2014
2014
2014-10-24
act
government
publicspecial
act.reprint
allinforce
2014-08-06
2014-08-06
0
2014-10-24
act-1987-015
2014
none
act-2014-054
4628b97d-9d6b-4292-9b6e-b160ba07bfca
31598832-e32a-42d4-b3e3-1ef791f1988e
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 24.10.2014.
An Act to make miscellaneous amendments to the
Child Protection (Offenders Registration) Act
2000 as a result of the statutory review of that Act; and
for other purposes.
1Name of
Act
This Act is the Child Protection
(Offenders Registration) Amendment (Statutory Review) Act
2014.
2Commencement
This Act commences on the date of assent to this
Act.
Schedule 1Amendment of Child Protection (Offenders Registration) Act
2000 No 42
[1]Section
2A
Insert after section 2:
2AObjects of
Act
The objects of this Act are:
(a)
to protect children from serious harm (including
physical and psychological harm caused by physical or sexual assault),
and
(b)
to ensure the early detection of offences by
recidivist child sex offenders, and
(c)
to monitor persons who are registrable persons,
and
(d)
to ensure that registrable persons comply with
this Act.
[2]Section 3
Definitions
Renumber paragraphs (a) and (a1) of the
definition of Class 2
offence in section 3 (1) as paragraphs (a1) and (a3)
respectively.
[3]Section 3 (1), definition of
“Class 2 offence”
Insert before paragraph (a1) (as renumbered by
item [2]):
(a)
the offence of manslaughter (other than
manslaughter as a result of a motor vehicle accident), where the victim of the
manslaughter is a child, or
[4]Section 3 (1), definition of
“Class 2 offence”
Insert after paragraph (a1) (as renumbered by
item [2]):
(a2)
an offence under section 33 (1) of the Crimes Act 1900, where the person
against whom the offence is committed is a child under 10 years of age and the
person committing the offence is not a child,
or
[5]Section 3 (1), definition of
“Class 2 offence”
Insert after paragraph (c):
(c1)
an offence under section 87 of the Crimes Act 1900, where the person
committing the offence has never had parental responsibility (within the
meaning of that section) for the child who is taken or detained,
or
[6]Section 3 (1), definition of
“Class 2 offence”
Omit paragraph (e).
[7]Section 3 (1), definition of
“Class 2 offence”
Omit “section 272.9,” from paragraph
(g). Insert instead “section 271.4, 271.7,
272.9,”.
[8]Section 3 (1), definition of
“Class 2 offence”
Omit “272.14 or 272.15” from
paragraph (g).
Insert instead “272.11, 272.12, 272.13,
272.14, 272.15, 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22,
471.24, 471.25, 471.26, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A,
474.25B, 474.26, 474.27 or 474.27A”.
[9]Section 3 (1), definition of
“corresponding registrable person”
Omit “section 3C”. Insert instead
“section 19BB”.
[10]Section 3 (1), definition of
“government custody”
Omit “order of detention under section 27
or 39” from paragraph (a).
Insert instead “order under section 24 (1)
(b), 27 or 39”.
[11]Section 3
(1)
Omit the definitions of forensic patient, relevant
personal information and sentence.
Insert in alphabetical order:
child
abuse material has the same meaning as it has in section
91FB of the Crimes Act
1900.
forensic
patient means a person who is subject to:
(a)
an order of detention under section 27 or 39 of
the Mental Health (Forensic Provisions) Act
1990, or
(b)
an order under section 24 (1) (b) of that Act
that causes the person to be kept in custody.
interstate Registrar means an
authority responsible under a law of another State or a Territory for the
registration of births, deaths and marriages.
