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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-07-25 Daily Xml
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CHILD SEX OFFENDERS REGISTRATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (12:56): 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.

In response to a request from the Commissioner of Police, the Child Sex Offenders Registration (Miscellaneous) Amendment Bill 2013 ('the Bill') was drafted to:

significantly tighten and strengthen the reporting requirements under the CSOR Act;

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 their premises and require far more frequent reporting;

empower the Commissioner of Police to publish personal details, including a photograph or digital image, of a registrable offender if the Commissioner of Police is satisfied that the registrable offender has failed to comply with their reporting requirements under the CSOR Act (including providing false or misleading information) and their whereabouts is unknown to the Commissioner of Police.

amend the Bail Act 1985 (SA) so that unless a bail authority is satisfied that a person accused of a child sex offence poses no risk to the safety and well being of children, the accused will be subjected to the bail condition that they not engage in child related work;

ban all registrable offenders from working as taxi or hire-car drivers and ban all registrable offenders from changing their names unless the Commissioner of Police consents;

update the list of Commonwealth child sex offences that trigger operation of the CSOR Act;

for a limited category of child sex offenders, empower the Commissioner of Police to modify the operation of the CSOR Act;

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;

empower police to contact employers to verify the information provided by the accused person and notify the employer of the charge;

The last two changes implement Recommendations 28 and 29 in the Report of the Independent Education Inquiry, undertaken by the Honourable Bruce Debelle.

The Bill takes a balanced approach to ensure that children are better protected and to ensure that the CSOR Act targets those offenders who pose a risk to the safety and well-being of children.

Serious Registrable Offenders and Electronic Tracking

SAPol requested enhanced powers to enter and search premises of high risk registrable offenders.

The Bill contains amendments that create a new category of offender called a 'serious registrable offender'. Under these amendments, any registrable offender who commits:

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

on at least two separate occasions a class 1 or class 2 offence against a person or persons under the age of 14 years,

will be deemed a 'serious registrable offender'.

In addition, the Commissioner of Police may also declare a registrable offender to be a 'serious registrable offender'. This decision can be appealed to the Administrative and Disciplinary Division of the District Court, and on application by the registrable offender the Commissioner of Police must provide written reasons for the decision.

Under the Bill, an authorised SAPol officer will have the power to enter and search the premises of a serious registrable offender to ensure he or she is complying with his or her obligations under the CSOR Act. In addition, by way of written notice the Commissioner of Police will be able to require a serious registrable offender to report more frequently.

The Commissioner of Police will also have the power to impose a condition on a serious registrable offender that they wear or carry an electronic tracking device. If the serious registrable offender removes or does not carry the device in order to attempt a breach, the act of removing or not wearing the device is a breach itself. It is important to note that the Commissioner of Police does not currently have access to the technology to implement electronic tracking of offenders. The purpose of this amendment is to ensure that the Commissioner of Police is positioned to use this technology when it becomes available.

DNA

The Bill contains amendments to the Criminal Law (Forensic Procedures) Act 2007 such that registrable offenders may be required by SAPol to provide a DNA sample. This will allow SAPol to collect a DNA sample when a person first becomes a registrable offender, as well as collect samples from any current registrable offender (allowing a back-capture of the DNA of those persons currently registered).

Under these amendments SAPol will be authorised to conduct a simple forensic procedure on current registrable offenders even if they were sentenced before the State's first DNA legislation, the Criminal Law (Forensic Procedures) Act 1998, commenced on 25 July 1999.

Penalties and Offences

Currently, there are two offences created under the CSOR Act, being:

Section 44 offence of failing to comply with reporting obligations, with a maximum penalty of $10,000 or 2 years imprisonment; and

Section 45 offence of furnishing false or misleading information in purported compliance with the CSOR Act, with a maximum penalty of $10,000 or 2 years imprisonment.

The Bill includes an amendment to create a new more serious offence with an increased penalty of 5 years imprisonment and a fine of $ 25,000. SAPol support this increase.

This higher penalty applies when a breach of the CSOR Act (or the provisions of false information) involves working with children or reportable contact with children.

Change of Name

The Bill inserts new restrictions concerning registrable offenders changing their name.

Under the amendments, a registrable offender will not be able to change their name unless the Commissioner of Police consents.

