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1
Child Protection (Offender Prohibition Order) Bill
2007
Child Protection (Offender Prohibition Order)
Bill 2007
Explanatory Notes
General Outline
Objective of the Legislation
The Child Protection (Offender Prohibition Order) Bill 2007 (the Bill)
aims to provide protection to children by allowing the Magistrates Courts
to make a Child Protection Offender Prohibition Order (prohibition order).
A prohibition order can be made against certain previously convicted child
sex offenders to prohibit them from engaging in specified lawful conduct.
The court must be satisfied the child sex offender has engaged in conduct
which poses an unacceptable risk to the lives or sexual safety of children in
the community. The conduct need not amount to a criminal offence.
On making a prohibition order, the respondent to the order is placed on the
Child Protection Offender Reporting Register (CPOR Register) and must
report certain personal details to police. This register is maintained by
police to reduce the likelihood that child sex offenders will reoffend and to
facilitate the investigation and prosecution of any future offences they may
commit.
Means of Achieving Policy Objectives
The legislation will enable prohibition order applications to be heard and
determined in a Magistrates Court or a Childrens Court constituted by a
Childrens Court Magistrate.
Alternative Means of Achieving Policy Objectives
There are no alternative means of achieving the policy objectives.
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Child Protection (Offender Prohibition Order) Bill
2007
Estimated Cost of Implementation for Government
The financial impact of the Bill will be comparatively low and can be met
by existing budgets.
Consistency with Fundamental Legislative Principles
Consistency with the principles of natural justice
The Bill is not consistent with the fundamental legislative principle of
natural justice in that provision exists for an application to be made to a
magistrate for a temporary order without notifying the respondent. This is
considered justified on the basis that an application can only be made in
these circumstances where the commissioner believes it is necessary to
prevent an immediate risk to a child. In addition, before granting such an
order, the magistrate must be satisfied it is appropriate to make the order
without notice to the respondent.
The Bill provides for an application for a prohibition order to be made in
the respondent's absence. This is considered justified as this can only
occur if the court is satisfied the respondent has been served with a copy of
the application documentations and given notice of the date, time and place
of the hearing.
Should the court decide to deal with an application in a respondent's
absence, the court must consider all of the police evidence and can only
make the order if it is satisfied on the balance of probabilities the
respondent is a relevant sexual offender and having regard to the nature and
pattern of the respondent's recent conduct, the respondent poses an
unacceptable risk to the life or sexual safety of a child or children generally
and the making of the order will reduce that risk.
These same provisions also allow for the court to direct the commissioner
to give the respondent further notice of the hearing instead of making an
order in the respondent's absence.
A temporary order made in the absence of a respondent does not have
effect until it is brought to the notice of the respondent.
Retrospectivity
The Bill does not operate retrospectively as persons who have previously
committed child sex offences and are not required to register under the
CPOR Act, will only be required to register under the Bill if they
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Child Protection (Offender Prohibition Order) Bill
2007
subsequently engage in concerning conduct and the court is satisfied
sufficient grounds exist for the making of a prohibition order.
Consultation conducted in Development of the Bill
There has been no general community consultation on the contents of the
Bill. Where there are potential implications on the roles of government
departments, these departments were consulted with respect to the relevant
portions of the Bill.
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 specifies the short title of the Bill.
Commencement
Clause 2 provides that the Bill is to commence on a day to be fixed by
proclamation.
Main purpose of Act
Clause 3 describes the main purpose of the Bill, which is to provide for the
protection of the lives and sexual safety of children in the community. This
is achieved by the provision of a scheme whereby conditions can be
imposed upon particular sexual offenders, through a child protection
offender prohibition order, to prevent them from engaging in specified
conduct where there is reasonable cause to believe that the nature and
pattern of the conduct of the offender poses a risk to the lives or sexual
safety of children. The conduct in itself may not amount to the commission
of an offence but is sufficient to raise concerns that the person may commit
a future offence. An example of this is a known child sex offender who
takes up residence in close proximity to a child care centre.
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Child Protection (Offender Prohibition Order) Bill
2007
Once an offender prohibition order has been made, if the respondent is not
already a reportable offender, then they are taken to be a reportable
offender for the Child Protection (Offender Reporting) Act 2004.
Definitions
Clause 4 provides a dictionary in the schedule that gives definitions of
terms used for the purposes of this legislation.
Explanation of references to offender prohibition orders
Clause 5 provides an explanation of the different terms used throughout the
legislation in reference to offender prohibition orders. The term `order' is
generally used to refer to an offender prohibition order made under section
8, whereas the term `temporary order' is generally used to a temporary
order made under section 15 or 16.
The term `offender prohibition order' is generally used to refer to both an
order and a temporary order. However, in part 2, division 2, an order made
under section 8 is referred to as a `final order' to distinguish it from a
`temporary order' made under section 15 or 16.
Part 2 Offender prohibition orders
Division 1 Orders
Application
Clause 6 makes provision for the commissioner to apply to a court for an
offender prohibition order (an order) to be made against a person whom the
commissioner believes on reasonable grounds has met the two prerequisite
criteria for such an application. These criteria are that the respondent is a
child sexual offender who has, at any time in the past, been found guilty of
a reportable offence as defined by section 5 of the Child Protection
(Offender Reporting) Act 2004 and who has recently been engaged in
conduct that has given rise to concerns that the nature and pattern of the
conduct of the offender poses an unacceptable risk to the lives or sexual
safety of a child or children generally.
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Child Protection (Offender Prohibition Order) Bill
2007
There is no time limitation on when the previous offences must have been
committed by a respondent. One finding of guilt, at any time in the past,
for an offence that would place the offender on the register if the
commission of the offence and the completion of their sentence had not
predated the commencement of the Child Protection (Offender Reporting)
Act 2004 together with recent concerning conduct, is sufficient to warrant
an application for an offender prohibition order being made.