NSW
Registrar means the Registrar within the meaning of the
Births, Deaths and Marriages Registration Act
1995.
relevant
personal information—see section 9.
sentence includes the
following:
(a)
any order under section 24 (1) (b) of the Mental Health (Forensic Provisions) Act
1990 that causes a person to be kept in custody or any
order of detention under section 27 or 39 of that Act,
(b)
any order under section 33 (1) of the Children (Criminal Proceedings) Act
1987,
(c)
any action taken under section 10A of the Crimes (Sentencing Procedure) Act
1999,
(d)
any undertaking under section 23 of the Pre-Trial Diversion of Offenders Act
1985,
(e)
any sentence or equivalent order or undertaking
imposed under the laws of a foreign jurisdiction.
supervised sentence means:
(a)
a sentence of imprisonment the subject of an
intensive correction order or home detention order, or
(b)
a community service order, or
(c)
a good behaviour bond under which the person is
required to submit to strict supervision, or
(d)
an order of detention under section 27 or 39 of
the Mental Health (Forensic Provisions) Act
1990, other than an order that, as originally made,
requires the person to be kept in strict government custody,
or
(e)
an order under section 24 (1) (b) of the Mental Health (Forensic Provisions) Act
1990 that causes a person to be kept in custody, other
than an order that, as originally made, requires the person to be kept in
strict government custody.
[12]Section 3A Registrable
persons
Omit “section 578B or 578C (2A)” from
section 3A (2) (c) (ii).
Insert instead “section
91H”.
[13]Section 3A (2) (c)
(ii)
Omit “possessing or publishing child
pornography”.
Insert instead “producing, disseminating or
possessing child abuse material”.
[14]Section 3A (2) (c)
(iii)
Omit “section 21G (1) of the Summary Offences Act 1988
or”.
[15]Section 3A (2)
(c)
Insert at the end of the paragraph:
Note—
Savings and transitional provisions in Schedule 2
provide that references to certain offences in this paragraph are taken to
include references to certain earlier offences under provisions that have
since been repealed.
[16]Section 3C Corresponding
registrable persons
Omit the section.
[17]Section 3E Orders made after
conclusion of criminal proceedings
Omit “21 days” from section 3E (3).
Insert instead “60 days”.
[18]Section 3F Orders made in
relation to foreign offences and old offences
Insert after section 3F (1) (b):
(c)
a person who has (at any time) been sentenced by
a court for an offence referred to in paragraph (a), (a2) or (c1) of the
definition of Class 2
offence in section 3 (1), of which the person was found
guilty before the commencement of this paragraph, unless the person was a
child at the time the offence was committed.
[19]Section 3H Risk to sexual
safety of children—meaning
Insert after section 3H (2):
(3)
A court is to take the following into account in
determining whether a person poses a risk to the lives or sexual safety of one
or more children, or of children generally:
(a)
the seriousness of each registrable offence
committed by the person,
(b)
the age of the person at the time each of those
offences was committed,
(c)
the age of each victim of each of those offences
at the time that the offence was committed,
(d)
the seriousness of any other offences committed
by the person,
(e)
the impact on the person if the order being
sought is made compared with the likelihood that the person may commit a
registrable offence,
(f)
any other matter that the court considers to be
relevant.
[20]Section 5 Notices to be given
when registrable person commences supervised sentence for registrable
offence
Omit section 5 (3).
[21]Section 6 Notices to be given
when registrable person ceases to be in custody or under supervision of
supervising authority
Omit “(within the meaning of section
5)” from section 6 (1) (c).
[22]Section 6 (1)
(g)
Insert at the end of section 6 (1) (f):
or
(g)
becomes subject to an order under section 49 of
the Mental Health (Forensic Provisions) Act
1990 that allows the person to be absent from a mental
health facility, correctional centre or other place on a regular and
unsupervised basis,
[23]Section 6 (3) and
(4)
Omit section 6 (3). Insert instead:
(3)
Notice is not required to be given under
subsection (2) if the person ceases to be in government custody because of an
order under section 49 of the Mental Health
(Forensic Provisions) Act 1990 that allows the person to
be absent from a mental health facility, correctional centre or other place on
a regular and unsupervised basis.
(4)
The regulations may make provision for or with
respect to the following:
(a)
what constitutes absence on a regular and
unsupervised basis,
(b)
the manner and form in which written notice must
be given under this section.
[24]Section 9 Relevant personal
information to be reported
Omit section 9 (1) (e). Insert instead:
(e)
the name and date of birth of each child who
generally resides in the same household as that in which the person generally
resides,
[25]Section 9 (1)
(h)
Insert “or hired” after
“owned”.
