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Child Protection (Offender Reporting) Bill 2004
Child Protection (Offender Reporting) Bill
2004
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The Child Protection (Offender Reporting) Bill 2004 (the Bill) generally
fulfils the Queensland component of a national child protection registration
scheme. The Bill requires child sex offenders, and other defined categories
of serious offenders against children, to keep police informed of certain
personal details for a period of time after they are released into the
community. The purpose of this legislation is to reduce the likelihood that
offenders will re-offend and to assist the investigation and prosecution of
any future offences that they may commit.
Means of Achieving Policy Objectives
The legislation will make it mandatory for child sex offenders to report
certain personal details to police when they are released into the
community. The information will be kept on a register that is maintained
by police. This is the Queensland component of a national child protection
register that will enable police from all Australian jurisdictions to track the
movements of offenders who may seek to avoid compliance with the
scheme.
Alternative Means of Achieving Policy Objectives
As this Bill represents the Queensland component of a national child
protection registration scheme there is no alternative means of achieving
the policy objectives.
Estimated Cost of Implementation for Government
The total estimated cost to Queensland government departments to
implement the proposal in Queensland is $1.5M.
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Child Protection (Offender Reporting) Bill 2004
Consistency with Fundamental Legislative Principles
The legislation will have a retrospective effect in that at the date of
commencement, persons who are in custody or on post-prison community
based release, community based sentence, existing continuing detention or
supervision orders under the Dangerous Prisoner (Sexual Offenders) Act
2003, or on existing section 19 reporting orders under the Criminal Law
Amendment Act 1945 after being convicted of sexual offences against
children or other specified offences will be required to register with police
regardless of when the offence was committed. This may appear
inconsistent with the fundamental legislative principle that legislation have
sufficient regard to the rights and liberties of individuals and not impose
obligations retrospectively.
Although mandatory, the new scheme is akin to the existing scheme in
section 19 of the Criminal Law Amendment Act 1945. The purpose of the
scheme is not punishment and mandatory registration is not a form of
sentence. A similar argument applies to prisoners subject to the Dangerous
Prisoners (Sexual Offenders) Act 2003, which also includes those serving a
sentence of imprisonment which predates the commencement of that Act.
The issue of additional punishment and retrospectivity has been considered
in the context of section 19 of Criminal Law Amendment Act 1945. The
Queensland Court of Appeal in R v C [2002] QCA 156 held that an order
under section 19 is not intended to impose a form of punishment but rather
its purpose was protective or a vulnerable part of the community. In light
of that, this legislation can have retrospective application in a similar way
to the recent amendments to section 19.
The retrospective application of registration schemes has been judicially
tested in the United States of America, with the United Kingdom scheme
considered by the European Commission of Human Rights. In each case,
the registration requirements were found not to impose additional
punishment.
There is no legislative review of mandatory reporting obligations. As the
reporting obligations and reporting periods are prescribed by the
legislation, the determination of a reportable offender's obligation is
prescribed by the legislation and not by police. In this regard, this is not
considered to be a breach the Legislative Standards Act. The Act also
provides that the Police Commissioner provide an internal review on
application where a person believes the decision to place a reportable
person on the register has been made in error. The provisions of Judicial
Review will still apply.
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Child Protection (Offender Reporting) Bill 2004
Consultation conducted in Development of the Bill
No community consultation was undertaken in relation to this Bill.
Where there are potential implications on the roles of government
departments, these departments were consulted in respect to the relevant
portions of the Bill.
NOTES ON PROVISIONS
Specific 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.
Purpose and outline
Clause 3 describes the purpose and outline of the Bill. It provides that the
purpose is to require particular offenders who commit sexual or other
serious offences against children to keep police informed of their
whereabouts and other personal details for a period of time after their
release into the community. The intent of this is to reduce the likelihood
that they will re-offend and to facilitate the investigation and prosecution of
any future offences they may commit.
The Bill provides for the establishment of a child protection register to be
administered and maintained by the police. Offenders who are sentenced
for reportable offences after the commencement date are to report specified
personal details for inclusion in the register, and this requirement is
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Child Protection (Offender Reporting) Bill 2004
extended to particular offenders sentenced for reportable offences before
that date.
The registration places an onus on the individual, after the initial
registration, to update any changes to their personal information. It further
requires that they report to an approved police complex at least on an
annual basis. The registration process extends for a period of time ranging
from four years to life, dependent upon the type of offence, number of
offences and re-offending of the individual. Juvenile offenders will be
subject to half the registration period of adult offenders.
The Bill also allows for the recognition of the period of reporting
obligations imposed under the laws of foreign jurisdictions. A registered
person, who is leaving their respective jurisdiction to travel overseas for
any period of time, or interstate for a period in excess of 14 days, is
required to advise police of their intended destination and a contact
address. Within the national framework, police will be able to advise the
jurisdiction of that person's impending arrival and intelligence databases
can be appropriately updated. If overseas travel is involved, the Australian
Federal Police will notify the respective border authorities within that
country, dependent upon the perceived risk.
Notes in text
Clause 4 provides that a note in the text of this legislation is part of the
statute.
Part 2 Interpretation
Reportable offender defined
Clause 5 defines a reportable offender as being a person whom a court has
sentenced for a reportable offence after the commencement date. This
provision applies to certain people who are reportable offenders for the
purposes of equivalent laws outside of Queensland, even though they are
not reportable offenders under this Bill.
A person is also a reportable offender if they are an existing reportable
offender, a corresponding reportable offender, a New South Wales
reportable offender, or subject to an offender reporting order.
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Child Protection (Offender Reporting) Bill 2004
Unless a person is a reportable offender because they are either an existing
reportable offender, a corresponding reportable offender, a New South
Wales reportable offender or a person subject to a child protection
registration order, a person is not a reportable offender merely because they
are a person to whom a court has made a finding of guilt but has not
recorded a conviction for a class 1 or class 2 offence under section 12 of the
Penalties and Sentences Act 1992, or section 183 of the Juvenile Justice Act
1992. This includes an equivalent order under the laws of a foreign
jurisdiction. Neither is a person on whom a sentence has been imposed for
a single class 2 offence if that sentence did not include a term of
imprisonment, including one that is subject to a home detention order or its
equivalent in a foreign jurisdiction. This also applies to a sentence that did
not require that the person be under the supervision of a supervising
authority or another person or body.
Similarly, these conditions apply to a person, who as a juvenile, committed
a single offence involving an act of indecency, or a single offence of
possessing or publishing child pornography either in Queensland or under
the laws of a foreign jurisdiction. This also applies to a person, who as a
juvenile, committed a single offence that falls within a class of offence that
the regulations state is an offence for the purposes of this provision,
including an offence under the law of a foreign jurisdiction.
Also, a person is not a reportable offender if they are receiving protection
under a foreign witness protection law specified under a regulation for the
purposes of this provision, or if they have the same status as that sort of
person under an order made under a corresponding Act specified under a
regulation for the purposes of this provision.
A person ceases to be a reportable offender if the finding of guilt relating to
the only offence that makes the person a reportable offender under this
legislation is quashed or set aside by the court. Similarly, a person, to
whom a court has made a finding of guilt but has not recorded a conviction
for a class 1 or class 2 offence, or a person on whom a sentence has been
imposed for a single class 2 offence if that sentence did not include a term
of imprisonment, ceases to be a reportable offender if their sentence for
that offence is reduced or altered, had the amended sentence been the
original sentence. Also, a person's status as a reportable offender ceases if
they are subject to a offender registration order that is quashed on appeal.
A similar situation applies to a person who has been subjected to a forensic
order and an offender reporting order has been made with the forensic
order. Should the forensic order be revoked then the person also ceases to
be a reportable offender.