Concerning conduct may include one or more actions or behaviours which
raise concerns that the respondent may be intending to re-offend. For
example, a person who has a number of convictions for sexual offences
against children decides to take up residence near a child-care centre, or
begins loitering near a children's playground when children are playing
there. Many of these behaviours will be recognised by police as being
consistent with a respondent's modus operandi, which if left unchecked
may result in further offences being committed.
The application must state each conviction recorded against the respondent
for a reportable class 1 or class 2 offence committed against a child. Also
the application must state the particulars of the concerning conduct,
including the time or period during which the respondent is alleged to have
engaged in the concerning conduct, as well as the conduct of the
respondent that the order proposes to prohibit, including the actual
conditions being sought.
It should be noted that the commissioner has the power to delegate under
section 4.10 of the Police Service Administration Act 1990.
How a proceeding for an order is started
Clause 7 makes provision for the commissioner to start a proceeding for an
order against a respondent issuing an appearance notice. This notice,
together with a copy of the application must be served personally on the
respondent by a police officer. When serving the documents, the officer
must explain to the respondent the documents to the respondent in a way
which the respondent is likely to understand having regard to the
respondent's age, and cultural educational, and social background.
The appearance notice must clearly warn the respondent of the
consequences of an order being made, including that the respondent can
not hold a blue card. It must also clearly state the order can be made in the
respondent's absence, if they fail to attend the court at the time and place
stated in the notice.
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Child Protection (Offender Prohibition Order) Bill
2007
If after reasonable attempts have been made to serve the documents on the
respondent in person and it appears to the court that this is not reasonably
practicable then the court may make an order substituting another way of
serving the documents.
If the conditions being sought may cause a child respondent to move his or
her place of residence, the chief executive (child safety) must be advised of
the application. In all instances, reasonable attempts to advise the parents
or guardian of a child must be made.
Making an order
Clause 8 provides that if, after giving consideration to the matters
mentioned in section 9, the court is satisfied that the respondent meets the
prerequisite circumstances for issuing such an order, the court may make
an order.
The prerequisite circumstances are that the person is a relevant sexual
offender and has engaged in recent concerning conduct that poses an
unacceptable risk to the lives or sexual safety of a child or children
generally. It is not necessary for the court to be able to identify a risk to a
particular child, children or class of children. For example, the respondent
may move into a residence that is in close proximity to a child care centre
or, is observed attempting to befriend children at or near a children's
playground.
Before making an order against a child respondent, the court must consider
the report provided under s 10 and determine what, if any, conditions
should be imposed. Also, the court must be satisfied that the making of the
order is the last resort and the most effective way of reducing the risk that
the child respondent poses to other children.
The court is empowered to make a final order even if the respondent is not
present at the hearing of the application, providing the court is satisfied that
the respondent has been given notice of the hearing. However, at any time
before making a decision on the application, the court may direct the
commissioner to give a further appearance notice to the respondent.
Matters a court must consider before making an order
Clause 9 makes provision for the matters that the court must take into
account in deciding whether to make an order under section 8. These
matters include the seriousness of the respondent's offences that have been
committed against a child, including those which may have been
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Child Protection (Offender Prohibition Order) Bill
2007
committed in another jurisdiction and the period of time that has elapsed
since the offences were committed.
In respect to each reportable offence, matters to be considered include the
age of the respondent and the age of the victim of the offence at the time
when the offence was committed, as well as the differences in their ages.
For example, if the respondent was a 17 year old male who had a
consensual sexual encounter with a 15 year old girl, then this would not be
perceived in the same way as that of a forty year old male who has
groomed a 12 year old child for sexual purposes.
The court must also consider the respondent's present age and the
seriousness of their criminal history. Moreover, the court must take into
account the effect of the final order being sought will have on the
respondent in comparison to the level of risk of the respondent committing
a further reportable offence against a child.
To the extent the circumstances relate to the conduct to be prohibited, the
court must also consider the respondent's circumstances in respect to his or
her accommodation, employment, health, cultural and social needs, as well
as the respondent's need to be reintegrated into the community. For
example, in considering a prohibition against a person from frequenting
shopping malls it can be argued that shopping for groceries, clothing, etc. is
a legitimate activity for anyone to be involved in, including the respondent.
Accordingly, the court may decide to prohibit the respondent from
frequenting shopping malls during certain hours when children are likely to
be present.
If an order is made against a child respondent, then the court must consider
the impact that the making of such an order will have on the respondent's
educational, accommodation, cultural, social and health needs.
The court may also consider any other matter that it deems to be relevant to
the interests of justice.
With respect to a person's criminal history, despite the provisions of section
6 of the Criminal Law (Rehabilitation of Offenders) Act 1986, every
conviction of the person for a reportable offence, either in Queensland or
elsewhere, whether before or after the commencement of this Act, must be
considered by the court. It also applies to every charge made against the
person for a reportable offence committed against a child, either in
Queensland or another jurisdiction that has been withdrawn or
discontinued because the complainant died or was unable or unwilling to
proceed with the matter.
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Child Protection (Offender Prohibition Order) Bill
2007
The purpose in considering charges that have been brought against a person
is because quite often a child sex offender will have a history of charges
having been made against him or her, but for any one of a number of
reasons, the matter has not proceeded to court and the charges have lapsed.
An example of this is when the victim is a very young child and it is
considered that the child would not be a reliable witness or that the stress of
the court hearing would be detrimental to his or her wellbeing.
It will also allow the court to consider charges pending outside the
jurisdiction, for example where a respondent has been charged in a foreign
county with a child sex offence and has fled before the charge was dealt
with.
Court must order a report before making an order for a child
respondent
Clause 10 applies if the court finds there is sufficient evidence to make an
order against a child. Before making the order, the court must order the
chief executive (communities) to provide a report containing stated
information, assessments and reports about the child respondent and/or his
or her family or any other matter that the court considers to be relevant.
The information provided can be relevant to the respondent's
accommodation, educational, health, cultural and social needs.
In the report, the relevant entity may express an opinion on what the impact
of a final order may be upon the child in relation to his or her health,
housing, cultural and social or educational needs.
Moreover, the relevant reporting entity must prepare the report in
documentary form and deliver it to the court and the parties to the
proceeding.
