CHILD SEX OFFENDERS REGISTRATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 July 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (19:59): I rise to speak on the Child Sex Offenders Registration (Miscellaneous) Amendment Bill. I indicate that I will be the lead speaker for the opposition and, subject to consideration of some issues that we would seek response on from the government, foreshadow that the Liberal Party is likely to move some amendments to this bill in the Legislative Council. The importance of this bill does not escape the attention of the opposition to the extent that all legislation, of course, is important, but the circumstances leading up to the presentation of this bill to be expeditiously dealt with in this house are well known to members of the house, and the opposition notes the significance of this legislation.

I will say as a general comment—it is sometimes unwise to make general comments—that the legislation that is proposed here is not a panacea for the resolution of a number of matters which, I think, the government has to acknowledge have been conducted in a most inept and inappropriate manner in relation to the protection of some children in this state and which have been exposed in recent times; nevertheless, we in the opposition are always mindful of the importance of trying to develop strategies and processes, sometimes legislative, to arrest the evils that exist in the community and where behaviour needs to be curtailed or conduct contained.

Members would be aware that this is a bill which amends provisions of the Child Sex Offenders Registration Act 2006. Mr Speaker, you were here and were, I think, probably the sponsoring mover of this legislation at the time. Certainly, it was important legislation. It was designed with the effect of requiring child sex offenders to register with the Commissioner of Police. Those persons were known then as registrable offenders and there was a period of registration that was mandatory, depending on the class of offence that they had committed. It was mandatory for eight years, 15 years or life, if a person committed a class 1 or 2 offence as specified in the act. As we are currently briefed, there are approximately 1,400 offenders registered in South Australia.

So, we are seven years down the track and the circumstances have prevailed where there needs to be some amendment. Registrable offenders are required to make, under this legislation, an initial report to SAPOL of certain personal information. They then are obliged to report annually and provide updated information to SAPOL when certain information changes.

This is legislation which is consistent with schemes around Australia. There is a Victorian Law Reform Commission report, dated 2012, which attracted my attention, in fact, some time ago to consider what we might do in some amending legislation and which became the subject of some private members legislation which I was looking at at the time.

Importantly, there has been the recent report of former Justice Debelle, inquiring into the conduct of a number of parties, including members of the government and the Department for Education personnel and others associated with a western suburbs school, and there are consequential recommendations from that report. There has been legislation under development over the last two years and, obviously, the addition of these reports has been taken into account. So there are a number of areas.

In summary, this bill will: (1) strengthen the reporting requirements under the act; (2) create a new category of a serious registrable offender, for whom the Commissioner of Police will have enhanced monitoring powers, including the power to order electronic tracking, search premises and require more frequent reporting; (3) amend the Bail Act 1985, so that unless a bail authority is satisfied that a person accused of a child sex offence poses no risk to the safety and wellbeing of children, the accused will be subject to a bail condition that they cannot engage in child-related work; (4) ban all registrable offenders from working as taxi or hire car drivers; (5) update the list of commonwealth child sex offences that trigger operation of the state act; (6) for a limited category of child sex offenders, empower the Commissioner of Police to modify the operation of the act; (7) strengthen provisions so that persons charged with a child sex offence, or suspected of committing a child sex offence, must provide police with details of their employment; and (8) empower police to contact employers to verify the information provided by the accused and to notify the employer of the charge.

The bill proposes to create a new category of offender called a 'serious registrable offender' and this new category features: (1) on at least three separate occasions, a class 1 or class 2 offence has been committed; (2) on at least two separate occasions, a class 1 or class 2 offence against a person or persons under the age of 14 years has been committed; or (3) there has been a declaration to be a serious registrable offender. Such a declaration can be appealed in the administrative and disciplinary division of the District Court.

