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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Child Protection (Offenders
Registration) Amendment Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Child Protection (Offenders Registration)
Act 2000 No 42 2
4 Amendment of Crimes (Forensic Procedures) Act 2000
No 59 2
5 Amendment of Freedom of Information Act 1989 No 5 2
6 Consequential amendments 2
7 Repeal of Act 2
Schedule 1 Amendment of Child Protection (Offenders Registration)
Act 2000 No 42 3
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000
No 59 18
Schedule 3 Amendment of Freedom of Information Act 1989 No 5 25
Schedule 4 Consequential amendments 26
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, , 2007
New South Wales
Child Protection (Offenders
Registration) Amendment Bill 2007
Act No , 2007
An Act to amend the Child Protection (Offenders Registration) Act 2000 and certain
other Acts to make further provision with respect to registration and reporting
requirements for certain offenders.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Child Protection (Offenders Registration) Amendment Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Child Protection (Offenders Registration) Amendment
Act 2007.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by subsections (2) and (3).
(2) Schedule 4.1 [1] commences on the date of commencement of section
7 of the Local Court Act 2007, or the date of commencement of
Schedule 1 [11], whichever is the later.
(3) Schedule 4.1 [2] commences on the date of commencement of section
51 of the Local Court Act 2007, or the date of commencement of
Schedule 1 [11], whichever is the later.
3 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
The Child Protection (Offenders Registration) Act 2000 is amended as
set out in Schedule 1.
4 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
The Crimes (Forensic Procedures) Act 2000 is amended as set out
Schedule 2.
5 Amendment of Freedom of Information Act 1989 No 5
The Freedom of Information Act 1989 is amended as set out Schedule 3.
6 Consequential amendments
The Acts specified in Schedule 4 are amended as set out in that
Schedule.
7 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
Schedule 1 Amendment of Child Protection
(Offenders Registration) Act 2000 No 42
(Section 3)
[1] Section 3 Definitions
Omit "section 3D" from the definition of child protection registration order
in section 3 (1).
Insert instead "Part 2A".
[2] Section 3 (1), definition of "Class 1 offence"
Insert after paragraph (d) of the definition:
(d1) an offence against section 80A of the Crimes Act 1900,
where the person against whom the offence is committed
is a child, or
[3] Section 3 (1), definition of "sentence"
Insert ", any action taken under section 10A of the Crimes (Sentencing
Procedure) Act 1999" after "Children (Criminal Proceedings) Act 1987".
[4] Section 3A Registrable persons
Omit section 3A (2) (b).
[5] Section 3A (2) (d)
Insert "or the offence results in the making of a child protection registration
order against the person" after "existing controlled person".
[6] Section 3B Circumstances in which person ceases to be registrable
person
Insert "or otherwise ceases to have effect under this Act" after "appeal" in
section 3B (c).
[7] Section 3C
Omit the section. Insert instead:
3C Corresponding registrable persons
(1) A corresponding registrable person is a person who:
(a) had at any time been in a foreign jurisdiction and at that
time had been required to report to the corresponding
registrar, and
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
(b) would, if the person were currently in that jurisdiction, still
be required to report to that corresponding registrar.
(2) Subject to the regulations, a person is a corresponding registrable
person under subsection (1) even if the offence in respect of
which he or she is required to report in the foreign jurisdiction is
not a registrable offence for the purposes of this Act.
(3) A corresponding registrable person includes a person who:
(a) has been found guilty of an offence under a law of a
foreign jurisdiction that is a Class 1 offence or a Class 2
offence for the purposes of this Act, and
(b) as a consequence of having been found guilty of that
offence has been required to report in that jurisdiction
information about himself or herself to a person or body
exercising functions substantially similar to those of the
Commissioner of Police under this Act, and to keep that
information current for a particular period, and
(c) would, if the person were currently in that jurisdiction, still
be required to report that information.
(4) The regulations may exclude any person or class of persons from
being a corresponding registrable person.
[8] Part 2A, heading
Insert before section 3D:
Part 2A Child protection registration orders
[9] Section 3D Child protection registration orders made during criminal
proceedings
Omit section 3D (2)(5). Insert instead:
(2) A court may make an order under this section only if:
(a) 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, and
(b) the court imposes a sentence on the person in relation to
the offence (other than an order under section 10 of the
Crimes (Sentencing Procedure) Act 1999 or section 33 (1)
(a) of the Children (Criminal Proceedings) Act 1987), and
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
(c) an application for the imposition of the order is made by
the prosecution.
