CRIMES (CHILD SEX OFFENDERS) AMENDMENT BILL 2012

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This is a Bill, not an Act. For current law, see the Acts databases.

CRIMES (CHILD SEX OFFENDERS) AMENDMENT BILL 2012

2012

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Crimes (Child Sex Offenders) Amendment Bill 2012

Contents

Page

2012

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Crimes (Child Sex Offenders) Amendment Bill 2012

A Bill for

An Act to amend the Crimes (Child Sex Offenders) Act 2005, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1 Name of Act

This Act is the Crimes (Child Sex Offenders) Amendment Act 2012.

2 Commencement

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

3 Legislation amended

This Act amends the Crimes (Child Sex Offenders) Act 2005.

Note This Act also amends the Court Procedures Act 2004 (see s 26).

4 Purpose and outline

New section 6 (1) (c)

insert

5 New section 6 (2) (ga)

insert

(ga) allows the chief police officer to apply to the Magistrates Court for orders prohibiting registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children; and

6 Offence—offender must report after sentencing

Section 23 (b) (i)

after

is not in

insert

, or does not begin, full-time

7 Section 23 (b) (ii)

substitute

(ii) if the offender is in, or begins, full-time government custody on the day the offender is sentenced for the registrable offence and later stops being in full-time government custody in the ACT—within 7 days after the day the offender stops being in full-time government custody (excluding days in government custody); or

8 Offence—offender must report return to ACT

Section 47 (d)

substitute

(d) the offender does not, within the 7 days, take all reasonable steps to—

(i) report the offender’s return to the ACT to the chief police officer, in an approved way; and

(ii) if the offender travelled outside Australia—give the chief police officer a copy of the offender’s passport and documents that verify or support the offender’s travel details; and

Examples—documents

1 an airline ticket

2 a receipt for payment of accommodation

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

9 Offence—offender in ACT must report change of details

Section 54 (1) (b)

substitute

(b) the offender does not take all reasonable steps to report the change to the chief police officer, in the way required under subsection (2)—

(i) for personal details mentioned in section 59 (e)—within 24 hours after the day the change happens (excluding days in government custody); or

(ii) for any other personal details—within 7 days after the day the change happens (excluding days in government custody); and

10 Section 54 (3)

omit

7-day period

substitute

7 days or 3 days

11 New section 54 (4)

insert

(4) The Legislation Act, section 151A (Periods of time ending on non-working days) does not apply to subsection (1) (b) (i).

12 Offence—offender returning to ACT must report change of details

Section 55 (1) (c)

substitute

(c) the offender does not take all reasonable steps to report the change to the chief police officer, in the way required under subsection (2)—

(i) for personal details mentioned in section 59 (e)—within 24 hours after the day the offender has been in the ACT for 7 consecutive days (excluding days in government custody); or

(ii) for any other personal details—within 7 days after the day the offender has been in the ACT for 7 consecutive days (excluding days in government custody); and

13 What are personal details?

Section 59 (e), notes

omit

7 days

substitute

3 days

14 New section 59 (o) to (t)

insert

(o) if the offender has ever been subject to a corresponding prohibition order—details of—

(i) the order; and

(ii) when and where the order was made;

(p) details of any carriage service used by the offender;

(q) details of any internet service provider or carriage service provider used by the offender;

(r) details of the kind of any internet connection used by the offender;

Examples

wireless, broadband, ADSL or dial-up connection

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(s) details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used by the offender through the internet or another electronic communication service;

(t) the passport number and country of issue of each passport held by the offender.

15 New section 59 (2)

insert

(2) In this section:

carriage service—see the Telecommunications Act 1997 (Cwlth), section 7 (Definitions).

carriage service provider—see the Telecommunications Act 1997 (Cwlth), section 87 (Carriage service providers).

corresponding prohibition order means an order made under a law of a foreign jurisdiction that substantially corresponds to a prohibition order or interim prohibition order.

internet service provider—see the Broadcasting Services Act 1992 (Cwlth), schedule 5, part 2, clause 8 (Internet service providers).

16 Meaning of some concepts in s 59

Section 60 (b) and (c)

omit

7 days

substitute

3 days

17 When reporting period begins

Section 83 (b)

substitute

(b) if the offender is in, or begins, full-time government custody on the day the offender is sentenced for the registrable offence—when the offender stops being in full-time government custody.

Example

when a person ends full-time detention and begins periodic detention

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

18 Offence—secrecy

Section 121

relocate as section 133A

19 New chapter 5A

insert

Chapter 5A Orders prohibiting offender conduct

Part 5A.1 Preliminary

132A Definitions—ch 5A

In this chapter:

application, for an order for a person under this chapter, includes an application for the registration of a corresponding protection order.

conduct includes a course of conduct.

corresponding prohibition order means an order made under a law of a foreign jurisdiction that substantially corresponds to a prohibition order.

CYP director-general means the director-general of the administrative unit responsible for the Children and Young People Act 2008.

CYP director-general’s report means the report mentioned in section 132C.

daily care responsibility—see the Children and Young People Act 2008, section 19.

interim prohibition order—see section 132H (Court may make interim prohibition order).

long-term care responsibility—see the Children and Young People Act 2008, section 20.

make, an order for a person under this chapter, includes register a corresponding prohibition order.

parental responsibility, for a child or young person—see the Children and Young People Act 2008, section 15.

prohibition order—see section 132D (Court may make prohibition order).

registered corresponding prohibition order means a corresponding prohibition order registered under section 132N (Registration of corresponding prohibition order—no amendment) or section 132P (Registration of corresponding prohibition order—with amendment).

registration notice—see section 132O (Notice of registration of unamended corresponding prohibition order).

return date, for an application, means the day set by the Magistrates Court for return of the application before the court.