Initial Reports and Reporting Timeframes

The Bill includes amendments whereby registrable offenders are required to make their initial report to police within 7 days of release from custody or from sentencing.

In line with this change amendments have also been drafted that reduce other time frames, such as the time frame for reporting changes in personal circumstances, to 7 days. This consistent approach should reduce any confusion for registrable offenders as to what their reporting requirements are.

The Bill also proposes amendments to cure an issue identified by SAPol whereby an offender cannot be registered in SA under the CSOR Act unless they spend 14 consecutive days in SA. This time frame will be shortened to 7 days to be consistent with other reporting time frames, as well as to reduce the ability to border hop to avoid registration. Other time frames, such as reporting travel, are also being reduced.

Valid Passports

The Bill also sets out a number of amendments whereby registrable offenders are required to:

present any valid passports at their initial report and provide and update passport details annually (as part of their relevant personal information); and

present their passport when returning from overseas travel.

Paedophile Restraining Orders

Currently, at the time that a paedophile restraining order (PRO) is made against a person, a court may also order that the person comply with the CSOR Act. However, if this application is not made at the time the PRO is made, there is no power to apply to the court at a later date for the person to be subject to the CSOR Act.

The Bill changes this and contains amendments such that an application may be made to the court by a police officer at any time, in regards to a person who is the subject of a PRO, for an order that the person comply with the reporting requirements of the CSOR Act. In such cases the court will determine for how long these reporting requirements will apply.

Enhanced Reporting Requirements

To address concerns raised by SAPol with respect to the administration of the CSOR Act, the Bill includes amendments to give the Commissioner of Police the power, by way of a notice served on the registrable offender, to specify:

an actual date on which the registrable offender must make their annual report to the Commissioner of Police in accordance with the CSOR Act; and/or

that the annual report must take place at the current address of the registrable offender.

In addition, the Commissioner of Police has the power to declare that a registrable offender:

who has a low risk of re-offending may make their reports by alternative means, such as email or via a secure SAPol database; and

a registrable offender, who is physically no longer able to comply with the reporting requirements of the CSOR Act, is exempt from the reporting requirements of the CSOR Act.

These amendments address some practical difficulties experienced by SAPol, particularly in regional areas whereby authorised police officers may visit a registrable offender at their home in a remote or regional area for the purpose of completing their annual review in person and the person may refuse to undertake the review on that day. There may also be numerous registrable offenders in that area and officers are unable to currently arrange reviews to occur within the same period of time.

This new process will allow the Commissioner of Police to notify the registrable offenders in one regional area of a date, time and place for their annual reviews, allowing officers to undertake numerous reviews in an area during one visit. This process also allows authorised officers to actively arrange the annual reporting, rather than rely on the registrable offender to undertake their annual report within the specified time frame.

Given that it is inevitable that some of the registrable offenders will become incapacitated making reporting impossible, these amendments also ensure that for such offenders an exemption may be granted.

Contact with Children

Under the Bill, there are substantial amendments to tighten and clarify the reporting requirements of registrable offenders with respect to contact with children. These amendments will require registrable offenders to report both supervised and unsupervised 'reportable contact' with children and to make this report within 2 days of the contact occurring.

This proposed amendment was developed through extensive consultation with SAPol and with reference to the Victorian Law Reform Commission Report (the VLRC Report) into a review of the laws governing the registration of sex offenders and the use of information about registered sex offenders by law enforcement and child protection agencies.

Under the Bill 'reportable contact' is defined as:

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

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

where the contact with the child:

occurs in the course of the person visiting or residing at a dwelling or supervising or caring for the child; or

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.

For the avoidance of any doubt, the Bill also specifically provides that 'reportable contact' includes contact that is supervised and in addition, allows for other forms of reportable contact to be prescribed.

Under this proposed amendment, if a registrable offender has any sort of the above 'reportable contact' with a child it must be reported. The report would be due within 2 days of the contact.

This amendment also removes any reference to the contact being 'unsupervised' as this is difficult to define and most importantly, there have been cases where offending has occurred whilst the child and offender were in the company of others (for example, under a shared blanket in a dark room whilst watching television in the company of others). Furthermore, grooming can occur even if contact is supervised, ie, in the company of others.

