Sex Offenders Registration Amendment (Miscellaneous) Act 2017
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Sex Offenders Registration Amendment
(Miscellaneous) Act 2017
No. 25 of 2017
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
3 Principal Act 2
Part 2—Amendment of the Sex Offenders Registration Act 2004 3
Division 1—Registration exemption orders 3
4 Definitions 3
5 New Division heading inserted 3
6 Who is a registrable offender? 3
7 New Division 2 of Part 2 inserted 4
8 New section 30A inserted 10
9 New section 35B inserted 10
10 New section 73H inserted 11
11 New Schedule 5 inserted 11
Division 2—Suspension of reporting obligations 16
12 Chief Commissioner may apply for suspension from reporting
obligations 16
13 New section 39B inserted 17
14 Order for suspension 17
15 No costs to be awarded 18
16 Chief Commissioner may apply for revocation of suspension
order 18
17 Chief Commissioner of Police may suspend reporting
obligations 18
18 New section 73I inserted 19
Division 3—Investigative powers and procedures 19
19 Power to take fingerprints or fingerscan 19
20 Section 27 amended 21
21 Reasonable force may be used to obtain fingerprints 23
22 New sections 47A to 47C inserted 23
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Division 4—Child-related employment and other amendments 26
23 Purpose and outline 26
24 Definitions 27
25 Who is a registrable offender? 27
26 What is a registrable offence? 27
27 Sex offender registration order 28
28 Initial report by registrable offender of personal details 30
29 Registrable offender must report annually 30
30 How reports to be made 31
31 Notice to be given to registrable offender 31
32 Notices may be given by Chief Commissioner 31
33 Explanation of interim prohibition order 32
34 Explanation of final prohibition order 32
35 Recording and register of seized things 32
36 Court may vary a prohibition order 32
37 Court may revoke a prohibition order 32
38 Court may extend a final prohibition order 32
39 Corresponding registrable offender to be notified of registration
order 32
40 Court may vary a registration order 32
41 Revocation of a registration order 33
42 Heading to Part 5 33
43 Definitions 33
44 Registrable offender excluded from child-related employment 33
45 Registrable offender who is also subject to a supervision or
detention order 33
46 Chief Commissioner of Police to report to Minister 34
47 New section 74A inserted 34
48 Repeal of item 8 of Schedule 1 34
49 Amendment of Schedule 2 34
Part 3—Amendment of the Crimes Act 1958 37
50 Definitions 37
51 Execution of authorisation or order 37
52 New section 464ZFAB inserted 37
53 Section 464ZFAB amended 39
54 Destruction of information following finding of guilt etc. 41
55 Victorian DNA database 42
Part 4—Amendment of the Criminal Procedure Act 2009 43
56 Definitions 43
Part 5—Amendment of the Serious Sex Offenders (Detention and
Supervision) Act 2009 44
57 Sex offender registration order under Sex Offenders
Registration Act 2004 44
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Part 6—Amendment of the Working with Children Act 2005 45
58 Sex offenders not to apply for assessment notice 45
Part 7—Repeal of amending Act 46
59 Repeal of amending Act 46
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Endnotes 47
1 General information 47
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Sex Offenders Registration Amendment
(Miscellaneous) Act 2017†
No. 25 of 2017
[Assented to 20 June 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The purposes of this Act are—
(a) to amend the Sex Offenders Registration
Act 2004 in relation to—
(i) the exemption of certain young adult
sex offenders from the requirements of
that Act; and
Victoria
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(ii) the suspension of reporting obligations
under that Act; and
(iii) investigative powers and procedures
under that Act; and
(iv) the prohibition on sex offenders from
engaging in child-related employment;
and
(b) to make other miscellaneous and
consequential amendments to that Act; and
(c) to amend the Crimes Act 1958 to provide
for the taking of DNA samples from sex
offenders; and
(d) to make consequential amendments to
the Criminal Procedure Act 2009, the
Serious Sex Offenders (Detention and
Supervision) Act 2009 and the Working
with Children Act 2005.
2 Commencement
(1) Subject to subsection (4), this Act (other than
sections 20 and 53) comes into operation on a day
or days to be proclaimed.
(2) Section 20 comes into operation 3 years after the
day on which section 19 comes into operation.
(3) Section 53 comes into operation 3 years after the
day on which section 52 comes into operation.
(4) If a provision of this Act (other than sections 20
and 53) does not come into operation before
1 March 2018, it comes into operation on that day.
3 Principal Act
In this Act, the Sex Offenders Registration
Act 2004 is called the Principal Act.
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Part 2—Amendment of the Sex Offenders
Registration Act 2004
Division 1 —Registration exemption orders
4 Definitions
In section 3 of the Principal Act insert the
following definitions—
"registration exemption order means an order
made under section 11B;
specified offence means a Class 1 or Class 2
offence referred to in Schedule 5;".
5 New Division heading inserted
After the heading to Part 2 of the Principal Act
insert—
"Division 1—Registrable offenders".
6 Who is a registrable offender?
(1) In section 6(2) of the Principal Act, for "A person"
substitute "Subject to subsection (2B), a person".
(2) After section 6(2) of the Principal Act insert—
"(2A) A person is not a registrable offender merely
because the person committed a specified
offence for which the person has been
sentenced if a court declares, by order made
under section 11B, that the person is not a
registrable offender in respect of that
offence.
Note
A person may become a registrable offender in
respect of another offence—see section 11E(3).
(2B) A person is not a registrable offender merely
because the person is a corresponding
registrable offender or a New South Wales
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registrable offender in respect of a specified
offence committed in Victoria if a court
declares, by order made under section 11B,
that the person is not a registrable offender in
respect of that offence.".
