 (1) (o) of the Discrimination Act 1991
prohibits discrimination on the ground of a spent conviction, section 8 (2)
provides that a person does not discriminate if the condition or requirement
imposed on a person is reasonable in the circumstances.
The
importance of the purpose of the limitation (s 28 (2) (b))
Please
refer to the purpose section (p 3-5) for a detailed discussion on the broad
purposes of this Bill. As discussed above, the limitations on the section 8
rights are important for the protection of children and minimising the incidence
of reoffending by registrable offenders.
Nature and extent of the
limitation (s 28 (2) (c))
The entry and search warrant provisions
only apply to registrable offenders where they obstruct the verification of
reporting details or compliance checking relating to prohibition orders in
chapter 5A of the CSO Act. Similarly, the amendments introducing the power to
apply to register a certain previous offender will only be available where the
CPO believes on reasonable grounds that the person is a previous offender and
poses a risk to the lives or sexual safety of 1 or more people or of the
community. Accordingly, the limitation by these amendments on the section 8
right is restricted.
The amendments providing the power to issue a
public notice, to change the fault element for failing to report annually, and
to provide a power for a police officer to photograph a registrable offender,
will enhance existing powers in the CSO Act and therefore will apply to all
registrable offenders.
Relationship between the limitation and its
purpose (s 28 (2) (d))
The purpose of the amendments is to enhance
ACT Policing’s abilities to protect the lives and sexual safety of
children.
The entry and search warrant provisions will allow ACT Policing
to monitor compliance with reporting obligations and protect children in
circumstances where the registrable offender may have engaged in concerning
conduct.
The amendment to introduce a power for the CPO to apply to
register a certain previous offender will allow ACT Policing to reduce the
likelihood of reoffending where there is strong evidence that the person
continues to pose a broad risk to children and should be subject to reporting
obligations and ongoing monitoring.
The introduction of the power for the
CPO to issue public notices in limited circumstances will ensure that ACT
Policing can effectively monitor registrable offender activities and ensure that
a registrable offender who is not meeting their reporting obligations is
located, maintaining the safety of children and the community. Similarly, the
amendments to change the fault element for failing to report annually, and to
provide a power for a police officer to photograph a registrable offender,
augment existing monitoring powers in the CSO Act and increase ACT
Policing’s ability to protect the lives and sexual safety of children in
the Territory.
Any less restrictive means reasonably available to
achieve the purpose
(s 28 (2) (e))
The ACT
Government has concluded that, in balancing the respective rights of children
and their families and registrable offenders, these amendments do not
unreasonably or unnecessarily infringe on the human rights of convicted child
sex offenders. This is because the ACT’s children are entitled to the
protection needed by the child because of being a child, without distinction or
discrimination,[23] and because
there is a rational connection between the proposed amendments and the issues
that they aim to combat.
Without these amendments, police are limited in
the steps they can take with respect to verifying the personal details that have
been reported by a registrable offender and compliance with any active
prohibition order. Currently, where a registrable offender refuses access to
premises for the purposes of confirming compliance with these obligations, their
conduct does not attract a significant criminal sanction and may not provide
sufficient evidence to apply for a search warrant under section 194 of the
Crimes Act 1900. Accordingly, police are limited in their powers to
respond to the concerning conduct of registrable child sex offenders in these
circumstances.
Additionally, without the amendments to introduce a power
to apply to register a certain previous offender, to issue a public notice, to
change the fault element for failing to report annually, and to provide police
with the power to photograph a registrable offender, there are restrictions on
the steps that ACT Policing can take to monitor registrable offenders and reduce
the likelihood of any reoffending. For example, due to the privacy limitations
on releasing offender details, if a registrable offender fails to report and
cannot be located, ACT Policing cannot seek community assistance to locate the
person. This poses a risk to the lives and sexual safety of children and
restricts ACT Policing’s monitoring and protection capabilities.
There are no less restrictive means available to achieve increased
protection for children in these circumstances. The introduction of the entry
and search warrant provisions is the least restrictive measure available as it
will only apply to certain registrable offenders and only in certain
circumstances where there is a risk of non-compliance. The entry and search
warrant will be limited in application and will restrict the search to a manner
which is the least intrusive necessary in order to fulfil the purpose of the
warrant. Further, the application of derivative use immunity ensures that the
limitation is appropriately restricted, and the ultimate decision lies with the
Magistrates Court about whether the warrant is required or whether a different
course of action should be taken to check compliance.
The remaining
amendments will ensure that ACT Policing can effectively manage convicted child
sex offenders using the least restrictive measures available to achieve the
purposes of the CSO Act. The amendments engage the right to equality before the
law in a proportionate and appropriate manner, and will allow the child sex
offender register scheme to effectively address the ACT experience of child sex
offence issues.
Section 11- Protection of the family and
children
Section 11 of the HR Act provides that:
(1) The family is the
natural and basic group unit of society and is entitled to be protected by
society.
(2) Every child has the right to the protection needed by the child
because of being a child, without distinction or discrimination of any
kind.
The nature of the right affected (s 28 (2)
(a))
Article 3 (1) of the CROC states that ‘in all actions
concerning children... the best interests of the child shall be a primary
consideration’. General comment 19 from the UNHRC, which describes the
right to the protection of the family at article 23 of the ICCPR, notes that
when read with article 17 (right to privacy), the right to protection of the
family establishes a prohibition on arbitrary or unlawful interference with the
family unit.[24]
In addition,
general comment 17, notes that the rights of the child (at article 24 of the
ICCPR) require states to adopt special measures to protect children, and that
this responsibility for guaranteeing children necessary protection lies with the
family, society and the
state.[25]
The
importance of the purpose of the limitation (section 28 (2) (b))
The
importance of these amendments is discussed in the background section of the
Explanatory Statement.
The inclusion of new division 2.2.3 may limit, in
certain circumstances, the access of previous offenders to their families where
a registration order is made. These amendments will, however, promote the
protection of the family and children by reducing the contact between previous
offenders and children where the previous offender poses an ongoing risk. This
amendment is designed to protect children and their families and
carers.
Nature and extent of the limitation (s 28 (2)
(c))
The section 11 (1) right to the protection of the family unit is
not an absolute right, but has been characterised as a protection against
unlawful or arbitrary interference of the family unit. Arbitrariness does not
necessarily mean against the law, and is interpreted to include elements of
inappropriateness, injustice and lack of
predictability.[26]
The
section 11 (1) right of certain previous offenders to the protection of the
family unit is arguably engaged and limited by the introduction of the power to
make registration orders where the court is satisfied that there is a risk that
in certain circumstances would be reduced by making the order. However, this
amendment also supports the protection of the family unit by providing for the
protection of children within a family unit who have been identified as at risk
as a result of contact with the previous offender.
The section 11 (2)
rights of children to special protections because of their status as children is
supported by this amendment. The ability to make a registration order in
relation to a previous offender in certain circumstances will ensure that the
person is subject to annual and ongoing reporting obligations under the CSO,
which means that unsupervised contact with children and any child-related
employment will be reported to ACT Policing.
Relationship between
the limitation and its purpose (s 28 (2) (d))
The limitations on the
rights of families at section 11 (1) against unlawful or arbitrary interference
are intended to provide greater protection for children from sexual assault and
violence.
The ability of the Magistrates Court to make a registration
order against a previous offender, leading to the requirement to meet reporting
obligations, will ensure that children are provided greater protection by
monitoring those registrable offenders who have been deemed a risk to their
lives or sexual safety from contacting or associating with
them.
Any less restrictive means reasonably available to achieve
the purpose (s 28 (2) (e))
There are no less restrictive means
available to provide added protections for children in the circumstances where a
previous offender was not subject to reporting obligations by virtue of the
commencement date of the CSO Act. It is appropriate (and therefore not
arbitrary) to limit the rights of certain previous offenders from having contact
with children in circumstances where their conduct has been deemed a risk to the
lives or sexual safety of a child or children.
Section 13- Freedom of
movement
Section 13 of the HR Act provides that everyone has the right to
move freely within the ACT, to enter and leave it, and the freedom to choose his
or her residence.
The nature of the right affected (s 28 (2)
(a))
The right to freedom of movement is linked to the right to
liberty – a person's movement across borders should not be unreasonably
limited by the state. It also encompasses freedom from procedural impediments,
such as unreasonable restrictions on accessing public places.
The
obligation requires not only that the state must not prevent people from moving
freely, but also that the state must protect people from others who might
prevent them from moving freely
The right to freedom of movement is not
an absolute right. The right has inherent limitations, which are acknowledged at
subsection (3) of article 12 of the ICCPR (the equivalent right to section 13 of
the HR Act):
‘the rights to liberty and freedom of movement
shall not be subject to any restrictions except those which are provided by law,
are necessary to protect national security, public order, public health or
morals or the rights or freedoms of others and are consistent with the other
rights recognised in the Covenant.’
The importance of the
purpose of the limitation (s 28 (2) (b))
This is discussed above in
the outline section of the Explanatory Statement.
Nature and extent
of the limitation (s 28(2) (c))
The reporting obligations in the CSO
Act affect the freedom of registrable offenders to travel in Australia and
overseas, live anywhere in the community, and associate and communicate with
children. While registrable offenders are not prevented from engaging in these
activities, they must report them to the police. They may be imprisoned for up
to five years if they do not meet their obligations to keep the police informed
of their movements and of some of their associations with children.
New
division 2.2.3 allows the Magistrates Court to make a registration order against
a previous offender where the court is satisfied that the person poses a risk to
the lives or sexual safety of 1 or more people or of the community, and making
the order will reduce the risk. Prior to making the order the court must
consider a number of factors, including the seriousness of the previous
offending and the person’s age.
If the court makes a registration
order under new section 18C the person will become a registrable offender and
will be subject to reporting obligations under the CSO Act, which includes
reporting the address of each of the premises where the offender generally
lives, information about employment, and details relating to travel.
