Tuesday, 20 December 2022

Statute Law Amendment Bill 2022

Introduction and first reading

Enver ERDOGAN (Southern Metropolitan – Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (17:05): I move to introduce a bill for an act to revise the statute law of Victoria, to make minor amendments to the Competition Policy Reform (Victoria) Act 1995 and for other purposes, and I move:

That the bill be now read a first time.

Motion agreed to

Read first time.

Enver ERDOGAN: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Enver ERDOGAN (Southern Metropolitan – Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (17:05): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Tabling of Statement of Compatibility

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I table a statement of compatibility for the Statute Law Amendment Bill 2022 (Bill).

In my opinion, the Bill is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill makes minor and technical amendments to a number of Acts to ensure the meaning of those Acts is clear, accurate and reflects the intention of Parliament.

In particular, the Bill makes minor and technical amendments to the:

• Aboriginal Heritage Act 2006, Domestic Animals Act 1994, Housing Act 1983, and Terrorism (Community Protection) Act 2003 to fix typographical or grammatical errors in these Acts, update a reference and to further clarify the intended operation of the relevant provisions of these Acts (clause 3 and Schedule 1 of the Bill);

• Competition and Policy Reform (Victoria) Act 1995 to reflect the renaming of the Trade Practices Act 1974 (Cth) with the Competition and Consumer Act 2010 (Cth) by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) which was effective from 1 January 2011 (Part 3 of the Bill);

• Sex Offenders Registration Act 2004 (SOR Act) to insert in Schedule 2 an additional Commonwealth offence (section 474.25C of the Criminal Code Act 1995 (Cth), introduced in 2017) as a class 2 offence for the purpose of that Act (clause 3 and item 5 of Schedule 1 of the Bill). This amendment was intended to be inserted by Parliament in the Justice Legislation Amendment (Police and Other Matters) Act 2022 (JLAPOM Act) but was likely ineffective due to a typographical error caused by section 34(1) of the Firearms and Other Acts Amendment Act 2021 commencing earlier than the JPLOM Act which removed a relevant reference in the SOR Act so the amendment to be made by the JLAPOM Act could not take effect; and

• JLAPOM Act to repeal the ineffective amendment in section 8(2) to the SOR Act (clause 3 and item 6 of Schedule 1 of the Bill).

I consider that the amendments under the Bill do not engage any rights under the Charter except for the amendment to the SOR Act.

The SOR Act supports Victoria Police to actively monitor registrable sex offenders and to reduce the risk of reoffending. An adult convicted and sentenced for a class 2 offence is, under the SOR Act, automatically added to Victoria’s Sex Offender Register.

The additional Commonwealth offence was intended to be added to the SOR Act as a class 2 offence in 2022 in section 8(2) of the JLAPOM Act, however, this reform was likely ineffective and was not included in the SOR Act due to a typographical error.

The new offence under the SOR Act is using a carriage service (e.g. internet, text messages, email, telephone) to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16, except if the offence does not involve an act in preparing or planning to engage in sexual activity with a person under 16 years of age or an act in preparing or planning to procure a person under 16 years of age to engage in sexual activity. This offence is established by section 474.25C of the Criminal Code Act 1995 (Cth). In practice, the Bill excludes conduct constituting an offence against paragraph 474.25C(a)(i) of the Criminal Code Act 1995 of the Commonwealth as this conduct is not sexual in nature.

Human Rights issues

The Bill’s amendments to the SOR Act engage the following rights under the Charter:

• freedom of movement (section 12);

• right to privacy and reputation under the Charter (section 13);

• freedom of expression (section 15); and

• protection of families and children (section 17).

While the amendment to the SOR Act ensures Parliament’s intent in the JLAPOM Act is reflected, it will have human rights impacts in the same way as it did when it was a part of the original reforms in the JLAPOM Act which require consideration by the Parliament.

For the following reasons, having taken into account all relevant factors, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, the limitation is reasonable and justified in a free and democratic society based on human dignity, equality and freedom in accordance with section 7(2) of the Charter.

Freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live.

In the context of the International Convention on the Elimination of All Forms of Racial Discrimination, Mason J described the right in Gerhardy v Brown (1985) 159 CLR 70 at [102], as including protection by law from unnecessary restrictions by the State or others on an individual’s freedom of movement, movement without impediment throughout the State, a right of access to facilities necessary for the enjoyment of freedom of movement, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest, such as traffic laws, and subject to the private and property rights of others.