[26]Section 9 (1)
(m)
Insert “including any phone numbers used,
or intended to be used, by the person” after “the
person”.
[27]Section 9
(1A)–(1E)
Insert after section 9 (1):
(1A)
For the purposes of this Act, the relevant
personal information to be reported by a registrable person
also includes the name, date of birth and address of each child (or other
means of contacting each child) with whom the person has had contact, but only
if the registrable person was:
(a)
supervising or caring for the child,
or
(b)
visiting or staying at a household where the
child is present, or
(c)
exchanging contact details with the child
(including providing the person’s contact details to the child),
or
(d)
attempting to befriend the
child.
(1B)
For the purposes of subsection (1A), contact with a child, includes the
registrable person having:
(a)
physical contact with the child (including by
touching the child or being in very close physical proximity to the child),
or
(b)
oral communication with the child (including
communication that takes place in person, by telephone or by electronic means
such as via the internet), or
(c)
written communication with the child (including
communication that takes place by mail, by telephone or by electronic means
such as email).
(1C)
The sentencing court (being the court
that sentences a person in respect of a registrable offence or that imposes a
child protection registration order on the person) may order that the
person’s reporting obligations in respect of contacts occurring before
the person reaches 18 years of age be modified as set out in the order,
if:
(a)
the person is under 18 years of age,
and
(b)
the court is of the view that the modification is
appropriate in the circumstances taking into account the educational and other
needs of the person.
(1D)
A person who, because of a modification under
subsection (1C), was not required to report a contact occurring before the
person was 18 years of age is not subsequently required to report that contact
unless the person’s reporting obligations are further modified so as to
require the contact to be reported.
(1E)
Any such further modification may be made by the
sentencing court, the Local Court or the Children’s Court on the
application of the Commissioner of Police.
[28]Section 9 (2)
(c)
Omit the paragraph.
[29]Section 9A When initial report
must be made
Omit the matter relating to a corresponding
registrable person from Columns 1 and 2 of the Table to section 9A
(1).
[30]Section 9B When new initial
report must be made by person whose previous reporting obligations have
ceased
Omit section 9B (2).
[31]Section 11 Registrable person
must report changes to relevant personal information
Omit “14 days” wherever occurring in
section 11 (1) (b) and (3). Insert instead “7
days”.
[32]Section 11
(2)
Omit “, or as to when the registrable
person has unsupervised contact with a child”.
[33]Section 11 (4)
(a)
Omit “28 days”. Insert instead
“7 days”.
[34]Section 11C Registrable person
to report return to New South Wales or decision not to
leave
Omit “14 days” wherever occurring in
section 11C (2) and (3). Insert instead “7
days”.
[35]Section 14D Reporting period
for corresponding registrable persons
Omit the section.
[36]Section 15 Suspension and
extension of reporting obligations
Insert after section 15 (3):
(4)
The period for which a registrable person’s
reporting obligations continue is extended by any countable period during
which the person is in breach of the person’s reporting
obligations.
(5)
For the purposes of subsection (4), a countable
period occurs when a person fails to make an initial report
under Division 2, or an annual report under section 10, within one month after
the day on which the report was due to be made. In such a case the countable
period:
(a)
commences one month after the report was due to
be made, and
(b)
finishes when the person reports the
person’s relevant personal information to the Commissioner of Police,
and
(c)
does not include any period during which the
person’s reporting obligations are suspended.
[37]Section 16A Cessation of
order
Omit “section 14D” from section 16A
(1) (c). Insert instead “section 19BC”.
[38]Part 3, Division
10
Insert after Division 9:
Division 10Corresponding registrable
persons—special provisions
19BBCorresponding registrable
persons
(1)
A corresponding registrable person is
a person who:
(a)
has at any time been in a foreign jurisdiction
and at that time was required to report to the corresponding registrar,
and
(b)
would, if the person were currently in that
jurisdiction, still be required to report to that corresponding
registrar.