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Child Protection (Offender Reporting) Bill 2004
It is irrelevant, whether or not a person may lodge, or has lodged an appeal
in respect of a finding of guilt, sentence or child protection order.
Reference to a person upon whom a sentence has been imposed for a single
class 2 offence that did not involve imprisonment or some form of
supervision, includes a reference to more than one offence of the same kind
arising from the same incident. Similar circumstances apply to offenders
who, as a child, commit a single offence involving an act of indecency or a
single offence involving child pornography.
Existing reportable offender defined
Clause 6 defines an existing reportable offender as being a person who,
before the commencement date, has been sentenced for a reportable
offence who is either serving a term of imprisonment or subject to a
supervision order. This will include offenders subject to continuing
detention orders and supervision orders under the Dangerous Prisoner
(Sexual Offenders) Act 2003. Also included in the existing reportable
offender category are those persons who, immediately before the
commencement date, were subject to a reporting order made under section
19 of the Criminal Law Amendment Act 1945. However, it should be noted
that this provision does not apply to offenders who have not had a
conviction recorded under section 12 of the Penalties and Sentences Act
1992 or section 183 of the Juvenile Justice Act 1992.
Corresponding reportable offender defined
Clause 7 defines corresponding reportable offender as being a person who
had at any time been in a foreign jurisdiction and at that time had been
required to report to the corresponding registrar in that jurisdiction for a
longer period than the person would be required to report under this
legislation, regardless of whether that time was before or after the
commencement of this provision.
This proviso applies if the corresponding reportable offender is a person
who would, if they were still in that foreign jurisdiction, be required to
report to the corresponding registrar in that jurisdiction for a longer period
than the person would be required to report under the provisions of this
legislation, because this is the recognised foreign reporting period.
Moreover, this definition applies to a person who falls within a class of
person to whom a regulation states is a corresponding reportable offender.
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Child Protection (Offender Reporting) Bill 2004
New South Wales reportable offender defined
Clause 8 defines a New South Wales reportable offender as being a person
who, had they been in New South Wales at a time before the date stated in a
regulation for the purposes of this section and whose reporting obligations
under the New South Wales Act had begun at that time. A person whom
the regulation prescribes as not being a New South Wales reportable
offender is not included in this definition. A regulation may prescribe a
date before the commencement date.
Reportable offence defined
Clause 9 defines a reportable offence as being either a class 1 offence, or a
class 2 offence. Also included in this definition is an offence that is neither
a class 1 or class 2 offence but it is considered to be serious enough to
warrant the court making an offender reporting order. An example of this
is an offender who approaches a child, douses them with petrol and then
sets the child alight.
Finding of guilt defined
Clause 10 provides that a reference to a finding of guilt in relation to an
offence committed by a person is a reference to a court making a formal
finding of guilt in relation to the offence, or in the case of there having been
no formal finding of guilt before the conviction, a court convicting a person
of the offence. Similarly, it applies to a court accepting a plea of guilty
from the person in relation to the offence, or accepting an admission of
guilt from a person for the purpose of the offence being taken into account
under section 189 of the Penalties and Sentences Act 1992 or section 157 of
the Juvenile Justice Act 1992. This also applies to the equivalent
provisions of the laws of a foreign jurisdiction.
However, any reference to a finding of guilt does not include a finding of
guilt that is later quashed or set aside by a court.
References to other terms and concepts
Clause 11 provides that for the purposes of this legislation, offences arise
from the same incident only if they are committed within a single period of
24 hours and against the same person.
A reference to doing a thing in person is a reference to doing the thing by
personal attendance at a place. It does not include attending a place by
telephone or some other electronic means.
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Child Protection (Offender Reporting) Bill 2004
Definitions
Clause 12 provides that the dictionary in schedule 3 defines particular
words in this Bill.
Part 3 Offender Reporting Orders
Clause 13 makes provision for a court to make an offender reporting order
for a person who is found guilty of an offence that is neither a class 1 nor
class 2 offence that requires that person to comply with the reporting
obligations of this legislation. This includes a court making a forensic
order in relation to a person suffering from a mental illness. A court may
only make the order if it is satisfied that the person poses a risk to the lives
or sexual safety of one or more children, or children in general. To this end
it is not necessary for the court to be able to identify a risk to particular
children, or a particular class of children. The court may only make the
order if it imposes a sentence in relation to the offence, other than where
there is a finding of guilt but no conviction is recorded. The order must be
made concurrently with the sentence. A court may only make the order if it
receives an application from the prosecution for the imposition of the order.
If a court has made an offender reporting order against a person, then the
person may appeal against the making of the order under chapter 67 of the
Criminal Code as if it were a sentence pronounced upon a person who has
committed an indictable offence. Conversely, if a court has refused to
make an offender order against a person, then the Attorney-General may
appeal against the refusal under chapter 67 of the Criminal Code as if it
were a sentence pronounced on the conviction of a person for an indictable
offence.
If the court has made an offender reporting order against a forensic patient,
then that person may make an appeal under chapter 8, part 2 of the Mental
Health Act 2000 as if the order were a decision of the Mental Health Court.
Conversely, if a court has refused to make an offender reporting order
against a forensic patient, then the Attorney-General may make an appeal
against the decision under chapter 8, part 2 of the Mental Health Act 2000
as if the order were a decision of the Mental Health Court. In either case,
any reference to the Mental Health Court is to be understood as a reference
to the court that made the offender reporting order.
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Child Protection (Offender Reporting) Bill 2004
Moreover, in the case of forensic patients, if they are subject to an offender
reporting order, then that order ends if the forensic order is revoked under
section 203 of the Mental Health Act 2000.
For the purposes of the provisions pertaining to all reporting obligations, a
person (other than a forensic patient) who is subject to an order under this
clause is deemed to have been found guilty of a class 2 offence.
Part 4 Reporting Obligations
Division 1 Initial Report
When initial report must be made
Clause 14 provides that a reportable offender must initially report their
personal details to the Commissioner of Police within the following time
periods:
a. a reportable offender, other than a corresponding reportable
offender, who enters government detention in Queensland on or
after the commencement date as a consequence of having been
sentenced for a reportable offence and who ceases to be in
government detention whilst in Queensland is required to report
within 28 days of being released from government detention;
b. a reportable offender, other than a corresponding reportable
offender, in government detention in Queensland immediately
before the commencement date and who ceases to be in
government detention whilst in Queensland is required to report
90 days after the commencement date or 28 days after they are
released from government detention;
c. a reportable offender, other than a corresponding reportable
offender, who is in Queensland on the commencement date, but
who is not in government detention at that time must report
within 90 days after the commencement date or, if they are given
written notice of their reporting obligations, within 72 days after
that date, within 28 days after they are given notice;
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Child Protection (Offender Reporting) Bill 2004
d. a reportable offender (other than a corresponding reportable
offender) who is subject to an offender reporting order must
report within 28 days of the order being made;
e. any other reportable offender who is sentenced for a reportable
offence in Queensland is required to report 28 days after they are
sentenced for the reportable offence;
f. any other reportable offender who enters Queensland from a
foreign jurisdiction and who has not previously been required to
report their details to police must report within 14 days of
entering and remaining in Queensland for 14 or more
consecutive days, not counting any days spent in detention; and
g. a corresponding reportable offender who has not previously
reported their details to police and who is in Queensland on the
date on which they become a corresponding reportable offender
must report within 28 days of having become a corresponding
reportable offender or 28 days after they are released from
detention, whichever is the later.
Notwithstanding the aforementioned provisions, a reportable offender must
report their personal details to the police before leaving Queensland unless
they enter the State from a foreign jurisdiction and remain for less than 14
consecutive days, not counting any days spent in government detention.