What are the features, then, of a serious registrable offender, which is the feature of this new legislation? The person who has been declared a serious registrable offender is liable to: (1) have their premises searched by an authorised police officer; (2) more frequent reporting; and (3) a condition that they wear or carry an electronic tracking device. Members would be familiar that electronic tracking devices and/or electronic devices are used for the detention of some persons, most particularly when on parole or when in home detention. It is a way, of course, as it suggests, of tracing the movements of the person who is the subject of the order and is certainly something that has been very cost effective.

In fact, I can recall sitting on a juvenile justice inquiry committee chaired by the Hon. Bob Such. This was something that we felt was important in giving those the opportunity of home detention as distinct from being in custody, that they have an opportunity to serve time in home detention. The electronic device, of course, alerts the authorities in the event that someone were to leave a specified area. Usually, as I understand the operation of this electronic device, it would register some alarm in the event that a person moved further than a certain distance away from the home block. The tracking device was attached to a limb of the person under surveillance. It was a non-invasive, relatively cheap way of keeping people under surveillance.

At present, we are advised the commissioner currently does not have access to the technology to implement electronic tracking of offenders and there are no plans to do so. Distinct from tracking people if they move from a certain distance from the homing part of the apparatus, this is a different concept, that is to be able to track them as they move from a certain place. I am not sure why that is the case. I thought that we could all be identified just by where we are placed under satellite surveillance with our mobile phone. I do not know; perhaps the relevant authorities and the commissioner have not caught up with modern ICT. I am not quite sure about that. In any event, that is a matter, of course, for the resources to be made available.

The amendments place more discretion with SAPOL and the police commissioner to tailor reporting requirements and conditions around circumstances of individual offenders; the opposition supports this. This would support a risk-management approach and the resources to more efficiently target high-risk offenders.

There is an aspect of monitoring, which is the subject of this bill. Clauses 12 and 13 requirements on reportable contact are somewhat ambiguous, but the legislation specifies that contact must be reported if it occurs on three occasions within a 12-month period. A number of the opposition, from memory—certainly, the Hon. Stephen and myself—were provided with briefings on this. I cannot recall whether there were others present at the time, but we thank those who did provide the briefings on this.

It does seem a little unclear why the supervision should be attracted to obligations under this act after the events of numbers of occasions. What we understand as the general concept is that the police have registered their concern, that they want to avoid over-reporting. I think that what they mean by that is that, if there is some accidental interaction momentarily with a child by a registered offender, they are trying to eliminate that by suggesting that there is a threshold of a multiple number of occasions before the obligation kicks in. That is the way I understand it. We will have a few questions in relation to that.

In essence, the bill, however, rests significant discretion in the police in circumstances where one would expect that would be exercised by a court. I would like to record the opposition's concern in relation to a number of these, which have been identified by our shadow attorney, the Hon. Stephen Wade, and I will record these for the benefit of Hansard.

Proposed section 10A rests discretion in the commissioner to declare an offender to be a serious registrable offender if satisfied that they are at risk of committing further class 1 or class 2 offences. Once a declaration is made, the commissioner may impose additional reporting requirements. The declaration may be for a specified period, which would be extremely long if a person is subject to life registration.

Section 48 requires that a written notice is to be given to the registrable offender 'as soon as practicable' but does not specify a period before the declaration takes effect. While a decision to impose a declaration is appealable, the declaration can have immediate effect. You could be served the declaration as the police come in to search your premises. There is a question from the opposition that the affected person should have the opportunity to access their appeal rights before it takes effect. That is an area of concern for the opposition.

Proposed section 66A allows the commissioner to modify reporting obligations of offenders. To guard against obligations on offenders being lightened on the basis of resources rather than risk, a declaration where it applies for more than a year or a second declaration perhaps should be granted on application to a magistrate. Under the spent convictions legislation, a similar key discretion is vested with a magistrate rather than the police.

