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SEX OFFENDERS REGISTRATION (AMENDMENT) BILL 2005

  Sex Offenders Registration (Amendment) Bill

                             As Sent Print

               EXPLANATORY MEMORANDUM


                                  General
The main purposes of this Bill are to amend the Sex Offenders Registration
Act 2004 to expand the definitions of "government custody", "sentence" and
supervised sentence", re-define Class 3 and Class 4 offences and
"corresponding registrable offender" and create new registrable offences,
alter the procedure and timelines for the making of a sex offender registration
order, permit reasonable force to be used to take photographs, alter the length
of reporting periods applicable under the Act, require courts to notify
offenders and the Chief Commissioner of Police of certain matters and
broaden the circumstances in which personal information in the Register of
Sex Offenders may be disclosed. This Bill also amends the Sentencing Act
1991 to prevent sentencing courts from having regard to any consequences
that may arise under the Sex Offenders Registration Act 2004 and the
Births, Deaths and Marriages Registration Act 1996 to require the
Registrar under that Act to notify the Chief Commissioner of Police of the
change of name of, or of the record of the sex of, persons on the Register of
Sex Offenders.
The Bill also amends the Schedules to the Act and the Serious Sex
Offenders Monitoring Act 2005 to include sexual offences that have been
repealed or amended, by reference to Schedule 1 of the Sentencing Act
1991.

                               Clause Notes
Clause 1    sets out the main purposes of the Bill.

Clause 2    is the commencement provision and provides that--
              ·      sections 1, 2, 3, 24(3), 24(4) and 26 of the Act will
                     come into operation on the day after the day on which
                     this Act receives Royal Assent; and
              ·      sections 24(1) and 24(2) are deemed to have come into
                     operation on 1 October 2004 which is the date of
                     commencement of the Principal Act; and

                                       1
551301                                                BILL LA AS SENT 25/5/2005

 


 

· the remaining provisions of the Act come into operation on a day or days to be proclaimed, and on 1 October 2005, if not in operation before then. Clause 3 states that the Sex Offenders Registration Act 2004 is called the Principal Act. Clause 4 expands the definitions of "government custody", "sentence" and "supervised sentence", re-defines "class 3 offence" and "class 4 offence", inserts definitions of "forensic resident", "involuntary patient" and "security patient", and repeals the definition of "strict government custody". Clause 5 inserts a note in section 6 of the Act to clarify that an adult offender sentenced for a class 1 or class 2 offence (other than a single class 2 offence for which he or she was not imprisoned or put under supervision) must comply with the reporting obligations in the Act. Clause 6 amends the reference to "offence of the same kind" in sub- section 6(8) to mean the same offence. Clause 7 substitutes a new section 8, which defines "class 3 offence" and "class 4 offence" as an offence listed in Schedules 3 and 4 of the Act respectively, committed against an adult by a serious sexual offender. This clause also defines a "serious sexual offender" as a person who has been sentenced for 2 or more offences listed in the Act in current or different trials or hearings or separate trials of different counts in the one presentment. Clause 8 substitutes a new section 9 to define who is a "corresponding registrable offender". A corresponding registrable offender is defined as a person who is required to report to the corresponding registrar in a foreign jurisdiction and would, if he or she were currently in that jurisdiction, be still required to report to that corresponding registrar. Such a person is a corresponding registrable offender, even if the offence in respect of which he or she is required to report is not a registrable offence in the Principal Act. 2

 


 

Clause 9 amends section 11 of the Principal Act to require the court to be satisfied , beyond reasonable doubt, that the person poses a risk to the "sexual safety of one or more persons or of the community" to enable a sex offender registration order to be made. This Clause also enables the prosecution to make an application for a sex offender registration order not later than 30 days after the sentence for a registrable offence is imposed. If a registrable offender appeals against a finding of guilt or sentence, then the application for the order is to be determined after that appeal. Clause 10 repeals section 11(7) of the Principal Act and inserts section 34(4) into the Principal Act, which deems that a person subject to a sex offender registration order found guilty of a class 3 offence to have been found guilty of a class 1 offence, and a person found guilty of a class 4 offence or any other offence (other than a class 3 offence) to have been found guilty of a class 2 offence, for the purposes of calculating that offender's reporting period. Clause 11 amends section 15(2) of the Principal Act to require a person who has been required to report to a corresponding registrar, and who has entered, and remains, in Victoria for 7 days or more before the commencement of this Act, to contact the Registrar of the Sex Offenders Register within 14 days after the commencement of this section. Clause 12 inserts section 27A in the Principal Act to enable a member of the police force, receiving a report made in person, to require the registrable offender to be photographed and to expose any part of his or her body (except his or her genitals, the anal area of his or her buttocks or in the case of females or transgender people who identify as females, their breasts) on which there are any tattoos or permanent distinguishing marks, to enable that part of the body to be photographed. Clause 13 amends section 28 of the Principal Act to require a member of the police force to inform the registrable offender of the purpose for which the power to photograph is to be exercised and why the member is not satisfied as to the registrable offender's identity, and if the registrable offender refuses to expose part of his or her body for the taking of photographs of that part of the body, that reasonable force be used. Reasonable force may be used if the registrable offender refuses to co-operate voluntarily and the use of force is authorised by a member of the police force in charge of a police station at the time of the request or a member of or above the rank of sergeant. 3

