WBM v Chief Commissioner of Police

[2012] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0086

WBM
	Appellant
v
CHIEF COMMISSIONER OF POLICE	Respondent

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JUDGES:	WARREN CJ and HANSEN JA and BELL AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2012
DATE OF JUDGMENT:	30 July 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 159 (Revision 2, 31 July 2012)
JUDGMENT APPEALED FROM:	WBM v Chief Commissioner of Police [2010] VSC 219 (Kaye J)

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CRIMINAL LAW – Statutory interpretation – Sex Offences Registration Act 2004 (Vic) ss 3, 6 – Whether appellant an ‘existing controlled registrable offender’ under Act – Appellant serving aggregate suspended sentence for registrable and non-registrable offences at time Act commenced – Whether Act is retrospective – Principle of legality – Right to work – Charter of Human Rights and Responsibilities Act 2006 ss 13(a), 32(1) – Right to privacy – Whether Act is penal – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr E M Nekvapil	Lewenberg & Lewenberg
For the Respondent	Mr O P Holdenson QC with Ms J M Davidson	Victorian Government Solicitor’s Office

WARREN CJ:

1. On 22 April 2003 the appellant pleaded guilty in the Magistrates’ Court to five offences including: burglary, theft, possessing property being the proceeds of crime, knowingly possessing child pornography and making/producing child pornography. The appellant received an aggregate sentence of 12 months’ imprisonment which was wholly suspended for 24 months.  The suspended sentence order expired on 21 April 2005.  Two of those offences — knowingly possessing child pornography and making/producing child pornography — are classified as ‘registrable offences’[1] under the Sex Offenders Registration Act 2004 (‘the Registration Act’).

   [1]Both class 2 ‘registrable offences’ as per the relevant schedule and s 7 of the Registration Act.

1. In August 2007 the appellant was informed that he was a registrable sex offender.  The appellant’s name was placed on the register of sex offenders. By writ filed in the Supreme Court on 1 October 2009 the appellant sought a declaration from the Trial Division of the Supreme Court that he was not a registrable offender and an order that his name be removed from the register.

1. The appellant argued that he did not meet the definition in the Registration Act of a registrable offender. The learned trial judge found that he did.[2]  This is an appeal from that decision.

Relevant legislation

[2]WBM v Chief Commissioner of Police (2010) 27 VR 469 (‘Reasons’).

1. The Registration Act was enacted on 1 October 2004. Among other things, the Registration Act requires certain offenders who commit sexual offences to be ‘registered’, meaning they must keep police informed of their whereabouts and their personal details. The Act also prevents registered offenders from working in child-related employment.

1. A registrable offender is defined in s 6 of the Registration Act:

(1)      Subject to subsections (3) to (6), a registrable offender is a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence.

However, the section goes on to say:

(4) Unless he or she is … an existing controlled registrable offender, a person is not a registrable offender merely because he or she was sentenced for a registrable offence before 1 October 2004.

(emphasis added)

1. The appellant was sentenced for the relevant offences before 1 October 2004. Therefore, the appellant is only a registrable offender if he is an existing controlled registrable offender.

1. Section 3 of the Registration Act defines the term ‘existing controlled registrable offender’. Originally, s 3 defined the term as meaning a person who, as a result of having been sentenced for a registrable offence was ‘under the supervision of a supervising authority or any other person or body immediately before 1 October 2004’.

1. In DPP v Neisser[3] it was held that an offender did not meet that definition where that offender received a fully suspended sentence, as he was not under any actual supervision.

   [3][2006] VSC 218 (‘Neisser’).

1. As a result of that decision,[4] s 3 was amended to give the term ‘existing controlled registrable offender’ its current definition (‘the definition’). Insofar as it relates to the appellant, the relevant part of the definition is:

a person who, as a result of having been sentenced for a registrable offence … was immediately before 1 October 2004 … (d) serving a sentence referred to in s 6C(1) of the Corrections Act 1986.

[4]See, eg, Registration Act s 73B; Victoria, Parliamentary Debates, Legislative Council, 3 October 2006, 3657-8, (Gavin Jennings); Victoria, Parliamentary Debates, Legislative Assembly, 24 August 2006,  3109 (Bob Cameron).

1. Section 6C(1) of the Corrections Act 1986 includes:

(d)a person who is serving a sentence of imprisonment that was wholly or partly suspended and who is in the community in accordance with that sentence.

1. The amending provision is deemed to have come into effect on 1 October 2004.[5]  The amending legislation was assented to on 10 October 2006.

   [5]Justice Legislation (Further Amendment) Act 2006 s 2(2).

1. Thus when the appellant was sentenced, the Registration Act did not exist. Further, immediately after the Registration Act was enacted the appellant was not caught by the scope of the Registration Act. However, by August 2007, after the described amendment to the definition took place, the appellant was advised that he was a registrable offender.

1. The appellant was convicted of two Class 2 offences arising out of two separate incidents, one occurring in June 2002 at Carlton and the other occurring in July 2002 at Mitcham.[6]  Thus, if the appellant proves to be an existing controlled registrable offender he will be required to report for 15 years.[7]

The judgment below

[6]Section 5(1) of the Registration Act also provides that: For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person.

[7]Registration Act s 34(1)(b).

1. The appellant’s case at trial turned on the construction of ‘existing controlled registrable offender’, submitting that it could not apply to offenders sentenced prior to 1 October 2004 serving aggregate sentences for registrable and non-registrable offences.  The trial judge rejected the appellant’s arguments and accepted the respondent’s construction of the definition. His Honour found that ‘the definition does not confine its ambit to a person who has been sentenced solely for a registrable offence’[8] and that the definition ‘does not require that the commission by the [appellant] of a registrable offence be the sole, or dominant, cause of him serving the suspended sentence.’[9]  Instead ‘the definition, by its express terms, applies to a person who was serving a sentence immediately before 1 October 2004, where that sentence was ‘a result’ of that person being sentenced for a registrable offence.’[10]

   [8]Reasons 476[26].

   [9]Ibid 476 [27].

   [10]Ibid 476 [26].

1. The trial judge considered it relevant that the amending legislation was retrospective and the legislation imposed onerous obligations and intruded on the right to personal privacy.[11]  However, his Honour held that these consequences could not override the ‘clear and unequivocal’ and ‘plain language’ and ‘plain intent’ of the section.[12]

   [11]Ibid 476-7 [28]-[30].

   [12]Ibid.

1. The trial judge also rejected the appellant’s second argument.  The appellant had argued that he was not ‘serving’ his sentence immediately before 1 October 2004 because the word ‘serving’ referred to the suspended term of imprisonment (12 months) and not the term of the suspension (24 months).  Therefore, he had already ‘served’ his suspended term of imprisonment by 21 April 2004.  The appellant challenged this aspect of the decision.  However, during oral submissions counsel for the appellant did not press this argument.[13]  Thus I consider this ground to have been abandoned. In any event, his Honour’s conclusion on this point was plainly correct for the reasons he stated.[14]

The appeal

[13]Transcript 1-2, 19.

[14]Reasons 474-5 [19]-[24].

1. In the Notice of Appeal the appellant contends that the trial judge failed to apply the following three principles of statutory construction in construing the definition of ‘existing controlled registrable offender’ in s 3 of the Registration Act:

(a) First, the presumption that parliament would not infringe rights without expressing its intention with irresistible clearness;

(b) Secondly, the principle that a provision should be construed in accordance with its purpose; and

(c) Thirdly, the principle of construction in section 32 of the Charter of Human Rights and Responsibilities Act 2006, in the context of giving effect to the right to privacy in section 13(a) of the Charter.[15]

[15]Notice of Appeal [3].

1. The appellant’s argument was that the natural, grammatical meaning of the section required a causal link between the registrable offences and the sentence imposed.  The appellant submitted that in the ordinary and natural reading of the definition, the appellant was not ‘serving’ the suspended aggregate sentence on 1 October 2004 ‘as a result of having been sentenced for a registrable offence’ because the appellant was serving an aggregate sentence for five offences, three of which were not registrable offences.

1. The appellant submitted that once this construction is accepted, on the facts of his case, it is not possible to establish that he would have fallen within the definition had he only been sentenced for the two registrable offences.  The appellant submitted that it is contrary to the purposes of the retrospective regime to catch a person who was not serving a sentence immediately before 1 October 2004 solely because they had committed registrable offences[16] or to catch a person who may not have been serving any sentence immediately before that date had they been convicted of registrable offences.

   [16]Registration Act s 6.

1. The time between the date of sentence (22 April 2003) and 1 October 2004 is 17 months and 9 days.  Therefore, the appellant is arguing that it is not possible to show that he would have received a sentence of this length in relation to just the two registrable offences.

1. In the alternative, the appellant submitted that at the least, the definition is ambiguous. As such, its ambiguity may be resolved using the principle of legality and the rules of interpretation in relation to retrospective legislation and penal legislation. The appellant submitted that the Registration Act imposed onerous burdens on offenders and abrogated the right to work in an occupation of one’s choosing and the right to privacy. Therefore the common law principles of construction would require an interpretation of the definition that had the least interference with rights.

1. The appellant also submitted that s 32(1) of the Charter would require that the appellant’s interpretation be preferred. That section says:

32.       Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

1. The appellant submitted that the Registration Act was incompatible with s 13 of the Charter which says that ‘a person has the right not to have his or her privacy… unlawfully or arbitrarily interfered with’.

1. The appellant did not seek to appeal the trial judge’s finding that no declaration of inconsistency under the Charter could be made.  However, both parties made submissions upon whether or not the trial judge’s interpretation of the provision relating to arbitrary interference with the right to privacy, as described in the Charter, was correct.  The appellant submitted that on any construction of the right in the Charter, the Registration Act amounted to a breach of that right and therefore the appellant’s construction of the definition, being the least incompatible with the Charter right, must be preferred.

Possible constructions of the definition

1. The parties’ submissions primarily focused on the meaning of the phrase ‘as a result of’ in the definition.  In particular, whether it meant that being sentenced for a registrable offence had to be the sole cause of the effect described in the definition.