If more that one circumstance mentioned applies to a reportable offender,
the initial report must be made within the shorter of the periods mentioned.
When new initial report must be made by offender whose
previous reporting obligations have ceased
Clause 15 makes provision for where a reportable offender's reporting
period has expired but they are then sentenced for another reportable
offence by stipulating that they must report their personal details to the
police within 28 days of being sentenced for the reportable offence, or
should they be in government detention, within 28 days of being released,
whichever occurs later.
In the case of a reportable offender's reporting period expiring, but they
then become a corresponding reportable offender who must continue to
comply with the reporting obligations imposed by that jurisdiction for any
period, then they must report their details to the police within 28 days of
becoming a corresponding reportable offender. Alternatively, if they are in
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Child Protection (Offender Reporting) Bill 2004
government detention, they must report within 28 days of being released,
whichever case is the later.
In the case of a reportable offender whose reporting obligations are
suspended by a suspension order, or an equivalent order in a foreign
jurisdiction, and that order ceases to have effect as a result of the offender
being made subject to a further offender registration order, or being found
guilty of a reportable offence, or becoming a corresponding reportable
offender who must continue to comply with the imposed reporting
obligations, the original order that ceased to have effect is revived.
Therefore the reportable offender must report their personal details to the
police within 28 days after the order ceases to have effect, or if they are in
government detention, within 28 days of being released into the
community, whichever is the later.
If a reportable offender is not in Queensland at the time they would be
required under the preceding circumstances to report their personal details
to police, then they must report their personal details within 14 days of
entering and remaining in Queensland for 14 or more consecutive days, not
counting any days that they might spend in government detention.
A reportable offender must report their personal details to the police before
leaving Queensland unless they enter the State from a foreign jurisdiction
and remain for less than 14 consecutive days not counting any days that
might be spent in government detention.
Personal details that are to be reported
Clause 16 provides that the details the reportable offender must report are:
a. their name, together with any other name by which they are, or have
previously been, known;
b. in respect of each name other than their current name, the period
during which they were known by that other name;
c. their date of birth;
d. the address of each of the premises at which they generally
reside, or if they do not generally reside at any particular
premises, the name of each of the localities in which they can
generally be found;
e. the names and ages of any children who generally reside in the
same household as that in which they generally reside, or with
who they have regular unsupervised contact;
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Child Protection (Offender Reporting) Bill 2004
f. if they are employed: the nature of their employment; the name
of their employer; and the address of each of the premises at
which they are generally employed, or if they are not generally
employed at any particular premises, the name of each of the
localities in which they are generally employed;
g. details of their affiliation with any club or organisation that has
child membership or child participation in its activities;
h. the make, model, colour and registration number of any motor
vehicle owned by, or generally driven by them;
i. details of any tattoos or permanent distinguishing marks that they
have, including details of any tattoo or mark that has been
removed or changed;
j. whether they have ever been found guilty in any foreign
jurisdiction of a reportable offence or of an offence that required
them to report to a corresponding registrar or been subject to a
corresponding offender reporting order and, if so, where that
finding occurred or that order was made;
k. if they have been in government detention since they were
sentenced or released from government detention in respect of a
reportable offence or corresponding reportable offence, details of
when and where that custody occurred;
l. if, at the time of making a report, they leave, or intend to leave to
travel elsewhere in Australia on an average of at least once a
month, irrespective of the length of any such absence, they must
in general terms provide the reason for travelling as well as the
frequency and destination of the travel.
A reportable offender does not generally reside at any particular premises
unless they reside at those premises for at least 14 days, whether
consecutive or not, in any period of 12 months. Similarly, a child does not
generally reside in the same household as a reportable offender unless they
reside together in that household for at least 14 days, whether consecutive
or not, in any period of 12 months. Moreover, a reportable offender does
not have regular unsupervised contact with a child unless they have
unsupervised contact with the child for at least 14 days, whether
consecutive or not, in any period of 12 months. Likewise, a reportable
offender is not generally employed at any particular premises unless they
are employed at those premises for at least 14 days, whether consecutive or
not, in any period of 12 months. Correspondingly, a reportable offender
does not generally drive a particular motor vehicle unless the person drives
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Child Protection (Offender Reporting) Bill 2004
that vehicle on at least 14 days, whether consecutive or not, in any period
of 12 months.
A person is employed if they: carry out work under a contract of
employment; carry out work as a self-employed person or as a sub-
contractor; carry out work as a volunteer for an organisation; undertake
practical training as part of an educational or vocational course; or carry
out work as a minister of religion or any other capacity for the purposes of
a religious organisation.
A person is an employer if they arrange, in the course of business, for the
reportable offender to be employed by another person, or they engage the
reportable offender under contract to carry out work.
Persons required to report under corresponding Act
Clause 17 applies to a person, other than a protected witness, who has been
required to report to a corresponding registrar, irrespective of whether they
are a reportable offender for the purposes of this statute.
Unless the reporting obligations imposed by this section have previously
been complied with, then the offender must contact a person nominated by
the police commissioner by either telephone or some other prescribed
means within seven days of entering and remaining in Queensland. Details
pertaining to contacting the nominated person will be available by
contacting any police station.
The nominated person contacted must advise the person whether they are a
reportable offender for the purposes of this legislation and of any reporting
obligations that they have incurred because of it.
A person coming from another jurisdiction is not guilty of the offence of
failing to comply with reporting obligations if they are not a reportable
offender for the purposes of this legislation or they have not been notified
of that reporting obligation. Similarly, they are not deemed to have failed
to comply with reporting obligations if they do not remain in Queensland
for 14 or more consecutive days, not counting any days that they may have
spent in government detention. Likewise, if they report in accordance with
the original reporting obligations they are regarded as having complied
with these requirements.
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Child Protection (Offender Reporting) Bill 2004
Division 2 Ongoing reporting obligations
Reportable offender must report annually
Clause 18 provides that a reportable offender must report their personal
details to the police each year. Moreover, a reportable offender must make
the report by the end of the calendar month in which the anniversary of the
date on which they first reported in accordance with this legislation or a
corresponding Act falls. For example, if J first reported his personal details
to the police on 11 May 2004, then he will be required to make a further
report of those details on or before 31 May 2005, 31 May 2006, etc.
Should a reportable offender have been in government detention since they
last reported their personal details, then the details that they report must
include details of when and where that government detention occurred. In
the case where a reportable offender's reporting period expires, but they
receive a new sentence for a reportable offence and are therefore required
to report again, then the reference to the date upon which they first reported
is to be read as a reference to the date on which they first reported in
respect of the current reporting period.
Reportable offender must report changes to relevant personal
details
Clause 19 provides that a reportable offender must report to the police any
change in their personal details within 14 days of that change having
occurred. For the purposes of reporting a change to their personal details,
the reportable offender must advise police if a change occurs in respect to
the place where the reportable offender or a child generally reside, or when
the reportable offender has unsupervised contact with a child, or the place
where the reportable offender is generally employed, or to the motor
vehicle that they usually drive.
Should a change occur in the personal details of a reportable offender while
they are not in Queensland, then they must report that change to police
within 14 days of entering and remaining in Queensland for 14 or more
consecutive days, not counting any days they might have spent in
government detention. This provision does not apply to a protected
witness.
Should a reportable offender be in custody for 14 or more consecutive
days, they must report their personal details to police within 28 days of
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Child Protection (Offender Reporting) Bill 2004
being released from government detention, or before leaving Queensland,
whichever event is sooner.
Intended absence from Queensland to be reported
Clause 20 provides that if a reportable offender intends to leave
Queensland for 14 or more consecutive days to travel elsewhere in
Australia, or alternatively if they intend leaving Queensland to travel
outside of Australia then they must report their travel intentions to police.