7 New Division 2 of Part 2 inserted
After section 11 of the Principal Act insert—
"Division 2—Registration exemption
orders
11A Application for registration exemption
order
(1) Subject to this section, a person who has
been found guilty by a court of a registrable
offence that is a specified offence may apply
for a registration exemption order in respect
of the offence if the person—
(a) at any time during the commission of
the offence, was 18 or 19 years of age;
and
(b) at all times during the commission of
the offence, was not more than 19 years
of age.
(2) A person may not apply for a registration
exemption order if the person—
(a) has been found guilty of another
registrable offence that is not a
specified offence; or
(b) has been found guilty of another
specified offence for which an
application for a registration exemption
order has been refused; or
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(c) was a registrable offender at the time
the person committed the specified
offence to which the application relates;
or
(d) is a corresponding registrable offender
or a New South Wales registrable
offender.
(3) A person may not apply for a registration
exemption order in respect of a specified
offence against more than one victim unless
the offence relates to the possession of child
abuse material or child pornography.
(4) An application may relate to more than one
specified offence if—
(a) each specified offence relates to the
possession of child abuse material or
child pornography; or
(b) each specified offence was committed
against the same victim.
11B Determination of application
(1) On the hearing of an application under
section 11A, a court may, by order, declare
that the applicant is not a registrable offender
in respect of a specified offence if the court
is satisfied on the balance of probabilities
that—
(a) at all times during the commission of
the specified offence—
(i) any victim of the offence is of or
over the age of 14 years; or
(ii) any person depicted or described
in any material to which the
offence relates is of or over the
age of 14 years; and
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(b) the applicant poses no risk or a low risk
to the sexual safety of one or more
persons or of the community, having
regard to—
(i) the seriousness of the specified
offence; and
(ii) the ages of the applicant and any
victim of the specified offence at
the time of the commission of the
specified offence; and
(iii) whether any victim of the
specified offence was under the
care, supervision or authority of
the applicant at the time of the
specified offence; and
(iv) whether any victim of the
specified offence had a cognitive
impairment or mental illness
within the meaning of Subdivision
(8E) of Division 1 of Part I of the
Crimes Act 1958 at the time of
the commission of the specified
offence; and
(v) where the application relates to
more than one specified offence—
the number and nature of those
specified offences, including
whether the specified offences
arose out of the same set of
circumstances; and
(vi) any other matter that the court
considers relevant; and
(c) but for the specified offence, the
applicant would not be a registrable
offender.
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(2) A court must refuse to make an order under
subsection (1) if not satisfied as required by
subsection (1).
(3) A court may not make an order under
subsection (1) in respect of an application
referred to in section 11A(2) or (3).
(4) For the purposes of subsection (1)(b), it is
not necessary that the court be able to
identify a risk posed by the registrable
offender to the sexual safety of a particular
person or a particular class of person.
(5) In deciding whether to make an order under
subsection (1), the court must take into
account any submissions made by the Chief
Commissioner of Police under section 11F.
(6) An order under subsection (1) may relate to
one or more specified offences.
(7) An order under subsection (1) must contain
the information, if any, prescribed by the
rules of court.
11C When application may be made
An application under section 11A may be
made not later than 6 months after the day on
which the applicant is first given notice
under section 50 or 54 of the applicant's
reporting obligations.
11D How application is made
(1) An application under section 11A is made by
filing with the relevant court referred to in
subsection (2) a document in writing—
(a) stating the grounds on which the
application is made; and
(b) containing the information, if any,
prescribed by the rules of court.
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(2) An application under section 11A is to be
made—
(a) to the court that imposed the sentence
at first instance for the specified
offence to which the application relates;
or
(b) if the application relates to more than
one specified offence, to the court of
the highest jurisdiction that imposed a
sentence at first instance for any of the
specified offences; or
(c) to the Magistrates' Court, if the
application relates to a specified
offence for which the applicant was
sentenced by a court in a foreign
jurisdiction.
(3) A copy of an application must be served by
the applicant on the Chief Commissioner of
Police as soon as practicable after the
application is filed.
11E Effect of registration exemption order
(1) On the making of a registration exemption
order, the person in respect of whom the
order is made ceases to be a registrable
offender for the purposes of this Act.
(2) Nothing in this Division affects—
(a) any obligation or prohibition that
applies to a registrable offender for any
period during which the person is a
registrable offender; or
(b) the consequences of a failure to comply
with an obligation or prohibition
referred to in paragraph (a).
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(3) A registration exemption order does not
prevent a person becoming a registrable
offender if—
(a) the person is sentenced for another
registrable offence in respect of which
no registration exemption order is
made; or
(b) the person becomes a corresponding
registrable offender or a New South
Wales registrable offender in respect of
an offence other than an offence to
which the registration exemption order
relates.
11F Chief Commissioner of Police is party to
application
The Chief Commissioner of Police is a party
to an application under section 11A and may
make any submission to the court in respect
of the application.
11G Admissibility of evidence in hearing of
application
(1) Without limiting any other evidence that
may be adduced, the following is admissible
as evidence in the hearing of an application
under section 11A—
(a) the transcript or other record of the
evidence given by a victim in the trial
or sentencing hearing of the applicant
for a specified offence to which the
application relates;
(b) a victim impact statement tendered in
the sentencing hearing of the applicant
for a specified offence to which the
application relates.
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(2) A court must not grant leave to
cross-examine a victim referred to in
subsection (1) in the hearing of an
application under section 11A.".
