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Monday, 7 June 2010

Sex offender registration not arbitrary

Yesterday in Lifetime sex offender registration might offend Charter I posted about a UK case considering if lifetime sex offender notification requirements offended the human right to privacy.

Jeremy Gans gave me a very nice segue by commenting about the recent Victorian case of WBM v Chief Commissioner of Police [2010] VSC 219. In that case WMB sought:
  1. a declaration that he was not an existing controlled registrable offender and so not a registrable offender
  2. a declaration that sex offender registration was incompatible with the right against arbitrary interference with privacy
He was unsuccessful on both grounds.


The first argument failed on a fairly straight-forward case of statutory interpretation, in the process at [20] helpfully applying R v Bice (2000) 2 VR 364 to affirm that a suspended sentence is not ‘served’ until the suspension period expires (or the sentence is restored and actually served).

The second argument was rejected on the interpretation of Charter s 13, which provides:
13. Privacy and reputation

A person has the right—
(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

Kaye J considered a number of Victorian and international judgments, but held the international cases weren't terribly helpful because of different constitutional systems in their background, or different statutory schemes. In the end, His Honour concluded sex offender registration wasn't an arbitrary interference with privacy and dismissed the application.
[57] For the reasons which I have already set out, in my view the adverb “arbitrarily”, in s 13(1) of the Charter, is to be construed in its ordinary English meaning, namely as denoting an interference with the right of privacy which is capricious and not based on any identifiable criterion or criteria.

Although the proportionality-test under Charter s 7(2) was raised, the Court seemed to focus more on the test of arbitrariness under s 13.

It might be that issue could remain to be further explored in future cases. But in any event, as Jeremy pointed out, the right to apply for suspension of reporting obligations under Sex Offenders Registration Act s 39 suggests that F (A Child) v Secretary of State for the Home Department; Thompson v Secretary of State for the Home Department [2010] UKSC 17 might not carry so much weight in Victorian courts.

1 comment:

Alan said...

Stephen Kaye clearly not a fan of the Charter.