Any
limitations on freedom of movement must pursue legitimate aims, be necessary in
a democratic society to achieve those aims and in the context of child sex
offenders, demonstrate that there is a real risk of
reoffending.[27] The requirement for
the CPO to meet a reasonable belief standard to make an application under this
division mitigates any concerns that a limitation would be arbitrary. The
requirement on the court to consider the matters at new section 18D, and only
make an order if satisfied of the matters outlined in new section 18C, will
ensure that the individual circumstances of a previous offender are considered
in order to determine if a registration order is necessary and appropriate. A
further measure to ensure that this limitation is proportionate and that
consideration is given to the individual circumstances of previous offenders is
at section 18D (2). This section provides the court with the discretion to have
regard to anything else that it considers relevant.
Relationship
between the limitation and its purpose (s 28 (2) (d))
The requirement
for registrable offenders to report their personal details, including details of
travel and employment, is a fundamental aspect of the child sex offender
registration scheme. It allows ACT Policing to monitor registrable offenders in
order to protect and maintain the lives and sexual safety of children in the
Territory and across other Australian jurisdictions, and is thereby rationally
connected to the legitimate legislative aim of protecting children and their
families.
Any less restrictive means reasonably available to
achieve the purpose (s 28 (2) (e))
This amendment is necessary to
give effect to the protective and preventive purposes of the CSO Act, and is
justified as it protects the rights and freedoms of others. This is the least
restrictive option available to address concerns that previous offenders who are
not subject to reporting obligations (and therefore monitoring activities) may
pose an ongoing risk to children and the community.
The limitation on
freedom of movement that may arise from registration is mitigated by the fact
that a registrable offender must report details, but may not be subject to
actual limitations in movement within the ACT and across borders. This provision
has been drafted to ensure that the individual circumstances of previous
offenders are appropriately considered and that an order is only made if the
Magistrates Court is satisfied that it will reduce the risk that the previous
offender is posing to the lives and sexual safety of 1 or more people in the
community.
Section12- Privacy and reputation
Section 12 of the
HR Act provides:
Everyone has the right-
(a) not to have his or her
privacy, family, home or correspondence interfered with unlawfully or
arbitrarily; and
(b) not to have his or her reputation unlawfully
attacked.
The nature of the right affected (s 28 (2)
(a))
The amendments which introduce the entry and search warrant and
access to encrypted information, provide a power to issue a public notice, and
allow for photographs to be taken of registrable offenders, engage section 12 of
the HR Act. This is because the amendments require registrable offenders to
disclose certain personal details, provide police with the power to disclose
certain personal details publicly, and provide police access to the registrable
offender’s home, home environment and potentially family life.
The
right to privacy is a fundamental right that encompasses the idea that
individuals should have a separate area of autonomous development, dignity and
freedom from arbitrary, unreasonable or oppressive government interference.
The right to privacy and reputation is ‘one of the broadest and
most flexible of human
rights’[28] and has been
described as protecting a wide range of personal interests that include physical
or bodily integrity, personal identity and lifestyle (including sexuality and
sexual orientation), reputation, family life, the home and home environment and
correspondence (which encompasses all forms of
communication).[29]
Section
12 of the HR Act gives effect to article 17 of the ICCPR and protects
individuals from unlawful and arbitrary interference with privacy relating to
their family, home or correspondence. An interference that is lawful may still
be arbitrary if it is unreasonable or unjustified in all the circumstances of
the case.
The UNHRC’s General Comment 16 notes:
‘as all persons live in society, the protection of privacy is
necessarily relative. However, the competent public authorities should only be
able to call for such information relating to an individual's private life the
knowledge of which is essential in the interests of
society...’.[30]
Accordingly,
the right to privacy requires that the state does not itself arbitrarily or
capriciously invade a person's privacy in a manner not based on demonstrable
evidence, and adopts legislative and other measures to protect people from
arbitrary interference with their privacy from others.
The right to
privacy needs to be balanced against other rights, particularly the right to
freedom of expression, and it can be limited as long as it can be demonstrated
that the limitation is necessary, reasonable and proportionate.
The
concept of arbitrariness requires that any interference with privacy, even when
provided for by law, should be reasonable in the particular circumstances.
Whether an interference with privacy is permissible will depend on whether a
person has a reasonable expectation of privacy in the circumstances, and
reasonableness implies that any interference with privacy must be proportionate
to the end sought and must be necessary in the circumstances of any given
case.[31]
Therefore, a
person’s right to privacy can be interfered with provided the interference
is both lawful and not arbitrary (reasonable in the circumstances).
The
engagement of the right to privacy is justified in this instance. The common
purpose of the amendments outlined in the Bill is to protect the lives and
sexual safety of children where there may be a risk posed to them by a
registrable offender. This purpose supports the right to liberty and security of
person and the right to protection of family and children at sections 18 and 11
of the HR Act by implementing measures to minimise the risk of harm to children
by registrable offenders.
Certain provisions in the Bill also support the
right to privacy and reputation. For example, new section 9 (1A) supports the
right by allowing a young offender to apply to a sentencing court to not be
registered, and therefore not be subject to reporting obligations.
The importance of the purpose of the limitation (s 28 (2)
(b))
Please refer to the purpose section (pp 3-5) for a detailed
discussion on the broad purposes of this Bill. As discussed above, the
limitations on the section 12 rights are important for the protection of
children and the community, and minimising the incidence of reoffending.
The reporting requirements of the CSO Act are a fundamental aspect of
this monitoring scheme. The scheme depends on registrable offenders providing
information to police, and the verification of this information by
police.
Nature and extent of the limitation (s 28 (2)
(c))
The proposals in this Bill both limit and support the
registrable offender’s right to privacy and reputation. They also support
the rights of victims of child sexual offences committed by the registrable
offender and children who may be at risk if the registrable offender commits
further offences.
The entry and search warrant provisions and the powers
allowing access to encrypted information in certain circumstances, issue a
public notice, and allow for photographs to be taken of registrable offenders,
all engage section 12 of the HR Act. This is because the amendments require
registrable offenders to disclose certain personal details, provide police with
the power to disclose certain personal details publicly, and provide police
access to the registrable offender’s home, home environment and
potentially family life.
The amendments provide a careful balance between
the limitation and the right to privacy. Most of the new powers can only be
initiated after the chief police officer makes an application, supported by
evidence on oath or by affidavit, to a magistrate who must then take all of the
circumstances into consideration before authorising the requested activity. In
order to issue a public notice about a registrable offender the chief police
officer or a deputy police officer must be satisfied of a number of things
including that the offender poses a risk to the lives or sexual safety of one or
more people or the community.
The prevention of crime and the
protection of the rights of others is a legitimate ground for placing
restrictions on the right to
privacy.[32]
The new sections
that require registrable offenders to provide additional personal information to
police are not an arbitrary interference with a person’s privacy. They are
clearly set out in the legislation and the warrant itself must specify what is
authorised.
The existing provisions in the CSO Act protecting a
registrable offender’s right to privacy (when reporting in person or when
being photographed) are maintained and continue to apply alongside the
amendments.
Relationship between the limitation and its purpose (s
28 (2) (d))
Requiring registrable offenders to report the contact
that they have with children is a fundamental aspect of the CSO Act. The purpose
of this requirement is to ensure that ACT Policing can monitor that the contact
is appropriate within the terms of the person’s registration. It will
allow ACT Policing to take protective measures where they have concerns for a
child’s safety.
The use of search and seizure powers is a common
example of ACT law that engages the right to privacy. Searches can be compatible
with human rights if they are reasonable and proportionate in the circumstances
surrounding the search. Firstly, laws and policies should be clear in regards to
their intention, scope, and what enforcement officers can or cannot do. Factors
such as express authorisation by a warrant, the need to provide community
protection and the purpose of the search are considered when assessing what is
reasonable in the circumstances.
A seizure may involve the compulsory or
non-consensual removal of property from a person’s home, work or vehicle.
The extended retention or continued deprivation of property following its
initial taking is also covered by section 12. For a seizure to be lawful, it
must be grounded in valid law and not arbitrary. The same test for
reasonableness in relation to searches is used to determine if a seizure is
arbitrary.
The amendments provide that a person claiming to be entitled
to anything seized can apply to a court for its return if certain conditions are
satisfied. Permanent deprivation of property is limited to things the possession
of which would be an offence, dangerous or unsafe, or subject to lawful
confiscation or forfeiture.
Any less restrictive means reasonably
available to achieve the purpose (s 28 (2) (e))
The reporting of this
information is the least restrictive effective measure to reduce the likelihood
that registrable offenders will reoffend, and to facilitate the investigation of
any future offences. In particular, the requirement that registrable offenders
report their electronic communication identifiers is the least restrictive as
this reporting does not provide the authority for police to monitor the
electronic correspondence of registrable offenders. Further examination of
anything belonging to the person may only take place after a warrant has been
issued.
Where police believe a criminal offence may have been, or is
likely to be, committed existing police criminal investigation powers
apply.
The scope of the amendments is subject to specific limitations,
similar to those applied to search and seizure provisions in other legislation.
These include the requirement to describe the location and types of material to
be searched for, naming the police officer responsible for executing the
warrant, limiting the times and time period for the search, and the conditions
subject to which the premises may be entered.
A police officer executing
a warrant must announce their intentions before entering the premises, provide
details including a copy of the warrant to the registrable offender, and allow
that person to be present while the warrant is being executed.
A warrant may
authorise the police to stop and detain a person at the premises (for no longer
than 2 hours) to assist officers to execute the warrant. This time can be
extended to 4 hours on further application to the court.
Section 18-
Right to liberty and security of person
Section 18 of the HR Act provides
that:
(1) Everyone has the right to liberty and security of person. In
particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be
deprived of liberty, except on the grounds and in accordance with the procedures
established by law.
The nature of the right affected (s 28 (2)
(a))
The prohibition against arbitrary detention requires that the state should
not deprive a person of their liberty except in accordance with law and that the
law, and the enforcement of it, must not be arbitrary under human rights law.
Arbitrary detention can include elements of inappropriateness, injustice and
lack of predictability. Therefore, in addition to being lawful, any detention
must also be reasonable, necessary and proportionate in all the circumstances.
Detention that may initially be necessary and reasonable may become
arbitrary over time if the circumstances no longer require the detention.
Therefore regular reassessment is required to ensure detention remains
appropriate. The amendments provide that a search and entry warrant may
authorise police to stop and detain a person at the premises for no longer than
2 hours to assist the person carrying out the warrant, or up to 4 hours if a
court is satisfied that the warrant cannot be executed in 2
hours.
