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Child Protection (Offender Reporting) and Other Legislation

Amendment Bill 2014

Report No. 66 Legal Affairs and Community Safety Committee May 2014

Legal Affairs and Community Safety Committee

Chair Mr Ian Berry MP, Member for Ipswich

Deputy Chair Mr Peter Wellington MP, Member for Nicklin

Members Miss Verity Barton MP, Member for Broadwater

Mr Bill Byrne MP, Member for Rockhampton

Mr Sean Choat MP, Member for Ipswich West

Mr Aaron Dillaway MP, Member for Bulimba

Mr Trevor Watts MP, Member for Toowoomba North

Staff Mr Brook Hastie, Research Director

Ms Kelli Longworth, Principal Research Officer

Mr Gregory Thomson, Principal Research Officer

Mrs Gail Easton, Executive Assistant

Technical Scrutiny Secretariat

Mr Peter Rogers, Acting Research Director

Mr Michael Gorringe, Principal Research Officer

Ms Kellie Moule, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Contact details Legal Affairs and Community Safety Committee Parliament House George Street Brisbane Qld 4000

Telephone +61 7 3406 7307

Fax +61 7 3406 7070

Email [email protected]

Web www.parliament.qld.gov.au/lacsc

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014

Legal Affairs and Community Safety Committee iii

Contents

Abbreviations iv

Chair’s foreword v

Recommendations vi

1. Introduction 1 1.1 Role of the Committee 1 1.2 Inquiry process 1 1.3 Policy objectives of the Child Protection (Offender Reporting) and Other Legislation

Amendment Bill 2014 1 1.4 Consultation on the Bill 2 1.5 Should the Bill be passed? 3

2. Examination of the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 5

2.1 Overview and objectives 5 2.2 Summary of Provisions 5

3. Fundamental legislative principles 23 3.1 Rights and liberties of individuals 23 3.2 Explanatory Notes 31

Appendix A – List of Submissions 33

Appendix B – List of witnesses at Public Hearing 34

Statement of Reservation 35

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Abbreviations

iv Legal Affairs and Community Safety Committee

Abbreviations

ATSILS Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd

BAQ Bar Association of Queensland

Bill Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014

Committee Legal Affairs and Community Safety Committee

CPORA Child Protection (Offender Reporting) Act 2004

Department PSBA or the QPS

DPSOA Dangerous Prisoners (Sexual Offenders) Act 2003

Minister Honourable Jack Dempsey MP, Minister for Police, Fire and Emergency Services

NCOS National Child Offender System

PPRA Police Powers and Responsibilities Act 2000

PUP Bill Child Protection (Offender Reporting) Amendment Bill 2013, introduced by the Palmer United Party (Mr Carl Judge, MP)

PSBA Public Safety Business Agency

QLS Queensland Law Society

QPS Queensland Police Service

QCSLAN Queensland Child Safety Legislation Action Network

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Chair’s foreword

Legal Affairs and Community Safety Committee v

Chair’s foreword

This Report presents a summary of the Legal Affairs and Community Safety Committee’s examination of the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014.

The Committee’s task was to consider the policy outcomes to be achieved by the legislation, as well as the application of fundamental legislative principles – that is, to consider whether the Bill had sufficient regard to the rights and liberties of individuals, and to the institution of Parliament.

On behalf of the Committee, I thank those individuals and organisations who lodged written submissions on this Bill. I also thank the Committee’s Secretariat, the Queensland Police Service, and the Public Safety Business Agency.

I commend this Report to the House.

Ian Berry MP

Chair

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Recommendations

vi Legal Affairs and Community Safety Committee

Recommendations

Recommendation 1 4

The Committee recommends the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 be passed.

Recommendation 2 7

The Committee recommends the Bill be amended to include a mechanism whereby an offender who has reported without incident for a certain period be permitted to report on a less frequent basis for the remainder of the reporting period.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Introduction

Legal Affairs and Community Safety Committee 1

1. Introduction

1.1 Role of the Committee

The Legal Affairs and Community Safety Committee (Committee) is a portfolio committee of the Legislative Assembly which commenced on 18 May 2012 under the Parliament of Queensland Act 2001 and the Standing Rules and Orders of the Legislative Assembly.1

The Committee’s primary areas of responsibility include:

• Justice and Attorney-General;

• Police Service; and

• Fire and Emergency Services.

Section 93(1) of the Parliament of Queensland Act 2001 provides that a portfolio committee is responsible for examining each bill and item of subordinate legislation in its portfolio areas to consider:

• the policy to be given effect by the legislation;

• the application of fundamental legislative principles; and

• for subordinate legislation – its lawfulness.

The Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 (Bill) was introduced into the House and referred to the Committee on 1 April 2014. In accordance with the Standing Orders, the Committee of the Legislative Assembly required the Committee to report to the Legislative Assembly by 26 May 2014.

1.2 Inquiry process

On 4 April 2014, the Committee wrote to the Public Safety Business Agency (PSBA) seeking advice on the Bill, and invited stakeholders and subscribers to lodge written submissions.

The Committee received a written briefing from the PSBA and also received five submissions (see Appendix A).

The Committee held a public hearing on 7 May 2014 where it received further evidence from representatives of the Queensland Police Service (QPS) and the PSBA. The Committee also heard from other invited witnesses (see Appendix B).

1.3 Policy objectives of the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014

The objectives of the Bill are to amend the Child Protection (Offender Reporting) Act 2004 (CPORA) and the Police Powers and Responsibilities Act 2000 (PPRA) to give effect to the Government’s commitment to impose more stringent monitoring of sex offenders and tougher conditions on the Queensland component of the National Child Offender System (NCOS), formerly the Australian National Child Offender Register.2

1 Parliament of Queensland Act 2001, section 88 and Standing Order 194. 2 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 1.


2 Legal Affairs and Community Safety Committee

The amendments to the CPORA will achieve the following policy objectives:

• require a reportable offender to report in a manner required by the police commissioner;

• extend the time in which an application for a reporting order can be made under section 13;

• impose uniform reporting periods for offenders on the NCOS;

• create one schedule of offences to support the new uniform reporting periods;

• remove section 210 of the Criminal Code as an exclusion offence for juvenile child sex offenders;

• allow an initial report to be made while an offender is in government detention;

• expand the personal details that must be reported under Schedule 2;

• impose more stringent time frames in which offenders must report changes to personal details and entries to and absences from Queensland;

• allow the Police Commissioner to suspend an offender’s reporting obligations in certain circumstances;

• remove duplicated reporting processes by automatically suspending the reporting requirements under CPORA for the period of time that a reportable offender is simultaneously reporting under the Dangerous Prisoners (Sex Offenders) Act 2003;

• allow police to take DNA from a corresponding reportable offender if DNA has not previously been taken in Queensland;

• allow a police officer to convey a reportable offender, who has been detained under section 60, to the nearest police station for the purpose of giving a written notice unless it is not reasonably practicable to do so;

• require a reportable offender to make an initial report at the time of their receipt of a written notice;

• remove the obligation for police to produce an evidence certificate under section 77; and

• clarify that the Queensland child protection register is comprised of a number of core components used for the purpose of collecting and storing reportable offender information.

Amendments proposed for the PPRA include:

• allowing police to enter premises for the purposes of making reasonable inquiries to verify information required to be provided under CPORA; and

• removing the requirement to destroy reportable offender DNA under section 490A.

1.4 Consultation on the Bill

As set out in the Explanatory Notes, consultation occurred with the following stakeholders by the Government during the preparation of the draft Bill.

Government:

• Department of the Premier and Cabinet;

• Department of Queensland Treasury and Trade;



• Department of Justice and Attorney-General;

• Department of Community Safety;

• Department of Health;

• Department of Communities;

• Department of Aboriginal and Torres Strait Island Multicultural Affairs;

• Queensland Police Service; and

• Child Safety and Disability Services.

Non-Government:

• Queensland Law Society;

• Queensland Child Safety Legislation Action Network;

• Protect all Children Today;

• Bravehearts;

• Office of the Information Commissioner; and

• Commission for Children and Young People and Child Guardian.

While it appears significant consultation was carried out prior to the finalisation of the Bill, unfortunately the Explanatory Notes do not provide any details concerning the outcome of this consultation. However, the written briefing from the PSBA on the Bill did elaborate on some of the concerns raised by a number of community stakeholders.3 These concerns are discussed later in the report under the appropriate sections.

1.5 Should the Bill be passed?

Standing Order 132(1) requires the Committee to recommend whether or not the Bill should be passed. The Committee provides its support to the policy objectives of the Bill, acknowledging the Bill as a mechanism to facilitate machinery of government changes.

