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CLAUSE NOTES
Community Protection (Offender Reporting) Amendment Bill 2016
PART 1 – PRELIMINARY
Clause 1: Short title
Specifies the name of the proposed Act.
Clause 2: Commencement
Specifies that the Act commences on the day it receives the Royal Assent.
PART 2 – COMMUNITY PROTECTION (OFFENDER REPORTING) ACT 2005 AMENDED
Clause 3: Principal Act
Specifies that the Community Protection (Offender Reporting) Act 2005 is referred to
as the Principal Act.
Clause 4: Section 3 amended (Interpretation)
Section 3 of the Act is amended by adding definitions for the terms non-intimate
forensic procedure (as defined in the Forensic Procedures Act 2000) and reportable
contact (in relation to a reportable offender’s contact with a child).
Clause 5: Section 10A is inserted (Community Protection Orders)
This clause inserts section 10A, Magistrate may make a community protection order
on application from Commissioner.
If satisfied that a reportable offender poses a risk to the safety or wellbeing of a
child, the Commissioner of Police may make an application for a community
protection order.
The proposed section allows a Magistrate to make an order prohibiting or
restricting a reportable offender’s conduct, which may include: association and
communicating with certain persons; the ability to be present at or in the vicinity of
certain places; undertaking specific employment; the consumption of alcohol and/or
drugs; or other specified conduct.
Clause 6: Section 16 amended (Reporting obligations of reportable offenders)
This clause amends section 16 in three ways. Firstly by requiring a corresponding
reportable offender to report to the Registrar within 3 days of arriving in Tasmania
regardless of any period he or she intends to remain in the State. The amendment
omits “7 days” at paragraph (c) and substitutes “3 days”, omits “14 days or more”
also at paragraph (c) and substitutes “any period”.
The second amendment to section 16 omits paragraph (d) and substitutes with
paragraphs (d) and (da). This subsection currently relates to a reportable offender
leaving Tasmania for 7 or more consecutive days, and will now require that any
travel outside Tasmania must be reported no later than 7 days before leaving.
However, subsection (da) stipulates that where this is impracticable, 24 hours
notice may be given.
The final amendment to section 16 relates to reporting personal details and
reportable contact with a child by adding subsection (fa) requiring that any
reportable contact with a child must be reported to the Registrar within 24 hours,
not 7 days as it currently stands.
Clause 7: Section 17 amended (Report by reportable offender of personal details)
Section 17 of the Act outlines the details to be provided to the registrar by a
reportable offender. Amendments to this section clarify current details and stipulate
further particulars that must be reported, including: addresses of premises where
the reportable offender has access to for storage or other purposes; the names and
ages of children he or she has reportable contact with; parental status including
whether or not a partner is pregnant; the name and addresses of and school or
child care facility attended by a child he or she has reportable contact with; and the
details of and relevant family law court orders.
This clause also requires a reportable offender to provide further details to the
register in relation to vehicles. In addition to the details of a motor vehicle, the
amendments will require the particulars of any boat, caravan, motorhome, jet ski or
other vehicle to be provided.
Subsection (1) of section 17 is also amended to require, not only email addresses,
internet/messaging usernames, etc., and associated passwords, but any further
information necessary to gain access to data stored on those electronic
devices/services, including mobile and fixed line telephones. The amended section
also requires the reportable offender present items such as computers, phones and
the like for inspection.
Reportable contact between a reportable offender and a child is also clarified and is
taken to have occurred where:
(a) The child resides in the same premises or is supervised by a reportable
offender for at least 3 days (consecutive or not) in a 12 month period; or
(b) The reportable offender provides his or her contact details to the child or
receives the child’s contact details; or
(c) For the purposes of inviting further contact or communication with the
child, engages in any physical contact or communication with the child.
This clause also adds subsection (5) to section 17 which provides for the Community
Protection (Offender Reporting) Regulations 2016 to amend, omit or add personal
details that are required to be reported by a reportable offender.
Clause 8: Section 19 amended (Intended absence from Tasmania to be reported)
This section of the Act stipulates the specific details to be provided and
responsibilities of a reportable offender who intends to leave Tasmania to travel
elsewhere. This clause does not amend those details or responsibilities however
the section is amended only in respect to periods of time.
The clause substitutes an intended absence from Tasmania of “7 days” to “any
period” and requires a reportable offender to give notice “7 days” before leaving
Tasmania as opposed to “14 days”. As in Clause 6, there is an additional provision
for 24 hours notice where 7 days is impracticable.
Clause 9: Section 21 amended (Power to take photographs, fingerprints, &c)
This clause amends section 21 of the Act to provide for the taking of a non-intimate
forensic procedure on a reportable offender. Currently, the Act allows for the
taking of photographs and fingerprints, however a non-intimate forensic procedure,
as defined by the Forensic Procedures Act 2000, and now included at section 3 of the
Act, may include the taking of DNA and other non-intimate samples.
