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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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CHILD SEX OFFENDERS REGISTRATION (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 23 July 2013.)

Clause 2.

The Hon. J.R. RAU: Mr Chairman, we are now in the committee stage of the bill and, as I foreshadowed yesterday, if it has not already been filed, certain additional material is going to be filed in relation to this, which hopefully will add some value. I appreciate that the member for Bragg has not seen these; they will be here in a moment. I am really in the chamber's hands. We could adjourn this committee on motion and deal with the other one while we get those amendments filed, if that would suit the honourable member, or I can talk about them.

Ms Chapman interjecting:

The Hon. J.R. RAU: The clauses involved are clauses 12 and 36, so we can get started, before we get to those.

The CHAIR: Are there any comments or questions on clause 2?

The Hon. R.B. SUCH: I am not wishing to digress too far from the general thrust of this bill, but I would like to ask the Attorney: is there any evidence that child sex offenders can actually be rehabilitated? I am getting mixed messages from so-called experts, and I think it is germane to this whole issue, because some of these people who are in Mount Gambier Prison correspond with me. I am not passing judgement on what they did or did not do and their being in prison, but what does concern me is that they will come out of prison at some stage.

There are a couple of issues. Is the program that is offered in prison effective? Are they required to do it? Is there any indication of the effectiveness of rehabilitating these people? I know when I was in Western Australia, I met the minister's people and they said that their chemical castration program works. I think it is important that members understand whether or not these programs that these offenders are being subject to here—we do not have chemical castration—are effective, or whether it is a case of 'once a paedophile, always a paedophile'.

The Hon. J.R. RAU: I thank the honourable member for his question, and I sort of touched briefly on this yesterday when we were discussing this matter. Unfortunately, I do not think that there is a simple answer to the honourable member's question, and I say that for a couple of reasons. First of all, the range of offenders who are captured by this concept goes to a wide range of offences. Bear in mind that a relationship between an adult person and a mid-teenager might result in that adult person being deemed for some purposes to be a sex offender.

I am not saying that that is a good thing, but that is transparently a fundamentally different thing from a person who is preying on five and six-year-old children. I am not defending it; I am not making the point that it is a good thing; I am simply saying, according to some definitions, they are all sex offenders but, clearly, there is a qualitative and quantitative difference between people at various points in that spectrum. That is point number one.

Point number two, which is, if you like, another dimension to point number one, is that each individual person obviously is different, and some people may be more amenable to education or training or something than others. The point I was trying to make yesterday, and it is only a partial answer to the honourable member's question, is that the anecdotal evidence I have seen suggests that the further the person is into the realm of committing offences with very young children, the more likely it is that their behaviour is entrenched. There are, unfortunately, a number of people in our prisons now who are a sad testimony to that fact.

I recently raised very much a similar question with the Chair of the Parole Board and she advised me that there is a group within the cohort of people who might be described as child sex offenders who are very intractable to any form of behaviour modification. I specifically asked her about chemical castration and she advised me—and this is obviously hearsay—that, in the United States where this had been tried in some places, the evidence sadly was that it did not stop their predatory behaviour: it merely changed how they went about it, without going into any more detail. So, I do not hold much store by that.

I guess another point I should make is that today we are not talking specifically in this legislation about rehabilitation of these characters, nor are we talking about punishment of these characters: we are talking about monitoring of these characters when they are, for whatever reason, in the community. That is what this is about. So, I am happy to say to the member for Fisher that I will try and get some further information about that topic.

I understand that the parliament has a new committee which the member for Fisher is chairing and which might seek some advice about some of these matters, and I extend any cooperation that I can on behalf of the Attorney-General's Department to provide information to the honourable member's committee, if the committee decides it wants to take itself down this track.

I think it is important for us all to keep in mind that what we are talking about here is the monitoring of these offenders. We are not talking specifically about their rehabilitation: we are saying, given that one of these characters is sitting in the community somewhere, what monitoring regime do we attach to that individual to minimise the risk of their reoffending and harming another member of the community?