The Committee has examined a number of Bills in the Child Protection (Offender Reporting) area over the past couple of months, namely the Child Protection (Offender Reporting – Publication of Information) Amendment Bill 2013, introduced by the Katter Australia Party;4 and the Child Protection (Offender Reporting) Amendment Bill 2013, introduced by the Palmer United Party (PUP Bill).5

The Committee recommended that both those Bills not be passed by the House until Members had the opportunity to examine the Government’s policy proposals in this area.

3 Letter from the Minister for Police, Fire and Emergency Services, 17 April 2014, Attachment, page 8. 4 See: Legal Affairs and Community Safety, Report No. 57, Child Protection (Offender Reporting – Publication

of Information) Amendment Bill 2013, March 2014. 5 See: Legal Affairs and Community Safety, Report No. 60, Child Protection (Offender Reporting) Amendment

Bill 2013, April 2014.



After examination of the Government’s Bill and consideration of written submissions from stakeholders and further information provided by the PSBA and the QPS, the Committee is satisfied the Bill should be passed. The Committee is pleased to note that elements of the PUP Bill, which the Committee considered had some merit have been addressed in the Bill.

Recommendation 1

The Committee recommends the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 be passed.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Examination of the Bill


2. Examination of the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014

This part of the Report discusses issues raised during the Committee’s examination of the Bill. The report considers each of the policy objectives being in the order set out in the Explanatory Notes tabled with the Bill.

2.1 Overview and objectives

Sex offender registration schemes operate in every state and territory in Australia.6 While the details differ in each jurisdiction, such schemes all generally require convicted sex offenders to register their personal details with police and report on an ongoing basis. A key objective is to provide law enforcement authorities with up-to-date information as to the location of sex offenders and other details that may assist in the prevention or investigation of potential future offences. Another key aim of these schemes is for the ongoing monitoring of registered sex offenders to operate to reduce the inclination of sex offenders to reoffend.

In terms of the Bill, the main objective is to amend the CPORA and the PPRA to give effect to the Government's commitment to impose more stringent monitoring of sex offenders and tougher conditions for offenders on the Queensland component of the NCOS, formerly the Australian National Child Offender Register. In his Introductory Speech, the Honourable Jack Dempsey MP, Minister for Police, Fire and Emergency Services (Minister), stated:

The bill ensures that Queensland will certainly have the toughest reporting conditions for child sex offenders in this nation. The government is committed to making Queensland a safe state and to protecting those in our community who are most vulnerable – our children.7

2.2 Summary of Provisions

Quarterly Reporting and More Frequent Periodic Reporting

One of the ways that the Bill proposes to strengthen the current reporting regimes for child sex offenders is by increasing the number of times convicted child sex offenders will be required to report to police, as stated in the Explanatory Notes:

The Bill gives effect to the government’s commitment to impose more stringent reporting for offenders on the NCOS by introducing a periodic (quarterly) reporting regime and a more frequent periodic reporting option. All reportable offenders will be required to report their details to police in February, May, August and November of each year. In circumstances where an offender poses a significant risk of re-offending, he or she may be required by the police commissioner to report his or her details more frequently than the mandated reporting periods.

6 Offender registration legislation in each Australian state and territory, Australian Institute of Family Studies,

Australian Government website (note: information current as at June 2013). 7 Record of Proceedings (Hansard), 1 April 2014, page 916.



The manner in which an offender will be required to report his or her details under these new reporting regimes will be linked to the risk the offender poses to the lives and sexual safety of children. For example, an offender who poses a significant risk of re-offending may be required to report his or her details in person.8

This proposed change from annual reporting to quarterly reporting is one of the key areas which will result in Queensland having the ‘toughest reporting conditions for child sex offenders in this nation’ as foreshadowed in the Minister’s Introductory Speech.9 A review of the offender registration legislation in each Australian state and territory published by the Australian Institute of Family Studies appears to support this assertion as it is reported in that review that all other Australian jurisdictions have annual reporting requirements.10

The Bar Association of Queensland (BAQ) in its submission commented on this aspect of the Bill:

The amendments provide the police commissioner with a discretion to require an offender to report more frequently than four times per year if the police commissioner is reasonably satisfied that more frequent reporting is necessary to protect the lives or sexual safety of children.

Under the proposed changes, there is no scope for the police commissioner to permit an offender to report less frequently than four times per year at any time during the offender's reporting period, even in circumstances where the offender has consistently reported as required and is not deemed to be a high-risk offender.

It would be appropriate for the amendments to provide for a mechanism (whether automatic or at the discretion of the police commissioner) whereby an offender who reports as required without incident for a certain period is then permitted to report on a less frequent basis for the remainder of the reporting period, provided, of course, the offender continues to report changes to personal details as required.11

In its response to submissions, the Department stated:

The intent of the Bill is to impose more stringent monitoring of sex offenders on the Queensland component of the National Child Offender System. This is achieved through an intensive reporting regime in line with contemporary research which indicates that sex offenders present the highest risk of re-offending within the first three to five years of their release into the community. Accordingly, the periods of reporting have been significantly reduced from eight years, 15 years and life to five years, 10 years and life.

Alternative methods of reporting through automated kiosks and a secure online interface are anticipated to reduce the impost associated with the additional reporting requirements. In circumstances where an offender has a significant impairment or was a child at the time the reportable offence was committed, the offender may make an application to the Police Commissioner under section 67D for all mandated reporting obligations to be suspended.12

8 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 2. 9 Record of Proceedings (Hansard), 1 April 2014, page 916. 10 Offender registration legislation in each Australian state and territory, Australian Institute of Family Studies,

Australian Government website (note: information current as at June 2013). 11 Bar Association of Queensland, Submission No. 3, page 1. 12 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 8.



The QLS also raised a similar concern in its submission and the Department provided the same response as that described above.13

Committee Comment

The Committee notes the BAQ has suggested that the Bill be amended to include a mechanism whereby an offender who has reported without incident for a certain period be permitted to report on a less frequent basis for the remainder of the reporting period. The Committee also notes the Department did not appear to address this specific concern in its response.

The Committee considers the BAQ suggestion to be reasonable in the circumstances and, accordingly, the Committee makes the following recommendation.

Recommendation 2

The Committee recommends the Bill be amended to include a mechanism whereby an offender who has reported without incident for a certain period be permitted to report on a less frequent basis for the remainder of the reporting period.

Offences that are reportable offences

To ensure a number of existing offences which do not have specific child victims can be effectively prosecuted, the Bill makes a number of amendments to the schedules to the CPORA. Currently, there are offences that have specifically stated the offence applies if it was committed against or in relation to a child. When there is no specific child victim, it is difficult to effectively prosecute these offences. The Explanatory Notes use the example of making, distributing and possession of child exploitation material.14

The Bill therefore clarifies when an offence is specific to a child victim, or when the offence itself is a scheduled offence. The Bill also extends who is considered to be a reportable offender under section 9 by allowing offences under schedule 1, paragraph 9 to apply in circumstances where the offender believed the victim was a child. This was explained further at the public hearing:

The parameters of who will be a reportable offender under the Child Protection (Offender Reporting) Act are extended to include circumstances where an offender believed his or her victim was a child when the offence was committed and to provide for offences committed using the internet and social media. The fact that certain offenders set out to specifically target children, regardless of whether the actual victim was a child, raises concerns about the safety of children in the community.15

13 See: Queensland Law Society, Submission No. 5, page 4; and Letter from the Minister for Police, Fire and

Emergency Services, 15 May 2014, Attachment, page 16. 14 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 3. 15 Transcript of Proceedings (Hansard), Public Hearing, Legal Affairs and Community Safety Committee, 7 May

2014, page 2.



Committee Comment

The Committee considers these amendments will significantly enhance the QPS’s ability to prosecute offenders and supports these amendments. The safety of children is paramount and any efforts to clarify what could be considered inconsistencies in the current law should be addressed.

Uniform reporting periods

The Bill amends section 36 of the CPORA, which will reduce the length of an initial reporting period and subsequent reporting periods from eight years and 15 years respectively to five years and 10 years. As outlined in the Explanatory Notes, the current lifetime reporting period will remain and be applied to reportable offenders who continue to commit sexual and other particular offences against children.16

As explained at the public hearing:

The bill streamlines the current method of determining the period of reporting that will apply for a reportable offence by amalgamating the two current classes of offences into one schedule of offences. The length of the initial reporting period and subsequent reporting period is now calculated on the offender’s reoffending behaviour and not the class of the offence committed. The reporting periods have been reduced from eight years, 15 years and life respectively to five years, 10 years and life.17

Accordingly there will be no requirement to differentiate between class 1 and class 2 offences.

Committee Comment

The Committee considers these amendments to be appropriate and supports the application of the uniform reporting periods.

Exclusionary offences for juvenile sex offenders

The Bill removes section 210 (Indecent dealing with a child under 16 years) of the Criminal Code as an exclusionary offence for a juvenile child sex offender under CPORA. At present, a juvenile who is convicted of indecently dealing with a child under 16 is not a reportable offender pursuant to section 210 of the Queensland Criminal Code.