Part 5A.2 Prohibition orders

132B Application for prohibition order

(1) The chief police officer may apply to the Magistrates Court for a prohibition order for a person if the chief police officer believes on reasonable grounds that—

(a) the person is a registrable offender; and

(b) the person has engaged in conduct the nature or pattern of which poses a risk to the lives or sexual safety of 1 or more children, or of children generally; and

Examples

1 loitering at or near a park fitted with playground equipment regularly used by children

2 seeking employment or volunteer work that will involve the person coming into contact with children, including, for example, door-to-door sales or collecting

3 living near a child care centre

4 boarding in a household with children under 16 years old

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Note If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.

(2) The application must—

(a) state each registrable offence for which the person has been found guilty; and

(b) state the particulars of the conduct the chief police officer believes the person has engaged in; and

(d) state the conduct of the person proposed to be prohibited under the prohibition order, including the conditions (if any) sought by the chief police officer; and

(e) if the person is a young person—include a copy of the CYP director-general’s report for the person.

(3) The application may state that the chief police officer is seeking an interim prohibition order on the application.

132C CYP director-general’s report

(1) This section applies if the chief police officer intends to apply to the Magistrates Court under section 132B for a prohibition order for a young person.

(2) The chief police officer must ask the CYP director-general in writing for a written report containing the director-general’s opinion on—

(a) whether the nature or pattern of conduct the chief police officer believes the young person has engaged in poses a risk to the lives or sexual safety of 1 or more children, or of children generally; and

(b) whether there are other reasonably appropriate ways of managing the young person; and

(c) whether the prohibition of the proposed conduct of the young person is reasonable having regard to the conduct mentioned in paragraph (a); and

(d) what impact a prohibition order may have on the best interests of the young person, including the young person’s accommodation, educational, health, cultural, family or other social needs.

(3) The report may contain any other information, assessments or reports that the CYP director-general considers appropriate.

(4) However, a report need not include protected information under the Children and Young People Act 2008 about the young person.

Note The CYP director-general may give protected information to the chief police officer if the director-general is satisfied that the information is materially relevant to an investigation a police officer is carrying out (see Children and Young People Act 2008, s 865A).

(5) The CYP director-general must give the report to the chief police officer within 28 days after the day the chief police officer requests the report.

132D Court may make prohibition order

(1) The Magistrates Court may, on application, make an order (a prohibition order) prohibiting a person from engaging in conduct if satisfied that—

(a) the person is a registrable offender; and

(b) the person has engaged in the conduct stated in the application for the order; and

(i) the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally; and

(ii) the making of the order will reduce the risk; and

(d) having regard to the matters mentioned in section 132E, the order is appropriate.

Note For the kind of conduct the Magistrates Court may prohibit, see s 132F.

(2) Also, the Magistrates Court may only make a prohibition order for a young person—

(a) after considering the CYP director-general’s report for the young person; and

(b) if satisfied that all other reasonably appropriate ways of managing the young person have been considered by the chief police officer before the chief police officer applied for the order.

(3) For subsection (1), it is not necessary for the Magistrates Court to identify a risk to a particular child, particular children, or a particular class of children.

(4) The application for the order may be heard, and the order made, in the person’s absence if the Magistrates Court is satisfied that the person was served with the application under section 132Z (Service of applications).

(5) If a person against whom a prohibition order is sought is already subject to a prohibition order and no application has been made to revoke the existing order, the Magistrates Court must, if it decides to make the order—

(a) revoke the existing order and replace it with a new order (which may contain matters relating to the existing order); or

(b) amend the existing order to include the matters in relation to which it has decided to make the order.

(6) A failure to comply with subsection (5) does not affect the validity of an existing prohibition order or the new prohibition order.

132E Matters court must consider before making prohibition order

(1) For section 132D (1) (d), the matters are as follows:

(a) for each registrable offence for which the person is a registrable offender—

(i) the seriousness of the offence; and

(ii) the period since the offence was committed; and

(iii) the person’s and victim’s ages when the person committed the offence, and the difference in age between the person and victim;

(b) the person’s present age;

(d) whether the level of risk that the person may commit another registrable offence outweighs the effect of the order on the person;

(e) the person’s circumstances, to the extent that they relate to the conduct sought to be prohibited;

Examples

1 the person’s accommodation, employment, health, cultural and social needs

2 the need to integrate the person into the community

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(f) if the person is a young person—the person’s best interests, including the person’s educational needs and access to family members.

(2) The Magistrates Court may have regard to anything else the court considers relevant.

(3) In this section:

criminal history, about a person, means—

(a) a finding of guilt against the person for a registrable offence or relevant offence; and

(b) a charge made against the person for a registrable offence or relevant offence, other than—

(i) a charge that has been withdrawn, discontinued or dismissed; or

(ii) a charge for an offence for which the person was acquitted or found guilty.

family member—see the Children and Young People Act 2008, section 13.

relevant offence means any of the following offences (whether committed in the ACT or elsewhere):

(a) a sexual offence;

(b) an offence against the person;

(d) an offence involving dishonesty or fraud;

(e) an offence relating to property;

(f) an offence relating to illegal drugs;

(g) an offence against an animal;

(h) any other offence the chief police officer considers relevant.