Clause passed.

Clause 3 passed.

Clause 4.

Ms CHAPMAN: This is the amendment to incorporate new definitions by adding: criminal intelligence, reportable contact, registrable repeat offender and serious registrable offenders. The advent, under this bill, of a new registrable repeat offender and, in fact, a serious registrable offender we have canvassed in the debate. Can the minister explain the origin of the proposal to introduce criminal intelligence into this bill and the basis upon which that is being sought?

The Hon. J.R. RAU: I thank the honourable member for her question. I am advised that the reason for this is that, because we introduced in this bill the capacity for the police commissioner to make certain decisions, it was thought appropriate that some of the material upon which those decisions might be based, including criminal intelligence, needed to be explicitly dealt with in the legislation.

Ms CHAPMAN: By whom? Who thought it was a good idea?

The Hon. J.R. RAU: My advisers did.

Ms CHAPMAN: The police requested it?

The Hon. J.R. RAU: I am advised that they did.

Clause passed.

Clause 5.

Ms CHAPMAN: Clause 5 introduces new section 5A, which incorporates the provisions for criminal intelligence being utilised. Can the minister explain how that is going to apply differently to the use of criminal intelligence in any other assessment?

The Hon. J.R. RAU: I am advised it will apply in the same fashion as it does, for example in serious and organised crime or, even for that matter, I assume, the Liquor Licensing Act, or any other legislation which contains similar provisions.

Ms CHAPMAN: Who will determine whether the decision made under 5A(1) satisfies the public interest ground?

The Hon. J.R. RAU: I am advised that that decision, along with any other relevant decisions under this provision, is appellable to the District Court.

Ms CHAPMAN: So how is anyone ever to be apprised of whether criminal intelligence has been used, assuming it to have reached the threshold of being required on public interest grounds, and so be able to pursue any appeal?

The Hon. J.R. RAU: Mr Deputy Speaker, I understand the question, but this is no different to what goes on with liquor licensing, for example, where the liquor licensing commissioner has to make a determination as to whether the fit and proper person provision, which is a requirement of the licence being issued, has been established. In the context of that the commissioner may be advised, for instance, that the proposed licensee is an associate of a group of criminals, but not themselves a criminal.

That is something that they do take into account and it is something that they do not disclose because to disclose that would actually tend to reveal (a) that the police had information about this other group, and (b) even more seriously, it may actually tend to reveal the methods by which the police have been accumulating that information. There is nothing novel about criminal intelligence being a protected thing.

Presumably, I think we need to think about a person considering themselves to be aggrieved by this. Let us bear in mind the purpose for which this intelligence is being used. The intelligence is being used in respect of a person who is a registered offender, in other words they have already committed—

Ms Chapman: Sexual offences.

The Hon. J.R. RAU: Sexual offences, yes. It is not like they are picking somebody out of the phone book. These are people who are known child offenders and what this says basically is if the commissioner has intelligence that suggests that that offender is misbehaving, the commissioner should be able to take steps to modify the regime of monitoring of that individual according to that intelligence. That is all it says.

I guess it would be possible for a person to consider themselves to be aggrieved by that to say they want to appeal that decision to the District Court and it would then be a matter for the judge of the District Court to consider whether they had good grounds, but I take the point and I do not run away from the point that, if it was as simple as that for the aggrieved person to then get their hands on the criminal intelligence so that they could mount an appeal, every single person across all acts of parliament who has got any influence on criminal intelligence would admittedly appeal any decision so that they could fish out of the police all of the criminal intelligence they are holding, and that is a manifestly absurd and unhelpful outcome.

Ms CHAPMAN: That may be the commentary of the Attorney, but the use of criminal intelligence is a novel new approach to this area of monitoring. As it has been pointed out, this is not an enforcement or a prosecution or investigation of other offences. In fact, this new enhanced monitoring process, which is being strengthened as identified, is one in which it will no longer be necessary for the enforcing officers to form an intent that there is an imminent offence.

