Plaintiff v Defendant

Supreme Court of Victoria|2010-05-28|Before: KAYE J

CRIMINAL LAW - Statutory interpretation - Whether plaintiff an "existing controlled registrable offender" under Sex Offences Registration Act 2004 (Vic) - Plaintiff undergoing suspended sentence as aggregate sentence at time of commencement of Act - Suspended sentence imposed for registrable offences and offences which not registrable - Effect of amendments in 2006 to definition of "existing controlled registrable offender" - Charter of Human Rights and Responsibilities Act 2006 - Application for declaration of inconsistent interpretation under s 36(2) of Charter.

2 On 22 April 2003, the plaintiff pleaded guilty in the Magistrates' Court at Melbourne to five offences with which he had been charged, namely: burglary; theft; possess property being the proceeds of crime; knowingly possess child pornography; and make/produce child pornography. On that day, the court convicted the plaintiff of the five offences, and imposed an aggregate sentence of 12 months' imprisonment for all the offences. The court further ordered, under s 27(1) of the Sentencing Act 1991, that the term of imprisonment be wholly suspended for a period of 24 months. The plaintiff did not breach that order, and accordingly, by its terms, it ceased operation on 21 April 2005.

3 On 1 October 2004, the Sex Offenders Registration Act 2004 ("the Act") commenced operation. On 22 August 2007, the plaintiff was advised, by the Registrar of the Victorian Sex Offenders Registry, that he was considered to be a registrable offender within the meaning of the Act. By this proceeding, the plaintiff seeks a declaration that he is not a registrable offender under s 6 of the Act, and an order that the defendant, the Chief Commissioner, remove his name from the register of sex offenders.

4 Section 62 of the Act requires the Chief Commissioner of Police to establish, and maintain, a Register of Sex Offenders, which is to contain specified information in respect of each "registrable offender". Part 3 of the Act contains a series of provisions which impose a number of obligations on registrable offenders. Section 6 defines "registrable offender" as a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a "registrable offence". The offences of knowingly possessing child pornography, and producing child pornography, are each defined, in the Act, to be registrable offences. Section 6(4) (so far as is relevant for this case) provides that unless an offender 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.

5 Section 3 of the Act defines "existing controlled registrable offender" to include a person who, "as a result of having been sentenced for a registrable offence", was immediately before 1 October 2004 serving a sentence referred to in s 6C(1) of the Corrections Act 1986. In turn, s 6C(1)(d) of that Act refers to:

"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."

6 The net effect of the foregoing is that the plaintiff was an existing controlled registrable offender, and hence a registrable offender, if, immediately before 1 October 2004, as a result of having been sentenced "for a registrable offence" by the orders of the Melbourne Magistrates' Court on 22 April 2003, he was "serving" a sentence thus described in s 6C(1)(d) of the Corrections Act.

7 Mr E Nekvapil, who appeared on behalf of the plaintiff, submitted that the plaintiff is not an existing controlled registrable offender, and thus not a registrable offender, for two reasons. First, Mr Nekvapil contended that the plaintiff was not, immediately before 1 October 2004, serving a term of imprisonment, the whole or part of which was suspended. Secondly, he submitted that s 6 of the Act does not apply to an aggregate sentence imposed for a number of offences, of which only one or some are registrable offences. Mr Nekvapil further contended that, if, contrary to those submissions, the correct construction of the Act is such that the plaintiff is an existing controlled registrable offender under the Act, the court should make a "declaration of inconsistent interpretation" under s 36(2) of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). For the purpose of advancing that part of his case, the plaintiff has served notices on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35 of the Charter. In response, the Attorney-General has advised the registrar of the court that the Attorney-General will not be intervening in the proceedings.

8 As I stated, the Act came into force on 1 October 2004. At that time, the term "existing controlled registrable offender" was defined, by s 3, to mean 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". In DPP v Neisser[1], Hargrave J held that the respondent, who had been sentenced in March 2004 for three registrable offences to eight months' imprisonment, fully suspended for twelve months, was not an existing controlled registrable offender. The primary reason for his Honour's decision was that the respondent was not, immediately before 1 October 2004, under the supervision of a supervising authority or any other person or body. His Honour held that the fact that it is possible that a person, undergoing a suspended sentence, might contravene s 31(1) of the Sentencing Act, did not amount to "supervision" within the ordinary meaning of that word[2].

9 As a result of the decision in DPP v Neisser, s 53 of the Justice Legislation (Further Amendment) Act 2006, was passed. That section substituted the current definition of "existing controlled registrable offender" for the original definition, to which I have just referred.

10 As I stated, the plaintiff's first submission was that he was not, immediately before 1 October 2004, "serving" a suspended term of imprisonment, and therefore he was not an existing controlled registrable offender. Mr Nekvapil submitted that, for the purposes of the definition of "existing controlled registrable offender" under s 3, the sentence being "served" by the particular offender is the period of imprisonment, imposed by the sentence, which was suspended, and not the "operational period" for which that sentence of imprisonment was suspended. He submitted that as the sentence of 12 months, imposed on the plaintiff, had commenced on 22 April 2003, the plaintiff was therefore no longer "serving" that sentence immediately before 1 October 2004.

11 Mr Nekvapil contended that that meaning conforms with the grammatical sense of the legislative provisions in question. In particular, s 3 of the Act defines "existing controlled registrable offender" as including a person "serving a sentence" referred to in s 6C(1) of the Corrections Act; in turn, that provision refers to "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". Mr Nekvapil submitted that thus it is clear that the "sentence", being served by that offender, is the sentence of imprisonment.