At least 7 days before leaving Queensland, the reportable offender must
report their intended travel to the police and must provide details of each
State, Territory or country that they intend visiting while outside of
Queensland, as well as the approximate dates during which they intend
being in each of those places. Also they must report each address or
location at which they intend to reside in these places that they visit, and to
the extent that they are known, the approximate dates during which they
intend residing at those addresses or locations. Additionally, reportable
offenders are required to report to police the approximate date upon which
they intend returning to Queensland if that is their intention, or if they do
not intend returning to Queensland, a statement of that intention.
Should circumstances arise that make it impracticable for a reportable
offender to make the report 7 days before they leave, then it is sufficient
compliance with the aforementioned requirements if the reportable
offender reports the required information to police at least 24 hours before
the intended travel.
Changes of travel plans while out of Queensland to be given
Clause 21 makes provision for the reportable offender reporting obligations
if they decide to change their travel plans while they are outside of
Queensland. These provisions apply if a reportable offender is outside of
Queensland and they decide to extend a stay elsewhere in Australia beyond
13 days or to change any details given to police about their intended
absence from Queensland. As soon as practicable after making the
decision, offenders must report the required details to the police. This
includes those details as they relate to the travel that has already been
completed.
Provision is also made that a reportable offender must make the report by
facsimile or email sent to the police or to any other address permitted by
the regulations, or by any other manner permitted by the regulations.
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Child Protection (Offender Reporting) Bill 2004
Reportable offender to report return to Queensland or decision
not to leave
Clause 22 outlines the provisions that apply to a reportable offender who is
required to report that they intend leaving Queensland for 14 or more
consecutive days to travel elsewhere in Australia or outside of Australia. In
the case of the reportable offender who has left Queensland, they must
report their return to Queensland to police within 14 days after entering and
remaining in Queensland for 14 or more consecutive days, not counting
any days they might have spent in government detention.
Should the reportable offender decide not to leave Queensland, then they
must report their change of intention to police within 14 days of deciding
not to leave.
Report of other absences from Queensland
Clause 23 requires reportable offenders to inform police of regular
interstate travel arrangements. This provision applies if, at the time of
reporting their intention to leave Queensland, the reportable offender either
leaves, or intends to leave, this jurisdiction to travel elsewhere in Australia
on an average of at least once a month, irrespective of the length of such an
absence. They must also report to police their reason for travelling and the
frequency and destination of their intended travel.
Information concerning international travel to be given to the
AFP
Clause 24 provides that as soon as practicable after receiving any report of
a reportable offender's intention to travel outside of Australia, the Police
Commissioner must ensure that a copy of the report is given to the
Commissioner of the Australian Federal Police. This capacity to share
information will be used to counter child sex tourism.
Division 3 Provisions applying to all reporting
obligations
Where report is to be made
Clause 25 provides for reports to be made at any police station in the
locality in which the reportable offender is currently residing. Should a
direction be given, in accordance with the regulations as to the police
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Child Protection (Offender Reporting) Bill 2004
station to which the report is to be made, then the report must be made at
the police station so directed or at some other place approved by the Police
Commissioner. For example, the Police Commissioner may approve all
authorised mental health service providers under the Mental Health Act
2000 to be approved places for forensic reportable offenders to report.
Where forensic reportable offenders are unable to attend a police station
due to their treatment needs, police may take the forensic patients report at
an authorised mental health service.
A "restricted police station" is a police station, or one that falls within a
class of police station, that the regulations state is not to be used as a venue
for the purposes of registering reportable offender without the consent of
the Police Commissioner. Should the police station in the locality in which
a reportable offender is currently residing be a restricted police station,
then the reportable offender may make the report to that station with the
consent of the Police Commissioner. Alternatively, the reportable offender
may report at the next nearest police station that is not a restricted police
station. This provision will not apply if alternate reporting arrangements
are approved under Clause 26.
How reports to be made
Clause 26 provides that a reportable offender must make the required initial
report and annual report in person. This also applies to a report involving a
change of address of the premises at which the reportable offender
generally resides, or if they do not generally reside at any particular
premises, of the localities in which they can generally be found. Similarly,
this provision also applies to a report regarding the acquisition of, or
removal or change to any tattoo or distinguishing mark that the reportable
offender may possess.
Any other report that a reportable offender may be required to make, may
be made either in person or in any other way permitted either by the
regulations or the police commissioner. This applies generally, as well as
in particular cases. The report being made by the reportable offender, in
person, may only be received by a police officer or a person approved for
that purpose by the Police Commissioner in the prescribed manner.
Should the reportable offender have a disability that makes it impracticable
for them to make a report, then any parent, guardian, carer or other person
nominated by the reportable offender to accompany them, may make the
report on their behalf. Similarly, the same conditions apply to a disabled
reportable offender who is allowed to make a report other than in person in
accordance with the manner prescribed by this provision.
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Right to privacy and support when reporting
Clause 27 provides that a person making a report at a police station or a
place approved by the Police Commissioner is entitled to make the report
in a place that is out of the hearing of members of the public and they are
entitled to be accompanied by a support person of their own choosing. If
the reportable offender does not possess an adequate degree of proficiency
with the English language, then a police officer, or another person
receiving the report, may arrange for an interpreter to be present when the
person is making a report. This police officer, or other person, must not
allow an interpreter to be present when a person is making a report unless
the interpreter has signed an undertaking not to disclose any information
derived from the report unless required or authorised by or under any Act
or law to do so.
Receipt of information to be acknowledged
Clause 28 provides that as soon as practicable after receiving a report, the
police officer, or other person receiving the report, must provide written
acknowledgement of the making of the report. This acknowledgement
must then be given to the person making the report. It must include the
name and signature of the police officer, or other person, who received the
report, as well as the date, time and the place where the report was
received. The acknowledgement must also include a copy of the
information that was reported and a copy of the record of any agreement
made under this provision.
In the case of a report not being made in person, then the police officer or
the other person who received the report, must as soon as practicable, give
the person making the report a unique reference number and record that
number on the relevant reportable offender's file as well as on the
acknowledgement.
The Police Commissioner may make an agreement with the reportable
offender as to the manner in which any reference number or
acknowledgement required may be given. The Police Commissioner must
ensure that there is a method for recording an agreement made at the time.
Any reference number or acknowledgement that is required to be given in
accordance with the agreement, while ever it remains in force, is also to be
recorded. Any divergence from this requirement can only be undertaken
with the written consent of the reportable offender. The Police
Commissioner must ensure that a copy of every acknowledgement is kept.
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Child Protection (Offender Reporting) Bill 2004
Additional matters to be given
Clause 29 provides that if a report is to be made in person, the person
making the report must also present proof of their identity. If the person is
the reportable offender, they must produce their drivers licence, if any, or
any other form of identification or any other documents specified by the
regulations to verify and support the details being made in the report as
well as providing a passport style photograph of their head and face. If the
person making the report is not the reportable offender, then that person
must produce their driver's licence, if any, or another form of identification
specified by the regulation for the purpose of this provision.
The police officer receiving the report may waive the requirement for the
reportable offender to produce proof of their identity or a photograph if
they agree to allow their fingerprints to be taken either immediately before
or after the report is made. Alternatively, if the police officer is otherwise
satisfied about the reportable offender's identity, then the production of
documents supporting the proof of their identity may also be waived.
Provision is also made for the police officer receiving the report to make a
copy of any document that is presented for inspection.
If the report is to be made in any manner other than in person, then the
regulations must specify the circumstances in which the information
concerning the identity of either the reportable offender or the person
making the report must be made. This also applies to the manner in which
any documentation verifying or supporting the details of the report must be
given, however this may not require an original document to be provided.