If we were dealing with someone who was a registered sex offender and there was evidence to suggest, particularly whether or not it is of criminal intelligence, that he was engaging in some kind of paedophilia ring in some internet offences—for example, they are under surveillance; this is the sort of thing that obviously police keep an eye on, and it is a good thing they do—they would be able to utilise some of that. Of course that would be, on the face of it, a circumstance where the threshold would be reached; namely, that there is a reasonable belief that this person is participating in activity that would lead to an offence. They would have that threshold and they would not need to use the criminal intelligence for the purposes of this offence.

If we are dealing with drug dealing, and other activity that we are trying to modify or at least curtail in other legislation in which criminal intelligence rules apply, very much on the face of it that would have merit and we have supported legislation along that line, but here we are talking about a monitoring role. These people have not done anything else wrong. They are out at large and it is deemed, we all agreed back in 2006, an important extra tool to keep an eye on them, that they should regularly report and be able to be kept to that extent on a database and be useable.

Here we are talking about changing the rules; that is, removing the need to be able to have any threshold of an obligation to form an intent that there is some breach or activity that could lead to a further breach of the law, and you are now asking us to add in the criminal intelligence. That is why I am asking.

The Hon. J.R. RAU: I am asking the parliament to do that and, if it turns out that members in this chamber, or members somewhere else, want to explain to the public why they want to take this out and why the commissioner—

Ms Chapman: We want an explanation as to why it's in.

The Hon. J.R. RAU: It is in because the police need it. Can I give you an example which you might understand a little better than this one because I think it makes a bit more sense but it is actually no less relevant than this—and I am grateful to my parliamentary colleague the member for Elder for pointing this out to me.

Let us say you have a person who is a reputed arsonist or a person who has previously been convicted of arson and we have a high-risk fire day and the police have either covert operations underway or they have a source placed in the CFS, unbeknown to anybody, who is keeping their eye on whether people are a little bit too free with their matches, or whatever the case might be. The police might use that information so that on the high-risk fire day, the catastrophic risk day, guess whose house they are knocking on the door of all day. Guess whose car they are following up and down the streets all day. Are you seriously suggesting the police should not be able to do that? All we are saying here is, in the case—

Ms Chapman: They can do it now.

The Hon. J.R. RAU: And we are formalising it. We are putting it in the legislation. We are making it utterly transparent. I, for the life of me, cannot see why, in relation to a known child sex offender who the police have intelligence to suggest is misbehaving, they should not be able to be using that intelligence in this context. I honestly cannot see why not. It might be we just have to agree to disagree.

Ms CHAPMAN: Just for the record, as I understand it, there are about 50 people on the state register of people who are known arsonists or likely to light fires every summer, and they are under surveillance either with someone sitting in a rubbish bin with holes through it and peering through their house, or knocking on their door and checking them and telling them, 'It's a hot day and we are keeping an eye on you.' There are various ways of doing this. Some are covert and some are open, as you say. But there has been no impediment to using that information and following them, for example, in an unmarked car through scrubland, etc., on high-fire-risk days and they do not need this sort of provision in other legislation to be able to utilise that information.

Unfortunately, minister, that does not give me any comfort as to why this is in here. I think this is something, as you have admitted, the police want. They want to expand—in fact, you are going to be introducing an amendment for another thing they have added to the list in the last couple of years to be slipped into this legislation. I am not satisfied that it is actually necessary. I now know the origin of this. It is nothing to do with the need to support the introduction of the new offence in here because, if that had a similar threshold, we would not need this. But, in any event, you have decided that is what you are doing.

The Hon. J.R. RAU: Again, let us make it very clear: if the police are going to use criminal intelligence, they need to be able to protect that criminal intelligence. We are saying here two things. Number one: if the police think they have got criminal intelligence which is pertinent and apposite to a particular individual, they should be able to use it. Number 2: that intelligence and its source and method of derivation need to be protectable. That is what this says.

