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SEX OFFENDERS REGISTRATION AMENDMENT BILL 2014
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20 August 2014
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SEX OFFENDERS REGISTRATION AMENDMENT BILL 2014
Introduction and first reading
Hon. M. J. GUY (Minister for Planning) introduced a bill for an act a bill for
an act to amend the Sex Offenders Registration Act 2004, the Children, Youth and
Families Act 2005 and the Freedom of Information Act 1982 and for other
purposes.
Read first time; by leave, ordered to be read second time forthwith.
Statement of compatibility
Hon. M. J. GUY (Minister for Planning) tabled following statement in accordance
with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006, (the charter act), I make this statement of
compatibility with respect to the Sex Offenders Registration Amendment Bill
2014 (the bill).
In my opinion, the bill, as introduced to the Legislative Council, is
compatible with human rights as set out in the charter act. I base my opinion
on the reasons outlined in this statement.
Overview
The bill makes amendments to the Sex Offenders Registration Act 2004 (SOR
act), the Children, Youth and Families Act 2006 (CYF act) and the Freedom of
Information Act 1982 (FOI act), relevantly:
amending reporting obligations relating to contact with children;
removing the requirement to destroy evidence after the reporting period of a
registrable offender ends;
providing for the sharing of information relating to a registrable offender
in certain circumstances;
amending the time frames for reporting obligations for registrable
offenders;
providing for new reporting requirements relating to overseas travel; and
providing that documents contained in the register of sex offenders are
exempt under the FOI act.
Human rights issues
Right to privacy (s 13)
Section 13(a) of the charter act provides that a person has the right not to
have his or her privacy unlawfully or arbitrarily interfered with.
The right protects against interference with individual's personal and social
sphere, including the physical and psychological integrity of a person, their
private life and personal affairs, and multiple aspects of the person's
physical and social identity, such as a person's name, means of personal
identification and their image.
New definition for 'regular unsupervised contact with children'
The bill amends the current reporting obligations on registered offenders
under the SOR act relating to contact with a child. Registered offenders
currently have reporting obligations in relation to 'regular unsupervised
contact with children'. Clauses 4 and 7 remove this expression in the SOR act
and replace it with a detailed definition, which outlines when a registrable
offender is deemed to have contact with a child for the purposes of his or her
reporting obligations.
The new definition includes when an offender: resides with or stays overnight
in a place in which a child resides or is staying overnight; cares for or
supervises a child; or, for the purpose of forming an ongoing personal
relationship with a child, initiates any form of physical contact, oral
communication or written communication, whether face to face, by telephone or
by electronic means, or exchanges contact details with the child.
While the expanded definition of child contact is largely being amended to
provide greater clarity and precision to registrable offenders regarding their
reporting obligations, it is possible that the inclusion of this definition
may increase the level of interference to an offender's right to privacy, as
in practice it may lead to an increase in the number of reportable incidents.
However, I am of the view that any subsequent interference that will occur
will be neither unlawful nor arbitrary and will therefore not limit the right
to privacy for the following reasons.
The primary purpose of the SOR act is to protect the community, and, in
particular, children. Studies indicate that most child sexual offences are
committed by persons known to the victim, and the register is intended to
deter and reduce reoffending by those who pose the greatest risk to children.
The current expression describing reportable contact is unsatisfactory as it
allows for subjective meanings of what constitutes 'regular' or 'unsupervised'
contact, which detracts from the scheme's aim of protecting children from
potential harm.
The clarity provided by the inclusion of the definition in new section 4A will
also protect registrable offenders who may be liable to serious penalties
resulting from failing to comply with reporting obligations or providing false
or misleading information to police, due to confusion over what circumstances
constitute contact.
The definition is formulated to exclude mere incidental contact with a child
and any reportable contact can be notified by telephone within one day, which
is not overly onerous, and constitutes the least restrictive means reasonably
available to achieve the purpose of the SOR act. Accordingly, I am satisfied
that these amendments are compatible with the right to privacy in the charter
act.
Retention of material for certain purposes
Clause 13 of the bill substitutes section 30 of the SOR act with a new section
that removes the current requirement on the chief commissioner to cause
material retained through reporting obligations about a registrable offender
to be destroyed at the end of the reporting period for that offender.
New section 30 allows the chief commissioner to retain indefinitely copies of
any documents, fingerprints, finger scans and any photographs taken as a
result of reporting obligations for the purposes of law enforcement, crime
prevention or child protection. It is noted that in cases where the registrant
is subject to indefinite reporting, the information is already retained
indefinitely. Consequently, the new section 30 will only apply where the
reporting period is limited. Further, it is noted that the information on the
register is subject to strict data privacy controls and safeguards.
