DNA and the Sex Offender Registry

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DNAWritten by Bill Doogue, Partner, Doogue + George Defence Lawyers.

You have possibly heard in recent news about Victorian Police being granted powers to collect DNA and fingerprints from people on the Sex offenders Registry without a warrant. Consequently, we are being asked by many people about whether they have to give their DNA if they are no longer on the Sex Offender Registry, as the Police have been contacting people to ask them for samples.

The simple answer, at present, is generally, “Yes.”

The long and short of it in our assessment is that you are in the “initial period” and so you must comply. The “initial period” is defined in the legislation as being the three year period from when the law came into effect. And if you are in the “initial period,” then someone whose reporting obligations have ceased on the Sex Offender Registry can still be asked to provide a DNA sample.

However, in certain circumstances, one can refuse to provide a sample. The relevant legislation only applies to “registrable offenders” as per the definition in s 6 of the Sex Offenders Registration Act.

Section 53(2) of the Sex offenders Registration Amendment (miscellaneous) Act 2017 (the Amendment Act) inserts 464ZFAB(9)(c) into this Crimes Act.

464ZFAB(9)(c) allows a police officer to serve a notice on somebody who was a registrable offender but whose reporting requirements under SORA have ceased to provide a DNA sample.

Also of note is that a police officer serving a notice on someone to provide a DNA sample must inform them, in a manner likely to be understood by them, that the offender may refuse to comply with the notice, the grounds on which they can refuse and that they may wish to seek legal advice (see s 53(11) Amendment Act).

So, my reading of the legislation is that the police can ask for a DNA sample from someone whose SORA obligations have expired, but that person can refuse if they fall under one of the exceptions in 53(10)(a) or 53(10)(b) of the Amendment Act (which, at this stage, people don’t). Further, s 53(11) of the Amendment Act requires police serving the notice on the registrable offender that they may refuse to comply with the notice.

The relevant legislation is here Sex Offenders Registration Amendment (Miscellaneous) Act 2017 specifically pages 37-42.

The Sex Offender Registry is bad legislation that, in our opinion, undermines the safety of the community. Rehabilitating people so they do not commit offences again rather than continuing to harass and punish them after their sentences have finished is the best approach.

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