The importance of the purpose of the limitation (s 28 (2)
(b))
The detention powers give officers the ability to validate
information that has been reported with the registrable offender’s
assistance. This includes the ability to access data that may not otherwise be
accessible.
The power requiring registrable offenders to assist police to access to
electronic data complements existing requirements to provide certain details in
relation to online profiles and activities. As encrypted data is almost
impossible to access without passwords, codes, or other means, this power allows
police to address evolving technological advancements that provide offenders
with secure access to potentially illegal material on the Internet. The power to
detain a person to assist police access data reflects the serious nature of the
material being sought, and the time critical aspects relating to access, due to
the ease with which such material can be hidden or deleted.
These powers
provide a further significant protection for the lives and sexual safety of
children in the ACT.
Nature and extent of the limitation (s 28 (2)
(c))
The new powers that include detention can only be accessed via a
comprehensive application process. The authority to make an application is
limited to the chief police officer and deputy chief police officer. An
application needs to demonstrate that there is some evidence that a registrable
offender is obstructing the verification of personal details. The issuing court
must also be satisfied that the registrable offender has or is likely to report
incorrectly or has breached or is likely to breach an order prohibiting certain
conduct.
An order may contain relevant restrictions and time limits on
the exercise of the powers and allows police to enter the premises of a
registrable offender and conduct a search in the least intrusive manner
necessary in order to verify details on the register. Detention under a warrant
is limited to 2 hours, or up to 4 hours if a court is satisfied that the warrant
cannot be executed in 2 hours.
Relationship between the limitation
and its purpose (s 28 (2) (d))
The limitation on the right to liberty
is targeted at specific registrable offenders and only available by order of the
court on application by the most senior police officers.
Detention in
these circumstances has many objectives. Most importantly, it may facilitate
access to the data required. It may also be used to prevent a registrable
offender from absconding to hide or destroy the material remotely from another
location. It will also act to deter registrable offenders from refusing to
assist police executing a warrant.
Any less restrictive means
reasonably available to achieve the purpose (s 28 (2) (e))
Where police are seeking to verify information provided by a registrable
offender, there are some other means of investigation available including entry
by consent or routine avenues of inquiry. While other search powers are
available, for example in emergency
situations,[33] authority to use
these powers is based on imminent danger to life or property. This may not be
the case in situations where access is required to electronic data, which does
not involve immediate threat of harm. In some circumstances, detention of a
registrable offender is the only means for police to access the
information.
Section 22(2)(i)- Right not to
self-incriminate
Section 22(2)(i) of the HR Act provides:
(2) Anyone
charged with a criminal offence is entitled to the following minimum guarantees,
equally with everyone else:
(i) not to be compelled to testify against
himself or herself or to confess guilt.
The nature of the right
affected (s 28 (2) (a))
The right to a fair hearing for those charged
with a criminal offence also includes the right of a person not to be compelled
to testify against themselves or to confess guilt. This is also known as the
prohibition against self-incrimination and together with the right to be
presumed innocent, provides for a right to silence during investigations or in
pre-trial questioning as well as at trial. These rights also include the right
not to have adverse inferences drawn from remaining silent.
The
amendments which compel registrable offenders to provide personal details,
access to their home and access to encrypted information engage section 22 of
the HR Act.
Section 22 of the HR Act gives effect to article 14(2) and
(3) of the ICCPR by providing specific rights that apply when a person has been
charged with a criminal offence. These rights are in addition to the general
fair hearing rights set out in the section 21 of the HR Act.
The
privilege against self-incrimination has long been recognised by the common law
and applies unless expressly abrogated by statute. The amendments further
safeguard this right by including an express provision that prohibits the use of
information obtained under compulsion in any proceeding (other than a proceeding
under the CSO Act or one regarding false or misleading statements, information
and documents).
The ‘common law of human rights’ is explained
by Murphy J in Hammond v The Commonwealth of Australia 152 CLR 188,
199-200 (Gibbs CJ, Mason, Brennan and Deane JJ agreeing) as including the
privilege against self-incrimination, which:
...is part of our legal
heritage where it became rooted as a response to the horrors of the Star Chamber
(see Quinn v United States (1955) 349 US 155). In the United States it is
entrenched as part of the Federal Bill of Rights. In Australia it is a part of
the common law of human rights. The privilege is so pervasive and applicable in
so many areas that, like natural justice, it has generally been considered
unnecessary to express the privilege in statutes which require persons to answer
questions. On the contrary, the privilege is presumed to exist unless it is
excluded by express words or necessary implication, that is, by unmistakable
language (citations as in original).
The importance of the purpose
of the limitation (s 28 (2) (b))
The limitations on the section 12
rights are fundamental for the protection of children and the community, and
minimising the incidence of reoffending under this scheme. The scheme cannot
operate effectively without mechanisms to ensure offenders report all necessary
information and police are able to verify these details.
Reporting of
certain information is central to allowing registrable offenders to enjoy living
in the community. The ability of police to proactively verify this information
is reasonable and proportionate and lessens the risks offenders may pose to the
community.
Nature and extent of the limitation (s 28 (2)
(c))
The rationale behind the privilege against self-incrimination is
that those who allege the commission of a crime should prove it themselves and
not be able to compel the accused to prove it for them (Re an application
under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 para
42).
This is relevant as a registrable offender will be compelled to
allow police to enter and potentially search their premises. For example, if the
warrant is for entry and search for a thing connected to an offence under the
Act, but the officer finds evidence of another offence, the privilege will
ensure that the person is not compelled to testify against himself or herself (s
22(2)(i) HR Act).
A safeguard for this privilege is the amendment
providing derivative use immunity to the registrable offender. This immunity
means that any information, document or thing obtained, directly or indirectly,
because the person was required to facilitate access to the contents of the
information are not admissible in evidence against the registrable offender in a
civil or criminal proceeding (other than a proceeding for an offence against the
CSO Act or part 3.4 of the Criminal Code 2002 (false or misleading
statements, documents etc.)).
However, police will still have the power
to seize a thing that constitutes evidence of an offence and potentially destroy
the thing with the court’s approval.
Relationship between the
limitation and its purpose (s 28 (2) (d))
The amendments allow the
chief police officer or deputy chief police officer to apply to the court for an
order requiring a registrable offender to provide information that will allow
access to electronic data in certain circumstances. A registrable offender who
does not comply with the order is guilty of an offence. The purpose of the
amendment is for police to verify that the offender is complying with the terms
of their registration. The limitation ensures that the registrable offender can
continue to enjoy life in the community while protecting the community against
potential risks.
The limitation in this case is balanced by the common
law privilege against self-incrimination and an express provision restricting
the use of information obtained under an order.
The limitation is
justified because of the serious nature of the crimes being investigated and the
exercise of the powers is subject to appropriate safeguards (such as
applications for an order having to be made by the chief police officer or
deputy chief police officer, and the court having to be satisfied of a number of
matters). Oversight by the court will ensure the orders are issued
appropriately.
Any less restrictive means reasonably available to
achieve the purpose (s 28 (2) (e))
The amendments give police a power
to apply for an order requiring a registrable offender to provide passwords and
access codes to electronic devices. However, to ensure that this power does not
trespass on the privilege against self-incrimination, it is accompanied by
derivative use immunity.
Before applying for an order, police will have
to consider other avenues to obtain the information protected by the password or
access code. To issue an order, the court must be satisfied on reasonable
grounds that the registrable offender has failed to provide the information or
assistance to access the material, that the material relates to an offence, and
that it is likely that the material would be admissible in a criminal
proceeding.
This requirement reflects both the serious nature of the
material sought and lack of agreement from the registrable offender to access
the information by means of consent.
Crimes (Child Sex Offenders) Amendment Bill
2015
Detail
Clause 1 — Name of Act
This is a technical clause that names
the title of the Act. The name of the Act is the Crimes (Child Sex Offenders)
Amendment Act 2012.
Clause 2 — Commencement
This
clause states that the Act will commence on the day after its notification
day.
Clause 3 — Legislation amended
This is a technical
clause stating that the Act being amended is the Crimes (Child Sex Offenders)
Act 2005 (CSO Act). The Act also makes technical amendments to the:
• Crimes Act 1900;
• Crimes (Child Sex Offenders)
Regulation 2005;
• Confiscation of Criminal Assets Act
2003;
• Director of Public Prosecutions Act 1990;
• Ombudsman Act 1989;
• Prostitution Act 1992;
• Supreme Court Act 1933.
Clause 4 — Purpose
and outline Section 6 (2) (i)
This clause removes section 6 (2) (i)
which provides that the CSO Act authorises the ombudsman to monitor compliance
with chapter 4 (Child sex offenders register). This is a minor amendment to
ensure that it is clear that the Ombudsman Act 1989, and not the CSO
Act, authorises the ombudsman to monitor compliance.
Clause 5
— Section 6 (2), new note
This clause clarifies that the Ombudsman
Act authorises the ombudsman to monitor compliance with new part 3.11
(Entry and search warrants) and existing chapter 4 (Child sex offenders
register).
Clause 6 – Section 9 (1) (c) note, 3rd dot
point
This clause replaces the term ‘child pornography’ with
‘child exploitation material’ in this provision. This amendment
ensures that the CSO Act and the child sex offender scheme remains up to date
and reflects legislative and academic practice across other
jurisdictions.
Clause 7 — Registrable
offender—exceptions—New section 9 (1A) and (1B)
This clause
inserts a new section 9 (1A) of the CSO Act to include a further definition
outlining when a person is not a registrable offender. This clause
provides that a person is not a registrable offender if the person is a
young person at the time that the registrable offence was committed, and the
court considers, on application by the defence, that including the person on the
register is inappropriate in the circumstances of the case.
New section
9 (1B) provides criteria that the court must consider in making a decision under
this provision and includes the severity of the offence and seriousness of the
surrounding circumstances, the age of the person at the time of the offence, the
level of harm to the victim and the community, attempts at rehabilitation,
whether the person poses a risk to the lives or sexual safety of one or more
people in the community, and any other circumstances that the court considers
relevant.