Tightening these time frames means that this 'reportable contact' with children is reported sooner and allows an earlier assessment by SAPol of any associated risk to the child.

Criminal Intelligence

The Bill amends the CSOR Act such that any criminal intelligence used by the Commissioner of Police in making a decision is protected.

For consistency across the statute books, the Bill inserts a proposed definition of 'criminal intelligence' that is identical to the existing provision within the Serious and Organised Crime (Control) Act 2008.

In the Bill, 'criminal intelligence' is defined to mean:

'information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety'.

Under the Bill, if any decision is made by the Commissioner under the CSOR Act because of information that is classified by the Commissioner as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.

Furthermore, under the amendments contained within the Bill, in any proceedings under this Act, the court determining the proceedings:

must, on the application of the Commissioner, take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of Superintendent.

This proposed provision will ensure that information acted upon that is 'Criminal intelligence' is protected throughout any appeal process and is also consistent with the existing provision within the Serious and Organised Crime (Control) Act 2008.

Taxi Drivers and Children

The Bill amends the CSOR Act so that taxi-drivers and hire-car drivers are inserted into the definition of 'child-related work'. This means that under the CSOR Act it is an offence for a registrable offender to be a taxi-driver or hire-car driver.

Currently under the CSOR Act, registrable offenders are precluded from applying for or being engaged in work (which includes volunteering) involving contact with a child in connection with a number of areas of work. However, driving a taxi is not included.

Bail

The Bill amends the Bail Act 1985 so that every person charged with a class 1 or class 2 offence is subjected to an automatic condition of bail that the person not engage in child-related work. The condition can be varied or revoked by the bail authority but only if there are cogent reasons for doing so, and only if the bail authority is satisfied that the applicant engaging in child-related work will not pose a risk to the safety and well-being of children.

Summary Offences Act

The Bill amends section 74A of the Summary Offences Act 1953 to give police officers the power to require a person to state the name and address of that person's place of employment if the police officer has reasonable cause to suspect that the person has committed, is committing, or is about to commit a sexual offence involving a child.

This amendment implements Recommendation 29 from the Report of the Independent Education Inquiry.

Publication of Information about Registrable Offenders

The Bill inserts a new provision whereby the Commissioner of Police may publish, on a website maintained by the Commissioner, any or all of the personal details of a registrable offender, including a photograph or digital image of the registrable offender, provided the Commissioner is satisfied that the registrable offender has failed to comply with their reporting requirements under the CSOR Act (including providing false or misleading information) and their whereabouts is unknown to the Commissioner of Police.

In determining whether or not to publish this information the Commissioner may take into account a number of matters, including the effect that the publication might have on a victim of an offence committed by the registrable offender. In addition, before publishing the information the Commissioner must take reasonable steps to consult with any persons that the Commissioner believes may be adversely affected by the publication.

In addition, under these amendments it will be an offence for any person to engage in any conduct that will create, promote or increase animosity toward or harassment of a person identified by the information published or any person associated with a person identified by the information. It will also be an offence for any person to publish, distribute or display any photographs or personal information provided by the Commissioner of Police without the prior written approval of the Minister.

Commonwealth and State Offences

A number of child sex offences that were contained within the Crimes Act 1914 (Cth) have been repealed and replaced with offences now in the Criminal Code. Under the Bill, the list of class 1 and class 2 offences that trigger the operation of the CSOR Act are updated to reflect these changes. Any new Commonwealth child sex offences are also listed.

Section 270B of the Criminal Law Consolidation Act 1935 ('the CLC Act') creates the offence of assault with intent, being the offence of assaulting another person with the intent to commit an offence against the person (as well as other offences to which the section applies).

Currently, a person charged with an offence against section 270B is not captured by the CSOR Act, even if the offence they intended to commit is listed as a class 1 or class 2 offence that trigger the operation of the CSOR Act.

Therefore, the Bill makes amendments to the CSOR Act so as to include within the list of class 1 and class 2 offences the offence of assault with intent, when the offence intended to be committed is a class 1 or class 2 offence.

Temporary Modification of Reporting under the CSOR Act

In order to ensure that SAPol powers and resources are directed towards those offenders who pose the most risk to the safety and well-being of children, the Bill amends the CSOR Act such that the Commissioner of Police has the power to modify the operation of the CSOR Act with respect to a limited group of offenders.