8 New section 30A inserted
After section 30 of the Principal Act insert—
"30A Retention of material when registration
exemption order made
The Chief Commissioner of Police may
retain for law enforcement, crime prevention
or child protection purposes any of the
following taken under this Division from, or
recorded in relation to, a registrable offender
who is made subject to a registration
exemption order—
(a) copies of any documents;
(b) fingerprints or fingerscans;
(c) photographs;
(d) a forensic sample taken under
section 464ZFAB of the Crimes
Act 1958 and any related material and
information within the meaning of
section 464(2) of that Act.".
9 New section 35B inserted
After section 35A of the Principal Act insert—
"35B Reporting period to run while registration
exemption order in force
If a court makes a registration exemption
order in respect of a registrable offender and
that order is set aside on appeal, the period
during which the registration exemption
order was in force is counted when
calculating the remainder of the registrable
offender's reporting period.".
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10 New section 73H inserted
After section 73G of the Principal Act insert—
"73H Transitional provision—Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017—Application for registration
exemption order
Despite section 11C, a person who was a
registrable offender immediately before
section 7 of the Sex Offenders Registration
Amendment (Miscellaneous) Act 2017
comes into operation may apply under
section 11A for a registration exemption
order before the later of—
(a) the day which is 2 years after the
day on which section 7 of the Sex
Offenders Registration Amendment
(Miscellaneous) Act 2017 comes into
operation; or
(b) the day which is 2 years after the day
on which the registrable offender is first
given notice under section 50 or 54 of
the registrable offender's reporting
obligations.".
11 New Schedule 5 inserted
After Schedule 4 to the Principal Act insert—
"Schedule 5—Specified offences
Section 3(1)
1. An offence against any of the following
provisions of the Crimes Act 1958—
(a) section 49B(1) (sexual penetration
involving a child under the age of 16);
(b) section 49D(1) (sexual assault of a
child under the age of 16);
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(c) section 49F(1) (sexual activity in
the presence of a child under the age
of 16);
(d) section 49H(1) (causing a child under
the age of 16 to be present during
sexual activity);
(e) section 49K(1) (encouraging a child
under the age of 16 to engage in, or be
involved in, sexual activity);
(f) section 51B(1) (involving a child in the
production of child abuse material)
except if the offence only relates to
child abuse material that depicts or
describes a person who is, or who
appears or is implied to be, a child as a
victim of cruelty or physical abuse,
where the cruelty or physical abuse is
not sexual;
(g) section 51C(1) (producing child abuse
material) except if the offence only
relates to child abuse material that
depicts or describes a person who is, or
who appears or is implied to be, a child
as a victim of cruelty or physical abuse,
where the cruelty or physical abuse is
not sexual;
(h) section 51D(1) (distributing child abuse
material) except if the offence only
relates to child abuse material that
depicts or describes a person who is, or
who appears or is implied to be, a child
as a victim of cruelty or physical abuse,
where the cruelty or physical abuse is
not sexual;
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(i) section 51G(1) (possession of child
abuse material) except if the offence
only relates to child abuse material that
depicts or describes a person who is, or
who appears or is implied to be, a child
as a victim of cruelty or physical abuse,
where the cruelty or physical abuse is
not sexual;
(j) section 51H(1) (accessing child abuse
material).
2. An offence against any of the following
provisions of the Crimes Act 1958, as in
force before the commencement of
section 16 of the Crimes Amendment
(Sexual Offences) Act 2016—
(a) section 45(1) (sexual penetration
involving a child under the age of
16 years);
(b) section 47(1) (indecent act with child
under the age of 16).
3. An offence against any of the following
provisions of the Crimes Act 1958, as in
force before the commencement of
section 18 of the Crimes Amendment
(Sexual Offences) Act 2016—
(a) section 68(1) (production of child
pornography);
(b) section 70(1) (possession of child
pornography).
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4. An offence against the following provision
of the Classification (Publications, Films
and Computer Games) (Enforcement)
Act 1995, as in force before the
commencement of section 34 of the Crimes
Amendment (Sexual Offences) Act 2016—
(a) section 57A (publication or
transmission of child pornography).
5. An offence against any of the following
provisions of the Criminal Code of the
Commonwealth—
(a) section 272.8(1) (sexual intercourse
with child outside Australia);
(b) section 272.9(1) (sexual activity
(other than sexual intercourse) with
child outside Australia);
(c) section 273.5(1) (possessing,
controlling, producing, distributing or
obtaining child pornography material
outside Australia);
(d) section 471.16(1) and (2) (using a
postal or similar service for child
pornography material);
(e) section 471.17(1) (possessing,
controlling, producing, supplying or
obtaining child pornography material
for use through a postal or similar
service);
(f) section 471.26(1) (using a postal or
similar service to send indecent
material to person under 16);
(g) section 474.19(1) (using a carriage
service for child pornography material);
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(h) section 474.20(1) (possessing,
controlling, producing, supplying or
obtaining child pornography material
for use through a carriage service);
(i) section 474.25A(1) (using a carriage
service for sexual activity with a person
under 16 years of age);
(j) section 474.27A(1) (using a carriage
service to transmit indecent
communication to person under
16 years of age).
6. Any offence under a law of a foreign
jurisdiction that, if it had been committed in
Victoria, would have constituted an offence
of a kind referred to in this Schedule.
7. An offence an element of which is an
intention to commit an offence of a kind
referred to in this Schedule.
8. An offence of attempting, or of conspiracy or
incitement, to commit an offence of a kind
referred to in this Schedule.
9. An offence that, at the time it was
committed, was referred to in this Schedule.
10. An offence committed before the
commencement of section 11 of the Sex
Offenders Registration Amendment
(Miscellaneous) Act 2017 that was an
offence of a kind referred to in this
Schedule.".
