Citation: O'Neill v Commissioner of Police [2020] NSWSC 1805
Court: Supreme Court of NSW
Date: 4 December 2020
Judge(s): Fagan J
Background
The plaintiff sought judicial review of an order made by a Local Court magistrate at Fairfield on 30 May 2019. The magistrate made an order under section 3E of the Child Protection (Offenders Registration) Act 2000 (NSW), declaring the plaintiff a registrable person. That status carries significant obligations, including annual reporting of extensive personal information to police for eight years, compulsory attendance at a police station, and restrictions on domestic and international travel.
The Commissioner of Police had relied on two minor offences committed by the plaintiff in September 2018: driving with an illicit drug present in his blood, and possessing a prohibited drug. Neither offence involved any child victim or conduct directed at children. The plaintiff consented to the order at the Local Court hearing, represented by a solicitor.
The summons for judicial review was filed well out of time, but the Supreme Court extended time having regard to the merits of the application.
Legal Issues
- Whether the document filed in the Local Court on 19 October 2018 constituted a valid application under section 3E of the Offenders Registration Act.
- Whether any valid application was filed within the 60-day time limit prescribed by section 3E(3).
- Whether the Local Court had jurisdiction to make the registration order in the absence of a properly constituted application.
- Whether section 62 of the Local Court Act 2007 could cure non-compliance with the statutory time limit.
- Whether the magistrate was required to take into account the mandatory considerations in section 3AA before making the order.
Decision
Issue 1: Whether a valid application under section 3E was filed
The court held that an application under section 3E must be issued by the Commissioner of Police and filed in the Local Court in conformity with section 46 of the Local Court Act 2007, which governs proceedings in the Local Court's special jurisdiction (at [14]). The document filed on 19 October 2018 did not invoke section 3E of the Offenders Registration Act at all. Instead, it expressly invoked a section of an entirely different statute, the Child Protection (Offenders Prohibition Orders) Act 2004. The court found that the document as filed was not a valid application for a section 3E order (at [19]).
Issue 2: Whether the 60-day time limit was met
The court found that any application relying on the plaintiff's drug-driving offence had to be filed by 5 January 2019, and any application relying on the drug possession offence had to be filed by 9 September 2018. No compliant application was filed by either date or at any later time (at [15]-[16]). Although there was an exchange before a magistrate on 20 November 2018 touching on the nature of the document, no leave to amend was sought or granted, and the document was never in fact amended (at [21]).
Issue 3: Whether the deficiency could be cured
The court rejected the submission that section 62 of the Local Court Act 2007 could excuse the deficiency. That provision addresses non-compliance with requirements of the Local Court Act itself; it does not empower the court to disregard non-compliance with the 60-day time limit fixed by section 3E(3) of a different statute (at [31]-[32]). Accordingly, there was no properly constituted proceeding before the Local Court and the magistrate had no jurisdiction to make the order.
Issue 4: Failure to consider mandatory statutory factors
The court also noted a separate ground on which the order was amenable to being set aside. The magistrate did not take into account the mandatory considerations listed in section 3AA of the Offenders Registration Act, which must be applied when determining whether a person poses a risk to the lives or sexual safety of children. Neither the prosecuting sergeant nor the plaintiff's solicitor drew the magistrate's attention to that section (at [30]). The court expressed significant doubt that the scant material tendered would have satisfied the test in section 3E(2)(a) had section 3AA been properly applied, but it was unnecessary to decide that question given the more fundamental jurisdictional defect.
Orders Made
- Time extended for filing of the summons up to and including 14 July 2020.
- The decision and order of the Local Court at Fairfield made on 30 May 2019 under section 3E of the Child Protection (Offenders Registration) Act 2000 quashed pursuant to section 69(3)(a) of the Supreme Court Act 1970.
- Declaration that the plaintiff did not become a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 and the Child Protection (Offenders Prohibition Orders) Act 2004 as a result of the order purportedly made on 30 May 2019.
Key Takeaways
- Under section 3E of the Child Protection (Offenders Registration) Act 2000, an application for a child protection registration order must be issued by the Commissioner of Police and filed in the Local Court within 60 days of the relevant sentence, in conformity with section 46 of the Local Court Act 2007. A document that invokes the wrong statute entirely does not satisfy this requirement (at [14], [19]).
- The Supreme Court confirmed that section 62 of the Local Court Act 2007 cannot be used to overcome non-compliance with the 60-day filing deadline in section 3E(3), because that provision is limited to curing procedural irregularities under the Local Court Act itself (at [31]-[32]).
- A purported oral amendment by court staff or informal indorsement by a magistrate on a document does not constitute an actual amendment of a filed application, and in the absence of a formally amended document, the original defective filing remains (at [26]-[27]).
- Section 3AA of the Offenders Registration Act prescribes mandatory considerations that a magistrate must address when determining whether a person poses a risk to the lives or sexual safety of children. Failure to take those considerations into account is a separate ground on which a section 3E order may be challenged (at [30]).
- Fagan J observed that section 3E confers an "extraordinary jurisdiction" capable of being triggered by minor offences entirely unrelated to child safety, and that without a relevant conviction the Commissioner would typically require substantial evidence, likely including professional psychological or psychiatric opinion, before a magistrate could be satisfied of the risk specified in the section (at [6]-[7]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004
- Child Protection (Offenders Registration) Act 2000
- Local Court Act 2007
- Supreme Court Act 1970 (NSW)
Cases
- Not stated