Clause passed.

Clause 6.

Ms CHAPMAN: I think this is to identify a specific offence because, in introducing new offences, we are talking about multiple offences. I take it that is why these amendments are there, minister. We are adding in the word 'single' for the lower level offences. Is that what that is for?

The Hon. J.R. RAU: I am advised that this is to do with the fact that, unless this clarification were made, under the Acts Interpretation Act offences would be deemed to be multiple. This is just to clarify matters to differentiate between single and multiple offences.

Clause passed.

Clause 7.

Ms CHAPMAN: This is to add in a provision for circumstances that could lead to a restraining order under section 99AA of the Summary Procedure Act 1921 similarly being given the status, I suppose, to be able to introduce those persons into the child sex offender registration order. I am assuming this is all part of the enhancement that has been referred to of tightening and strengthening the requirements. Again, this is an area where information comes in to support, really, a civil procedure. Can the minister identify the source of this amendment?

The Hon. J.R. RAU: I am advised that the situation here is that the restraining orders presently can only be made on the register at the time that the restraining order is made. So, if there is subsequent need to get them on the register, this enables them to go back and do that.

Ms CHAPMAN: Under the Summary Procedure Act, you can have an interim order made. So does this mean that an interim order, which of course can be ex parte, can also trigger the obligations for this to be on the reportable list, or does it have to be a final order for an injunction before that applies?

The Hon. J.R. RAU: I am advised that it is to do with final orders, but more particularly that, to be perfectly frank, there are occasions where the police, for whatever reason, do not make an application at the time of the conviction or getting the restraining order of asking also for the person to be placed on the register for whatever reason—it might be omission or whatever. This simply enables them, if they become aware of the fact that such an omission has been made, to return to the court and seek that registration. That is the point.

The way I am advised of it is that it is more of a slips rule, in the sense that if you do not do it on day one, at the moment, you have not done it and that is bad luck. This means that if you do not do it on day one but the police subsequently become aware of the fact that there has been this omission, they are able to go to the court and make the application independently of doing it at the exact same moment. That is the point. To answer the other question, this again was a matter that the police, as I understand it, requested that we attend to.

Ms CHAPMAN: My understanding is that, apart from class 1 and class 2 offences, etc., we are now going to add a new category which will trigger the obligation to be registered, namely if you are the subject of a restraining order. That is my understanding.

The Hon. J.R. RAU: I am advised that is not new. It has always been there, but it had to be done on the same day. As soon as you got the restraining order, you could ask to have them put on the list and that was fine—that can be done now. This is just to say, if you get the restraining order and for whatever reason the police officer making the application does not at the same time make the application to have them entered, then this will enable them to return to the court at some subsequent time and make that application.

Ms CHAPMAN: So my question is: it may be an existing area that can attract the right to apply for this registration procedure, but is that currently only able to apply once it becomes a final order, or is there currently an application procedure that can be made at the time of the application of the interim ex parte proceedings?

The Hon. J.R. RAU: I am advised that it is at the time of the final order.

Clause passed.

Clause 8.

Ms CHAPMAN: This relates to who one can appeal to. I think the current clause 10 is all to the District Court, if I recall, but I will just check. Here to a single judge of the Supreme Court is the replacing provision. Can I just have some explanation as to the variants and purpose of it?

The Hon. J.R. RAU: This is one of those matters which parliamentary counsel has suggested in light of other things that have been done, I presume some of the jurisdictional changes that have been occurring recently in other pieces of legislation. I have no particular view about this one way or the other. This was a matter, as I said, I am advised parliamentary counsel suggested in light of other changes that have been going on about relationships between different jurisdictions would be an appropriate formulation. I cannot offer, unfortunately, any further argument in favour—or against it, for that matter.