The Explanatory Notes advise that clause 31 will ‘increase the circumstances in which a child will become a reportable offender by removing section 210 of the Criminal Code (Indecent treatment of children under 16) as an exclusionary offence’.18 This amendment will remove the exclusionary offence contained at section 210 of the Criminal Code for juvenile offenders found guilty of indecent dealing with a child under the age of 16.


page 3. 17 Transcript of Proceedings (Hansard), Public Hearing, Legal Affairs and Community Safety Committee, 7 May

2014, page 2. 18 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 10.



By way of background, section 210 of the Criminal Code provides as follows:

Indecent treatment of children under 16

(1) Any person who—

(a) unlawfully and indecently deals with a child under the age of 16 years; or

(b) unlawfully procures a child under the age of 16 years to commit an indecent act; or

(c) unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years; or

(d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or

(e) without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or

(f) without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years;

is guilty of an indictable offence.

The Explanatory Notes address this amendment clause as follows:

To safeguard the rights of child offenders, the police commissioner will automatically suspend the reporting obligations (other than an initial report) of those children who do not pose a risk to the lives or sexual safety of children. A suspension offered by the police commissioner will remain in force until such time as the reporting obligations for the child end or the child poses a significant risk to the lives or sexual safety of children in the community. The amendment will not apply retrospectively.19

The amendments to the reporting periods under section 36 will also reduce the length of time a child will be required to report under CPORA to a minimum of 2 and a half years and a maximum of 7 and a half years.

Issues raised in submissions

In its submission, the Queensland Child Safety Legislation Action Network (QCSLAN) indicated that it was, largely, in support of this proposal:

These young offenders MUST be apprehended at this time, while the potential is there to prevent/divert them from becoming more serious offenders and a risk in family, school and community settings and a possible life of crime. (Always a huge cost impact to Governments and communities).20


page 10. 20 Queensland Child Safety Legislation Action Network, Submission No. 2, page 1.



While the QCSLAN supported this proposed amendment to remove section 210 of the Criminal Code as an exclusionary offence for a juvenile child sex offender under the CPORA, the QCSLAN did, however, raise the following concerns about the proposal to remove section 210 as an exclusionary provision:

… I am not convinced that there will be strong enough action to introduce the necessary counselling and behaviour changes to be sure that either other siblings or members of schools and community will be safe from re-offending by Juvenile offenders.21

QCSLAN then proposed clause 6 include the following statement:

When a reportable juvenile sex offender is identified, it is mandatory for the offender to undergo psychological examination and to receive appropriate counselling for the sexual/abusive behaviour.22

In response, the Department commented:

The capacity for the legislation to include a statement requiring a child to undergo psychological examination or to receive counselling sits outside of the stated purpose and scope of the Child Protection (Offender Reporting) Act 2004. 23

A number of submissions were critical of this proposed change. For example, the Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS) explains its interpretation of the meaning of the proposed change and its concerns as follows:

Clause 6 of the Bill removes section 5(2)(c)(i) of the Child Protection (Offender Reporting) Act 2004 (“the Act”), which stipulated that a child who commits a single offence against section 210 of the Criminal Code Act 1899 (Indecently dealing with a child under 16 years) is excluded from the classification of ‘reportable person’. The effect of this amendment is that children who commit unlawful carnal knowledge with their underage partner will be potentially subjected to 8 years of reporting requirements.

ATSILS have acted for child clients who have been charged under section 210 for having a consensual boyfriend/girlfriend relationship with their similarly aged underage partner. We note that clause 27 of the Bill provides the Police Commissioner with the power to suspend the reporting requirements for children who do not pose a risk to the lives or sexual safety of children. We presume that it is intended for clause 27 to protect children in circumstances similar to those described at the beginning of this paragraph. However for reasons set out below, we are concerned that clause 27 of the Bill will not provide adequate protection for children. Further, the risk of public or political criticism and the like, would suggest that the then Police Commissioner is likely to be loathed to suspend a reporting requirement.24

As the PSBA explained in its written briefing to the Committee, these concerns are mitigated by clause 27 which inserts a new Part 4, Division 10 in CPORA which provides for the Police Commissioner to suspend reporting:

To safeguard the rights of children, the Police Commissioner will automatically suspend the reporting obligations of all child offenders who do not pose a risk to the lives or sexual safety of children.25

21 Queensland Child Safety Legislation Action Network, Submission No. 2, page 2. 22 Queensland Child Safety Legislation Action Network, Submission No. 2, page 2. 23 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 5. 24 Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd, Submission No. 1, page 3. 25 Letter from the Minister for Police, Fire and Emergency Services, 17 April 2014, Attachment, page 3.



The Department also responded to these specific concerns raised in ATSILS submission by commenting:

The removal of section 210 of the Criminal Code as an exclusionary offence for juvenile child sex offenders extends the parameters of who will be considered a reportable offender and may result in an increase in the number of juveniles who will be required to meet reporting obligations under the Child Protection (Offender Reporting) Act 2004. However, clause 27 of the Bill provides an avenue for the reporting obligations of a juvenile offender to be suspended in circumstances where the juvenile does not pose a risk to the lives or sexual safety of children.

In circumstances where those reporting obligations are not suspended or a suspension is revoked, the juvenile offender or his or her legal guardian may review that decision to the Police Commissioner. This is consistent with section 74 of CPORA which allows the Police Commissioner to review a decision to place a person on the child protection register. Should the juvenile offender be aggrieved by a decision of the Police Commissioner an additional tier of review is available to a Magistrates Court.26

The BAQ also opposed the removal of section 210 of the Criminal Code from the list of exclusionary offences for juvenile child sex offenders. The BAQ indicated a preference that the offence remains on the exclusionary list:

It would be preferable for this offence to remain on the exclusionary list to avoid an increased number of juvenile offenders becoming reportable offenders and being placed on the child protection register.

It will very often be the case that that the offence of indecent dealing where the offender is a juvenile offender (especially where the age difference between offender and complainant is marginal) is not exploitative in the sense that is applicable when the offence is committed by adult offenders.27

In response, the Department made similar comments as those noted above in response to ATSILS’s concerns.28

The Queensland Law Society (QLS), in its submission, also did not support the removal of section 210 of the Criminal code as an exclusionary offence for juvenile offenders. The QLS submitted that the provision is an essential defence for children and young people. In response, the Department made similar comments as those noted above in response to ATSIL’s concerns.29

Committee Comment

The Committee has considered the proposals contemplated by clause 31 of the Bill and is satisfied that these proposed amendments are appropriate in the circumstances. The Committee notes that this amendment will see more juvenile offenders become reportable offenders. However, as confirmed by Detective Acting Superintendent George Marchesini during the public hearing, the changes will result in only ‘a very small number of reportable offenders who would fill the requirements to come onto the register’.30 Additionally, the Committee is satisfied that the

26 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, pages 3-4. 27 Bar Association of Queensland, Submission No. 3, page 4. 28 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 7. 29 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 7. 30 Transcript of Proceedings (Hansard), Public Hearing, Legal Affairs and Community Safety Committee, 7 May

2014, page 14.



safeguards for child offenders, through the powers afforded to the Police Commissioner, particularly, by virtue of clause 27, are appropriate in the circumstances.

Reporting timeframes

The Bill makes a number of amendments to the timeframes which apply to reportable offenders.

The amendments will:

• reduce the capacity for a reportable offender to circumvent the initial reporting process by amending section 14 to require a reportable offender to make an initial report at the time of receiving a notice of reporting obligations;

• require a reportable offender who intends on leaving Queensland before the end of the seven day period, to make an initial report before leaving Queensland;

• reduce the period in which offenders who enter Queensland from other jurisdictions have to make an initial report from 14 consecutive days to seven consecutive days; and

• reduce the time a corresponding reportable offender can stay in Queensland without being required to make a report. This amendment is consistent with reporting requirements in Western Australia and Victoria.31

The Bill will also formalise the current arrangements between the QPS and Queensland Corrective Services that allows some offender information to be provided to the QPS to commence a registration on the NCOS, while an offender is in government detention. The information provided to the QPS will be taken to be the offender’s initial report.

Committee Comment

The Committee considers the timeframes imposed under the Bill to be appropriate and considers these amendments to be an important aspect of the Government’s commitment to strengthen the monitoring regime of sex offenders.

Reporting orders by the Court

Clause 10 of the Bill extends the time available for the police to make an application for a reporting order under section 13 to within six months after sentencing. The Explanatory Notes provide that this ‘extended time period allows additional information obtained after sentencing which indicates an offender poses a risk to the lives or safety of children to be presented to the court’. 32

In its submission, the QLS suggested the current wording be preserved to ensure that matters in relation to the making of reporting orders are considered concurrently at the time of sentencing. Specifically, the QLS suggested that the amended section 13(4) should read (extra wording in bold):

Unless no conviction is recorded under the Penalties and Sentences Act 1992, section 12 or the Youth Justice Act 1992, section 183, a court may make an offender reporting order under subsection (1)(a) only if it imposes a sentence for the offence and makes the order concurrently with the sentence.33


page 4. 32 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 4. 33 Queensland Law Society, Submission No. 5, page 3.