(2)
Subject to the regulations, a person is a
corresponding registrable person under subsection (1) even if the offence in
respect of which he or she is required to report in the foreign jurisdiction
is not a registrable offence for the purposes of this
Act.
(3)
A corresponding registrable person
includes a person who:
(a)
has been found guilty of an offence under a law
of a foreign jurisdiction that is a Class 1 offence or a Class 2 offence for
the purposes of this Act, and
(b)
as a consequence of having been found guilty of
that offence has been required to report in that jurisdiction information
about himself or herself to a person or body exercising functions
substantially similar to those of the Commissioner of Police under this Act,
and to keep that information current for a particular period,
and
(c)
would, if the person were currently in that
jurisdiction, still be required to report that
information.
(4)
The regulations may exclude any person or class
of persons from being a corresponding registrable
person.
19BCReporting period for
corresponding registrable person
The reporting period for a corresponding
registrable person is the whole period during which the person is a
corresponding registrable person.
19BDInitial
report
(1)
A person who becomes a corresponding registrable
person while the person is in New South Wales must report the person’s
relevant personal information to the Commissioner of Police within 7 days (not
counting any days spent in government custody) after becoming a corresponding
registrable person if:
(a)
the person has not previously reported the
person’s relevant personal information to the Commissioner of Police,
or
(b)
the person is a registrable person whose
reporting period has expired.
(2)
Despite subsection (1), a corresponding
registrable person who is proposing to leave New South Wales within those 7
days must report the person’s relevant personal information to the
Commissioner of Police before leaving New South Wales.
[39]Section 19D
Definitions
Omit the section.
[40]Section 19E Applications for
change of name by or on behalf of registrable person
Insert “without reasonable excuse”
after “must not” wherever occurring.
[41]Section
19E
Omit “5 penalty units” wherever
occurring.
Insert instead “500 penalty units or
imprisonment for 5 years, or both”.
[42]Section 19F Approval by
Commissioner of Police
Insert before section 19F (1):
(1A)
This section applies to an application by or on
behalf of a registrable person for registration of a change of the
person’s name in respect of which the written approval of the
Commissioner of Police is required under section 19E.
[43]Section
19F
Omit “a change of name application”
wherever occurring.
Insert instead “an
application”.
[44]Section 20A Application of
reporting obligations to persons subject to child protection prohibition
orders
Omit “a child protection prohibition
order” from section 20A (1).
Insert instead “a prohibition order (within
the meaning of the Child Protection (Offenders
Prohibition Orders) Act
2004)”.
[45]Section 20A
(5)
Omit the subsection.
[46]Section 21 Proceedings for
offences
Omit “or 18” wherever occurring.
Insert instead “, 18 or 19E”.
[47]Schedule
1
Omit the Schedule. Insert instead:
Schedule 1Scheduled
agencies
(Section 19BA)
1
NSW Police Force.
2
Each of the following parts of the Department of
Justice:
(a)
Corrective Services NSW, being that part of the
Department comprising the group of staff who are principally involved in the
administration of the Crimes (Administration of Sentences)
Act 1999,
(b)
Juvenile Justice NSW, being that part of the
Department comprising the group of staff who are principally involved in the
administration of the following Acts:
(i)
the Children
(Community Service Orders) Act 1987,
(ii)
the Children
(Detention Centres) Act 1987,
(iii)
the Children
(Interstate Transfer of Offenders) Act
1988,
and including the group of staff within the Department
who are known as the Juvenile Justice Branch.
3
Department of Education and
Communities.
4
Each of the following parts of the Department of
Family and Community Services:
(a)
Ageing, Disability and Home Care, being that part
of the Department comprising the group of staff who are principally involved
in the administration of the following Acts:
(i)
the Disability
Services Act 1993,
(ii)
the Home Care Service
Act 1988,
and including the group of staff within the Department
who are known as Ageing, Disability and Home Care,
(b)
Community Services, being that part of the
Department comprising the group of staff who are principally involved in the
administration of the following Acts:
(i)
the Adoption Act
2000,
(ii)
the Children and
Young Persons (Care and Protection) Act
1998,
and including the group of staff within the Department
who are known as Community Services,
(c)
Housing NSW, being that part of the Department
comprising the group of staff who are principally involved in the
administration of the Housing Act 2001
and including the group of staff within the Department who are known as
Housing NSW.