Ms CHAPMAN: Is it your understanding, Attorney, that at present the general appeal process from the Magistrates Court would go to the District Court and that because, of course, now this is being introduced, it is to go to a single judge of the Supreme Court?

The Hon. J.R. RAU: Parliamentary counsel is here. We may be able to—

Ms CHAPMAN: —enlighten it?

The Hon. J.R. RAU: —enlighten it, yes. We will take it on notice. It obviously was not the most important provision in the bill as far as parliamentary counsel was concerned. We will do what we can to provide an answer. I can say to the honourable member it is of no particular consequence to me one way or the other. It is there.

Clause passed.

Clause 9.

Ms CHAPMAN: This is the provision to introduce the serious registrable offender declaration, which is the new power to go, the new offence. The police have sought higher penalties in these circumstances. I think we are looking at a five-year imprisonment, fines of up to $25,000 and very significant penalties for giving false and misleading information.

The Hon. J.R. RAU: Clause 9?

Ms CHAPMAN: Yes, clause 9. This is where the commissioner can declare if they are satisfied someone is a serious registrable offender. This is the tougher one. This is a new category of serious registrable offender. This is, I suppose, the key element of the legislation in the sense of new, tougher laws, of penalties that can be imposed under these two new offences.

The Hon. J.R. RAU: I am not sure that the tougher penalties bit is there.

Ms CHAPMAN: They are only applied further down, but this is the category, as I understand it.

The Hon. J.R. RAU: That is the category?

Ms CHAPMAN: Yes, this is the category that creates these new fines and things and there is a new process where the commissioner comes in with a role to be able to grant that assessment and there is an appeal process there under 10B. One of the areas of concern was this question of whether, there being no time required between the imposition of the declaration and the use of it by the police, that may result in the affected person being not notified and therefore not having any chance of appeal before the declaration comes into effect. How is that going to be addressed?

The Hon. J.R. RAU: I am advised that the declaration would become operative as soon as the individual becomes aware of it.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, they have to be given a copy. Just bear in mind this, because it is quite an important point: if the police, for example, have the view that a particular individual is a high-risk individual and may be straying off the path, and they obtain one of these orders, the last thing they would want to have to do is to serve the order and then wait 14 days, for instance, before they could do anything about it, because by that time the person will clean their house up and get rid of incriminating material and suchlike. The idea is that they cannot do anything without the person knowing but, as soon as the order is obtained, they should be able to exercise power under this, so that there is not an opportunity for individuals to divest themselves of material or whatever the case might be. That is the notion.

Ms CHAPMAN: Just so I understand it, in practical terms, the commissioner can make an assessment, he makes the declaration, it is served on the party that it is to apply to and it can be acted on immediately.

The Hon. J.R. RAU: Correct.

Ms CHAPMAN: So the process, then, of appeal against the declaration, obviously in some circumstances, will be academic, because they will not have any opportunity to appeal before enforcement.

The Hon. J.R. RAU: It will be ex post facto, yes.

Ms CHAPMAN: Why is it necessary, if there is some imminent problem with a further offence perhaps that is likely to be caused, to utilise this declaration when, if they had some concern about using this process to confiscate property or to search a premises, they have all the usual opportunities to do that—to get a search warrant, for example, and confiscate the pornographic material or the like? Clearly they would be concerned in those circumstances. Or does the Attorney agree that it could be a situation where this new process is actually going to be available to the police to use to circumvent those usual processes?

The Hon. J.R. RAU: There is no doubt that this process, once initiated, provides a lower bar than a general search warrant. It does; there is no question about that. But bear in mind that with this class of offender, the material that might be concerning for this class of offender might also be of a lower grade than the sort of material that would be of concern for perhaps other prosecutions. To explain: suppose an offender in this category had been, let's say, collecting magazines of some sort which are—

Ms Chapman: Lawfully obtained.