1. However, there is another difference between the constructions proposed by the parties.  On the respondent’s construction the definition means an existing controlled registrable offender is anyone who serves a sentence[17] as a result of having been sentenced for a registrable offence, so long as that sentence is still being served immediately before 1 October 2004.  In contrast, on the appellant’s construction the definition means an existing controlled registrable offender is anyone who is serving a sentence immediately before 1 October 2004 as a result of having been sentenced for a registrable offence.

   [17]Assume for the purposes of the following discussion that ‘a sentence’ is a sentence of the type referred to in the definition.

1. In other words, on the appellant’s construction there must be a cause/effect relationship between having been sentenced for a registrable offence and a sentence being served immediately before 1 October 2004.  In contrast, on the respondent’s construction there need only be a cause/effect relationship between having been sentenced for a registrable offence and a sentence.  If the additional requirement is met — the sentence is still being served immediately before 1 October 2004 — then an offender is caught by the definition.

1. The respondent’s construction, (being that adopted by the trial judge) is that an existing controlled registrable offender is any person who, immediately before 1 October 2004, was serving a sentence as a result of having been sentenced for a registrable offence (whether by itself or with other offences). As any offender that potentially comes under the Registration Act must be serving a sentence,[18] it then only needs to be shown that the sentence is still current as at 1 October 2004 in order for an offender to be an existing controlled registrable offender.  A causal connection would not be disputed. I will refer to this construction as the preferred construction.

   [18]In this particular case the appellant was given an aggregate sentence, pursuant to s 9 of the Sentencing Act 1991. Therefore, per that section, the sentencing judge must have considered that all of the offences he was sentenced on warranted a term of imprisonment.

1. The appellant’s counsel proffered two constructions, but was wary of definitively adopting either or preferring one ahead of the other.  On the first construction, an existing controlled registrable offender is any person who was serving a sentence immediately before 1 October 2004 as a result of having been sentenced for a registrable offence (whether by itself or with other offences).  On this construction it does not matter that the offender may have been sentenced for non-registrable offences at the same time so long as it can be shown that it was only that part of that sentence which related to the registrable offences that led to the offender serving a sentence immediately before 1 October 2004.  In other words, it has to be shown that the sentence for the registrable offences was necessary and sufficient to cause the offender to be serving a sentence immediately before 1 October 2004.

1. On the appellant’s second construction an existing controlled registrable offender is any person who was serving a sentence immediately before 1 October 2004, as a result of having been sentenced for a registrable offence alone; that is, the offender was not sentenced for any non-registrable offences at the same time and did not receive an aggregate sentence.  This construction appears to be based on a very literal reading of the definition.  The construction might also be considered the inevitable consequence of the appellant’s first construction; as it can never be definitively shown in the case of an aggregate sentence for both registrable and non-registrable offences what the sentence for the registrable offence might have been, the relevant offender can never be captured by the definition because it would be impossible to ever meet the causation requirement.

The natural and ordinary meaning of the words

1. Statutory construction begins with considering the text of the provision.[19] Ordinarily, but not always, the natural and ordinary and grammatical meaning of the words of a statutory provision should and will correspond with its legal meaning.[20]  However, the natural and grammatical meaning of almost any given phrase may alter by virtue of its context in a sentence, a section or an Act.  In such cases, without referring to the wider context, even the natural or strict grammatical meaning of a phrase might be ambiguous or misleading.

   [19]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (‘Alcan’).

   [20]         Project Blue SkyInc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 349 [42] (French CJ).

1. In its natural and ordinary meaning, to say that something ‘results’ in something else implies a causal connection between the two things. A causal connection (as opposed to a mere connection) of some sort being included in the definition by virtue of the phrase ‘as a result of’ was acknowledged by both parties.

1. However, it is usual and proper to make a distinction between the phrases ‘a result of’ and ‘the result of’.  It is true that these phrases imply ‘more than one result’ and ‘only one result’ respectively.[21]  However, the phrases are also used in everyday parlance so that the former implies more than one cause whereas the latter implies there is a sole or dominant cause.  This distinction has been discussed judicially before in other contexts.[22]  The meaning of the phrase may vary depending on context and the purpose of the statute but this is its usual meaning.[23]

   [21]Transcript 26-28.

   [22]See eg Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 580-1 [37]-[38] (McHugh J) and approved in Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 561 [103] (Kirby J). Of course, a single expression may well be used differently in different statutes: Mills v Selby (1971) VR 836, 841-842.

   [23]For example, ‘in some situations, the applicable legal framework requires a finding that no causal connection exists for legal purposes even though a physical connection exists between the thing complained of and the damage’ Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 586-7 [55] (McHugh J).

1. In contrast, the phrases ‘by reason of’, ‘because of’ and ‘by virtue of’ have been found by Australian courts to imply a relationship of cause and effect and ‘a practical application of ordinary causation principles is required’.[24]  Again, this accords with the ordinary and grammatical meaning of the terms.

   [24]D C Pearce and R S Geddes Statutory Interpretation in Australia (7^th ed, 2011) [12.9]. See, eg, a similar discussion in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 671-3 (Mason and Wilson JJ, Murphy J agreeing) drawing a similar distinction between ‘by’ and ‘as a result of’ in the context of s 3(1) of the Criminal Injuries Compensation Act 1972 (Vic).

1. Looking at the definition as a whole, its context in the Registration Act, and the purposes of the Act (which I will shortly discuss), there is nothing to suggest that the words ‘as a result of’ requires one set of conditions to be solely caused by one event. There is no basis on which to imply, as the appellant suggested, that the phrase ‘as a result of’ in this context can only indicate that there is more than one result, as opposed to also indicating, as has been found in other contexts, that there can be more than one cause.

1. In other words, the appellant’s first construction is problematic grammatically in that it assumes the registrable offence must be the sole cause of the offender serving a sentence immediately before 1 October 2004.[25]  The fact that it should not be so limited is (even putting aside the usual construction of ‘as a result of’) supported by the language of the section.  The language of the section is: ‘as a result of having been sentenced for a registrable offence is serving a sentence immediately before 1 October 2004’ and not ‘as a result of having been sentenced for a registrable offence is serving that sentence immediately before 1 October 2004’.  The indefinite article ‘a’ indicates that its noun (‘the sentence’) is not a particular one, unlike the discourse deixis ‘that’ which specifically refers the noun back to a prior portion of the discourse (‘having been sentenced for a registrable offence’).

   [25]Of course, in Australian law, causality is not usually so limited.

1. The appellant’s second construction also does not appear to be supported by the text as it similarly excludes there being more than one cause for the result.

1. It seems clear to me that if we begin by simply looking at the ordinary and natural meaning of the definition, then ‘having been sentenced for a registrable offence’ must result in a sentence being served immediately before 1 October 2004.  It does not appear to only mean that ‘the relevant sentence, which was being served immediately before 1 October 2004, must be a result of the person having been sentenced for a registrable offence.’[26] However, the definition may be considered in the context of the Registration Act which includes its purpose, policy and the mischief that it is seeking to remedy.[27]

Purposes and objects of the Registration Act

[26]Reasons 476 [26].

[27]Alcan (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

1. Consistently with the common law, one must take the purpose and objects of Victorian legislation into account even when this would result in an interpretation that differs from a provision’s literal meaning.[28]  One may avoid the literal meaning of an Act if the result would have been incongruous, contrary to objects of the Act, capricious and irrational.[29]  However, ‘the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman’.[30]  The limitation is that a court may give a ‘strained’ construction to the language used to achieve a clear legislative purpose so long as the construction is neither unreasonable nor unnatural.[31]

   [28]Interpretation of Legislation Act 1984 (Vic) s 35(a), CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 407-8 (Brennan CJ, Dawson, Toohey and Gummow JJ).

   [29]Cooper Brookes(Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, 320-1 ‘… when the judge labels the operation of a statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. ... It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.’

   [30]Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J). Also R v L (1994) 49 FCR 534, 538 (Burchett, Miles, Ryan JJ): ‘The requirements of s 15 AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan v FCT (1991) 29 FCR 157 at 162.’

   [31]Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113 (McHugh J). See also R v Young (1999) 46 NSWLR 681, 687-8 (Spigelman CJ).

1. Statutory intent is easier to discern than it once was as modern Acts include statements of purpose and objects.  However, these statements are not the sole sources of enlightenment of an Act’s purpose; intention is to be gleaned from the whole of an Act and such statements are to be understood by reference to other provisions contained in the legislation.[32]

   [32]IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J), Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129, 153.

1. Statutory interpretation in the context of the purpose of an Act also involves looking at the consequences of different constructions to see if a construction would render a section ineffectual, or result in inconvenience,[33] or injustice or interference with legal rights or hardship,[34] or absurdity, or incongruity or anomaly, whereas another would not.[35]  This is especially relevant where a given situation is not within the general purview of the Act.[36]  However, caution should be exercised before relying on such results to reject what otherwise appears to be the correct construction[37] and to avoid being distracted from the true intention of the legislation.[38]

   [33]Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 (Windeyer J). As was stated in R v The Overseers of the Parish of Tonbridge (1884) 13 QBD 339, 342 (Brett MR): ‘[I]f the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning.’

   [34]FCT v Smorgon (1977) 16 ALR 721, 729 (Stephen J).

   [35]Pearce and Geddes, above n 24, 62.

   [36]Ingham v Hie Lee (1912) 15 CLR 267.

   [37]Ganter v Whalland (2001) 54 NSWLR 122, 131 (Campbell J).

   [38]Esso Australia Resources Ltd v FCT (1998) 83 FCR 511, 518-19. (Reversed on other grounds)

1. Common law canons of construction, specifically those relating to retrospective operation and fundamental rights and freedoms must also be considered, where relevant, in a statutory construction exercise. Furthermore, the Charter must also be considered.

