Bills

Child Sex Offenders Registration (Control Orders and Other Measures) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:53): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Child Sex Offenders Registration Act 2006 (SA) (the CSOR Act) requires child sex offenders to register with the Commissioner of Police ('registrable offenders'). Depending on the offence or offences for which the registrable offender has been convicted, registration is mandatory for 8 or 15 years or life, or for a discretionary period specified in a court order. Under the CSOR Act these registrable offenders are required to make an initial report to the South Australian Police (SAPOL) of certain personal information, must report annually, and must update SAPOL when certain personal information changes. Registrable offenders are precluded from undertaking child-related work.

Amendments to the CSOR Act passed by Parliament in 2013 tightened the reporting requirements and provided SAPOL with increased powers to monitor registrable offenders and assess their compliance with the CSOR Act.

Although child sex offenders are subjected to the reporting requirements under the CSOR Act, the CSOR Act was designed as a monitoring tool. While under the CSOR Act a registrable offender is precluded from engaging in child-related work, there are few other limitations placed upon them.

The Child Sex Offenders Registration (Control Orders and Other Measures) Amendment Bill 2014 ('the Bill') inserts a new part into the CSOR Act such that SAPOL will be able to apply to the Magistrates Court for a new type of order, called a Control Order, to be made against any registrable offender. Under the Bill a Control Order made by the Magistrates Court will place restrictions and prohibitions upon a registrable offender. For example, a Control Order could, amongst other things, prohibit a registrable offender from associating with, or communicating with, a specific person or persons of a specified class, such as children under a certain age, and the Control Order could prohibit a person from being in the vicinity of a specified place or place or premises of a specified class, such as a school.

These new laws are in addition to current provisions contained in the Summary Procedure Act 1921 (the SP Act) concerning paedophile restraining orders.

The Bill inserts new provisions in the CSOR Act such that on application by SAPOL, the Magistrates Court may make a Control Order against any adult registrable offender if the court is satisfied, on the balance of probabilities, that the registrable offender poses a risk to the safety and well-being of one or more children, or children generally, and that the making of the order will reduce that risk.

In making the Control Order, the Magistrates Court must take into account the circumstances and seriousness of each offence in relation to which the person is a registrable offender, including the age of the registrable offender when those offences were committed, the age of each victim of the offences when they were committed and the difference in age between the registrable offender and each victim.

The Magistrates Court must also take into account the period of time since each offence was committed, the registrable offender's total criminal record, the effect of the order sought on the registrable offender in comparison with the level of the risk that a further registrable offence may be committed by the person, whether the registrable offender has breached the CSOR Act or breached a paedophile restraining order, a child protection restraining order or a registered foreign restraining order under the SP Act and the personal circumstances of the registrable offender, such as age, accommodation, employment, physical and mental condition and integration into the community.

Under the Bill, a Control Order may prohibit or restrict any conduct including associating with, or communicating with, a specified person or persons of a specified class (such as children under a certain age), being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class (such as a school), undertaking specified employment or employment of a specified kind or other conduct of a specified kind (such as accessing or using the internet or a computer).

The Magistrates Court will be able to make interim Control Orders and will be able to vary or revoke a Control Order. In addition, the Magistrates Court may make a Control Order without being satisfied of the matters I have spelt out if the Commissioner of Police and the registrable offender consent to the making of the order and it is in the interest of justice to make the order.

In considering whether it is in the interest of justice to make the order without being satisfied of the matters set out above, the Magistrate Court may have regard to whether the registrable offender received legal advice, has an intellectual disability, is illiterate or not literate in the English language, is the subject of a guardianship order or may not, for some other reason, understand the effect of consenting to the order.

Under the Bill if the Magistrates Court makes or varies a Control Order (or an interim Control Order) and the registrable offender is not present in Court at the time, then the Commissioner must cause a copy of the order to be served on the registrable offender.

A Control Order (or a variation of a Control Order) does not take effect until it is served. Under the Bill, a police officer can require the registrable offender to remain at a particular place for so long as may be necessary for the order to be served.

If a registrable offender refuses or fails to comply with the requirement, or the officer has reasonable grounds to believe that the requirement will not be complied with, the police officer may arrest and detain the registrable offender in custody (without warrant) for so long as may be necessary for the order to be served or 2 hours or such longer period as is approved by the Court, whichever is the lesser.

A Control Order will only remain in force for a maximum of five years or a lesser period as specified in the Control Order and a breach of a Control Order is a criminal offence with a maximum penalty of five years imprisonment.

The Bill also makes a number of minor amendments to the CSOR Act to provide further clarity concerning a number of other provisions.

When the CSOR Act was last amended in 2013, reporting timeframes were reduced and tightened. However, in error, section 18 of the CSOR Act was not amended. As such, the Bill amends section 18(1)(a) to reflect the tightened timeframes.