12 Mr Nekvapil further submitted that the same conclusion is dictated by s 27(5) of the Sentencing Act 1991, which provides that a wholly suspended sentence of imprisonment must be taken to be a sentence of imprisonment for the purposes of all enactments (except for enactments providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits). Thus, he submitted, for the purpose of the Act, the term of imprisonment, which is suspended, is deemed to be the relevant sentence served by the plaintiff. Such a sentence would only run for its nominated length, in this case twelve months; otherwise, a suspended sentence, of the kind given to the plaintiff, would, for the purposes of the Act, be longer than the actual term required to be served in custody, in the event of a breach of the sentencing order.

13 Mr Nekvapil further submitted that if, contrary to the foregoing, there is an ambiguity in the construction of the relevant legislative provisions, that ambiguity should be resolved in favour of the narrower construction contended for on behalf of the plaintiff. For, he submitted, the amendment to the definition of "existing controlled registrable offender" was intended to operate retrospectively by its terms, and thus to capture, within its ambit, persons who, hitherto, did not fall within it. The Act contains a number of provisions which affect the rights of an individual to freedom of movement and privacy. Common law canons of construction, and s 32 of the Charter, each require that such provisions be construed narrowly, and, where there is an ambiguity in such a provision, the narrower rather than the broader construction should be preferred.

14 The second submission made by Mr Nekvapil was that the plaintiff was not an existing controlled registrable offender, under the Act, because he had not been sentenced "for a registrable offence". Mr Nekvapil pointed to the fact that an aggregate sentence had been imposed on the plaintiff for five offences, three of which were not registrable offences. Mr Nekvapil submitted that the phrase "sentence for a registrable offence" has a plain grammatical meaning. In particular, he submitted that the preposition "for" denotes a precise correspondence between the sentence, described in the definition, and the registrable offence "for" which it was imposed. He submitted that the plaintiff could not be said to have been sentenced, to the suspended term of imprisonment, "for" a registrable offence. Rather, he was sentenced, to the suspended sentence, "for" five offences, three of which were not registrable offences.

15 Mr Nekvapil further submitted that the contrary construction of the definition of "existing controlled registrable offender" would lead to unjust and arbitrary consequences, such as where an aggregate sentence had been imposed on an offender primarily for non-registrable offences, rather than for a registrable offence.

16 In response, Mr O P Holdenson QC, who appeared with Ms J M Davidson for the respondent, submitted that the effect of s 29 and s 31(5) and (6) of the Sentencing Act is that a suspended sentence is, for the period of time for which it is suspended, "held in suspense". If at any time during that operational period the offender commits an offence punishable by imprisonment, the offender may be required by the court to serve the sentence, or part of the sentence, of imprisonment, which was thus "held in suspense". He further submitted that no distinction is drawn between the different periods of time, within that operational period, during which the sentence of imprisonment is "held in suspense". In this case, the operational period for the suspended sentence of imprisonment, imposed on the plaintiff, commenced on 22 April 2003, and expired on 21 April 2005. For the whole of that period, the sentence of imprisonment was "held in suspense".

17 Mr Holdenson referred me to the relevant definitions of the verb "serve" in the Macquarie Dictionary and the Oxford English Dictionary, each of which define that verb as "to go through (a term of service, imprisonment etc)". In that sense, the plaintiff was, throughout the operational period of the suspended sentence, undergoing the relevant sentence thus imposed on him. Mr Holdenson submitted that that construction, of the word "serve" in the definition of "existing controlled registrable offender", is supported by the same use of the word "serving" in subparagraphs (e), (f) and (g) of the definition. In those subparagraphs, the participle "serving" bears the same meaning, namely, "undergoing" or "going through", which, Mr Holdenson submitted, is the correct meaning of the same word in subparagraph (d) of the definition.

18 Mr Holdenson then turned to the second submission made by Mr Nekvapil, namely, that because an aggregate sentence had been imposed on the plaintiff for both registrable and non-registrable offences, he was not a person who had been sentenced "for a registrable offence", for the purposes of the definition of "existing controlled registrable offender". Mr Holdenson submitted that that argument overlooked the fact that in the definition the phrase "as a result of having been sentenced" controls the remainder of the definition, including the words "for a registrable offence". Thus, he submitted that the plaintiff was serving the sentence imposed by the Magistrates' Court on 22 April 2003 "as a result of" having been sentenced "for" a registrable offence. He argued that it is not relevant that the plaintiff had also been sentenced for three non-registrable offences, because the phrase "as a result of" was not expressly confined to a sentence solely imposed for a registrable offence. Thus, he submitted it was sufficient that the plaintiff was a person who, as a result of having been sentenced (inter alia) for a registrable offence, was immediately before 1 October 2004 serving a sentence described in the definition of "existing controlled registrable offender" in the Act.

Conclusions whether plaintiff was an "existing controlled registrable offender"

19 The first question, then, is whether, immediately before 1 October 2004, the plaintiff was "serving" a sentence referred to in s 6C(1)(d) of the Corrections Act 1986. In other words, the question is whether the plaintiff was a person who was serving a sentence of imprisonment, which was wholly or partly suspended, and who was in the community in accordance with that sentence.

20 The answer to that question lies substantially in a proper characterisation of the nature of a suspended sentence of imprisonment imposed under s 27(1) of the Sentencing Act. It is clear, both from the relevant provisions of that legislation[3], and from the observations of Callaway JA in R v Bice[4], that the effect of the making of a suspended sentence under s 27 of the Sentencing Act is that the whole of the part of the sentence of imprisonment, which is suspended, is a sentence of imprisonment, which is thus "held in suspense" for the whole of the operational period as prescribed by the sentencing order. Thus, in this case, the sentence imposed on the plaintiff, namely, a sentence of 12 months' imprisonment, was held in suspense for the whole of the two year operational period prescribed by the sentencing order, commencing on 22 April 2003, and ceasing on 21 April 2005. Accordingly, immediately before 1 October 2004, the plaintiff was subject to a sentence of imprisonment of 12 months, which was "held in suspense" at that time, pending the successful completion by him of the operational period of the sentence. As Mr Holdenson has pointed out, the term of imprisonment, which is suspended, may fall to be served by an offender, on whom it is imposed, at any time during the operational period of the sentencing order. The length of the term of imprisonment, held in suspense, is irrelevant to determining whether the sentence has, at some time during the operational period, been served. It would be clearly contrary to the provisions of the Sentencing Act to characterise the suspended sentence as having been "served" in this case 12 months after it was imposed on 22 April 2003. As at 22 April 2004, it was still held in suspense, and was to remain in suspense until the completion of the operational period on 21 April 2005.