The Hon. J.R. RAU: —a lawfully obtained, generally accessible product but had been collecting those magazines or perhaps cutting out images from magazines or whatever and they had parts of their place decorated with these images. Assume for the purposes of the argument, none of those images are in and of themselves an illegal or inappropriate image.

Ms Chapman: Most teenagers have them strung across their room.

The Hon. J.R. RAU: Exactly. If it were the average teenager, you would say it is just a symptom of poor taste, but if it is one of these individuals it might actually be a completely different phenomenon that we are looking at. I am just giving you that as an example. There would not necessarily be reasonable suspicion that there was material that was otherwise classifiable as child pornography or something else in their premises, but there may be material which, having regard to their particular circumstances, is highly concerning, which, if you or anybody else had it, would not necessarily be a matter of concern.

I accept that this means that the level of interference that these people can be subjected to by police is considerable—I accept that—but, as I have said before, there is a balancing act here between what in this particular section we are talking about is the serious group of offender. There is a balance to be found between that serious group of offender, who are a relatively small number of people, and the welfare of all of the young people, and smaller children in particular out there, who are potentially at risk from these people. So, yes, I accept it is a very serious step.

Ms CHAPMAN: I am still not certain, Attorney, as to how it is then that someone who fits into the category of an offender, who is on the registration, and if they are lawfully collecting and displaying, for example, in their home, multiple pictures of images of a pop star which may be a bit revealing but are quite legal—and, as I say, that we might find across the bedroom of teenagers across the world, or carrying around images on their phones and the like—if they are perfectly lawful, how is it that someone who may happen to have been a sex offender, who might have these pictures, should be subjected to, basically, invasion, in those circumstances? I perfectly understand if there is reasonable suspicion that they are collecting material of young children in a semi-naked state. I understand all that, but the lawful activity of these people could be invaded without any justification that they are in any way either breaching the terms of their current obligation or working their way towards some other devious conduct.

The Hon. J.R. RAU: Between the houses I can arrange for the police to speak to the honourable member about this matter if that would be of any assistance. Can I also say, there is another point that has just been drawn to my attention, and it might also be evidence of breaching that they detect by these unheralded and unexpected visits. For instance, the police making one of these visits might find, that there are air tickets in the house. It is not necessarily illegal to have air tickets but it may well be in breach of other constraints that are imposed on these people. They might go there and discover tickets to Bullen's Circus and legitimately ask, 'Who are you going to Bullen's Circus with? Why are you going to Bullen's Circus?' or to the Ice Arena, or wherever else, or the Royal Adelaide Show. So, I accept that this means that these individuals are subject to, basically, random visits and the police are able to search their premises—

Ms Chapman: At any time.

The Hon. J.R. RAU: Yes. Look, I accept that that is, on the face of it, very harsh. I just think that we need to bear in mind who this group of people are, what sort of offences they have committed, and what sort of a risk they potentially present to, particularly, young people in our community.

Clause passed.

Clause 10.

Ms CHAPMAN: Just quickly, minister, on this issue, we are going from 28 down to seven days. Can you explain that and the 14 to seven in other cases?

The Hon. J.R. RAU: Just to get back to an earlier comment, I have now been advised the reason for the business about the Supreme Court was that the courts efficiency legislation that went through has made changes that necessitate this. Your next question was?

Ms CHAPMAN: The time for reporting is going from 28 or 14 down to seven, in clauses 10 and 11.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: The reason?

The Hon. J.R. RAU: To tighten reporting time lines. I am advised that that is basically the reason.

Ms CHAPMAN: Is there some justification that there is a change of technology or a capacity to be able to do that? I understand when we go from horse and cart days legislation to modernise, but we only made this legislation a few years ago.

The Hon. J.R. RAU: At the moment, just as an example, an offender who leaves custody has got a month to let people know where they are.

Ms CHAPMAN: And it has been reduced to seven?

The Hon. J.R. RAU: Yes; it has been reduced to seven days. It is purely and simply that people want to know where these characters are so they can monitor them.