The Department did not agree to this proposed change and responded as follows:

The proposed amendment seeks to extend the time in which an application for a reporting order may be made by police to the courts. It is not always apparent at the time of sentencing that an offender is going to pose an ongoing risk to the lives or sexual safety of children. Once sentenced, if information regarding an offender becomes apparent, there is no capacity for police to make an application for a reporting order.

The proposed amendment to section 13 allows for up to a 6 months, after a court imposes a sentence, for police to gather the information and to make their application to a court for a reporting order.34

Committee Comment

The Committee has considered the proposal by the QLS but is satisfied that the approach proposed in the Bill to allow up to 6 months after a court imposes a sentence for the police to gather information and to make their application to a court for a reporting order to be a reasonable and appropriate change in the circumstances.

Personal Particulars

The Bill also moves the personal particulars that are required to be reported under section 16 of the CPORA to a new schedule 2. The Bill also extends the current list of details that must be reported to align with technological advances and identified gaps in the current legislation. Among other things, the Bill also requires a reportable offender to report any contact (reportable contact) with a child that does not occur incidentally. The Explanatory Notes provide an example of incidental contact as including being served by a child in a store. 35

Under the Bill, ‘reportable contact’ will operate on the first contact with a child and a reportable offender will have 24 hours to report that contact to police.36 ‘Reportable contact’ will occur where the offender:

• has physical contact with the child; or

• communicates with the child orally, whether in person, by telephone or over the internet; or

• communicates with the child in writing (including electronic communication).

In circumstances where the offender is:

• supervising or caring for any child; or

• exchanging contact details with any child; or

• attempting to befriend any child.

As noted in the Explanatory Notes, the amendment aligns with the Victorian Law Reform Commission’s 2011 review of the Sex Offender’s Registration Act 2004 (Vic).

34 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, pages 14-15. 35 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,


page 5.



The Explanatory Notes relevantly provide the following additional background:

The Bill recognises the role of social media as a communication tool used by young people and the ease with which young people establish relationships via social mediums such as Twitter, Facebook, Tumblr and Instagram. Accordingly, the Bill requires reportable offenders to report the use or participation in any social networking sites, including the user name and passwords to the accounts linked to those sites.

Similarly, the Bill requires an offender to report any passwords associated with any internet site or email address that is used or intended to be used by the offender and any telephone numbers associated with a reported telephone service.37


Definition of “reportable contact” ambiguous

The BAQ raised the following concerns about the definition of ‘reportable contact’ in section 9A in the Bill not matching the description of this definition in the Explanatory Notes:

In its present form, the proposed section 9A does not give effect to the intended definition of "reportable contact" and the wording of section 9A(2) is not apt to achieve the aim of removing the ambiguity about the kinds of contact that must be reported. On its face, the section also achieves a width of application that is impracticable.

It would be desirable, in our view, for the wording in section 9A(2) to reflect the definition of "reportable contact" referred to in the Explanatory Notes. It is noted that the amendments exclude "contact with a child that is incidental to the offender's daily life" from the definition of "reportable contact" unless the contact involves an attempt to befriend or establish further contact with the child or occurs with such regularity or frequency as to result in a level of familiarity or trust beyond what may reasonably be expected to be incidental to the offender's daily life. An example of incidental contact provided in the Act will be contact that occurs when an offender buys a newspaper from a shop where the shop attendant is a child.

The provisions relating to incidental contact are both sensible and reinforce the desirability of having section 9A(2) reflect the definition of "reportable contact" referred to in the Explanatory Notes.38

The Department responded:

Section 23 of the Legislative Standards Act 1992 provides that the Explanatory Notes on a Bill are to provide a brief explanation on the purpose and intended operation of each clause of the Bill. Accordingly the explanation of how section 9A will operate is not intended to limit its application, nor is it intended to define each circumstance in which reportable contact may occur.

Furthermore, section 9A(3) serves to remove the ambiguity by clarifying when contact is not deemed to be reportable contact.39


page 5. 38 Bar Association of Queensland, Submission No. 3, page 3. 39 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 8.



Unintended consequences of broadening definition of ‘reportable contact’

The QLS also raised some concerns around the definition of ‘reportable contact’ in its submission and the possible unintended consequences:

The Society notes that this provision widens the definition of what is considered reportable contact. While we understand the policy intention of this provision, we consider that in practice, it will be a difficult scheme to administer. We foresee that it will be hard to distinguish between contact that is reportable and incidental contact. Of particular concern is the obligation to report non incidental contact with children. In the course of ordinary life, it is conceivable that this obligation may be very onerous indeed. Every new friendship or association with a person with a child will potentially give rise to a need for a report. For example, if a person purchases takeaway food from an outlet that has child employees on a regular basis, is this incidental contact or contact that should be reported? The Bill prescribes a period of 24 hours for this report to be made. Complying with such a requirement for 5 or 10 years, or life, as may be the case, seems an unnecessarily severe restriction. This is particularly so in light of the existing regime under the DPSOA which can apply to anyone convicted of a sexual offence involving children. This might also have the unintended consequence of vexatious or baseless claims.

Therefore the Society does not support this provision on the basis that the definition is imprecise, unclear and does not sufficiently define reportable conduct. In our view, the definition of reportable conduct must be clear and precise so that an individual will be able to predict what they are required to report by law. The definition does not achieve its purpose and, in our view is too vague and ambiguous for a person to easily judge what is considered reportable contact.

We also note that this might result in an increase in prosecutions for offences that do not pose any immediate risk to children is also likely to arise as a result of the very broad scope of the details required to be reported. Such details include any internet accounts held (including passwords) and, as mentioned above, any non-incidental contact with children. Given the ongoing and extensive nature of the new reporting obligations, it is likely that the resources of the QPS, Queensland Courts, and Legal Aid Queensland will be increasingly engaged in dealing with a high volume of technical violations.40

The Department responded:

The definition of reportable contact sets out the circumstances in which an offender will be required to report contact with children. Contact must be reported within 24 hours unless it is incidental contact. Incidental contact is defined in section 9A(3) as ‘contact that is incidental to the offender’s daily life’.

Incidental contact with children which occurs on a regular basis would only need to be reported in circumstances where a level of trust or familiarity is established between the offender and the child, for example, if the child felt comfortable to approach the offender outside of the work environment on the basis that the offender was a regular customer. This particular requirement targets those offenders who seek to groom children by establishing a level of trust in one environment and transposing it into another environment.

The proposed amendment increases the types of contact offenders will be required to report. However the amendment supports the purpose of the Act which requires offenders

40 Queensland Law Society, Submission No. 5, pages 2-3.



to provide police with their personal details for a period of time after their release into the community to reduce the likelihood that they will reoffend.41

Potential breach of confidentiality of personal information of child victims and witnesses

While generally supportive of the Bill, Protect All Children Today raised a concern in relation to the confidentiality of the information that is required to be reported by offenders in Schedule 2 of the Bill, in particular, the personal information of child victims and witnesses. Accordingly, Protect All Children Today recommended that access to and distribution of, this personal data be limited.42

In response to these concerns, the Department commented as follows:

Schedule 2 of the Bill does not require a reportable offender to provide any personal details that pertain to child victims or witnesses. The information that is required relates to those children with whom the offender has reportable contact. In this regard, section 69 of the Child Protection (Offender Reporting) Act 2004 restricts access to any information on the child protection register and requires the Police Commissioner to develop guidelines about the access to and disclosure of personal information on the child protection register. Similarly, section 70 limits the circumstances where information can be disclosed. Inappropriate disclosure of information carries a maximum penalty of 150 penalty units ($16,500) or two years imprisonment.43

Infringement of privacy concerning passwords for email accounts and social networking sites

The BAQ also commented about the proposals concerning passwords for email accounts and social networking sites:

The amendments will significantly expand the scope of personal details an offender must report to police. Among other things, an offender will be required to report details of social networking sites the offender visits, accounts used in connection with such sites, email addresses and internet user names.

Offenders have not previously had to report these details to police. These changes will increase the ability of police to monitor an offender's online activities.

In addition, an offender will also be required to provide police with the passwords for the offender's email addresses, internet accounts and use of social networking sites.44

The BAQ suggested in its submission that the requirement that an offender provide password access to police should be restricted to circumstances where a particular offender can be said to pose an identifiable risk to children in relation to the offender’s use of the account the password is used to access:

In our view, a blanket requirement that offenders provide their passwords to police in all cases infringes on the privacy of offenders to a greater extent than is reasonably necessary to safely manage the risks to children. The requirement that an offender provide password access to police should be restricted to circumstances where a particular offender can reasonably be said to pose an identifiable risk to children in relation to the offender's use of the account the password is used to access.45

41 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 14. 42 Protect All Children Today, Submission No. 4, page 1. 43 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 11. 44 Bar Association of Queensland, Submission No. 3, page 3. 45 Bar Association of Queensland, Submission No. 3, page 3.