The court can then consider the report in determining which conditions, if
any, to impose on the respondent child. Alternatively, the court may decide
not to make an order an order against the respondent.
Conduct that may be prohibited
Clause 11 provides an outline on the types of conduct which may be
prohibited by an order. This may include associating with, or having
contact with specified people or kinds of people. For example, networking
with other relevant sexual offenders either in person or via the internet,
could be prohibited.
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Child Protection (Offender Prohibition Order) Bill
2007
An order may prohibit a respondent from being in specified locations or
types of locations, for example, prohibiting the respondent from being
within 200 metres of a school between 7am and 7pm on a school day.
A condition may prevent residing at a particular residence or type of
residence, such as in the vicinity of a child care centre or in a residence
where children under the age of 16 reside.
A condition may preclude the respondent from engaging in specified
behaviour such as taking photographs or images of children at the beach in
the South Bank Parklands.
The conduct to be prohibited may involve being in specified employment,
particularly that which might bring the respondent into contact with
children, for example, being employed in a café in close proximity to a
school.
A condition of an order may prohibit conduct absolutely or on the terms
that the court considers appropriate, which must be stated in the order.
An order may prohibit a respondent from entering or remaining in a stated
place even if the respondent has a legal or equitable right to enter or be in
that place. For example, the respondent with a history of sexually abusing
children maybe a co-leaseholder of a residential property at which children
under the age of 16 are known to be residing. The court may decide to
prohibit the respondent from residing at that place because it considers the
risk to the safety of the children is too great. Even though the respondent
has a legal right to reside at that place, the prohibition order will prevent the
respondent from doing so. However, in imposing such a prohibition, the
court must, if it is satisfied it is necessary, ensure that the order makes
provision for the respondent to enter the residence between stated times to
recover personal property from that place but only while they are
accompanied by a police officer.
Term of an order
Clause 12 provides that a final order takes effect on the day that it is
brought to the notice of the respondent. It remains in force for a term of
five years for an adult respondent and two years for a child respondent.
The commissioner may make an application for a further final order for the
same respondent and should the application be made before the end of the
term of an existing final order, the existing final order is extended until the
further application is decided by the court.
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Child Protection (Offender Prohibition Order) Bill
2007
In respect to an application for a further final order being made for the
same respondent, it must be made before the end of the term of an existing
final order, and should the new application not be decided before the
existing order ends, then the existing order will continue to have effect until
the application for the further order is decided. If the application for the
further order is successful, then the further order will have effect from the
day that the original order would have otherwise ceased.
Division 2 Temporary order
Definitions for div 2
Clause 13 provides the definitions for this division. A final order means an
order made under clause 8(1) and a temporary order is an order made under
clauses 15 or 16.
Applying for a temporary order
Clause 14 allows the commissioner to start a proceeding for a temporary
order if the commissioner is satisfied a person poses an immediate and
unacceptable risk to the life or sexual safety of one or more children, or
children generally, and the making of a temporary order will reduce that
risk.
Due to the urgency for the order, the application may be made in the
respondent's absence. It must be accompanied by an application
addressing the same matters as if the commissioner were applying for a
final order. The application must state why an immediate risk exists.
To make an order, the magistrate must be satisfied that an order is
necessary to reduce the risk the respondent poses to the lives or sexual
safety of one or more children, or children generally. Also, if the
application is made without notice to the respondent, the magistrate must
be satisfied it is appropriate in the particular circumstances surrounding the
application to make such an order without notifying the respondent.
Clause 18 provides that an order does not have effect until notice of it is
given to the respondent.
If an order is made, the magistrate must fix the return date, time and place
for mentioning the application for the final order. The commissioner must
apply for a final order to the court before the date, time and place fixed by
the magistrate. Failure to do so causes the temporary order to lapse.
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Child Protection (Offender Prohibition Order) Bill
2007
Sections 800 to 802 of the Police Powers and Responsibilities Act 2000
apply to the application as if the temporary order were a prescribed
authority within the meaning of that Act. This allows the commissioner to
apply for a temporary order by phone, fax, radio, email or other similar
facilities if the circumstances of the situation are considered to be either
urgent or special.
Although it is a breach of the fundamental legislative principle requiring a
person to be given notice of proceedings instigated against them, the
commissioner needs the power to make an ex parte application for an order
of a temporary nature to prevent immediate harm occurring to children. As
this is a civil application, the common law duty requiring applicants in ex
parte applications to fully inform the court of all matters, including those
adverse to the applicant's own case would apply to the commissioner.
Temporary order made by a magistrate
Clause 15 provides for the magistrate to make a temporary order if satisfied
the respondent is a relevant sexual offender, the respondent poses an
immediate and unacceptable risk to the life or sexual safety of one or more
children, or children generally, and the making of a temporary order will
reduce that risk.
It is not necessary for the magistrate to identify a risk to a particular child,
particular children or a particular class of children. An example is a person
with a lengthy history of committing sexual offences against children
choosing to move into accommodation where a number of young children
are also known to reside.
Having regard to the temporary nature of the order, the application need
only be supported by evidence that the magistrate considers to be sufficient
and appropriate given the circumstances.
A temporary order has effect only when it is brought to the notice of the
respondent.
When the magistrate makes the temporary order, a return date, time and
place for the application for a final order must be fixed, because at the same
time as the temporary order is made, the commissioner must immediately
start a proceeding for the final order. The date, time and place stated in the
appearance notice for the final order, must be the date, time and place fixed
when the temporary order was made.
A temporary order made under this section is able to be varied or revoked
on application to the court by the respondent. Due to the intrusive nature of
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Child Protection (Offender Prohibition Order) Bill
2007
this type of order, the temporary order will be returned to the court as soon
as possible.
Temporary order made by a court
Clause 16 allows a court to make a temporary order on its own initiative or
on the application of a party to the proceeding for the final order. This can
only be done if the court is adjourning the final application.
A temporary order can be made under this clause in the respondent's
absence, but only if the court is satisfied the commissioner has served the
respondent with the attendance notice and application.