21 Further, it is clear, from the terms of the definition of "existing controlled registrable offender" in s 3 of the Act, that it is not necessary that the plaintiff be actually serving the suspended term of imprisonment, in the sense that he be in prison serving that term, immediately before 1 October 2004, in order that he be characterised as an "existing controlled registrable offender". Subparagraph (a) of the definition includes "an inmate". Thus if, by referring to s 6C(1) of the Corrections Act 1986, subparagraph (d) of the definition was only intended to apply to offenders actually incarcerated for the suspended term, subparagraph (d) would be otiose, because such an offender would fall within subparagraph (a) of the definition of existing controlled registrable offender.

22 Furthermore, it is clear, by the very terms of subparagraph (d), that the verbal participle "serving" is not intended to apply to the sentence of imprisonment, which is held in suspense, but, rather, to the operational period. I agree with Mr Holdenson that, in that context, it is clear that the word "serving" is intended to bear the meanings referred to in both the Oxford English Dictionary and the Macquarie Dictionary, namely, as a participle of the verb "to serve" in the sense of "to go through" (a term of service, imprisonment etc) or to "undergo" such a term. Thus, it is clear from the context of subparagraph (d), and from the whole of the definition of "existing controlled registrable offender", that the word "serving" is to be construed as applying to a person who was then undergoing, or subject to, a suspended sentence of imprisonment.

23 That construction is fortified by subparagraphs (e), (f) and (g) of the definition of "existing controlled registrable offender", in which, respectively, the word "serving" is used in connection with a Community Service Order, a Good Behaviour Bond, or a Non-Custodial Supervision Order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. In that context, it is clear that subparagraph (d), like subparagraphs (e), (f) and (g), is intended to apply to a person who is subject to a particular sentencing order, the operational period of which has not expired by 1 October 2004.

24 For those reasons I reject the first submission by Mr Nekvapil, namely, that the plaintiff was not, immediately before 1 October 2004, serving the suspended sentence of imprisonment imposed on him under s 27(1) of the Sentencing Act.

25 The second submission by Mr Nekvapil was that the plaintiff was not a person who was serving that sentence, immediately before 1 October 2004, as a result of having been sentenced "for" a registrable offence. As I stated, that submission was made on the basis that the suspended sentence of imprisonment had been imposed as an aggregate sentence "for" five offences, three of which were not registrable offences. Accordingly, Mr Nekvapil submitted that the plaintiff was not a person who was serving the suspended sentence "for a registrable offence" committed by him.

26 The submission by Mr Nekvapil in this respect focused essentially on the phrase "sentence for a registrable offence". However, in construing those words, it is important to treat the part of the definition, in which they appear, as a composite whole. In particular, it is important to consider, in its totality, the effect of the phrase "... a person who, as a result of having been sentenced for a registrable offence committed ... was immediately before 1 October 2004" serving one of the sentences prescribed in the definition of "existing controlled registrable offender". Read as a whole, the definition does not confine its ambit to a person who has been sentenced solely for a registrable offence. Rather, 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. In other words, 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. The definition does not require that the sentence, being served immediately before 1 October 2004, be solely or exclusively the result of the person having been sentenced for a registrable offence.

27 In this case, the plaintiff was sentenced, on 22 April 2003, "for" two registrable offences. "As a result of" having been sentenced for those two offences, he was serving a suspended sentence immediately before 1 October 2004. It is true that that suspended sentence was imposed for five offences in respect of which the plaintiff was convicted on 22 April 2003, three of which were not registrable offences. However, as I have stated, the definition of "existing controlled registrable offender" does not require that the commission by the plaintiff of a registrable offence be the sole, or dominant, cause of him serving the suspended sentence. Rather, the sentence must simply be "a result" of the plaintiff having been sentenced for a registrable offence committed by him.

28 In considering both of the arguments raised by Mr Nekvapil in relation to the construction of the definition of "existing controlled registrable offender", it is, of course, relevant that it is part of legislation which affects the rights of an individual. The reporting obligations imposed on a registrable offender by the Act are relatively onerous, and they intrude into the offender's rights to privacy in a number of respects. Furthermore, the definition of "existing controlled registrable offender", with which I am concerned, was substituted in the legislation in 2006, with retrospective operation. In such a case, as a matter of settled principles of statutory construction, such provisions are ordinarily construed strictly, so that they only apply to a particular individual if the language of the statute is clear and unambiguous.[5] That canon of construction is reinforced by s 32(1) of the Charter, which provides:

"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."

29 However, the common law canon of construction does not permit a court to rewrite the statute, or to give to it an interpretation which is inconsistent with the language used by the draftsman of the legislation.[6] Similarly, s 32(1) of the Charter does not command, or permit, an interpretation of a statutory provision, which overrides the intention of the enacting Parliament as expressed by the terms of the statute. That construction of s 32(1) was settled by the Court of Appeal in its recent decision in R v Momcilovic[7]. In that case, the Court (consisting of Maxwell P, Ashley and Neave JJA), held[8] that s 32(1) was not intended to create a "special" rule of statutory construction, but, rather, that it constituted a statutory directive obliging courts (and tribunals) to explore all "possible" interpretations of the provision in question, and to adopt that interpretation which least infringes Charter rights, to the extent that that is possible by reference to the existing framework of interpretive rules. Their Honours held that, in that way, s 32(1) "embraced and affirmed ... in emphatic terms" the ordinary presumption that the legislature does not intend to abrogate or curtail fundamental rights or freedoms, unless such an intention is clearly manifested by unambiguous language.