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Division 2—Suspension of reporting obligations
12 Chief Commissioner may apply for suspension from
reporting obligations
(1) In section 39A of the Principal Act, for
"the Supreme Court" substitute "a court".
(2) At the end of section 39A of the Principal Act
insert—
"(2) Subject to this section, an application under
subsection (1) must be made—
(a) to the court that imposed the sentence
at first instance for the registrable
offence committed by the registrable
offender; or
(b) if the registrable offender has been
sentenced for more than one registrable
offence in more than one court, to the
court of the highest jurisdiction that
imposed a sentence at first instance.
(3) An application under subsection (1) must be
made to the Magistrates' Court if the
registrable offender—
(a) has been sentenced by the Children's
Court for one or more registrable
offences; and
(b) has not been sentenced for a registrable
offence by any other court; and
(c) is of or over the age of 21 years at the
time the application is made.
(4) An application under subsection (1) that
relates to a person who is a registrable
offender because the person is a
corresponding registrable offender or a
New South Wales registrable offender or
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was sentenced for an offence in a foreign
jurisdiction must be made to—
(a) the Supreme Court, if the person to
whom the application relates is of or
over the age of 18 years at the time the
application is made; or
(b) the Children's Court, if the person to
whom the application relates is a child
at the time the application is made.".
13 New section 39B inserted
After section 39A of the Principal Act insert—
"39B How application is made
An application under section 39 or 39A is
made by filing with the relevant court
referred to in that section a document in
writing—
(a) stating the grounds on which the
application is made; and
(b) containing the information, if any,
prescribed by the rules of court.".
14 Order for suspension
(1) In section 40(1A) of the Principal Act, for
"the Supreme Court" substitute "a court".
(2) For section 40(2) of the Principal Act
substitute—
"(2) A court must not make an order under this
section unless it is satisfied that—
(a) the registrable offender poses no risk or
a low risk to the sexual safety of one or
more persons or of the community; and
(b) it is in the public interest to suspend the
registrable offender's reporting
obligations.".
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(3) In section 40(3) of the Principal Act—
(a) for "the Court" (where first occurring)
substitute "a court";
(b) in paragraph (f), for "the Court" substitute
"the court".
(4) In section 40(4) of the Principal Act, for
"the Court" substitute "the Supreme Court".
(5) In section 40(5) of the Principal Act, for
"the Court" substitute "a court".
15 No costs to be awarded
In section 42 of the Principal Act, for
"The Supreme Court" substitute "A court".
16 Chief Commissioner may apply for revocation of
suspension order
In section 44A(1) of the Principal Act, for
"the Supreme Court for the revocation of an order
granted" substitute "a court for the revocation of
an order made by that court".
17 Chief Commissioner of Police may suspend
reporting obligations
(1) In the heading to section 45A of the Principal Act,
for "12 months" substitute "5 years".
(2) In section 45A(1) of the Principal Act, for
"12 months" substitute "5 years".
(3) In section 45A(2) of the Principal Act, after
"does not pose a risk" insert "or poses a low risk".
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18 New section 73I inserted
Before section 74 of the Principal Act insert—
"73I Transitional provision—Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017—Application for suspension
from reporting obligations
An application under section 39A that has
commenced but not concluded before the
commencement of section 14 of the Sex
Offenders Registration Amendment
(Miscellaneous) Act 2017 must be
determined by the Supreme Court in
accordance with section 40 as amended
by section 14 of the Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017.".
Division 3—Investigative powers and procedures
19 Power to take fingerprints or fingerscan
(1) For section 27(1) of the Principal Act
substitute—
"(1) A police officer may take, or may cause to
be taken by a police custody officer within
the meaning of section 3(1) of the Victoria
Police Act 2013, the fingerprints or a
fingerscan of a registrable offender if—
(a) the fingerprints or a fingerscan of the
registrable offender are not already held
by the Chief Commissioner of Police;
or
(b) the registrable offender is reporting
under this Part and the police officer is
not satisfied as to the identity of the
registrable offender.".
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(2) After section 27(2) of the Principal Act insert—
"(3) A police officer of or above the rank of
senior sergeant may serve, or may cause to
be served, a notice on a registrable offender
referred to in subsection (1) directing the
registrable offender to attend at a police
station specified in the notice within 28 days
after service of the notice to have the
fingerprints or a fingerscan of the registrable
offender taken.
(4) A notice under subsection (3) must—
(a) state that if the registrable offender fails
to comply with the notice, an
application for a warrant to arrest the
registrable offender may be made
without further notice to the registrable
offender; and
(b) state that the registrable offender may
wish to seek legal advice as to the
effect of the notice; and
(c) state the name, rank and telephone
number of the police officer serving the
notice or causing the notice to be
served; and
(d) contain the prescribed information, if
any.
(5) A notice under subsection (3) must be served
by delivering a true copy of the notice to the
registrable offender personally.
(6) Section 464ZFAA(6), (7) and (8) of the
Crimes Act 1958 apply to a notice served
under subsection (3) as if it were a notice
served under that section.".
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20 Section 27 amended
After section 27(6) of the Principal Act insert—
"(7) Subject to subsection (8), a police officer
may take the fingerprints or a fingerscan
under subsection (1) of a registrable offender
whose reporting obligations under this Act—
(a) have been suspended under Division 6
of Part 3; or
(b) have been suspended under
section 32(1)(b); or
(c) have expired under section 34(1)—
only if a notice under subsection (3) has been
served on the registrable offender.