 


 

Clause 14 repeals section 29(1) and (2) of the Principal Act and substitutes reference to section 27A in section 29(3), (4) and (5) of the Principal Act. Clause 15 substitutes-- · a 15 year reporting period for a registrable offender who has ever been found guilty of 2 class 2 offences; · reporting for the remainder of his or her life for a registrable offender who has ever been found guilty of 2 or more class 1 offences or of a class 1 offence and 1 or more class 2 offences or of 3 or more class 2 offences. Clause 16 substitutes section 37 of the Principal Act to require a corresponding registrable offender to continue to comply with the reporting obligations imposed by Part 3 of the Act until, if he or she were in a foreign jurisdiction, he or she would not be required to report to the corresponding registrar of that foreign jurisdiction. If a corresponding registrable offender is so in more than one jurisdiction, the reporting period that applies is the longest for which he or she would be required to report to the corresponding registrar of a foreign jurisdiction. Clause 17 substitutes section 50(5) of the Principal Act to ensure that a court that makes any order or imposes any sentence that makes a person a registrable offender, or imposes any sentence on a person for a registrable offence, must give a written notice specifying the reporting period that applies to that person at the time the order is made or sentence is imposed. Clause 18 amends section 51 of the Principal Act to, if a court determines an appeal made by a registrable offender against the finding of guilt, sentence in respect of a registrable offence, or against the making of a sex offender registration order in respect of an offence, ensure that the details of the determination are provided to the Chief Commissioner of Police by the court as soon as practicable after the determination of the appeal. Clause 19 repeals section 53(1)(a) of the Principal Act. 4

 


 

Clause 20 amends section 63(1)(b) of the Principal Act to enable personal information in the Register to be disclosed by a person with access to the Register to a court for judicial functions or activities. The Chief Commissioner of Police is able to notify the Registrar of Births, Deaths and Marriages of the date of birth and residential address(es) of any registrable offender as stated in the Register of Sex Offenders. Clause 21 inserts an additional offence in Schedule 1 of the Principal Act, aggravated sexual servitude. Clause 22 inserts additional offences in Schedule 2 of the Principal Act, aggravated deceptive recruiting for commercial sexual services; sexual performance involving a minor; using a carriage service for child pornography material; possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service; using a carriage service for child abuse material; possessing, controlling, producing, supplying or obtaining child abuse material through a carriage service; using a carriage service to procure persons under 16 years of age; and using a carriage service to "groom" persons under 16 years of age. Clause 23 inserts additional offences in Schedule 4 of the Principal Act, sexual servitude and deceptive recruiting for commercial sexual services. Clause 24 amends Schedules 1 to 4 of the Principal Act to clarify the intent of references to sexual penetration offences, whether committed against children or adults and to include reference to offences from Schedule 1 of the Sentencing Act 1991 which have either been repealed, amended or replaced. The amendments are made retrospective to the date of commencement of the Principal Act to ensure that the Act operated effectively from that commencement. Clause 25 inserts section 73A, which applies the substituted reporting periods in clause 15 to any person who is sentenced for a registrable offence on or after the commencement of section 15 of the Act. The Registrar of the Sex Offenders Register is to give a notice to a registrable offender containing the registrable offender's reporting period when he or she reports his or her personal information to the Chief Commissioner of Police, when sentenced for a registrable offence before the commencement of clause 24 of this Bill, and who is not again sentenced for a registrable offence on or after the commencement of section 14 before his or her reporting obligations commence for that offence. 5

 


 

Clause 26 amends section 5 of the Serious Sex Offenders Monitoring Act 2005 to clarify that for the purposes of this section the court that imposed the original sentence is the court to which an application may be made for a Extended Supervision Order. This clause also amends the Schedule to the Serious Sex Offenders Monitoring Act 2005 to clarify the intent of references to sexual penetration offences committed against children, and to include reference to offences from Schedule 1 of the Sentencing Act 1991 which have been repealed, amended or replaced. Clause 27 amends section 5 of the Sentencing Act 1991 to ensure that, in sentencing an offender, a court must not have regard to any consequences that may arise under the Act from the imposition of the sentence. Clause 28 inserts a new section 29A in the Births, Deaths and Marriages Registration Act 1996 to require the Registrar of Births, Deaths and Marriages to notify the Chief Commissioner of Police if a person on the Sex Offenders Register registers a change of name. This notification must be given in writing and must state both the person's former and new names. This requirement applies when the Registrar has previously been notified that the person is on the Sex Offenders Register. Clause 29 inserts a new section 30I in the Births, Deaths and Marriages Registration Act 1996 to require the Registrar of Births, Deaths and Marriages to notify the Chief Commissioner of Police if the record of the gender of a person on the Sex Offenders Register is altered, or if the Registrar issues a document acknowledging that person's name and gender. This requirement applies when the Registrar has previously been notified that the person is on the Sex Offenders Register. 6

 


 

 


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