30 As I stated, the amending legislation, introduced in 2006, does, retrospectively, operate to impose on a person, in the position of the plaintiff, obligations, and does intrude on his ordinary right to personal privacy. However, in my view, the language of the definition of "existing controlled registrable offender" in s 3 of the Act (as amended by s 53 of the Justice Legislation (Further Amendment) Act 2006) is clear and unequivocal. It is not possible to postulate an alternative construction of the phrase "serving a sentence" in subparagraph (d) of the definition, in the manner contended for by Mr Nekvapil, without doing severe violence to the plain language adopted by the draftsman of the legislation. Equally, in my view, the construction of the phrase "as a result of having been sentenced for a registrable offence", contended for by Mr Nekvapil, is inconsistent with the plain language of that part of the definition. The plain intent of the amending legislation, introduced inn 2006, was to render liable to the terms of the principal Act those offenders who had been sentenced for registrable offences before 1 October 2004, and who, immediately before that date, were the subject of the ongoing sentencing orders specified in the definition. Further, the definition was not confined to covering those persons whose ongoing sentences were solely the result of being sentenced for a registrable offence committed by them; rather, by its plain terms, the definition was intended to cover those whose sentences had been "a result" of being sentenced for such a registrable offence.

31 For those reasons, I reject the submission that the plaintiff was not an "existing controlled registrable offender" as defined by s 3 of the Act. It follows that the plaintiff is, under s 6 of the Act, a "registrable offender".

32 That conclusion makes it necessary for me to consider the alternative submission made by Mr Nekvapil, namely, that I should make a declaration of inconsistent interpretation pursuant to s 36(2) of the Charter, which provides:

Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section."

33 In considering this part of the case, it is important to define, with some precision, the issue, which was raised by Mr Nekvapil on behalf of the plaintiff. In particular, Mr Nekvapil did not submit that, if, as a matter of construction, the plaintiff is a registrable offender under the Act, I should declare the whole of the Act, and in particular the reporting obligations contained in Part 3 of it, to be inconsistent with the various rights identified in the Charter. Rather, the point raised in the amended notices served on the Attorney-General and on the Victorian Equal Opportunity and Human Rights Commission, and the submissions made by Mr Nekvapil, were of much narrower compass. In effect, Mr Nekvapil submitted that if the plaintiff is held to be a registrable offender, I should conclude that the definition of "existing controlled registrable offender" in s 3 of the Act, as introduced by s 53 of the amending Act of 2006, is inconsistent with two human rights identified in the Charter, namely, the right not to be subject to a retrospective penalty (s 27), and the right not to be subject to unlawful or arbitrary interference with privacy (s 13). That is, the contention of Mr Nekvapil, on behalf of the plaintiff, was that the amended definition of "existing controlled registrable offender", introduced by s 53 of the amending Act, is inconsistent with those two rights, insofar as that amendment caused the principal Act to apply to a person in the position of the plaintiff, namely, a person who, before the Act came into operation, had been subject to a suspended sentence, the operational period of which had not expired by the date of commencement of the Act.

34 Before turning to the substantive submissions made by Mr Nekvapil, it is important to bear in mind, and keep in perspective, the ultimate relief sought by the plaintiff in this respect. First, if I were to make a declaration of inconsistency under s 36(2) of the Charter, s 36(5) provides that such a declaration does not affect, in any way, the validity, operation or enforcement of the statutory provision in question, or create in any person (including the plaintiff) any legal right or give rise to any civil cause of action. Thus, any declaration of inconsistency would not, at least in an immediate way, vindicate or protect any rights of the plaintiff. Secondly, if I were to form the conclusion (contended for by Mr Nekvapil) that s 53 of the amending Act could not be interpreted consistently with one or both of the human rights referred to by Mr Nekvapil, s 36(3) requires me, first, to ensure that a further notice is given to the Attorney-General and the Commission, to enable them to make further submissions to me in relation to this matter.

35 With that introduction, I turn, then, to the two human rights of the plaintiff, identified in the Charter, with which Mr Nekvapil has contended that s 53 of the amending Act is inconsistent, namely, the right to privacy (s 13) and the right not to be subject to a retrospective penalty (s 27).

36 The relevant provisions containing those rights are expressed in the following terms:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ...

...

(2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed."

37 Mr Nekvapil submitted that the extended definition of "existing controlled registrable offender", introduced by the 2006 legislation, breached both of those rights of the plaintiff. He further submitted that in the absence of any evidence adduced on behalf of the defendant, the inconsistency between the Act and his Charter rights could not be justified under s 7(2) of the Charter which provides:

"7 Human rights - what they are and when they may be limited

...

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve."

38 Mr Nekvapil submitted that the reporting conditions of the Act constitute an interference with the plaintiff's right to privacy, as prescribed by s 13(a). Further, he submitted that the 2006 amendment to the Act, by retrospectively bringing the plaintiff within its operation, constituted an arbitrary interference with the plaintiff's right to privacy. He submitted that in order to be an arbitrary interference under s 13 of the Charter, the interference must contain elements of inappropriateness, injustice and lack of predictability. In support of that submission, he referred me to the decision of Vickery J in Nolan v MBF Investments Pty Ltd[9] and the decision of Bell J in Kracke v Mental Health Review Board[10]. Mr Nekvapil submitted that, by bringing the plaintiff within the operation of the Act, the 2006 amendment to the Act constituted an interference with the plaintiff's rights which was arbitrary, because the Act could thereby apply retrospectively to one person convicted of relatively minor offences, but who was still subject to a suspended sentence on 1 October 2004, whereas it would not apply to another person, sentenced at the same time, for more serious offences, but whose custodial sentence had already expired. In that way, he submitted that the application of the provisions of the Act, retrospectively, to a person in the position of the plaintiff was arbitrary and thus was inconsistent with the right to privacy defined in s 13(a) of the Charter.