The Department provided the following response on these points:

The purpose of this amendment is to ensure police have the requisite tools to prevent the repetition of offences against children. In this regard the imposition on the privacy of offenders who establish and maintain internet and social media accounts to now have to provide passwords as part of their reporting obligations, does not outweigh the rights of children to communicate safely.

Access to the information provided by a reportable offender is restricted under the Child Protection (Offender Reporting) Act 2004. Improper disclosure of any information on the child protection register carries a maximum penalty of 150 penalty units ($16,500) or 2 years imprisonment.

It is anticipated that accounts will only be accessed where the offender poses a risk to the lives or sexual safety of children.46

Committee Comment

The potential breach of infringement of privacy concerning passwords for email accounts and social networking sites should be balanced against the widespread use of Internet and social networking sites such as Facebook, Twitter, Tumblr and Instagram by young people globally. It is not uncommon for young people to establish online relationships with people they have never met based on posts, pictures and emails. It can also be the case that multiple accounts can be set up anonymously on social networking sites. While these sites are monitored in an ad hoc manner for inappropriate content and some do allow members to block other users or restrict access to users, some offenders have the ability to bypass these safeguards and obtain access to young people without revealing their identity. Accordingly, the Committee is satisfied that the requirements contemplated in the Bill concerning the provision of passwords for online accounts are reasonable in the circumstances.

Clarifying affiliations and localities

The Bill clarifies the meaning of a number of terms which apply to where an offender can be located.

As set out in the Explanatory Notes:

For the purposes of Schedule 2 a reportable offender is an ‘affiliate’ if the reportable offender is an employee, member, official or subordinate of a club or organisation that has child members or organises, supports or undertakes activities in which children participate; or directly supports the function or operation of a club or organisation of the type.

‘Localities’ in which a reportable offender can generally be found, means a description of, or directions to, a place or area in which the offender can generally be found sufficiently described to allow a reasonable person to locate the place or area based on the description or directions.47

The Explanatory Notes provide examples of details of localities in which a reportable offender can generally be found, such as ‘the name and location of a caravan park in which the offender can generally be found’ and ‘a description of, and directions to, the part of a camping area within a national park in which the offender can generally be found.’

46 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 9. 47 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 6.



Committee Comment

These clarifying amendments will improve the operation of the Act and are supported by the Committee.

How reports must be made

The Bill contains amendments to section 26 of the CPORA which will allow the police commissioner to determine an appropriate way for reportable offenders to make reports, other than the initial report which must be made in person.

As set out in the Explanatory Notes, the police commissioner may direct a reportable offender to the most appropriate manner of reporting for the level of risk he or she poses to the lives and sexual safety of children.

Committee Comment

The Committee considers providing flexibility for offenders to report changes in their personal details either by telephone, post, facsimile or email, rather than in person will enhance the ability for offenders to submit the changes and should reduce rates of non-compliance by reportable offenders to submit changes of personal details to the commissioner.

Suspension of reporting periods

The Bill also amends CPORA to suspend the reporting obligations of a reportable offender where an offender:

• suffers from a significant physical or cognitive impairment; or

• committed a reportable offence as a child; and no longer poses a threat to the lives or safety of children.48

The Explanatory Notes explain that:

• the police commissioner will have the authority to suspend an offender’s reporting obligations automatically or upon application by the reportable offender or his or her legal guardian;

• automatic suspensions will apply to all child reportable offenders in circumstances where the offender does not pose a risk to the lives or sexual safety of children;

• an unsuccessful application to suspend a reportable offender’s reporting obligations or a decision by the police commissioner to revoke a suspension is reviewable; and

• the Bill introduces an additional appeal mechanism that allows an applicant who is aggrieved by an appeal decision made by the police commissioner to appeal that decision to a Magistrates Court.49

In its submission, ATSILS indicated concern that the suspension provision will be one largely in theory only, as the Police Commissioner is likely to be loath to take action, even in meritorious cases.50



page 7. 50 Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd, Submission No. 1, pages 3-4.



In response, the Department commented as follows:

Clause 27 allows the reporting obligations of a juvenile reportable offender to be suspended on the Police Commissioner’s own volition or upon application by the juvenile offender or his or her legal guardian. A suspension of reporting obligations will only be considered by the Police Commissioner in circumstances where the offender does not pose a risk to the lives or sexual safety of children. A suspension under clause 27 does not have an end date unless the Police Commissioner reasonably believes the offender poses a risk to the lives or sexual safety of children.

In circumstances where those reporting obligations are not suspended or a suspension is revoked, the juvenile offender or his or her legal guardian may review that decision to the Police Commissioner. This is consistent with section 74 of CPORA which allows the Police Commissioner to review a decision to place a person on the child protection register. Should the juvenile offender be aggrieved by a decision of the Police Commissioner an additional tier of review is available to a Magistrates Court.51

Committee Comment

The Committee is satisfied the provisions involving the suspension of reporting obligations set out in clause 27 are an appropriate addition to CPORA. The Committee is satisfied that these provisions will not be just theoretical but actually quite useful in practice.

Taking and retaining DNA from reportable offenders

The amendments also include provisions aimed at streamlining the current situation relating to the taking and retaining of DNA samples in Queensland.

Under the proposed changes, the police commissioner may issue a notice requiring a reportable offender to provide a sample of his or her DNA if a sample is not held under the provisions of the PPRA. The Bill also repeals section 490A of the PPRA which requires police to destroy any DNA taken from a reportable offender under CPORA as soon as practicable within 12 months of the conclusion of an offender’s reporting period.52

In its submission, the QLS raised concerns about the proposal in the Bill to have a reportable offender’s DNA destroyed when their period of reporting ends. The QLS’s view is that the destruction of DNA samples at the appropriate time is a key protection for offenders. 53

The Department responded as follows on this issue:

In circumstances where DNA is taken under Child Protection (Offender Reporting) Act 2004 rather than the Police Powers and Responsibilities Act 2000, police are unable to retain that DNA after a period of reporting ceases. This conflicts with the intent of the Police Powers and Responsibilities Act 2000 provisions pertaining to the retention of DNA.

DNA held on the National Child Offender System is not always able to be accessed or used for the purpose of matching against offenders or crime scenes due to information sharing restrictions between jurisdictions. Incomplete DNA profiles hinder the capacity for police to


page 8. 53 Queensland Law Society, Submission No. 5, page 7.



identify or conversely remove a person from police inquires in any historical or future child sex offences that are committed.54

Committee Comment

The Committee is satisfied the provisions involving the taking and retaining of DNA from reportable offenders are an appropriate addition to the reportable offender regime. The Committee is satisfied that these provisions will be quite useful in practice.

Entry for the purpose of verifying personal particulars

Clause 35 of the Bill also proposes to amend the PPRA to insert new provision section 21A which allows police to enter the residence of a reportable offender for the purposes of verifying information that is required to be reported under CPORA. One of the key reasons for this amendment is to strengthen the capacity of police to effectively manage offenders on the NCOS.55

As noted in the Explanatory Notes, however:

The entry provision in the Bill does not authorise police to engage in a search of the residence. Rather, police will be required to rely on the existing search and seizure provisions under the PPRA if they suspect an offence under CPORA or another indictable offence has been committed.56

Comparison with the PUP Bill

The proposed entry provision in the Bill deal with provisions similar to the provisions proposed in the Child Protection (Offender Reporting) Amendment Bill 2013, which was a private member’s bill introduced by the Member for Yeerongpilly, Mr Carl Judge MP of the Palmer United Party (PUP Bill).57 However the proposed entry provisions in the Bill differ from the provisions in the PUP Bill in a number of ways. For example:

• the provision under the Bill is narrower than the PUP Bill in the sense that it deals with “entry only” whereas the PUP Bill deals with “entry and search”;

• the Bill does not require that the police officer give prior notice to the officer of the purpose of entry; and

• the PUP Bill includes powers regarding the seizure of evidence, taking copies or extracts of evidence and keeping evidence that has been seized.


The BAQ raised concerns in its submission about there being no restriction on the number of times police can enter a residence under the proposed changes to the PPRA:

The amendments amend the Police Powers and Responsibilities Act 2000 to allow a police officer to enter an offender's residence at any time to verify the offender's personal details. There is no restriction on the number of times police can enter the residence.


pages 8-9. 56 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

pages 8-9. 57 Legal Affairs and Community Safety, Report No. 60, Child Protection (Offender Reporting) Amendment Bill

2013, April 2014.