As the number of persons registered under the CSOR Act increases it will become more difficult to continue to monitor all registrable offenders. Resources should be directed towards those offenders who pose a risk to safety and well-being of children, but at present the same resources must be directed to all offenders regardless of their level of risk.

The Bill makes amendments to the CSOR Act such that registrable offenders who have been convicted of the following offences will be eligible to apply to the Commissioner of Police for a modification of their reporting obligations if the offender meets certain criteria:

an offence against section 49(3) of the CLC Act (unlawful sexual intercourse) with a person under the age of 17 but above the age of 14;

an offence against section 56 of the CLC Act (indecent assault); and

an offence against section 58 of the CLC Act (gross indecency).

Under these amendments, the registrable offender must have been registered under the CSOR Act for 12 months, have undertaken their first annual report, and have not breached the CSOR Act at any time.

In addition to the above criteria, under the Bill the following registrable offenders would be ineligible to make an application to the Commissioner:

offenders who refuse to participate in a risk assessment; or

offenders who have breached the CSOR Act; or

offenders who have offended against more than one victim; or

offenders whose victim had not reached the age of 14 years; or

offenders who were more than ten years older than the victim at the time of the offence; or

offenders who committed the offences or offences against a victim with whom they had contact with via child-related work.

In addition, when making the decision to modify the registrable offender's reporting requirements under the CSOR Act, the Commissioner of Police will be required, to the extent that it is possible, to take into account the following factors in making a decision:

a risk assessment undertaken with respect to the offender;

any victim impact statement;

the sentencing remarks;

the offences charged, any prior convictions and any offences taken into account during sentencing; and

any other information the Commissioner of Police considers appropriate (which is noted in the Bill as including whether or not the victim consented and whether any consent of the victim was obtained through grooming).

In making a decision about whether reporting requirements should be modified for a registrable offender, the Commissioner of Police must provide reasons for the decision if requested by the registrable offender.

Under the Bill, there is a right of appeal from a decision of the Commissioner of Police which would be heard in the Administrative and Disciplinary Division of the District Court.

If a registrable offender, who has had his or her reporting requirements modified, reoffends, their original offence(s) will count towards any future operation of the CSOR Act and in addition, any modification of the reporting obligations will be automatically revoked upon conviction.

The Commissioner of Police can also revoke the modification if there is any change in circumstances.

Ultimately, this proposed reform is about getting smarter about how the CSOR Act operates. At the moment, the same resources have to be dedicated to both high and low risk offenders. SAPol have asked for the ability to modify reporting requirements for certain low-risk offenders so that resources can be 'freed up' to be applied to the offenders who pose a risk to the safety of 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 4—Interpretation

This clause inserts definitions for criminal intelligence, reportable contact, registrable repeat offender and serious registrable offender. Criminal intelligence has the same meaning as in the other Acts in which it is used. Reportable contact is defined in proposed section 13(4). A registrable offender is a registrable repeat offender if he or she has committed on 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 and the victim was less than 14 years old. A serious registrable offender is a registrable repeat offender or a registrable offender who has been declared to be a serious registrable offender under proposed Part 2A.

5—Insertion of section 5A

This clause inserts a new section as follows:

5A—Criminal intelligence

The proposed section provides that if a decision is made under the Act by the Commissioner, based on information that is classified by the Commissioner as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds. The Commissioner may not delegate the function of classifying information as criminal intelligence for the purposes of the Act except to a Deputy Commissioner or Assistant Commissioner of Police. The proposed section provides that the court determining the proceedings must maintain the confidentiality of the criminal intelligence. The provision is consistent with those in other Acts dealing with criminal intelligence.

6—Amendment of section 6—Who is a registrable offender?

Section 6 is amended to clarify the wording of (4)(a) and (b) and to add an exclusion for 2 class 2 offences more than 15 years ago.

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

Currently, the Magistrates Court may make an order that a person comply with the requirements of the Act at the same time as a restraining order is made under section 99AA of the Summary Procedure Act 1921. This clause extends that power and provides that the Magistrates Court may make an order that a person complies with the requirements of the Act at any time while the person is subject to a restraining order under section 99AA of the Summary Procedure Act 1921.