39 Mr Nekvapil also submitted that, by bringing the plaintiff retrospectively within the operation of the Act, the 2006 amendments to the definition "existing controlled registrable offender" constituted the imposition on a person, in the position of the plaintiff, of a penalty for a criminal offence, which was greater than the penalty which applied to the offence when it was committed, contrary to s 27(2) of the Charter. He submitted that that is so because, taken together, the provisions of the Act constitute the imposition, on a registrable offender, of a penalty. In particular, he pointed to the fact: that the "triggering event" for the application of the Act to an individual is a criminal conviction; that such a person is referred to in the Act as an "offender"; that contravention of a number of provisions of the Act constitutes an offence punishable by imprisonment; and that the various obligations imposed by the Act are severe impositions on the persons affected by it. Further, Mr Nekvapil submitted that although one purpose of the Act is preventative and protective, it also has, at its base, penal objectives and effect.

40 Mr Nekvapil further submitted that the defendant is not able to rely on s 7(2) of the Charter, in order to justify any inconsistency between the Act and the plaintiff's rights, because the defendant has not adduced any evidence, by which it might be demonstrated that the limitations to the rights, constituted by the legislation, are justified by reason of s 7(2) of the Charter. In this connection, he relied on part of the judgment of the Court of Appeal in R v Momcilovic[11].

41 In response, Ms Davidson, who presented the submissions on behalf of the defendant on this aspect of the case, contended that the 2006 amendment, to the definition of "existing controlled registrable offender" in s 3 of the principal Act, was not inconsistent with the rights defined in s 13 and s 27(2) of the Charter. She acknowledged that the effect of the principal Act is to interfere with the right of privacy of persons in the position of the plaintiff. However, she submitted that the interference in such a case was neither unlawful nor arbitrary.

42 In this connection, Ms Davidson characterised the argument made by Mr Nekvapil as an argument based on under-inclusion. In effect, the submission made on behalf of the plaintiff was that the interference with his privacy is arbitrary, because it applies the scheme to all offenders, irrespective of an individual assessment of the gravity of the offending or the risk of re-offending. She submitted that viewed in that way the plaintiff's argument was not that the Charter was arbitrary in its interference with the plaintiff's privacy; rather, it is arbitrary only to the extent that it excludes a similar interference with the rights of others. She submitted that the fact that Parliament has chosen to restrict the reporting scheme to those (inter alia) defined in s 3 to be "existing controlled registrable offenders" does not render the application of the Act to the plaintiff arbitrary.

43 Ms Davidson further submitted that the scheme constituted by the principal Act does not amount to a penalty under s 27(2) of the Charter. In support of those submissions, she drew my attention to a number of authorities in the United Kingdom, Europe, Canada and the United States, in which it has been held that statutory schemes, providing for the registration of sex offenders, do not constitute a penalty or punishment, so as to attract the principles of double jeopardy, or the principles against the imposition of retrospective penalties. In the present case, she submitted that the scheme established by the Act is a civil scheme, albeit that it is supported by criminal penalties imposed on those who fail to comply with the provisions of the Act. In particular, she submitted that the purposes of the Act are protective. The restrictions imposed on a registrable offender by the Act are not, by their nature, penal. Indeed, she contended that the restrictions contained in the principal Act - such as prohibitions on the changing of the offender's name, and on the offender's ability to work with children - are less extensive than the restrictions which have been imposed in the United Kingdom, and which have not been held to be a penalty.[12]

Conclusion on application for declaration under Charter

44 The nature of the application made on behalf of the plaintiff, and the scope of the submissions made in support of that application, are such that it is useful to commence by stating some basic principles which, I consider, are important in a case such as this.

45 It is fundamental that the Charter is an Act of the Victorian Parliament. As such, it falls to be construed and applied by this Court as part of the laws of the State of Victoria. In performing that role, the Court is discharging its judicial function, which is its exclusive role under our constitution. It is trite, but basic, that the three relevant arms of government in this State, and indeed in our nation, are constituted by the Parliament, the executive and the judiciary. The Parliament is the supreme legislative body in the State of Victoria.[13] Any power of a subordinate body to make laws is restricted to the powers invested in it by the Parliament. In a representative democracy such as ours, Parliament, in making laws, thereby expresses, and is answerable to, the will of the people. In such a system, the executive is charged with the responsibility of administering a number of those laws. In doing so, it is necessarily subservient, and answerable, to Parliament and its duly constituted committees. The supremacy of the Parliament over the executive is critical to a free democracy, and was forged in the great constitutional battles in Great Britain commencing in Stuart times.

46 It is in that structure that the role of the judiciary is important. That role is to interpret and apply the laws, which have been duly enacted by Parliament. In doing so, part of the role of the judiciary is to ensure that the executive acts lawfully in carrying out the laws made by Parliament. Thus the judiciary, through the prerogative writs, and through the use of administrative law and equitable remedies, has the power, where necessary, to protect the individual against unlawful acts of the executive. In a free democracy, in performing that role, the judiciary is necessarily independent of both Parliament and the executive. That principle is fundamental and critical to a democracy. It is for that reason that the judiciary is not, and could never sensibly be understood to be, a part of the public service. The corollary of that proposition is that the judiciary is not part of the legislative or executive arms of government. In making decisions, whether between government and subject, or between subject and subject, the judiciary is not involved in a legislative activity, or in policy making. Rather, the judiciary is strictly involved in interpreting and applying principles of law, the source of which is either legislation or the common law. It is axiomatic, but critical, that in performing that role, no judge acts according to his or her own values or individual views. Some of the functions of the judiciary - such as sentencing - do involve discretionary judgments, but those judgments are made according to established legal principles. They are not decided according to the judge's own set of values or individual idiosyncratic views of life.

