Sex Offenders Registration (Amendment) Act 2005

i Sex Offenders Registration (Amendment) Act 2005 Act No. 34/2005 TABLE OF PROVISIONS Section Page 1. Purposes 1 2. Commencement 3 3. Principal Act 3 4. Definitions 3 5. Offenders to whom Act applies 6 6. Meaning of "single offence" 6 7. New section 8 substituted 6 8. What are class 3 and class 4 offences? 6 8. New section 9 substituted 7 9. Who is a corresponding registrable offender? 7 9. Sex offender registration order 8 10. Relocation of deeming provision 8 11. Persons required to report under corresponding Act 9 12. New section 27A inserted 9 27A. Power to take photographs 9 13. Reasonable force may be used to take photographs 10 14. Photographs 10 15. Length of reporting period 10 16. New section 37 substituted 11 37. Reporting period for corresponding registrable offenders 11 17. Notice to be given to registrable offender 12 18. Courts to provide appeal information to Chief Commissioner of Police 12 19. Repeal of reference to strict government custody 13 20. Notification of personal information in the Register of Sex Offenders 13 21. Additional Class 1 offence 13 22. Additional Class 2 offences 14 23. Additional Class 4 offences 14 24. Other registrable offences 15 25. New section 73A inserted 17 73A. Transitional provisions—Sex Offenders Registration (Amendment) Act 2005 17 26. Serious Sex Offenders Monitoring Act 2005 18 27. Sentencing Act amended to prevent courts from having regard to consequences under Principal Act 19 -- 1 of 23 -- Section Page ii 28. New section 29A inserted in Births, Deaths and Marriages Registration Act 1996 19 29A. Registrar to notify Chief Commissioner of Police of change of name of certain sex offenders 19 29. New section 30I inserted in Births, Deaths and Marriages Registration Act 1996 20 30I. Registrar to notify Chief Commissioner of Police 20 ═══════════════ ENDNOTES 21 -- 2 of 23 -- 1 Sex Offenders Registration (Amendment) Act 2005 † [Assented to 21 June 2005] The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are— (a) to amend the Sex Offenders Registration Act 2004 so as to— (i) 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; Victoria No. 34 of 2005 -- 3 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 2 (ii) alter the procedure and timelines for the making of a sex offender registration order; (iii) permit reasonable force to be used to take photographs; (iv) alter the length of reporting periods applicable under the Act; (v) require courts to notify offenders and the Chief Commissioner of Police of certain matters; (vi) broaden the circumstances in which personal information in the Register of Sex Offenders may be disclosed; and (b) to amend the Serious Sex Offenders Monitoring Act 2005 consistently with amendments being made by this Act to the definitions of registrable offences and to clarify to which court an application may be made under that Act for an extended supervision order; and (c) to amend 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 (d) to amend 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, a person on the Register of Sex Offenders. s. 1 -- 4 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 3 2. Commencement (1) Sections 1, 3, 24(3), 24(4), 26 and this section come into operation on the day after the day on which this Act receives the Royal Assent. (2) Sections 24(1) and 24(2) are deemed to have come into operation on 1 October 2004. (3) Subject to sub-section (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in sub-section (3) does not come into operation before 1 October 2005, it comes into operation on that day. 3. Principal Act In this Act, the Sex Offenders Registration Act 2004 is called the Principal Act. 4. Definitions (1) In section 3 of the Principal Act, for the definitions of "Class 3 offence" and "Class 4 offence" substitute— ' "Class 3 offence" has the meaning set out in section 8(1); "Class 4 offence" has the meaning set out in section 8(2);'. (2) Insert the following definitions in section 3 of the Principal Act— ' "forensic resident" has the same meaning as in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; "involuntary patient" has the same meaning as in the Mental Health Act 1986; "security patient" has the same meaning as in the Mental Health Act 1986;'. s. 2 See: Act No. 56/2004 and amending Act No. 79/2004. LawToday: www.dms. dpc.vic. gov.au -- 5 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 4 (3) In section 3 of the Principal Act, for paragraph (a) of the definition of "government custody" substitute— "(a) custody as— (i) an inmate; or (ii) a detainee; or (iii) a forensic patient under a custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (iv) a forensic resident under a custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (v) a security patient under a hospital security order made under section 93(1)(e) of the Sentencing Act 1991; or (vi) a security patient under a restricted hospital transfer order made under section 16(3)(b) of the Mental Health Act 1986; or (vii) an involuntary patient under a hospital order made under section 93(1)(d) of the Sentencing Act 