1. The purposes of the Registration Act are found in s 1:

1.      Purpose and outline

(1)       The purpose of this Act is--

(a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time--

(i) to reduce the likelihood that they will re-offend; and

(ii) to facilitate the investigation and prosecution of any future offences that they may commit;

(b) to prevent registered sex offenders working in child-related employment;

(c) to empower the Police Ombudsman to monitor compliance with Part 4 of this Act.

(2)       In outline this Act—

…

(b) requires certain offenders who are sentenced for registrable offences on or after 1 October 2004 to report specified personal details for inclusion in the Register (and extends this requirement to certain offenders sentenced for registrable offences before that date).

1. Most relevantly, the purposes of the Registration Act are protective and preventative in relation to potential future victims of sexual offences at large and children more specifically. Although the Registration Act imposes some penalties for failing to comply with the scheme within the Act, the Act and scheme are not intended to be punitive.

1. However, the purposes of the Registration Act are limited in that the reporting and associated purposes only apply to ‘certain offenders who commit sexual offences’ as opposed to all offenders who commit sexual offences. Further, the preventative purpose relating specifically to children only applies to ‘registered sex offenders’ as opposed to all sex offenders. A reading of the Registration Act demonstrates these limitations most pertinently apply to offenders who were sentenced prior to 1 October 2004.

1. The question of just who are the ‘certain offenders’ the Registration Act targets is, of course, partly answered by the definition that is the focus of this appeal. However, s 6 is the starting point in determining who is captured by the Registration Act. In addition to the portion quoted earlier, Note 4 to s 6(1) of the Registration Act states:

The effect of this Act is that any adult offender sentenced at any time (including before 1 October 2004 and still serving the sentence immediately before that date) for a class 1 or class 2 offence[39] must comply with the reporting obligations of Part 3.[40]

[39]Inclusion in the register of persons sentenced for non-class 1 or 2 offences is subject to the making of a sex offender registration order. The power to make such an order did not exist before 1 October 2004.

[40]Section 36(3A) of the Interpretation of Legislation Act 1984 (Vic) states that a note in an Act forms part of the Act if the Act is passed or the note inserted after 1 January 2001. Note 4 was inserted into the Registration Act in 2005 (and later amended to reflect the new definition of ‘existing controlled registrable offender’).

1. Section 6 also states that the Registration Act is intended to apply to offenders who are registrable offenders in other states,[41] that the Registration Act is intended to apply to corresponding registrable offenders[42] and to persons subject to a sex offender registration order. While the Registration Act is not intended to apply to offenders who committed registrable offences as minors generally, it will apply if they are registrable offenders in NSW or corresponding registrable offenders.[43]  The Registration Act is not intended to apply to persons protected by witness protection law.[44] The Registration Act is not intended to apply to persons who have a finding of guilt for a sexual offence quashed or set aside where that is the only registrable offence putting them under the jurisdiction of the Registration Act.[45]

   [41]Registration Act s 6(2) and Sex Offenders Registration (Amendment) Regulations 2005: Child Protection (Offenders Registration) Act 2000 (NSW), the Child Protection (Offender Reporting) Act 2004 (Qld) the Community Protection (Offender Reporting) Act 2004 (WA) the Child Protection (Offender Reporting and Registration) Act 2004 (NT) and the Crimes (Child Sex Offenders) Act 2005 (ACT).

   [42]Section 6(2). Per s 3 a ‘corresponding Act’ means a law of a foreign jurisdiction similar enough to the Registration Act.

   [43]Section 6(3).

   [44]Section 6(5).

   [45]Section 6(6).

1. It is also possible to make logical and necessary inferences of Parliamentary intent. In my view, it is plain that Parliament did not intend the Registration Act to apply to all sexual offenders convicted in Victoria. The Parliament has clearly created a sub-category of ‘certain offenders’ to whom the Registration Act may apply. ‘Certain offenders’ clearly includes only offenders who have been sentenced for a registrable offence. Sentence is defined broadly, referring to its meaning in the Criminal Procedure Act 2009, Children, Youth and Families Act 2005, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Sentencing Act 1991 and the laws of foreign jurisdictions.[46]  Inclusion is mandatory for certain offences;[47] after 1 October 2004 once an offender is sentenced, all that matters to invoke registration is the type of offence, rather than the length of the sentence or the likelihood of re-offending.[48]

   [46]Section 3.

   [47]Being class 1 or class 2 offences. Generally these are sexual offences relating to children (or related offences), child pornography and bestiality.

   [48]Inclusion may also be discretionary for certain offences after this date, being class 3 and 4 offences. Generally these are sexual offences relating to adults or related offences. In such circumstances a sex offender registration order is required. However, because the power to make such an order did not exist before 1 October 2004, that situation does not apply to offenders sentenced before that date.

1. It is obvious that the inclusion of a cut-off date within the Registration Act was not because any particular significance was attached to that date, other than the fact that it is the date that the Registration Act commenced. Adult offenders who were serving their sentences on either side of that date would pose no greater or lesser threat than that which the Registration Act is attempting to remedy.[49] The creation of a cut-off date can really only serve one purpose — to create certainty — and, following on from that, to reduce the administrative burden and inconvenience to those responsible for enforcing the Registration Act. There is of course no need for a cut-off date in relation to corresponding foreign or interstate registrable offenders and thus it does not apply to them; their status is already sufficiently certain.

   [49]Except, perhaps, as a vaguely helpful heuristic. One would expect the further in the past an offence was committed, the more likely it is that any related sentence would have been served before 1 October 2004 and one would usually expect that the further in the past an offence was committed, the less likely the offender would be to re-offend.

1. This goal of ‘certainty’ provides a sound basis for rejecting the appellant’s first construction. In the case of aggregate sentences for multiple registrable and non-registrable offences, what these constructions seem to require is for the court to re-engage in the sentencing exercise in order to determine what the sentence for the registrable offence would have been.  Until such an exercise is embarked upon it is unclear whether a person comes under the Act.  Even should such an exercise be engaged in, there might be sufficient uncertainty involving a ‘borderline’ case to make it unclear whether a person comes under the Act.  Adopting either construction is questionable when one considers the consequences; re-engaging in the sentencing exercise and ‘second-guessing’ the sentencing decision is plainly problematic.  The inconvenience for all parties and the risk of possible injustice to the offender would be great.

1. The same problems would necessarily arise with non-aggregate sentences.[50] When engaging in a sentencing exercise judges to do not simply look at each offence separately, the principle of totality is considered.  The nature of each offence might also affect the sentence for other offences.  For example, a person who is charged solely for rape, where that rape caused serious physical harm, or the victim was abducted, might receive a longer sentence for the rape than a person who is charged for both rape and intentionally causing serious injury or abduction.  Issues of cumulation and concurrency can become extremely complicated if the intent is to look at the registrable offences alone.  If two registrable offences are made concurrent with a non-registrable offence and each other, it is not safe to assume that the registrable offences taken alone would still be concurrent with each other . While there might still be some clear-cut cases there is still much scope for unclear cases. Thus the first construction urged by the appellant will remain problematic even for non-aggregate sentences.

   [50]Contrary to the Appellant’s submissions T28-T30.

1. Examination of the Registration Act also demonstrates a further problem with the appellant’s second construction in that it automatically bars from the scope of the definition any offender who is sentenced simultaneously for non-registrable offences and registrable offences. There is nothing in the Registration Act that would support this distinction and such a distinction would not apply to offenders who were sentenced on or after 1 October 2004. Such a distinction would seem capricious or irrational.[51]

   [51]See Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, 320-321 (Mason and Wilson JJ).

1. Capriciousness or irrationality may arise in another way.  Take the example of  two offenders who commit an identical registrable offence and one of whom also committed additional non-registrable offences.  Although both offenders are still serving their sentences immediately before 1 October 2004, the one who committed the additional non-registrable offences would not be captured by the appellant’s second construction simply by virtue of the fact they were sentenced simultaneously for those offences.[52]

   [52]I note that just because that one offender might be regarded as an objectively ‘worse’ offender by virtue of the fact he committed more offences than another offender, this is irrelevant for the purposes of the Registration Act. The Registration Act is only concerned with offenders who commit a particular type of offence. The capriciousness or irrationality is only related to the issue that like cases should be treated alike; the mere fact that one offender was also sentenced for non-registrable offences should be irrelevant to whether they come under the Registration Act.

1. The appellant gave an example to suggest that the preferred construction was capricious or irrational or arbitrary. The example was given of two offenders who commit an identical registrable offence and one of whom also committed additional non-registrable offences. As a result the two offenders received two different sentences and whereas the first offender finished his sentence before 1 October 2004 the other did not and came under the scope of the Registration Act. The appellant submitted this would be arbitrary and capricious.

1. However, whilst the construction may be arbitrary or capricious in that way it is clearly consistent with the system established by the Registration Act. By creating a cut-off date, the Registration Act must allow situations where offenders who commit identical registrable offences are treated differently by virtue of the fact that the sentence of one is still being served immediately before 1 October 2004 and the other is not. There are many reasons why offenders committing identical offences who would have received the same sentence might be treated differently by the Registration Act. It could depend on the date the sentence commences and differences in the length of delay between the crime being committed, a person being charged and a person being sentenced. It could also depend on whether an offender is sentenced simultaneously for non-registrable offences. However it is not by virtue of that fact; whether an offender is caught by the Registration Act is only by virtue of the date at which they are still serving their sentence. That might be the result of many factors. Thus the only capriciousness or irrationality that would arise on the preferred construction is that which would obviously arise in any situation involving an operative cut-off date and which would have necessarily been considered and permitted by Parliament.

1. The appellant submitted that the cut-off date might be considered arbitrary in that had the appellant (or any number of offenders) been aware of it, he might have argued against an aggregate sentence during the plea hearing. However, in my view, this problem only arises under the appellant’s construction or similar constructions. It does not arise under the preferred construction. It is also the type of effect that must have been considered by the Parliament in relation to the Registration Act’s purpose of certainty. Undoubtedly had any number of offenders been aware of the cut-off date they might have changed their pleas or the timing of them and the Parliament must have considered this when introducing the cut-off date.