47 It is in the context of this system that the Charter must be construed and applied. There is nothing in the Charter which justifies, or licences, judicial policy making. Nor does it permit, or invite, the intrusion of an individual judge's values or views in determining whether, in an individual case, a particular legislative enactment might be inconsistent with one of the human rights specified in the Charter. The rather lofty title of the Charter - "Charter of Human Rights and Responsibilities Act" - is not a licence to any individual judge, such as myself, to apply his or her values in determining whether a particular Act of Parliament is inconsistent with one or more of the human rights specified in the Charter. No such warrant is to be found in the Charter[14], nor in the Second Reading Speech of the Attorney-General. Indeed, in that speech, the Attorney-General emphasised that the Charter had been designed so as to preserve the legislative sovereignty of the Parliament.[15]

48 I make those observations because of the nature of some of the international decisions, which have been brought to my attention in this case. Those decisions are relevant because of s 32(2) of the Charter, which provides:

"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."

49 In light of that provision, a number of decisions of European and international courts were brought to my attention, as well as opinions of the United Nations Human Rights Committee. The decisions, which were drawn to my attention, were interesting and helpful. However, I apprehend that some care must be taken in relying on and following those decisions, literally and in their entirety. First, I note that while the terms of the Charter are drawn from international treaties, nevertheless they are not necessarily the same as a number of the provisions, which were the subject of the decisions and opinions to which I was referred. Secondly, the constitutional structures of the countries, in which those decisions were made, are not necessarily the same as the constitutional structure of this State or this nation. In particular, a number of those countries do not have the strict separation of judicial powers, which is a cornerstone of our constitution. This is particularly so in the case of the United Nations Human Rights Committee. That Committee does not perform the same judicial role, which is performed by the courts of this state. In particular, it is not the independent judicial arm of a parliamentary democracy, the other arms of which are the legislature and the executive. Further, it is fair to observe that the majority of the members of that Committee do not come from countries, which have the same system of democracy as ours, or indeed any system of representative democracy at all. The opinions of that Committee, to which I was referred, involve the expressions by the Committee of value judgments in a manner and to an extent which is at odds with the traditional judicial function of the courts of this State and this nation.

50 With those preliminary observations, I turn to the question whether the 2006 amendment to the Act, by bringing the plaintiff within its operation, was inconsistent with the plaintiff's right not to have his privacy unlawfully or arbitrarily interfered with under s 13 of the Charter.

51 As I stated, Mr Nekvapil relied on the decisions of Bell J in Kracke[16] and of Vickery J in Nolan[17] in support of the proposition that an interference with privacy might be arbitrary, if it could be demonstrated to be "unreasonable" or "disproportionate". I do not accept that submission. The adjective "arbitrary" is a word of common use. It ordinarily denotes a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim. That common usage of the word is consistent with its dictionary definition in both The Oxford English Dictionary and The Macquarie Dictionary. The relevant definitions of "arbitrary" in The Oxford English Dictionary are as follows:

"1 To be decided by one's liking; dependent on will or pleasure; at the discretion or option of anyone;

3 Derived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying;

4 Unrestrained in the exercise of will; of uncontrolled power or authority, absolute."

52 In Kracke v Mental Health Review Board & Ors[18], Bell J was not concerned with the right to privacy under s 13. However, in the course of his decision, his Honour considered the requirement in s 7(2) that any limitation on a human right be within reasonable limits. In doing so, his Honour considered international decisions, in which the concept of "arbitrary interference" with rights has been discussed. In particular, Bell J[19] referred to General Comment 16 of the Human Rights Committee on article 17 of the International Covenant on Civil and Political Rights ("ICCPR"),[20] which provides that "no-one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful acts on his honour and reputation". In that decision, the Committee expressed the view that in order that the interference with privacy not be arbitrary, the interference must be "reasonable in the particular circumstances" and thus must be "proportional" to the end sought and be necessary in the circumstances of any given case.

53 With due respect to the Committee, that definition of the concept of "arbitrary" does not accord with the plain ordinary English meaning of it. Of necessity, it imports a significant degree of judicial value judgment, which is not warranted by the Charter. There is nothing in the Victorian Charter which would justify giving to the adverb "arbitrarily", in s 13(1), the broader meaning adopted by the Human Rights Committee in that opinion. To do so would be to introduce a degree of judicial policy making into the application of s 13(1) of the Charter, which is not warranted by its plain and unambiguous terms, and which is inconsistent with the established role of the judiciary in this State.

54 In Nolan v MFB Investments Pty Ltd[21], Vickery J was concerned with the question whether s 77(1) of the Transfer of Land Act is inconsistent with article 17(1) of the ICCPR. In considering that issue, his Honour referred to a decision of the Human Rights Committee in Hugo Van Alphen v The Netherlands[22]. That complaint to the Committee concerned article 9(1) of the ICCPR (which provided for protection against arbitrary arrest or detention). The Committee defined the concept of "arbitrariness" as including "elements of inappropriateness, injustice and lack of predictability". The Committee determined that in order not to be arbitrary the detention of the subject must not only be lawful "but reasonable in all the circumstances".

55 Having referred to the opinion of the committee, Vickery J observed:

"This formulation is not dissimilar to the Oxford Dictionary definition of 'arbitrary' which gives it the meaning: 'based on or derived from uninformed opinion or random choice; capricious; despotic."[23]

56 I agree with Vickery J that the applicable meaning of "arbitrary" is that which is defined in the Oxford English Dictionary. However, with respect, I do not agree that that meaning is relevantly similar to the meaning ascribed to it by the United Nations Human Rights Committee. In particular, I do not consider that the meaning given to "arbitrary" by the United Nations Human Rights Committee, is consistent with The Oxford Dictionary meaning which, as I have already stated, conforms with the ordinary everyday English use of the adjective "arbitrary". Rather, the meaning of "arbitrary" as defined by the Committee involves an unwarranted and impermissible re-writing of the plain terms of the Charter. It is an invitation to indulge in judicial policy making which, for reasons I have already stated, I categorically reject.