132F Conduct that may be prohibited by prohibition order etc

(1) For section 132D (1) (Court may make prohibition order) or section 132H (1) (Court may make interim prohibition order), the kind of conduct the Magistrates Court may prohibit includes the following:

(a) associating with, or otherwise contacting, stated people or a stated kind of person;

Example

corresponding with other registrable offenders

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) being in stated places or a stated kind of place;

Example

within 200m of a school between 7am and 7pm on school days

Examples

1 a house where children under 16 years old live

2 any premises that are within 200m of a child care centre

(d) engaging in stated behaviour;

Example

taking photographs of children

(e) being in stated employment, or a stated kind of employment, whether paid or voluntary, that is likely to bring the person into contact with children.

Examples

1 door-to-door sales or collecting

2 employment at a place that is within 200m of a school

(2) The Magistrates Court—

(a) may prohibit conduct absolutely or on the conditions it considers appropriate; and

(b) must state the conduct and any conditions in the order.

(3) If the Magistrates Court prohibits a person from engaging in conduct at or near a place and the person has personal property at the place, the court must, if satisfied that it is necessary to do so, ensure that the order provides for the person to recover the person’s personal property from the place.

132G Term of prohibition order

(1) A prohibition order for a person takes effect—

(a) if the person is before the Magistrates Court when the order is made—when it is made; or

(b) if the person is not before the Magistrates Court when the order is made—when a copy of the order is served on the person under section 132ZC (Giving copy of order to person not before court).

(2) The order remains in force for the term, not longer than the following, that the Magistrates Court states in the order:

(a) for a young person—

(i) 1 year; or

(ii) if the young person’s reporting period ends in less than 1 year—the young person’s reporting period;

(b) in any other case—

(i) 5 years; or

(ii) if the person’s reporting period ends in less than 5 years—the person’s reporting period.

Part 5A.3 Interim prohibition orders

132H Court may make interim prohibition order

(1) The Magistrates Court may make an order (an interim prohibition order) prohibiting a person from engaging in conduct if satisfied that—

(a) the person is a registrable offender; and

(b) having regard to the nature or pattern of conduct stated in the application to have been engaged in by the person, the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally; and

(c) it is necessary to make the interim prohibition order to reduce the risk until the application for the prohibition order is decided.

Note For the kind of conduct the Magistrates Court may prohibit, see s 132F.

(2) For subsection (1), it is not necessary for the Magistrates Court to identify a risk to a particular child, particular children, or a particular class of children.

(3) The Magistrates Court may make an interim prohibition order—

(a) only on an application for a prohibition order; and

(b) at any time during the proceeding on the application for the prohibition order to which it relates.

(4) The application for the prohibition order may be heard, and an interim prohibition order made, in the person’s absence if the Magistrates Court is satisfied that the person was served with the application under section 132Z (Service of applications).

(5) If the Magistrates Court makes an interim prohibition order for a person, the court must set another return date for the application for the prohibition order for the person.

132I Term of interim prohibition order

(1) An interim prohibition order for a person takes effect—

(a) if the person is before the Magistrates Court when the order is made—when it is made; or

(b) if the person is not before the Magistrates Court when the order is made—when a copy of the order is served on the person under section 132ZC (Giving copy of order to person not before court).

(2) The interim prohibition order remains in force until the earlier of—

(a) the end of the relevant period for the order; and

(b) 1 of the following:

(i) if the Magistrates Court makes a prohibition order for the person—the day the order takes effect;

(ii) if the Magistrates Court decides not to make a prohibition order for the person—the day the court makes the decision;

(iii) if the chief police officer discontinues the application for the prohibition order for the person—the day the application is discontinued;

(iv) if the order is revoked by the court under section 132L (Court may amend or revoke prohibition order or interim prohibition order) or set aside (however described) on appeal—the day the order is revoked or set aside;

(v) if a proceeding for a prohibition order is not started by the return date set by the court under section 132H (5) and the court does not extend the interim prohibition order under section 132J—the return date;

(vi) if the person’s reporting period ends before the relevant period ends—the day the reporting period ends.

(3) In this section:

relevant period, for an interim prohibition order, means—

(a) 28 days; or

(b) the period for which the order is extended under section 132J.

132J Extending interim prohibition order if application for prohibition order adjourned

(1) This section applies in relation to an application for a prohibition order for a person if—

(a) an interim prohibition order is in force for the person; and

(b) the Magistrates Court adjourns the application; and

(2) The Magistrates Court may, on application by the chief police officer or on its own initiative, extend the interim prohibition order for not more than 28 days.

(3) The interim prohibition order may be extended in the person’s absence if the Magistrates Court is satisfied that the person was served with the application for the prohibition order under section 132Z (Service of applications).

Part 5A.4 Amending or revoking prohibition and interim prohibition orders

132K Application to amend or revoke prohibition order or interim prohibition order

(1) This section applies to a prohibition order or interim prohibition order for a person.

(2) The person or chief police officer may apply to the Magistrates Court for an order amending or revoking the order.

Note If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.

(3) However, other than in relation to an order made in the person’s absence, the person may only make an application under subsection (2) with the Magistrates Court’s leave.