Such a power is a dramatic infringement on the rights and liberties of offenders.

It would be desirable to place limits on the use of the power such as restrictions to limit the number of times police are able to use the power in relation to an offender in any year or a requirement that the power only be used in circumstances where a police officer has a reasonable suspicion that an offender has not accurately reported his or her personal details at a particular time.58

In its response, the Department raised the following points:

The extended power of entry for police officers to verify an offenders reported details supports the purpose of the Child Protection (Offender Reporting) Act 2004 which in part, requires reportable offenders to keep police informed of their personal particulars for a specified period of time. Some offenders take extreme measures to circumvent their reporting obligations by establishing pseudo addresses whilst residing elsewhere. In this regard, the capacity for police to form the requisite level of suspicion to ground an application to the court for a warrant is limited. It is often only when these offenders come to the attention of police for other matters that the decoy is discovered.

Limiting the number of times police are able to enter a residence under the proposed amendment may only serve to improve offender compliance until the entry capacity has been exhausted. While the proposed provision does not limit the number of times police can effect entry, it does limit where police can enter, particularly where the offender is renting a room or sharing a house with other people. In this regard, police will only be authorised to enter the part of the residence where the offender usually resides.59

The QLS also commented on the insertion of proposed new section 21A of the PPRA in its submission and proposed some changes to mitigate the potential for abuse:

This proposed section seeks to provide police officer with broad powers to enter premises at any time to verify an offender's personal details. These are significant powers and as such, must be balanced against the rights and liberties of offenders in order to mitigate the potential for abuse. In order to achieve this end, we suggest that a police officer be made to obtain a warrant prior to entering the premises. his would provide external oversight to this process.

If this recommendation is not adopted, we suggest that the following protections should be provided in this section to ensure that an offender’s privacy is protected:

• provide for a threshold of criteria justifying the exercise of the power, for example- a police officer must reasonably suspect that the reportable offender’s personal details are incorrect;

• the police officer should be required to attempt to obtain the consent of the reportable offender to enter the premises;

• there should be a requirement for permission to be granted by a commissioned officer; and

• the use of a register whereby the police are required to enter details of the entry into an offender’s house, the reasons why the entry is required, etc.60

58 Bar Association of Queensland, Submission No. 3, page 3. 59 Letter from the Minister for Police, Fire and Emergency Services, 15 May 2014, Attachment, page 10. 60 Queensland Law Society, Submission No. 5, pages 6-7.



The Department made similar comments in its response to the QLS’s submission as it did in its response to the BAQ. It also included the following points:

It is anticipated that police only effect an entry as a last resort rather than a regular course of action. All entries that are made by police are recorded on Queensland Police Service registers. Details recorded include the time and place, reason for entry and who was present when entered.61

Committee Comment

The Committee is satisfied that the powers to enter premises where a reportable offender generally resides for the purposes of verifying the personal details a reportable offender is required to report under the CPORA without consent or a warrant are justified in the circumstances.

Miscellaneous amendments

The Bill makes a number of miscellaneous amendments which will enhance the operation of the offender reporting regime including:

• extending section 60 of the CPORA to allow police to take a reportable offender to a police station for the purpose of giving a notice of reporting obligations;

• amending section 68 of the CPORA to clarify that a child protection register may be comprised of a number of constituent parts, for example, a document or record maintained by a relative entity exclusively or predominantly for storing information relating to persons who have committed or attempted to commit an offence of a sexual nature; and

• reducing the regulatory burden on the QPS by removing the requirement to produce a certificate on each occasion an offender is charged for an offence under the CPORA.62

Committee Comment

The Committee supports these amendments noting the rationale provided in the Explanatory Notes that it is not always practical or appropriate for the QPS to detain a reportable offender on the roadside or in a busy location to give him or her a notice of reporting obligations that may not be readily available.63

Further it is appropriate for the CPORA to recognise the complexity of what form the child protection register may take by modernising section 77 of CPORA to recognise information stored in a variety of locations may form a constituent part of the child protection register.64




page 8.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Fundamental legislative principles


3. Fundamental legislative principles

Section 4 of the Legislative Standards Act 1992 states that ‘fundamental legislative principles’ are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’. The principles include that legislation has sufficient regard to:

• the rights and liberties of individuals, and

• the institution of Parliament.

The Committee has examined the application of the fundamental legislative principles to the Bill. It is considered that clauses 7, 11, 13, 19, 22, 31, 32 and 35 of the Bill raise potential fundamental legislative principle issues which are brought to the attention of the House.

3.1 Rights and liberties of individuals

Section 4(2)(a) of the Legislative Standards Act 1992 requires that legislation has sufficient regard to the rights and liberties of individuals.

Increased Reporting obligations

Clause 11 of the Bill repeals existing sections 14 – 19 of the CPORA and replaces them with the new, tougher and more stringent reporting obligations. Accordingly, a number of FLP issues arise in this area which is set out below.

Requirement to make periodic reports

Proposed sections 18 and 19 of the CPORA will enable the police commissioner to require a reportable offender to report more frequently than the mandated quarterly periods. In considering this policy objective from an FLP perspective the Committee notes that the issue of fairness of treatment of individuals must be considered in deciding whether legislation has sufficient regard to the rights and liberties of individuals.

In considering what is fair – the issue of proportionality and relevance arises in that consequences imposed by legislation must be proportionate and relevant to the actions to which consequences are applied by the legislation. On this point, the Explanatory Notes provide:

Periodic (quarterly) reporting gives effect to the government’s commitment to impose more stringent reporting for offenders on the NCOS. While there is no option for offenders to decrease their obligation to make a periodic (quarterly) report in a manner directed by the police commissioner, existing and new forms of technology based reporting will reduce the time it takes for an offender to make those reports.

In comparison, more frequent periodic reporting will only operate where an offender is considered to pose a significant risk to the lives or sexual safety of children. Risk is determined through a detailed assessment which includes the person’s offending history, the age of the person at commencement of the risk, the relationship status of the person, aggravating factors such as severity of offences, sex offender associations, contact with children, employment and any additional intelligence. The frequency of reporting can be increased or decreased depending on the level of risk at any given time.



A two tiered appeal mechanism will act to safeguard the rights and liberties of reportable offenders. An offender who is aggrieved by a direction to report more frequently can appeal that decision to the police commissioner in the first instance and then to a Magistrates Court.65

The Committee notes the appeal mechanism referred to in the Explanatory Notes is consistent with existing appeal mechanisms in the CPORA.

Committee Comment

The Committee notes the Department’s response to submissions which raised issues with this aspect of the Bill that although the frequency of reporting may be able to be increased, the periods of reporting have been reduced in line with contemporary research.66 The Committee also notes the Department’s advice set out in 2.2 of this Report:

Alternative methods of reporting through automated kiosks and a secure online interface are anticipated to reduce the impost associated with the additional reporting requirements. In circumstances where an offender has a significant impairment or was a child at the time the reportable offence was committed, the offender may make an application to the Police Commissioner under section 67D for all mandated reporting obligations to be suspended.67

Given the appeal mechanisms available to offenders and the risk assessment which will be conducted for more frequent periodic reporting, the Committee considers the clause has sufficient regard to the rights and liberties of individuals to whom it applies.

Timeframes for reporting

Clause 11 of the Bill also includes proposed section 14 which sets out when a reportable offender must make an initial report. This section applies to offenders listed in column 1 of the new Schedule 3 (Schedule 2A in the Bill) and details that an offender must make an initial report within seven days after a prescribed event occurring, for example, when an offender is released from government detention. The Explanatory Notes address this clause as follows:

It is recognised that the process of making an initial report is time consuming, however if the requisite information is not provided, police have no way of knowing the whereabouts of reportable offenders in the community. The purpose of CPORA requires offenders to keep police informed of their whereabouts and their personal particulars for the duration of their reporting period and cannot be effected unless the initial report is made.68

Clause 13 of the Bill also amends reporting timeframes through proposed new section 21 of the CPORA which will reduce the time in which an offender can extend a stay outside of Queensland without being required to report that change - from beyond 13 days to beyond seven days.

The Explanatory Notes address this clause in relation to the application of fundamental legislative principles:

Previously a reportable offender could enter Queensland from another jurisdiction or leave Queensland for a period of up to 14 consecutive days without being required to make a report of this travel. In essence an offender could enter Queensland or leave Queensland for


page 9. 66 Letter from the Minister for Police, Fire and Emergency Services, 17 April 2014, Attachment, page 16. 67 Letter from the Minister for Police, Fire and Emergency Services, 17 April 2014, Attachment, page 8. 68 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

page 10.