(8) A registrable offender referred to in
subsection (7) may refuse to have
fingerprints or a fingerscan taken and to
attend at a police station in compliance
with a notice under subsection (3) if the
registrable offender demonstrates to the
reasonable satisfaction of the police officer
referred to in subsection (3)—
(a) if the registrable offender was
a registrable offender on the
commencement of the initial period,
that the registrable offender has been
resident in Victoria for not less than
2 years and 6 months in aggregate
during the initial period; or
(b) that the registrable offender has been
resident in Victoria for a continuous
period of 12 months at any time after
the expiry of the initial period and was
a registrable offender during the whole
of that period of 12 months.
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(9) A person serving a notice under
subsection (3) on a registrable offender
referred to in subsection (7) must inform the
registrable offender, in a manner likely to be
understood by the offender, of the following
matters—
(a) that the offender may refuse to comply
with the notice;
(b) the grounds on which the offender may
refuse to comply; and
(c) that the offender may wish to seek legal
advice as to the effect of the notice.
(10) A police officer referred to in subsection (8)
must take into account any information
provided by the registrable offender.
(11) Before a registrable offender referred to
in subsection (7) has fingerprints or a
fingerscan taken, a police officer must,
in a manner likely to be understood by the
offender—
(a) inform the offender of the grounds on
which the offender may refuse to have
fingerprints or a fingerscan taken; and
(b) ask the offender whether the offender
wishes to refuse.
(12) If a registrable offender does not have a
knowledge of the English language that is
sufficient to enable the person to understand
the matters referred to in subsection (9)
or (11), the person informing the offender
must arrange for the presence of a competent
interpreter and defer the giving of the
information until the interpreter is present.
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(13) In this section—
initial period means the period of 3 years
commencing on the day on which
section 19 of the Sex Offenders
Registration Amendment
(Miscellaneous) Act 2017
comes into operation.".
21 Reasonable force may be used to obtain fingerprints
In section 28(1)(a) of the Principal Act, for
"section 27" substitute "section 27(1)(b)".
22 New sections 47A to 47C inserted
After section 47 of the Principal Act insert—
"47A Search warrants
(1) A police officer of or above the rank of
senior sergeant may apply to a magistrate for
the issue of a search warrant in relation to
particular premises or a place (including a
vehicle in or on the premises or the place) if
the police officer suspects on reasonable
grounds that—
(a) an offence against this Act has been, is
being or is likely to be committed; and
(b) it is necessary to search the particular
premises or the place (including a
vehicle in or on the premises or the
place) in order—
(i) to investigate or prevent the
commission of that offence or the
continuation of the commission of
that offence; or
(ii) to enable evidentiary material to
be obtained of the commission of
that offence or of the identity or
location of an offender.
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(2) In addition to any other requirement, an
application for a search warrant under this
section must state—
(a) the name and rank of the applicant; and
(b) the particulars of the grounds on which
the application is based; and
(c) the address or other description of the
premises or place to be searched; and
(d) if the warrant is sought to search for a
particular thing, a full description of
that thing and, if known, its location;
and
(e) if the warrant is sought to search for a
particular kind of thing, a description of
the kind of thing; and
(f) if a previous application for the same
warrant was refused, details of the
refusal; and
(g) any other prescribed information.
(3) On an application under subsection (1), if a
magistrate is satisfied by evidence on oath,
whether oral or by affidavit, that there are
reasonable grounds for suspecting that an
offence against this Act has been, is being or
is about to be committed, and that it is
necessary to search the particular premises or
a place (including a vehicle in or on the
premises or the place) for a purpose specified
in subsection (1)(b), the magistrate may issue
a search warrant authorising the police
officer named in the warrant and any
assistants the police officer considers
necessary—
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(a) to enter the particular premises or place
or vehicle named or described in the
warrant; and
(b) to search for and seize any evidence of
the offence named or described in the
warrant, including evidence of the
identity or location of an offender.
(4) A search warrant must be issued in
accordance with the Magistrates' Court
Act 1989 and in the prescribed form under
that Act.
(5) The rules to be observed with respect to
search warrants set out by or under the
Magistrates' Court Act 1989 extend and
apply to warrants under this section.
(6) In this section—
vehicle includes motor vehicle, aircraft and
vessel.
47B Expiry of search warrant
A search warrant issued under section 47A
ceases to have effect on the earliest of the
following—
(a) on the expiry date specified in the
warrant;
(b) if no expiry date is specified, at the end
of the period of one month after its
issue;
(c) when it is executed.
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47C Power to require assistance from person
with knowledge of a computer or
computer network
If a magistrate issues a warrant under
section 47A, section 465AA (other than
subsection (10A)) of the Crimes Act 1958
applies as if—
(a) a reference to the Magistrates' Court
were a reference to a magistrate; and
(b) a reference to a warrant under
section 465 of the Crimes Act 1958
were a reference to a warrant under
section 47A; and
(c) a reference to warrant premises were a
reference to the particular premises or
place (including a vehicle in or on the
premises or place) specified in a
warrant issued under section 47A; and
(d) a reference to an indictable offence
were a reference to an offence against
this Act.".
Division 4—Child-related employment and
other amendments
23 Purpose and outline
In section 1(1)(b) and (2)(g) of the Principal Act,
for "registered sex offenders" substitute
"registrable offenders".
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24 Definitions
(1) In section 3 of the Principal Act, after
paragraph (iv) of the definition of government
custody insert—
"(iva) a person detained in a residential treatment
facility in accordance with a residential
treatment order made under section 82AA of
the Sentencing Act 1991; or
(ivb) a child placed in a secure welfare service in
accordance with section 173(2)(b) of the
Children, Youth and Families Act 2005;
or".
(2) At the end of section 3 of the Principal Act
insert—
"(2) A person who, on the day of commencement
of section 24 of the Sex Offenders
Registration Amendment (Miscellaneous)
Act 2017, is a person described in
paragraph (iva) or (ivb) of the definition of
government custody is taken to have entered
government custody on that day.".