1991; or (ix) an involuntary patient under a hospital transfer order made under section 16(3)(a) of the Mental Health Act 1986; or". s. 4 -- 6 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 5 (4) In the definition of "sentence" in section 3 of the Principal Act— (a) after paragraph (a) insert— "(ab) a declaration under section 18(4)(a) or 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the defendant is liable to supervision under Part 5 of that Act; and (ac) an order that the defendant be released unconditionally made under section 18(4)(b) or 23(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and (ad) an order made under section 93(1)(d) of the Sentencing Act 1991; and"; (b) for paragraph (b) substitute— "(b) any order made under the laws of a foreign jurisdiction that is equivalent to an order referred to in paragraph (a);". (5) In section 3 of the Principal Act, the definition of "strict government custody" is repealed. (6) After paragraph (c) of the definition of "supervised sentence" in section 3 of the Principal Act insert— "(ca) an order referred to in section 137(1) of the Children and Young Persons Act 1989 under which the child is required to submit to strict supervision; or (cb) an order made under section 15A of the Mental Health Act 1986; or". s. 4 -- 7 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 6 5. Offenders to whom Act applies After Note 3 at the foot of section 6(1) of the Principal Act insert— "Note 4: The effect of this Act is that any adult offender sentenced at any time (including before 1 October 2004 and still subject to supervision immediately before that date) 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 of Part 3.". 6. Meaning of "single offence" (1) In section 6(8) of the Principal Act, for "of the same kind" substitute "that are the same". (2) At the foot of section 6(8) of the Principal Act insert— 'Note: The meaning of "single offence" is qualified by section 5(1).'. 7. New section 8 substituted For section 8 of the Principal Act substitute— '8. What are class 3 and class 4 offences? (1) A Class 3 offence is an offence listed in Schedule 3 committed against a person other than a child by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of this section. (2) A Class 4 offence is an offence listed in Schedule 4 committed against a person other than a child by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of this section. s. 5 -- 8 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 7 (3) For the purposes of this section a person is a serious sexual offender if he or she has at any time (whether before, on or after 1 October 2004) been sentenced by a court for 2 or more offences listed in a Schedule to this Act whether— (a) in the one trial or hearing; or (b) in different trials or hearings held at different times; or (c) in separate trials of different counts in the one presentment. Note: The term "serious sexual offender" is also defined in section 6B of the Sentencing Act 1991 for the purposes of Part 2A of that Act. However, the term is differently defined in that Act.'. 8. New section 9 substituted For section 9 of the Principal Act substitute— "9. Who is a corresponding registrable offender? (1) A corresponding registrable offender is a person who— (a) had at any time (whether before, on or after the commencement of section 8 of the Sex Offenders Registration (Amendment) Act 2005) been in a foreign jurisdiction and at that time had been required to report to the corresponding registrar in that jurisdiction; and (b) would, if he or she were currently in that jurisdiction, be still required to report to that corresponding registrar. s. 8 -- 9 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 8 (2) A person referred to in sub-section (1) is a corresponding registrable offender even if the offence in respect of which he or she is required to report in the foreign jurisdiction is not a registrable offence for the purposes of this Act.". 9. Sex offender registration order (1) In section 11(3) of the Principal Act, after "satisfied" insert ", beyond reasonable doubt,". (2) In section 11(5) of the Principal Act— (a) for "imposes" substitute "has imposed"; (b) omit ", and must make the order concurrently with that sentence". (3) In section 11(6) of the Principal Act, after "prosecution" insert "not later than 30 days after the sentence is imposed". (4) After section 11(6) of the Principal Act insert— "(6A) If an application for the making of an order under this section is made after the sentence is imposed and an appeal against the finding of guilt or sentence is made before that application is determined, that application must not be determined before the appeal is determined.". 10. Relocation of deeming provision (1) Section 11(7) of the Principal Act is repealed. (2) After section 34(3) of the Principal Act insert— "(4) For the purposes of this Division, a person subject to a sex offender registration order— (a) if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence; and s. 9 -- 10 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 9 (b) if found guilty of a Class 4 offence or any other offence other than a Class 3 offence is deemed to have been found guilty of a Class 2 offence.". 