(4) The Magistrates Court may grant the leave if satisfied that—

(a) it is in the interests of justice, having regard to changes in the person’s circumstances, or circumstances affecting the person, since the prohibition or interim prohibition order was made or last amended by the court; or

Examples—person’s circumstances

the person’s accommodation, employment, health, cultural or social needs

Example—circumstances affecting person

Under a prohibition order, the person is prohibited from going within 200m of a stated child care centre, and the child care centre has closed down since the order was made.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) it is appropriate on compassionate grounds, including having regard to the person’s culturally specific needs.

Example

to attend a relative’s funeral

132L Court may amend or revoke prohibition order or interim prohibition order

(1) The Magistrates Court may, on application, make an order amending or revoking a prohibition order or interim prohibition order.

(2) In considering an order in relation to a prohibition order, the Magistrates Court must have regard to—

(a) the matters mentioned in section 132D (Court may make prohibition order) to the extent the court that made the prohibition order was required to have regard to those matters; and

(b) any changes in the person’s circumstances since the prohibition order was made or last amended by the court.

(3) In considering an order in relation to an interim prohibition order, the Magistrates Court must have regard to—

(a) the matters mentioned in section 132H (Court may make interim prohibition order) to the extent the court that made the interim prohibition order was required to have regard to those matters; and

(b) any changes in the person’s circumstances since the interim prohibition order was made or last amended by the court.

(4) An order amending a prohibition order or interim prohibition order takes effect—

(a) if the person is before the Magistrates Court when the amending order is made—when it is made; or

(b) if the person is not before the Magistrates Court when the amending order is made—when a copy of the order is served on the person under section 132ZC (Giving copy of order to person not before court).

(5) An order revoking a prohibition order or interim prohibition order takes effect when it is made.

Part 5A.5 Corresponding prohibition orders

132M Application for registration of corresponding prohibition order

(1) The chief police officer may apply to the Magistrates Court for the registration of a corresponding prohibition order for a person.

Note If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.

(2) The application must—

(a) be accompanied by a copy of the corresponding prohibition order; and

(b) if the law of the foreign jurisdiction in which the order was made required the order to be served on the person—include evidence that the corresponding prohibition order was served on the person under that law; and

Note If an application includes details in par (c), the Magistrates Court must set a return date for the hearing of the application (see s 132Y).

132N Registration of corresponding prohibition order—no amendment

(1) This section applies if—

(a) an application is made under section 132M for the registration of a corresponding prohibition order for a person; and

(b) the application does not include details of amendment sought for the corresponding protection order to operate effectively in the ACT under section 132M (2) (c).

(2) The Magistrates Court must register the corresponding prohibition order if the court is satisfied that—

(a) the person is a registrable offender; and

(b) the corresponding prohibition order is in force; and

(c) if the law of the foreign jurisdiction in which the order was made required the order to be served on the person—the order was served on the person under that law.

(3) However, if the Magistrates Court considers that the corresponding prohibition order requires amendment to operate effectively in the ACT, the court may, on its own initiative, deal with the application under section 132P (Registration of corresponding prohibition order—with amendment).

Note If the Magistrates Court considers the corresponding prohibition order requires amendment to operate effectively in the ACT, the court must set a return date for the hearing of the application (see s 132Y).

132O Notice of registration of unamended corresponding prohibition order

(1) As soon as practicable after registering a corresponding prohibition order for a person under section 132N, the Magistrates Court must give the chief police officer notice (a registration notice) that the order has been registered.

(2) The chief police officer must personally serve a copy of the registration notice on the person.

(3) For a registered corresponding prohibition order for a young person, the chief police officer must also personally serve a copy of the registration notice on—

(a) if the young person lives with a person with parental responsibility for the young person—the person with parental responsibility; and

(b) if the CYP director-general has long-term care responsibility or daily care responsibility (alone or shared with someone else) for the young person—the CYP director-general.

(4) The police officer serving the copy of the registration notice must, as far as practicable in the circumstances, explain to the person—

(a) the purpose, terms and effect of the notice; and

(b) any consequences that may follow if the person against whom the corresponding prohibition order is made fails to comply with the registered corresponding prohibition order.

(5) The police officer must explain the matters mentioned in subsection (4) in language likely to be readily understood by the person.

(6) A failure to comply with subsection (4) or (5) does not affect the validity of the registered corresponding prohibition order.

132P Registration of corresponding prohibition order—with amendment

(1) This section applies if—

(a) an application is made under section 132M (Application for registration of corresponding prohibition order) for the registration of a corresponding prohibition order for a person; and

(b) either—

(i) the application includes details of amendments sought for the corresponding protection order to operate effectively in the ACT under section 132M (2) (c); or

(ii) the Magistrates Court decides, under section 132N (3) (Registration of corresponding prohibition order—no amendment) to deal with the application under this section.

(2) The application may be heard in the person’s absence if the Magistrates Court is satisfied that the person was served with the application under section 132Z (Service of applications).

(3) The Magistrates Court may make an order amending the corresponding prohibition order for its registration in a way the court considers is necessary or desirable for its effective operation in the ACT.

(4) In considering an order under subsection (3), the Magistrates Court must have regard to—

(a) anything that must be considered under section 132D (Court may make prohibition order) on an application for a prohibition order; and

(b) any changes in the person’s circumstances since the corresponding prohibition order was made.

