Proposed Amendments to ACT Child Sex Offender Laws

Proposed Amendments to ACT Child Sex Offender Laws

Submission from ACT Human Rights Commission

Introduction

Thank you for the opportunity to provide comment on the ACT Government's proposed amendments to ACT Child Sex Offender Laws, released on 27 February 2015. We are grateful for the consultation that has already occurred to date with the Commission on these proposals, and note that the Government has already made changes to its proposals based on our feedback. We note that the proposed amendments fall into three categories:

1. Entry and search powers in relation to registrable offenders;
2. Powers for the CPO to issue public notices and apply to remove an offender from the Register in limited circumstances; and
3. General amendments’ to streamline the administration of the Register.

The proposed amendments will expand certain police powers under the Act and the Regulation, with a view to strengthening the operation of the ACT’s child sex offender register. We are supportive of their overarching objective, namely, the protection of children and young people from sexual abuse and sexual exploitation, consistent with the guarantees under s 11 of the Human Rights Act 2004. We note that is also consistent with the positive obligations placed on the ACT Government to protect and fulfil human rights.

However, the proposals also involve significant limitations on a number of other rights under the HR Act, including the right to privacy (s 12), the right to be presumed innocent (s 22(1)), and the right not to self-incriminate (s 22(2)(i)). We note that there are only limited details provided in the discussion document, and that the human rights compatibility can only be assessed when the legislation is drafted. Therefore, our comments below are general only, and we would encourage the Government to include a full compatibility assessment (under s.28 of the HR Act) as part of the Explanatory Material to any legislation.

We note that there has been significant case law overseas on such laws, often which turn on the specific provisions of the scheme. While we touch on these below, we have not considered the overall scheme in detail as that seems outside the purview of this consultation. However, this should not be taken to be awholesale endorsement by the Commission of the overall sex offender scheme.[1]

Entry and Search Powers

We note that the proposals in this area include:

• the introduction of police powers of entry and search based on a specialised warrant application. This power will be used to verify personal details reported by a registered child sex offender or confirm their compliance with a prohibition order;
• the introduction of powers allowing police to request a registered offender’s details relating to encrypted information (including passwords and other access details) when making an application for an entry and search warrant;
• new offences where an offender does not comply with an entry and search warrant punishable by 5 years imprisonment and/or 500 penalty units;

Search and Entry Warrant

There is a range of relevant human rights jurisprudence that may be relevant to this proposed new power, but the Commission cannot comment in significant detail without seeing the draft provisions. For example, there is significant case law on the relevant thresholds and factors a court must consider in granting warrants, that often turn of the specifics of the warrant sought. Certainly the proposals would appear to engage the right privacy.

The Canadian case of R v Plant[2] is authority for the proposition that whether a search is reasonable will partly also turn on whether the individual had a reasonable expectation to privacy, although it concerned a warrantless search. In R v Silveira, the Canadian Court further considered the question in relation to searches of a person’s dwelling. In assessing whether such a search was reasonable, Cory J suggested ‘there is no place on earth where persons can have a greater expectation of privacy than within their “dwelling-house.”’[3] As such, similar provisions interstate may not adequately protect the individual’s human rights.[4] We note that the United Kingdom, also a human rights jurisdiction, has enacted similar powers under the Sexual Offences Act 2003.

Other relevant considerations will also include notifying the register offender of the proposed search, and ensuring that he or she has the option of being present. Further, it is also unclear whether police are seeking or require a related power of detention of the person while the search is taking place. Such a power would also engage the right to liberty and security of the person, and would have to be narrowly drafted to ensure it is not unreasonable.

The Commission has also previously advocated that there be an oversight mechanism for all search warrants issues. One option is that based on the model already developed under Surveillance Devices Act 2004 (Cth), including oversight by relevant bodies such as the Ombudsman.

The Government should in the Explanatory Material elaborate on why a punishment of 5 years imprisonment and/or 500 penalty units is a reasonable limitation on the right to liberty.