The purpose of this amendment is to provide young people
subject to sentencing for a registrable offence with the opportunity to apply to
not be registered, and thereby not be subject to the reporting obligations under
the CSO Act. This amendment will ensure that registration is consistent with the
intent of the legislative scheme, and is sensible and consistent with rights.
When sentencing a young offender for an offence that deems them a registrable
offender, the circumstances of the offending may indicate that an ongoing risk
is non-existent. The purpose of this provision is to recognise that registration
may not be appropriate in all circumstances.
The Victorian Law Reform
Commission report, ‘Sex Offenders Registration: Final Report’
(December 2011) addressed the issue of young people on child sex offender
registers and recommended that the court should be permitted to alter the
reporting obligations of offenders who are under the age of 18, as appropriate
in the circumstances.[34] The
Commission noted that it would be overly burdensome on registered sex offenders
who are under the age of 18 to require them to report all contact of this nature
that they have with other children. The Commission also argued that it is
‘desirable that registration orders do not unnecessarily interfere with a
child’s or young person’s education, training, or
housing’.[35]
Furthermore, the Commission noted that adding a child as a friend on
social media (such as Facebook) would be considered unsupervised contact, which
could potentially lead to a requirement for almost daily
reporting.[36]
This issue was
also recently considered by Justice Refshauge in the ACT Supreme Court in OH
v Driessen [2015] ACTSC 148. Justice Refshauge notes the potential for
serious problems to arise from the requirement to report the names and ages of
children with whom the registrable offender has regular unsupervised
contact.[37] Although the Judge did
not comment on the appropriateness of a young person being subject to reporting
obligations under the CSO Act, he stated that ‘[t]he difficulty is to give
content to this obligation in the context of a child at
school’.[38]
Given the overarching legislative objective of protecting the lives and
sexual safety of children in the ACT, this amendment will allow the court to
hear an application for non-registration and exercise some discretion, within
strict limits, as to whether a young person should be subject to the obligations
imposed by registration.
This clause outlines the factors that the court must
consider when making a decision about whether registration is appropriate. The
factors are:
(a) the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence; and
(b) the age of the person at the time of the offence; and
(c) the level of harm to the victim and the community caused by the offence; and
(d) any attempts at rehabilitation by the person; and
(e) whether the person poses a risk to the lives or the sexual safety of 1 or more people or of the community; and
(f) any other circumstances that the court considers relevant.
This
application is a matter for the defence at sentencing, and requires the court to
turn its mind to a set of considerations different to those outlined in the
Crimes (Sentencing) Act 2005. Accordingly, the question of whether a
young person should be registered will not affect the sentencing
process.
This amendment aligns with the purposes for which a young
offender may be sentenced in sections 7 and 133C of the Crimes (Sentencing) Act,
highlighting the importance of promoting rehabilitation, and providing that in
sentencing a young offender the court must have particular regard to the common
law principle of individualised justice.
Human Rights
Considerations
New section 9 (1A) engages and supports the right of a
child who is charged with a criminal offence to a procedure that takes account
of the child’s age and the desirability of promoting the child’s
rehabilitation in section 22 (2) of the HR Act. As noted in the discussion of
the right to privacy under the overview of human rights, by allowing a young
offender to apply to a sentencing court to not be registered, and therefore not
be subject to reporting obligations, this amendment also supports section 12 of
the HR Act. Additionally, the rights to protection because of being a child in
section 11 (2) of the HR Act and to freedom of movement in section 13 of
the HR Act are engaged and supported by this amendment, as non-registration
would mean that a young person would not be subject to reporting obligations
relating to travel and movement. These latter two rights are discussed in
further detail under clause 9.
Clause 8 — Section 14
This
clause amends the definition of a child sex offender registration order
to include reference to an order made under the new division 2.2.3, section 18C.
A child sex offender registration order now includes an order made in
relation to a certain previous offender for the purposes of the CSO Act. This
amendment is addressed in detail below in the explanatory material for clause
9.
Clause 9 — New division 2.2.3
Part 2.2 of the CSO Act
defines child sex offender registration orders and outlines in which
circumstances they may be made. A child sex offender registration order
may only be made where the person is a registrable offender under the CSO Act or
a corresponding child sex offender, or where the court considers that the person
poses a risk to the sexual safety of 1 or more people or of the
community.[39]
This clause
introduces a new class of people, being previous offenders, who may be subject
to a child sex offender registration order in certain circumstances.
The registration and reporting obligations in the CSO Act only apply to
those offenders who were convicted of an offence after the commencement date of
29 December 2005. In contrast, all provisions in the CSO Act apply to a
person who has been sentenced by a court for a registrable offence before the
commencement of the CSO Act if they are a prescribed corresponding
offender.[40]
A number of
other Australian jurisdictions apply child sex offender provisions to certain
offenders retrospectively. Victoria, New South Wales, Queensland and South
Australian registration legislation applies
retrospectively.[41] Tasmanian
legislation provides that a court may make an order that a person is subject to
registration if the court is satisfied that the person poses a risk of
committing a reportable offence in the
future.[42]
The purpose of
this amendment is not to apply CSO Act provisions retrospectively to all ACT
child sex offenders who were convicted prior to the commencement of the
registration scheme. Rather, the intention is to provide ACT Policing with tools
to protect children and their families in specific circumstances where a person
has been found guilty of a class 1 offence prior to the commencement of the CSO
Act, and continues to pose a risk to the lives or sexual safety of 1 or more
people or of the community. This is clarified in new section 18B which provides
the power and outlines the application process for the CPO to apply for a
registration order in relation to a previous offender.
If a registration
order is made against a previous offender, it will also allow ACT Policing to
apply for a prohibition order under chapter 5A of the CSO Act in order to
prohibit certain activities and behaviours.
New section 18D outlines the
matters that the court must consider before making a registration order in
relation to a previous offender. The matters are:
(a) for each offence for which the person is a previous offender—
(i) the seriousness of the offence; and
(ii) the period since the offence was committed; and
(iii) the person’s and victim’s ages, and the difference in age between them, when the person committed the offence;
(b) the person’s age;
(c) the seriousness of the person’s criminal history;
(d) whether the level of risk that the person may commit another registrable offence outweighs the effect of the order on the person;
(e) the person’s circumstances, to the extent that they relate to the
order sought.
The court may also regard anything else that is considered
relevant, and for the purposes of this section criminal history means a finding
of guilt against the person for a class 1 offence.
New section 18C
provides that the Magistrates Court may make a child sex offender registration
order where:
(a) the person is a previous offender; and
(b) the person poses a risk to lives or the sexual safety of 1 or more people or of the community; and
(c) making the order will reduce the risk; and
(d) having regard to the matters in section 18D, the order is
appropriate.
The application for the order may be heard, and the order
made, in the person’s absence if the court is satisfied that the
application was served personally on the person and on anyone else as directed
by the court.
If a registration order is made in relation to a previous
offender, they will be subject to the reporting periods outlined in part 3.5 of
the CSO Act relevant to class 1 offences (ss 84 and 87) minus the period of
reporting that would have lapsed had reporting been required from the date of
convictions. For example, if an offender was convicted in 2002 for a single
class 1 offence, the reporting period would have been 15 years (s 84). However,
given that 13 years have passed since the conviction, the offender would now
only be subject to a two-year reporting period.
If a registration order
is made in relation to a previous offender the CPO must keep a copy of the
application and any document relied on for the application for the duration of
the order.
Human Rights Considerations
This amendment
engages a number of rights in the HR Act, including the right to privacy
(s 8), the right to protection of the family and children (s 11), and the
right to freedom of movement (s 13). The engagement with the right to privacy is
discussed in the human rights overview at the beginning of this explanatory
statement. Engagement with the remaining rights is discussed
below.
Section 25- Retrospective criminal laws
Section 25 of
the HR Act provides that:
(1) No-one may be held guilty of a criminal offence
because of conduct that was not a criminal offence under Territory law when it
was engaged in.
(2) A penalty may not be imposed on anyone for a criminal
offence that is heavier than the penalty that applied to the offence when it was
committed. If the penalty for an offence is reduced after anyone commits the
offence, he or she benefits from the reduced penalty.
New division 2.2.3
in the CSO Act will provide a power for the Magistrates Court to make a
registration order against a previous offender in certain circumstances.
Although section 25(2) of the HR Act states that a penalty may not be
imposed on anyone for a criminal offence that is heavier than the penalty that
applied to the offence when it was committed, the European Court of Human Rights
has found that retrospective registration is reasonable as registration is not a
penalty.[43] Rather, registration is
considered to be a preventative measure separate from sentencing, which only
applies after a person has been convicted.
The Government is of the view
that section 25 of the HR Act is not engaged by this amendment and is reasonable
and justified in all the circumstances.
Clause 10 —
Offence—offender must report annually—Section 37
This clause
amends section 37 to replace the element of intention with the more appropriate
and workable elements of recklessness and strict liability.
Clause 10
amends section 37 to provide that a registrable offender commits an offence if
the offender is required to report annually, and is reckless as to this
requirement, and fails to report as required. Section 37 (3) clarifies that
strict liability applies to the failure to report.
The purpose of this
amendment is to provide sufficient clarity for registrable offenders about what
is required in relation to their annual reporting obligations, and to assist in
the prosecution of this offence where relevant. Specifically, the current
element of intention relating to an omission to ‘take all reasonable
steps’ to report annually is almost impossible to prove. For example, a
registrable offender may state that they forgot to report, which proves to be a
complicating factor in demonstrating that intention is present.
Registrable offenders are provided with a Notice of Reporting
Obligations (NORO) when they make their first report after conviction for a
relevant offence. The NORO outlines the reporting obligations of each
registrable offender and requires that they sign an acknowledgement that they
have:
• been provided with a copy of the NORO;
• read and
understood their reporting obligations; and
• been reminded of the
month they are next required to report as well as when their reporting
obligations end.
This amendment engages the right to equality before the
law in section 8 of the HR Act. An analysis of this engagement is outlined in
the human rights overview at the beginning of this explanatory
statement.