25 Who is a registrable offender?
(1) In section 6(1) of the Principal Act, for
"subsections (3)" substitute "subsections (4)".
(2) After section 6(1) of the Principal Act insert—
"(1A) Subject to subsection (5), a person who is
subject to a sex offender registration order
made under section 11(9) is also a registrable
offender.".
(3) Section 6(3) of the Principal Act is repealed.
26 What is a registrable offence?
(1) In section 7(1)(a) and (b) of the Principal Act,
after "offence" insert "committed as an adult".
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(2) At the foot of section 7(1) of the Principal Act
insert—
"Note
Any other offence committed as an adult or an offence
committed as a child may result in the making of a sex
offender registration order under section 11(1), (1A), (2)
or (2A).".
27 Sex offender registration order
(1) After section 11(1) of the Principal Act insert—
"(1A) On an application by a police officer, the
Magistrates' Court may order that a person
who is found guilty by a court of a foreign
jurisdiction of an offence committed as an
adult that is not a Class 1 or Class 2 offence
(including a Class 3 or Class 4 offence)
comply with the reporting obligations of
this Act.".
(2) For section 11(2) and (2A) of the Principal Act
substitute—
"(2) If a court finds a person guilty of an offence
committed as a child (including a Class 1,
Class 2, Class 3 or Class 4 offence), it may
order that the person comply with the
reporting obligations of this Act.
(2A) On an application by a police officer, a court
may order that a person who is found guilty
by a court of a foreign jurisdiction of an
offence committed as a child (including a
Class 1, Class 2, Class 3 or Class 4 offence)
comply with the reporting obligations of this
Act.
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(2AB) An application under subsection (2A) must
be made to—
(a) the Magistrates' Court, if the person to
whom the application relates is an
adult; or
(b) the Children's Court, if the person to
whom the application relates is a
child.".
(3) In section 11(2B) of the Principal Act, after
"subsection" insert "(2) or".
(4) In section 11(5) of the Principal Act, after
"this section if it" insert "or a court of a foreign
jurisdiction".
(5) In section 11(6) of the Principal Act, after
"under this section" insert "(other than an
order referred to in subsection (1A) or (2A))".
(6) Section 11(8) of the Principal Act is repealed.
(7) In section 11(10) of the Principal Act—
(a) in paragraph (b), for "years; and" substitute
"years.";
(b) paragraph (c) is repealed.
(8) After section 11(10) of the Principal Act insert—
"(11) A registrable offender is subject to an order
made under this section for the remainder of
the registrable offender's life, regardless of
the period for which the registrable offender
must comply with the reporting obligations
of this Act, unless the order is quashed or set
aside by a court.".
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28 Initial report by registrable offender of personal
details
(1) In section 14(1)(d) of the Principal Act omit
"or, if he or she does not generally reside at any
particular premises, the name of each of the
localities in which he or she can generally be
found".
(2) After section 14(1)(d) of the Principal Act
insert—
"(daa) details that are sufficient to identify any
place where the person sleeps on a regular
basis;
Example
Relevant details may include the name and address of
a refuge, shelter or similar premises at which the
person sleeps, the details of a vehicle in which the
person sleeps or the address of a park, beach or other
outdoor location at which the person sleeps.".
(3) In section 14(1)(dc) of the Principal Act omit
"and business address".
(4) In section 14(1)(h) of the Principal Act, for
"number of any motor vehicle" substitute
"number (if any) of any motor vehicle or
caravan".
(5) After section 14(2)(a) of the Principal Act
insert—
"(b) a registrable offender sleeps at a place on a
regular basis if the person sleeps at that place
more than once in any period of 14 days;
and".
29 Registrable offender must report annually
After section 16(4) of the Principal Act insert—
"(5) Despite subsection (2), a registrable offender
who is residing in a residential facility as a
condition of a supervision order made under
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the Serious Sex Offenders (Detention and
Supervision) Act 2009 must make the
report on the day specified by the Chief
Commissioner of Police by written notice
served on the registrable offender.
(6) A notice under subsection (5) must specify a
date that is within the calendar month in
which the anniversary of the date on which
the registrable offender first reported in
accordance with this Act or a corresponding
Act falls.".
30 How reports to be made
For section 23(1)(c) of the Principal Act
substitute—
"(c) a report of a change of address of the
premises at which the person generally
resides; and
(ca) a report of details that are sufficient to
identify any place where the person sleeps on
a regular basis; and".
31 Notice to be given to registrable offender
After section 50(1) of the Principal Act insert—
"(1A) A notice under subsection (1) must include
the details (if any) prescribed by the
regulations.".
32 Notices may be given by Chief Commissioner
At the end of section 54 of the Principal Act
insert—
"(2) A notice under subsection (1) must include
the details (if any) prescribed by the
regulations.".
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33 Explanation of interim prohibition order
In section 66F(1) of the Principal Act,
paragraphs (b), (c) and (d) are repealed.
34 Explanation of final prohibition order
In section 66O(1) of the Principal Act,
paragraphs (b), (c) and (d) are repealed.
35 Recording and register of seized things
For section 66Z(1) of the Principal Act
substitute—
"(1) All things seized under section 66Y by a
police officer must be photographed or
otherwise recorded.".
36 Court may vary a prohibition order
In section 66ZL(4)(b) of the Principal Act,
paragraphs (ii) and (iii) are repealed.
37 Court may revoke a prohibition order
In section 66ZM of the Principal Act,
subsections (2) and (3) are repealed.