1. Note 4 to s 6(1) of the Registration Act would also suggest that the preferred construction would be the construction that fits the desired effect of the Registration Act. The note seems to demonstrate a legislative intent that any offender serving a sentence for a class 1 or 2 offence and still serving that sentence immediately before 1 October 2004 must comply with the reporting obligations of the Registration Act. Thus the note suggests there is no need for any causal connection between being sentenced for a registrable offence and the date at which the sentence is still being served.[53] Scrutiny of the consequences of the appellant’s constructions reveals that some offenders would not come under the scope of the Registration Act that the legislative note seems to assume would.

   [53]Although it still requires a causal connection between being sentenced for a registrable offence prior to 1 October 2004 and actually serving a relevant sentence.

1. The note is also consistent with the language used when the amended definition was introduced in Parliament; the definition was ‘to clarify that persons who were serving suspended sentences for certain sexual offences when the Act commenced on 1 October 2004 are subject to the operation of the Act’[54] and ‘to explicitly clarify that the Act applies to persons who were serving suspended sentences for registrable offences as at 1 October 2004.’[55]  However, the interpretation is not supported by the Explanatory Memorandum which states that the definition means ‘a person who was in custody, or serving a specified sentence or order immediately before 1 October 2004, as a result of having been sentenced for a registrable offence committed when he or she was 18 years of age or older.’

   [54]Second Reading Speech ‘Justice Legislation (Further Amendment Bill)’ Legislative Assembly (Bob Cameron) Thursday 24 August 2006, p 3108.

   [55]Ibid 3109.

1. The respondent submitted that the constructions advanced by the appellant would undermine the preventative and protective purposes of the Registration Act as it would have the effect of excluding from the initial operation of the Act persons serving terms of imprisonment imposed in respect of both registrable and non-registrable offences. It is true that fewer offenders would be captured by the appellant’s construction of the definition. However, the creation of a cut-off date demonstrates that Parliament considered and accepted the fact that, as a matter of policy, not all sexual offenders would come under the Registration Act.[56]

   [56]See also Neisser [2006] VSC 218 [50].

1. Moreover, it cannot be assumed that legislation is pursuing a single purpose at all costs or to the fullest possible extent.[57]  A choice of construction does not arise simply because one construction better promotes the purposes of an Act but rather it will arise if one construction will fail to promote the purposes of an Act.[58] The mere fact that the appellant’s construction could better suit the preventative and protective purposes and objects of the Registration Act is not a basis for it to be the appropriate construction. In that context it can only be the appropriate construction on the basis that another construction failed to promote the purposes and objects of the Registration Act.

   [57]         Carr v Western Australia (2007) 232 CLR 138, 143 (Gleeson CJ).

   [58]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 (Dawson, Toohey and Gaudron JJ). Cf s 15AA Acts Interpretation Act 1901 (Cth), s 139 Legislation Act 2001 (ACT) and s 14A Acts Interpretation Act 1954 (Qld).

1. The context of the Registration Act and its purposes and objects would suggest that the preferred construction is the appropriate construction of the section and not those submitted by the appellant. Then, the question is whether this is ambiguous or not.

1. The appellant submitted that provided the definition was, at the least, ambiguous, then other principles of statutory construction may be applied.  A section is not ambiguous where the meaning of the language used is clear,[59] either by express words or necessary implication.[60]  Meaning may be necessarily implied where the provision would be rendered inoperative or largely frustrated if the right or freedom were to prevail.[61]

   [59]FCT v Citibank (1989) 20 FCR 404, 433 (French J, as he was then), Wentworth v NSW Bar Association (1992) 176 CLR 239, 252, Coco v The Queen (1994) 179 CLR 427, 437-8 (Mason CJ, Brennan, Gaudron, McHugh JJ) ‘unmistakeable or clearly implied’, Al-Kateb v Godwin (2004) 219 CLR 562, 577 ‘clearly manifested’.

   [60]Melbourne Corporation v Barry (1922) 31 CLR 174, 206 (Higgins J), Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341, Clancy v Butchers Shop Employees’ Union (1904) 1 CLR 181, Darling Casino Ltd v NSW Casino Authority (1997) 191 CLR 602, 633, Wentworth v NSW Bar Assoc (1992) 176 CLR 239, 252.

   [61]Coco v The Queen (1994) 179 CLR 427, 438 (McHugh J).

1. In my view the preferred construction must be the correct construction and no ambiguity arises. However, I will address the arguments raised by the appellant against the suggestion that some ambiguity has arisen.

The presumption against retrospectivity

1. It was accepted by both parties that the Registration Act, generally, is not a retrospective Act. An Act is not retrospective merely because it governs or prescribes future acts by taking into account antecedent facts or circumstances.[62]  However, the appellant submitted that the 2006 amending legislation, deemed to have been operative since 1 October 2004, was in fact retrospective, at least in relation to the appellant and other offenders serving unsupervised suspended sentences.[63]  Initially, the respondent accepted this position but adopted the contrary position during oral submissions.

   [62]Robertson v City of Nunawading [1973] VR 819, 824. See also Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27, 31 (Jordan CJ) and R v Field [2003] 1 WLR 882, 896 [60]-[61] where the Court of Appeal of England and Wales held that disqualification orders in respect of working with children in the future did not offend against the presumption where the offending behaviour had occurred before the Act came into force.

   [63]Transcript 17-19.

1. In order for a piece of legislation to be retrospective it must provide that rights and obligations are changed and that this takes effect prior to the commencement of that legislation.[64] It seems clear that between 1 October 2004 and 10 October 2006 sexual offenders serving unsupervised suspended sentences for registrable offences immediately before 1 October 2004 were not caught by the scope of the Registration Act. After 10 October 2006 they were ‘deemed’ to have been caught by the scope of the Registration Act since 1 October 2004.[65]  The rights and obligations of such offenders were changed by the amending legislation and the effect of such change took effect prior to the commencement of that legislation.  Insofar then as the amending legislation relates to such offenders it would in fact appear to be retrospective.

   [64]Maxwell v Murphy (1957) 96 CLR 261 (Dixon J).

   [65]See [8]-[10] above.

1. The appellant’s argument is that, given the retrospective nature of the amending legislation, the definition of an existing controlled registrable offender ought to be read narrowly.  This is based on the common law presumption against retrospectivity.

1. The presumption against retrospectivity was described by Dixon CJ in Maxwell v Murphy as being that:

a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[66]

[66](1957) 96 CLR 261, 267 (Dixon J). See also Fisher v Hebburn Ltd (1960) 105 CLR 188, 194 (Fullager J).

1. This is based on the wider presumption ‘that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms.’[67]

   [67]Rodway v The Queen (1990) 169 CLR 515, 522 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) citing Potter v Minahan (1908) 7 CLR 277, 304; Baker v Campbell (1983) 153 CLR 52, 96-97, 104, 116, 123; Sorby v The Commonwealth (1983) 152 CLR 281, 289-290 and Hamilton v Oades (1989) 166 CLR 486, 495.

1. On a closer reading of the new and old definition, it becomes evident that the presumption against retrospectivity cannot operate in this case in the manner contended for by the appellant.

1. The definition in s 3 as originally enacted provided:

‘existing controlled registrable offender’ means a person who, as a result of having been sentenced for a registrable offence, was under the supervision of a supervising authority or any other person or body immediately before 1 October 2004.

1. The amended definition in s 3 reads:

‘existing controlled registrable offender’ means a person who, as a result of having been sentenced for a registrable offence committed when he or she was 18 years of age or older, was immediately before 1 October 2004—

(a)     an inmate; or

(b)     a detainee; or

(c)      a forensic patient detained in custody under a custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried( Act 1997; or

(d) serving a sentence referred to in section 6C(1) of the Corrections Act 1986; or

(e) serving an order referred to in paragraph (a) of the definition of ‘community service order’ in section 3; or

(f) serving an order referred to in paragraph (a) of the definition of ‘good behaviour bond’ in section 3 under which the person is required to submit to strict supervision;

(g)     serving a non-custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;  or

(h)     in custody under a law of a foreign jurisdiction in the nature of custody referred to in paragraph (a), (b) or (c) or serving a sentence imposed or order made under the laws of a foreign jurisdiction that is equivalent to a sentence or order referred to in paragraph (d), (e), (f) or (g);

1. Although the amendment is detailed, its main purpose was to ensure those offenders serving unsupervised suspended sentences, as the offender in Neisser had been, came under the definition.[68]  The provision includes offenders serving various types of sentences in its various sub-sections.  However, there appears to be no contention that, with the exception of offenders serving an unsupervised suspended sentence, these offenders were not also captured by the original definition.  For instance, the amending legislation did not affect the rights and liabilities of persons who, as a result of having been sentenced for a registrable offence were under the supervision of a supervising authority or any other person or body immediately before 1 October 2004.  Thus the amending legislation, although it is in terms somewhat different from the original definition, is limited in its retrospectivity to persons in one sub-section, or at the least, is limited to some sub-sections but not all of them.

   [68]See, eg, Victoria, Parliamentary Debates, Legislative Council, 3 October 2006, 3657-8, (Gavin Jennings); Victoria, Parliamentary Debates, Legislative Assembly, 24 August 2006,  3109 (Bob Cameron).

1. The only obvious retrospectivity actually created by the amendment is insofar as it affects persons serving sentences but not under supervision, that is, persons captured by sub-section (d) of the definition found in s 3. This necessarily creates problems for the appellant’s argument.

1. First the phrase ‘as a result of having been sentenced for a registrable offence’ appears in both provisions and in similar enough contexts so that its meaning would not naturally be altered.  It would be outside the scope of the presumption, and even nonsensical to argue that the meaning of the phrase is altered by the fact that the provision was replaced by a provision with an identical phrase that had retrospective effect. In fact, the rule against retrospectivity would create the assumption that the meaning of the phrase would be read as similarly as possible to the original phrase.