Note. The effect of subsection (2) (b) is to prevent a child protection
registration order being made in certain circumstances if an order is
made dismissing the charge or conditionally discharging the offender.
[10] Section 3D (7)
Omit the subsection.
[11] Sections 3E, 3F, 3G and 3H
Omit section 3E. Insert instead:
3E Child protection registration orders made after conclusion of
criminal proceedings
(1) A Local Court may, on application by the Commissioner of
Police, order a person who has been sentenced by a court of New
South Wales in respect of an offence that is not a Class 1 offence
or a Class 2 offence to comply with the reporting obligations
under this Act.
(2) A Local Court may make an order under this section only if:
(a) 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, and
(b) the sentence imposed on the person in respect of the
offence was not an order under section 10 of the Crimes
(Sentencing Procedure) Act 1999 or under section 33 (1)
(a) of the Children (Criminal Proceedings) Act 1987.
Note. The effect of subsection (2) (b) is to prevent a child
protection registration order being made if an order is made
dismissing the charge or conditionally discharging the offender.
(3) An application for an order under this section must be made
within 21 days after the person with respect to whom the order is
sought is sentenced for the relevant offence.
(4) For the purposes of Division 6 of Part 3, if a Local Court makes
an order in respect of a person under this section, the person is
taken to have been found guilty of, and sentenced for, a Class 2
offence on the date an order under this section is made.
3F Child protection registration orders made in relation to foreign
offences and offences committed before 15 October 2001
(1) A Local Court may, on application by the Commissioner of
Police, order any of the following persons to comply with the
reporting obligations of this Act:
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
(a) a person who has been found guilty of an offence against
the law of a foreign jurisdiction that, if the offence had
been committed in New South Wales, would have been an
offence under the law of New South Wales, and who is not
otherwise a registrable person in respect of that offence,
(b) a person who has (at any time) been sentenced by a court
for a Class 1 offence of which the person was found guilty
before 15 October 2001, unless the person was a child at
the time that the offence was committed.
(2) A Local Court may make an order under this section only if it is
satisfied that the person poses a risk to the lives or sexual safety
of one or more children, or of children generally.
(3) For the purposes of Division 6 of Part 3, if a Local Court makes
an order in respect of a person under this section, the person is
taken to have been found guilty of, and sentenced for, a Class 2
offence on the date an order under this section is made.
(4) Section 44 of the Local Courts Act 1982 does not apply to
proceedings for an order under this section.
(5) The fact that an offence in respect of which a person has been
found guilty is spent does not prevent the making of an order
under this section.
(6) For the purposes of this section, an offence is spent if, under a law
in any jurisdiction, the person is permitted not to disclose the fact
that the person was convicted or found guilty of the offence.
3G Child protection registration orders made after grant of bail under
Mental Health (Criminal Procedure) Act 1990
(1) 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 may order
that the person comply with the reporting obligations of this Act.
(2) A court may make an order under this section only if it is satisfied
that the person poses a risk to the lives or sexual safety of one or
more children, or of children generally.
(3) A court may make an order under this section only if:
(a) an application for the imposition of the order is made by
the prosecution, and
(b) the order is made concurrently with the granting of the
person's bail.
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Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
(4) For the purposes of Division 6 of Part 3, if a court makes an order
in respect of a person under this section the person is taken to
have been found guilty of, and sentenced for, a Class 2 offence
on the date the order is made.
(5) A decision to make an order under this section is a decision in
relation to bail for the purposes of Part 6 of the Bail Act 1978.
(6) An order made under this section ceases to have effect if:
(a) proceedings against the person in respect of the Class 1
offence or Class 2 offence are withdrawn by the
prosecution or dismissed by a court, or
(b) the person is sentenced by a court in respect of the Class 1
offence or Class 2 offence, or
(c) the order is quashed or set aside on a review of the decision
in relation to bail under the Bail Act 1978.
(7) Subsection (4) ceases to apply if the order ceases to have effect.
(8) If an order under this section ceases to have effect as a
consequence of the person having been sentenced by a court in
respect of the Class 1 offence or Class 2 offence, and the person
continues to be a registrable person, the period for which the
person's reporting obligations continue is to be reduced by the
length of time for which the person was required to comply with
the reporting obligations under this Act solely as a consequence
of the order.
