Page 3192 - Week 10 - Thursday, 17 September 2015
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purposes of verifying personal details reported by registered child sex offenders and to confirm compliance with prohibition order conditions where applicable. The bill also proposes that the applicant may seek a court order requiring a registered offender to provide access to electronic data, to copy that data onto a storage device or to convert the data into documentary form.
Although these kinds of provisions vary to reflect the purpose of different registration and reporting schemes, the use of search and seizure powers is a common example of ACT law that engages our human rights legislation. The amendments provide a clear example of the importance of balancing the human rights of a person affected by changes in the law against the rights and interests of the community to protect children from sexual assault and violence.
For example, the introduction of entry and search powers specific to registered child sex offenders engages the right to privacy in section 11 of the Human Rights Act. This is because the amendments provide police access, in certain circumstances, to the registered offender’s home, home environment and potentially to their family life. The right to privacy is a fundamental right that encompasses the idea that individuals should have a separate area of autonomous development, dignity and freedom from arbitrary, unreasonable or oppressive government interference. However, this right can be limited as long as it can be demonstrated that it is necessary, reasonable and proportionate—essentially, that the limitation is lawful and not arbitrary.
It is well established in European human rights law that the prevention of crime and the protection of the rights of others is a legitimate basis for placing restrictions on the right to privacy. This is why the amendments provide a careful balance between the limitation and the right to privacy. The entry and search power can only be initiated by court order, supported by evidence on oath or by affidavit where the magistrate has taken all of the circumstances into consideration before authorising the requested activity. In addition, the intention and scope of the powers is clearly set out in the law and the warrant itself must specify what is authorised.
Given that the entry and search warrant powers include amendments which compel registered offenders to provide personal details, access to their home and potentially access to encrypted information, the privilege against self-incrimination in section 22 of the Human Rights Act is also engaged. The rationale behind the privilege against self-incrimination is that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove the criminal act for them.
In recognition of the fundamental importance of this privilege, the amendment includes the availability of a derivative use immunity to the registered offender. This immunity means that any information, document or thing obtained directly or indirectly because the person was required to facilitate access to the information, document or thing is not admissible in evidence against the registered offender in a civil or criminal proceeding other than a proceeding for an offence against the child sex offenders act or in relation to a class 1 or class 2 offence outlined in that act or an offence under part 3.4 of the Criminal Code, which deals with the provision of false or misleading information.
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