Clause 11 – Exception – offender in government
custody
Section 38
This clause amends the
‘offender’s reporting month’ to the ‘relevant time for
the offender’s report’ to clarify this provision applies if the
offender is in government custody when their reporting period, whatever its
length, expires.
Clause 12 – Exception – offender outside
ACT
Section 39
This clause amends the ‘offender’s
reporting month’ to the ‘relevant time for the offender’s
report’ to clarify this provision applies if the offender is not in the
ACT when their reporting period, whatever its length,
expires.
Clause 13 — Offence—offender in ACT must
report change of details—Section 54 (2) (b), new examples
This
clause amends section 54 of the CSO Act to provide further examples that make it
clear that changes in details includes something ceasing. For example, a change
in personal details for a registrable offender includes not only starting new
employment, but also the end of employment.
Clause 14 – Section
54 (2) (b), new note
This clause inserts a new technical note in section
54 (2) (b) that clarifies that examples are part of the Act and may extend but
not limit the provision in which they appear, as per sections 126 and 132 of the
Legislation Act.
Clause 15 — What are personal details? Section
59 (1) (h)
This clause amends section 59 (1) (h) to clarify that
information about any modifications to a motor vehicle that a registrable
offender owns, or generally drives, are reported as personal details. For
example, if a registrable offender alters the colour of the motor vehicle, gets
the windows tinted, or changes the wheel rims, this information is a personal
detail for the purposes of the CSO Act.
Clause 16 — Section
78
This clause amends section 78 and inserts new section 78A to reflect
the updated requirements introduced into the CSO Act relating to photographing
registrable offenders. The amendment makes it clear that section 78 relates to
photographing a registrable offender with their consent, and section 78A
provides a power for police to seek an order allowing the use of force for
photographing an offender.
Given the importance of photographing
registrable offenders in certain circumstances (for example, where an offender
has a distinct tattoo on their back or a birth mark on their upper arm that
could be used for identification and further investigation purposes where
appropriate) the amendment to section 78 removes the ability for a registrable
offender to refuse to consent to the requirement. If the registrable offender
does not comply with the requirement to be photographed, they have committed an
offence under section 78 (5) and are subject to 5 years imprisonment, 500
penalty units or both.
New section 78A (1) provides that a magistrate
may, on application by a police officer, order the photographing of a
registrable offender if satisfied on the balance of probabilities that: a police
officer has required the offender to be photographed under section 78 and the
offender has failed to comply with the requirement; and there are reasonable
grounds to believe that photographing the offender is likely to assist law
enforcement, crime prevention or child protection purposes; and allowing
reasonable force to be used in photographing the offender is justified in all
the circumstances. In making this order the magistrate must consider a number of
factors under section 78A (2), including the seriousness of the
circumstances surrounding the commission of each offence, the age, mental health
and cultural background of the offender, and any other circumstances that the
magistrate considers relevant.
These amendments, which are based on
similar provisions in parts 2.4 and 2.5 of the Crimes (Forensic Procedures)
Act 2000, recognise the importance of photographing certain offenders for
monitoring and potential future investigation activities. The amendments are
also a reasonable limitation on the rights of registrable offenders as
photographs will only be taken at annual reports, and if the registrable
offender needs to report a changed tattoo or birth mark. The Government
considers that it is reasonable and necessary to remove the current ability for
a registrable offender to not consent to being photographed as a photograph of
the offender’s face and any distinguishing features is a key piece of
information required for the monitoring and potential investigation where
relevant. Accordingly, it is personal information that is necessary for the
proper operation of the registration scheme. The offence provision has been
included to highlight the necessity of a registrable offender being photographed
and the importance of compliance with the police order in these
circumstances.
This amendment engages a number of rights in the HR Act
including the right to equality before the law (s 8) and the right to privacy (s
12). An analysis of this engagement is outlined in the human rights overview at
the beginning of this explanatory statement.
Clause 17 — Right
to privacy when being photographed—Section 79 (1)
This clause makes
a minor and technical amendment to provide that a person being photographed has
the right to privacy under both the existing section 78 and the new section
78A.
Clause 18 — New section 79 (1A)
This clause
replicates the old section 78 (5) to clarify that an officer cannot, under
section 78 or new section 78A, ask a registrable offender who is photographed to
expose for that purpose—
(a) the offender’s genitals; or
(b) the anal area of the offender’s buttocks; or
(c) if the offender is female, or a transgender or intersex person who
identifies as female—the offender’s breasts.
A transgender
person is defined in the section 169A of the Legislation Act, and an intersex
person is defined in section 169B of the Legislation Act.
The replication
of this provision engages and supports the right to privacy in section 12
of the HR Act by outlining what cannot be photographed regardless of whether the
photograph is taken with consent, or without consent by court
order.
Clause 19 — Right to have support person when being
photographed Section 80
This clause makes a minor and technical
amendment to provide that a person being photographed has the right to a support
person under both the existing section 78 and the new section
78A.
Clause 20 – When reporting period begins
Section
83
This section makes it clear when reporting periods for registrable
offenders and previous offenders begin. In the case of a registrable offender,
the reporting period begins when the offender is sentenced, and if the sentence
is full-time custody, reporting must begin when the offender stops being in
full-time custody. The same applies for a previous offender, however the
reporting period begins, if the offender was sentenced to full-time custody,
when they stopped being in full-time custody. This takes into account that a
previous offender may have already served a term in prison and that their
reporting period starts at the time their term finished.
Clause 21
— New parts 3.10 and 3.11
Part 3.10 - Failure to comply with
reporting obligations – public notices
New section 116A
– Chief police officer may issue public notice in certain
circumstances
This section provides a power to the CPO or DCPO to issue a public notice, being a name, photograph, and description of a registrable offender in limited circumstances where the CPO or DCPO believes on reasonable grounds that there may be risk to the lives or sexual safety of one or more people or of the community in general. The CPO or DCPO must also believe on reasonable grounds that publication of the notice will reduce this risk.
The CSO Act currently prohibits ACT Policing or any other agency from releasing information from the register as it is considered to be ‘personal information’ for the purposes of the registration scheme. The purpose of this amendment is to ensure that ACT Policing can effectively monitor registrable offender activities and ensure that a registrable offender who is not meeting their reporting obligations is quickly located, maintaining the safety of children and the community. The amendments provide an appropriate balance between the need for police to protect the community while still necessarily protecting the identity and security of registrable offenders.
This public notice would not identify that the offender is on the child sex
offender register, only that the person is required by police to answer
questions. The power limits the offender’s human rights to the least
extent possible by also requiring that before a notice is published, the
offender has failed to comply with reporting requirements and cannot be
located.
When issuing notices about offenders or suspects via their website
or social media, it is the practice of ACT Policing to remove the notices once
inquiries and operational needs have been satisfied. The practice will also
apply regarding notices issues under this provision.
New part 3.11
– Entry and search warrants
In the ACT, a registrable offender is required to report to police on an
annual basis. The information (including personal details) that must be reported
is set out in division 3.4.1 of the CSO Act. The amendments provide
specific entry and search powers in relation to registrable offenders to verify
this information.
New division 3.11.1 – Preliminary
New
section 116B – Definitions-pt 3.11
This section provides a number of definitions that apply to the new part
3.11. These include the meaning of ‘entry and search warrant’, which
states that the purpose of the warrant is for police to enter and search the
registrable offender’s premises for the purpose of verifying the
person’s personal details or determining whether the person has breached
or is likely to breach an order that was issued to prohibit certain
conduct.
New division 3.11.2 – Entry and search
warrants—general
New section 116C – Entry and search
warrant – application
This section sets out the application process for an entry and search warrant. An application must include details of the warrant including its nature and duration and whether the offender has previously been the subject of a similar warrant or if an application for a warrant under this section has been made previously. The warrant must be supported by a sworn affidavit that demonstrates the need for these powers to be used. Only a senior officer above the rank of sergeant may apply for an entry and search warrant.
An officer who believes that immediate entry and search is necessary and that
there is no time to prepare an affidavit may still apply for a warrant verbally
and, if a warrant is granted, provide the affidavit to the court as soon as
possible afterwards. If a warrant is refused, the applicant must still provide a
written application to the court including a summary of the reasons for
requesting a warrant, however these reasons do not need to be in the form of a
sworn affidavit.
New section 116D – Application for entry and search
warrant – supporting information
An application for a warrant under this part requires an applicant to provide
all information relevant to the application and also requires the applicant to
keep a copy of all affidavits or supporting information for one year beyond when
the registrable offender stops being required report. This ensures that the
information is easily accessible in circumstances where more than one warrant is
required during the reporting period. It also provides a complete record of the
offender’s compliance with their reporting obligations and information
relevant to those obligations. Extending the requirement to a year after the
person is no longer required to report allows oversight of the documentation by
the Ombudsman to ensure the obligations under the scheme are being met.
New section 116E – Entry and search warrant – remote
application
This provision allows an applicant to apply for a warrant by telephone, fax, email or a form of communication if it is impracticable to do so in person. It would be impracticable to apply in person if, for example, the registrable offender denies police entry to their premises when police can hear activity within the premises that indicates a likely breach of their reporting obligations. In this situation, police could use a telephone or email to apply for a warrant to enter the premises.
The provision provides that the court is to fax or email a copy of the
warrant to the applicant if practicable, depending on the circumstances of the
application.
New section 116F – Entry and search warrant –
deciding the application
A magistrate must be satisfied on reasonable grounds that the registrable
offender has reported personal details incorrectly, breached an order
prohibiting certain conduct under existing chapter 5A, or is likely to do either
of those things. Information will need to be provided by the warrant applicant
that shows why the registrable offender is likely to report incorrectly or
breach an order, such as they have a history of similar breaches or were not
cooperative with police on previous reporting occasions.
New section 116G
– Content of entry and search warrant
This section requires that a warrant contains as much practical information
as possible, such as to where or who the warrant applies, what will be searched
for, the responsible police officer, relevant time periods, conditions of entry
and what the warrant authorises police to do.
This section also includes a
provision similar to entry and search warrant powers in other ACT legislation
that requires a warrant only be executed between the hours of 6am and 9pm unless
the court is satisfied that in the circumstances, evidence could be concealed,
lost or destroyed, or it would not be practicable to conduct the search at
another time. In addition to the examples included in the new section, this
could be due to the urgent requirement to respond to information received by the
police out of hours, or the availability of a forensic expert required to assist
with the search.