3H Risk to sexual safety of children--meaning
(1) For the purposes of this Part, a person poses a risk to the lives or
sexual safety of one or more children, or of children generally
if there is a risk that the person will engage in conduct that may
constitute a Class 1 offence or a Class 2 offence against or in
respect of a child or children.
(2) In order for a court to be satisfied that a person poses a risk to the
lives or sexual safety of one or more children, or of children
generally, it is not necessary for the court to be able to identify a
risk to particular children, or a particular class of children.
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
[12] Section 4A
Insert after section 4:
4A Notices to be given when orders made for persons to comply with
reporting obligations
(1) As soon as practicable after a court makes an order under section
3E, 3F or 3G, the court is to give written notice to the person the
subject of the order of:
(a) the person's reporting obligations, and
(b) the consequences that may arise if the person fails to
comply with those obligations.
(2) As soon as practicable after such an order is made, the court is to
give written notice of that fact to:
(a) the Commissioner of Police, and
(b) the supervising authority (if any) for the person.
(3) The regulations may make provision for or with respect to the
manner and form in which written notice must be given under this
section.
[13] Section 9 Relevant personal information to be reported
Insert after section 9 (1) (l):
(m) details of any carriage service (within the meaning of the
Telecommunications Act 1997 of the Commonwealth)
used, or intended to be used, by the person,
(n) details of any internet service provider or provider of a
carriage service (within the meaning of the
Telecommunications Act 1997 of the Commonwealth)
used, or intended to be used, by the person,
(o) details of the type of any internet connection used, or
intended to be used, by the person, including whether the
connection is a wireless, broadband, ADSL or dial-up
connection,
(p) details of any email addresses, internet user names, instant
messaging user names, chat room user names or any other
user name or identity used, or intended to be used, by the
person through the internet or other electronic
communication service,
(q) any other information prescribed by the regulations.
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
[14] Section 9 (2) (b) and (c)
Omit "14 days" wherever occurring. Insert instead "3 days".
[15] Section 9A When initial report must be made
Omit "28 days" and "14 days" wherever occurring in the Table to the section.
Insert instead "7 days".
[16] Section 11 Registrable person must report changes to relevant personal
information
Omit section 11 (1). Insert instead:
(1) A registrable person must report to the Commissioner of Police
any change in the person's relevant personal information:
(a) in the case of a change in the information referred to in
section 9 (1) (e)--within 3 days after the change occurs,
and
(b) in any other case--within 14 days after the change occurs.
[17] Section 11 (2)
Insert "3-day or" before "14-day".
[18] Section 12D Additional matters to be provided
Omit section 12D (1). Insert instead:
(1) If a report is required to be made in person, the person making the
report must also present for inspection:
(a) 2 identification documents relating to the registrable
person, and
(b) if the person making the report is accompanying the
registrable person and making the report on the registrable
person's behalf, 2 identification documents relating to the
person making the report, and
(c) in any case, any other form of identification specified by
the regulations for the purposes of this subsection.
(1A) If a registrable person holds a driver licence or a current passport
(whether a current Australian passport or current overseas
passport), the identification documents presented must include
the driver licence, passport or passports (and, if the registrable
person holds both a driver licence and a current passport or
passports, must include all those identification documents).
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
(1B) If a person accompanying a registrable person and making a
report on his or her behalf holds a driver licence, the
identification documents presented must include the driver
licence.
[19] Section 12D (2)
Omit "The documents specified in this subsection are the following original
documents".
Insert instead "Each of the following original documents is an identification
document for the purposes of this section".
[20] Section 12D (2) (a1)
Insert after section 12D (2) (a):
(a1) a driver licence,
[21] Section 12D (2) (b)
Omit "or document of identity issued by the Australian Passport Office".
[22] Section 12D (7)
Insert before the definition of driver licence:
Australian passport includes a document of identity issued by
the Australian Passport Office.
[23] Section 12H Retention of documents, fingerprints and photographs
Insert at the end of the section:
Note. Part 7B of the Crimes (Forensic Procedures) Act 2000 provides for
the carrying out of certain other forensic procedures (including carrying
out of buccal swabs and taking samples of hair other than pubic hair) on
persons required to comply with the reporting obligations under this Act.
[24] Section 14D
Omit the section. Insert instead:
14D Reporting period for corresponding registrable persons
Despite anything in this Part, a corresponding registrable person
must continue to comply with the reporting obligations imposed
by this Part until he or she ceases to be a corresponding
registrable person.