In making a temporary order, the court must be satisfied the respondent is a
relevant sexual offender, the respondent poses an immediate and
unacceptable risk to the life or sexual safety of one or more children, or
children generally, and the making of a temporary order will reduce that
risk.
Having regard to the temporary nature of the order, the application need
only be supported by evidence that the magistrate considers to be sufficient
and appropriate given the circumstances.
A temporary order has effect only when it is brought to the notice of the
respondent. The ability to make a temporary order will allow the court to
impose interim conditions on a respondent in circumstances where the
delay associated with deciding an application for a final order is likely to
expose a child to danger.
Conduct that may be prohibited
Clause 17 provides for the conduct that may be prohibited by a temporary
order. The same kind of conduct which can be prohibited by a final order
in clause 11 can be prohibited by a temporary order.
Term of a temporary order
Clause 18 makes provision for a temporary order to take effect on the day
notice of the temporary order is given to the respondent. The temporary
order will remain in force until one of the following happens:
· if the temporary order is made under clause 15, and the commissioner
fails to make an application for a final order by the time fixed by the
magistrate;
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Child Protection (Offender Prohibition Order) Bill
2007
· the application for the final order is next mentioned by a court, and the
court does not extend the temporary order under section 19;
· the end of the prescribed period of 28 days is reached, unless the
respondent has consented to a longer period under section 19;
· the court makes a decision on the application for a final order;
· the commissioner discontinues the application for a final order; or
· the temporary order is revoked under section 22 or on appeal.
Extending a temporary order if an application for a final order
adjourned
Clause 19 allows a temporary order to be extended by the court, either upon
application by a party to the proceedings or on its own initiative. It only
applies if a temporary order is already in force and will expire before the
application for the final order is decided because the court has adjourned
the hearing of the application.
The temporary order can be extended for a further 28 days or such longer
period consented to by the respondent. There is no limit on the number of
extensions that can be made. However, it is desirable that the application
for a final order be decided as soon as practicable.
Division 3 Other provisions about offender
prohibition order
Who may be present at the hearing of an application
Clause 20 provides for who may be present at the hearing of an application
for a prohibition order. Only the commissioner, respondent, witness,
lawyers and court staff necessary for the conduct of the application can be
present. A police officer representing the commissioner is also able to be
present.
The court may allow additional people to be present if it thinks it is
appropriate for the people to be present. This includes the parents or
guardian of the child respondent, and a support person for a witness or the
respondent.
The reason for limiting who may be present at the hearing is for the
protection of the respondent, who has yet to commit an offence, from
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Child Protection (Offender Prohibition Order) Bill
2007
possible vigilante retribution from the community should the information
be made public. This will also prevent a victim of a child sex offence being
identified and prevent any victims from being further traumatised by media
attention surrounding the application.
Making an offender prohibition order for an adult respondent
by consent.
Clause 20 allows the court to make a prohibition order with the consent of
an adult respondent and the commissioner. A child respondent may not be
a party to a consent order.
When making an order by consent, the court is not required to conduct a
hearing or consider the matters in section 9 unless it considered that it is in
the interests of justice to do so.
When deciding whether it is in the interest of justice to conduct a hearing,
the court must have regard to whether the respondent: has obtained legal
advice about the proposed prohibition order; has an intellectual disability;
is a person for who an order has been made appointing a guardian under the
Guardianship and Administration Act 2000; is illiterate, having few or no
literacy skills in the English language; or is subject to some other condition
that prevents the respondent from understanding the effect of giving his or
her consent to the making of the proposed offender prohibition order.
Varying or revoking an offender prohibition order
Clause 22 allows the commissioner and a respondent to apply to the court
for a prohibition order to be varied or revoked. A respondent may only
make an application for a final order to be varied or revoked with the leave
of the court. Leave is not required in relation to a temporary order.
The court may grant leave only if it is satisfied it is in the interests of
justice, having regard to the changes in the respondent's circumstances, or
circumstances affecting the respondent, since the order was either made or
last varied.
The changes can include matters pertaining to the respondent's
accommodation, cultural, educational, employment or social needs. They
can also include changes which no longer make a condition of the order
necessary.
The change can include compassionate or cultural grounds for which the
court may make a temporary variation to the order. For example, the court
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Child Protection (Offender Prohibition Order) Bill
2007
may vary the order by inserting a condition which allows the respondent to
attend a previously prohibited place for a specified period of time and in
specified circumstances to allow the respondent to visit a relative who is
seriously ill or to attend the funeral of a relative or close friend. In
considering the circumstances, the court should have regard to the specific
cultural traditions of the respondent, if any, and their impact on the
circumstances of the respondent. This could include making a temporary
variation to accommodate an Aboriginal person's need to attend to sorry
business.
A variation only takes effect when it is brought to the notice of the
respondent. A revocation takes effect immediately and regardless of
whether the respondent is present in court or not.
Explaining and giving notice of an offender prohibition order to
respondent
Clause 23 requires the court to explain any order made to a respondent who
is present in the court. The explanation must be given in a manner which
the respondent is likely to understand. The court must also explain the
respondent's obligations under the prohibition order as well as the
consequence of failing to comply with the order.
The clause also requires the commissioner to inform the respondent of the
obligations under the CPOR Act, if the respondent was not previously a
reportable offender.
A failure by the court or commissioner to comply with the clause does not
affect the making of the order.
Giving respondent a copy of an offender prohibition dealt with
in the respondent's absence
Clause 24 applies if a court or magistrate makes, varies or revokes an
offender prohibition order in the respondent's absence.
As soon as practicable after the order has been made, varied or revoked, the
commissioner must serve or cause another police officer to serve the
respondent with a copy of that order.
The order must be delivered personally to the respondent. If after
reasonable attempts to serve the order has failed, the commissioner may
apply to the court or magistrate who made the order for an alternative
means of serving it on the respondent.
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Child Protection (Offender Prohibition Order) Bill
2007
When serving the order, the police officer must explain it to the respondent
using language and in a manner which the respondent is likely to
understand having regard to the respondent's age, and cultural, educational
and social background. Likewise the officer must provide the respondent
with a notice explaining the reportable offender obligations under the
CPOR Act, s54. This notice must be similarly explained to the respondent.