8—Amendment of section 10—Appeal against order

Section 10(1) is substituted so that an appeal against the making of a child sex offender registration order by the Magistrates Court lies to the Supreme Court constituted of a single judge.

9—Insertion of Part 2A

This clause inserts a new Part as follows:

Part 2A—Serious registrable offender declarations

10A—Serious registrable offender declarations

The inserted provision provides that the Commissioner may declare a registrable offender to be a serious registrable offender if satisfied that the registrable offender is at risk of committing further class 1 or class 2 offences. The Commissioner may revoke the declaration, at any time, on his or her own initiative or on application by the serious registrable offender.

10B—Appeal against declaration

This provision gives a right of appeal to a registrable offender who is aggrieved by a decision of the Commissioner in relation to him or her under proposed Part 2A.

10—Amendment of section 11—When initial report must be made

Amendments made by this clause reduce the time by which an initial report must be made to 7 days in all cases, from 28 and 14 days respectively (depending on the category of the registrable offender).

11—Amendment of section 12—When new initial report must be made by offender whose previous reporting obligations have ceased

This clause reduces the timeframe within which registrable offenders whose previous reporting obligations have ceased must make a new report from 28 or 14 days (depending on the circumstances) to 7 days.

12—Amendment of section 13—Initial report by registrable offender of personal details

This clause has 2 purposes. Firstly, it expands the personal details that a registrable offender must report to include his or her postal address for service, the names and ages of any children that the offender usually resides with, the names and ages of any children that the offender will have reportable contact with and, where the offender has a valid passport, the passport number, date and place of issue and date of expiry of the passport. Secondly, the clause defines reportable contact. Reportable contact occurs if an offender has any form of physical contact or proximity with a child (whether supervised or unsupervised) or any form of communication with the child (whether in person, in writing, by telephone or other electronic device) while the person or the child is visiting or residing at a dwelling, or caring for or supervising the child or contact involving the provision, or obtaining, of contact details or any other invitation of further contact or communication, or contact of a kind occurring in circumstances prescribed by the regulations.

13—Amendment of section 14—Persons required to report under corresponding law

Under this clause a registrable offender under a corresponding law will be required to report under this Act if he or she remains in the State for 7 or more consecutive days (currently 14 or more).

14—Amendment of section 15—Registrable offender must report annually

This clause allows the Commissioner to set the date on which a registrable offender must make an annual report. If the Commissioner does not specify a date, the default date is the end of the calendar month in which the anniversary of the last annual report by the offender under this Act or a corresponding law falls.

15—Insertion of section 15A

This clause inserts a new section as follows:

15A—Serious registrable offender may be required to make additional reports

The inserted section allows the Commissioner, by declaration, to impose additional reporting requirements on a serious registrable offender if the Commissioner has reason to suspect that the offender may not comply with his or her reporting requirements, or poses a risk to the safety and well-being of children. A declaration by the Commissioner can only operate for a total of up to 2 years. The proposed section also, however, allows the Magistrates Court, on application by the Commissioner, to impose additional reporting requirements and such an order is not subject to the same 2 year limitation. A declaration or order under the proposed section ceases to be of any force or effect on the expiration of the serious registrable offender's reporting period. A definition for additional reporting requirements has also been inserted, and limits an order being made that requires a registrable offender to report more frequently than monthly.

16—Amendment of section 16—Registrable offender must report changes to relevant personal details

This clause shortens relevant reporting periods under section 16 from 14 and 28 days to 7 days. The clause also requires changes in personal details occurring during a suspension of reporting requirements to be reported within 7 days of cessation of the suspension.

17—Amendment of section 17—Intended absence from South Australia to be reported

A registrable offender who intends to leave South Australia for a period of 7 consecutive days or more will be required to report intended travel details within 7 days of the intended travel. Currently, registrable offenders are only required to report absence from South Australia if the registrable offender intends to be absent for 14 or more consecutive days.

18—Amendment of section 19—Registrable offender to report return to South Australia or decision not to leave

Amendments made to this section shorten the timeframe within which a registrable offender must report on his or her return to South Australia or where he or she has decided not to leave the State. In addition, if the registrable offender travelled out of Australia, he or she must present his or her passport for inspection and copying within 14 days of his or return to South Australia under the section as amended.