The amendment to the SOR Act may limit this right to the extent that a person who is sentenced for the new class 2 offence is subject as a registrable offender to the requirements of the SOR Act, including:

• reporting requirements under Part 3 of the SOR Act (sections 18 to 21A of the SOR Act require a registrable offender to report their intention to travel outside of Victoria to the Chief Commissioner of Police within specified timeframes); and

• enlivening the jurisdiction of the Magistrates Court to make a prohibition order under Part 4A of the SOR Act against a registrable offender. A prohibition order may persist for up to five years, and may include conditions prohibiting a registrable offender from contacting, associating with or being within a specified distance of a specified person or class of person or place or class of place; and from engaging in specified behaviour, specified community activities, or specified employment or kind of employment.

While the amendment engages and may limit the right to freedom of movement by imposing duties on a registrable offender to report their intention to travel outside Victoria, and by allowing for the Magistrates Court to make a prohibition order that includes a condition that limits a registrable offender’s freedom of movement, I believe it is reasonable and justified noting:

• the duty to report travel intentions imposes a procedural requirement prior to travel, but does not prevent a registrable offender from moving freely around or outside of Australia;

• a registrable offender’s right to freedom of movement is anticipated by the SOR Act, which provides for a registrable offender to report a change of travel plans when out of Victoria;

• any limitation on the right to the freedom of movement imposed as a condition of a prohibition order is limited to a period not exceeding 5 years and is the result of a judicial process set out in the SOR Act. Any lawful limitation imposed on a registrable offender’s right to freedom of movement must be reasonable in the circumstances; and

• each of the reporting requirements and prohibition order mechanisms protect the broader rights of the protection of children by providing for the Police to monitor a registrable offender’s movements and/or certain high risk behaviours or activities to reduce the risk of the commission of a further offence involving sexual violence committed against a child.

Accordingly, I am satisfied that these amendments are compatible with the freedom of movement under the Charter.

Right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked.

An interference with the right to privacy and reputation is justified if it is both lawful and not arbitrary. An interference will be lawful if it is permitted by law which is precise and appropriately circumscribed and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The amendment to the SOR Act engages the right to privacy and reputation since it means that a person who is sentenced for the new class 2 offence is a registrable offender under the SOR Act and must report certain personal details to the Chief Commissioner of Police for the period set out in that Act.

The details that registrable offenders must provide the Chief Commissioner of Police within seven days of being sentenced or released from prison includes their name, date of birth, contact details, internet provider, internet username identities, personal details of any children who they live with or have unsupervised contact with and employment details. A registerable offender must also report their personal details to the Chief Commissioner of Police annually and any change in personal details within seven days of this occurring (or in some circumstances, earlier).

This amendment engages the right to privacy and reputation to the extent that a registrable offender under this amendment is given no option but to share personal details with the Chief Commissioner of Police for the specified period and these details may reveal negative attributes of the registerable offender’s character which may be perceived as an attack on their reputation. The Chief Commissioner of Police or a person authorised access to the Register is able to disclose personal information in the Register in limited circumstances under section 64 of the SOR Act.

However, I am of the view that this amendment does not limit the right to privacy and reputation. This is because the duty to report personal details to the Chief Commissioner of Police is required by law (i.e. the SOR Act) and is not arbitrary. The duty to provide personal details is not arbitrary because it is for a clear and legitimate purpose, and is appropriately confined; the SOR Act specifies the personal details required and specifies a clear process for a registerable offender to give their personal details to the Chief Commissioner of Police. The new class 2 offence is consistent with the types of offences specified as class 2 offences in Schedule 2 to the SOR Act. Section 63 of the SOR Act also has restrictions on who can access the Register and generally prohibits the disclosure of any personal information in the Register unless exceptions under section 64 apply.

Further, any limitation that may be identified would be reasonable under section 7(2) of the Charter, as it is for the broader and proportionate purpose of promoting the right of protection of persons, including children.

In my opinion, any requirement to disclose personal information under the SOR Act is neither unlawful nor arbitrary for the purposes of section 13 of the Charter.

Accordingly, I am satisfied that these amendments are compatible with the rights to privacy and reputation in the Charter.

Freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds orally, in writing, in print, by way of art or in another medium of their choice.

Section 15 also provides that special duties and responsibilities attach to this right, and that lawful restrictions may be reasonably necessary to respect personal rights and reputations, and to protect national security, public order, public health or morality. The right is not absolute and can be also subject to reasonable limitation under section 7(2) of the Charter.

The Bill engages the right to freedom of expression by requiring a person to do certain things, including reporting personal details to the Chief Commissioner of Police as summarised above in this statement.