Power to take fingerprints
Clause 30 makes provision for a police officer receiving a report that is
being made in person to take the fingerprints of the reportable offender if
they are not reasonably satisfied about the identity of the reportable
offender. If the police officer has examined all of the material related to the
identity of the reportable offender and they continue to have concerns about
the identity of the reportable offender, then they, or another person
authorised by them, may take the fingerprints of the person in question.
Power to take photographs
Clause 31 makes provision for the police officer receiving the report in
person to require the reportable offender to be photographed. This includes
having the person expose any part of their body to enable that part to be
photographed by the officer, or a person authorised by the officer.
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However, a police officer cannot require a reportable offender to expose
their genitals, the anal area of their buttocks, or in the case of females or
transgender people who identify as females, their breasts.
Retention of material for certain purposes
Clause 32 makes provision for the Police Commissioner to keep copies of
any documents, fingerprints or photographs related to the reportable
offender. These materials may be used for law enforcement, crime
prevention or child protection purposes.
Reporting by remote offenders
Clause 33 makes specific provision for a reportable offender who resides
more than 100 kilometres from the nearest police station that is not a
restricted police station. These provisions include that a reportable
offender need not comply with a time limit concerning the making of a
report in person if they or the person making the report on their behalf,
contact the police before the time limit expires. Similarly, the Police
Commissioner may agree to allow the report to be made at a specific time
that is after the expiration of the time limit at an agreed specified place. An
agreement may also be made, before the specific time, for the reportable
offender to provide the police with the required information by telephone
or some other agreed means of communication. The Police Commissioner
must ensure that there is a method of recording all agreements that are
made under these circumstances.
Without limiting these agreements, the recording method adopted must
result in a written record that is identified by a unique reference number
and includes when and where each agreement was made. This written
record should also identify the person who enters into any agreement and
contain the terms of the agreement.
In the event of an agreement being made under this provision, the police
must ensure that the reportable offender is provided with the required
reference number and that there is a method for recording all of the
information provided.
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Division 4 Suspension and extension of reporting
obligations
Suspension and extension of reporting obligations
Clause 34 makes provision for any obligation that is imposed upon a
reportable offender to be suspended for any period during which they are
either in government detention, or outside of Queensland. When outside of
Queensland, the reportable offender is still required to report a change of
travel plans in accordance with Clause 21 and if they are a protected
witness the obligations under division 9. This also applies to a reportable
offender who is subject to an order exempting them from reporting
obligations or an equivalent order in a foreign jurisdiction.
The period for which a reportable offender's reporting obligations continue
is extended by any length of time for which those obligations are
suspended because they have been in government custody.
Division 5 Reporting period
When reporting obligations begin
Clause 35 makes provision for a reportable offender's reporting obligations
to begin when the reportable offender is sentenced for the offence, when an
offender reporting order is imposed upon them, or when they cease to be in
government detention in relation to the offence, whichever is the latter, for
an existing reportable offender these events may have happened before the
commencement date. In the case of a forensic patient, the reporting
obligations begin when the offender reporting order is imposed upon them.
Length of reporting period
Clause 36 makes provision that a reportable offender must continue to
comply with the reporting obligations imposed for:
1. eight years if they have only ever been found guilty of a single
class 2 offence; or
2. 15 years if they have only been found guilty of a single class 1
offence, or have ever been found guilty of more than a single
reportable offence that is not subject to a lifetime registration; or
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3. the remainder of their life if they are a reportable offender in
respect of:
a. a class 1 offence and they subsequently commit and are
found guilty of another reportable offence; or
b. a class 2 offence and the subsequently commit and are
found guilty of a class 1 offence; or
c. a class 2 offence and they subsequently commit and are
found guilty of another class 2 offence, and if they have ever
been found guilty of three or more class 2 offences.
Provision is also made that a lifetime registration does not apply if the
reportable offender was not given notice of their reporting obligations
under this legislation or a corresponding Act before they committed the
subsequent offence.
Provision is made that a reference to an offence extends to one that is
committed before the commencement of this clause.
For the purposes of this section, two or more offences arising from the
same incident are to be treated as a single offence, and two or more
offences arising from the same incident are to be treated as a single class 1
offence if at least one of those offences is a class 1 offence.
In the case of an existing reportable offender, in order to work out when
their reporting obligations cease, their reporting obligations in relation to a
reportable offence are taken to have commences when they were either
sentenced for the offence or when the order under section 19 was imposed
or when they ceased being in government custody for the offence.
Notwithstanding anything to the contrary in this provision, in the case of
forensic patients who are subject to the reporting obligations of an offender
reporting order, they must continue to comply with those obligations until
they cease to be a reportable offender.
Reduced period applies for juvenile reportable offenders
Clause 37 makes provision that the reporting periods specified in the
previous section do not apply to a person who was a juvenile at the time
they committed each reportable offence. For these offenders, a reporting
period that is half of that which would otherwise apply to an adult offender
for a comparable reportable offence. A reporting period of seven and a half
years instead of life applies to juvenile offenders.
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Extended reporting period if reportable offender still on post-
prison community based release
Clause 38 provides that this provision applies to a reportable offender who
is on post-prison community based release in respect of a reportable
offence and the reporting period for that offence will end before the expiry
of the sentence of imprisonment to which the post-prison community based
release relates. Despite anything to the contrary, the reporting period is
extended until the expiry of the term of imprisonment to which the post-
prison community based release relates.
Reporting period for corresponding reportable offenders
Clause 39 makes provision for a corresponding reportable offender to be
required to continue to comply with the reporting obligations imposed by
this provision for the recognised foreign reporting period previously
mentioned. For the purposes of this section, if a corresponding reportable
offender is a corresponding reportable offender under the laws of more than
one jurisdiction, then the recognised foreign reporting period is the longest
period for which they would be required to report to the corresponding
registrar of a foreign jurisdiction.
Reporting period for New South Wales reportable offenders
Clause 40 provides that a New South Wales reportable offender must
continue to comply with the reporting obligations imposed for the period
that they are required to report in accordance with the New South Wales
Act. However, in the case of a New South Wales reportable offender who
is sentenced for a reportable offence, either on or after the date specified in
the regulations, they must continue to comply with the period of reporting
obligations imposed by this provision. This also applies to a New South
Wales offender who becomes a corresponding reportable offender. In
either case, the reporting period is either that imposed by the New South
Wales Act or the period that they are required to report in accordance with
this provision, whichever is the longer.
Division 6 Exemptions from reporting obligations
Supreme Court may exempt particular reportable offenders
Clause 41 provides that this division applies to a reportable offender who is
required to continue to comply with the reporting obligations imposed by
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this part for the rest of their life. However, if a period of 15 years has
passed since the offender was last sentenced or released from government
detention in relation to a reportable offence or a corresponding reportable
offence, whichever is the later, then the offender may apply to the Supreme
Court for an order suspending their reporting obligations. It should be
noted that the 15 years does not include any period during which the
reportable offender was in government detention.
Similarly, if the offender did not become the subject of a life-long reporting
period under a corresponding Act while in a foreign jurisdiction before
becoming the subject of a life-long reporting period in Queensland, then
they may also apply to the Supreme Court for an order suspending their
reporting obligations.
An offender who is not subject to post-prison community based release in
relation to a reportable offence may also make and application to the
Supreme Court for an order suspending their reporting obligations.
Order for suspension
Clause 42 provides that upon receiving the application of an eligible
reportable offender mentioned in Clause 41(2), the Supreme Court may
make an order suspending the offender's reporting obligations. However,
the court must not make the order unless it is satisfied that the offender
does not pose a risk to the safety of children.