Conditions of entry specifically may have regard to the personal privacy of a third party who may be living at the premises or otherwise affected by the execution of the warrant.
A warrant will stay in force for 7 days. If police cannot execute the warrant
within that period, they can reapply for another warrant, as there is no limit
on the issue of warrants based on sound and compelling evidence.
New
section 116H – What an entry and search warrant may authorise
This provision sets out in detail what activity is authorised by a warrant,
in particular to search premises including a vehicle and seize things specified
in or relevant to the warrant, a person who may be carrying evidence relating to
an offence or a seizable item such as a weapon. The warrant also authorises an
officer to seize other things that they believe on reasonable grounds to be
connected with an offence punishable by 12 months imprisonment or more.
While the warrant provision is similar to other search and seizure powers in
ACT legislation, some provisions vary to reflect the nature and purpose of the
registration and reporting scheme. For example, a warrant authorises police to
stop and detain a person at the premises to assist in the execution of a
warrant. Detention must not exceed 2 hours unless a court is satisfied that the
warrant cannot be executed within 2 hour; in those cases, detention cannot
exceed 4 hours.
This provision targets specific information,
particularly if held electronically, that the offender may have hidden from an
ordinary observer and is required to ‘unlock’ and provide access to
police under the warrant. If the offender has refused to provide access to
electronic data, police are authorised to access the information in question for
up to 4 hours. This allows for the use of an expert who may need to use
decryption technologies to access otherwise inaccessible data. This time period
can be extended to a maximum of 8 hours if the court is satisfied that the
information cannot be accessed within 4 hours.
New section 116I
– Extension and amendment of entry and search warrant
This section
sets out the requirements if police wish to seek an extension of the warrant or
amendments to the warrant conditions. The CPO, DCPO or police officer of the
rank of sergeant or higher must apply to a magistrate before the expiry of the
warrant and may agree to those amendments only if satisfied that the warrant
requires extension of amendment to be properly executed. While an application to
extend the time period for the execution of the warrant can be made more than
once, the detention provisions are limited by only allowing one application to
extend the time period up to 4 hours. This prevents prolonged and potentially
arbitrary detention.
New section 116J – Revocation of entry and
search warrant
A search warrant may be revoked by the court at any time
before it expires if the warrant contains an error, was obtained using false or
misleading information or is no longer required. The court may also revoke the
warrant if it is in the interests of justice. The CPO, DCPO or police officer of
the rank of sergeant or higher must also apply for a revocation of the warrant
if they are satisfied that the grounds for the warrant no longer exist. This
provides additional protection for registrable offenders by ensuring they are
not subject to arbitrary or unjustified intrusions of their
privacy.
New division 3.11.3 – Executing entry and search
warrants
New section 116K – Use of force and availability of
assistance in executing entry and search warrant
Police may use force or
obtain assistance that is necessary and reasonable in the circumstances of
executing the warrant. This includes if the registrable offender refuses to
allow entry to the premises, or attempts to destroy evidence while the warrant
is being carried out.
New section 116L – Announcement before
entry
Police are required to announce themselves and that they are
authorised to enter the premises described in the warrant prior to entry. This
provides an opportunity for the person in those premises to allow entry and
means that police are not required to force entry. The only circumstances that
an officer is not required to announce themselves before entry is if they
believe on reasonable grounds that this would put a person at risk of harm or
that evidence will be destroyed or concealed, or that the warrant will not be
able to be executed effectively.
New section 116M – Details of
warrant to be given to occupier etc
Police are required to provide a
reasonable amount of information to the occupier of the premises as well as the
registrable offender to whom the warrant relates. Showing the warrant to
everyone who is present and subject to the warrant ensures that those people can
verify the authority under which the warrant is issued and be clear on what the
warrant authorises.
New section 116N – Occupier entitled to be
present during search etc
This section provides that the occupier of
premises (if present at the time a warrant is executed) is entitled to observe
the search being undertaken so long as they do not interfere with the conduct of
the search.
New section 116O – Use of equipment to examine or
process things
This provision allows police or someone assisting police
to execute the warrant to bring equipment with them if the equipment is
reasonably necessary to examine or process a thing found at the premises to
determine whether it can be seized under the warrant. This is particularly
relevant when equipment may be necessary to access and search data that is
stored on electronic devices. The provision extends to allowing police to remove
something from the premises if it is not practicable to search it at the
premises. There may be cases where portable equipment is not sufficient to
access stored data and the relocation of devices to examination facilities is
required. In other cases, a thing may require forensic testing to determine its
evidential status. If a thing is taken from the premises, the occupier must (if
practicable) be told where and when the device or thing is to be examined, and
they or their representative may be present during its examination.
New section 116P – Use of electronic equipment at premises
This section governs the use of electronic equipment that is brought to
the premises to specifically access data that may assist an officer verify a
registrable offender’s personal details or whether the offender has
breached or is likely to breach an order prohibiting certain conduct that has
been issued under chapter 5A. Police or a person assisting police must take care
in using the equipment not to damage data and may copy the data to a storage
device brought to the premises for this purpose. The seizure provisions in this
section ensure that the collection of this data is appropriate and the means for
collecting it is accountable.
The section allows police to seize
equipment and storage devices if copying the material at the premises is not
practicable or if it contains data or material the possession of which is
unlawful (such as child exploitation material).
New section 116Q
– Order requiring registrable offender to assist with access to data
etc
The CPO, DCPO or police officer of the rank of sergeant or higher may
apply to the court for an order requiring a registrable offender with knowledge
of a particular computer system, to provide access to electronic data, to copy
the data onto a storage device or convert the data into documentary form. This
could require the registrable offender to provide passwords and access codes to
electronic devices. Registrable offenders are already required to routinely
report details in relation to online profiles. Police require these powers to
address continuous advancements in communications technology that provide
offenders with secure access to potentially illegal material online.
To
ensure that this power does not unduly trespass on the privilege against
self-incrimination, it is accompanied by derivative use immunity. The privilege
and immunity are discussed in greater detail above under the human rights
overview.
Essentially, a registrable offender who refuses to provide this
information or assistance is guilty of an offence punishable by 500 penalty
units, imprisonment for 5 years or both. The elements of this offence require
that the offender fails to provide the information or assistance as ordered, or
is reckless as to the nature of the order. A person would be considered reckless
as to the nature of the order if they claim to have forgotten, or if they
provide some but not all of the required access codes or passwords. A
registrable offender is fully informed of their registration and reporting
requirements which currently include providing access to electronic data or
online activities. Claiming they have forgotten a code or password could
therefore be considered reckless.
The offence provision provides strong
incentive for offenders to provide the required assistance to police and also
sends a strong message to offenders that their obligations throughout their
reporting periods are serious and enforceable. It also provides reassurance to
the community regarding the integrity of the registration scheme.
As the
registrable offender is compelled to provide this information to police or
otherwise face criminal sanctions, a provision has been included that any
material obtained under this section is not admissible in a proceeding except
for a proceeding under the CSO Act, or a proceeding under the Criminal Code
2002 (pt 3.4 – False or misleading statement, information and
documents). This is consistent with similar provisions in ACT legislation that
compel a person to provide information that leads to disclosure of other
information or evidence. The use of that further information is only permitted
for strictly limited purposes.
New section 116R – Damage etc to
be minimised
This provision requires police to take care when executing a
warrant particularly relating to electronic equipment to cause as little damage
as practicable. If damage is caused, the officer is required to notify the owner
in writing of the particulars of the damage. If the occupier is absent, police
are able to leave the notice in a conspicuous place. This ensures the owner or
occupier is notified of the damage as soon as possible.
New section
116S – Compensation
This section allows a person to claim
reasonable compensation if electronic equipment is damaged during the execution
of a warrant or order under this division.
New division 3.11.4 –
Seized things
New section 116T – Copies of seized things to be
provided
This provision requires the police to provide the occupier of
the premises (if present at the time a warrant is executed) of copies of things
or information they have seized as soon as practicable after their seizure. This
is to reduce any inconvenience to the occupier while the thing or information is
being examined. Police are however not required to do so when the thing that was
seized was taken away from the premises on a storage device that police brought
with them, or if possession of the material would otherwise be unlawful (such as
child exploitation material).
New section 116U – Receipt for
things seized
This section provides a record of things seized during the
execution of a warrant for both police and owners. The receipt must show the
person from whom the items were seized, what was seized, whether the thing will
be forfeited, returned or destroyed, and the process for such forfeiture, return
or destruction.
New section 116V – Return or destruction of
things seized
This provision protects the rights of registrable offenders
regarding items that may have been seized by requiring either the return of the
items, or justification for keeping or destroying the item. If the reason for
seizing that item no longer exists or the item has been seized for more than one
year, the police must take reasonable action to return the item. This is
required except for when a senior ranked police officer (superintendent or
above) is satisfied that the item is likely to be required as evidence in future
proceedings or has value in an ongoing inquiry. This provision must be read
together with the former provisions regarding powers to seize, as in some
circumstances, such as when a person has been compelled to provide access to
electronic data, the information obtained cannot be used in proceedings other
than those involving an offence under the CSO Act or part 3.4 of the Criminal
Code (false or misleading statements, documents etc).
Police must apply
to the court for approval to destroy data or things containing data that have
been seized. Destruction is conditioned on the registrable offender refusing to
assist police or a person assisting to access the information, or that attempts
to access the data over a period of 30 days were not successful. While the
destruction of a device in these circumstances may be seen as an inappropriate
penalty, the Bill contains safeguards that the person has refused to assist
police to access its data (thereby committing an offence), and that there are
reasonable grounds to believe that it may contain, or be used to acquire,
unlawful material.
Destruction of a device should only be sought when
less intrusive means of removing the data have been unsuccessful.
New
section 116W – Application for order disallowing seizure
A person
who wishes to contest a seizure under this part can ask the court for an order
disallowing the seizure. This protects the rights of a person against arbitrary
seizure of personal property. The court will need to consider a number of issues
including the person’s legal right to the thing, whether the thing is
still required as evidence, is required for business purposes, has sentimental
value or if its absence will cause hardship to a person.