Another issue which may be present across a number of these new powers is the impact upon innocent third parties, particularly where accommodation (and personal items such as computers) are shared. We recognise that police may have concerns about material been hidden in other person’s personal effects. The decision in the Victorian Court of Appeal inR vMomocilovic (and subsequent High Court decision) demonstrates the complexities of the human rights issues in such cases, particularly when other parts of the criminal law may create burdens on those sharing premises to show an illegal item/substance was not in their possession. We suggest that any new search powers are crafted with the rights of third parties in mind. For example, perhaps the possessions of a third party cannot be searched unless the court has given explicit authorisation to do so.

Powers to Request an Offender’s Encrypted Information

In our view, the proposed encrypted information powers, will engage the right to privacy, right against self-incrimination, and potentially the right to family, given it involves the search and seizure of items from a person’s home. Of most concern is the power to compel a registered offender to provide details relating to encrypted information (including passwords and other access details). Any use of this compelled material will engage the right against self-incrimination, and generally powers of this type are coupled with immunities against criminal prosecution to prevent compelled material being used against a person.

We assume in this case, consistent with the protection of children sought, it is the intention of the Government to allow such material to be used against the person from which it is compelled. This risks the provisions being found incompatible with rights, as any use of such material would be a significant departure from the human rights and common law protection of defendants not being compelled to provide evidence against themselves. Victorian case law already suggests that coercive powers requiring suspects to supply incriminating computer encryption keys are not reasonable limits on the right against self-incrimination unless any such evidence is inadmissible against the person. [5]

The Victorian Scrutiny of Acts and Regulations Committee in 2014 found similar laws proposed in Victoria raised this issue under the Charter on Rights and Responsibilities Act 2006. Their Report number 13 of 2014 (14 October 2014) notes:

‘England’s Court of Appeal has held that both the making of an order requiring a suspect to divulge a password and the prosecution of a suspect for failing to do so are compatible with European fair hearing rights. By contrast, North American courts have held that such powers are incompatible with rights against compelled self‐incrimination where the supply of passwords may be evidence of the person’s access to, or the existence of, incriminatory data, unless the person’s access to, and the existence and nature of, the incriminatory data is already known to investigators.’[6]

Based on this, such use would have to be narrowly defined, in order to be compatible. For example, it may be more likely to be a reasonable limitation of the right against self-incrimination if any subsequent criminal prosecution was restricted to offences connected to the child sex offences, and not be permitted for other, unrelated matters. Any consideration of such issues would also need to contemplate both direct, and derivative use immunity, of such information.

Powers for the CPO to issue public notices and apply to remove an offender from the Register in limited circumstances

We note that these proposals include:

• introducing a power for the CPO, in limited circumstances, to issue a public notice with the name and photograph of a registered offender. This publication will not include details of the related offence/s;
• providing a power for the CPO to make an application to a court for the registration of a specified past offender;
• allowing, in limited circumstances:
• the CPO to apply to the court to remove a registered offender from the register; and
• an application to a sentencing court for an offender who is eligible for registration to not be registered;

Publication of Registered Offenders Details

The Human Rights Commissioner has previously expressed concerns about the publication of sex offender information as it has the potential engage several rights include privacy, right to life and liberty and security of the person (as it risks vigilante responses).As such, this proposal would need to be suitably circumscribed. For example, without necessarily endorsing any restriction being sufficient to render the proposal a reasonable limitation on rights, the Government could consider that the CPO only be allowed to issue a public notice with the name and photograph of a registered offended where it is considered that there may be imminent risk of harm to the sexual safety of children. Also, we suggest that the public notice should not identify the person as a registered offender and the power would be only available as a measure of last resort.

Power to Request Registration

There is a risk this proposal could engage s.25 of the HR ACT, which protects against retrospective criminal laws. It will be depend on how the provision is drafted to determine if this is the case, but the Commission is not necessarily opposed to this proposal. We note that in Ibbotson v UK[7], the European Court found retrospective registration was reasonable as registration was not a penalty, but rather a preventative measure separate from sentencing, which only applied after a person had been convicted, and perhaps most relevantly, the period of registration depended on the length and nature of the original sentence.