When deciding whether or not to make the order, the court must take a
number of factors into account, including the seriousness of the offender's
reportable offences and corresponding reportable offences, as well as the
period of time that has elapsed since the offences were committed. The
court must also take into consideration the age of the offender in relation to
the age of the victims of the offence and when the offences were
committed. Moreover, the offender's present age and total criminal record,
along with any other matters that the court considers appropriate, must be
considered as well.
Commission for Children and Young People and Child
Guardian is party to an application
Clause 43 provides that the Commission for Children and Young People
and Child Guardian (the Commission) is entitled to be a party to any
proceedings for an order made under this division. The Commission may
make submissions in opposition to, or support of, the order being made.
Moreover, as soon as is practicable after receiving an application under this
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division, a registrar of the Supreme Court must notify the commission of
the application.
In relation to the preparation of the submissions, the Commission may
direct a government entity or local government to give it information
relevant to an assessment of whether the applicant poses a risk to the safety
of children. The government entity or local government must give the
commission the information that is sought.
Police to be notified of order
Clause 44 provides that a registrar of the Supreme Court must notify the
Police Commissioner of the terms of any order made under this division,
unless of course the Police Commissioner is a party to the application.
No costs to be awarded
Clause 45 provides that the Supreme Court may not award costs in relation
to a proceeding taken under this division.
Right of appeal
Clause 46 provides that in respect to a question of law, any party to a
proceeding under this division may appeal to the Court of Appeal regarding
any decision of the Supreme Court in the proceedings.
Restriction on right of unsuccessful applicant to re-apply for
order
Clause 47 provides that in the case of the Supreme Court refusing to make
an order under this division, the reportable offender is not entitled to make
a further application to the court until five years have elapsed from the date
of the refusal, unless the court orders otherwise at the time the refusal is
made.
When order stops having effect
Clause 48 provides that an order made under this division stops having
effect if the reportable offender is made the subject of an offender
registration order or is found guilty of a reportable offence after the order
has been made. This also applies to a registrable offender who becomes a
corresponding registrable offender who must continue to comply with the
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reporting obligations imposed by recognised corresponding foreign
jurisdiction for any period.
A suspension order that has stopped having effect because of the
aforementioned provision will be revived if the finding of guilt that caused
the order to stop having effect is quashed or set aside by the court.
Moreover, in the case of an order that has stopped having effect because the
reportable offender was made the subject of a offender registration order
which is subsequently quashed or overturned, may also have the
suspension order revived. Similarly, if the guilty verdict in respect to the
offence that resulted in the offender registration order being made against
the offender is quashed or set aside, then the suspension order may also be
revived.
For the purposes of this section, it is irrelevant whether or not a person may,
or has, lodged an appeal in relation to a finding of guilt or offender
registration order.
Application for a new order
Clause 49 provides that if an order ceases to have effect because of the
provisions of clause 48, then the reportable offender may apply for a new
order under this provision. A registrable offender to whom the Supreme
Court has refused to make an order does not apply to this provision.
Should an order stop having effect because the registrable offender is found
guilty of a registrable offence or becomes a corresponding registrable
offender who must continue to comply with the imposed reporting
obligations, then an application made under this division may be made for
a new order when a period of 15 years has passed since the reportable
offender was last sentenced or released from government detention for a
registrable offence.
Division 7 Offences
Failure to comply with reporting obligations
Clause 50 makes provision that a reportable offender must not fail to
comply with any of their reporting obligations without having a reasonable
excuse. The maximum penalty is 150 penalty units or imprisonment for 2
years, or both.
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In determining whether a person had a reasonable excuse for failing to
comply with their reporting obligations, the court before which the
proceedings are being heard is to have regard to a number of matters
including the person's age and whether they have a disability that affects
their ability to understand, and therefore comply with, those reporting
obligations. The court must also consider whether the form of notification
given to the reportable offender about their obligations was adequate to
inform them of what was required of them given their circumstances. The
court may also take into consideration any matter specified by the
regulations for the purpose of this provision, as well as any other matter it
believes to be appropriate under the circumstances.
It should be noted that it is a defence to proceedings for an offence of
failing to comply with a reporting obligation if it is established at the time
the offence was alleged to have taken place, the person had either not
received notice and was otherwise unaware of this obligation. This defence
can be established either by, or on behalf of, the person charged with the
offence.
False of misleading information
Clause 51 provides that a person must not furnish information that they
know to be false or misleading in a material particular. The maximum
penalty is 150 penalty units or imprisonment for 2 years, or both.
However, this provision does not apply to information given in a document,
if when providing that document, the person advises the recipient, about
how the information is false or misleading and if the person can provide
correct information. In a proceeding against a person under this provision,
it is sufficient to state that the information was false or misleading without
specifying whether it was false or whether if was misleading.
No time limit for prosecutions
Clause 52 provides despite anything to the contrary in the Justices Act
1886, a proceeding for an offence under this legislation may be
commenced at any time.
Bar to prosecution for failing to report leaving Queensland
Clause 53 makes provision for this section to apply if a reportable offender
leaves Queensland and is found guilty of failing to report their presence in
a foreign jurisdiction as required by a corresponding Act. The reportable
offender is not to be prosecuted for a failure to comply with the
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requirement that they report their intended absence from Queensland in
respect to the travel out of Queensland.
Division 8 Notification of reporting obligations
Notice to be given to reportable offender
Clause 54 provides that a reportable offender is to be given written notice
of their reporting obligations and the consequences that may arise if they
fail to comply with those obligations.
A reportable offender is to be given a notice under this section as soon as
practicable after they have been sentenced for a reportable offence, made
subject to an offender reporting order, or released from government
detention. In respect of the latter, it does not matter whether they have been
in government detention for a reportable offence or otherwise. Also, they
must be given notice under this provision if they enter Queensland and they
have not previously been given notice of their reporting obligations in
Queensland. A reportable offender must similarly be given notice if they
become a corresponding reportable offender whilst they are in Queensland.
A notice under this provision is to be given by the entity specified in the
regulations, but unless it is the court that made the offender reporting order,
the regulation must not specify a court to be an entity. However, an entity
is not required to give a notice under this section if the notice has already
been given by another person or body. Notwithstanding anything to the
contrary, the regulations may provide that a notice given under this
provision is not required to specify the reporting period for the offender, if
the regulations require that a notice containing that information be given to
the offender at the time they report their personal details to the police.
Courts to provide sentencing information to Police
Commissioner
Clause 55 provides that this provision applies if a court imposes any
sentence or makes any order that has the effect of making a person a
reportable offender for the purposes of this statute. Similarly, this
provision applies if the court makes any order in relation to a reportable
offender that has the effect of removing the person from the scope of this
statute.
The court must also ensure that the details of the sentence or order are
provided to the police as soon as is practicable after it has made the order.
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It is sufficient for the verdict and judgement record to be supplied to the
police commissioner.
In this provision, a "court" does not include a court of a foreign
jurisdiction.
Notice to be given when reporting period changes
Clause 56 provides that this section applies to a reportable offender whose
reporting period has changed since they were last notified of their reporting
period in Queensland. The Police Commissioner must give written notice
to the reportable offender as soon as is practicable after the change. In no
case must the must the written notice be given later than the time the
offender next reports in accordance with this legislation.
Supervising authority to notify police commissioner of
personal details
Clause 57 provides that the Police Commissioner may direct a supervising
authority to provide police with the personal details of a reportable
offender. This provision sanctions the supplying of the stated personal
details by the supervising authority to the police. By way of an example,
should the police be unable to locate a reportable offender who has failed to
report, then the police commissioner may ask the supervising authority for
that person's address.