The court must
also consider whether possession of the thing is unlawful or dangerous, or if
the thing could otherwise be lawfully confiscated, seized or
forfeited.
If seizure is not disallowed on these grounds, the court may
consider making an order for the destruction of the thing. This is particularly
relevant in cases where the thing seized is child exploitation
material.
New section 116X – Forfeiture and disposal of seized
things
This provision is consistent with other legislation governing
seizure powers in the ACT. It addresses processes police must follow when they
are required to return a seized item but cannot locate the person from whom it
was seized or the owner, or if the thing is to be forfeited to the Territory. In
cases where the thing is forfeited, it can be either sold or destroyed,
depending on whether possession of the thing is unlawful or dangerous. Sale is
the preferred method of disposal though it must be carried out in a cost
efficient manner. The proceeds are returned to the Territory.
New
division 3.11.5 - Miscellaneous
New section 116Y – Offence
– refusal of entry to premises
A person who is required to allow or
assist police or a person assisting to enter premises, and refuses entry to the
premises, is guilty of an offence punishable by 500 penalty units, imprisonment
for 5 years or both.
While section 116H allows police to enter the
warrant premises by force if necessary, this offence provision provides strong
incentive for offenders to not refuse or obstruct access to
premises.
New section 116Z – Admissibility of
evidence
This section provides that material obtained using the entry and
search powers in part 3.11 is admissible in a proceeding under the CSO Act, in
relation to a class 1 or class 2 offence (which are defined in the CSO Act and
particularly relate to offences of a sexual nature against children), or a
proceeding under the Criminal Code 2002 (pt 3.4 – False or
misleading statement, information and documents). This provides a balance of
the rights of an offender to privacy with the rights of children to be protected
against further sexual offences.
Clause 22 — New sections 122A
to 122C
This clause inserts new section 122A into the CSO Act to provide
a power for the CPO to apply to the Magistrates Court for the removal of a
registrable offender from the register in certain circumstances. Clause 19 also
inserts new section 122B which provides that before making an application under
section 122A, the CPO must take reasonable steps to give notice to each
identifiable victim of the registrable offender. This is further reflected in
section 122A which provides that the Director of Public Prosecutions may
appear in the court on behalf of the victim when an application is made.
Finally, clause 19 inserts new section 122C which provides that a
registrable offender who was a young offender at the time of the offence may
apply to be removed from the register.
New section 122A provides that the
court may make an order if satisfied on reasonable grounds that it would be
inappropriate for the offender to remain on the register. When making this
decision, the court must consider a number of factors which are outlined in
section 122A (3). These factors are:
(a) the severity of each offence that resulted in the offender being on the register; and
(b) the age of the offender at the time of each offence; and
(c) the level of harm to the victim and the community caused by each offence; and
(d) the period for which the offender has been included on the register; and
(e) compliance by the offender with any reporting and sentencing obligations; and
(f) any attempts at rehabilitation by the offender; and
(g) whether the offender poses a risk to the lives or the sexual safety of 1
or more people or of the community; and
(h) any other circumstances that the
court considers relevant.
As outlined in the purpose section of the
explanatory statement, this amendment supports the purposes in section 6 of the
CSO Act by ensuring that those offenders who are assessed as no longer likely to
reoffend or engage in conduct that poses a risk to the lives or sexual safety of
children are no longer required to report. As a result, ACT Policing will better
use existing resources to monitor those registrable offenders who continue to
present a risk to the community.
Part 3.5 of the CSO Act provides the
reporting periods for various offences that lead to an offender being
registered. If a registrable offender is found guilty of a single class 1
offence, they are automatically subject to a 15 year reporting period (s 84),
and a conviction for a single class 2 offence attracts an 8 year reporting
period (s 85). The lowest possible reporting period is 4 years for a young
offender found guilty of a single class 2 offence (s 89 (2)). In certain
circumstances convictions for multiple offences can result in a registrable
offender being subject to reporting obligations for the rest of the
offender’s life.
These reporting periods are significant,
appropriately reflecting the seriousness of child sex offences and the need to
monitor those offenders who have committed sexual crimes against children.
However, in certain circumstances the mandatory reporting period may be, or may
become, inappropriate for individual registrable offenders.
Currently, a
registrable offender may only apply for an order suspending their reporting
obligations in very limited circumstances. Section 96 of the CSO Act provides
that a registrable offender is eligible to apply for an order suspending the
offender’s reporting obligations only if:
(a) 15 years have passed (excluding days in government custody) since the offender was last sentenced or released from government custody for a registrable offence or a corresponding registrable offence, whichever is later; and
(b) the offender did not become the subject of a life-long reporting period under a corresponding law while in a foreign jurisdiction before becoming the subject of a life-long reporting period in the ACT; and
(c) the offender is not on parole for a registrable offence.
The
existing provision does not provide for removal from the register, and if the
application is unsuccessful the registrable offender cannot reapply for five
years (s 100).
This amendment will allow ACT Policing to account for
the individual circumstances of certain registrable offenders who, for all
intents and purposes, should no longer be registered and subject to reporting
obligations. Determining the extent to which the registrable offender’s
circumstances should be weighed up as part of this process is complex. However a
system which allows for consideration of the individual is the most favoured
approach given the varieties in offending context and behaviour. ACT Policing
have access to detailed information about the registrable offender’s
personal circumstances and a unique insight into whether registration remains
appropriate. For example, a registrable offender may be physically or
cognitively impaired due to illness or incapacitation, and the likelihood of
reoffending is effectively non-existent.
This amendment aligns with the
recommendation of the Victorian Equal Opportunity and Human Rights Commission
that the court should be afforded discretionary power to decide whether an
offender should be registered having regard to the circumstances of the offence
and the risk posed to the
community.[44] This provision will
also ensure that the intent of the registration scheme is upheld and that the
purposes of the CSO Act are better met by allowing the removal of registrable
offenders who no longer need to be registered.
New section 122B provides
an important safeguard to ensure that any identifiable victim or victims of the
registrable offender are given notice of the proposed application for removal
from the register. Section 122B (2) outlines what the notice must contain, which
includes an invitation for the victim to make a written submission to the CPO
about the offender being removed from the register, and a statement that any
submission will be considered by the CPO when deciding whether to make an
application under section 122A.
This section will also require the CPO,
prior to giving notice to a victim, to consult with the Victims of Crime
Commissioner. On consultation, the CPO and the Victims of Crime Commissioner may
decide that it is best for the Victims of Crime Commissioner to give notice or
be involved in giving notice.
This amendment ensures that victims are
given the opportunity to have their say on any proposal to remove an offender
from the register. It aims to prevent potential further harms to the victim by
ostensibly minimising the nature of the harm of the sexual offending and the
resultant harm. It also aligns with the explanatory statement to the Victims
of Crime Act 1994, that the governing principles in that Act are designed to
ensure that the needs of victims of crime are, as far as possible, factors in
decision-making related to the administration of justice. Furthermore, the
amendment supports guiding principle (g) in the Victims of Crime Act (to keep
victims informed and involved in matters in which they have a direct interest)
by providing the opportunity for the victim to make a submission that will be
taken into account by the decision maker.
New section 122C provides that
a registrable offender who was a young offender at the time a registrable
offence was committed may apply to the Magistrates Court for an order removing
the offender from the register. This provision accompanies new section 9 (1A)
and (1B), outlined in clause 7, to ensure that registration is consistent with
the intent of the legislative scheme, and consistent with rights.
Section
122C (3) provides that the person may only apply for removal once. If this
application is refused it is subject to the normal appeal avenues for court
orders. Section 122C (4) provides that a copy of the application must be served
on the Victims of Crime Commissioner, the CPO, and the Director of Public
Prosecutions. Similar to new section 122B, this process will ensure that notice
is given to any identifiable victim of the registrable offender and that the
victim has the opportunity to make a submission on the application. Section 122C
(8) provides that the Director of Public Prosecutions may appear in the court on
behalf of the victim, and section 122C (9) states that the court may make the
order if satisfied on reasonable grounds that it would be inappropriate for the
offender to remain on the register.
Similarly to clause 7, the court must
consider a number of factors when making a decision about whether an order for
removal is appropriate. The factors are:
(a) the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence; and
(b) the age of the person at the time of the offence; and
(c) the level of harm to the victim and the community caused by the offence; and
(d) any attempts at rehabilitation by the person; and
(e) whether the person poses a risk to the lives or the sexual safety of 1 or more people or of the community; and
(f) any other circumstances that the court considers
relevant.
Given that this new provision relates to young offenders
who are currently registered, the CPO must take all reasonable steps to give
written notice of section 122C to each person to whom the section applies not
later than 1 month after the commencement day for these amendments (s 122C
(11)). The purpose of this notice is to ensure that these offenders are aware of
the new right to apply to the court to be removed from the
register.
Further detailed discussion of the purpose and nature of this
amendment is under clause 7.
Human rights
considerations
This amendment engages the right to protection of the
family and children (s 11 HR Act), the right to privacy (s 12 HR Act), and the
right to freedom of movement (s 13 HR Act). Substantive analysis of this
engagement is outlined in the human rights overview at the beginning of this
explanatory statement, and under the discussion of clause 9.
Clauses
23, 24 and 25 — Schedule 2, part 2.1 and 2.2
These clauses
substitutes the term ‘child pornography’ with ‘child
exploitation material’ in schedule 2. This amendment ensures that the CSO
Act and the child sex offender scheme remain up to date and reflects legislative
and academic practice across other jurisdictions.
Clauses 26, 27 and
28 — Dictionary, new definitions
These are technical clauses that
adds further definitions to the Dictionary of the CSO Act.
Schedule 1
— Consequential amendments
Schedule 1 makes a number of minor
amendments to Territory legislation to reflect the amendments made by the
Bill.
Part 1.1 — Crimes Act 1900
Part 1.1, clauses 1.1
and 1.2 amend sections 7A, 64, 64A and 65 of the Crimes Act to replace
the term ‘child pornography’ with ‘child exploitation
material’. This amendment ensures that ACT legislation remains up to date
and reflects legislative and academic practice across other
jurisdictions.