1. Additionally, because there is no retrospectivity in relation to the offenders caught by sub-ss (a)-(c) and (e)-(h) of the definition in s 3, there would be no reason to read the phrase narrowly in relation to those subsections.[69]  Therefore the phrase, which precedes each subsection, would have a different meaning depending on which subsection was being applied.  This would be an entirely unacceptable interpretation of the definition.  It would also lead to nonsensical results.  Thus it may be concluded with reasonable certainty that the retrospective nature of the provision cannot have the effect on its interpretation as contended by the appellant.

The presumption that the legislature does not intend to affect common law rights or freedoms

[69]At least, not based on the presumption against retrospectivity.

1. The principle of legality has become almost synonymous with the presumption that the legislature does not intend to affect common law rights or freedoms.  Courts assume that Parliament did not intend to restrict common law rights or freedoms ‘unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.’[70]

   [70]Al-Kateb v Godwin (2004) 219 CLR 562, 577. See also Coco v The Queen (1994) 179 CLR 427, 437-8 (Mason CJ, Brennan, Gaudron, McHugh JJ).

1. It is clear that the Registration Act is intended to curtail certain rights in order to fulfil a protective and public purpose. The argument put forward by the appellant is that, rather than ambiguity arising from the Parliament’s intention to abrogate rights and freedoms, what is ambiguous is, more specifically, whose rights and freedoms the Parliament intended to be abrogated. It was submitted that, as the appellant’s approach involves fewer offenders being captured by the Registration Act, the principle of legality would require that this interpretation be preferred unless it goes against clear Parliamentary intent. Therefore, it was urged, we are to presume that Parliament did not intend the Registration Act to apply to offenders who were given aggregate sentences before 1 October 2004 for multiple offences, not all of which were registrable offences.

1. The Registration Act places significant burdens on the offenders that come within its scope. In their initial report offenders must provide many personal details[71] and are required to update those details, whenever they change, within 14 days, and annually.  They may need to provide a photo or have one taken.  They are required to report travel plans.  The length of the reporting times varies depending on the relevant offences but some offenders will be required to report for life.[72] It is an offence to fail to comply with the relevant provisions without reasonable excuse or to provide false or misleading information.[73]

   [71]Including name and prior names, date of birth, address, telephone number, email address, internet service provider, internet user names, instant messaging user names, chat room user names or any other user name or identity, the names and ages of children with whom they reside or they have regular contact, details of their employment, club or association affiliation, car details, tattoos or other permanent distinguishing marks, any corresponding sex offender orders, government custody, intention to travel where and why, passport details.

   [72]Although they have the opportunity to apply for a suspension after 15 years.

   [73]Section 46.

1. Under Part 5 of the Registration Act registered offenders are also prohibited from applying for or engaging in child-related employment, with being issued an assessment notice on an application for what is termed a ‘Working with Children check’[74] or from being issued or renewing driver accreditation for commercial passenger vehicles, commercial bus services and local bus services.[75]

   [74]See also Working with Children Act 2005 ss 12, 26(5), 39A.

   [75]Transport (Compliance and Miscellaneous) Act 1983 s 169. Although an exemption may be applied for, see, eg, Transport (Compliance and Miscellaneous) Act 1983 s 169D.

1. When applying the principle of legality one takes the right at its highest.  It is not appropriate to consider whether any abrogation of a common law fundamental right or freedom is justified.[76]  It must be kept in mind the fact that the principle of legality does not require one to look at whether the intended end justifies the proposed means.  In other words, the principle of legality is engaged when fundamental rights and freedoms are threatened even where the Parliament had a good reason to abrogate them such as to promote an overall increase in rights and freedoms for all.[77]

   [76]See, eg, R v Momcilovic [2010] VSCA 50.

   [77]See discussion in Dan Meagher, ‘The Common law Principle of Legality in the age of Rights’ (2011) 35 Melbourne University Law Review 449, 462-463.

1. The most obvious right that would seem to be abrogated here is the right to privacy. However, the question of whether such a right exists at common law, and if so, its scope, is yet to be settled by the High Court or a superior court of record.[78] Nevertheless, it is necessary in the context of the Charter to examine the topic.

   [78]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 248-9 [107] (Gummow and Hayne JJ, Gaudron J agreeing), 277-8 [187] (per Kirby J) and 320-4 [313]–[320] (per Callinan J); Giller v Procopets (2008) 24 VR 1 28 [129], 35-6 [167]-[168] (Ashley JA), 106-7 [447]-[452] (Neave JA) commenting in relation to a potential tort of an invasion of privacy. Cf the District Court of Queensland’s decision in Grosse v Purvis (2003) Aust Torts Reports 81–706 and Doe v Australian Broadcasting Corporation [2007] VCC 281.

1. The appellant argued that the Registration Act abrogated the common law right or freedom of the ability to carry on one’s own business or trade. There were no submissions on the scope of the right.[79] Submissions focused on Part 5 of the Registration Act which prohibits registered sex offenders from child-related employment. Doubtless many of the offenders who come under the Registration Act will have committed offences that do not relate to children at all.

   [79]A reference was made in the Respondent’s Outline of Submissions to Heydon J listing the right as an example in Momcilovic v The Queen (2011) 280 ALR 221.

1. Although recognised, the right of a citizen ‘to carry on his or her business in his or her own way within the law’, has received little judicial consideration in Australia.[80]

   [80]Commonwealth v Progress Advertising and Press Agency Co Pty Ltd(1909) 10 CLR 457 (O’Connor J). See also The Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410 where it was recognised in the judgments of Isaacs, Higgins and Rich JJ.

1. The mere fact that the abrogation of a common law right has been raised as an issue does not mean that the principle of legality will strictly apply in the same manner each time.  Justice McHugh observed in Gifford v Strang Patrick Stevedoring Pty Ltd: [81]

The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them.

[81](2003) 214 CLR 269, 284.

1. Chief Justice Gleeson in Electrolux Home Products Pty Ltd v Australian Workers’ Union[82] further commented that:

The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, ‘it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law’. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances. [citation omitted]

[82](2004) 221 CLR 309 [19].

1. The High Court in Bropho[83] emphasised that the strength of the presumptions reflected in the law of statutory interpretation may vary over time:

If such an assumption be shown to be or to have become ill founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.

[83]Bropho v Western Australia (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

1. While there may be a common law right to carry on a business or to work in a trade of one’s choosing, such a right has now been qualified across the States and Territories by the introduction of legislation requiring checks and certificates to work with children in Australia.[84] Working with children has become a ‘privilege’ rather than a right. It is true that the restrictions created by the Registration Act can affect those who have not committed sexual offences against children.[85]  They probably also interfere with the rights even of those who worked or were planning on working in employment that may not in reality ever involve an offender actually coming into contact with children.[86] Many jobs nowadays require these checks even where there is no actual work with children or only minimal contact with children. However, these latter considerations are extraneous to the Registration Act. The Registration Act in and of itself only abrogates the right of a person to work with children.

   [84]See, eg, Working with Children Act 2005 (Vic), Working with Vulnerable People (Background Checking) Act 2011 (ACT), Children’s Protection Act 1993 (SA), Care and Protection of Children Act 2007 (NT), Commission for Children and Young People and Child Guardian Act 2000 (Qld), Working with Children (Criminal Record Checking) Act 2004 (WA), Commission for Children and Young People Act 1998 (NSW). No equivalent legislation exists in Tasmania, although a police check is recommended. Additionally, many employers not captured by the legislation will still require a working with children check or police check if an employee might come into contact with children.

   [85]Such as offenders who commit bestiality or offenders who commit non class 1 or 2 offences.  The inclusion of the latter is discretionary and subject to the making of a sex offender registration order.  Per s 11(3) the court may only make such an order where, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community.  (That is, not necessarily children).

   [86]For example, per s 67 of the Registration Act ‘child-related employment’ means employment involving contact with a child in connection with a religious organisation and ‘contact’ itself can mean written communications.

1. I would conclude that if there was ever a right at common law as the appellant argues, it has been weakened by legislative change such that the legislative intention of the Registration Act should not be cut down. I do not accept the appellant’s constructions.

The Charter – the ‘arbitrariness’ argument

1. Putting to one side whether a right to privacy exists at common law, it is undoubtedly the case that some form of the right exists in the Charter. Section 13 provides:

A person has the right –

(a)  not to have his or her privacy, family, home or correspondence

unlawfully or arbitrarily interfered with. …

1. The respondent submitted that the Charter had no application in this case because it did not have relevant retrospective application. Section 32(1) of the Charter came into operation on 1 January 2008.[87]  The transitional provision of the Charter says that the Charter extends and applies to all Acts.[88] However, s 32(1) does not apply to any act or decision made by a public authority before 1 January 2008.[89]

   [87]Section 2(2).

   [88]Section 49(1).

   [89]Section 49(3).

1. The appellant was sentenced in 2003 and informed that he was to be placed on the Register in 2007.  The amended definition was inserted in 2007.  Proceedings commenced in 2009.

1. The respondent submitted that because the facts in issue occurred before the commencement of the Charter, the appellant could not rely on the Charter as a tool of statutory interpretation.[90]  The presumption against retrospective operation prevents the Charter from altering the fixed legal character of events which happened before its commencement, or legal relations, obligations or liabilities likewise fixed on the happening before that commencement of such events.[91]

   [90]Collier v Austin Health [2011] VSC 344 [21], Nolan v MBF Investments Pty Ltd [2009] VSC 244 [175]-[177], the conclusion on that point being upheld in MBF Investments Pty Ltd v Nolan [2011] VSCA 114 [31].

   [91]Re Kracke and Mental Health Review Board (2009) 29 VAR 1 [350]-[355], Collier v Austin Health [2011] VSC 344 [21].

1. The appellant submitted that because the decision to keep him on the Register was an ongoing one, there was no retrospective effect. The appellant submitted that as a registrable offender he would be subject to the obligations under the Registration Act every day that he remains caught within the definition. In other words, the Registration Act applies to him anew every day and with ongoing operation, giving it an ambulatory effect, which distinguishes this situation from the authorities relied on by the respondent.[92]

   [92]Transcript 4.

