New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Child Protection (Offenders Prohibition
Orders) Bill 2004
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
Part 2 Child protection prohibition orders
4 Commissioner of Police may apply for orders 3
5 Local Court may make child protection prohibition order 3
6 Term of prohibition orders 4
7 Interim prohibition orders 4
8 Conduct that may be the subject of orders 5
9 Explanation of orders 5
10 Orders by consent 6
11 Variation or revocation of prohibition orders 6
12 Notification of orders made in absence of registrable person 7
Child Protection (Offenders Prohibition Orders) Bill 2004
Contents
Page
13 Contravention of orders 7
14 Applications not to be determined in public 7
15 Appeal does not stay order 8
16 Information relating to registrable persons 8
Part 3 Miscellaneous
17 Applications for orders against young registrable persons 9
18 Restriction on publication of identity of registrable persons
and victims 9
19 Recognition of prohibition orders made in other jurisdictions 10
20 Nature of proceedings for offences 10
21 Regulations 11
22 Amendment of other Acts 11
23 Savings and transitional provisions 11
24 Review of Act 11
Schedule 1 Amendment of other Acts 12
Schedule 2 Savings and transitional provisions 15
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Child Protection (Offenders Prohibition
Orders) Bill 2004
Act No , 2004
An Act with respect to orders prohibiting certain offenders who pose a risk to the
lives or sexual safety of children from engaging in specified conduct; and for
other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Child Protection (Offenders Prohibition Orders) Bill 2004
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Child Protection (Offenders Prohibition Orders)
Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
(1) In this Act:
child means any person who is under the age of 18 years.
conduct includes an act or omission or a course of conduct.
exercise a function includes perform a duty.
function includes a power, authority or a duty.
government agency includes any public or local authority.
interim prohibition order means an interim child protection
prohibition order granted under section 7.
prohibition order means a child protection prohibition order
granted under section 5, and includes an interim prohibition order.
registrable offence has the same meaning as in the Child Protection
(Offenders Registration) Act 2000.
registrable person has the same meaning as in the Child Protection
(Offenders Registration) Act 2000.
young registrable person means a registrable person who is under
the age of 18 years.
(2) For the purposes of this Act, a person poses a risk to the lives or
sexual safety of one or more children or children generally if there
is a risk that the person will engage in conduct that may constitute a
registrable offence against or in respect of a child or children.
(3) Notes included in this Act do not form part of this Act.
Page 2
Child Protection (Offenders Prohibition Orders) Bill 2004 Clause 4
Child protection prohibition orders Part 2
Part 2 Child protection prohibition orders
4 Commissioner of Police may apply for orders
An application may be made by the Commissioner of Police to a
Local Court for an order under this Part prohibiting a registrable
person from engaging in specified conduct.
Note. Part 6 of the Local Courts Act 1982 sets out the procedures for the
making and hearing of applications and confers rights to appeal against the
granting of prohibition orders.
5 Local Court may make child protection prohibition order
(1) A Local Court may make a child protection prohibition order
prohibiting a person from engaging in conduct specified in the order
if it is satisfied that the person is a registrable person and that, on the
balance of probabilities:
(a) there is reasonable cause to believe, having regard to the
nature and pattern of conduct of the person, that the person
poses a risk to the lives or sexual safety of one or more
children, or children generally, and
(b) the making of the order will reduce that risk.
(2) A Local Court may make an order under this section against a young
registrable person only if, in addition to the matters set out in
subsection (1), it is satisfied that all other reasonably appropriate
means of managing the conduct of the person have been considered
before the order was sought.
(3) In determining whether to make an order under this section against
a registrable person, a Local Court is to consider the following:
(a) the seriousness of each offence with respect to which the
person is a registrable person,
(b) the period of time since those offences were committed,
(c) the age of the person when those offences were committed,
(d) the age of each victim of the offences when they were
committed,
(e) the difference in age between the person and each such
victim,
(f) the person's present age,
(g) the seriousness of the person's total criminal record,
Page 3
Clause 6 Child Protection (Offenders Prohibition Orders) Bill 2004
Part 2 Child protection prohibition orders
(h) the effect of the order sought on the person in comparison
with the level of the risk that a further registrable offence may
be committed by the person,
(i) to the extent that they relate to the conduct sought to be
prohibited, the circumstances of the person, including the
person's accommodation, employment needs and integration
into the community,
(j) in the case of a young registrable person, the educational
needs of the person,
(k) any other matters it thinks relevant.
(4) The Local Court is not required to be satisfied that the person is
likely to pose a risk to a particular child or children or a particular
class of children.