(5) The Magistrates Court must register the corresponding prohibition order as amended under this section if the court is satisfied that—

(a) the person is a registrable offender; and

(b) the corresponding prohibition order is in force; and

(c) if the law of the foreign jurisdiction in which the order was made required the corresponding prohibition order to be served on the person—the order was served on the person under that law.

132Q Term of registered corresponding prohibition order

(1) Registration of a corresponding prohibition order for a person under section 132N (Registration of corresponding prohibition order—no amendment) takes effect when the registration notice for the order is served on the person.

(2) Registration of a corresponding prohibition order for a person under section 132P takes effect—

(a) if the person is before the Magistrates Court when the corresponding prohibition order as amended is registered—when it is registered; or

(b) if the person is not before the Magistrates Court when the corresponding prohibition order as amended is registered—when a copy of the registered corresponding prohibition order is served on the person under section 132ZC (Giving copy of order to person not before court).

(3) A registered corresponding prohibition order is registered for the lesser of—

(a) 5 years; and

(b) the period during which the corresponding prohibition order, as originally made, is in force.

(4) However, if the person is a young person, the registered corresponding prohibition order is registered for the lesser of—

(a) 3 months; and

(b) the period during which the corresponding prohibition order, as originally made, is in force.

132R Application to amend or cancel registration of registered corresponding prohibition order

(1) A person against whom a registered corresponding prohibition order is in force, or the chief police officer, may apply to the Magistrates Court for an order amending or cancelling the registration of the order.

Note If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.

(2) However, other than in relation to an order made in the person’s absence, the person may only make an application under subsection (1) with the court’s leave.

(3) The Magistrates Court may grant the leave if satisfied that—

(a) it is in the interests of justice, having regard to changes in the person’s circumstances, or circumstances affecting the person, since the corresponding prohibition order was made or last amended by the court; or

Examples—person’s circumstances

the person’s accommodation, employment, health, cultural or social needs

Example—circumstances affecting person

Under a corresponding prohibition order, the person is prohibited from going within 200m of a stated child care centre, and the child care centre has closed down since the order was made.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) it is appropriate on compassionate grounds, including having regard to the person’s culturally specific needs.

Example

to attend a relative’s funeral

132S Court may amend or cancel registration of registered corresponding prohibition order

(1) The Magistrates Court may, on application, make an order amending or cancelling the registration of a registered corresponding prohibition order.

(2) In considering an order, the Magistrates Court must have regard to—

(a) the matters mentioned in section 132D (Court may make prohibition order); and

(b) any changes in the person’s circumstances since the registered corresponding prohibition order was made or last amended by the court.

(3) An order amending a registered corresponding prohibition order takes effect—

(a) if the person is before the Magistrates Court when the amending order is made—when it is made; or

(4) An order cancelling the registration of a registered corresponding prohibition order takes effect when it is made.

Part 5A.6 People with legal disabilities

132T Definitions—pt 5A.6

In this part:

person with a legal disability means—

(a) a young person; or

(b) a person with a mental disability.

person with a mental disability means a person who is not legally competent to be a party to a proceeding on an application for an order under this chapter because of a mental or intellectual disability, and includes such a person even if a disability guardian under the Guardianship and Management of Property Act 1991 has been appointed.

132U Appointing litigation guardian for person with legal disability

(1) This section applies in relation to a proceeding on an application for an order for a person (the relevant person) under this chapter if the Magistrates Court considers that the person is or may be a person with a legal disability.

(2) The following people may be appointed as a litigation guardian for the relevant person:

(a) an individual who is not a person with a legal disability;

(b) the public advocate.

(3) An individual is appointed under subsection (2) by filing with the Magistrates Court a statement—

(a) about whether, to the best of the individual’s knowledge, the relevant person has a guardian or manager, other than the individual; and

(b) to the effect that the individual—

(i) has no interest in the proceeding that is adverse to the interests of the relevant person; and

(ii) agrees to be appointed.

(4) However, if the relevant person has a guardian or manager, other than the individual, the individual may be appointed as the relevant person’s litigation guardian only with the Magistrates Court’s leave.

(5) For this section:

guardian—see the Guardianship and Management of Property Act 1991, dictionary.

manager—see the Guardianship and Management of Property Act 1991, dictionary.

Note Section 132X sets out what happens if a party with a legal disability does not have a representative, or an appropriate or suitable representative.

132V Functions of litigation guardian

(1) This section applies if a litigation guardian has been appointed in a proceeding on an application for an order for a person under this chapter.

(2) Anything that the person is allowed to do under this chapter may be done by the person’s litigation guardian.

(3) Anything that the person is required to do under this chapter must be done by the person’s litigation guardian.

Note The litigation guardian may not give the person’s evidence for the person (see Evidence Act 1995 (Cwlth), pt 3.2).

(4) The person’s litigation guardian must do everything that is necessary in the proceeding to protect the person’s interests.

132W Removal of litigation guardian

(1) The Magistrates Court may, on application or its own initiative—

(a) remove the litigation guardian of a person with a legal disability in a proceeding on an application for an order for the person under this chapter; and

(b) order that the proceeding be stayed until someone else has been appointed as litigation guardian in place of the person removed.

(2) An applicant for an order under subsection (1) must, unless the Magistrates Court otherwise directs, serve notice of the application on the person whose removal is sought and on the person with a legal disability.