1. It seems to me that the respondent is correct.  The Charter was not in place when the appellant was eligible to be added to the Register or when he was actually added to the Register.  As such, the definition could not have been interpreted in the light of the Charter.  I would conclude that the Charter was not intended to have a retrospective effect that would result in a change to the construction of the definition as it applies to this offender after 1 January 2008.  Therefore the Charter would have no application in this case.  However, should the Charter have had application, I would have found that it did not assist the appellant as none of the constructions urged by the parties are incompatible with the Charter right.

1. The appellant submitted that the Charter required not only considering whether the reporting scheme arbitrarily interfered with the right to privacy but whether the preferred construction also did so. The appellant submitted that it was not enough to simply look at whether the burdens created by the Registration Act amounted to arbitrary interference. Arbitrariness needs to be considered as a result of the combined effect of matters not each individual section on its own. The appellant submitted that arbitrariness arose from the manner in which offenders were caught by the definition and having regard to the effect on the appellant and the real possibility that he would not have come under the Registration Act had he only been sentenced on the two registrable offences.

1. The appellant has also submitted that a number of the United Kingdom (UK) authorities could be distinguished as they were not concerned with whether the criteria for attracting registration under the Registration Act was arbitrary.

1. As a consequence of s 32(1) of the Charter, if a statutory provision interferes with an identified human right, then an interpretation must be preferred that does not interfere with that right or least interferes with that right, provided it is not contrary to statutory intent.  In my view, the statutory scheme does not amount to arbitrary interference with the right to privacy.

1. The trial judge applied the ordinary meaning of the word ‘arbitrary’. Other cases have taken a ‘human rights’ approach.  In this Court there was debate about whether the Court should prefer what might be described as the dictionary meaning (urged by the respondent) or the human rights meaning (urged by the appellant) of the word ‘arbitrary’.[93]  Both the appellant and the respondent submitted that, whether ‘arbitrary’ is given its dictionary meaning or ‘human rights’ meaning, their own construction is not arbitrary but their opponent’s construction is arbitrary. There did not appear to have been any detailed submissions as to the meaning of ‘arbitrary interference’ before the trial judge.  Significantly, there were no submissions from the Attorney-General or the Victorian Equal Opportunity and Human Rights Commission on its meaning, although notice of the invocation of the Charter was given.[94]  Whilst notice of the Court of Appeal proceedings was also given, it does not appear as though they were expressly on notice that a debate on the meaning of ‘arbitrary interference’ might occur.

   [93]Alternatively, the respondent would adopt the definition developed by Bell J in PJB v Melbourne Health [2011] VSC 327 but add to it ‘without any reasonable cause’.

   [94]It does not appear that at trial the parties were in any real dispute as to the meaning and scope of s 13(a). The interpretation adopted by the trial judge does not appear to have been urged by either party.

1. The trial judge concluded that as inclusion in the Registration Act scheme was based on readily identifiable criteria, it was not arbitrary.[95]  His Honour found that ‘arbitrary’, as found in the phrase ‘arbitrary interference with the right to privacy’, should be given its dictionary meaning, being ‘a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim’.[96]  This is in contrast to some earlier cases[97] where a meaning has been adopted based on the understanding of the right at international and comparative domestic law.

   [95]Reasons 484 [58].

   [96]Oxford English Dictionary.  The trial judge did this within the context of deciding whether a Declaration of inconsistency should be made under the Charter.  The trial judge had already concluded that the Charter could not support the appellant’s construction as it was not open on what  he considered to be the clear and unequivocal language of the definition.

   [97]See Nolan v MBF Investments Pty Ltd [2009] VSC 244 [168]-[169], Castlesv Secretary to the Department of Justice & Ors [2010] VSC 310 [70], PJB v Melbourne Health [2011] VSC 327 [65]-[84].

1. His Honour also reasoned that a limitation must be placed on international and analogous domestic law because those jurisdictions had different constitutional structures from Victoria, especially with regards to the difference in the strict separation of powers.[98]  Insofar as his Honour’s comments may be taken to suggest that the doctrine of separation of powers or strict separation or exclusivity of judicial power is part of the constitutional law of this state, I would disagree.[99]

   [98]WBM v The Chief Commissioner of Police [2010] VSC 219 [45]-[49].

   [99]See City of Collingwood v State of Victoria (No 2) [1994] 1 VR 652, 660-3 (Brooking J); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 65 , 78 , 93 , 109; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 103-4; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, 573 [69].

1. The trial judge reasoned that the Charter does not justify or permit judicial policy making or individual judge’s values or views in determining inconsistency with the Charter.[100]  So far as necessary I agree with the proposition that judges are bound to decide cases judicially:  ‘In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.’[101]

   [100]Reasons 482 [47].

   [101]Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 [28] (French CJ, Hayne, Kiefel and Bell JJ).

1. His Honour considered that the understanding of ‘arbitrary’ as expounded by the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECHR) does not accord with plain English meaning but imports a significant degree of judicial value judgment not warranted by the Charter.[102]

   [102]Reasons 482 [49].

1. Whilst I am not driven to decide the point on that basis, I observe that necessarily a court may be informed by international and national jurisprudence on human rights law, for example, as discussed by French CJ in Momcilovic v The Queen.[103] Ultimately, it comes down to a question of relevance and weight. I further note that s 32(2) of the Charter expressly contemplates consideration of international jurisprudence.[104]

   [103](2011) 280 ALR 221, 233-4 [18]-[19] stating that judgments of international and foreign domestic courts may be consulted in determining the content of Charter rights but it should be with discrimination and care.  Any further reservations expressed by the High Court related to the relevance of international law on the operative provisions of the Charter, see [155]-[161] (Gummow J).  The High Court decision was handed down after WBM v The Chief Commissioner of Police [2010] VSC 219.

   [104]Section 32(2): International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

1. The ‘human rights’ approach was considered in an earlier case, PJB v Melbourne Health, by Bell J.[105]  In that case his Honour referred to international cases and commentary discussing the word ‘arbitrary’ in relation to the rights found in  the International Covenant on Civil and Political Rights (ICCPR).[106]

   [105][2011] VSC 327 sitting in a matter at first instance in the Trial Division. Justice Bell’s approach accorded with the approach of Vickery J in the earlier case of Nolan v MBF Investments Pty Ltd [2009] VSC 244 (overturned on appeal but not on this point).

   [106]PJB v Melbourne Health [2011] VSC 327 [80]-[83].

1. Justice Bell concluded that the right in s 13(a) of the Charter:

extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.[107]

[107]Ibid [84].

1. There are also some English and Irish authorities which may provide assistance.  These concern whether various aspects of the Sex Offenders Act 1997 (UK), and its successor the Sexual Offences Act 2003 (UK), were incompatible with Article 8 of the European Convention on Human Rights.

1. Article 8 says:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

1. In Adamson v UK[108] the European Court of Human Rights considered the reporting requirements of the 1997 Act  which required the applicant to inform the police of, inter alia, his name, any other names he uses, his date of birth and his home address, and, during an indeterminate period, to notify them of any subsequent changes of name or home address within 14 days of any change.  In the case of a person sentenced to thirty months or more the applicable period is defined as ‘an indefinite period’ or, in other words, life.

   [108](1999) 28 EHRR 209.

1. The Court found that the reporting requirements found in the 1997 Act amounted to an interference with the applicant’s private life but that this was proportionate to the legitimate aim of the protection of rights and freedoms of others and the prevention of crime. The Court referred to its earlier decision of Stubbings v United Kingdom[109] which held that European Union States are under a duty under the Convention to take certain measures to protect individuals from the grave harm which may be caused to the victims of sexual offences.

   [109]Judgment of 22 October 1996, Reports 1996-IV, p. 1505, § 62, 64.

1. In Gallagher, Re an Application for Judicial Review[110] the High Court of Northern Ireland considered the reporting conditions under a later, amended version of the 1997 Act and the related Sex Offenders (Notice Requirements) (Foreign Travel) (Scotland) Regulations 2001.  These reporting conditions included keeping police informed as to travel arrangements if an offender intended to leave the UK and providing fingerprints or a photograph on request.

   [110][2003] NIQB 26.

1. The Court considered that the proportionality of the reporting conditions did not involve weighing up its impact on one particular individual but whether the scheme as a whole went beyond what was necessary to achieve the aim of protecting the public and deterring sex offenders from further criminal behaviour.[111]  It concluded that ensuring the police were aware of the whereabouts of all serious sex offenders was of obvious assistance in detection and prevention and a necessary and reasonable element of the scheme.[112]

   [111]Ibid [19].

   [112]Ibid [25].

1. This decision was relied on in Forbes v Secretary of State for the Home Department[113] by the Court of Appeal of England and Wales, which held that the automatic imposition of notification requirements without any analysis of a particular offence or offender was proportionate to the aims of the scheme.

   [113][2006] 1 WLR 3075.

1. In R (F and Thomson) v Secretary of State for the Home Department[114] the Supreme Court of the United Kingdom concluded that while the notification requirements of the UK Act may serve a legitimate aim, their blanket application for life with no possibility for review is disproportionate to that aim.  The Supreme Court adopted the test[115] for proportionality laid down by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, asking whether:

(i)      the legislative objective is sufficiently important to justify limiting a  fundamental right;

(ii)the measures designed to meet the legislative objective are rationally connected to it;

(iii)the means used to impair the right or freedom are no more than is necessary to accomplish the objective.[116]

[114][2010] UKSC 17.

[115]Ibid [17].

[116][1999] 1 AC 69, 80.

1. While the Article 8 right found in the ECHR is expressed in different terms to s 13(a) of the Charter I consider that the approach taken by the UK Courts in the cases discussed above provides some guidance as to how to determine what amounts to an ‘arbitrary interference’ with privacy where arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness — in the sense of not being proportionate to the legitimate aim sought.