(5) If a registrable person against whom an order is sought is already
subject to a prohibition order and no application has been made to
revoke the existing order, the Local Court must, if it decides to make
the order:
(a) revoke the existing order and replace it with a new order
(which may contain matters relating to the existing order), or
(b) vary the existing order to include the matters with respect to
which it has decided to make the order.
(6) An order is not invalidated by a failure to comply with
subsection (5).
6 Term of prohibition orders
The Local Court must specify the term of a prohibition order (other
than an interim prohibition order) being a term of not more than
5 years or, in the case of a young registrable person, not more than
2 years, after it is made.
7 Interim prohibition orders
(1) A Local Court may make an interim child protection prohibition
order prohibiting a registrable person from engaging in specified
conduct if it appears to the Local Court that it is necessary to do so
to prevent an immediate risk to the lives or sexual safety of one or
more children, or children generally.
(2) An interim prohibition order may be made by a Local Court whether
or not:
Page 4
Child Protection (Offenders Prohibition Orders) Bill 2004 Clause 8
Child protection prohibition orders Part 2
(a) the registrable person is present at the proceedings, or
(b) the registrable person has been given notice of the
proceedings.
(3) The Local Court is not required to be satisfied that the person is
likely to pose a risk to a particular child or children or a particular
class of children.
(4) If an interim prohibition order is made by a Local Court, the Court
must issue a court attendance notice requiring the registrable person
to attend the Court for a further hearing of the matter as soon as
practicable after the interim order is made.
(5) At the further hearing, the Local Court may confirm the prohibition
order (with or without variation) or revoke it.
(6) An interim prohibition order remains in force until it is revoked or
the relevant application is withdrawn or dismissed, whichever
occurs first.
(7) Section 5 does not apply to an application for an order under
subsection (1).
8 Conduct that may be the subject of orders
(1) A prohibition order may prohibit conduct of the following kind:
(a) associating with or other contact with specified persons or
kinds of persons,
(b) being in specified locations or kinds of locations,
(c) engaging in specified behaviour,
(d) being in specified employment or employment of a specified
kind.
(2) Subsection (1) does not limit the kinds of conduct that may be
prohibited by a prohibition order.
9 Explanation of orders
(1) A Local Court that makes a prohibition order must ensure that all
reasonable steps are taken to explain to the registrable person (in
language that the registrable person can readily understand):
(a) the person's obligations under the order, and
(b) the consequences that may follow if the person fails to comply
with those obligations.
(2) An order is not invalidated by a failure to comply with this section.
Page 5
Clause 10 Child Protection (Offenders Prohibition Orders) Bill 2004
Part 2 Child protection prohibition orders
10 Orders by consent
(1) A Local Court may make a prohibition order (other than an interim
prohibition order), without being satisfied as to the matters referred
to in section 5, if the applicant and the registrable person consent to
the making of the order.
(2) A Local Court may make an interim prohibition order, without
being satisfied as to the matters referred to in section 7, if the
applicant and the registrable person consent to the making of the
order.
(3) The Local Court is not required to conduct a hearing before making
an order under this section unless the Local Court is of the opinion
that it is in the interests of justice to conduct the hearing.
(4) Without limiting subsection (3), in determining whether it is in the
interests of justice to conduct the hearing the Local Court may have
regard to the following:
(a) whether the registrable person has obtained legal advice in
relation to the order concerned,
(b) whether the person:
(i) has impaired intellectual functioning, or
(ii) is subject to a guardianship order (within the meaning
of the Guardianship Act 1987), or
(iii) is illiterate, or is not literate in the English language, or
(iv) is subject to some other condition that may prevent the
person from understanding the effect of giving consent
to the order.
(5) The registrar of a Local Court may not exercise the functions of a
Local Court under this section.
11 Variation or revocation of prohibition orders
(1) An application may be made to a Local Court by the Commissioner
of Police or a person subject to a prohibition order for an order
varying or revoking a prohibition order.
(2) The application must be accompanied by a copy of the relevant
order, together with any variations to it that have been made under
this Part.
(3) A person subject to a prohibition order may not make an application
except by leave of the Local Court. Leave may be granted only if the
Local Court is satisfied that, having regard to changes in the
Page 6
Child Protection (Offenders Prohibition Orders) Bill 2004 Clause 12
Child protection prohibition orders Part 2
applicant's circumstances since the order was granted or last varied,
it is in the interests of justice that leave be granted.
(4) The Local Court may dispose of the application:
(a) by varying or revoking the prohibition order, or
(b) by dismissing the application.
(5) For the purposes of an application under this section, the respondent
to an application is:
(a) in the case of an application made by the Commissioner of
Police, the registrable person subject to the prohibition order,
and
(b) in the case of an application made by a registrable person
subject to a prohibition order, the Commissioner of Police.