19—Insertion of section 20A

This clause inserts a new section as follows:

20A—Report of reportable contact

The proposed section requires that a registrable offender report reportable contact with a child within 2 days of the reportable contact occurring. This means that reporting is required within 2 days after the third occasion of contact with the child.

20—Amendment of section 21—Where report is to be made

These provisions expand on the locations that registrable offenders might make their reports. Offenders must, if directed by the Commissioner, report from their usual residential premises or at a particular police station or, if no such direction is given, must report at a place approved (either generally or in a particular case) by the Commissioner.

21—Amendment of section 22—How report is to be made

These amendments specify various reports that must be made in person. The provision, however, allows a registrable offender to report by electronic means (including by email or other form of electronic transmission) if the Commissioner so approves either generally or in the particular case. In addition, the amendments clarify the position for children and people with a disability that makes reporting impossible or impracticable.

22—Amendment of section 23—Right to privacy and support when reporting

This clause is consequential to the increase in flexibility in terms of where a registrable offender can report.

23—Amendment of section 25—Additional matters to be provided

The section as amended requires that if a registrable offender attends to report in person, he or she must provide a copy of his or her current passport for inspection and photocopying. Currently, this is not a reporting requirement.

24—Amendment of section 32—Suspension of reporting obligations

Changes made by this clause are consequential to the insertion of Part 5A and clarify that a period during which reporting requirements are suspended will not count towards a total reporting period expressed as a number of years.

25—Insertion of section 36A

This clause inserts a new section as follows:

36A—Division doesn't apply to additional reporting obligations

The proposed section provides that the provisions about reporting requirements in Division 5 do not apply to additional reporting requirements under proposed section 15A (which will be governed by the relevant declaration or order).

26—Amendment of heading

The change to the heading to Part 3 Division 6 is consequential to the insertion of proposed Part 5A.

27—Amendment of section 38—Order for suspension

This clause has 2 purposes. Firstly, it makes a minor terminology change, directing the Supreme Court to consider the 'safety and well-being' of children, rather than only the sexual safety of children, when making an order suspending reporting requirements. Secondly, it directs the Supreme Court, when making an order suspending reporting requirements under the Act, to consider whether the registrable offender has ever been subject to a declaration or order under proposed Part 2A or proposed section 15A.

28—Amendment of section 44—Offences of failing to comply with reporting obligations

Section 44 is amended to create a further offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse. The maximum penalty for the offence is a $25,000 fine or imprisonment for 5 years.

29—Amendment of section 45—Offences of furnishing false or misleading information

The amendment to this section makes it an offence to furnish information in relation to reportable contact with a child that the person knows to be false or misleading in a material particular, the maximum penalty being $25,000 or imprisonment for 5 years.

30—Amendment of section 48—Notice to be given to registrable offender

This provision is consequential and provides that a registrable offender be given notice of certain matters under the Act.

31—Amendment of section 60—Register of child sex offenders

Amendments made by this clause provide for information relating to declarations under Part 2A and 5A and requirements under section 66G to be recorded in the Register of child sex offenders.

32—Substitution of heading to Part 5

The change to the heading of Part 5 reflects that the Part will be broader in scope under the proposed measure.

33—Amendment of section 64—Interpretation

Amendments to this section have 2 purposes. Firstly, the definition of child related work is expanded to include taxi services and hire car services. Secondly, consequential to the insertion of section 66, the amendments provide the circumstances in which proceedings are considered finalised for the purposes of the Part.

34—Insertion of section 65A

This clause inserts a new section as follows:

65A—Offence to fail to disclose certain matters to Commissioner

This provision allows the Commissioner to give a person arrested or reported for a class 1 or class 2 offence a written notice requiring the person to provide the Commissioner with information as to whether or not he or she currently engages in any work, has applied for any work, or will commence engaging in any work, as well as the details of that work. A notice under this section must be served on the person to whom the notice relates personally and is not binding on the person until so served. In order to effect service, a police officer may require a person to remain at a particular place, or detain the person for a period of up to 2 hours. A person who fails to comply with a notice given to the person under the proposed section is guilty of an offence, and may be liable to a maximum penalty of a $10,000 fine or imprisonment for 2 years. Further, the inserted section allows a police officer to make such enquiries as the officer thinks necessary to verify information required under a notice, including advising any employer or prospective employer of a person that the person has been arrested or reported for a class 1 or class 2 offence.