11. Persons required to report under corresponding Act In section 15(2) of the Principal Act, after "Victoria" insert "or within 14 days after the commencement of section 11 of the Sex Offenders Registration (Amendment) Act 2005 if he or she entered Victoria 7 days or more before that commencement and remained in Victoria". 12. New section 27A inserted After section 27 of the Principal Act insert— "27A. Power to take photographs (1) A member of the police force receiving a report made in person under this Part may require the registrable offender— (a) to be photographed; and (b) to expose any part of his or her body on which there are any tattoos or permanent distinguishing marks to enable that part of the body to be photographed— by the member or a person authorised by the member. (2) A member of the police force cannot, under this section, require a registrable offender to expose 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.". s. 11 -- 11 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 10 13. Reasonable force may be used to take photographs (1) In section 28(1) of the Principal Act— (a) after "27" insert "or 27A"; (b) in paragraph (a), after "exercised and" insert ", in the case of a power under section 27,"; (c) in paragraph (b), after "fingerscan," insert "or to expose part of his or her body (as the case requires)"; (d) in paragraph (c), for "or fingerscan" substitute ", fingerscan or photographs". (2) In section 28(2) of the Principal Act, after "a registrable offender" insert "or to expose a part of the body of a registrable offender that the member of the police force is authorised under section 27A to ask the registrable offender to expose to enable the taking of photographs of that part of the body". (3) In section 28(3) of the Principal Act, after "27" insert "or 27A". 14. Photographs (1) Sections 29(1) and 29(2) of the Principal Act are repealed. (2) In sections 29(3), 29(4) and 29(5) of the Principal Act, for "this section" substitute "section 27A". 15. Length of reporting period (1) For section 34(1)(b)(ii) of the Principal Act substitute— "(ii) has ever been found guilty of 2 Class 2 offences; or". s. 13 -- 12 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 11 (2) For section 34(1)(c) of the Principal Act substitute— "(c) the remainder of his or her life, if he or she— (i) has ever been found guilty of 2 or more Class 1 offences; or (ii) has ever been found guilty of a Class 1 offence and 1 or more Class 2 offences; or (iii) has ever been found guilty of 3 or more Class 2 offences.". 16. New section 37 substituted For section 37 of the Principal Act substitute— "37. Reporting period for corresponding registrable offenders (1) A corresponding registrable offender must continue to comply with the reporting obligations imposed by this Part until he or she would not be required, if he or she were in a foreign jurisdiction, to report to the corresponding registrar of that foreign jurisdiction. (2) For the purposes of this section, if a corresponding registrable offender is a corresponding registrable offender under the laws of more than one jurisdiction, the period for which he or she must continue to comply with the reporting obligations imposed by this Part is the longest period for which he or she would be required to report to the corresponding registrar of a foreign jurisdiction.". s. 16 -- 13 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 12 17. Notice to be given to registrable offender For section 50(5) of the Principal Act substitute— '(5) Despite anything in this Division, a court that— (a) makes any order or imposes any sentence that has the effect of making a person a registrable offender for the purposes of this Act; or (b) imposes any sentence on a person in relation to a registrable offence— must ensure that the person is, at the time the order is made or the sentence imposed, given a written notice specifying the reporting period that applies to him or her consequent on the order or sentence. (6) In sub-section (5), "court" does not include a court of a foreign jurisdiction.'. 18. Courts to provide appeal information to Chief Commissioner of Police (1) In the heading to section 51 of the Principal Act, omit "sentencing". (2) After section 51(1)(b) of the Principal Act insert— "(ba) determines an appeal made to it by a registrable offender against the finding of guilt or sentence in respect of a registrable offence or against the making of a sex offender registration order in respect of an offence; or". s. 17 -- 14 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 13 (3) In section 51(2) of the Principal Act— (a) for "or sentence" (where first occurring) substitute ", sentence or determination of appeal"; (b) after "sentence" (where secondly occurring) insert "or the determination of the appeal (as the case requires)". 19. Repeal of reference to strict government custody Section 53(1)(a) of the Principal Act is repealed. 