Where the respondent is a child, a copy of the order must be provided to the
respondent's parents or guardian, unless it is not possible to do so after
making reasonable attempts.
If the order may cause the child respondent to change his or her place of
residence, the chief executive (child safety) must also be advised. This is
done to ensure the child is protected and provided with appropriate care
and shelter.
Failure to comply with these provisions does not affect the validity of the
order.
Court may not award costs unless application is frivolous or
vexatious or another abuse of process
Clause 25 provides no costs may be awarded for an application, including
an appeal, under the Act, unless the application was frivolous, vexatious or
another abuse of process.
Part 3 Corresponding order
Application for registration of corresponding order in
Queensland
Clause 26 makes provision for the commissioner to apply in the approved
form to the registrar of a Magistrates Court for the registration of a
corresponding order.
Registration of corresponding prohibition order
Clause 27 allows the registration of a corresponding order if the registrar is
satisfied it is in force and it was served, or taken to be served, on the person
against whom it was made.
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Child Protection (Offender Prohibition Order) Bill
2007
The clause also allows either the registrar or the commissioner to have the
registration of the order referred to the court.
Where the corresponding order is referred to the court, the commissioner
must serve, or cause another police officer to serve, a copy of the
application and an appearance notice on the respondent. This must be done
personally and fully explained to the respondent, unless the court orders an
alternative way to serve the respondent. When explaining the documents to
the respondent, the officer must do so in a way and use language which the
respondent is reasonably likely to understand having regard to the
respondent's age and cultural, educational and social background.
The court may hear the registration application in the absence of the
respondent, if it is satisfied the respondent has been served with the
application documents.
The clause allows the court to vary a corresponding order to adapt it so it is
effective in Queensland. For example, a corresponding order from Victoria
may prohibit the respondent from approaching all primary schools in
Victoria. A Queensland court would need to adapt such an order to
Queensland by changing the reference to Victoria to Queensland when
registering the order for Queensland.
A registered corresponding order remains in force in Queensland only for
the period for which it was originally made.
The clause allows a regulation to provide for the manner of registering
corresponding orders and for keeping a register of such orders and
providing access to the register.
Action by the registrar and commissioner after registration of a
corresponding order
Clause 28 requires the registrar to give the commissioner a copy of the
registered corresponding prohibition order no more than two business days
after the registration occurs. The registrar may not ask the commissioner
for any fee, or reimbursement for any expenses incurred in the registration
of a corresponding prohibition order.
As soon as practicable after receiving the copy, the commissioner must
serve, or cause another police officer to serve, the respondent with a copy
of the order. If the respondent was not previously a reportable offender
under the CPOR Act, the officer serving the order must also provide the
respondent with a notice under section 54 of the CPOR Act.
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The order must be personally served on the respondent and both the section
54 notice and the order must be fully explained to the respondent, unless
the court orders an alternative way to serve the respondent. When
explaining the documents to the respondent, the officer must do so in a way
and use language which the respondent is reasonably likely to understand
having regard to the respondent's age and cultural, educational and social
background.
If the registered corresponding order is to be served on a child respondent,
it should be done as discreetly as possible and not in the vicinity of the
respondent's school or workplace unless there is no other alternative. A
copy must also be given to the child's parents or guardian and if it may
result in the child changing his or her place of residence, a copy must be
given to the chief executive (child safety).
A failure to properly serve the registered corresponding order on the
respondent does not affect the validity of the registration of the
corresponding order.
Effect of registration of a corresponding order
Clause 29 provides a registered corresponding prohibition order has the
same effect as an offender prohibition order made under this legislation. It
may be enforced against the respondent as if it were an offender prohibition
order made under this legislation. This provision has effect even if the
registration of the corresponding order is ordered in the absence of the
respondent.
However, if a corresponding prohibition order was varied in the absence of
the respondent and the person has not been notified of the variation, then
the registered corresponding prohibition order has no effect until the
respondent has been given notice of it.
In the interim, the corresponding order as it existed prior to being varied by
the court has effect in Queensland and may be enforced.
Varying a registered corresponding order
Clause 30 makes provision for either the commissioner or the respondent to
apply to the court for a registered corresponding order to be varied,
however, the latter may only do so with the leave of the court.
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Cancelling the registration of a registered corresponding order
Clause 31 makes provision for the commissioner or the respondent to apply
to the court for an order cancelling the registration of a registered
corresponding order. However, the respondent can only make an
application with the leave of the court.
If the court revokes the order, it stops having effect in Queensland.
Part 4 Reportable offender obligations
Offender reporting requirement after an offender prohibition
order made
Clause 32 provides for respondents who are not reportable offenders before
an offender prohibition order is made to immediately become reportable
offenders under CPOR Act. The length of the respondent's reporting
period for that Act is the period for which the offender prohibition order
has effect.
Offender reporting requirement after the registration of a
corresponding order
Clause 33 makes a respondent for a registered corresponding order who is
not a reportable offender immediately before the registration of the order,
to become a reportable offender upon its registration.
The respondent is taken to be a reportable offender and the registered
corresponding order is taken to be an offender reporting order for the
purposes of the CPOR Act.
The length of the reporting period for an adult is which ever is the shorter
of either five years or the period for which the registered corresponding
order has effect.
The length of the reporting period for a child is which ever is the shorter of
either two years or the period for which the corresponding order has effect.
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Part 5 Offences
Failure to comply with an offender prohibition order
Clause 34 creates an offence for failing to comply with a prohibition order.
This offence applies to temporary and final orders as well as registered
corresponding orders.
It is a defence to the charge for the respondent to show he or she had a
reasonable excuse for not complying with the order in the circumstances.
The maximum penalty for failing to comply with the conditions of the
order is two years imprisonment.
It is important that the respondent knows of the existence of the order and
its conditions. If a respondent lacks this knowledge, they can not be
criminally responsible. This clause operates so that a respondent who was
present in court when the order was made, or was personally served with a
copy of the order, has knowledge of the existence and conditions of the
order.