35—Substitution of section 66

This section substitutes a new section 66 as follows:

66—Offence to fail to disclose arrest or report

The proposed section creates 3 new offences. Firstly, a person engaged in child-related work who is arrested or reported for a class 1 or class 2 offence must disclose that fact to his or her employer within 7 days of being so arrested or reported. Secondly, a person who applies for child-related work and who has been arrested or reported for a class 1 or class 2 offence must disclose the arrest or report to his or her prospective employer at the time of making the application. Finally, a person who has applied for child-related work and who, while the application is still current, is arrested or reported for a class 1 or class 2 offence must disclose that fact to his or her prospective employer. Child related work includes work performed under a contract for services. The maximum penalty for each offence is a $5,000 fine. Under the inserted section, the Commissioner may give a person a notice advising of his or her obligations under the section and the consequences that may arise if the person fails to comply with those obligations. If a person is given a notice, the Commissioner must ensure that a determination is made, within a reasonable time, as to whether to charge the person with a class 1 or class 2 offence. It is a defence to a charge of an offence under the section if the person did not receive notice or was otherwise unaware of the obligation, or if the person did not know that the work was child-related work.

36—Insertion of Part 5A

This clause inserts a new Part 5A which provides powers for the Commissioner to modify the reporting requirements of registrable offenders in appropriate cases and a new Part 5B which allows for publication by the Commissioner of personal details of a registrable offender where it is suspected that the offender is in breach of the Act and cannot be located.

Part 5A—Modifications and suspensions granted by Commissioner

66A—Power to make declaration modifying reporting obligations

The proposed section gives the Commissioner a general power to make a declaration, on application by a registrable offender, modifying the offender's reporting requirements under the Act. The Commissioner may require that a registrable offender participates in a risk assessment prior to considering an application. The proposed section also provides factors the Commissioner must take into account and sets out circumstances in which a declaration may not be made.

66B—Power to make declaration suspending reporting obligations of registrable offender with disability

Under proposed section 66B, the Commissioner has the power to suspend a registrable offender's reporting obligations if satisfied that the registrable offender has a disability that makes it impossible for the offender to satisfy his or her reporting obligations and does not pose a risk to the safety and well-being of children. The Commissioner may exercise this power on application by a person or of his or her own motion.

66C—General provisions relating to declarations under Part

The proposed section provides that applications for a declaration under the new Part must be made in the prescribed manner and form and be accompanied by the fee (if any) prescribed by regulation. An application for a declaration under the new Part may only be made if more than 12 months have elapsed since the last application was made by the person. In addition, the Commissioner may vary any declaration made at any time, and may revoke a declaration if the person is arrested for a class 1 or class 2 offence, or if any of the grounds upon which the declaration was made change.

66D—Appeal to District Court

This proposed section provides for an appeal to the Administrative and Disciplinary Division of the District Court by an offender who is aggrieved by a decision made by the Commissioner under the new Part.

Part 5B—Publication of information about registrable offenders

66DA—Commissioner may publish personal details of certain registrable offenders

Under proposed section 66DA, the Commissioner may publish the personal details (including a photograph) of a registrable offender if satisfied that the registrable offender has failed to comply with his or her reporting requirements, or has provided information that is false or misleading, and the offender's whereabouts are not known to the Commissioner. The Commissioner is prohibited from publishing personal details in the circumstances set out in the proposed section.

66DB—Commissioner may take into account certain matters

The proposed section sets out the matters that the Commissioner may take into account when determining whether or not to publish a registrable offenders details under proposed section 66DA. In addition the proposed section provides that the Commissioner must take reasonable steps to consult with any persons that may be affected by the publication of personal details prior to that publication.

66DC—Protection as to publication and other provision of information

No liability will attach to the Commissioner or the Crown for publishing or providing, or not publishing or providing, information under the proposed Part.

66DD—Conduct intended to incite animosity towards or harassment of identified offenders and other people

Proposed section 66DD creates 2 new offences. A person is guilty of an offence if her or she engages in conduct intending to cause animosity towards, or harassment of, a registrable offender whose details are published under the proposed Part, or an associate of such an offender. The maximum penalty for that offence is 10 years imprisonment. The proposed section also creates a lesser offence of engaging in conduct that is likely to cause animosity towards or harassment of such an offender or associate, the maximum penalty being 2 years imprisonment.