20. Notification of personal information in the Register of Sex Offenders (1) In section 63(1)(b) of the Principal Act— (a) after "law enforcement" insert "or judicial"; (b) after "then" insert ", in any case,"; (c) for "or public statutory authority" substitute ", public statutory authority or court". (2) After section 63(1) of the Principal Act insert— "(1A) Despite sub-section (1)(b), the Chief Commissioner of Police may notify the Registrar within the meaning of the Births, Deaths and Marriages Registration Act 1996 of the name (including any other name by which he or she is, or has previously been, known), date of birth and residential address or addresses of any registrable offender as stated in the Register.". 21. Additional Class 1 offence After item 6 of Schedule 1 to the Principal Act insert— "6A. An offence against section 60AC of the Crimes Act 1958 (aggravated sexual servitude).". s. 19 -- 15 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 14 22. Additional Class 2 offences (1) After item 14 of Schedule 2 to the Principal Act insert— "14A. An offence against section 60AE of the Crimes Act 1958 (aggravated deceptive recruiting for commercial sexual services).". (2) After item 18 of Schedule 2 to the Principal Act insert— "18A. An offence against section 70AC of the Crimes Act 1958 (sexual performance involving a minor).". (3) After item 28 of Schedule 2 to the Principal Act insert— '28A. An offence against any of the following sections of the Criminal Code of the Commonwealth— (i) section 474.19(1) (using a carriage service for child pornography material); (ii) section 474.20(1) (possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service); (iii) section 474.22(1) (using a carriage service for child abuse material); (iv) section 474.23(1) (possessing, controlling, producing, supplying or obtaining child abuse material through a carriage service); (v) section 474.26 (using a carriage service to procure persons under 16 years of age); (vi) section 474.27 (using a carriage service to "groom" persons under 16 years of age).'. 23. Additional Class 4 offences After item 7 of Schedule 4 to the Principal Act insert— "7A. An offence against section 60AB of the Crimes Act 1958 (sexual servitude). 7B. An offence against section 60AD of the Crimes Act 1958 (deceptive recruiting for commercial sexual services).". s. 22 -- 16 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 15 24. Other registrable offences (1) In Schedule 1 to the Principal Act— (a) in item 1 for "of a child" substitute "where the person against whom the offence is committed is a child"; (b) at the foot of item 1 insert— "Note: Item 1 covers any offence against the Crimes Act 1958 that involves sexual penetration where the victim is a child including rape (section 38), incest (section 44), sexual penetration of child under 16 (section 45(1)), sexual penetration of 16 or 17 year old (section 48(1)), sexual penetration of person with impaired mental functioning (section 51(1)) and sexual penetration of resident of residential facility (section 52(1))."; (c) items 4 and 5 are repealed; (d) in item 6, for "5" substitute "3"; (e) after item 6 insert— "6A. Without limiting item 6, an offence referred to in any of the following paragraphs of Schedule 1 to the Sentencing Act 1991 where the person against whom the offence is committed is a child— (a) paragraph (ab); (b) paragraph (ac); (c) paragraph (b)(i) and (ii); (d) paragraph (c)(iii), (iv), (vi), (vii), (ix), (x), (xii), (xiii), (xvi), (xvii) and (xix); (e) paragraph (d)(i), (ii), (iii), (v), (vi), (viii), (ix), (xi), (xii) and (xiii); (f) paragraph (e)(i) and (ii).". s. 24 -- 17 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 16 (2) After item 26 of Schedule 2 to the Principal Act insert— "26A. Without limiting item 26, an offence referred to in paragraph (ab), (ac), (b), (c), (d) or (e) of Schedule 1 to the Sentencing Act 1991 where the person against whom the offence is committed is a child other than an offence that is a Class 1 offence for the purposes of this Act by force of item 6A of Schedule 1.". (3) In Schedule 3 to the Principal Act— (a) at the foot of item 1 insert— "Note: Item 1 covers any offence against the Crimes Act 1958 that involves sexual penetration where the victim is an adult including rape (section 38), incest (section 44), sexual penetration of person with impaired mental functioning (section 51(1)) and sexual penetration of resident of residential facility (section 52(1))."; (b) after item 2 insert— "2A. Without limiting item 2, an offence referred to in any of the following paragraphs of Schedule 1 to the Sentencing Act 1991— (a) paragraph (b)(i) and (ii); (b) paragraph (c)(iii), (iv), (vi), (vii), (xvi), (xvii) and (xix); (c) paragraph (d)(i), (ii), (iii), (xi), (xii) and (xiii); (d) paragraph (e)(i) and (ii).". s. 24 -- 18 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 17 (4) After item 10 of Schedule 4 to the Principal Act insert— "10A. Without limiting item 10, an offence referred to in paragraph (ab), (ac), (b), (c), (d) or (e) of Schedule 1 to the Sentencing Act 1991 other than an offence that is for the purposes of this Act— (a) a Class 1 offence by force of item 6A of Schedule 1; or (b) a Class 2 offence by force of item 26A of Schedule 2; or (c) a Class 3 offence by force of item 2A of Schedule 3.". 