Ms CHAPMAN: That's a police request?

The Hon. J.R. RAU: Yes; that is 11 and 12, I believe.

Ms CHAPMAN: Sorry; new sections 11 and 12, yes.

Clause passed.

Clause 11 passed.

Clause 12.

The Hon. J.R. RAU: I move:

Page 7, lines 13 to 30 [clause 12(5), inserted subsection (4)]—Delete inserted subsection (4) and substitute:

(4) For the purposes of this section, a person has reportable contact with a child—

(a) if—

(i) the person has contact with the child consisting of—

(A) any form of physical contact or close physical proximity with the child; or

(B) any form of communication with the child (whether in person, in writing, by telephone or other electronic device); and

(ii) the contact with the child—

(A) occurs in the course of—

the person or the child visiting or residing at a dwelling (whether the person and the child are alone or with others); or

the person (whether alone or with others) supervising or caring for the child; or

(B) involves the person providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further contact or communication between him or her and the child; or

(b) if the person has contact of a kind, or occurring in circumstances, prescribed by the regulations.

(4a) A reference to a dwelling in subsection (4)(a)(ii)(A) includes any form of accommodation (including temporary accommodation).

The situation here is to give more definition around the notion of what is or is not reportable contact. It is my understanding that the police have been concerned about the lack of particularity presently in terms of occasion. What is meant by an 'occasion'? This is to give some definition to what is or is not reportable contact.

Ms CHAPMAN: This is a matter, Attorney, that we certainly canvassed in the briefing that was provided to us, and I thank those who were available from your office and the department who provided advice on this. The opposition noted that some consideration had been given to the review that took place in Victoria, that is, the Victorian Law Reform Commission report from late last year. That was, of course, one of the reasons the whole reform in this area had been delayed, because that was going to be given some consideration.

Curious, to us at least, is that the Victorians did not seem to have sorted out this issue either; that is, there had not really been any clarity as to what was going to be a one-off contact, whether one of those contacts was going to be defined as a day or a second, or whether it was being with somebody either in a dwelling or residence, or at a bus stop. These things were completely undefined. It certainly was a concern to us and remains that there appears to be a regime that is being established ostensibly to protect children from the potential predation of known offenders, yet they are allowed to have three goes at them before any obligation to report is made.

I will just go through this with you, but your amendment may or may not assist us in that regard. I am reading it as you have moved it, but I will say that it certainly remains a concern to us that there still seems to be at least the potential for contacts to occur during which there would be opportunity to cause some harm to a child or to give some thrill to the offender and/or both which would not be reportable.

There are a couple of examples that I was going to ask and you can clarify whether you think your amendment now covers it. Obviously in a circumstance where the party who is on the list, or should be, inadvertently accidentally comes into the proximity of a child; that is, they are standing at a bus stop alone and a child walks up and makes an inquiry about whether a particular service is available. There are no other adults around and the adult is faced with the situation where they are in immediate proximity of a child. I am identifying a public place, but if it is raining and there is nobody else around and they are sitting in a bus shelter, these are the sorts of situations.

I am giving you this example as one where the person on the list, the adult offender, has not initiated or introduced himself into the environment of the child; it is purely accidental on his or her part. That may be for a reasonable period of time; they might be 20 minutes waiting for a bus or much longer in this state, but in any event, we will not go there. Can you give some assurance to the house that that circumstance is captured by this as a reportable contact? What do you say to the house is the merit or basis for even allowing a situation like that, which may go for a multiple minute period of time, that would protect a child in those circumstances?

The Hon. J.R. RAU: A fair enough question. The first part of the question is: what about if other things pop up which we have not thought of? The answer is 4(b) where we have the capacity in the future, if we need to, to prescribe certain other behaviour by way of regulation.