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
[25] Section 15 Suspension and extension of reporting obligations
Insert at the end of section 15 (1) (c):
, or
(d) the person is the subject of an interim supervision order or
extended supervision order under the Crimes (Serious Sex
Offenders) Act 2006.
[26] Section 17 Offence of failing to comply with reporting obligations
Omit the penalty provision from section 17 (1). Insert instead:
Maximum penalty: 500 penalty units or imprisonment for
5 years, or both.
[27] Section 18 Offence of furnishing false or misleading information
Omit the penalty provision. Insert instead:
Maximum penalty: 500 penalty units or imprisonment for
5 years, or both.
[28] Part 3A
Insert after Part 3:
Part 3A Change of name
19C Application of Part
This Part applies despite anything to the contrary in the Births,
Deaths and Marriages Registration Act 1995.
19D Definitions
In this Part:
change of name application means an application by or on
behalf of a registrable person for registration of a change of the
person's name for which approval is required under section 19E.
interstate Registrar means an authority responsible under a law
of another State or a Territory for the registration of births, deaths
and marriages.
NSW Registrar means the Registrar within the meaning of the
Births, Deaths and Marriages Registration Act 1995.
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
19E Applications for change of name by or on behalf of registrable
person
(1) A registrable person must not:
(a) apply to the NSW Registrar to register a change of his or
her name under the Births, Deaths and Marriages
Registration Act 1995, or
(b) apply to an interstate Registrar to register a change of his
or her name under a law of another State or Territory that
is the equivalent of the Births, Deaths and Marriages
Registration Act 1995,
without having first obtained the written approval of the
Commissioner of Police.
Maximum penalty: 5 penalty units.
(2) A person must not, on behalf of a registrable person:
(a) apply to the NSW Registrar to register a change of the
registrable person's name under the Births, Deaths and
Marriages Registration Act 1995, or
(b) apply to an interstate Registrar to register a change of the
registrable person's name under a law of another State or
Territory that is the equivalent of the Births, Deaths and
Marriages Registration Act 1995,
without having first obtained the written approval of the
Commissioner of Police.
Maximum penalty: 5 penalty units.
19F Approval by Commissioner of Police
(1) The Commissioner of Police may approve a change of name
application only if the Commissioner is satisfied that the change
of name is in all the circumstances necessary or reasonable.
(2) The Commissioner of Police must not approve a change of name
application if the Commissioner is satisfied that the change of
name would, if registered, be reasonably likely:
(a) to be regarded as offensive by a victim of crime or an
appreciable sector of the community, or
(b) to frustrate the administration of this Act in respect of the
registrable person.
(3) If the Commissioner of Police approves a change of name
application, the Commissioner must:
(a) as soon as practicable, give written notice of the approval
to the person who made the application, and
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
(b) if the registrable person consents, give a copy of the
written notice of approval to the NSW Registrar or the
interstate Registrar (as the case so requires).
19G Registration of change of name
(1) The NSW Registrar must not register a change of name under the
Births, Deaths and Marriages Registration Act 1995 if:
(a) the NSW Registrar knows that the change of name relates
to the name of the registrable person, and
(b) the NSW Registrar has not received a copy of the notice of
approval of the Commissioner of Police under section 19F.
(2) If the NSW Registrar does not register a change of name because
of the operation of subsection (1), the NSW Registrar must give
written notice of the application to the Commissioner of Police.
19H Registrar may correct Register
Without limiting section 45 (Correction of Register) of the
Births, Deaths and Marriages Registration Act 1995, the NSW
Registrar may correct the Register under that section if:
(a) the name of the registrable person on the Register has been
changed, and
(b) the Commissioner of Police has not approved that change
under this Part.
19I Information-sharing between Commissioner of Police and NSW
Registrar
Despite any law to the contrary:
(a) the Commissioner of Police may notify the NSW Registrar
of the name (including any other name by which a
registrable person is or has previously been known), date
of birth and residential address or addresses of the
registrable person, and
(b) if the Commissioner of Police has given notification under
paragraph (a) in respect of a registrable person, the
Commissioner of Police must notify the NSW Registrar as
soon as practicable after the registrable person ceases to be
a registrable person.
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
[29] Section 21
Omit the section. Insert instead:
21 Proceedings for offences
(1) Proceedings for an offence against this Act, except an offence
under section 17 or 18, are to be dealt with summarily.