Also, if a police officer tells a respondent about the existence of an order,
and the respondent breaches it, he or she commits the offence. Where the
prosecution intends to rely on the fact a police officer has told a respondent
about an order, rather than actually serving it, the court must be satisfied
the officer told the respondent about the actual condition the respondent is
alleged to have breached.
Clause 23 provides that when making an order the court must explain it to a
respondent who is physically present in court. Clause 24 requires the
police officer serving an order to explain it to the respondent in addition to
providing him or her with a copy of the order.
Proof of knowledge of a particular condition in a particular
circumstance
Clause 35 provides that if, during a proceeding for either an offender
prohibition order or a registered corresponding order, an issue is raised as
to whether the respondent knew about a particular condition of the order
that is alleged to have been contravened, and there is evidence that the
respondent knew of this because a police officer had told the respondent of
its existence, then the respondent cannot be convicted unless it is proven
that the police officer told the respondent about the particular condition.
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Matters relevant to the reasonable excuse defence
Clause 36 provides that when a court is deciding whether a respondent has
a reasonable excuse for contravening either an offender prohibition order or
a registered corresponding order, it must have regard to: the respondent's
age; whether or not the respondent has a disability that affects his or her
ability to understand or comply with that order; whether the form of notice
given to the respondent was adequate to inform him or her of their
obligations under the order, having regard to the respondent's
circumstances; and any other matter that is considered appropriate.
Prohibition on disclosing particular matter
Clause 37 provides that any person, who obtains protected information
because of that person's involvement in the administration of this Act,
including a proceeding under this Act, must not disclose the information to
another person.
The maximum penalty for contravening this prohibition is two years
imprisonment.
This prohibition does not apply to the disclosure of anything about the
prohibition order in respect to:
· a disclosure authorised by a court of magistrate in a proceeding
under this Act;
· a disclosure authorised under an offender prohibition order or a
registered corresponding order;
· the disclosure by a person identifying himself or herself as a
person mentioned in relation to any matter under this Act;
· a disclosure made in a proceeding before a court or tribunal;
· a disclosure to a respondent made for the purposes of the
administration of this Act or the operation of the relevant
offender prohibition order or registered corresponding order;
· a disclosure to a police officer, or someone else who is a member
of a law enforcement agency of the State or of the
Commonwealth or another State, for the purpose of the
performance of the police officer's or other person's functions;
· a disclosure made for the purpose of an Act the operation of
which requires the disclosure;
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· a disclosure to a person involved in the respondent's assessment
and management under the Act, e.g. a corrective services officer
under the Corrective Services Act 2006;
· a disclosure to a lawyer representing a person who is or was a
party to a proceeding under this Act;
· a disclosure to anyone else to whom the disclosure is required or
permitted to be made under an Act, e.g. a person to whom the
disclosure may be made under part 6.
Moreover, a person must not disclose protected information to another
person with the intention of inciting anyone to intimidate or harass a
respondent.
Part 6 Obtaining and disclosing
particular information
Commissioner to be given information about a relevant sexual
offender
Clause 38 provides for the purpose of deciding whether to make an
application for an offender prohibition order, the commission may direct a
government entity to provide any information held by the government
entity that is relevant to an assessment of whether the respondent poses a
risk to the lives or sexual safety of one or more children or children
generally.
A government entity is defined as being one within the meaning of the
Public Service Act 1996. The information is to be used for the purpose of
deciding an application for an offender prohibition order.
The direction given by the commissioner is to be given in writing and must
state the day on or before which the information must be given. Despite
any other legislation to the contrary, the government entity is authorised
and required to give the police commissioner the information being sought
by the direction. This requirement does not extend to information that is
subject to legal professional privilege.
Moreover, this requirement does not extend to information held by
Queensland Health..
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Commissioner may give information about an offender
prohibition order to prescribed entities
Clause 39 makes provision for the commissioner to give the chief executive
(child safety), the chief executive (communities), the chief executive
(education) or the Children's Commissioner, information about an offender
prohibition order that includes: the respondent's name and date of birth; the
term of the order; and the conduct of the respondent that is prohibited by
the offender prohibition order.
The commissioner may provide anything else that is considered to be
reasonably necessary to allow the prescribed entity to identify the
respondent to ensure the safety of a child or children in that entity's care or
the safety of the respondent.
These departments have a duty of care towards the children and it may be
necessary to inform one or more of these departments about a respondent
who has been placed on an offender prohibition order and who could
potentially pose a threat to one or more children.
Should the offender prohibition order be varied or revoked at a later date,
then the commission must give the relevant chief executive written notice
of the variation or revocation of the order. For the purposes of this
provision, an offender prohibition order also includes a registered
corresponding offender prohibition order.
Disclosure of information by particular officials
Clause 40 provides that if a prescribed entity is given information under
clause 39 about an offender prohibition order, then that information may be
given to a person performing a function under a relevant Act if the
prescribed entity reasonably believes the giving of the information is
necessary for the purpose of performing that function.
Also, the chief executive (education) may provide the information to
principals and certain teachers to enable them to ensure the safety of
students for which they are responsible.
If the prescribed entity has given information about an offender reporting
order to a person performing a function under a relevant Act and notice of a
variation or revocation of that order is subsequently given, then written
notice of the variation or revocation must be given to the person performing
the function of the relevant Act.
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For the purposes of this provision, an offender prohibition order includes a
registered corresponding order.
For the purposes of this provision a relevant Act means: the Child
Protection Act 1999 for the chief executive of child safety; the Juvenile
Justice Act 1992 for the chief executive of communities; the Education
(General Provisions) Act 2006 for the chief executive of education; and the
Commission for Children and Young People and Child Guardian 2000 for
the children's commissioner.
Chief executive (communities) to be given information about a
child respondent
Clause 41 provides that if the court requires the chief executive
(communities) to provide a report about a child respondent, then for the
purpose of providing the report to the court, the chief executive
(communities) may ask another government entity to provide any
information that is held by that entity which is relevant to the report. The
request must be made in writing and state the day on which or before which
the information is to be provided. Despite any other Act, the government
entity is authorised to provide the chief executive (communities) with the
information requested.