1. Under legislation which is comparable with Victorian legislation, in New South Wales the courts take into account the right to work of offenders when deciding whether they should be prohibited from working with children.[169]

   [169]R v New South Wales Commission for Children and Young People [2002] NSWIR Comm 101 (16 May 2002) [165] (Haylen J); Commission for Children and Young People v V (2003) 56 NSWLR 476, 483-84 [38]-[40] (Young CJ in Eq).

1. Therefore, in my view, the individual’s right to work is a fundamental right or freedom for the purposes of the principle of legality.  That does not mean the right to work can be enforced as if it were a cause of action but it does mean that the right can only be abrogated or curtailed by legislation which exhibits clearly and unmistakably the intention to do so.  

1. If the Sex Offenders Registration Act applies to the appellant, he will be prohibited from working in any way with children, even as a volunteer.  There will be actual or potential work-restricting consequences under other legislation.[170] That would not be a complete abrogation of his right to work but it would curtail that right.  Therefore the principle of legality is engaged.  As will be seen, that the purpose of the legislation is to protect children against harm from sex offenders is relevant to whether the intention to abrogate or curtail the appellant’s fundamental rights and freedoms, including his right to work, is manifested clearly and unmistakably.

   [170]Working with Children Act 2005 (Vic) ss 12 and 26; Transport (Compliance and Miscellaneous) Act 1983 (Vic) s 169(2)(c)(i).

1. I will deal here with the submission made for the appellant that the provisions of the definition should be interpreted as being part of penal legislation.  I respectfully agree with the judgment of the Chief Justice that the trial judge correctly decided that the Sex Offenders Registration Act is not to be interpreted as a whole as penal legislation.  As the particular offence provisions are clearly penal in nature, they should be interpreted on that basis.  As the Act is generally protective and not penal in nature, the definition provisions are not to be interpreted on that basis.

1. However, the fact that this generally protective legislation contains penal provisions forms part of the context in which the definition provisions are to be interpreted.[171]  When interpreting the definition it is therefore relevant to take into account – and I do take into account – that, if it applies to the appellant, he will be criminally liable for not complying with the reporting and other obligations as well as the prohibitions in the Act.  

   [171]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 49 [57] (Hayne, Heydon, Crennan and Kiefel JJ).

1. That brings me to the question of interpretation which is at issue.

Interpretation of ‘existing controlled registrable offender’

1. Here now in full is the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act:

existing controlled registrable offender means a person who, as a result of having been sentenced for a registrable offence committed when he or she was 18 years of age or older, was immediately before 1 October 2004—

(a)     an inmate; or

(b)     a detainee; or

(c)a forensic patient detained in custody under a custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or

(d)serving a sentence referred to in section 6C(1) of the Corrections Act 1986; or

(e)serving an order referred to in paragraph (a) of the definition of community service order in section 3; or

(f)serving an order referred to in paragraph (a) of the definition of good behaviour bond in section 3 under which the person is required to submit to strict supervision;

(g)serving a non-custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or

(h)in custody under a law of a foreign jurisdiction in the nature of custody referred to in paragraph (a), (b) or (c) or serving a sentence imposed or order made under the laws of a foreign jurisdiction that is equivalent to a sentence or order referred to in paragraph (d), (e), (f) or (g).

1. Paragraph (d) is the one which is applicable here. Section 6C(1)(d) of the Corrections Act 1986 (Vic) refers to sentences of imprisonment which have been wholly or partly suspended. As the appellant’s sentence was wholly suspended, he comes within this category. The appellant wisely abandoned a ground of appeal that he was not serving the sentence because it was a suspended sentence.[172]  The issue in this case is whether he was serving that sentence ‘as a result of having been sentenced for a registrable offence’.   

   [172]That ground was untenable because, under the provisions of sub-div 3 of div 2 of pt 3 of the Sentencing Act 1991 (Vic), a wholly or partly suspended sentence is a term of imprisonment which the offender is serving but not in prison: see R v Bice (2000) 2 VR 364, 369 [19] (Callaway JA).

1. I respectfully agree with the Chief Justice’s exposition of the principles of interpretation which are relevant.  In particular, the general approach to the interpretation of statutory provisions is that stated by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[173]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[174] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[175] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[176] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[177] in particular the mischief[178] it is seeking to remedy.

To that statement of the general principles of interpretation must be added the principle of legality, to which I have already referred.  That principle falls to be applied if the intention of the provisions being interpreted is not unmistakably clear after the application of those general principles of interpretation.

[173](2009) 239 CLR 27, 46-7 [47].

[174]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 77 [9] (Gaudron, Gummow, Hayne and Callinan JJ), 89 [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 240-41 [167]-[168] (Kirby J); Carr v Western Australia (2007) 232 CLR 138, 143 [6] (Gleeson CJ); DPP (Vic) v Le (2007) 232 CLR 562, 586 [85] (Kirby and Crennan JJ); Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J) (footnote in quotation).

[175]Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 555-56 [82]-[84] (Kirby J). See also Combet v Commonwealth (2005) 224 CLR 494, 567 [135] (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J) (footnote in quotation).

[176]Hilder v Dexter [1902] AC 474, 477-78 (Earl of Halsbury LC) (footnote in quotation).

[177]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[178]Heydon's Case (1584) 3 Coke 7a, 7b; 76 ER 637, 638 (footnote in quotation).

1. The definition of ‘existing controlled registrable offender’ applies where the offender has the continuing status referred to in paras (a)–(h) ‘as a result of having been sentenced for the registrable offence’.  The definition requires attention to be paid to the question whether the status has resulted from the offender having been so sentenced. 

1. The plain and ordinary meaning of the words ‘as a result of’ imply the need for a relation of cause and effect but not a relation of sole cause and effect.  The words do not say that the sentence being served must be ‘the’ result of the sentence for the registrable offence, which would imply a relation of sole cause and effect.  The words ‘as a result of’ and similar words have been so interpreted in other legislative contexts.[179]  Of course, it is necessary to pay attention to how the words are being used in the specific legislative context.  The starting point here, however, is that the words plainly and ordinarily imply a relation of cause and effect but not a relation of sole cause and effect.  To displace that plain and ordinary meaning in favour of a narrower meaning, the appellant must rely on the context and purpose of the legislation and the impact of the definition on his human rights.

   [179]See eg Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason and Wilson JJ) (‘as a result of’); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 580-81 [37] (‘a result of’).

1. The link between the definition of ‘existing controlled registrable offender’ in s 3 and the other provisions should be noted but is not determinative. ‘Registrable offender’ is defined in the same section to have the meaning set out in s 6. Under s 6(1), and subject to exceptions which are not here material, a ‘registrable offender’ is ‘a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence’. By s 6(4), again as material to the present case, a person is not a registrable offender merely because they were sentenced for a registrable offence before 1 October 2004; they must also be an existing controlled registrable offender. To be an existing controlled registrable offender, the person must fall within the definition of that expression in s 3.

1. ‘Registrable offence’ is defined in s 7(1) by reference to the categories of offences specified in schedules 1 and 2. The appellant’s registrable offences were in schedule 2.

1. As we have seen, the general purpose of the Sex Offenders Registration Act is to protect children from the risk of being harmed by sex offenders. It is clear, however, that the scheme does not apply to all sex offenders whatsoever but to registrable offenders as defined (ss 3 and 6). The purposes in s 1(1)(a) and the outline in s 1(2)(b) emphasise that only ‘certain’ offenders are to be covered by the Act. In respect of a registrable offender who was sentenced before 1 October 2004, the legislation will only apply to them if they are an existing controlled registrable offender (s 6(4)). It is the definition of that term in s 3 which is in issue.

1. The definition of ‘existing controlled registrable offender’ in s 3 brings within the scope of the statutory scheme persons who, immediately prior to the commencement of the legislation on 1 October 2004, had a particular continuing status within the criminal justice system as a result of having being sentenced for a registrable offence. Under para (a) of the definition, a person who was an inmate (see the definition of ‘inmate’ in s 3) in a prison is the first specified and most obvious example. The policy of the provision is thus to ensure that the scheme applies to persons having such a continuing status as at the commencement of the legislation, even though they had been sentenced before that commencement, but not to persons whose relevant status had ended because they had served their sentence by that date.

1. It is convenient here to interpose some observations about aggregate sentences under s 9 of the Sentencing Act.  The court may impose such a sentence where the offender is convicted for ‘two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’ (s 9(1)).  The term of the aggregate sentence must not exceed the length of the total effective sentence that could otherwise have been imposed if the court had imposed separate sentences (s 9(2)).  Importantly, the court can only impose an aggregate sentence if it would have imposed a sentence of imprisonment in respect of each and all of the offences.

1. A person who has been sentenced to an aggregate sentence under s 9(1) has been sentenced in respect of each and all of the two or more offences concerned. The sentence is for the offences in the aggregate. The total sentence reflects the particular sentencing contribution of each offence. But, whatever those contributions were, once made the sentence is indivisible.

1. Returning to the definition, the various discriminating elements all pivot about the commencement date. As the Chief Justice emphasises, the selection of the commencement date as a cut-off date for past offenders was intended to bring certainty to the definition.  If the offender, immediately prior to that date, is (for example) serving a sentence as a result of having been sentenced for a registrable offence, the legislation is to apply to them because, at that time, they are under a sentence for an offence which has a connection with the purposes of the Act. If the offender, immediately prior to that date, is serving a sentence as a result of having been sentenced for a non-registrable offence, the legislation is not to apply to them because they are not under such a sentence.  It is the fact that the offender was in the sentencing system immediately before 1 October 2004 for an offence having a connection with the protective purposes of the Act which brings them into the child-protecting scheme.