Supervising authority to notify Police Commissioner of
particular events
Clause 58 provides that as soon as practicable, either before or after a
reportable offender begins an unescorted leave of absence, moves out of
Queensland or ceases to be in government detention, including because a
supervision order has been made, or they cease to be subject to a
supervision order, then the supervising authority is to give written notice of
the fact to the police commissioner. It does not matter why the reportable
offender was in government detention or subject to the supervision order.
The notice must include any details required by the regulations.
In the case of a forensic reportable offender the supervising authority is to
give written notice when a decision or order is made under sections 173,
186, 203, 289 of the Mental Health Act 2000.
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Notices may be given by police commissioner
Clause 59 provides that the police may, at any time, cause written notice to
be given to a reportable offender of their reporting obligations and the
consequences that may arise if they fail to comply with those obligations.
Power of detention to enable notice to be given
Clause 60 provides that this provision applies if the police have reasonable
grounds to suspect that a person is a reportable offender and that they either
have not been given notice or are otherwise unaware, of their reporting
obligations.
If it is necessary to do so, a police officer may detain a person to enable a
determination to be made as to whether or not the person is a reportable
offender. Should the person be found to be a reportable offender, police
should determine whether or not the person has been given notice, or made
aware of, their reporting obligations. It will also enable the person to be
given notice of those obligations if they were unaware of them.
In detaining a person, the police officer must tell the person why they are
being detained and that they are authorised to do so under the provisions of
this legislation. The police must also advise the person that they will be
released immediately after the purpose of the detention has been fulfilled.
The detained person must not be held any longer than is reasonably
necessary to enable the purpose of the detention to be fulfilled. Under no
circumstances must the person be held merely because they have refused to
sign an acknowledgement stating that they have been given notice of their
reporting obligations. After the purpose of the detention has been fulfilled,
the person must be released immediately.
Failure to comply with procedural requirements does not affect
reportable offender's obligations
Clause 61 provides that, excluding a reportable offender, a failure on the
part of any person to comply with any procedural requirement imposed on
the person by this part or the regulations does not affect a reportable
offender's reporting obligations. In the case of a reportable offender who
has not been given notice of a reporting obligation by an official, the
objective of this provision is to prevent them from arguing that the
obligation does not apply to them because of that failure, providing that
there is evidence to suggest that the reportable offender was aware of their
obligation by some other way.
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If there is no evidence to suggest that the reportable offender was aware of
their reporting obligation, then they would have a defence to a charge of
failing to comply with a reporting obligation because they genuinely were
unaware of this obligation.
Division 9 Modified reporting procedures for
protected witnesses
Who this Division applies to
Clause 62 provides that this division applies to any reportable offender who
is currently participating in a witness protection program or the subject of
an order in force under this provision declaring that they are a person to
whom this provision applies. It also applies to a reportable offender who
has been a participant in a witness protection program but in respect of
whom an order under this provision is not yet in effect.
With the exception of persons who previously have been taking part in a
witness protection program but who no longer are participants, this division
also applies to a reportable offender who is receiving protection under a
foreign witness protection law specified by the regulations for the purposes
of this provision. Similarly, it applies to a person who has an analogous
status to a person currently involved in a witness protection program who is
subject to an order made under a corresponding Act specified by the
regulations for the purposes of this provision.
For the purposes of this division, "witness protection program" has the
same meaning as it has in the Witness Protection Act 2000.
Report need not be made in person
Clause 63 provides that the requirements of this part have sufficiently been
complied with if a reportable offender to whom this division applies,
reports the information required of them at the required time and in the
manner authorised by the police commissioner for the purposes of this
provision. Acknowledgement of the report having been made must be
given in a way approved of by the Police Commissioner.
Order about whether this Division applies
Clause 64 makes provision for the making of an order by the police
commission in respect to the status of a protected witness. The order must
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state who the reportable offender is (or was) and whether they are (or are
not) a participant in a witness protection program. This order is made
when the reportable offender ceases to be a protected witness. This can be
as a consequence of a request from the participant under section 13 of the
Witness Protection Act 2000 to voluntarily withdraw from the program, or
when the chairperson of the Witness Protection Program makes a decision
that the protection and assistance given to the reportable offender under the
program be terminated under section 14 of the Witness Protection Act
2000.
Upon making such an order, the police commissioner must take reasonable
steps to notify the reportable offender of the terms of the order. A person
who receives such a notification may apply in writing to the Police
Commissioner for a review of the decision within 28 days of receiving it.
Upon receiving the application for a review of the decision, the Police
Commissioner must review the order and either confirm or reverse it.
However, before making a decision on the matter, the Police Commissioner
must give the applicant a reasonable opportunity to state their case. After
having made a decision, the Police Commissioner must give written notice
of that decision to the applicant. In the event of the Police Commissioner
deciding to confirm the order, then the notice of the decision must inform
the applicant of their rights of appeal under this division.
Appeal against order
Clause 65 provides that a person, who is aggrieved by a decision of the
Police Commissioner in relation to an order made under this division, may
appeal to the Supreme Court against the decision within three days of
receiving notice of the decision. The Supreme Court, in determining the
appeal, may make any decision that could have been made by the Police
Commissioner. Any decision that is made by the Supreme Court in respect
of the appeal is final and has effect according to its terms.
When order takes effect
Clause 66 provides that an order that declares that this division applies to a
reportable offender is to take effect immediately.
However, an order declaring that this division does not apply to a
reportable offender, takes effect at the end of 28 days after the reportable
offender is given notice of the order having been made. It also does not
apply if a written application for a review of a decision relating to the
witness protection program is made before the end of that period, at the end
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Child Protection (Offender Reporting) Bill 2004
of three days after the notice is given to the applicant in respect to the
review process. Also this provision is not applicable if an appeal is made
against an order by a person aggrieved by a decision before the end of that
three day period, on the date on which the Supreme Court determines the
appeal.
Modification of ongoing reporting obligations
Clause 67 provides that the reporting provisions relating to the personal
details that a reportable offender must convey to police and those
provisions that relate to the reporting of interstate and international travel
apply to a person to whom this division applies as though any reference to
them in Queensland were a reference to the jurisdiction in which the person
generally resides.
Part 4 The Register
Child protection register
Clause 68 provides that the Police Commissioner must establish and
maintain a child protection register or arrange with another person or body
to establish and maintain a child protection register on his or her behalf.
The register is to contain the following information in respect of each
reportable offender to the extent that it is known by police:
1. the reportable offender's name and other identifying particulars;
and
2. details of each class 1 or class 2 offence of which the reportable
offender has been found guilty or with which they have been
charged; and
3. details of each offence of which the reportable offender has been
found guilty that resulted in the making of a offender registration
order; and
4. the date on which the reportable offender was sentenced for any
reportable offence; and
5. the date on which the reportable offender was released from
government detention in respect of a reportable offence, or
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Child Protection (Offender Reporting) Bill 2004
entered or was released from government detention in respect of
any offence during their reporting period; and
6. any information reported in respect of the reportable offender
under part 4; and
7. any other information that the police consider appropriate to
include in the register.
Access to the register to be restricted
Clause 69 provides that the Police Commissioner must ensure that the
register is only accessed by a person who is authorised to do so. Moreover,
the Police Commissioner must ensure that the personal information in the
register is only disclosed by a person with access to the register, or the
relevant part of the register, in circumstances authorised by the Police
Commissioner or as otherwise required by or under any Act or law.
The Police Commissioner must develop guidelines in relation to the
accessing and disclosure of personal information in the register that attempt
to ensure that access to the personal information in the register is restricted
to the greatest extent that is possible without interfering with the purpose of
this legislation. For the purposes of this provision, the register includes any
information from any register maintained under a corresponding Act that is
accessible by the police, regardless of whether or not that information is
physically part of the register. This provision has effect despite any other
Act or law to the contrary.