Duty of officials obtaining information
Clause 42 provides that it is the duty of any person who obtains
information under sections 38 to 41 of this Act to take all reasonable steps
to ensure the information is used or disclosed only for the purpose for
which it was obtained.
Commissioner may give information about an offender
prohibition order to other particular persons
Clause 43 empowers the commissioner to give information about an
offender prohibition order to either the parent or guardian of a respondent
(including an adult respondent), or the parent or guardian of any victim, or
potential victim of a reportable offence committed by the respondent,
providing it is reasonably considered to be necessary and appropriate to
reduce the risk to the lives or sexual safety of one or more children or
children generally.
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Protection from liability for giving information
Clause 44 provides that if a person, acting honestly and in compliance with
this part, provides information for the purposes of this legislation, then the
person is not liable, civilly or criminally or under an administrative
process.
If a defamation proceeding should ensue, the person has a defence of
absolute privilege for publishing the information. Should the person be
required by another Act to maintain confidentiality in respect to the
information protected by that Act, the person does not contravene the
provisions of that legislation by giving the information required by this
Act.
Part 7 Legal proceedings
Application of pt 7
Clause 45 provides that this part applies to a proceeding under this Act.
Application of Evidence Act 1977
Clause 46 provides that the applied provision applies for the purpose of
proving an offender prohibition order or another order made under this Act,
a corresponding order, or the registration of a corresponding order under
this Act.
For the purposes of this provision, an applied provision means section 53 of
the Evidence Act 1977. For proof of corresponding orders, see sections 5,
157 and 158 of the Evidence Act 1995 (Cwlth).
Evidentiary provisions
Clause 47 makes provision for an averment in a complaint that a stated
person was personally served with a stated offender prohibition order by a
process server on a stated date is evidence of the stated matters. Also an
averment that the respondent was present in court when a stated order was
made is evidence of that matter.
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An affidavit by a process server stating the date, time and manner the
process server served a stated offender prohibition order on a stated person
is evidence of the stated matters.
If a defendant intends to challenge a matter stated in the aforementioned
averment or affidavit, the defendant must give the prosecution written
notice of the challenge at least three business days before the day fixed for
the hearing. A failure to give this notice will prevent the defendant
challenging the matters.
This recognises that some process servers are only involved in a
prosecution because they served an order on a defendant. This clause is
designed to save the expense and time involved in having officers give
evidence in court relating to service of orders, unless the manner of serving
a particular defendant is an issue for the hearing.
In this section a process service includes a Queensland police officer and
for a corresponding prohibition order an interstate police officer or other
person authorised to serve the corresponding order.
Part 8 Appeals
Who may appeal
Clause 48 makes provision for the commissioner and a respondent for an
offender prohibition order or a registered corresponding order, to appeal
against a court's order. The court's order subject to the appeal can be an
order making, varying, or revoking a prohibition order, or an order
registering, varying or cancelling a corresponding order.
If the respondent is a child the appeal lies to the Childrens Court
constituted by a Childrens Court Judge. Otherwise, the appeal lies to the
District Court.
Starting an appeal
Clause 49 provides that the appeal must be started within 28 days of the
relevant decision being made. However, if the relevant decision was made
in the absence of the respondent, then the appeal must be started within 28
days of the copy of the order being served on the respondent. The court
may extend the appeal period upon application.
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The appeal must be started by lodging a notice of appeal in writing with the
registrar of the appeal court. The appeal must be heard only in the presence
of the appellant, the respondent, their lawyers and any witness or other
person the court allows to be present.
Nature of an appeal
Clause 50 provides that an appeal is by way of a rehearing and subject to
clause 49, under the Uniform Civil Procedures Rules 1999 or, in so far as
those rules can not be applied to such appeals, in accordance with
directions given by a judge.
Fresh or further evidence is not admissible on appeal.
It should be noted that an appeal against a decision to make or vary an
offender prohibition order, or to register a corresponding offender
prohibition order, does not stay the operation of that order, unless the
appeal Court orders otherwise.
Powers on an appeal
Clause 51 provides that on an appeal against a relevant decision in regard to
an offender prohibition order, the Court may, either vary or revoke the
order as it considers appropriate, or make another order or decision that it
considers should have been made. Similarly, in respect to an appeal against
a relevant decision made regarding a registered corresponding order, the
Court may vary or revoke the order, or make another order or decision that
it considers to be appropriate.
Court may not award costs unless an application is frivolous or
vexatious or another abuse of process
Clause 52 provides that the appeal entity must not award costs on an appeal
under this part unless it dismisses the application as being frivolous or
vexatious or another abuse of process.
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Part 9 Miscellaneous
Service of documents
Clause 53 provides for the service of documents on a respondent. All
documents must be served personally on the respondent unless after
reasonable attempts it has not been possible. Where this occurs the
Commissioner may apply to the court for an order substituting service.
If notice of the proceedings is to be served on a respondent who is a child
then it should be done as discreetly as possible and not in the vicinity of the
child respondent's school or place of employment, unless there is no other
place where service can be affected.
When serving the documents, the police officer must explain it to the
respondent using language and in a manner which the respondent is likely
to understand having regard to the respondent's age, and cultural,
educational and social background. Likewise the officer must provide the
respondent with a notice explaining the reportable offender obligations
under the CPOR Act, s 54. This notice must be similarly explained to the
respondent.
No filing fee payable
Clause 54 makes the provision that no fees are payable for making an
application or filing another document under this Act.
Approval of forms
Clause 55 provides that the commissioner may approve forms for use under
this Act.
Review of Act
Clause 56 provides for the Crime and Misconduct Commission to review
the operation of this Act and prepare a report on the review. The conduct of
the review and the preparation of the report is a function of the Crime and
Misconduct Commission for the Crime and Misconduct Act 2001. The
review must be started as soon as practicable after the end of three years
after the commencement of this section. A copy of the report must be
given to the Speaker for tabling in the Legislative Assembly.