The second thing is if you look at 4(a)(ii)(a) and (b), you will see what is contemplated here is either that the contact occurs in a private home or some place where there is a dwelling or whatever, and then importantly (b), if you have the bus stop situation and all that is happening is the person is standing there and a child is standing there and you ask yourself: what mischief is that creating?

If that is all that happens, then the answer is that there is not any mischief and that is fine, but as (b) acknowledges if the person standing at the bus stop then says to the child, 'Oh, hello. This is my phone number. I would like to meet you' or 'Hello, what is your name? What is your phone number?' they are immediately caught. Otherwise, you would have a practically impossible situation where these people, to be fair about it, who are not presently in custody, could not go to the corner shop, could not catch a bus, could not do anything because of the risk that at some moment in time a child would enter whatever building they were in and then they would immediately have to vacate the premises.

That is taking it too far, so we need the three ingredients. We need the individual present and we need a context. The context can either be a private place (like a home, or whatever) or it could be a public place but the individual transforms the relationship between them as just two passersby, as it were, in a public place to an attempt to relate to that person in a public place.

Ms CHAPMAN: You would say in the scenario I have given, the person in that circumstance would not need to report that because the contact, as such, or interaction or communication in that scenario had been initiated by the child (maybe an inquiry about the bus services), unless there was further communication and some reciprocity from the adult party and then there had been further engagement.

That does raise a concern. I accept that there is always this question of someone in an area or in a precinct where they are not supposed to be—because of a restraining order, bail conditions, parole conditions or obligations because of a prior history—otherwise they could never go into a public place. They could never go into a shopping centre or on a bus, or the like, and not have a real risk of being in the proximity of a child. A child may wander across and sit next to them at a bus shelter or on a seat sitting outside a supermarket. It still does not allay concerns that we have that we are going to allow three periods of contact first, unsupervised.

The Hon. J.R. Rau: There is no three.

Ms CHAPMAN: Now, completely, first time. Alright. The second thing is this area of being in the same dwelling, and this is another common area where, at least from my experience, there is opportunity for breach. If a party the subject of these proceedings forms an association with another person—adult, legal and legitimate, in the sense of some personal relationship—and that party has children living in their household with them, the person the subject of these proceedings may go to stay overnight, presumably to continue some social discourse with that person. Either completely unknown or inadvertently, there are children sleeping in the household.

They may stay in the premises overnight and there is contact the next morning. The other resident adult goes out to the garden and does things and the person the subject of these proceedings may be in the precinct and proximity of children sitting down eating breakfast. I want you to consider that scenario for a moment because there are circumstances where they move in and there is a change of residence and there are all sorts of other things that will capture them. But where there are one-off occasions, is that a contact that is then reportable? I am assuming it will be.

The Hon. J.R. Rau: It is.

Ms CHAPMAN: What about the one where he wakes up in the morning, dresses, leaves the premises and does not even know that there are children otherwise sleeping in the household?

The Hon. J.R. RAU: That gets down to a question of fact. Clearly, in the situation where they are visiting or residing in a dwelling where there are children, a policy call has to be made. Are we sufficiently concerned about the risk of this individual misbehaving to allow them to be there and take the risk, or are we saying, 'Sorry, in your case, we are not going to take the risk,' because the child's mother, for example, might be outside doing the gardening for 20 minutes and you can do a hell of a lot in 20 minutes when she is not looking? So, yes, it is reportable.

I guess if the person turns up and there are kids there and they genuinely do not know anything about it, that would be a defence or some argument they could put forward. There are going to be difficult odd situations in any of these rules, but the basic idea is to try and pick out classifications of situations. If we do not do it this way, what about the person who says, 'I'm a babysitter. I'll come around and babysit your children. I'm not there all the time; I'm not even sleeping over. I'm just there babysitting your kids. You go to the shops. Have a nice day.' How do we cut that person from a different piece of cloth than the person you have just spoken about? It gets very difficult.

Progress reported; committee to sit again.


[Sitting suspended from 13:00 to 14:00]


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