Section 66L was inserted into the CSOR Act and states as follows:

66L—Information to be provided to parents and guardians

A registrable offender who—

(a) generally resides in the same household as that in which a child generally resides; or

(b) stays overnight in a household in which a child is also staying overnight,

must tell a parent or guardian of the child who generally resides in the same household as the child—

(c) that he or she is a registrable offender under this Act; and

(d) what the offence or offences were that resulted in him or her becoming a registrable offender.

Maximum penalty: $25,000 or imprisonment for 5 years.

It is Government's view that this information should be provided by the registrable offender prior to staying overnight or generally residing in the same household as a child and as such, the Bill makes amendments to section 66L to require this.

Furthermore, it was Government's intention that each parent or guardian who resides with the child be informed. As such, the Bill amends section 66L to ensure this is clear.

In addition, the Bill inserts a further requirement into section 66L such that a serious registrable offender who has, or intends to have, reportable contact with a child must, as soon as practicable after the contact (or after forming the intention to have contact) tell an 'available responsible adult'—

that he or she is a serious registrable offender under the CSOR Act; and

what the offence or offences were that resulted in him or her becoming a serious registrable offender.

The same penalty will apply, a maximum penalty: $25,000 or imprisonment for 5 years. An 'available responsible adult' in this respect means—

a parent or guardian of the child that is known to the serious registrable offender; or

an adult person apparently responsible for the supervision of the child at the time of the contact or when the serious registrable offender forms the intention to have the contact.

A serious registrable offender is defined under the CSOR Act as—

a registrable repeat offender; or

a registrable offender who has been declared by the Commissioner of Police to be a serious registrable offender.

A registrable repeat offender is a registrable offender who has committed—

on at least 3 separate occasions, a class 1 or class 2 offence; or

on at least 2 separate occasions, a class 1 or class 2 offence provided that on each occasion the victim was under the age of 14 years.

Under the CSOR Act at the moment, these offenders have to report details of any 'reportable contact' with a child to SAPOL.

Under this amendment, when such a report is made by a serious registrable offender in circumstance such that the offender should have informed the parents or guardians of their status as a registrable offender, SAPOL will be able to follow up with the parents and ensure this has happened, thereby confirming that the parents are aware of the offender's criminal history as a child sex offender.

This reporting requirement should act as a deterrent to help prevent grooming; grooming of a child and also grooming of a family in order to gain access to a child.

Under section 66F of the CSOR Act the Commissioner of Police is able to publish certain details about a missing registrable offender on a website. The section does not specifically state that the Commissioner of Police can publish the fact that a person is a registrable offender under the CSOR Act, although it is clearly implied. For clarity, the Bill makes an amendment to section 66F to make this abundantly clear.

Under section 66J of the CSOR Act the Attorney-General is able to give a person consent to re-publish identifying information published by the Commissioner of Police on the website. Given the sensitivity of the information, and the fact that re-publication in the absence of consent is an offence, conditions should be attached to the consent.

Therefore, the Bill amends section 66J to provide for such.

In addition, consent to re-publish should not be given unless the Attorney-General takes into account those same matters that the Commissioner takes into account when the Commissioner makes a decision to publish. As such, the Bill amends section 66J to reflect this.

When the Commissioner makes a decision to publish the personal information on the website the Commissioner is protected from any civil or criminal liability or from any claim of a breach of confidentiality or secrecy imposed by law. The Attorney-General who gives consent for the information to be re-published elsewhere should be afforded the same protection. As such, the Bill amends section 66J to provide this protection.

In addition, if the Commissioner of Police removes the information from his website (for example, because the person is no longer missing or no longer under any reporting obligations under the CSOR Act) it is only fair that persons who have re-published the information also remove it. The Bill therefore makes an amendment to section 66J to provide for such removal.

The CSOR Act was amended in 2013 such that the definition of 'child-related work' from which registrable offenders are banned was expanded to include taxi and hire-car drivers. However, advice was received that the section did not make it beyond doubt that the ban extends to these roles entirely rather than to when the role involves contact with children.

As such, the Bill amends section 64 of the CSOR Act to make it expressly clear that registrable offenders cannot apply for employment, or be employed, as taxi drivers or hire-car drivers, regardless of whether they will have contact with children.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Child Sex Offenders Registration Act 2006

4—Amendment of section 9—Child sex offender registration order

This clause proposes to change the matters of which a court must be satisfied when making an order under section 9 requiring a person to comply with the reporting obligations of the Act. The clause substitutes the words 'safety and well-being' for 'sexual safety' so that the court must be satisfied that a person poses a risk to the safety and well-being of any child or children before making an order. This wording is used elsewhere in the CSOR Act so the change is being made for consistency.

5—Amendment of section 18—Change of travel plans while out of South Australia to be given

This clause proposes to reduce the period of extended stay outside South Australia that activates the requirement of the section to report the extended stay to the Commissioner of Police.

6—Amendment of section 64—Interpretation

This clause proposes to include work in connection with taxi services and hire care services as child-related work whether or not the work involves contact with a child. Currently taxi and hire care services are child-related work only if they involve contact with a child. Under section 65, it is an offence for a registrable offender to apply for or engage in child-related work.