(2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to
the summary disposal of certain indictable offences unless an
election is made to proceed on indictment) applies to and in
respect of an offence under section 17 or 18.
[30] Section 21D
Omit "Disclosure" from the heading to the section.
Insert instead "Permitted disclosure".
[31] Section 21E
Insert after section 21D:
21E Prohibited disclosure of information concerning registrable
persons
A person must not disclose any information relating to a
registrable person obtained in connection with the administration
or execution of this Act, unless the disclosure:
(a) is made in connection with the administration or execution
of this Act or a corresponding Act or for law enforcement
purposes, or
(b) is made with the consent of the person to whom the
information relates, or
(c) is ordered by a court, or any other body or person
exercising judicial functions, for the purposes of the
hearing or determination by the court, body or person of
any matter, or
(d) is made with the consent of the Commissioner of Police
given (either generally or in a particular case) for the
purposes of ensuring the safety or protection of a child or
of children generally, or
(e) is made to the Minister or with the consent of the Minister
(given in a particular case), or
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
(f) is authorised or required by or under this Act or any other
law.
Maximum penalty: 100 penalty units or imprisonment for 2
years, or both.
[32] Section 22 Regulations
Omit "section 4, 5 or 6 of a sentencing court" from section 22 (3).
Insert instead "section 4, 4A, 5 or 6 of a court".
[33] Section 22 (3) (a)
Omit "sentencing".
[34] Section 25 Monitoring of operation of Act by Ombudsman
Omit the section.
[35] Section 26 Review of Act
Omit section 26 (2). Insert instead:
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to the Child Protection
(Offenders Registration) Amendment Act 2007.
[36] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Child Protection (Offenders Registration) Amendment Act 2007
[37] Schedule 2, Part 5
Insert after Part 4 of Schedule 2:
Part 5 Provisions consequent on enactment of
Child Protection (Offenders Registration)
Amendment Act 2007
11 Definition
In this Part, amending Act means the Child Protection
(Offenders Registration) Amendment Act 2007.
12 Registrable persons
The amendments made to the definitions of Class 1 offence and
sentence in section 3 (1) and to section 3A (2) (b) by the
amending Act apply in respect of any sentence imposed on or
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 1 Amendment of Child Protection (Offenders Registration) Act 2000 No 42
after the commencement of the amendments, including any
sentence imposed as a consequence of a finding of guilt made
before the commencement of the amendments.
13 Corresponding registrable persons
Section 3C, as substituted by the amending Act, applies to any
person who has at any time been in a foreign jurisdiction and
required to report to the corresponding registrar or to a person or
body whose functions are substantially similar to those of the
Commissioner of Police under this Act, whether that obligation
arose before, on or after the commencement of this clause
(including if it arose as a consequence of a finding of guilt made
before 15 October 2001).
14 Child protection registration orders
(1) Section 3E, as substituted by the amending Act, applies in respect
of any person sentenced for an offence on or after the substitution
of that section, including if the sentence is imposed for an offence
committed before that substitution.
(2) Section 3F, as inserted by the amending Act, permits a court to
make an order referred to in section 3F (1) (a) in respect of any
person found guilty of an offence against a law of a foreign
jurisdiction at any time, including if the finding of guilt was made
before the commencement of that section.
(3) Section 3G, as inserted by the amending Act, applies to a grant of
bail, on or after the commencement of that section, in respect of
a Class 1 offence or Class 2 offence which is alleged to have been
committed before, on or after that commencement.
15 Changes to personal information
The amendments made to section 11 by the amending Act apply
to a change in a person's relevant personal information that
occurs on or after the commencement of the amendments.
16 Increase in penalties--sections 17 and 18
The amendments made to this Act by the amending Act in
relation to the maximum penalty for an offence under section 17
or 18, and proceedings for that offence, apply only to an offence
under section 17 or 18 that is alleged to have been committed on
or after the commencement of the amendments.
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Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Child Protection (Offenders Registration) Act 2000 No 42 Schedule 1
17 Disclosure of information
(1) Section 21E, as inserted by the amending Act, extends to the
disclosure, on or after the commencement of that section, of
information obtained before that commencement.
(2) Clause 27 of Schedule 1 to the Freedom of Information Act 1989,
as inserted by the amending Act, extends to a report provided, or
information obtained or placed on the Child Protection Register,
before the commencement of that clause.