Also, proposed section 66E requires the registrable offender to obtain the commissioner's written consent before changing their name. Under the current bill, this decision is unable to be appealed by the offender. Proposed section 21 gives police the flexibility to direct where the annual reporting of an offender is to take place, including at the premises of an offender.

So there are some areas of concern with this, remembering that this is not a regime or a scheme of registration which prevents child sexual abuse. Of itself it does not currently impose as a general rule provision for any onerous burden on the part of the offender. Essentially, it is a recording exercise. They register, provide addresses, provide notice of change of address, provide information in relation to their whereabouts and activity.

I think that the 2006 legislation could be seen as an opportunity at least for our law enforcement agencies to be able to check if somebody is on a list readily and be able to have some access to reliable and contemporary information which, if accurate, gives some aid to the law enforcement agencies to act quickly and respond to allegations when they are made in respect of parties who have shown some history of offending. It is an accessory to the tools of enforcement used by the agencies. It is not some panacea of protection.

It is not surprising to me or members on this side of the house that there have been events in the past few years when there has been exposure of an utter failure on the part of government and/or agencies to protect children in certain circumstances. I have said this many times but I will place it on record again in this debate on this legislation: at no time is it reasonable for anyone to accuse a government of being responsible for the sometimes obscene conduct that adults (often parents) inflict on their children. That is something that parents and/or guardians who are frequently the perpetrators of this type of offence should take absolute responsibility for and, where they are unwilling or unable to do that, then they should have certain punishment or incarceration or treatment required.

Where it is reprehensible is in circumstances where a government or its agencies are aware of either an offence having occurred or a child being at risk and they fail to act; that is a disgraceful circumstance. This most recent Debelle inquiry into the events that occurred in a western suburbs school highlights the utter failure of the government in that regard, and they can come up with 100 excuses in this parliament or outside to try to cover for those who have failed children in these circumstances. In my view, that is where they are accountable and need to act responsibly, and all the twisting around in trying to avoid some kind of accountability only casts the government in lower estimation in the eyes of the public and I think politically they will suffer in due course.

In the meantime, they have a legal, moral and social obligation to ensure these children are protected. We will support governments where they need to be aided with extra legislative tools to do that where there is again some balancing of the right for people to have some peaceable recovery and rehabilitation. We respect that. Child sex offences are heinous crimes and one only has to look at those who are in custody in our prison system to understand the pecking order of criminals. These are the lowest of the low and they are treated as such in our correctional services facilities, sometimes to the extent that they need to be provided with special protection.

Certainly, they do not enjoy the status of criminal activity as do other crimes where children are not victims. Where children are concerned, particularly with sexual offences, I think the community within Correctional Services identifies this as being the lowest form of human conduct, where people have preyed on the vulnerability and exposure of young children, and they are sometimes treated very badly themselves as a result.

Nevertheless, the opposition thinks it is important to ensure that people are not badged or scarred or tattooed—publicly, I mean—in the sense of having to wear the odious descriptor of being a child abuser, that they have a chance to rehabilitate if they are prepared to undertake treatment and/or counselling and advice, and we should try to assist them. So this question of having people tagged and traceable under schemes of registration or electronic surveillance does not fit comfortably with that.

However, it is a balance, and from the opposition's point of view, in 2006 and even with these amendments, we are happy to accommodate that option, although there are some aspects that we may consider moving to amend in the other place. We will not hold up the debate here. I will have a few questions to ask on this matter in the committee stage, but I otherwise indicate that the opposition will not oppose the reading of this bill in the House of Assembly.

Mr VAN HOLST PELLEKAAN (Stuart) (20:21): I will not be too long, but I do want to make a contribution. This is a very important issue and a very important piece of legislation.

The member for Bragg has outlined the opposition's position and that of the shadow attorney-general very well, so I will not go over all that. However, I will just put on record that I have no doubt that all members of this place want to get this issue right, that regardless of the wide range of views in this house on a wide range of social issues, I am sure we all come together very strongly and very united in the view that child sex offences are completely inappropriate and that the way convicted child sex offenders are dealt with must be done completely appropriately.