7—Amendment of section 66F—Commissioner may publish personal details of certain registrable offenders

This clause proposes to clarify that information published by the Commissioner under the section (whether before or after the commencement of this subsection) may specify that the person to whom it relates is a registrable offender.

8—Amendment of section 66J—Publication, display and distribution of identifying information

This clause proposes a number of amendments to the offence of publishing, distributing or displaying (without having first obtained the written approval of the Minister) any information that is identifiable as the personal details of a person published by the Commissioner under section 66F.

The clause proposes to amend subsection (1) such that the publishing, distribution or display of such information may only be done in accordance with the approval of the Minister, which may be subject to such conditions as the Minister thinks fit. In determining whether or not to grant an approval, or the conditions to attach to an approval, the Minister may take into account the matters specified in section 66G(2) (as if the references to the Commissioner in section 66G(2)(f) and (h) were references to the Minister).

The clause proposes that no civil or criminal liability will attach to the Minister or the Crown by reason of a grant of approval where the Minister makes a grant of approval under the section in good faith.

The clause also proposes to require any person who has published identifying information on a website, or who is otherwise displaying such information, to take reasonable steps to remove the information in the event that the Commissioner of Police removes any or all of the personal details of a registrable offender from the website on which they are published under section 66F.

9—Insertion of Part 5C

This clause inserts new Part 5C as follows:

Part 5C—Control Orders

66JA—Court may make control order

This clause provides for the Magistrates Court to make control orders against a registrable offender on the application of the Commissioner of Police. The Court must be satisfied (on the balance of probabilities) that the registrable offender poses a risk to the safety and well-being of a child or children and that a control order will reduce that risk. Subclause (2) lists the matters to which the Court must have regard in deciding whether to make a control order and what the terms of a control order should be.

The Court may make a control order without being satisfied of the relevant matters if the Commissioner of Police and the registrable offender consent to the making of the order and it is in the interests of justice to make the order without being satisfied of those matters.

66JB—Terms of control order

A control order may prohibit or restrict any conduct, including associating with, or communicating with, a specified person or persons of a specified class, being present at, or being in the vicinity of, a specified place or premises or type of place or premises or undertaking specified employment or employment of a specified kind. A control order may also prohibit or restrict other conduct specified in the order.

If the Court makes or varies a control order in relation to a person, it must take all reasonable steps to explain to the person the terms of the order including the person's obligations and the consequences of failing to comply with the order.

66JC—Interim control orders

This clause provides that the Magistrates Court may, when considering an application for a control order, make an interim control order if the Court is satisfied that it is appropriate to do so in all of the circumstances.

66JD—Duration of control order

A control order remains in force for 5 years unless the Court fixes a shorter period. An interim control order remains in force for the period specified by the Court in making the order, or until further order of the Court.

66JE—Variation and revocation of control order

This clause provides for the Magistrates Court to vary or revoke a control order or interim control order on application by the Commissioner of Police or the person subject to the control order. The Court is only to consider an application if there has been a material change in circumstances relating to the registrable offender, the control order or the interim control order and it is in the interests of justice to consider the application.

66JF—Offence to contravene or fail to comply with control order

A person who, knowingly or recklessly, contravenes or fails to comply with a control order or interim control order is guilty of an offence which is punishable by a maximum penalty of imprisonment for 5 years.

66JG—Service of order

This clause requires the service of a control order on a person who is not present in court when the Court imposes a control order or interim control order in relation to the person, or varies or revokes a control order or interim control order on the application of the Commissioner of Police in relation to the person. An order imposing or varying a control order or interim control order that is required to be served under the clause will not take effect until the order is served on the person. The clause further provides that, for the purposes of serving a control order or interim control order on a person, the Commissioner of Police may require the person to remain at a particular place for so long as may be necessary for the order to be served. If the person does not, or will not in the reasonable belief of a police officer, comply with the requirement to remain at a place for service, then a police officer may detain the person for as long as is required for service of the order, up to a maximum period of 2 hours (which may be extended up to 8 hours by the Magistrates Court on application).

10—Amendment of section 66L—Information to be provided to parents and guardians

This clause proposes to amend section 66L to require a registrable offender who proposes to reside or stay overnight in a household where a child resides or will stay overnight, to tell a parent or guardian of that child (who generally resides in the same household as the child) that he or she is a registrable offender. This requirement will apply before the registrable offender may reside or stay in the household.

This clause also proposes to insert a new subsection requiring a serious registrable offender who has, or intends to have, reportable contact with a child to tell an available responsible adult that he or she is a serious registrable offender and what offence or offences resulted in him or her becoming a serious registrable offender. This must be done as soon as practicable after the reportable contact, or after forming the intention to have reportable contact. An available responsible adult is a parent or guardian of the child that is known to the serious registrable offender or is an adult person apparently responsible for the supervision of the child at the time of the contact or when the serious registrable offender forms the intention to have the contact. This new subsection carries the same maximum penalty, being $25,000 or imprisonment for 5 years.

Debate adjourned on motion of Hon. J.M.A. Lensink.