66DE—Publication, display and distribution of identifying information

Under proposed section 66DE, a person must not publish, distribute or display certain identifying information without having first obtained the written approval of the Minister. A failure to do so constitutes an offence, with the maximum penalty being 2 years imprisonment.

37—Insertion of sections 66E, 66F and 66G

This clause inserts 3 new sections in Part 6 as follows:

66E—Change of name of registrable offender

This provision requires that a registrable offender obtain the Commissioner's written permission before changing, or applying to change, the offender's name under the Births, Deaths and Marriages Registration Act 1996 or a law corresponding to that Act. A failure by the registrable offender to obtain the Commissioner's written permission before changing or applying to change his or her name is an offence which carries a maximum penalty of a $10,000 fine or imprisonment for 2 years. In addition, a court that convicts a person of an offence against the section may declare a change of name registered under the Births, Deaths and Marriages Registration Act 1996 in relation to the person to be void.

66F—Power to enter and search premises

This provision gives a police officer the power to enter into, break open and search any premises that the police officer suspects on reasonable grounds are occupied by, or under the care, control or management of, a serious registrable offender. In exercising the power, the police may inspect, or remove and inspect, any computer or device capable of storing electronic data at those premises. In addition, if data stored on a computer or other device being inspected or removed by a police officer requires a password, the registrable offender must provide the password. Failure to do so constitutes an offence, with the maximum penalty being imprisonment for 2 years.

66G—Tracking devices

This provision allows the Commissioner to issue a requirement to a serious registrable offender that he or she wear or carry a tracking device supplied by the Commissioner for the purpose of monitoring his or her whereabouts. The serious registrable offender to whom it is issued must wear or carry the device, take reasonable care to maintain the device undamaged and comply with all reasonable directions of the Commissioner in relation to the device during the period for which the requirement applies. The Commissioner may vary or revoke a requirement under this section at any time, on his or her own initiative or on application by the serious registrable offender. The proposed section also includes appeal provisions for a registrable offender against decisions made by the Commissioner under the proposed section.

38—Amendment of section 67—Confidentiality of information

Changes to this section are consequential.

39—Insertion of section 72A

This clause inserts a new section as follows:

72A—Service

The proposed section inserts standard provisions regarding service, necessary to allow the service of notices and other documents on registrable offenders.

40—Amendment of Schedule 1

This clause updates Schedule 1 by designating new relevant State and Commonwealth criminal offences as class 1 and class 2 offences.

Schedule 1—Related amendments

Part 1—Related amendments to Bail Act 1985

1—Amendment of section 11—Conditions of bail

This clause amends the Bail Act to provide that a bail applicant who is charged with a class 1 or class 2 offence will be subject to conditions that the applicant agrees not to apply for, or to engage in, child related work. A bail authority may only vary or revoke those conditions if satisfied that there are cogent reasons for doing so and the applicant for bail will not pose a risk to the safety and well being of children.

Part 2—Related amendment to Criminal Law (Forensic Procedures) Act 2007

2—Amendment of section 20—Offenders procedures

The effect of this provision is that any person who is a registrable offender under the Child Sex Offenders Registration Act 2006 may be subjected to a simple identity procedure (ie the taking of prints of the hands or fingers or the taking of forensic material from a person by buccal swab or finger-prick for the purpose of obtaining a DNA profile) under the Criminal Law (Forensic Procedures) Act 2007.

Part 3—Related amendment to Summary Offences Act 1953

3—Amendment of section 74A—Power to require statement of name and other personal details

Under section 74A a police officer may require a person to state their personal details if he or she has reasonable cause to suspect that the person has committed, is committing, or is about to commit, an offence or may be able to assist in the investigation of an offence or a suspected offence. At present 'personal details' is defined to include a person's 'business address' but the proposed amendment would provide a broader alternative that is applicable where the police officer has reasonable cause to suspect that a person has committed, is committing, or is about to commit a sexual offence involving a child or children and that includes the name and address of any place where the person works as an employee, independent contractor, volunteer or in any other capacity).

Debate adjourned on motion of Hon. D.W. Ridgway.

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