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Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
Schedule 2 Amendment of Crimes (Forensic
Procedures) Act 2000 No 59
(Section 4)
[1] Section 3 Interpretation
Insert after paragraph (b1) of the definition of informed consent in section
3 (1):
(b2) an untested registrable person--is defined in section 75V,
and
[2] Section 3 (1), definition of "order"
Insert after paragraph (d1) of the definition:
(d2) order of a court under section 75ZB, or
[3] Section 3 (1)
Insert in alphabetical order:
untested registrable person is defined in section 75P.
[4] Sections 47 (3), 52 (4) and 90 (paragraph (a) of the definition of
"offenders index")
Omit "7 or 7A" wherever occurring. Insert instead "7, 7A or 7B".
[5] Part 7B
Insert after Part 7A:
Part 7B Carrying out of certain forensic
procedures on registrable persons
75P Forensic procedures and persons to which Part applies
(1) Intimate forensic procedures to which Part applies
This Part applies to the carrying out of an other-administered
buccal swab.
(2) Non-intimate forensic procedures to which Part applies
This Part applies to the following non-intimate forensic
procedures:
(a) the carrying out of a self-administered buccal swab,
(b) the taking of a sample of hair other than pubic hair.
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Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 2
(3) This Part applies to any person:
(a) who is a registrable person under the Child Protection
(Offenders Registration) Act 2000, and
(b) who is required to comply with the reporting obligations
under that Act,
if it appears that the person's DNA profile is not contained in the
offenders index of the DNA database system (an untested
registrable person).
75Q Non-intimate forensic procedures authorised to be carried out on
untested registrable persons
A person is authorised to carry out a non-intimate forensic
procedure to which this Part applies on an untested registrable
person:
(a) with the informed consent of the registrable person, or
(b) by order of a senior police officer under section 75Y, or
(c) by order of a court under section 75ZB.
75R Intimate forensic procedures authorised to be carried out on
untested registrable persons
A person is authorised to carry out an intimate forensic procedure
to which this Part applies on an untested registrable person:
(a) with the informed consent of the registrable person, or
(b) by order of a court under section 75ZB.
75S Police officer to ask whether untested registrable person identifies
as Aboriginal person or Torres Strait Islander
Before asking an untested registrable person to consent to a
forensic procedure under this Part, a police officer must ask the
registrable person whether the registrable person identifies as an
Aboriginal person or Torres Strait Islander.
75T Application of Part 6
(1) Part 6 applies to the carrying out of a forensic procedure on an
untested registrable person under this Part as if the references to
the suspect in Part 6 were references to an untested registrable
person.
(2) A person is authorised by section 75Q or 75R to carry out a
forensic procedure in accordance with Part 6 as applied by this
section and not otherwise.
Page 19
Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
75U Scope of authorisation
(1) A person is not authorised to carry out a forensic procedure under
this Part on an untested registrable person if the untested
registrable person is a suspect or a volunteer.
(2) A forensic procedure may be carried out on an untested
registrable person who is a suspect only if authorised by and in
accordance with Parts 25.
(3) A forensic procedure may be carried out on an untested
registrable person who is a volunteer only if authorised by and in
accordance with Part 8.
75V Informed consent to forensic procedures
(1) An untested registrable person gives informed consent to the
carrying out of a forensic procedure under this Part if the
registrable person consents to the carrying out of the procedure
after a police officer:
(a) requests the registrable person to consent to the forensic
procedure under section 75W, and
(b) informs the registrable person about the forensic procedure
in accordance with section 75X, and
(c) gives the registrable person the opportunity to
communicate, or attempt to communicate, with an
Australian lawyer of the registrable person's choice.
(2) The police officer must allow the registrable person to
communicate, or attempt to communicate, with the Australian
lawyer in private unless the police officer suspects on reasonable
grounds that the registrable person might attempt to destroy or
contaminate any evidence that might be obtained by carrying out
the forensic procedure.
Note. Section 103 states that the burden lies on the prosecution to prove
on the balance of probabilities that a police officer had a belief on
reasonable grounds.
75W Police officer may request untested registrable person to consent
to forensic procedure
A police officer may request an untested registrable person (other
than a child or an incapable person) to consent to a forensic
procedure to which this Part applies being carried out on the
registrable person.