57 For the reasons which I have already set out, in my view the adverb "arbitrarily", in s 13(1) of the Charter, is to be construed in its ordinary English meaning, namely as denoting an interference with the right of privacy which is capricious and not based on any identifiable criterion or criteria.

58 In that light, I do not consider that s 53 of the 2006 Act, in amending the definition of "existing controlled registrable offender", had the effect of constituting an arbitrary interference with the right of persons, in the position of the plaintiff, to privacy under the Charter. It is clear that the amendment was designed to ensure that the scheme, constituted by the Act, covered those sexual offenders who, immediately before 1 October 2004, were the subject of a sentencing order, which was still in operation as at that date. Thus, the various categories of sentenced offenders, referred to in the amended definition, are all persons who were the subject of ongoing sentences, in respect of registrable offences. Such offenders range from (in subparagraph (a)) a prison inmate to (in subparagraph (f)) a person on whom there had been imposed a good behaviour bond. The inclusion in that category of a person, such as the plaintiff, who was still the subject of a suspended sentence of imprisonment, could not, in my view, be characterised as being arbitrary. Rather, it was based on the readily identifiable criterion that such a person, like the members of each other category, was subject to a sentence for a registrable offence, which was still in operation immediately before 1 October 2004. Thus, in my view s 53 of the 2006 Act, by amending the definition of "existing controlled registrable offender", was not inconsistent with the right to privacy defined in s 13(a) of the Charter.

59 The second provision of the Charter, with which it is alleged that the provisions of the principal Act affecting the plaintiff are inconsistent, is s 27(2), which proscribes the imposition of a "penalty" on any person for a criminal offence, which "penalty" is greater than the penalty that applied at the time of the commission of the offence. The critical question is whether the provisions of the principal Act constitute the imposition of a "penalty" on the plaintiff (or indeed on any registrable offender to whom it applies).

60 In this context, it was common ground that "penalty", in s 27(2), is equivalent to "punishment" or "sentence". In my view, that construction of "penalty" is correct. Section 27(2) is one of a series of provisions (commencing with s 21) concerning the rights of persons charged with criminal offences. Section 24 is concerned with the right of an accused to a fair hearing, s 25 with a number of "minimum guarantees" of accused persons, s 26 with the right not to be exposed to double jeopardy, and s 27(1) with the right not to be found guilty of a criminal offence for conduct, which was not criminal when it was engaged in. Section 27 is headed "Retrospective Criminal Laws". Section 27(2) is concerned with a "penalty" which is imposed "for a criminal offence". In that context, in my view, the parties were clearly correct in accepting that the word "penalty" in that subsection is equivalent to "criminal punishment".

61 Ms Davidson referred me to a number of decisions of international courts, which have considered legislative schemes for the registration of sex offenders. They include decisions of the United Kingdom[24], Canada[25], the Supreme Court of the United States of America[26], and the European Commission of Human Rights[27]. I was also referred by Mr Nekvapil to the judgment of the New Zealand Court of Appeal in Belcher v Department of Corrections[28], in which the Court considered whether a legislative scheme, which provided for the making of extended supervision orders in respect of convicted sexual offenders, constituted a penalty or punishment for the purposes of relevant provisions of the New Zealand Bill of Rights Act 1990.

62 It is not useful for me to examine, in this judgment, the various decisions, to which I have been referred. The outcome of each of those decisions depended, in large measure, on the particular statutory scheme in question, and also on the particular statutory definition of the "human right", with which the particular scheme was alleged to be inconsistent. However, it is evident from the decisions which I have read, and also from a plain reading of s 27(2), that the question whether a particular statutory scheme, such as that established by the Act, constitutes the imposition of a penalty, is to be decided as a matter of substance, and not form. Thus, as Mr Nekvapil correctly submitted, the question is not to be determined by whether the principal Act expressly characterises the various requirements, imposed on a registrable offender, as a "punishment". Rather, that question is to be determined by reference to a number of different criteria, in order to determine the true nature of the scheme imposed on a registrable offender by the operation of the Act.

63 For the purposes of deciding the question raised by the plaintiff in respect of s 27(2), it is neither necessary nor helpful for me to compile a list of criteria, which might be applied in a particular case in determining whether a statutory scheme, by its operation on a convicted offender, might thereby constitute a retrospective penalty for the purposes of s 27(2). In my view, a clear reading of the scheme established by the Sex Offenders Registration Act 2004 leads powerfully to the one conclusion, namely, that its application to an offender such as the plaintiff does not constitute the imposition of a "penalty" for the purposes of s 27(2). That conclusion follows from the clear purpose of the Act, and from the nature of the obligations imposed on such an offender by the scheme under the Act.

64 Section 1(1) of the Act states its purposes as follows:

(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."

65 Pausing there, it is clear that the primary purposes of the Act are to prevent re-offending by convicted sex offenders, and to facilitate the investigation and prosecution of future offences which might be committed by those persons. Neither of those purposes, in any way, are penal, nor do they have anything in common with the fundamental purposes served by a sentence for a criminal offence under Victorian law. The primary purposes of a sentence, both under s 5(1) of the Sentencing Act, and at common law, are: to punish the offender; to act as a specific deterrent to that offender; to constitute a general deterrent to other potential offenders; to rehabilitate the particular offender; and to manifest the denunciation by the court of the type of conduct for which the offender was convicted. It is true that the protection of the community is also prescribed in s 5(1)(e) of the Sentencing Act as a purpose of sentencing. However, that purpose is, ordinarily, of less moment than the other purposes, to which I have just referred. By contrast, s 1(1) of the Sex Offenders Registration Act focuses on the prevention of re-offending by offenders, and the facilitation of investigation of further crimes committed by them. The purposes, defined in s 1(1) of the Act, can be discerned as the primary function served by the principal parts of the Act, and in particular the provisions contained in Part 3 (the reporting obligations) and in Part 5 (prohibiting sex offenders from child related employment).