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Regulation-making power
Clause 57 provides for the Governor in Council to make regulations under
this Act.
Part 10 Amendment of Child Protection
Amendment Act 2000
Act amended in pt 10
Clause 58 makes provision for this part to amend the Child Protection
Amendment Act 2000.
Amendment of schedule (Amendments for omission of Chapter
7, part 7)
Clause 59 makes provision for `Schedule, item 4' to be omitted and the
insertion of a saving provision for the Child Protection Amendment Act
2000.
Part 11 Amendment of Child Protection
(Offender Reporting) Act 2004
Act amended in pt 11
Clause 60 makes provision for this part to amend the Child Protection
(Offender Reporting) Act 2004.
Amendment of s 5 (Reportable offender defined)
Clause 61 makes provision for an amendment to section 5(1) to include a
person who, under the Child Protection (Offender Prohibition Order) Act
2007, as being taken to be a reportable offender.
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Amendment of s 13 (Offender reporting orders)
Clause 62 makes provision for section 13(5) to be amended to empower the
court to impose an offender reporting order on its own initiative or upon an
application by the prosecution.
Insertion of new s50A
Clause 63 creates a new offence for a reportable offender to apply, during
the offender's reporting period, for a positive notice under the Commission
for Children Young People and Child Guardian Act 2000. It also creates an
offence for the reportable offender to sign a consent for employment
screening under that Act.
The maximum penalty is 150 penalty units or 2 years imprisonment.
Part 12 Amendment of Commission for
Children Young People and Child
Guardian Act 2000
Act amended in pt 12
Clause 64 identifies the part amends the Commission for Children Young
People and Child Guardian Act 2000.
Amendment of s95 (Main purpose of pt 6)
Clause 65 changes the title of s95 of the Act to reflect that the part has
multiple purposes. It also provides an additional purpose of the part is to
prevent reportable offenders holding positive notices, being employed in
regulated employment or engaging in regulated business.
Insertion of new s99EA
Clause 66 inserts a definition for reportable offender as being someone
who is a reportable offender under the Child Protection (Offender
Reporting) Act 2004. A `relevant reportable offender' is defined as a
reportable offender whose reporting period has not ended or a respondent
for an offender prohibition order or registered corresponding order under
the Child Protection (Offender Prohibition Order) Act 2007. A respondent
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for an offender prohibition order is defined under the Child Protection
(Offender Prohibition Order) Act 2007 as a person against whom an
offender prohibition order is made (including both a temporary or final
order).
Amendment of s101A (Notice of change of employment or
name and contact details in application under s100 or 101)
Clause 67 amends the heading of s 101 A. In addition it requires a person
in relation to whom there is an outstanding application under s 100 or 101
to notify the children's commissioner if the person becomes a relevant
reportable offender after the application is made and before it is decided. A
failure to notify of this change in circumstance is an offence.
Insertion of new 101AA
Clause 68 provides that a relevant reportable offender can not apply for a
positive notice under s 101 or sign an application as a relevant person under
section 100, providing consent to employment screening.
A contravention of this provision is an offence under s 50A of the Child
Protection (Offender Reporting) Act 2004.
Amendment of s 102 (Decision on application)
Clause 69 amends s 102 to the effect that the children's commissioner must
issue a negative notice to a person where the police commissioner provides
a notification of an outstanding charge under s 50A of the Child Protection
(Offender Reporting) Act 2004. This section operates to the exclusion of s
102 (6)(a) or (b).
Insertion of new pt 6, div 4A
Clause 70 creates a new division 4A in part 6 of the Act.
The new section 120B suspends a positive notice held by a person while the
person is to the subject of a temporary prohibition order. It also prevents
the person making an application to cancel the suspension while the
temporary order is in force.
Unless a final order is issued the children's commissioner must consider
issuing a positive notice to a person when a temporary order ceases to have
effect.
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The children's commissioner must also make the appropriate notifications
under s119C.
Section 120C applies to a relevant reportable offender who has a positive
notice, whether before or after the commencement of the section. The
children's commissioner must cancel the positive notice and issue a
negative notice.
This section also applies where a temporary order had resulted in the
suspension of the positive notice under s 120B and the temporary order has
ceased to have effect because a final order has been made.
Section 119A applies to the person, to the exclusion of s 119B and 119D.
The person is taken to have committed an excluding offence and been
convicted and sentenced to a period of imprisonment for that offence after
the commencement of section 119A. As there is no discretionary decision
made there is no right of review in relation to the issue of the negative
notice, other than on the basis of a claim of mistaken identity.
The children's commissioner must also make the appropriate notifications
under s119A.
If the person stops being a relevant reportable offender, section 119 applies
to the person as if the excluding offence he or she was taken to be
sentenced for had been overturned on appeal. This allows the childrens
commissioner to re-issue a positive notice to the person subject to the
exercise of discretion.
Section 120D provides that any current appeal is withdrawn if a person is
or becomes a relevant reportable offender.
Section 120E provides for the commissioner to provide information to the
children's commissioner to enable the childrens commissioner to identify a
respondent to a final or temporary order. This is necessary as respondents
are considered relevant reportable offenders and become ineligible to hold
or obtain positive notices or blue cards. The commissioner must inform the
childrens commissioner if a person stops being a respondent.
Amendment of s 121 (Person may apply for review of decision)
Clause 71 makes provision for a person to appeal to the Children Services
Tribunal where the persons positive notice has been cancelled or suspended
on the basis of mistaken identity.
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Omission of s 121B (Police commissioner not to delegate
power under s 121A)
Clause 72 omits section 121B, allowing the commissioner to delegate his
or her powers under the Act by virtue of the Police Service Administration
Act 1990.
Amendment of sch 4 (Dictionary)
Clause 73 inserts a definition for `reportable offender' and `relevant
reportable offender' into the dictionary.
Schedule
Dictionary
This schedule provides the Dictionary meanings of terms used for the
purposes of this Act.
© State of Queensland 2007