13 consecutive days, return to his or her home jurisdiction for one day and then leave his or her home jurisdiction for another 13 consecutive days and so on without being required to report that leave. This represents a significant and unacceptable window in which an offender can operate before police can act.69

Committee Comment

While clauses 11 & 13 potentially infringe on the rights and liberties of individuals by making reporting requirements more onerous, the Committee is satisfied the reduction in timeframes provided for in clauses 11 and 13 are fair and reasonable in the circumstances and that it is vitally important for the QPS to have this information available within the timeframes provided.

Removal of exclusionary provision

As discussed in greater detail at part 2 of the Report, at present, a juvenile who is convicted of indecently dealing with a child under 16 is not a reportable offender pursuant to section 210 of the Queensland Criminal Code.

Clause 31 of the Bill will increase the circumstances in which a child will become a reportable offender by removing section 210 of the Criminal Code (Indecent treatment of children under 16) as an ‘exclusionary offence’.70 This amendment will remove the exclusionary offence contained at section 210 of the Criminal Code for juvenile offenders found guilty of indecent dealing with a child under the age of 16.

The Explanatory Notes address this amendment as follows:

To safeguard the rights of child offenders, the police commissioner will automatically suspend the reporting obligations (other than an initial report) of those children who do not pose a risk to the lives or sexual safety of children. A suspension offered by the police commissioner will remain in force until such time as the reporting obligations for the child end or the child poses a significant risk to the lives or sexual safety of children in the community. The amendment will not apply retrospectively.71

Committee Comment

Although on the face of the amendment, more juvenile offenders will become reportable offenders, the Committee notes the proposed amendments to section 36 of the CPORA will see the reporting periods reduce for a child to a minimum of 2 and a half years and a maximum of 7 and a half years.72 Further, as advised by the QPS at the public hearing – the Committee notes there are a very small number of juvenile reportable offenders who fill the requirements to come onto the register.73

The Committee is satisfied the safeguards provided for child offenders through the powers afforded to the Police Commissioner are appropriate in the circumstances.




page 10. 72 Clause 19, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014. 73 Transcript of Proceedings (Hansard), Public Hearing, Legal Affairs and Community Safety Committee, 7 May

2014, page 14.



Privacy issues

Among the changes to Schedule 2 of the CPORA, the Bill amends the type of information that a reportable offender must furnish details of to the police commissioner.74

Passwords

At present, reportable offenders are required to report telephone carriers and internet service providers, however, they are not required to report any passwords or telephone numbers associated with those accounts, or the details of any social networking sites used or intended to use.

Under the Bill, details must now also be provided of any social networking site that the reportable offender joins, participates in or contributes to, or with which the offender registers or opens an account, including passwords for the registration or account. A reportable offender must also provide details, including passwords of an email address; an internet user name (including a user name or identity associated with an instant messaging service); chat room or social networking site.

As acknowledged in the Explanatory Notes, these amendments impinge on the rights and liberties of individuals:

The Bill infringes on the rights and liberties of individuals by increasing the personal details that an offender is required to report under the new schedule 2. In this regard, an offender will be required to report the cessation of a general residence, any contact with a child that is not incidental contact, any social networking sites used by the offender (including the passwords), any internet accounts held by the offender (including the passwords) and telephone numbers that are held in the offender’s name. These amendments reflect identified gaps in the legislation and recognise the increased ability for offenders to access to children through social media.75

The Explanatory Notes provide the justification for inclusion of the clause in the Bill:

…the imposition on the privacy of offenders who establish and maintain internet and social media accounts, to now have to provide passwords to police for those accounts, does not outweigh the rights of children to communicate safely.76

Committee Comment

While the Committee accepts there is a potential breach of fundamental legislative contained in clause 32 – this must be balanced against the widespread use of Internet and social networking sites such as Facebook, Twitter, Tumblr and Instagram by young people globally.

It is not uncommon for young people to establish online relationships with people they have never met based on posts, pictures and emails. It can also be the case that multiple accounts can be set up anonymously on social networking sites. While these sites are monitored ad hoc for inappropriate content and some do allow members to block other users or restrict access to users, some offenders have the ability to bypass these safeguards and obtain access to young people without revealing their identity.

74 Clause 32, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014. 75 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,


page 12.



The Committee agrees with the justification above that the imposition on the privacy of reportable offenders to provide details of passwords as part of their reporting obligations, does not outweigh the rights of children to use the internet safely. Further, the Committee notes improper access to information provided by a reportable offender is an offence which carries a maximum penalty of 150 penalty units or 2 years imprisonment.77 The Committee is satisfied the requirements are fair and reasonable in the circumstances and balanced against the proliferation of technological devices readily used and available by young people.

General Residence

Clause 32 of the Bill also contains a provision requiring reportable offenders to keep police informed of their whereabouts until such time as their reporting obligations have ended.

As set out in the Explanatory Notes, the current provisions regarding the reporting of a general residence do not meet the purpose of CPORA and the amendment seeks to remedy a gap in the legislation identified by Her Honour, Judge Clare, in Tate v Landis who commented -

There is no express requirement to report when an offender leaves a place of general residence with no intention of returning, that is, when the offender moves out for good. There is no express requirement to report the moving out.78

The Explanatory Notes provide the following justification for the clause:

The purpose of CPORA is to require reportable offenders to keep police informed of their whereabouts until such time as their reporting obligations have ended. The current provisions regarding the reporting of a general residence do not meet the purpose of CPORA. The amendment remedies this gap and increases community safety by ensuring that police know the whereabouts of all reportable offenders at any given time.79

Committee Comment

The Committee is satisfied the amendment requiring offenders to report when they leave a place of general residence with no intention of returning, is justified in the circumstances.

Contact with children reportable contact

Clause 7 of the Bill proposes to insert a new section 9A into the CPORA which will clarify when contact with a child is considered to be reportable contact and must therefore be reported. Subsection (1) provides reportable contact occurs when – ‘a reportable offender has physical contact with the child, or communicates with the child orally, whether in person, by telephone or over the internet, or communicates with the child in writing (including electronic communication) in circumstances in which the offender is supervising or caring for any child, or exchanging contact details with any child; or attempting to befriend any child.’ The amendment represents an increase in the number and types of contact that must be reported from three (3) unsupervised contacts in any year to every contact that falls within the parameters of reportable contact.



page 11.



The Explanatory Notes state this amendment is consistent with the review conducted by the Victorian Law Reform Commission in 2011 which found the current manner of reporting unsupervised contact with a child did not assist in protecting children from potential harm and was unfair to an offender who may face serious penalties for either failing to comply with reporting obligations or providing false or misleading information to the police.80

Reportable offenders will not have to report incidental contact that occurs in the course of daily life such as being served at a store.

Committee Comment

The Committee is satisfied the amendment is based on appropriate research from the Victorian Law Reform Commission and considers it to be justified in the circumstances.

Providing a DNA Sample

Clause 22 of the Bill replaces existing section 40A of the CPORA and clarifies when a reportable offender is required to provide a DNA sample under the Act.

New section 40A allows a DNA sample to be taken from any reportable offender if a sample is not currently held under the PPRA. A reportable offender must comply with a written notice requiring the offender to attend at a stated time and place for a DNA sample to be taken for analysis.

The Bill also repeals section 490A of the PPRA – When DNA sample taken from reportable offender and results must be destroyed – which provides that a DNA sample must be destroyed within a reasonably practicable time after the person stops being a reportable offender.

The Explanatory Notes acknowledge clause 22 and the repealing of section 490A potentially effects the rights and liberties of individuals:

Repealing section 490A of the PPRA infringes on the privacy of reportable offenders who have their DNA taken under section 40A of CPORA. Section 490A currently requires any DNA taken under CPORA to be destroyed within 12 months of an offender completing a period of reporting. In this regard an offender who has had his or her DNA lawfully taken under CPORA and has had his or her DNA sample destroyed upon completion of a period of reporting, cannot be identified by DNA if he or she commits any further offences. Currently any other type of offender who is found guilty of an indictable offence in Queensland is required to provide a DNA sample to remain as a permanent record under the PPRA.81

The Explanatory Notes also provide the following justification for the amendment:

The amendment predominately impacts on corresponding reportable offenders. Corresponding reportable offenders have only been required to provide a DNA sample if no sample has been taken in their home jurisdiction. Unfortunately information sharing restrictions across jurisdictions impede access to these samples for the purposes of cross matching.


pages 11-12. 81 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014,

pages 12-13.



The impact of this amendment is not far reaching. There are currently only 22 corresponding reportable offenders without a DNA profile in Queensland. However, in terms of child safety, this represents a significant deficiency in the information that is available on the child protection register.82

Committee Comment

The Committee echoes its comments from earlier in the report and is satisfied the justification for the amendment clause as provided for in the Explanatory Notes is fair and reasonable in the circumstances.

Power to enter premises

Section 4(3)(e) of the Legislative Standards Act 1992 requires that legislation confers power to enter premises and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.