66 The various provisions contained in Part 3 of the Act are concerned with the reporting obligations of a registrable offender. In particular, the provisions in Division 1 of that Part concern the initial report to be made by such a person, and the provisions in Division 2 specify the ongoing reporting obligations of a registrable offender. While the Act does require a registrable offender to make a report to the Chief Commissioner of any intended travel out of the State of Victoria (s 18), and of any change to travel plans out of Victoria (s 19), neither those provisions, nor any other provision, restrict the offender from travelling interstate. At one point in his submissions, Mr Nekvapil contended that the obligation to report was a mark of "shame", which might stigmatise a registrable offender. However, I note that s 24 of the Act provides that the person, making the report, is entitled to do so out of the hearing of members of the public. Section 63 restricts access to the register, containing the matters which are the subject of the report, to authorised persons.

67 The principal restriction, which is imposed by the Act, is contained in Part 5. In particular s 68(1) prohibits a registered sex offender from applying for, or engaging in, employment which is "child related employment". While, in a particular case, such a restriction may have a substantial effect on a particular individual, it is clear that the fundamental purpose of that restriction is to protect the most vulnerable members of our society from sexual abuse. It could not be properly described as a punishment, nor does it serve any of the underlying purposes of a punishment for a criminal offence.

68 It is true that the "triggering event", for the characterisation of an offender as a "registrable offender", is a criminal conviction, and that such a person is, in the Act, referred to as an "offender". However, those factors do not thereby constitute the scheme, established by the Act, as being a penalty on the persons to whom it is applied. Rather, consistent with the protective purposes of the Act, the scheme is directed to applying to those offenders who have been found guilty, beyond reasonable doubt, of (or pleaded guilty to) particular sexual offences. By selecting the fact of conviction for a particular species of criminal offence as the criterion for its application, the Act does not thereby impose a punishment or penalty on those persons convicted of any of those offences.

69 For those reasons, I reject the submission made on behalf of the plaintiff that the provisions of the Act, in their application to him, constitute a penalty for the purposes of s 27(2) of the Charter. It therefore follows that I reject the application by the plaintiff to make a declaration of inconsistency under s 36 of the Act.

70 For the foregoing reasons, I summarise the conclusions, which I have reached in this case, as follows:

(1) The plaintiff is a registrable offender under s 6 of the Sex Offenders Registration Act 2004. It follows that the claim by the plaintiff for a declaration and injunction should be dismissed.

(2) The provisions of the Sex Offenders Registration Act 2004, in their application to the plaintiff, are not inconsistent with the provisions of the Charter of Human Rights and Responsibilities Act 2006. Accordingly the application by the plaintiff for a declaration of inconsistent interpretation, under s 36 of the Charter, is dismissed.

71 It follows that the proceeding should be dismissed. I shall hear counsel on the question of costs.

[3] See ss 29, 31(5)(a) and (b), s 31(6) of the Sentencing Act 1991.

[5] Potter v Minahan [1908] HCA 63; (1906) 7 CLR 277, 304 (O'Connor J); Sargood Bros v The Commonwealth & Anor [1910] HCA 45; (1910) 11 CLR 258, 279 (O'Connor J); Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 206-207 (Higgins J); American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd & Ors [1981] HCA 65; (1981) 147 CLR 677, 682-683 (Mason J); Coco v R [1994] HCA 15; (1994) 179 CLR 427, 436-438 (Mason CJ, Brennan, Gaudron and McHugh JJ); Al-Kateb v Godwin & Ors [2004] HCA 37; (2004) 219 CLR 562, 577 (Gleeson CJ), 643 (Hayne J).

[6] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

[9] [2009] VSC 244, [168]-[169].

[12] Compare R v Field [2002] EWCA Crim 2913; Gough & Anor v Chief Constable of the Derbyshire Constabulary [2002] QB 1213; R (McCann & Ors) v Crown Court at Manchester & Anor [2002] UKHL 39; [2003] 1 AC 787.

[13] Constitution Act 1975 (Vic) s 16.

[14] R v Momvilovic [2010] VSCA 50, [99]-[100].

[15] Victorian Hansard, 4 May 2006, p 1292-1293.

[20] Office of the High Commissioner for Human Rights, General Comment 16, 8 April 1988, [3]-[4].

[22] Communication Number 305/1988, UN Doc ICCPR/C/39/D/305/1988.

[24] In the Matter of an Application by Kevin Gallagher for Judicial Review [2003] NIQB 26, R (F a child) v Secretary of State for Justice [2010] UKSC 17; [2010] 2 WLR 992; R v Field [2003] 3 All ER 769.

[25] R v CLB [2010] ABCA 134; R v Warren [2010] ABCA 133, [21], [28]; R v Dick [2008] ONCA 309, [143].

[26] Smith & Anor v Doe [2003] USSC 1853; (2003) 538 US 84;155 LEd number 2D 164, especially at 185.

[27] Application by Ibbotson against the United Kingdom (1998) 27 EHRR CD 332; Application by David Adamson against the United Kingdom (1999) 28 EHRR CD 209.

Offences Registration Act 2004

Human Rights and Responsibilities Act 2006

Offenders Registration Act 2004

Justice Legislation (Further Amendment) Act 2006

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

New Zealand Bill of Rights Act 1990

At a glance

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Cases Cited (8)