38 Court may extend a final prohibition order
In section 66ZN(3)(b) of the Principal Act,
paragraphs (ii) and (iii) are repealed.
39 Corresponding registrable offender to be notified of
registration order
(1) In section 66ZT(1) of the Principal Act,
paragraphs (b), (c) and (d)(i) are repealed.
(2) In section 66ZT(1)(e) of the Principal Act omit
"sets out when the registration order ends,
including".
40 Court may vary a registration order
In section 66ZZ(3) of the Principal Act,
paragraphs (b) and (c) are repealed.
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41 Revocation of a registration order
In section 66ZZA of the Principal Act,
subsections (2) and (3) are repealed.
42 Heading to Part 5
In the heading to Part 5 of the Principal Act, for
"Registered sex offenders" substitute
"Registrable offenders".
43 Definitions
In section 67(1) of the Principal Act—
(a) in paragraph (b) of the definition of officer,
for "corporate;" substitute "corporate.";
(b) the definition of registered sex offender is
repealed.
44 Registrable offender excluded from child-related
employment
(1) In the heading to section 68 of the Principal Act,
for "Registered sex offender" substitute
"Registrable offender".
(2) In section 68(1) of the Principal Act, for
"registered sex offender" substitute
"registrable offender".
45 Registrable offender who is also subject to a
supervision or detention order
(1) In the heading to section 70J of the Principal Act
omit "or extended supervision order".
(2) For section 70J(1) of the Principal Act
substitute—
"(1) This section applies to a registrable offender
who is also subject to a supervision order,
detention order or interim order within the
meaning of the Serious Sex Offenders
(Detention and Supervision) Act 2009.".
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46 Chief Commissioner of Police to report to Minister
In section 70P(1)(a) of the Principal Act,
for "registered offenders" substitute
"registrable offenders".
47 New section 74A inserted
After section 74 of the Principal Act insert—
"74A Rules of court
(1) Rules of court made by the authority having
for the time being power to make rules
regulating the practice and procedure of a
court may include rules for or with respect to
any matter for which provision is to be made
under this Act by rules of court.
(2) Rules of court made under this Act may
regulate generally the practice and procedure
under this Act.".
48 Repeal of item 8 of Schedule 1
Item 8 of Schedule 1 to the Principal Act is
repealed.
49 Amendment of Schedule 2
(1) In items 12, 13, 13A, 14, 14A, 15, 15A and 16 of
Schedule 2 to the Principal Act, for "except if the
offence only relates to child abuse material of a
kind described in paragraph (a)(i)(A) of the
definition of child abuse material in section 51A
of the Crimes Act 1958, where the torture, cruelty
or abuse is not sexual" substitute "except if the
offence only relates to child abuse material that
depicts or describes a person who is, or who
appears or is implied to be, a child as a victim of
cruelty or physical abuse, where the cruelty or
physical abuse is not sexual".
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(2) In item 28 of Schedule 2 to the Principal Act, after
"child" insert "and in circumstances where the
conduct causes the victim to be deceived about the
matters set out in paragraph (c)(vi) of that
section".
(3) In item 28AB of Schedule 2 to the Principal Act—
(a) in paragraph (v), after "Australia)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual";
(b) in paragraph (vi), after "people)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual".
(4) In item 28AC of Schedule 2 to the Principal Act—
(a) in paragraph (iii), after "material)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual";
(b) in paragraph (iv), after "service)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual";
(c) in paragraph (v), after "people)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
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a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual".
(5) In item 28A of Schedule 2 to the Principal Act—
(a) in paragraph (iv), after "service)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual";
(b) in paragraph (iva), after "people)" insert
"except if the offence only relates to material
that depicts, represents or describes a person
who is, or appears to be, or is implied to be,
a victim of cruelty or physical abuse, where
the cruelty or physical abuse is not sexual".
(6) In item 29 of Schedule 2 to the Principal Act, after
"material" insert "except if the offence only
relates to material that depicts, represents or
describes a person who is, or appears to be, or is
implied to be, a victim of cruelty or physical
abuse, where the cruelty or physical abuse is not
sexual".
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Part 3—Amendment of the Crimes Act 1958
50 Definitions
In section 464(2) of the Crimes Act 1958, in
paragraph (a) of the definition of related material
and information, for "or 464ZFAAA" substitute
", 464ZFAAA or 464ZFAB".
51 Execution of authorisation or order
(1) In the heading to section 464ZA of the Crimes
Act 1958, for "authorisation or order"
substitute "authorisation, direction or order".
(2) In section 464ZA(1) of the Crimes Act 1958—
(a) in paragraph (c), for "procedure—"
substitute "procedure; or";
(b) after paragraph (c) insert—
"(d) a police officer directs a person under
section 464ZFAB to undergo a forensic
procedure—".
(3) In section 464ZA(6) of the Crimes Act 1958,
after "464ZFAAA" insert "or a direction under
section 464ZFAB".
52 New section 464ZFAB inserted
After section 464ZFAA of the Crimes Act 1958
insert—
"464ZFAB Forensic procedure for registrable
offenders under the Sex Offenders
Registration Act 2004
(1) In this section—
registrable offender has the same meaning
as in section 3 of the Sex Offenders
Registration Act 2004.
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(2) A police officer may, at any time, direct a
person to undergo a forensic procedure for
the taking of a sample from any part of the
body if, at the time that the direction is
given—
(a) the person is a registrable offender; and
(b) the Chief Commissioner of Police does
not have a forensic sample from the
person.
(3) A senior police officer may serve, or may
cause to be served, a notice on a person
referred to in subsection (2) directing the
person to attend at a police station specified
in the notice within 28 days after service of
the notice to undergo a forensic procedure.
