The Impact of the Human Rights Charter on Sex Offender Registration Act Suspension Applications
The article The Impact of the Human Rights Charter on Sex Offender Registration Act Suspension Applications is written by Cassandra Knight-Grull, Lawyer, Doogue + George Defence Lawyers.
Cassandra holds a Juris Doctor from RMIT University and a Bachelor of Arts with Honours from Monash University. She was previously a research assistant to criminal barristers at Crockett Chambers where she dealt with indictable offences in Victoria, Tasmania, and Queensland.
Cassandra has also volunteered at Youthlaw and the Neighbourhood Justice Centre as well as the Sex Worker Education and Advocacy Taskforce in Johannesburg, South Africa.
In Victoria, significant parts of our legal system, including the making of legislation and the adjudicating of court matters, are guided by the Charter of Human Rights and Responsibilities 2006 (the Charter). In simple terms, it is a piece of legislation that sets out a defined list of twenty rights that must be protected, upheld, or in some cases, impacted as little as possible. These include lofty concepts such as a right to life, but also preserve our right to enjoy things like property, culture and freedom of thought. It also protects our rights in the criminal justice system.
Since the introduction of the Charter, courts and tribunals must interpret and apply the law in a way that is compatible with the rights set out in the Charter.1 This includes applications for the suspension of reporting obligations made under the Sex Offenders Registration Act 2004 (Vic) (“Act”).
How Will the Charter Impact on My Suspension Application?
The Sex Offenders Registration Act 2004 (Vic) (“Act”) sets out two options for a person to apply to have their reporting obligations suspended – an application to the Chief Commissioner of Police (s45A), or to the Supreme Court (s 39). There are different requirements for each path which are explored in another blog: Weighing Options: Applying to Remove Conditions Under Sex Offender Register. In both cases, the interaction between the operation of the Act on a person’s human rights forms part of the decision-making process.
In the case of an application for the suspension of reporting obligation to the Supreme Court, the court will have reference to a host of factors, most of which are specifically listed in s 40 of the Act. Although neither the Charter nor human rights are listed as a specific consideration, the court can take into account any matter that it considers to be appropriate,2 and all Victorian courts and tribunals are required to consider the operation of the Charter rights when exercising its decision-making powers. It must ensure that any infringement on those rights is proportionate to the harm that it is intended to cure.
As anyone with reporting obligations will know, the requirements imposed by the SORA are significant and burdensome. Although not all of the Charter rights are relevant to SORA, there are a number of protected rights that are impacted. For example:
- The right to move. Every Victorian has the right to move freely within Victoria, enter and leave it, and choose where to live.3 SORA restricts a person’s ability to travel within Australia or go overseas. Any travel plans must be reported. You are restricted in where you can reside, and any changes to your permanent residence is tightly monitored. Hence this is an example of an intersection between the Human Rights Charter and Sex Offender Registration Act considerations during suspension applications.
- Privacy. The Charter states that we have a right not to have our privacy or family arbitrarily or unlawfully interfered with.4 The Act requires a person to furnish highly specific personal details about their employment, appearance, contacts and associations, and update them whenever they change and on a regular basis. They may need to provide a photo.
- Freedom of association. We all have the right to freedom of association with others.5 SORA tightly controls and, in some cases, prevents free association and communication with children. A person’s ability to choose the job they want, or volunteer in an area in which they are interested, can also be heavily curtailed by restrictions on applying for a ‘Working with Children Check’. In some cases, these checks are required in roles that in reality, may involve very little or no contact with children.6
A registrable offender must keep police informed of changes in their circumstances and report their association with children. Any failure to adhere to these strict reporting requirements can result in imprisonment for up to five years.7 The police can monitor a person’s movement and activity regardless of whether or not they believe they will break the law. For some people, these restrictions are for life.
The Balancing Act
Although it is evident that the operation of the Act is at odds with a person’s Charter rights, section 7(2) of the Charter confirms that the rights are not absolute and can be subject to “reasonable limits”. What is reasonable is measured with reference to the nature of the right, the purpose, nature and extent of the limitation, and whether the same purpose can be achieved with less restrictive means.
As an example, it is clear that strict reporting obligations limit the right to privacy, given the quantity and type of information required to be furnished, in some cases for life. However, that infringement is not absolute – the Act also has provisions designed to protect the privacy of the information recorded in the register.8 The purpose would be to facilitate the identification of individuals convicted of specific offences in order to protect children. Children have a right to protection under section 17 of the Charter.
In considering an application to suspend reporting obligations, the Supreme court will consider all of the rights that are restricted by the operation of this law, such as those referred to earlier. It will also examine the circumstances making up the application – the context of the offence, an applicant’s changed circumstances, the presence or absence of ongoing risk. All of this will be weighed against the purpose of these restrictions and whether in the case before them, there remains a balance in favour of maintaining the obligations.
Generally, the same considerations are applied by the Chief Commissioner of Police when deciding applications under s 45A.9 In either case, it is important for any applicant to consider how the Charter interacts with the Sex Offender Registration Act, and whether the reporting obligations remain a proportionate and necessary interference with their rights in the specific circumstances of their case.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) S 6-7.
 Sex Offenders Registration Act 2004 (Vic) s 40(3)(f) (‘SORA’).
 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16.
 WBM V Chief Commissioner of Police  VSCA 159 at .
 SORA s 46.
 SORA Division 10; ss 63-64A.
 SORA s.45A(3)(h).
Date Published: 6 September 2023