(3) An application under subsection (1) may be made by a party to the proceeding or anyone else.

132X Representation of parties with legal disability

(1) This section applies if a party to a proceeding on an application for an order for a person under this chapter—

(a) is a person with a legal disability; and

(b) does not have a representative, or an appropriate or suitable representative.

(2) The Magistrates Court may, on application or its own initiative—

(a) adjourn the proceeding so the party can get representation; and

(b) give the party the information necessary to allow the party to get representation; and

Part 5A.7 Other provisions about orders prohibiting offender conduct

132Y Court sets return date

(1) This section applies to an application for an order for a person under this chapter if a hearing will be held for the application.

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(2) On receiving the application, the Magistrates Court must—

(a) enter the application into the court’s record; and

(b) set a return date for the application; and

(3) The return date must be—

(a) not later than 2 days after the day the application is made; or

(b) not later than 10 days after the day the application is made if—

(i) the chief police officer is not seeking an interim prohibition order on the application; and

(ii) the Magistrates Court is satisfied that the longer time is necessary to allow the person to be served with the application.

132Z Service of applications

(1) This section applies to an application for an order for a person under this chapter if a hearing will be held for the application.

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(2) A copy of the application must be—

(a) personally served on the person; and

(b) served on anyone else the court directs.

Note For how orders may be served under par (b), see the Legislation Act, pt 19.5.

(3) If the application relates to an order for a young person, the application must also be personally served on—

(a) if the young person lives with a person with parental responsibility for the young person—the person with parental responsibility; and

(b) if the CYP director-general has long-term care responsibility or daily care responsibility (alone or shared with someone else) for the young person—the CYP director-general.

(4) The application must be served as soon as practicable after—

(a) if the return date set under section 132Y is not the day the application is made—the day the application is made; or

(b) if the return date set under section 132Y is the day the application is made—the day the application has gone before the Magistrates Court and the court has set a further date for the application’s return before the court.

132ZA If personal service impractical or impossible

(1) This section applies if—

(a) an application, order or other document must be personally served on a person under this chapter; and

(b) personal service of the application, order or document is not reasonably practicable.

(2) The Magistrates Court may order that the application, order or document be served in the way, stated in the order, that the court considers is likely to bring the application, order or document to the attention of the person required to be served.

132ZB Court may issue warrant for person’s arrest

(1) This section applies if—

(a) an application for an order for a person under this chapter has been made to the Magistrates Court; and

(b) a hearing will be held for the application; and

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(c) the court is satisfied that the person has been served with a copy of the application under section 132Z (Service of applications).

(2) If the Magistrates Court considers it appropriate, the court may—

(a) issue a warrant for the person to be arrested and brought before the court; and

(b) adjourn the hearing of the application until the person is brought before the court.

132ZC Giving copy of order to person not before court

(1) This section applies if—

(a) the Magistrates Court makes an order for a person under this chapter on hearing the application for the order; and

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(b) the person is not before the court when the order is made.

(2) A police officer must personally serve on the person—

(a) a copy of the order; and

(b) if the order is a prohibition order or interim prohibition order—a notice stating that, if a law of a foreign jurisdiction provides for registration of the order in the jurisdiction, the order may be registered in the jurisdiction.

(3) A failure to comply with this section in relation to an order revoking an order, or cancelling the registration of a registered corresponding prohibition order, does not affect the validity of the order.

132ZD Giving copy of order for young person etc

(1) This section applies if—

(a) the Magistrates Court makes an order for a young person under this chapter on hearing the application for the order; and

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(b) the order is likely to result in the young person needing to change where the person lives.

(2) The chief police officer must, as soon as practicable after the Magistrates Court makes the order, serve a copy of it on—

(a) if the young person lives with a person with parental responsibility for the young person—the person with parental responsibility; and

(b) if the CYP director-general has long-term care responsibility or daily care responsibility (alone or shared with someone else) for the young person—the CYP director-general.

(3) A failure to comply with this section does not affect the validity of the order.

132ZE Explaining orders if person before court

(1) This section applies if—

(a) the Magistrates Court makes an order for a person under this chapter on hearing the application for the order; and

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(b) the person is before the court when the order is made.

(2) For an order, other than an order revoking or cancelling an order, the Magistrates Court must explain to the person—

(a) the purpose, terms and effect of the order; and

(b) any consequences that may follow if the person fails to comply with the order; and

(c) that, if a law of a foreign jurisdiction provides for registration of the order in the jurisdiction, the order may be registered in the jurisdiction.

(3) For an order revoking or cancelling an order, the Magistrates Court must explain to the person the effect of the order.

(4) The Magistrates Court must explain the matters mentioned in subsection (2) or (3) in language likely to be readily understood by the person.

(5) A failure to comply with this section does not affect the validity of the order.

132ZF Explaining orders if person not before court

(1) This section applies if—

(a) the Magistrates Court makes an order for a person under this chapter on hearing the application for the order; and

Note A hearing is not required to register a corresponding prohibition order without amendment (see s 132N).

(b) the person is not before the court when the order is made; and

(i) the person; or

(ii) if the person is a young person—the person with parental responsibility for the young person.

(2) For an order, other than an order revoking or cancelling an order, the police officer serving the copy of the order must, as far as is practicable in the circumstances, explain to the person—

(a) the purpose, terms and effect of the order; and

(b) any consequences that may follow if the person against whom the order is made fails to comply with the order; and

(c) that, if a law of a foreign jurisdiction provides for registration of the order in the jurisdiction, the order may be registered in the jurisdiction.