I think the last few sentences made by the member for Bragg, our lead speaker, just a few moments ago were quite important in the sense that we are not trying to permanently brand or scar people, or cut them out of society, but certainly there are some things that you just cannot get away with and there are some things that just cannot be tolerated, and the risk of them happening again cannot be tolerated as well. So this is a very important but very difficult piece of legislation.

There are approximately 1,400 offenders registered in South Australia at the moment, and the aspect of this issue that I would like to touch on is that of police resources. Speaking not only as a member of this place but also as shadow minister for police as well as shadow minister for corrections, because there is a significant overlap here with that as well, the bill, as proposed, significantly increases the workload on police. Now, that is okay; being a police officer, being a police cadet, being a police commissioner is a hard job, and they accept all that. However, getting the police to do what would often be expected of a court is very likely to require additional police resources if it is going to be done well.

Police are already very stretched by changes to laws and registration that have come through this parliament in the last several years. Police tell me on a very regular basis that changes to the Summary Offences Act, the Firearms Act, the Serious and Organised Crime Act, the Forensic Procedures Act, and the Criminal Law Consolidation Act have all made their lives a lot tougher.

As I said, we are not here to make the lives of police officers easier, but the reality is that if we draw them into the implementation of all of these laws, and many times we draw them into work that is well away from their primary front-line duties without the commensurate resources, then there is an extra cost associated with this sort of legislation. I want to point out very directly that I see that as a risk in this bill as well.

Police will essentially be working very hard on monitoring, reporting and on management of known offenders, and, by definition, the majority of that work is going to take them away from the work which the majority of South Australians actually want them to be doing; that is, not managing people who have already been convicted of offences—that should not be the primary job of the police—but actually going out and finding other people and stopping them from committing offences, and if they have committed offences, apprehending them and passing them onto the courts and potentially to the Department for Correctional Services.

I would just like to wind up there and just make that point. The Liberal opposition is steadfast in its desire to find an efficient, effective, responsible way to manage convicted sex offenders, but it is not as easy as saying, 'Well, we'll just give police more work do to and they will do more monitoring, more reporting and more work away from their primary responsibilities,' because then there will be another cost that goes with that.

As the member for Bragg mentioned, there is a series of issues that the opposition wants to delve into, and the opposition will not oppose this bill here in this place, but may well propose some amendments in the other place.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (20:27): I thank the honourable member for Bragg and the honourable member for Stuart for their contributions in this matter. I just wanted to say a couple of things briefly. First of all, it is again unfortunate that if there are to be amendments to this bill, they are not being produced and filed in here so that we can have a chat about them, and so that the people in the other place can have the benefit of whatever collective wisdom this chamber can offer them, because it has been observed by others (not me) that that might help them on occasions.

The second thing I wanted to say was we need to bear in mind something very important about these offenders: these offences are not like, for example, an assault. They are not even like a murder, where an otherwise unremarkable citizen can be provoked through circumstance to behave in a way which is completely uncharacteristic of that person.

This behaviour is so far outside of the normal parameter of human behaviour that it is often the case—not always; I accept that—that these individuals are hardwired, if I can use that term, to behave in this way. I give the example of Mr O'Shea. Anybody who knows anything about Mr O'Shea's history would know that he has been a serial offender, and he is not the only one. There are a number of these people who have offended in a way which is repetitive.

There are certain distinctions between this particular type of offending and some other types of offending, which have a number of these offenders more likely to repeat their offence than might be the case, perhaps, for some other types of offence, which might be a once-in-a-lifetime event. So, I think there are good reasons for us looking at this matter very seriously, for that matter, because what has troubled me for some time is the appropriate balance between the obvious desire that in a civil society a person's liberty should be protected at all costs and, if they are imprisoned, they should serve their sentence and then be released.