1. So understood, there is nothing in the policy of the definition or the protective purposes of the Act to suggest that the words ‘as a result of’ should be given a meaning which is narrower than their plain and ordinary meaning.  The words operate to bring into the scheme of the Act offenders who are still serving relevant sentences immediately before the cut-off date.  For an offender serving an aggregate sentence for registrable and non-registrable offences, the registrable offence represents a causal connection between the offender and the protective purposes of the Act with which the definition is concerned.  There is nothing in the context or purpose of the Act to suggest that an offender serving an aggregate sentence for combined registrable and non-registrable offences is to be excluded simply because the sentence is an aggregate sentence.  That would ignore the causal connection between the registrable offence and the offender which is the concern of the definition.  A person who is serving a sentence as a result of having been sentenced for a registrable offence is not a less appropriate subject of the scheme of the Act because the sentence included non-registrable offences.  Therefore it does not follow from the presence of the non-registrable offences that they should fall outside the definition

1. An offender like the appellant serving an aggregate sentence for registrable and non-registrable offences is serving a sentence as a result of having been sentenced for a registrable offence.  In my view, it is unmistakably clear that the definition should be so interpreted.

1. The appellant submitted that adopting this interpretation would lead to unfair and incongruous results.  Those submissions were met with submissions made with equal and opposite force on behalf of the respondent.  There are many examples falling in between these two extremes.  In my view, the definition clearly and unmistakably operates according to its terms to cover the cases referred to. 

1. In conclusion, for the definition to apply, the offender must be serving a sentence immediately before 1 October 2004 as a result of having being sentenced for a registrable offence. The appellant was serving a single aggregate sentence in respect of registrable and other offences. That sentence was being served as a result of the appellant having been sentenced for a registrable offence within the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act.

1. That conclusion is not incompatible with the appellant’s human rights as specified in the Charter.

Charter of Human Rights and Responsibilities Act

1. Section 32(1) of the Charter requires all statutory provisions to be interpreted in a manner which is consistent with human rights so far as possible consistently with their purpose.

1. The first question which arises is whether s 32(1) applies to the interpretation of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act in relation to the appellant. The respondent submits that s 32(1) is not applicable because the Charter does not apply retrospectively and the definition was in force as against the appellant before s 32(1) came into force.

1. I stated in Collier v Austin Health[180] by reference to the applicable authorities:

[T]he general presumption against the retrospective operation of statutory provisions prevents s 32(1) from applying so as to alter the fixed legal character of events which happened before the commencement of the Charter, or legal relations, obligations or liabilities which were likewise fixed on the happening before that commencement of such events.[181]

The question is whether the application of s 32(1) in the present case will alter the fixed legal character of events before the commencement of the Charter (the appellant’s status as an existing controlled registrable offender).

[180][2011] VSC 344 (27 July 2011) (‘Collier’).

[181]Ibid [21]; see also Kracke (2009) 29 VAR 1, 83-4 [358]-[364] (Bell J); Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009) [175]-[177] (Vickery J), which was upheld on that point in MBF Investments Pty Ltd v Nolan [2011] V ConvR 54-790, 64,306 [31] (Neave, Redlich and Weinberg JJA).

1. The respondent’s argument that s 32(1) of the Charter does not apply rests on the foundation that the facts in issue occurred before 1 January 2008 when the Charter commenced applying to the Chief Commissioner of Police as a public authority.[182] 

   [182]Section 49(3).

1. That argument must be rejected because what is at issue is the interpretation of the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act, not the legality of any act of a public authority. When s 32(1) of the Charter came into force,[183] the principle of interpretation in s 32(1) began applying to all Victorian legislation whenever enacted – to legislation already enacted and to be enacted. When interpreting the definition, applying that principle will not operate to alter the fixed legal character of the appellant’s past status by reason of past events but will operate to establish the legal character of his present and future status by reason of those events. With respect, I therefore cannot agree with the Chief Justice that s 32(1) does not apply.

   [183]By s 2(2), on 1 January 2008.

1. Section 32(1) becomes relevant when the human rights of a person are engaged by the statutory provision which is in question. A statutory provision engages human rights when it places restrictions on, or interferes with, the human rights of the person. For this purpose, the scope of the human right is interpreted purposively and in the broadest way possible; whether any limitation would be reasonably and demonstrably justified under s 7(2) is not part of that exercise.[184] 

   [184]Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 434 [80] (Warren CJ), followed in Castles v Secretary to the Department of Justice (2010) 28 VR 141, 157-58 [55] (Emerton J); DPP v Ali [No 2] [2010] VSC 503 (10 November 2010) [29] (Hargrave J); R v Hansen[2007] 3 NZLR 1, 15 [22]; R v Big M Drug Mart Ltd [1985] 1 SCR 295, 344 [116] (Dickson J); see generally Kracke (2009) 29 VAR 1, 28-32 [75]-[91] (Bell J); Sudi [2010] VCAT 328 (31 March 2010) [90] (Bell J).

1. By reference to the authorities, I have previously described the scope of the right to be free of unlawful and arbitrary interference with privacy in s 13(a) of the Charter.[185] The application of the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act to the appellant would engage that right. His obligations under that Act would include reporting to the police and giving them personal and private details of his life (see above). Having considered the respondent’s submissions on the meaning of ‘arbitrarily’ in s 13(a), I reject the submission that my judgment in Patrick’s Case[186] on that point was incorrect.

   [185]Kracke (2009) 29 VAR 1, 131 [619]-[620] (Bell J) and Sudi [2010] VCAT 328 (31 March 2010) [64]ff (Bell J).

   [186][2011] VSC 327 (19 July 2011) [73]ff.

1. You have seen my conclusion about how the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act should be interpreted taking into account the principle of legality.  Having regard to the decision of the majority of the High Court in Momcilovic v The Queen,[187] as well as decisions of the Court of Appeal of this court,[188] I think it must follow that the interpretation of the definition which is required by s 32(1) of the Charter is the same interpretation which I adopted above taking into account the principle of legality.

   [187](2011) 280 ALR 221.

   [188]Slaveski v Smith [2012] VSCA 25 (29 February 2012) [20]-[24] (Warren CJ, Nettle and Redlich JJA).

1. I generally agree with the Chief Justice’s conclusion that sex offender registration schemes of the kind enacted in the Sex Offender Registration Act are not incompatible with the human rights of offenders because they operate to ensure that children are protected from harm.  Her Honour considers the international authorities and I agree with her analysis of them.[189]  Further, speaking generally, the inclusion in such schemes of offenders who have been sentenced for sex offences in the past is not of itself arbitrary or otherwise incompatible with human rights, for the same reasons.  I am not suggesting that the Act raises no human rights issues which may require consideration in a future case.

   [189]See also the human right of every child to such protection as is in their best interests and is needed by reason of being a child in s 17(2) of the Charter.

1. It is clear and unmistakable from the terms of the definition of ‘existing controlled registrable offender’ in s 3 that the legislature intended to include offenders in the appellant’s category. So interpreted, the definition operates according to objective criteria which rationally and appropriately reflect the protective purposes of the legislation. It is not disproportionate or unreasonable in scope or operation. The definition is not targeted at particular individuals. There is some differential treatment between offenders in similar categories. But this does not go beyond what is a necessary consequence of having a cut-off date and criteria and is not demonstrative of systemic or particular arbitrariness. The definition is certain and not uncertain in its operation. It operates to include within the scheme of the Act offenders serving sentences at the cut-off date for past registrable offences. It is legitimate to include in the scheme offenders serving sentences for past registrable offences because of the connection between their registrable offence and the protective purpose of the scheme. It makes no difference to that connection that the sentence being served for the registrable offence is an aggregate sentence for that and non-registrable offences. The inclusion of a cut-off date, as well as a requirement that, immediately before then, the offender is serving a sentence as a result of having been sentenced for a registrable offence, means the definition is not open-ended. Finally, in considering the compatibility of the definition with the appellant’s human rights, I give weight to the method chosen by the legislature for selecting which past offenders are to be the subject of the child-protecting scheme.[190] Therefore, it does not operate arbitrarily within the meaning of that expression in s 13(a) of the Charter.

Conclusion

[190]Patrick’s Case [2011] VSC 327 (19 June 2011) [324].

1. The application of the definition of ‘existing controlled registrable offender’ in s 3 of the Sex Offenders Registration Act would require the appellant to report to the police and give to them extensive information which is personal and private to him.  He would also be prohibited from working with children in virtually any way, even as a volunteer.  Failing to comply with these reporting obligations and prohibitions would expose him to criminal prosecution and imprisonment.

1. The appellant’s fundamental civil rights and freedoms would be abrogated or curtailed by the application of the legislation to him. The fundamental civil rights or freedoms which would be abrogated or curtailed are his right or freedom not to report to police and other officials or to give them personal and private information, his right to personal privacy (which is also protected by s 13(a) of the Charter) and his right to work. According to the principle of legality, those rights and freedoms can only be abrogated or curtailed by legislation which exhibits the intention to do so with unmistakable clarity.

1. Under the definition in s 3, the legislation will apply to the appellant if, immediately before 1 October 2004, he was serving a suspended sentence of imprisonment as a result of having been sentenced for a registrable offence. A registrable offence is a certain kind of sex offence. The appellant was, at that time, serving an aggregate sentence for both registrable and non-registrable offences. An aggregate sentence is an indivisible sentence in respect of all of the relevant offences. An aggregate sentence can only be imposed where the court would have imposed a sentence of imprisonment in respect of each of the offences.

1. In my view, the trial judge correctly decided that the legislation applies to the appellant.  On the proper interpretation of the definition, it does not matter that the appellant was serving, at the relevant time, an aggregate sentence in respect of registrable and not-registrable offences.  What is important is that he was serving a suspended sentence of imprisonment as a result of having been sentenced for a registrable offence.  The fact that the appellant was serving a sentence for a registrable offence means that he comes into the category of persons from whom children are to be protected.  The legislation clearly and unmistakably intends to bring about that result, despite the way in which this abrogates or curtails the appellant’s fundamental civil rights and liberties.

1. Finally, so interpreted, the definition does not offend the human rights of the appellant under the Charter because it does not operate arbitrarily. 

1. I would therefore dismiss the appeal.

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