Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Child Protection (Offenders Registration) Act
2000 (the Principal Act), the Crimes (Forensic Procedures) Act 2000 and the
Freedom of Information Act 1989, for the following purposes:

(a) to provide that the offence of sexual assault by forced self-manipulation
committed against a child is a registrable offence under the Principal Act,

(b) to make further provision with respect to classification as a registrable person
or a corresponding registrable person under the Principal Act,

(c) to provide for further circumstances in which a child protection registration
order may be made under the Principal Act,

(d) to extend the reporting obligations of persons under the Principal Act,

(e) to provide for the suspension of such reporting obligations when a person is
also subject to an interim or extended supervision order under the Crimes
(Serious Sex Offenders) Act 2006,

(f) to increase the maximum penalties for failing to comply with reporting
obligations and for providing false or misleading information when reporting,

(g) to authorise the conduct of certain forensic procedures on registrable persons,

(h) to require a registrable person to seek the approval of the Commissioner of
Police before making an application to change his or her name under the
Births, Deaths and Marriages Registration Act 1995 or a similar Act of
another State or a Territory,
        (i) to make it offence for a person to disclose information about a registrable
person in certain circumstances,

(j) to exempt certain documents relating to persons under the Principal Act from
the operation of the Freedom of Information Act 1989,

(k) to provide for a further review of the Principal Act.

The Bill also makes other minor and consequential amendments, including to other
Acts.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act.

Clause 3 is a formal provision that gives effect to the amendments to the Child
Protection (Offenders Registration) Act 2000 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Crimes
(Forensic Procedures) Act 2000 set out in Schedule 2.

Clause 5 is a formal provision that gives effect to the amendment to the Freedom of
Information Act 1989 set out in Schedule 3.

Clause 6 is a formal provision that gives effect to the amendments to the Acts set out
in Schedule 4.

Clause 7 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Child Protection
(Offenders Registration) Act 2000 No 42
Registrable persons
Under the Principal Act, persons who are found guilty of, and sentenced, in respect
of certain offences relating to children are required to report relevant personal
information to police and to keep that information up to date. Those persons are
referred to as registrable persons under the Principal Act.

The offences that give rise to reporting obligations under the Principal Act are
generally categorised into Class 1 offences and Class 2 offences. Class 1 offences are
the most serious offences. A longer reporting period applies to persons found guilty
of a Class 1 offence than to persons found guilty of Class 2 offences. Schedule 1 [2]
makes an offence against section 80A of the Crimes Act 1900 (Sexual assault by
forced self-manipulation), where the offence is committed against a child, a Class 1
offence.

At present, a person is also not required to report under the Principal Act if the person
is found guilty of a single Class 2 offence, as long as the person’s sentence for the
offence does not include a term of imprisonment or other supervision. Schedule 1 [4]
removes this exclusion, with the result that a person found guilty of a single Class 2
offence may be required to comply with the reporting requirements under the
Principal Act.

Corresponding registrable persons
Currently, the Principal Act also requires corresponding registrable persons to
comply with the reporting requirements under the Principal Act. Corresponding
registrable persons are persons subject to reporting requirements in other
jurisdictions that are longer than those provided for by the Principal Act. At present,
the class of persons who fall within the definition of corresponding registrable person
is prescribed by the regulations. Schedule 1 [7] removes the need for the class of
persons who are considered to be corresponding registrable persons to be prescribed
by the regulations. However, the regulations will be able to exclude any class of
persons from falling within the definition.

As a result of the amendment to the definition, and the amendment in Schedule 1
[24], any person who is subject to reporting requirements under a corresponding Act,
or who is subject to reporting requirements under any other foreign law in respect of
a Class 1 or Class 2 offence, and who would be required to continue to comply with
those reporting requirements if he or she were still in that jurisdiction, will be
required to comply with the reporting requirements under the Principal Act. This will
include persons who are subject to reporting requirements in other jurisdictions that
pre-date the commencement of the Principal Act.

Child protection registration orders
At present, the Principal Act provides that a court may order a person found guilty of
an offence to comply with the reporting requirements of the Principal Act, even if the
offence is not a Class 1 or Class 2 offence. This order is referred to as a child
protection registration order. A child protection registration order may be made only
if the court is satisfied that the person poses a risk to the lives or sexual safety of one
or more children, or of children generally.