The storing of personal data for law enforcement purposes in such cases may
constitute an interference with the right to privacy. In my view, given the
important purpose of retaining such information, I consider that the retention
of such information is compatible with the right to privacy.
However, I note that the retention of information in this context could
potentially be classed as an arbitrary interference with privacy as it gives
discretion to the chief commissioner to retain a
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wide variety of personal information of all registrable offenders for an
unlimited period of time, to be used for a wide variety of purposes connected
with law enforcement and child protection. However, even if that view were
accepted, I consider that any limit on privacy in this context is reasonable and
justified under section 7(2) of the charter act.
The indefinite retention of information for law enforcement supports a key
objective of the SOR act, namely facilitating the investigation of child
abuse. The operational policing value of the information and intelligence
relating to each registrable offender is significant.
The information and intelligence may be critically important in helping police
to investigate alleged crimes in which the registrable offender is implicated,
particularly alleged offences that occurred a long time ago.
A large proportion of registrable sex offences relate to historical incidents
where the offences are not reported and investigated until many years after
the original offending, commonly in the range of 15-20 years. Similarly, there
is often a significant time lag between many child abuse incidents and the
time of their reporting.
Accordingly, given the significant value of the information on the register to
future investigations, any restriction on the right to privacy is justified
and is not arbitrary.
Information sharing
The bill contains a number of amendments that allow information disclosures
relating to a registrable offender who is listed in the register.
Clause 20 amends section 63 of the SOR act to provide that the chief
commissioner may disclose to the Firearms Appeals Committee any information
relating to a registrable offender that is in the register. Clause 22 will
insert new section 64A into the SOR act to provide that the chief commissioner
may provide de-identified information in the register to any person if
considered appropriate to do so. This will enable the chief commissioner to
disclose de-identified information to experts for the purpose of activities
such as undertaking empirical research. As the information is de-identified it
does not limit the right to privacy.
Clause 28 amends the CYF act to insert a new part 3.2A of that act to provide
that the chief commissioner and the Secretary to the Department of Justice may
exchange information relating to registrable offenders with the Secretary to
the Department of Human Services.
The information may be exchanged if it comes to the notice of any of those
agencies that a registrable offender has had contact with a child. The
amendments outline specific circumstances where information can be shared
between departments and police to ensure that such bodies can exercise their
respective statutory functions to protect public safety and the welfare of
children. Information received from the Department of Justice or the
Department of Human Services is protected in accordance with the information
privacy principles in the Information Privacy Act 2000.
Clause 28 also allows the Secretary to the Department of Human Services or an
authorised person to disclose certain information to any other person if the
secretary or authorised person believes on reasonable grounds that the
disclosure of the information to that person is in the interests of the safety
and wellbeing of the child referred to in the information.
An example of such disclosure is a child protection worker's disclosure to a
child's parent, during a protective investigation, that a person having
contact with the child is a registered sex offender. The Secretary to the
Department of Human Services or authorised person must take reasonable steps
to notify the registrable offender of the disclosure unless it is believed on
reasonable grounds that doing so would endanger the life or safety of any
person. Further, information obtained by a person employed or engaged in the
administration of the CYF act or SOR act must not disclose that information
without authority.
While the sharing of information between the chief commissioner and the
Department of Justice and the Department of Human Services, and the provision
of information to third parties limit the registrant's right to privacy, the
purpose of the limitation is the safety and wellbeing of children.
The circumstances in which the information may be provided is limited to where
it is in the interests of the safety and wellbeing of children. Given the
vulnerability of children, and the importance of that purpose, the limitation
is reasonable.
Reporting time frames for changes in personal details
To address confusion arising out of different time frames for notification,
the bill amends a number of sections of the SOR act to adopt a uniform
notification time frame of seven days, which is consistent with other
reporting obligations in the SOR act. This amendment will affect the
requirement to report specified changes to relevant personal details under
section 17 of the SOR act and the requirement to report a return to Victoria
or change of intention to leave Victoria under section 20. The requirement to
report contact with a child will not be amended and will remain as one day.
The consequence of this amendment is a reduction in the time frame of many
notification obligations from 14 days to 7 days, which may increase the level
of interference posed by the reporting obligation on an offender's right to
privacy. However, in my view, the amendment is clear and necessary and
therefore does not limit the right to privacy.