Although these provisions may engage the right to freedom of expression, in my view any limitation is minimal with respect to providing or receiving information and is lawful, reasonable and necessary to advance the broader and proportionate purpose of promoting the right of protection of persons, including children.

Therefore, the Bill is consistent with the rights in relation to freedom of expression in section 15(2) of the Charter.

Protection of families and children

Section 17 of the Charter provides that families are a fundamental group unit of society and are entitled to be protected by society and the State. Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.

The amendment to the SOR Act engages and promotes this right by specifying that an adult who is sentenced for an offence against section 474.25C of the Criminal Code Act 1995 of the Commonwealth (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16) except if the offence does not involve an act in preparing or planning to engage in sexual activity with a person under 16 years of age or an act in preparing or planning to procure a person under 16 years of age to engage in sexual activity, is a registrable offender and must report personal details under the SOR Act. The reporting requirements under the SOR Act serve the purpose of protecting children by reducing the risk of a registrable offender re-offending, and in assisting Victoria Police to investigate any further offence involving sexual violence that may be committed against a child by the registrable offender.

Accordingly, I am satisfied that these amendments are compatible with the rights to protection of families and children in the Charter.

The Hon Enver Erdogan MLC

Minister for Corrections

Minister for Youth Justice

Minister for Victim Support

Second reading

Enver ERDOGAN (Southern Metropolitan – Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (17:05): I move, by leave:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Enver ERDOGAN: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Bill before the Legislative Council, the Statute Law Amendment Bill 2022, is a regular mechanism for reviewing Victoria’s statute books and makes a range of minor amendments to Acts to ensure the orderly management of the State’s statutes.

The Bill is required as a matter of good legislative housekeeping to ensure the clarity, relevance and accuracy of statute law in Victoria is maintained. By correcting references and fixing errors, the Bill ensures that Victorian statutes are up-to-date, consistent and clear, and maintained in a regular and orderly manner. This serves the broader purpose of ensuring these Acts remain relevant and accessible to the Victorian community, and that Victorians can have confidence in the clarity and accuracy of these Acts that affect them.

The Bill:

• corrects minor ambiguities, omissions or errors in the Aboriginal Heritage Act 2006, the Domestic Animals Act 1994, Housing Act 1983, and updates a reference in the Terrorism (Community Protection) Act 2003 to ensure the meaning of these Acts is clear, accurate and reflects the intention of Parliament;

• makes minor amendments to the Competition and Policy Reform (Victoria) Act 1995 to reflect the renaming of the Trade Practices Act 1974 (Cth) to the Competition and Consumer Act 2010 (Cth) by Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) which was effective from 1 January 2011;

• amends the Sex Offenders Registration Act 2004 (SOR Act) to give effect to an amendment to Schedule 2 of the SOR Act that section 8(2) of the Justice Legislation Amendment (Police and Other Matters) Act 2022 (JLAPOM Act) sought to make, but was likely ineffective due to a typographical error caused by section 34(1) of the Firearms and Other Acts Amendment Act 2021 commencing earlier than the JLAPOM Act which removed a relevant reference in the SOR Act, meaning that the amendment to be made by the JLAPOM Act could not take effect; and

• repeals the ineffective amendment made by section 8(2) of the JLAPOM Act ahead of its 2025 automatic repeal date to ensure the SOR Act and statute books remain clear.

I will outline the reform to the SOR Act, which the Parliament intended to make in the JLAPOM Act and that will be made effective by the Bill.

The SOR Act supports Victoria Police to actively monitor registerable sex offenders and to reduce the risk of reoffending. It requires registrable offenders to report to Victoria Police at the commencement of their registration period, and periodically over that time to allow Victoria Police to record the personal details of a registrable offender.

The SOR Act prescribes four classes of offences for the purposes of the Act. A person sentenced for a class 2 offence is automatically registered as a registrable offender and must comply with the reporting requirements under the SOR Act.

The Bill makes effective the amendment intended by section 8(2) of the JLAPOM Act to list as a class 2 offence the Commonwealth offence of using a carriage service (e.g. internet, mobile phone) to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16 except if the offence does not involve an act in preparing or planning to engage in sexual activity with a person under 16 years of age or an act in preparing or planning to procure a person under 16 years of age to engage in sexual activity.

This offence is established by section 474.25C of the Criminal Code Act 1995 (Cth). In practice, the Bill excludes conduct constituting an offence against paragraph 474.25C(a)(i) of the Criminal Code Act 1995 of the Commonwealth as this conduct is not sexual in nature.

I commend the Bill to the House.

Georgie CROZIER (Southern Metropolitan) (17:05): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.