Clause 35 of the Bill contains a number of minor and consequential amendments to a number of Acts in Schedule 1 of the Bill. One of these amendments is the insertion of new section 21A into the PPRA – Power to enter for Child Protection (Offender Reporting) Act 2004.

Under new section 21A(1) of the PPRA a police officer will be allowed to enter, without warrant, the premises where a reportable offender generally resides for the purpose of verifying the personal details a reportable offender is required to report under the CPORA.

Power to enter premises should generally be permitted only with the occupier’s consent or under a warrant issued by a judge or magistrate. Strict adherence to the principle may not be required if the premises are business premises operating under a licence or premises of a public authority. The former Scrutiny of Legislation Committee’s chief concern not adhering to this principle was the range of additional powers that become exercisable to an officer after entry without a warrant or consent.83

The Explanatory Notes provide the following justification for new section 21A:

While there is no restriction on the number of times police can enter the residence, the power will only be effected by police officers who are responsible for the compliance management of reportable offenders.

In circumstances where the offender is renting a room or sharing a house with other people, police will only be authorised to enter the part of the residence where the offender usually resides, this includes the offender’s bedroom, front door, entry way and any common area of the residence.

The new power does not authorise a search of an offender’s residence based on that entry. Rather police will be required to use the existing provisions of the PPRA to authorise a search of the residence.84


pages 12-13. 83 Alert Digest 2004/5, page 31, paras. 30-36; Alert Digest 2004/1, pages 7-8, paras 49-54; Alert Digest

2003/11, pages 20-21, paras 14-19; Alert Digest 2003/9, page 4, para. 23 and page 31, paras 21-24; Alert Digest 2003/7, pages 34-35, paras 24-27; cited in Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook, page 45.

84 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014, page 13.



Committee Comment

The Committee considered this matter recently in its examination of the Child Protection (Offender Reporting) Amendment Bill 2013.85 The Committee noted in its report that the former Scrutiny of Legislation Committee adopted an expansive approach in identifying rights and liberties which included the right to privacy. The Queensland Legislation Handbook provides that there should be a balance within legislation between individual and community interests, and that the treatment of all persons affected by legislation should be reasonable and fair.86

The Committee has considered whether the powers to enter premises are justified in these circumstances and whether limitations in the Bill provide adequate safeguards to protect reportable offenders from inappropriate incursion into their rights and liberties.

The Committee notes this Bill does not allow for the search and seizure of documents or things – only to enter the premises for compliance purposes. While the powers allowing police to enter a reportable offender’s residence without a warrant are substantial, the Committee is satisfied the justification as set out in the Explanatory Notes allowing for police to enter without a warrant, is appropriate in the circumstances.

In addition to considering the substantive policy issues relating to this clause, the Committee considers the clause should not have been contained in a schedule of ‘minor and consequential amendments’ as it contains one of the substantive policy objectives of the Bill.

Retrospectivity

Section 4(3)(g) of the Legislative Standards Act 1992 provides that legislation should not adversely affect rights and liberties, or impose obligations retrospectively. Strong argument is required to justify an adverse effect on rights and liberties, or imposition of obligations, retrospectively.

Clause 19 of the Bill replaces sections 36(1) and (2) of the CPORA to realign the reporting periods for all reportable offenders.

Proposed section 36(1)(a) requires a reportable offender, who has ever been found guilty of 1 or more reportable offence(s), to comply with reporting obligations for five (5) years. Proposed section 36(1)(b) requires a reportable offender to comply with reporting obligations for 10 years if the offender has ever been found guilty of a reportable offence and after being given a notice of reporting obligations under CPORA or a corresponding Act, commits and is found guilty of a single reportable offence.

Pursuant to section 36(1)(c), should a reportable offender commit more than one reportable offence, the offender will bypass the 10 year reporting period and be required to meet reporting obligations for the remainder of his or her life.

Section 36(3) replaces the words ‘the commencement of subsection (1)’ and inserts 1 January 2005 changing the reporting periods under subsection 1 to apply to an offence that occurred before the commencement of CPORA. The change in reporting periods provided for under section 36(3) will mean that the legislation (if passed) will operate retrospectively.

85 Legal Affairs and Community Safety, Report No. 60, Child Protection (Offender Reporting) Amendment Bill

2013, April 2014. 86 The Queensland Legislation Handbook, at para. 7.2.12.



The Explanatory Notes provide justification for the retrospectively in section 36 as follows:

An amendment to section 36, acts in a positive retrospective manner by automatically re-aligning the reporting periods of all reportable offenders. The resultant effect will be that all offenders, other than those reporting for life, will have their reporting periods reduced from eight years and 12 years respectively to five years and 10 years respectively.87

Committee Comment

Given the amendment will reduce the reporting periods for most offenders, the Committee is satisfied, in this instance, the retrospective nature of the clause will not adversely affect the rights and liberties, or impose obligations on those individuals who are subject to reporting obligations.

3.2 Explanatory Notes

Part 4 of the Legislative Standards Act 1992 relates to Explanatory Notes. It requires that an explanatory note be circulated when a Bill is introduced into the Legislative Assembly, and sets out the information an explanatory note should contain. Explanatory Notes were tabled with the introduction of the Bill.

A re-occurring numbering error was identified on pages 28-30 of the Explanatory Notes due to an incorrect reference to a non-existent ‘clause 28A’. This caused confusion to readers and should have been identified prior to the notes being tabled. As a consequence, it appears references to:

• clause 28A should be to clause 29;

• clause 29 should be to clause 30;




• clause 33 should be to clause 34; and

• clause 34 should be to clause 35.

Consultation

The Explanatory Notes do not comply with section 23(1)(g) of the Legislative Standards Act 1992 relating to consultation. The Guidelines for the preparation of explanatory notes published on the website88 of the Department of Premier and Cabinet state, in relation to consultation:

Section 23(1)(g) of the LSA requires a brief statement of the extent to which consultation was carried out in relation to the Bill. This part of the notes should focus on consultation with community stakeholders and organisations independent of government. Although it is an important part of the development of the Bill to consult with government departments and agencies it is not considered necessary to refer to government stakeholders in the explanatory notes. (emphasis added) Consultation issues in relation to government stakeholders should have been comprehensively addressed in the preceding submissions to Cabinet.


page 13. 88 http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/legislation-

handbook/drafting-process/assets/guidelines-preparation-of-explanatory-notes.pdf accessed May 2014.



When preparing this statement:

• consider that, in principle, consultation should occur with affected key stakeholders at all stages of the regulatory cycle – the explanatory notes should explain how consultation has occurred and if not, why not;

• the groups or persons consulted should be suitably identified (preferably by means of a list); and

• additional information about the consultation process may be required depending on the nature and importance of the bill (emphasis added) – this might include:

o the form of consultation;

o a summary of the views expressed;

o the resultant impact of the consultative process on the content of the bill; and

o if no consultation occurred, the reasons for that.89

The Explanatory Notes simply state nine Government agencies and 6 non-Government bodies were consulted on the Bill.90 For a Bill as important as this one, the Committee considers the additional information contained above in the guidelines for preparation of Explanatory Notes should have been included.

The notes are otherwise fairly detailed and contained the information required by Part 4 and a reasonable level of background information and commentary to facilitate understanding of the Bill’s aims and origins.

89 http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/legislation-

handbook/drafting-process/assets/guidelines-preparation-of-explanatory-notes.pdf, page 5, accessed May 2014.

90 Explanatory Notes, Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014, page 13.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Appendix A – List of Submissions


Appendix A – List of Submissions

Sub # Submitter

001 Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd

002 Queensland Child Safety Legislation Action Network

003 Bar Association of Queensland

004 Protect All Children Today (PACT)

005 Queensland Law Society

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Appendix B – List of Witnesses at Public Hearing


Appendix B – List of witnesses at Public Hearing

Queensland Police Service

• Detective Acting Superintendent George Marchesini, Child Safety & Sexual Crime Group, State Crime Command

Public Safety Business Agency

• Senior Sergeant Andrew Reeves

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd

• Ms Julia Anderson, Law & Justice Advocacy Development Officer

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 Statement of Reservation


Statement of Reservation

BILL BYRNE MP SHADOW MINISTER FOR POLICE, EMERGENCY AND CORRECTIVE SERVICES, PUBLIC WORKS AND NATIONAL PARKS MEMBER FOR ROCKHAMPTON PO Box 15057, City East QLD 4002 [email protected] (07) 3838 6767

23 May 2014 Mr Ian Berry MP Member for Ipswich Chairperson Legal Affairs and Community Safety Committee Parliament House George Street BRISBANE QLD 4000 Dear Mr Berry Statement of Reservation – Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014 I wish to notify the committee that the opposition has reservations about aspects of the Report No. 66 of the Legal Affairs and Community Safety Committee into the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2014. The Opposition will detail the reasons for its concern during the parliamentary debate on the Bill. Yours sincerely

Bill Byrne Member for Rockhampton

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