25. New section 73A inserted After section 73 of the Principal Act insert— '73A. Transitional provisions—Sex Offenders Registration (Amendment) Act 2005 (1) The amendments of section 34 of this Act made by section 15 of the Sex Offenders Registration (Amendment) Act 2005 apply to any person who is sentenced for a registrable offence on or after the commencement of that section of that Act. (2) Despite the repeal of section 50(5) effected by section 17 of the Sex Offenders Registration (Amendment) Act 2005 and the revocation of any regulations made for the purpose of that section 50(5), those regulations continue to have effect with respect to a registrable offender who is sentenced for a registrable offence before the commencement of that section of that Act (a "pre-commencement offence") and who is not again sentenced for a registrable offence on or after the commencement of that section of that Act before his or her reporting obligations commence in respect of the pre-commencement offence.'. s. 25 -- 19 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 18 26. Serious Sex Offenders Monitoring Act 2005 (1) After section 5(3) of the Serious Sex Offenders Monitoring Act 2005 insert— '(4) For the purpose of this section, a custodial sentence imposed on an offender on appeal in substitution for a sentence imposed by the court against the sentence of which the appeal was brought (the "lower court") must be taken to have been imposed by the lower court.'. (2) In the Schedule to the Serious Sex Offenders Monitoring Act 2005— (a) in item 1 for "of a child" substitute "where the person against whom the offence is committed is a child"; (b) at the foot of item 1 insert— "Note: Item 1 covers any offence against the Crimes Act 1958 that involves sexual penetration where the victim is a child including rape (section 38), incest (section 44), sexual penetration of child under 16 (section 45(1)), sexual penetration of 16 or 17 year old (section 48(1)), sexual penetration of person with impaired mental functioning (section 51(1)) and sexual penetration of resident of residential facility (section 52(1))."; (c) items 4 and 5 are repealed; (d) after item 34 insert— "34A. Without limiting item 34, an offence referred to in paragraph (ab), (ac), (b), (c), (d) or (e) of Schedule 1 to the Sentencing Act 1991 where the person against whom the offence is committed is a child.". s. 26 -- 20 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 19 27. Sentencing Act amended to prevent courts from having regard to consequences under Principal Act Before section 5(2C) of the Sentencing Act 1991 insert— "(2BC) In sentencing an offender a court must not have regard to any consequences that may arise under the Sex Offenders Registration Act 2004 from the imposition of the sentence.". 28. New section 29A inserted in Births, Deaths and Marriages Registration Act 1996 After section 29 of the Births, Deaths and Marriages Registration Act 1996 insert— "29A. Registrar to notify Chief Commissioner of Police of change of name of certain sex offenders (1) If— (a) under section 63(1A) of the Sex Offenders Registration Act 2004 the Registrar has been notified of details in relation to a person; and (b) the Registrar, at any time on or after that notification, registers a change of name of that person— the Registrar must, as soon as practicable after that registration, cause written notice of it to be given to the Chief Commissioner of Police. (2) A notice under sub-section (1) must state both the person's former name and new name.". s. 27 -- 21 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 20 29. New section 30I inserted in Births, Deaths and Marriages Registration Act 1996 In Part 4A of the Births, Deaths and Marriages Registration Act 1996, after section 30H insert— "30I. Registrar to notify Chief Commissioner of Police (1) If— (a) under section 63(1A) of the Sex Offenders Registration Act 2004 the Registrar has been notified of details in relation to a person; and (b) the Registrar, at any time on or after that notification, under this Part alters the record of that person's sex in that person's birth registration or issues a document acknowledging that person's name and sex — the Registrar must, as soon as practicable after altering the record or issuing the document, cause written notice of it to be given to the Chief Commissioner of Police. (2) A notice under sub-section (1) must state both the person's former sex and new sex and former name and new name, as the case requires.". ═══════════════ s. 29 -- 22 of 23 -- Act No. 34/2005 Sex Offenders Registration (Amendment) Act 2005 21 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 May 2005 Legislative Council: 26 May 2005 The long title for the Bill for this Act was "to amend the Sex Offenders Registration Act 2004, the Serious Sex Offenders Monitoring Act 2005, the Sentencing Act 1991 and the Births, Deaths and Marriages Registration Act 1996 and for other purposes." Endnotes -- 23 of 23 --