Page 20
Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 2
75X Matters that untested registrable person must be informed of
before giving consent
(1) The police officer must (personally or in writing) inform the
untested registrable person of the following:
(a) the purpose for which the forensic procedure is required,
(b) the way in which the forensic procedure is to be carried
out,
(c) that the forensic procedure may produce evidence against
the registrable person that might be used in a court of law,
(d) that the forensic procedure will be carried out by a person
who may carry out the procedure under Part 6 as applied
by section 75T,
(e) that the registrable person may refuse consent to the
carrying out of the forensic procedure,
(f) the consequences of not consenting, as specified in
subsection (2) or (3) (whichever is applicable),
(g) the effect of section 84 (if applicable),
(h) that information obtained from the analysis of forensic
material obtained from the carrying out of the forensic
procedure may be placed on the DNA database system of
this State, or become part of a national DNA matching
scheme, or both, and, in particular, that the information
may be compared with information from the DNA
database systems of other participating jurisdictions.
(2) Failure to consent to non-intimate forensic procedure
The police officer must (personally or in writing) inform an
untested registrable person requested to undergo a non-intimate
forensic procedure to which this Part applies that, if the
registrable person does not consent, a senior police officer may
order the carrying out of the forensic procedure under section
75Y.
(3) Failure to consent to intimate forensic procedure
The police officer must (personally or in writing) inform an
untested registrable person requested to undergo an intimate
forensic procedure to which this Part applies that, if the
registrable person does not consent, an application may be made
to a court for an order authorising the carrying out of the forensic
procedure.
Page 21
Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
75Y Circumstances in which senior police officer may order
non-intimate forensic procedure
(1) A senior police officer may order the carrying out of a
non-intimate forensic procedure on an untested registrable
person if:
(a) the registrable person has been requested under section
75W to consent to the carrying out of the forensic
procedure, and
(b) the registrable person has not consented.
(2) If the senior police officer needs to decide between taking a
sample of the registrable person's hair or the carrying out of a
self-administered buccal swab, an order for the taking of a sample
of hair may not be made unless, following inquiry by the police
officer:
(a) the registrable person has indicated that he or she prefers
the taking of a sample of hair, or
(b) the registrable person has failed to indicate that he or she
will carry out a self-administered buccal swab.
75Z Form of consent
The consent of an untested registrable person to the carrying out
of a forensic procedure under this Part is not effective unless:
(a) the consent is in writing and in a form containing the
particulars prescribed by the regulations, and
(b) the consent is signed by the registrable person, and
(c) the signature is witnessed by a person other than a police
officer, and
(d) the registrable person is given a copy of the consent as
soon as practicable after it is signed and witnessed.
75ZA Record of order of senior police officer
(1) At the time of, or as soon as practicable after, making an order
under section 75Y, a senior police officer must make a record of:
(a) the order, and
(b) the date and time when the order was made, and
(c) the reasons for making it,
and must sign the record.
Page 22
Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Crimes (Forensic Procedures) Act 2000 No 59 Schedule 2
(2) The senior police officer must ensure that a copy of the record is
made available to the untested registrable person as soon as
practicable after the record is made.
75ZB Court order for carrying out forensic procedure on untested
registrable person
(1) A police officer may apply to any court for an order for the
carrying out of a forensic procedure to which this Part applies on
an untested registrable person.
(2) A court may order the carrying out of a forensic procedure under
this section if satisfied that the carrying out of the forensic
procedure is justified in all the circumstances.
75ZC Making of order
(1) If a court makes an order for the carrying out of a forensic
procedure on an untested registrable person, the court must:
(a) specify the forensic procedure authorised to be carried out,
and
(b) give reasons for making the order, and
(c) ensure that a written record of the order is kept, and
(d) order the registrable person (if present) to attend for the
carrying out of the forensic procedure, and
(e) inform the registrable person (if present) that reasonable
force may be used to ensure that he or she complies with
the order for the carrying out of the forensic procedure.
(2) The court may give directions as to the time and place at which
the procedure is to be carried out.
75ZD Refusal or failure to permit forensic procedure
An untested registrable person in respect of whom a forensic
procedure is ordered to be carried out under section 75ZB must
not, without reasonable excuse, refuse or fail to permit the
forensic procedure to be carried out.
Maximum penalty: 50 penalty units or 12 months imprisonment,
or both.