Removal from register

It seems sensible, and consistent with rights, that in limited circumstances, the CPO be able to apply to the court to remove a registered offender from the register; andan application to a sentencing court for an offender who is eligible for registration to not be registered. Needlessly having offenders on the register, particularly in circumstances that may not fall into the intent of the scheme is inappropriate.

Such measures may also make the overall scheme more proportionate. In R (on the application of F (by his litigation friend F)) and Thompson (FC) (Respondents) v Secretary of State for the Home Department (Appellant),[8]found that the notification requirements on a registered offender under the UK scheme was an unreasonable limitation on the right to privacy as they provided no mechanism for the review of the justification for continuing the requirements in individual cases, and simply applied until the registered offender died.

General amendments' to streamline the administration of the Register

We note that these proposals include:

• amending the CSO Act to require the reporting of modifications to a vehicle owned or driven by a registered offender;
• clarifying reporting requirements. This includes a requirement to report that certain activities, such as employment, have ceased;
• introducing provisions to provide that a police officer may order that photographs be taken of a registered offender in certain circumstances;
• prescribing an approved way of reporting in relation to the approved reporting place; and
• amending relevant ACT legislation to ensure that all references to ‘child pornography’ read ‘child exploitation material’.

The Commission requires more information to comment on these proposals in detail. In particular, the new reporting requirements have the potential to unreasonably limit the right to privacy, although we recognise the important goal of protecting children that is the intention of these amendments.

Police Powers

We note that these proposals include a range of new powers for police. As per previous feedback from the Human Rights and Discrimination Commissioner, it would be preferable if these powers could be considered in the context of the full review of police powers the Government began some years ago, so that they can be considered in context and with the intention of ensuring all such existing and new powers are human rights compatible.

Other Issues

The final issue the Commission would like to raise is not directly addressed in the proposed amendments. It is unclear to us if the current regime adequately addresses where police may find evidence of behaviour that falls short of the criminal threshold, but is nonetheless concerning, for example potential ‘grooming’or other behaviour involving third parties without their knowledge. In such situations, forcing police to ‘overreach’ and charge someone with a criminal offence may be inappropriate and counter-productive, but nonetheless requires further action in some cases. Additionally, these situations raise questions about how clinical advice is sought for registered offenders who are ‘escalating’, but have not yet met the criminal threshold. For example, should the Government fund a specialist service who can both advise the police on concerning behaviour, and also offer a referral point to manage registered offenders in the community.

We would welcome the opportunity to discuss this issue further with police and the Directorate, including exploring whether police can (and do) alert potential victims and/or their parents/guardians, and/or care and protection services in such situations.

Conclusion

Thank you for the opportunity to comment on these proposals. We would welcome the opportunity to further discuss the exact nature of them with the Government. Relevant contact person at the Commission is Sean Costello.

ACT Human Rights Commission Annual Report: 2012-2013

Page 81 of 82

[1]See for example the UK case of R (Forbes) v Secretary of State for the Home Department (2006) EWCA Civ.962 which considered the automatic registration of certain sex offenders.

[2][1993] 3 SCR 281

[3][1995] 2 S.C.R. 297

[4]For example, the South Australian Child Sex Offenders Registration Act 2006 allows police officers to, without prior notice, enter and inspect any premises of registered offenders, and allow police to break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, inspect (or remove for inspection from) any computer or device capable of storing electronic data at those premises.

[5]Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381

[6]Case law cited includedR v S & A [2008] EWCA Crim 2177; Greater Manchester Police v Andrews [2011] EWHC 1966 (Admin), discussing s. 49of the Regulation of Investigatory Powers Act 2000 (UK).R. c. Boudreau‐Fontaine 2010 QCCA 1108, [46] [Quebec Court of Appeal]; In Re: Grand Jury Subpoena DucesTecum dated March 25, 2011; USA v Doe, 670 F. 3d 1355 (2012) [United States Court of Appeals for the11th Circuit].Commonwealth v Gelfgatt (unreported, Massachusetts Supreme Judicial Court, 25th June 2014).

[7](1999) 27 EHRR CD332

[8][2010] UKSC 17