(3) For an order revoking or cancelling an order, the police officer must, as far as is practicable in the circumstances, explain to the person the effect of the order.

(4) The police officer must explain the matters mentioned in subsection (2) or (3) in language likely to be readily understood by the person.

(5) A failure to comply with this section does not affect the validity of the order.

132ZG Proceedings for orders to be closed to public

(1) This section applies in relation to a proceeding on an application for an order for a person (the relevant person) under this chapter.

(2) The application must be heard in the absence of the public.

(3) However, the Magistrates Court may, if it considers it appropriate, order that a person other than the relevant person, chief police officer or lawyer representing the relevant person or chief police officer may be present.

Part 5A.8 Offences

132ZH Offences—prohibition of publication of identity

(1) A person commits an offence if the person—

(a) publishes protected identity information about a protected person in relation to a proceeding on an application for an order for the person under this chapter; and

(b) intentionally publishes the information.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A person commits an offence if the person—

(a) publishes protected identity information about a protected person in relation to a proceeding on an application for an order for the person under this chapter; and

(b) is reckless about whether the information is protected identity information about the protected person.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) It is a defence to a prosecution for an offence against this section if the protected person—

(a) is not a young person; and

(b) consented to the publication of the protected identity information about himself or herself before the publication happened.

Note The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code, s 59).

(4) In this section:

protected identity information, about a protected person, means the following:

(a) the person’s name;

(b) information about the private, business or official address, email address or telephone number of the person, or that would allow those contact details to be worked out;

protected person, in relation to a proceeding on an application for an order for a person under this chapter, means—

(a) the person; or

(b) a victim of a registrable offence committed by the person; or

(c) a person mentioned in the proceeding as a person at risk (however described) because of conduct that is proposed to be, or is, prohibited under the order.

publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.

Note The Criminal Code includes an offence for publishing identifying information about children or young people the subject of a childrens proceeding (see s 712A).

132ZI Offence—contravention of prohibition order etc

(1) A person commits an offence if––

(a) a prohibition order or interim prohibition order is in force for a person; and

(b) the person contravenes the order; and

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) Subsection (1) does not apply to a person if the person has a reasonable excuse for contravening the order.

Note 1 The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58).

Note 2 For the matters relevant to the defence of reasonable excuse under this section, see s 132ZK.

132ZJ Offence—contravention of registered corresponding prohibition order

(1) A person commits an offence if––

(a) a registered corresponding prohibition order is in force for a person; and

(b) the person contravenes the registered corresponding prohibition order; and

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) Subsection (1) does not apply to a person if the person has a reasonable excuse for contravening the registered corresponding prohibition order.

Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58).

132ZK Matters relevant to reasonable excuse defence

In deciding whether a person has a reasonable excuse for contravening a prohibition order or interim prohibition order under section 132ZI, or a registered corresponding prohibition order under section 132ZJ, the court must have regard to the following:

(a) the person’s age;

(b) whether the person had, at the time of the contravention, a disability that affected the person’s ability to understand, or to comply with, the order;

(c) whether the form of notice given to the person about the order was adequate to tell the person about the person’s obligations under the order, having regard to the person’s circumstances;

(d) any other matter the court considers appropriate.

Part 5A.9 Obtaining and disclosing particular information

132ZL Meaning of government agency—pt 5A.9

In this part:

government agency means—

(a) an administrative unit; or

(b) a territory instrumentality; or

132ZM Chief police officer may require information about person

(1) This section applies if the chief police officer is considering making an application for an order for a person that may be made under this chapter.

(2) The chief police officer may direct a government agency in writing to give the chief police officer any information—

(a) held by the government agency; and

(b) that the chief police officer considers to be reasonably necessary to assess whether the person poses a risk to the lives or sexual safety of 1 or more children, or of children generally.

(3) The direction must state the day by which the information must be given.

(4) The government agency must give the chief police officer the information sought in the direction.

Note The Legislation Act, s 171 deals with the application of client legal privilege.

(5) However, the government agency need not give personal health information in a health record under the Health Records (Privacy and Access) Act 1997.

Note See the Health (Privacy and Access) Act 1997, privacy principle 10 for the limits on disclosure of personal health information. In particular, a record keeper may disclose a personal health record if the record keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent risk to the life or physical, mental or emotional health of someone.

132ZN Chief police officer may give information about order to prescribed entities

(1) The chief police officer may give a prescribed entity the following information about an order for a person under this chapter:

(a) the person’s name and date of birth;

(b) the term of the order;

(d) anything else the chief police officer reasonably considers is necessary to allow the prescribed entity to identify the person to ensure the safety of—

(i) a child or children in the prescribed entity’s care; or

(ii) the person.

Example

a photograph of the person

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) If the chief police officer gives information under this section about an order to a prescribed entity and the order is later amended or revoked, or registration cancelled, the chief police officer must give the prescribed entity written notice of the amendment, revocation or cancellation as soon as practicable.

(3) In this section:

prescribed entity means an entity prescribed by regulation.

132ZO Chief police officer may give information about order to person with parental responsibility for child at risk

(1) The chief police officer may give information about an order for a person under this chapter to a person who has parental responsibility for a child or children protected by the order.