[6] Section 87 Destruction of forensic material taken from offender after
conviction quashed
Insert at the end of section 87 (1) (b):
, or
(c) an untested registrable person under Part 7B,
Page 23
Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
[7] Section 91 Supply of forensic material for DNA database system
purposes
Omit paragraph (c) of the definition of permitted forensic material in section
91 (3).
Insert instead:
(c) taken from an offender, untested former offender, untested
registrable person or a volunteer in accordance with Part 7,
7A, 7B or 8 or under a corresponding law of a participating
jurisdiction, or
[8] Section 98 Interpreters
Omit section 98 (2). Insert instead:
(2) The actions are as follows:
(a) asking a suspect, offender, untested former offender or
untested registrable person to consent to a forensic
procedure (Part 3, 7, 7A or 7B),
(b) ordering the carrying out of a non-intimate forensic
procedure on, or taking of a sample by buccal swab from,
a suspect, offender, untested former offender or untested
registrable person (Part 4, 7, 7A or 7B),
(c) applying to a Magistrate or other authorised officer for an
order for the carrying out of a forensic procedure on a
suspect, offender, untested former offender or untested
registrable person (Part 5, 7, 7A or 7B),
(d) cautioning a suspect, offender, untested former offender or
untested registrable person (Part 6, 7, 7A or 7B),
(e) carrying out, or arranging for the carrying out of, a forensic
procedure on a suspect, offender, untested former offender
or untested registrable person (Part 6, 7, 7A or 7B),
(f) giving a suspect or offender an opportunity to view a video
recording made under this Act (section 100).
Page 24
Child Protection (Offenders Registration) Amendment Bill 2007
Amendment of Freedom of Information Act 1989 No 5 Schedule 3
Schedule 3 Amendment of Freedom of Information
Act 1989 No 5
(Section 5)
Schedule 1 Exempt documents
Insert after clause 26:
27 Documents relating to offenders under the Child Protection
(Offenders Registration) Act 2000
(1) A document is an exempt document if:
(a) it is a report provided to the Commissioner of Police by a
registrable person under the Child Protection (Offenders
Registration) Act 2000 for the purpose of complying with
the reporting obligations under that Act, or
(b) it contains matter that would disclose information obtained
by the Commissioner of Police as a result of the making of
such a report, or
(c) it contains matter that would disclose information
contained on the Child Protection Register kept under
section 19 of that Act.
(2) A document is not an exempt document by virtue of subclause (1)
merely because it contains information concerning the person by
or on whose behalf an application for access to the document is
being made.
Page 25
Child Protection (Offenders Registration) Amendment Bill 2007
Schedule 4 Consequential amendments
Schedule 4 Consequential amendments
(Section 6)
4.1 Child Protection (Offenders Registration) Act 2000 No 42 (as
amended by the Child Protection (Offenders Registration)
Amendment Act 2007)
[1] Sections 3E and 3F
Omit "A Local Court" and "a Local Court" wherever occurring.
Insert instead "The Local Court" and "the Local Court", respectively.
[2] Section 3F Child protection registration orders made in relation to
foreign offences and offences committed before 15 October 2001
Omit "Section 44 of the Local Courts Act 1982" from section 3F (4).
Insert instead "Section 51 of the Local Court Act 2007".
4.2 Criminal Procedure Act 1986 No 209
[1] Section 268 Maximum penalties for Table 2 offences
Insert as section 268 (2) (m):
(m) for an offence under section 17 or 18 of the Child
Protection (Offenders Registration) Act 2000--
imprisonment for 2 years, or a fine of 100 penalty units, or
both.
[2] Schedule 1 Indictable offences triable summarily
Insert at the end of Table 2 with appropriate Part and clause numbers:
Part Offences under Child Protection
(Offenders Registration) Act 2000
Reporting obligations
An offence under section 17 or 18 of the Child Protection
(Offenders Registration) Act 2000.
Page 26
Child Protection (Offenders Registration) Amendment Bill 2007
Consequential amendments Schedule 4
4.3 Local Courts Act 1982 No 164
Section 36 Proceedings to which Part does not apply
Insert after section 36 (2) (d):
(e) applications for an order under section 3E or 3F of the
Child Protection (Offenders Registration) Act 2000.
4.4 Local Court Act 2007
Section 3 Definitions
Insert after paragraph (g) of the definition of criminal proceedings in section
3 (1):
(h) applications for an order under section 3E or 3F of the
Child Protection (Offenders Registration) Act 2000.
Page 27
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