12 Notification of orders made in absence of registrable person
The registrar of a Local Court that makes or varies or revokes a
prohibition order against a registrable person in the absence of the
person must cause a copy of the order to be served on the person.
13 Contravention of orders
(1) A person who is subject to a prohibition order must not, without
reasonable excuse, contravene the prohibition order.
Maximum penalty: 100 penalty units or imprisonment for 2 years,
or both.
(2) A police officer may, without a warrant, arrest a person if the police
officer suspects on reasonable grounds that the person has
committed an offence under this section.
(3) A police officer who arrests a person under this section must, as
soon as is reasonably practicable, take the person before an
authorised person (within the meaning of the Criminal Procedure
Act 1986) to be dealt with according to law.
14 Applications not to be determined in public
(1) Proceedings for an application under this Part must be heard in the
absence of the public.
(2) Despite subsection (1), the Local Court hearing the proceedings
may, if it considers it to be appropriate, permit persons who are not
parties to the proceedings or their barristers, solicitors or
representatives to be present during the hearing of the proceedings.
Page 7
Clause 15 Child Protection (Offenders Prohibition Orders) Bill 2004
Part 2 Child protection prohibition orders
15 Appeal does not stay order
Despite any provision of the Crimes (Local Courts Appeal and
Review) Act 2001, an appeal under that Act against an order made
under this Act does not operate to stay the operation of the order
unless the court to which the appeal is made so orders.
Note. Section 64 of the Local Courts Act 1982 provides for a right of appeal
against the making of an order under this Act. Section 63 of the Crimes (Local
Courts Appeal and Review) Act 2001 provides for a stay of orders on appeal.
16 Information relating to registrable persons
(1) For the purposes of determining whether to make an application
under this Part, or making an application under this Part, the
Commissioner of Police may, by notice in writing served on a
government agency, direct the government agency to provide to the
Commissioner, on or before a day specified in the notice, any
information held by the agency that is relevant to the assessment of
the risk posed by a registrable person to the lives or sexual safety of
one or more children, or children generally.
(2) A government agency is authorised and required to provide
information requested under subsection (1) to the Commissioner of
Police.
(3) A government agency is not required to give information that is
subject to legal or other professional privilege.
Page 8
Child Protection (Offenders Prohibition Orders) Bill 2004 Clause 17
Miscellaneous Part 3
Part 3 Miscellaneous
17 Applications for orders against young registrable persons
The Commissioner of Police may not delegate the function of
making an application for a prohibition order against a young
registrable person, or to vary or revoke any such prohibition order,
to a person other than a member of NSW Police of the rank of
inspector or above having responsibility for child protection
matters.
Note. The Commissioner of Police may delegate his or her powers under
section 31 of the Police Act 1990.
18 Restriction on publication of identity of registrable persons and
victims
(1) A person must not publish in relation to any proceedings relating to
an order under this Act:
(a) information that identifies or is reasonably likely to enable the
identification of a person as the person against whom the
order is sought or any such order is made,
(b) the name of any victim of a registrable offence committed by
a registrable person,
(c) the name of any particular person referred to as a person at
risk because of the conduct proposed to be prohibited,
(d) any matter reasonably likely to enable a person referred to in
paragraph (b) or (c) to be identified.
Maximum penalty: 100 penalty units or imprisonment for 2 years,
or both.
(2) This section does not apply in relation to the publication of any
matter with the authority of the Local Court to which the application
was made or any publication by a person of his or her name.
(3) This section does not apply in relation to the publication of any
matter to any of the following persons:
(a) the registrable person,
(b) any other person or class of persons specified in the order
concerned,
(c) any member of NSW Police or a member of a law
enforcement agency of the Commonwealth or another State or
Territory (including CrimTrac) in their official capacity,
Page 9
Clause 19 Child Protection (Offenders Prohibition Orders) Bill 2004
Part 3 Miscellaneous
(d) any person involved in the administration of the order,
(e) any member of staff of a government agency involved in the
assessment and management of a registrable person,
(f) any person for the purpose of an investigation of an alleged
breach of an order or to any person involved in proceedings
for any such breach,
(g) any other person to whom it is required or permitted to be
disclosed pursuant to any other Act or law.
19 Recognition of prohibition orders made in other jurisdictions
(1) Regulations may be made for or with respect to the recognition of
orders made by a court of a jurisdiction other than this State
(including jurisdictions outside Australia) that are similar in nature
to prohibition orders (corresponding prohibition orders).