(2) However, the chief police officer must only give information under subsection (1) if the officer considers on reasonable grounds that it is necessary and appropriate to reduce a risk to the lives or sexual safety of the child or children.

132ZP CYP director-general to be given information about young person

(1) This section applies if the CYP director-general is asked for a CYP director-general’s report for a young person.

(2) The CYP director-general may ask a government agency in writing to give the CYP director-general any information—

(a) held by the government agency; and

(b) relevant for the report.

(3) The request must state the day by which the information is to be given.

(4) The government agency must give the CYP director-general the information requested.

Note The Legislation Act, s 171 deals with the application of client legal privilege.

(5) However, the government agency need not give personal health information in a health record under the Health Records (Privacy and Access) Act 1997.

132ZQ Certain material may be kept

(1) This section applies if the following (the relevant material) has been obtained by the chief police officer in relation to an order for a person under this chapter:

(a) copies of documents;

(b) fingerprints;

(2) The chief police officer may, during the person’s reporting period, keep the relevant material for law enforcement, crime prevention or child protection purposes.

(3) At the end of the person’s reporting period, the chief police officer must ensure that any item of relevant information is destroyed.

Part 5A.10 Appeals to Supreme Court

132ZR Meaning of appealable decision—pt 5A.10

In this part:

appealable decision means a decision of the Magistrates Court to—

(a) make or refuse to make a prohibition order; or

(b) make or refuse to make an order amending or revoking a prohibition order; or

(d) make or refuse to make an order amending or cancelling the registration of a registered corresponding prohibition order.

132ZS Appeals to Supreme Court

(1) A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.

(2) The person must file a notice of appeal (the notice of appeal) with the Supreme Court not later than 21 days after—

(a) if the appealable decision is the registration of a corresponding prohibition order under section 132N—the day the registration notice is served on the person against whom the corresponding prohibition order is made; or

(b) if the appealable decision is another order for a person under this chapter and the person was not before the court when the order was made—the day the order was served on the person against whom the order was made; or

(3) However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so.

Note See the Court Procedures Rules 2006, pt 5.3 (Appeals to Supreme Court).

132ZT Powers of Supreme Court on appeal

On an appeal, the Supreme Court may—

(a) confirm, reverse or amend the appealable decision appealed from; or

(b) make the decision or order that, in all the circumstances, it considers appropriate; or

(d) set aside the appealable decision appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.

20 New section 133B

insert

133B Offence—failure to tell chief police officer about application to change offender’s name

(1) A person commits an offence if the person—

(a) applies under a relevant law to change the name of a registrable offender; and

(b) fails to tell the chief police officer in writing about the application not later than 2 days after the day the person makes the application.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) In this section:

relevant law means—

(a) the Births, Deaths and Marriages Registration Act 1997, part 3 (Change of name); or

(b) a law of a State or external territory that corresponds (or substantially corresponds) to the Births, Deaths and Marriages Registration Act 1997, part 3.

21 Schedule 1, part 1.2, item 10

substitute

any offence under a law of a foreign jurisdiction that, if it had been committed in the ACT, would have been a class 1 offence

22 Schedule 2, part 2.2, item 36

substitute

any offence under a law of a foreign jurisdiction that, if it had been committed in the ACT, would have been a class 2 offence

23 Dictionary, note 2

insert

• administrative unit

• external territory

• statutory office-holder

• territory instrumentality

24 Dictionary, new definitions

insert

appealable decision, for part 5A.10 (Appeals to Supreme Court)—see section 132ZR.

application, for an order for a person, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

conduct, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

corresponding prohibition order, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

CYP director-general, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

CYP director-general’s report, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

daily care responsibility, for chapter 5A (Orders prohibiting offender conduct)—see the Children and Young People Act 2008, section 19.

government agency, for part 5A.9 (Obtaining and disclosing particular information)—see section 132ZL.

interim prohibition order, for chapter 5A (Orders prohibiting offender conduct)—see section 132H (Court may make interim prohibition order).

long-term care responsibility, for chapter 5A (Orders prohibiting offender conduct)—see the Children and Young People Act 2008, section 20.

make, an order for a person under this chapter, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

parental responsibility, for a child or young person, for chapter 5A (Orders prohibiting offender conduct)—see the Children and Young People Act 2008, section 15.

person with a legal disability, for part 5A.6 (People with legal disabilities)—see section 132T.

person with a mental disability, for part 5A.6 (People with legal disabilities)—see section 132T.

prohibition order, for chapter 5A (Orders prohibiting offender conduct)—see section 132D (Court may make prohibition order).

registered corresponding prohibition order, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

registration notice, for chapter 5A (Orders prohibiting offender conduct)—see section 132O (Notice of registration of unamended corresponding prohibition order).

return date, for an application, for chapter 5A (Orders prohibiting offender conduct)—see section 132A.

25 Further amendments, penalties

omit

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

substitute

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

• sections 22 to 25

• sections 28 to 30

• section 34

• section 37

• section 42

• sections 45 to 49

• sections 54 to 56

• sections 70 and 71

• section 77

26 Court Procedures Act 2004, new section 41 (2) (ba)

insert

(ba) the Crimes (Child Sex Offenders) Act 2005, section 132ZG (Proceedings for orders to be closed to public); and

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 16 February 2012.

2 Notification

Notified under the Legislation Act on 2012.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au.

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