Schedule 1 [11] provides for additional types of child protection registration orders.

It also removes the current requirement for a review of provisions relating to child
protection registration orders (which is now redundant).

Proposed new section 3E provides that a child protection registration order may be
made by a Local Court after the conclusion of criminal proceedings in respect of the
relevant offence (at present, orders can only be made concurrently with sentencing).

An application for such an order by must be made by the Commissioner of Police
within 21 days after the person is sentenced.

Proposed section 3F provides that a child protection registration order may be made
by a Local Court in relation to a person found guilty of an offence in a foreign
jurisdiction and in relation to a person who has been sentenced for a Class 1 offence
committed before 15 October 2001. An application for such an order may be made
by the Commissioner of Police at any time.

Proposed section 3G provides that a child protection registration order may be made
by a court that grants bail to a person in respect of a Class 1 offence or a Class 2
offence under section 10 (3) (b), 14 (b) (ii) or 17 (2) of the Mental Health (Criminal
Procedure) Act 1990. Those sections relate to the procedure for dealing with an
alleged offender in respect of whom a question of unfitness to be tried has been
raised.

In all cases, a child protection registration order may be made only if the court is
satisfied that the person poses a risk to the lives or sexual safety of one or more
children, or of children generally (this concept is explained in proposed section 3H).

Schedule 1 [1], [5], [6] and [8]–[10] make consequential amendments.

Schedule 1 [12] provides for the notices that are to be given by a court when making
an order under proposed sections 3E, 3F or 3G. Schedule 1 [32] and [33] make
consequential amendments.

Reporting obligations
Schedule 1 [13] provides for additional relevant personal information that must be
reported by a registrable person. This includes telephone numbers, internet activity
details and any other information prescribed by the regulations.

Currently, a registrable person must provide information about the children residing
at a registrable person’s address and any children with whom the person has regular
unsupervised contact. At present, this information is required to be reported when the
relevant child is residing with the person, or when such contact occurs, for at least 14
days in any period of 12 months. Schedule 1 [14] reduces that 14-day time period to
3 days. In addition, Schedule 1 [16] provides that a change in such information is be
reported within 3 days after the change occurs. Schedule 1 [17] makes a
consequential amendment.

Schedule 1 [15] provides that the period within which an initial report of a registrable
person’s relevant personal information must be made is 7 days (instead of 14 or 28
days) in certain circumstances.

Schedule 1 [18] makes it compulsory for a registrable person who holds a current
passport to present that passport for identification purposes when reporting under the
Principal Act. Schedule 1 [19]–[22] make consequential amendments.

Schedule 1 [25] provides for the suspension of reporting obligations under the
Principal Act during the period (if any) in which a registrable person is subject to any
interim or extended supervision order under the Crimes (Serious Sex Offenders) Act
2006.

Schedule 1 [26] and [27] increase the penalties for failing to comply with reporting
obligations under the Principal Act and for furnishing false or misleading
information in purported compliance with reporting obligations, respectively. Such
offences will now carry a maximum penalty of 500 penalty units or imprisonment for
5 years, or both, if dealt with on indictment. (A lower penalty will apply under
amendments to the Criminal Procedure Act 1986 if the offence is dealt with
summarily).

Schedule 1 [29] makes a consequential amendment in relation to proceedings for
offences under the Principal Act.

Change of name by registrable person
Schedule 1 [28] requires a registrable person to seek the approval of the
Commissioner of Police before making an application to change his or her name
under the Births, Deaths and Marriages Registration Act 1995 or a similar law of
another State or a Territory. The proposed amendments are closely modelled on
proposed amendments to the Sex Offenders Registration Act 2004 of Victoria.

The Commissioner of Police will be able to approve a change of name only if
satisfied that the change of name is necessary or reasonable. The Commissioner must
not give approval where the change is reasonably likely to be regarded as offensive
by a victim of crime or an appreciable sector of the community, or reasonably likely
to frustrate the administration of justice in respect of the registrable person.