Part 1.2 — Crimes (Child Sex Offenders)
Regulation 2005
Part 1.2 makes a number of amendments to the CSO
Regulation to clarify certain reporting obligations and streamline
administration of the register.
Part 1.2, clause 1.3, amends sections 7 (c)
and 8 (c) of the CSO Regulation to reflect the change of location of the Child
Sex Offender Registration Team. Including a GPO Box address ensures that any
future locations changes do not affect these provisions.
Part 1.2, clause
1.4, amends section 9 of the CSO Regulation to include a number of new approved
ways of reporting for the purposes of section 63 (b) of the CSO Act. Approved
ways of reporting will include reporting by telephone, email, or prepaid
post.
This amendment replaces the current section 9 of the CSO Regulation
which provides that personal details in section 59 (h) of the CSO Act include
particulars of an offender’s motor vehicle. This reflects the amendment
made under clause 11 to include details of modifications in s 59 (1) (h) of the
CSO Act.
Part 1.2, clause 1.5, also amends section 16A of the CSO
Regulation which prescribes entities with access to personal information in the
register for the purposes of section 118 (1) (b) (i) of the CSO Act. The
amendment inserts an entity responsible for exercising a function or activity
for an entity mentioned in paragraph (a) to (p).
This amendment
clarifies that personal information under section 118 (1) (b) (i) can be
disclosed to not just the head officers of the entities listed in section 16A,
but also to other officers within the entities whose responsibilities involve
exercising law enforcement functions and related activities. The aim of this
amendment is to ensure that key agencies, such as ACT Care and Protection, have
the power to share information under this provision where
appropriate.
Part 1.2, clause 1.6, amends section 17 of the CSO
regulation, pursuant to section 137 (2) (a) (ii) of the CSO
Act, by inserting table 17 to prescribe a number of verifying documents that
must be provided in support of a report. This amendment provides that a
registrable offender must provide a broad range of documents relating to
personal details that they report. This will provide ACT Policing with better
monitoring capabilities in relation to registrable offenders, and will reduce
the administrative burden making further inquiries to confirm certain personal
details.
This amendment prescribes the following documents that must be
provided:
• birth certificate (to verify details reported under s 59(a), (b) & (c));
• change of name certification (to verify details reported under s 59(a) & (b));
• utilities bill, contract of sale, or lease (to verify details reported under s 59(d));
• documentary evidence showing proof of membership (to verify details reported under s 59(g));
• travel documents and/or itinerary (to verify details reported under s 59(n));
• contract information, including an invoice (to verify details reported under s 59(p) & (q)); and
• passport (to verify details reported under s 59(t)).
This
amendment engages and limits the right to privacy in section 12 of the HR Act.
Analysis of this engagement is outlined in the human rights overview at the
beginning of this explanatory statement.
Part 1.3 — Director of
Public Prosecutions Act 1990
Part 1.3, clause 1.7, inserts a new function
into section 6 (1) the Director of Public Prosecutions Act, providing that the
Director of Public Prosecutions can make applications for prohibition orders
under chapter 5A of the CSO Act.
Part 1.3, clause 1.8, makes a technical
amendment to section 6 (1) to reflect changes to numbering made by amending the
Director’s functions.
Part 1.4 — Ombudsman Act
1989
Part 1.4 makes a number of amendments to the Ombudsman Act to
clarify the Ombudsman’s role in relation to monitoring compliance with the
CSO Act.
Part 1.4, clause 1.9, amends the functions of the Ombudsman to
reflect the introduction of the entry and search warrant provisions under clause
17. New section 4C (ca) provides that a function of the Ombudsman is to
monitor compliance with new part 3.11 of the CSO Act (Entry and search warrants)
by the CPO, deputy chief police officer, an executing officer, and anyone
assisting the executing officer.
Part 1.4, clause 1.10, amends section 17
of the Ombudsman Act to similarly reflect the introduction of the entry and
search warrant provisions under clause 17. Section 17B (1) outlines that
police are to give the Ombudsman reasonable assistance that the Ombudsman
reasonably requires to exercise the Ombudsman’s functions in relation to
entry and search warrants.
Part 1.4, clauses 1.11 and 1.12, make minor
technical amendments to section 17C (1) and section 20A (1) to reflect the
Ombudsman’s new role in monitoring compliance with part 3.11 of the
CSO Act.
The purpose of these amendments is to provide adequate
safeguards and oversight for the new powers relating to entry and search
warrants.
Part 1.5 — Prostitution Act 1992
Part 1.5,
clauses 1.13 and 1.14, amend Schedules 1 and 3 of the Prostitution Act to
replace the term ‘child pornography’ with ‘child exploitation
material’. This amendment ensures that ACT legislation remains up to date
and reflects legislative and academic practice across other
jurisdictions.
Part 1.6 — Supreme Court Act 1933
Part
1.6, clause 1.15, amends schedule 2 of the Supreme Court Act to replace
the term ‘child pornography’ with ‘child exploitation
material’. This amendment ensures that ACT legislation remains up to date
and reflects legislative and academic practice across other jurisdictions.
[1] Colvin, M & Cooper, J, 2009 ‘Human Rights in the Investigation and Prosecution of Crime’ Oxford University Press, p. 424-425.
[2] Ibid, p.425.
[3] Farkas, M and Stichman, A (2002) “Sex Offender Laws: Can Treatment, Punishment, Incapacitation, and Public Safety be Reconciled?” Criminal Justice Review, Vol. 27, No. 2, Autumn 2002, pp. 256-283.
[4] Richards, K ‘Misperceptions about child sex offenders’ Trends and Issues in Crime and Criminal Justice, issue number 429, Australian Institute of Criminology, September 2011.
[5] Ibid page 2.
[6] Ibid page 2.
[7] Ibid page 3.
[8] Ibid page 3.
[9] Stephen Smallbone, William Marshall and Richard Wortley, Preventing Child Sexual Abuse: Evidence, Policy and Practice (Willan Publishing, 2008) 20.
[10] Richards above, n 4 in Victorian Law Reform Commission, ‘Sex offenders registration’, Final Report 2012, 4.42 page 52.
[11] Richards above, n 4 foreword, pages 4-5.
[12] Ibid.
[13] Karen Gelb, Recidivism of Sex Offenders (Sentencing Advisory Council, 2007) 4 in Victorian Law Reform Commission, ‘Sex offenders registration’, Final Report 2012, 4.41 page 52.
[14] Richards above, n 4 foreword, pages 4-5.
[15] Sample, L and Bray, T (2006) “Are Sex Offenders Different? An Examination of Rearrest Patterns”, Criminal Justice Policy Review, Vol. 17, No. 1, pp. 83 - 102.
[16] Victorian Law Reform Commission, ‘Sex offenders registration’, Final Report 2012, 4.48 page 53.
[17] J J Prescott and Jonah E Rockoff, ‘Do Sex Offender Registration and Notification Laws Affect Criminal Behaviour?’ (2011) 54(1) Journal of Law and Economics 161,163 in Victorian Law Reform Commission, ‘Sex offenders registration’, Final Report 2012, 4.62 page 55.
[18] Colvin, M & Cooper, J, above n 1, p. 424-425.
[19] Human Rights Act 2004 Explanatory Statement page 4 http://www.legislation.act.gov.au/es/db_8294/20031120-9669/pdf/db_8294.pdf.
[20] Office of the United Nations High Commissioner for Human Rights, Human Rights Committee, 1989 ‘General Comment No.18, ‘Non-discrimination’ para 1. Available: http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9(Vol.I)_(GC18)_en.pdf.
[21] Ibid, para 14.
[22] Broeks v. the Netherlands, (172/1984), Human Rights Committee, 9 April 1987, 2 Sel. Dec.196; Zwaan-de Vries v. the Netherlands, (182/1984), Human Rights Committee, 9 April 1987, 2 Sel. Dec. 209; Human Rights Committee General Comment 18, para 13.
[23] Human Rights Act 2004 s 11(2).
[24] 13 Office of the United Nations High Commissioner for Human Rights, Human Rights Committee, 1990 ‘General comment 19: Protection of the family, the right to marriage and equality of spouses, para 1. Available: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6f97648603f69bcdc12563ed004c3881?Opendocument
[25] Office of the United Nations High Commissioner for Human Rights, Human Rights Committee, 1989, General comment 17: Rights of the Child. Available:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/cc0f1f8c391478b7c12563ed004b35e3?Opendocument
[26] Hugo Van Alphen v The Netherlands Communication No. 305/1988, 15 August 1990.
[27] Labuta v Italy 26772/95, April 6, 2000.
[28] Gans et al, Criminal Process and Human Rights, 2011, The Federation Press, Sydney, para 8.1, p 301.
[29] Lester QC., Pannick QC (General editors), 2005, Human Rights Law and Practice’, Second edition, LexisNexis UK, p 261.
[30] UN Human Rights Committee, General Comment 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art 17), UN Doc CCPR General Comment 16 (1988), para.7.
[31] Toonen v Australia, Communication 4888/1992, UN Doc CCPR/C/50/D/488/1992 (1994), para 8.3.
[32] Starmer, K, 1999, European Human Rights Law: the Human Rights Act 1998 and the European Convention on Human Rights, p. 416.
[33] Crimes Act 1900, pt 10.2 – Preventative action.
[34] Victorian Law Reform Commission n 16, para 7.35.
[35] Ibid para 6.36.
[36] Ibid para 7.35.
[37] Crimes (Child Sex Offenders) Act 2005 s 59(e).
[38] OH v Driessen [2015] ACTSC 148, para 89, Refshauge J.
[39] CSO Act , ss 15 and 16.
[40] CSO Act, s 8(2).
[41] Sex Offenders Registration Act 2004 (Vic) s 6(1); Child Protection (Offenders Registration) Act 2000 (NSW) s 3A(1)(a); Child Protection (Offender Reporting) Act 2004 (Qld)) ss 5 & 6; Child Sex Offenders Registration Act 2006 s 6(1).
[42] Community Protection (Offender Reporting) Act 2005 (Tas) ss 5 & 9.
[43] Ibottson v Uk (1999) 27 EHRR CD332.
[44] Submission to Sex Offenders Registration Act 2004 review – 2011, page 2