(2) In particular, regulations may be made for or with respect to the
following matters:
(a) the recognition of corresponding prohibition orders in this
State,
(b) applications for recognition in this State of corresponding
prohibition orders,
(c) the conferral on registrars of Local Courts, or Local Courts, of
jurisdiction with respect to recognition in this State of
corresponding prohibition orders,
(d) the modification of corresponding prohibition orders for the
purposes of recognition in this State,
(e) the effect of recognition of corresponding prohibition orders
in this State,
(f) the conferral on Local Courts of jurisdiction with respect to
the variation or revocation of corresponding prohibition
orders.
20 Nature of proceedings for offences
Proceedings for an offence under this Act or the regulations may be
dealt with summarily before a Local Court.
Page 10
Child Protection (Offenders Prohibition Orders) Bill 2004 Clause 21
Miscellaneous Part 3
21 Regulations
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) A regulation may create an offence punishable by a penalty not
exceeding 50 penalty units.
22 Amendment of other Acts
Each Act specified in Schedule 1 is amended as set out in that
Schedule.
23 Savings and transitional provisions
Schedule 2 has effect.
24 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House
of Parliament within 12 months after the end of the period of 5
years.
Page 11
Child Protection (Offenders Prohibition Orders) Bill 2004
Schedule 1 Amendment of other Acts
Schedule 1 Amendment of other Acts
(Section 22)
1.1 Child Protection (Offenders Registration) Act 2000 No 42
Section 20A
Insert after section 20:
20A Application of reporting obligations to persons subject to child
protection prohibition orders
(1) If a child protection prohibition order is made against a
registrable person, the reporting obligations of the registrable
person recommence or continue to apply to the registrable
person for the term of the order, despite any other provision
of this Act.
(2) Subsection (1) does not affect any period of the application of
reporting obligations to a registrable person under this Act
that exceeds the period for which a prohibition order is in
force.
(3) A person whose reporting obligations are recommenced by
this section must notify the Commissioner of Police of the
person's relevant personal information not later than 28 days
after the order is made or within such other period as the
regulations may prescribe.
(4) The regulations may prescribe the manner in which
information is to be notified under this section.
(5) In this section, child protection prohibition order means a
prohibition order within the meaning of the Child Protection
(Offenders Prohibition Orders) Act 2004.
1.2 Commission for Children and Young People Act 1998 No 146
[1] Section 33 Definitions
Insert in alphabetical order in section 33 (1):
child protection prohibition order means a prohibition order
within the meaning of the Child Protection (Offenders
Prohibition Orders) Act 2004, and includes an order which
has expired or been revoked.
Page 12
Child Protection (Offenders Prohibition Orders) Bill 2004
Amendment of other Acts Schedule 1
[2] Section 34 Nature of employment screening
Insert ", for any child protection prohibition orders made against the
person" after "person" where secondly occurring in section 34 (a).
[3] Section 36 Functions of Commission in respect of employment
screening
Insert ", child protection prohibition orders made against any person" after
"person" where firstly occurring in section 36 (1) (a).
[4] Section 38 Notification of information relating to relevant criminal
records or other orders
Insert "or any child protection prohibition orders in respect of persons,"
after "persons," where secondly occurring in section 38 (1).
1.3 Evidence (Children) Act 1997 No 143
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
child protection prohibition order means a prohibition order
within the meaning of the Child Protection (Offenders
Prohibition Orders) Act 2004, and includes an interim child
protection prohibition order made under that Act.
[2] Section 17 Proceedings to which Part applies
Insert at the end of section 17 (d):
, and
(e) a proceeding in relation to an application for a child
protection prohibition order or to vary or revoke any
such order or a proceeding in relation to a contravention
of any such order.
[3] Section 27 Children have a right to presence of a supportive
person while giving evidence
Insert at the end of section 27 (1) (d):
, and
(e) a proceeding in relation to an application for a child
protection prohibition order or to vary or revoke any
such order.
Page 13
Child Protection (Offenders Prohibition Orders) Bill 2004
Schedule 1 Amendment of other Acts
1.4 Local Courts Act 1982 No 164
Section 36 Proceedings to which Part does not apply
Insert after section 36 (2) (b):
(c) applications for orders, or to vary or revoke any such
orders, under the Child Protection (Offenders
Prohibition Orders) Act 2004.
Page 14
Child Protection (Offenders Prohibition Orders) Bill 2004
Savings and transitional provisions Schedule 2
Schedule 2 Savings and transitional provisions
(Section 23)
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
2 Application of Act to previous actions
This Act applies to or in respect of a person who was a registrable
person immediately before the commencement of this clause.
Page 15
[Index] [Search] [Download] [Related Items] [Help]