(4) A notice under subsection (3) must—
(a) state that if the person fails to comply
with the notice, an application for a
warrant to arrest the person may be
made without further notice to the
person; and
(b) state that the person may wish to seek
legal advice as to the effect of the
notice; and
(c) state the name, rank and telephone
number of the senior police officer
serving the notice or causing the notice
to be served; and
(d) contain the prescribed information, if
any.
(5) A notice under subsection (3) must be served
by delivering a true copy of the notice to the
person personally.
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(6) Section 464ZFAA(6), (7) and (8) apply to a
notice served under subsection (3) as if it
were a notice served under that section.
(7) If a forensic procedure is conducted on a
person under this section, the sample taken
and any related material and information
may be retained indefinitely.
(8) Subsection (7) does not apply if, on appeal
against conviction, the finding of guilt of the
registrable offender in respect of an offence
is quashed or set aside and, but for that
offence, the person would not be a
registrable offender.".
53 Section 464ZFAB amended
(1) In section 464ZFAB(1) of the Crimes Act 1958
insert the following definition—
"initial period means the period of 3 years
commencing on the day on which section 52
of the Sex Offenders Registration
Amendment (Miscellaneous) Act 2017
comes into operation;".
(2) After section 464ZFAB(8) of the Crimes
Act 1958 insert—
"(9) Subject to subsection (10), a police officer
may give a direction under subsection (2) to
a registrable offender whose reporting
obligations under the Sex Offenders
Registration Act 2004—
(a) have been suspended under Division 6
of Part 3 of that Act; or
(b) have been suspended under
section 32(1)(b) of that Act; or
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(c) have expired under section 34(1) of that
Act—
only if a notice under subsection (3) has been
served on the registrable offender.
(10) A registrable offender referred to in
subsection (9) may refuse to undergo a
forensic procedure and to attend at a police
station in compliance with a notice under
subsection (3) if the registrable offender
demonstrates to the reasonable satisfaction of
the senior police officer referred to in
subsection (3)—
(a) if the registrable offender was a
registrable offender on the
commencement of the initial period,
that the registrable offender has been
resident in Victoria for not less than
2 years and 6 months in aggregate
during the initial period; or
(b) that the registrable offender has been
resident in Victoria for a continuous
period of 12 months at any time after
the expiry of the initial period and was
a registrable offender during the whole
of that period of 12 months.
(11) A person serving a notice under
subsection (3) on a registrable offender
referred to in subsection (9) must inform the
registrable offender, in a manner likely to be
understood by the offender, of the following
matters—
(a) that the offender may refuse to comply
with the notice;
(b) the grounds on which the offender may
refuse to comply; and
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(c) that the offender may wish to seek legal
advice as to the effect of the notice.
(12) A senior police officer referred to in
subsection (10) must take into account any
information provided by the registrable
offender.
(13) Before a registrable offender referred to in
subsection (9) undergoes a forensic
procedure, a police officer must, in a manner
likely to be understood by the offender—
(a) inform the offender of the grounds on
which the offender may refuse to
undergo the forensic procedure; and
(b) ask the offender whether the offender
wishes to refuse.
(14) If a registrable offender does not have a
knowledge of the English language that is
sufficient to enable the person to understand
the matters referred to in subsection (11)
or (13), the person informing the offender
must arrange for the presence of a competent
interpreter and defer the giving of the
information until the interpreter is present.".
54 Destruction of information following finding of
guilt etc.
After section 464ZFC(1)(aa) of the Crimes
Act 1958 insert—
"(ab) the finding of guilt of a registrable offender
within the meaning of section 3(1) of the
Sex Offenders Registration Act 2004 is
quashed or set aside on appeal and, but for
that offence, the person would not be a
registrable offender; or".
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55 Victorian DNA database
In section 464ZFD(1) of the Crimes Act 1958,
for "or 464ZFAAA" substitute ", 464ZFAAA or
464ZFAB".
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Part 4—Amendment of the Criminal
Procedure Act 2009
56 Definitions
In section 3 of the Criminal Procedure Act 2009,
in paragraph (c) of the definition of sentence, after
"section 11" insert "or 11B".
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Part 5—Amendment of the Serious Sex Offenders (Detention and
Supervision) Act 2009
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Part 5—Amendment of the Serious Sex
Offenders (Detention and Supervision)
Act 2009
57 Sex offender registration order under Sex Offenders
Registration Act 2004
In section 6B(2) of the Serious Sex Offenders
(Detention and Supervision) Act 2009, for
"must be" substitute "must require that the
person comply with the reporting obligations
under that Act".
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Part 6—Amendment of the Working with Children Act 2005
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Part 6—Amendment of the Working with
Children Act 2005
58 Sex offenders not to apply for assessment notice
For section 39A(a) of the Working with
Children Act 2005 substitute—
"(a) a registrable offender within the meaning of
section 3 of the Sex Offenders Registration
Act 2004; or".
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Part 7—Repeal of amending Act
59 Repeal of amending Act
This Act is repealed on the first anniversary of
the first day on which all of its provisions are in
operation.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Endnotes
Sex Offenders Registration Amendment (Miscellaneous) Act 2017
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
† Minister's second reading speech—
Legislative Assembly: 11 May 2017
Legislative Council: 25 May 2017
The long title for the Bill for this Act was "A Bill for an Act to make
miscellaneous amendments to the Sex Offenders Registration Act 2004,
to amend the Crimes Act 1958 to provide for the taking of DNA samples
from sex offenders, to make consequential amendments to the Criminal
Procedure Act 2009, the Serious Sex Offenders (Detention and
Supervision) Act 2009 and the Working with Children Act 2005 and
for other purposes."
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