Confidentiality
Clause 70 provides that a person authorised to have access to the register
must not disclose any personal information in the register except in
circumstances authorised by the Police Commissioner or as otherwise
required by or under any Act or law. Maximum penalty 150 penalty units
or imprisonment for two years or both.
Release of information to corresponding registrar
Clause 71 provides the police commissioner may release personal
information that is contained within the register to a corresponding register
for the purposes of a corresponding Act.
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Child Protection (Offender Reporting) Bill 2004
Restriction on who may access personal information on
protected witnesses
Clause 72 provides that the Police Commissioner must ensure that any
personal information in the register about a person who is a protected
witness cannot be accessed any other person other than a person who has
been authorised by the officer responsible for the day-to-day operation of
the witness protection program.
Reportable offender's rights in relation to Register
Clause 73 provides that, upon a request from a reportable offender, the
police must provide the reportable offender with a copy of all the
reportable information that is held in the register in relation to that
reportable offender. The police must comply with this request as soon as
practicable after being asked to do so. If the reportable offender finds that
any of this information is incorrect, they may ask the police to amend the
information. If the police are satisfied that the information is incorrect,
then they must comply with the reportable offender's request.
In this provision, "reportable information" means any information supplied
to the police by, or on behalf of, the reportable offender that the reportable
offender is required to report to the police and that is held in the register.
Review of decision to place person on Register
Clause 74 provides a mechanism by which a person who has been
erroneously included in the register can request a review of their
circumstances. If a person believes that they have had their personal
information placed in the register because of some administrative error,
then they may apply to the police commissioner for a review of the
decision to place them on the register. This application must be made
within 28 days of the person being given notice of their reporting
obligations under section 54 and it must be made in writing, giving details
of the reason why they believe that their personal information should not be
included in the register. Upon having received the aggrieved person's
application, the police commissioner must provide the person with a
reasonable opportunity to present their case before making a decision on
the matter. Following the review of the decision that led to the inclusion of
the person on the register, the police commissioner must decide whether to
confirm or revoke the decision and provide the person with a written notice
of the outcome.
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Child Protection (Offender Reporting) Bill 2004
Moreover, the person is to be provided with information regarding their
right to receive a copy of all reportable information pertaining to them that
is held in the register under the provisions of clause 73. In the event of the
police commissioner deciding to revoke the decision, then steps should be
taken to ensure that the person's personal details are removed from the
register. Any copies of documents, fingerprints or photographs taken from
the person under this Act are not to be kept.
Part 6 Other matters
Exclusion of personal liability
Clause 75 makes provision that a person acting in the administration or
execution of this Act does not incur civil liability for an act done honestly
and without negligence under this Act. Instead, liability attaches to the
State.
Effect of spent convictions
Clause 76 makes provision for the fact that an offence, in respect of which
a reportable offender has been found guilty, becomes spent does not affect
the status of the offence as a reportable offence for the purposes of this
legislation in respect of reportable offenders or any reporting obligations of
the reportable offender. For the purposes of this provision, an offence
becomes spent if, under a law in any jurisdiction, the reportable offender is
permitted to not disclose the fact that they were convicted or found guilty
of the offence.
Evidence certificates
Clause 77 provides that in proceedings under this legislation, a certificate
signed by the Police Commissioner, or a police officer holding a position
designated in writing by the Police Commissioner for the purposes of this
provision, certifying that the register at any particular date contained
information specified in the certificate. Also the signed certificate can
indicated that, during any particular period, a specified person failed to
notify information as required by this legislation, is evidence of the details
specified in the certificate.
No more than three positions are to be designated at any one time under
this provision. For the purposes of this legislation, a certificate that would
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Child Protection (Offender Reporting) Bill 2004
be evidence under a corresponding Act that at a specified time, or during a
specified period, a person was required to report to a corresponding
registrar under that Act is evidence, of the facts stated in the certificate.
Regulations
Clause 78 provides that the Governor in Council may make regulations
under this Act
Provision is made for imposing a penalty not exceeding 20 penalty units for
a contravention of a regulation.
Part 7 Consequential Amendments
Division 1 Corrective Services Act 2000
Act amended in this part
Clause 79 provides that this part amends the Corrective Services Act 2000.
Clause 80 provides that section 132A (Definitions for pt 1) is to be omitted.
Clause 81 provides that section 142 (Conditions for release to work orders)
section 142(2) to (4) is to be omitted and section 142(5) renumbered as
section 142(2).
Clause 82 provides that section 143 (Conditions for home detention orders)
section 143(3) to (5) is to be omitted and section 143(6) renumbered as
section 143(3).
Clause 83 provides that section 144 (Conditions for parole) section 144(2)
to (4) is to be omitted and section 144(1A) to (7) is to be renumbered as
section 144(1) to (5).
Clause 84 provides that sections 144A and 144B are to be omitted.
Clause 85 provides for the omission of Chapter 7, part 2.
Clause 86 provides for the insertion of a new chapter 7 part 4. After
section 274E "Part 4 Child Protection (Offender Reporting) Act 2004" is to
be inserted which states that "274F (Transfer of reporting obligations to
Offender Reporting Act" will include that this "section applies to a person
who, immediately before the commencement of this section, was a
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Child Protection (Offender Reporting) Bill 2004
prescribed prisoner subject to post-prison community based release order
with a reporting condition" and `the person is no longer subject to the
reporting condition'. Also for the purposes of the new section, the
Offender Reporting Act means the Child Protection (Offender Reporting)
Act 2004, and reporting condition means a condition imposed under
section 142(2), 143(3) or 144(2).
Clause 87 provides for an amendment to the Dictionary in schedule 3 in
that it omits the definitions of `prescribed prisoner' and `reporting period'.
Division 2 Criminal Law Amendment Act 1945
Act amended in this part
Clause 88 provides that this part amends the Criminal Law Amendment Act
1945.
Clause 89 provides for the amendment of section 17 (Sexual offender to
report name and address) by omitting `under section 19(9) or' from section
17(1).
Clause 90 provides for the omission of `Part 4 (Sexual offenders to
report)'.
Clause 91 provides for the replacement of part 5, divisions 1 and 2. This
will allow the legislation to subsume the people who were subject to
section 19 of the Criminal Law Amendment Act 1945 with insertion of a
new section 23 Transfer of reporting obligations to the Offender
Reporting Act.
Division 3 Freedom of Information Act 1992
Clause 92 provides that this division amends the Freedom of Information
Act 1992
Clause 93 amends schedule 1 (Secrecy provisions giving exemption) to
include this statute.
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Child Protection (Offender Reporting) Bill 2004
Division 4 Mental Health Act 2000
Act amended in this part
Clause 94 provides that this part amends the Mental Health Act 2000.
Clause 95 provides that section 205 (Notice of decision) is amended by
Section 205(1) the insertion of `(f) if the forensic order was made with an
offender reporting order the commissioner of the police service.'
Clause 96 provides for an amendment to be made to section 288 (Mental
Health Court may make forensic order) which inserts a note to the effect of
"The Supreme Court judge who constitutes the Mental Health Court may
also make an offender reporting order under the Child Protection (Offender
Reporting) Act 2004, section 13 (Offender reporting orders) with the
forensic order.
Schedule 1 Class 1 offences
Schedule 1 provides a list of offences that are Class 1 offences for the
purposes of this Act.
Schedule 2 Class 2 offences
Schedule 2 provides a list of offences that are Class 2 offences for the
purposes of this Act.
Schedule 3 Dictionary
Schedule 3 provides the Dictionary meanings of terms used for the
purposes of this Act.
© State of Queensland 2004