The purpose of the scheme is to require certain offenders who commit sexual
offences to keep police informed of their whereabouts and other personal
details for a period of time in order to reduce the likelihood that they will
reoffend and facilitate the investigation and prosecution of any future
offences that they may commit.
Failing to comply with a reporting obligation without a reasonable excuse is
an offence punishable by imprisonment.
It is identified that a discrepancy in reporting periods has led to cases
where offenders have breached their obligations by accident or out of a
misunderstanding of their obligations. By providing a uniform period of seven
days for most reporting obligations, the clauses promote consistency and will
reduce difficulties with compliance, while upholding the overall protective
purpose of the scheme. For these reasons, any additional interference
occasioned by the amendment to section 17 of the SOR act will be neither
unlawful nor arbitrary.
Reporting time frames for interstate travel
Section 18 of the SOR act provides that a registrable offender must notify the
chief commissioner of an intended absence from Victoria seven days prior to
departure or within 24 hours if seven days is impracticable. Clause 8 of the
bill reduces the threshold for what constitutes a reportable absence from
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Victoria from '14 or more' consecutive days to '2 or more' consecutive days.
Clause 9 of the bill makes a similar amendment to section 19 of the SOR act
regarding change of travel plans while out of Victoria.
The result of these amendments is that offenders engaged in interstate travel
of 2 or more consecutive days face more onerous reporting requirements. I am
of the view that any resulting interference with the right to privacy is
lawful and not arbitrary. The scheme in its current form only requires
offenders to report interstate travel if they intend to be absent from
Victoria for 14 consecutive days or more. Reducing this period to 2 or more
consecutive days is more consistent with the purposes of the SOR, while still
avoiding placing an unnecessarily onerous burden on offenders to report short
trips or daily trips interstate for employment purposes. Consequently, in my
view clauses 8 and 9 of the bill do not limit the right to privacy.
Additional reporting obligations in relation to travel out of Australia
Clause 11 of the bill inserts new section 21A into the SOR act, which provides
for additional reporting obligations in relation to travel out of Australia.
Registrable offenders intending to leave Victoria to travel out of Australia
or returning to Victoria from overseas must, when complying with reporting
requirements, produce their passport and any other document in the registrable
offender's possession that contains information indicating where the
registrable offender intends to travel, or has travelled, while out of
Australia.
While this additional reporting obligation is an added interference with a
registrable offender's right to privacy, I am of the view that it is lawful
and not arbitrary.
Documentary evidence pertaining to a registrable offender's overseas travel is
necessary, among others things, to enhance law enforcement's capacity to
combat international sex tourism.
Verifying movements of registered sex offenders overseas allows police to make
registrants accountable for their movements in the context of the finite
police resources that are available in order to investigate and establish the
veracity of a registrant's report relating to movements overseas. Accordingly,
I am of the view that this additional requirement to provide such documents is
compatible with the right to privacy in the charter act.
Freedom of expression (s 15)
Section 15(2) of the charter act provides that every person has the right to
freedom of expression.
This includes the right to seek and receive information.
Freedom of information exemption
Clause 29 inserts new subsection 31(4) into the FOI act to provide that a
document contained in the sex offenders register is an exempt document under
the FOI act. This means that a person is unable to obtain access to such
documents under the FOI act. Such information was already exempt under section
31(3) of the FOI act, as the register is maintained by the intelligence and
covert support department (ICSD) of Victoria Police.
This amendment introduces a specific exemption relating to the register and
will allow greater flexibility to the organisational structure of Victoria
Police by removing the requirement for documents in the register to have been
created by ICSD in order to rely on the exemption contained in section 31(3).
While the register is currently exempt, this amendment can be considered as
further limiting the right of a person to receive information contained in
documents on the register. However, section 15(3) of the charter act provides
that the right to freedom of expression may be subject to lawful restrictions
reasonably necessary for the protection of the rights of other persons and to
protect public order.
The register contains documents that disclose personal information about
offenders, including the identity of registrants, residential addresses and
telephone numbers, employment details, internet user names, club affiliations,
car ownership details, criminal records, identities of any children residing
with the offender and travel plans of the offender.
The restriction of access to this information enables more effective case
management of registrable offenders, ensures higher levels of compliance with
reporting obligations, minimises the risk of vigilante activity and reduces
the capacity of registrable offenders to network with other registrable
offenders.
Accordingly, I am satisfied that this lawful restriction on the freedom of
expression is reasonably necessary to protect the rights of other persons and
for the protection of public order.
Matthew Guy, MLC
Minister for Planning