Other amendments
Schedule 1 [3] provides that, for the purposes of the Principal Act, a sentence
includes action taken by a court under section 10A of the Crimes (Sentencing
Procedure) Act 1999, that is, where a court convicts an offender and disposes of the
proceedings without imposing any other penalty.

Schedule 1 [31] makes it an offence (Maximum penalty: 100 penalty units or
imprisonment for 2 years, or both) for a person to disclose information about a
registrable person except in specified circumstances. Schedule 1 [30] makes a
consequential amendment.

Schedule 1 [34] removes a provision requiring the Ombudsman to monitor the initial
operation of the Principal Act, as this provision is now spent.

Schedule 1 [35] provides for a further review of the Principal Act to be undertaken
after the period of 5 years from the date of assent of the proposed Act.

Schedule 1 [36] enables savings and transitional regulations to be made as a
consequence of the proposed Act.

Schedule 1 [37] inserts savings and transitional provisions as a consequence of the
enactment of the proposed Act. These include provisions that make it clear that:

(a) the changes to the definition of registrable person made by the proposed Act
apply only in relation to sentences imposed on or after the commencement of
the changes (and accordingly does not affect the current registration of any
person), and

(b) the changes to the definition of corresponding registrable person extend to
persons who have reporting obligations imposed under a foreign law before
the commencement of the changes, and

(c) the new types of child protection registration orders may be made in respect of
persons found guilty of offences committed before the commencement of the
relevant provisions.

Schedule 2 Amendment of Crimes (Forensic
Procedures) Act 2000 No 59
Carrying out of certain forensic procedures on registrable persons
Currently, the Principal Act provides that registrable persons making a report to
police may be subject to fingerprinting and photographing (sections 12E–12H).

Schedule 2 [5] inserts proposed Part 7B into the Crimes (Forensic Procedures) Act
2000 to enable certain forensic procedures to be carried out on registrable persons
when making such reports. The procedures authorised are limited to the following:

(a) the carrying out of an other-administered buccal swab (an intimate forensic
procedure),

(b) the carrying out of the following non-intimate forensic procedures:

        (i) a self-administered buccal swab,
        (ii) the taking of a sample of hair other than pubic hair.

A procedure may be carried out only if it appears that the registrable person’s DNA
profile is not already contained in the offenders index of the DNA database system
under the Crimes (Forensic Procedures) Act 2000. The provisions of proposed Part
7B, which parallel those of Part 7 and 7A (which deal with forensic procedures
carried out on serious indictable offenders and on untested former offenders,
respectively) include:

(a) a provision that authorises a non-intimate forensic procedure to be carried out
on an untested registrable person with the person’s consent or on the order of
a senior police officer or a court,

(b) a provision that authorises an intimate forensic procedure to be carried out on
an untested registrable person with the person’s consent or on the order of a
court.

Forensic procedures will be required to be carried out in accordance with the
requirements of Part 6 of the Crimes (Forensic Procedures) Act 2000.

It will be an offence (punishable by a fine of 50 penalty units or 12 months
imprisonment, or both) for an untested registrable person to refuse or fail to permit
the procedure to be carried out in accordance with a court order.

Schedule 1 [23] and Schedule 2 [1]–[4] and [6]–[8] make consequential
amendments.

Schedule 3 Amendment of Freedom of Information
Act 1989 No 5
Freedom of information exemption
Schedule 3 amends the Freedom of Information Act 1989 so as to exempt documents
relating to offenders under the Principal Act from freedom of information
requirements, unless an offender wishes to access a document containing
information about himself or herself.

Schedule 4 Consequential amendments
Local Court amendments
Schedule 4.1, 4.3 and 4.4 make amendments consequential on the proposed repeal
of the Local Courts Act 1982 and subsequent proposed enactment of the Local Court
Act 2007.

Amendment of Criminal Procedure Act 1986
Schedule 4.2 amends the Criminal Procedure Act 1986 so as to provide that
indictable offences under section 17 or 18 of the Principal Act are triable summarily
on the election of the prosecutor. If the offence is tried summarily the maximum
penalty will be 100 penalty units or imprisonment for 2 years, or both.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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