5
Ministry of Health.
6
Office of the Children’s
Guardian.
7
Each local health district constituted under the
Health Services Act
1997.
8
The following statutory health corporations
constituted under the Health Services Act
1997:
(a)
Justice Health and Forensic Mental Health
Network,
(b)
The Sydney Children’s Hospitals Network
(Randwick and Westmead) (incorporating The Royal Alexandra Hospital for
Children).
9
St Vincent’s Hospital, Darlinghurst (being
the recognised establishment or recognised service of St Vincent’s
Hospital Sydney Limited in Schedule 3 (Affiliated health organisations) to the
Health Services Act
1997).
10
Department of Immigration and Border Protection
of the Commonwealth.
[48]Schedule 2 Savings,
transitional and other provisions
Insert at the end of the Schedule with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Child Protection (Offenders
Registration) Amendment (Statutory Review) Act
2014
Definition
In this Part:
amending
Act means the Child Protection
(Offenders Registration) Amendment (Statutory Review) Act
2014.
Reference to section 91H of
the Crimes Act 1900 offence of production,
dissemination or possession of child abuse material includes references to
older offences
(1)
A reference in the definition of Class 2
offence in section 3 (1) to an offence under section 91H of
the Crimes Act 1900 includes a reference to
an offence (committed before the commencement of section 91H) under section
578B of the Crimes Act
1900.
(2)
A reference in section 3A (2) (c) (ii) to an
offence under section 91H of the Crimes Act
1900 includes a reference to an offence (committed before
the commencement of section 91H) under section 578B or 578C (2A) of the
Crimes Act 1900.
Reference to section 91K of
the Crimes Act 1900 offence of filming a
person engaged in a private act includes reference to older
offences
A reference in section 3A (2) (c) (iii) to an
offence under section 91K (1) of the Crimes Act
1900 includes a reference to an offence (committed before
the commencement of section 91K) under section 21G (1) of the Summary Offences Act
1988.
Orders made after conclusion
of criminal proceedings
Section 3E (3), as amended by the amending Act,
applies so as to permit an application for an order to be made within 60 days
after a person is sentenced for a relevant offence even if the sentence was
imposed before that amendment.
Risk to sexual safety of
children—meaning
Section 3H (3) applies to any determination made
after the commencement of that subsection regardless of whether the
determination is made in relation to proceedings that commenced before the
commencement of that subsection.
Registrable person who ceases
to be under supervision
(1)
Section 6 (1) (g) does not apply to an order
under section 49 of the Mental Health (Forensic Provisions)
Act 1990 that was made before the commencement of that
paragraph.
(2)
Section 6 (3), as substituted by the amending
Act, applies in respect of an order under section 49 of the Mental Health (Forensic Provisions) Act
1990 whether or not that order was made before the
commencement of that subsection.
Relevant personal
information
Section 9, as amended by the amending Act,
applies in respect of a report made after those amendments regardless of
whether the report relates to matters occurring before those amendments or the
reporting obligations of the registrable person commenced before those
amendments.
Time within which reports must
be made
Sections 11 and 11C, as in force immediately
before those sections were amended by the amending Act, continue to apply in
respect of changes in circumstances that are required to be reported to the
Commissioner of Police under those sections if the change occurred before
those amendments commenced.
Extension of reporting
period
Section 15 (4) does not apply in respect of a
breach of reporting obligations occurring before the commencement of that
subsection.
Schedule 2Amendment of Criminal Procedure Act 1986 No
209
Schedule 1 Indictable offences
triable summarily
Omit “or 18” from clause 23 in Table
2. Insert instead “, 18 or 19E”.
Historical
notes
Table of amending
instruments
Child Protection
(Offenders Registration) Amendment (Statutory Review) Act 2014 No
54. Assented to 23.10.2014. Date of commencement, assent, sec
2.