That is a very important principle of any civil society. On the other hand, if a person's behaviour is so predictable by reason of long experience that one has to be concerned that even after serving a sentence—and, therefore, not subject to any control particularly under the parole system or anything else—it is highly likely on the basis of a person's history that they may reoffend, clearly we need to try and do something to protect society and, in particular, the innocent individual who might happen, through no fault of their own, to be in the same place at the same time as one of these people.

There are very serious issues here that need to be considered, and it is not easy, because at one end of the spectrum, after a certain point in time, you might argue that an indeterminate sentence is appropriate. Now that is an extremely harsh outcome for anybody but, on the other hand, you have to weigh up the risk to the community of some child becoming yet another victim in a person's career of successive victims. So, none of this is easy. Having listened to the member for Bragg, I am not clear exactly on what sorts of amendments are being foreshadowed and I am not inviting a conversation about that, because no doubt in the fullness of time I will see whatever it is that pops up in another place, as is usually the case.

Ms Chapman: I might ask some questions tomorrow when you are in committee.

The Hon. J.R. RAU: Okay. I wanted to give a bit of news to the honourable members here tonight.

The DEPUTY SPEAKER: Is it good news?

The Hon. J.R. RAU: I think it is good news, Mr Deputy Speaker. The good news is this: as a result of this matter being introduced into the parliament, I think on 3 July; and, as a result of SAPOL engaging with the Attorney-General's department since that time; and by reason of the fact that the legislation is now open, and I would have been doing this at the same time, but this has been accelerated slightly because we are trying to move through the timetable—

Ms Chapman interjecting:

The Hon. J.R. RAU: That is no criticism of the whip at all; that is just the way that it has happened. I intend to be tabling a couple of amendments tomorrow, and I wanted to make a general observation about what those amendments will deal with, and this is something that has been done in reaction to police turning their minds—

Ms Chapman: Even when you hurry, you can get it wrong.

The Hon. J.R. RAU: I am saying I think we have this right, but since the bill was introduced, SAPOL has said, 'Look, there is another matter that has occurred to us which maybe you can include while it is open.' I have considered it and I thought it was not a bad idea. Just so everyone is not taken by surprise tomorrow, I am proposing to file some amendments when we get into committee stage which basically deal with the situation where we have one of these offenders who goes AWOL, and the police do not know where they are any more, and they are not reporting—they not compliant, in other words.

So, we have one of these individuals, they are on the register, they become non-compliant and the police are unable to find this person. In those circumstances, the police say the fact of them being non-compliant with their reporting regime, and the fact of them being at an unknown address, or whatever, means that the risk profile for that individual has lifted considerably.

In those circumstances, the police have said that they should be in a position where, in contravention of the primary rule here where this information is kept confidential, they should, in the circumstance of the person going basically off the reservation, in the public interest be able to say, 'Look, we need to know where this individual is' and publish an image of that individual and the name of the individual in order to ascertain where they are so they can be brought back under control.

Mr van Holst Pellekaan: And say why they need to find that person?

The Hon. J.R. RAU: Yes, the honourable member asked me can they say why. The amendment would authorise them to say whatever is necessary for them to say so that they could, in effect, seek public assistance in identifying the whereabouts of an individual who had become noncompliant. I am just putting that on the table so people know that that is something that has been raised. It occurred to me, given the fact that the bill is open and I have had that request made of me, it would be appropriate for the parliament to be aware of that: number one.

Number two: I will be bringing a form of words in here tomorrow which will reflect that. It is obviously a matter for this house and, given the way these things often go, presumably the other place to consider what they wish to make of that. Otherwise, I think we are concluded with the second reading aspect of this and I would wish to have the matter adjourned now so that we can deal with the committee stage of this particular bill tomorrow, or whenever it is appropriate for that to occur.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Progress reported; committee to sit again.

At 20:41 the house adjourned until Tuesday 24 July 2013 at 11:00.