The Act currently provides for the use of reasonable force to enable such
procedures to be carried out and this clause clarifies that to do so, a reportable
offender may be detained. This clause also provides addition mechanisms where this
occurs such as advising the reportable offender of reasons for his or her detention,
that the detention is authorised under the Act and that he or she will be released
immediately after the procedure has been carried out. In addition, the amendments
stipulate that the reportable offender must not be held for longer that reasonable
necessary and that during any non-intimate forensic procedure the reportable
offender’s rights and professional standards will be respected.
Clause 10: Section 22 amended (Retention of material for certain purposes)
This clause amends the section by removing the reference to fingerprints and
inserting “forensic material” as defined by the Forensic Procedures Act 2000.
Clause 11: Part 3, Division 4A inserted (Suspension and variation of reporting obligations for
young reportable offenders)
This clause prescribes for the suspension and/or variation of reporting obligations
for young reportable offenders. The Commissioner of Police, if satisfied on
reasonable grounds that the young reportable offender does not pose a risk to the
safety or wellbeing of any child or children, may suspend or vary a young person’s
reporting obligations. The variation or suspension does not take effect until the
Commissioner provides the young reportable offender or his parent/guardian/carer
with written notice of such variation or suspension.
This clause also stipulates that the young reportable offender is still required to
meet his or her reporting obligations and that the Commissioner may, at any time,
revoke a suspension or variation where there a reasonable grounds to believe there
is a risk to the life or safety of a child.
Clause 12: Section 33A inserted (Failure to comply with community protection order)
This clause provides for the offence and penalty where a reportable offender fails to
comply with a community protection order.
Clause 13: Section 34 amended (Providing false or misleading information)
This clause increases the penalty for a reportable offender who provides
information that is false or misleading in a material particular, from 50 penalty units
and/or imprisonment for a term not exceeding 6 months to 100 penalty units
and/or imprisonment for a term not exceeding 6 months.
Clause 14: Sections 36A and 36B inserted (Power of detention to enable notice to be given
and Failure to comply with procedural requirement does not affect reportable
offender’s reporting obligations)
Section 36A will apply where there are reasonable grounds to suspect that a
person is a reportable offender and has not been given notice, or is unaware of his
or her reporting requirements. The section will permit police to detain a person to
ascertain their status and enable notice of reporting requirements to be given.
Where this power is exercised, police must advise the person of the reasons for
their detention and release that person immediately after the reasons for detention
are satisfied. The clause also stipulates that the detained person may be taken to a
police station and not detained for longer than is reasonable necessary.
Section 36B stipulates that the failure of a person to comply with procedural
requirements of the Act does not, of itself, affect a reportable offender’s reporting
requirements.
Clause 15: Section 44 amended (Access to Register to be restricted)
This clause is an administrative amendment relating to information from a register
maintained under a corresponding Act that is accessible by the Commissioner. In
this section, the word “section” is substituted by “part”.
Clause 16: Sections 44B, 44C and 44D inserted (Provision of information to prescribed
entities, Disclosure of information to parent, guardian or carer and Prescribed
entities and parents, guardians or carers to keep information secret)
This clause relates to the provision of information from the register to certain
entities/person and the responsibilities that relate to such disclosure.
Section 44B permits the Commissioner to provide in writing, any information from
the register to prescribed entities for the purposes of law enforcement, judicial
functions or activities, where authorised or required by or under any Act or Law or
where there is a belief on reasonable grounds it is necessary and appropriate to
ensure the safety and wellbeing of a child or children.
The section provides criminal and civil protection for the Commissioner by
stipulating that the decision to release, or not to release the information does not
constitute a breach of any duty, confidentiality or secrecy imposed by law and is not
a breach of any professional or ethical standard or conduct.
Section 44C relates the disclosure of information where a reportable offender is
having reportable contact with a child. Where it is considered on reasonable
grounds necessary and appropriate for ensuring the safety and wellbeing of a child
or children, the Commissioner, or Secretary of the responsible Department in
relation to the Public Health Act 1997, may disclose to a guardian or parent of a
child having such contact that the person is a reportable offender.
The criminal and civil protections afforded the Commissioner in section 44B also
relate to any disclosure made under the provisions of this section.
Where information is disclosed as permitted by section 44B or section 44C, section
44D provides for the offence of disclosing that information. A prescribed entity,
parent or guardian to whom information from the Register is provided does
however commit an offence if he or she records that information and causes
another person to access it, or divulges or communicates that information to
another person.
A penalty not exceeding 100 penalty units and/or a term of imprisonment not
exceeding 6 months is also prescribed for this offence. Clause 16 does however
state that an offence is not committed where a record or information is provided,
disclosed or communicated under the Act or another law of Tasmania.
Clause 17: Sections 45A, 45B, 45C and 45D inserted (Interpretation, Power to enter and
search premises to verify personal details, Power to enter and search places,
premises, conveyances and containers and Failure to comply with the Act)
Section 45A of the Act is amended by adding a definitions for the term premises, in
relation to a reportable offender’s personal details.
Sections 45B and 45C relate to a police officer’s power to enter and search
premises in certain circumstances. Section 45B permits a police officer, without
warrant and using reasonable force, to enter into, remain on, search and inspect a
reportable offender’s premises to verify personal details. In the exercise of this
power, an attempt to communicate such an authority to the reportable offender
inside the premises must be made unless doing so is likely to endanger any person.
The reportable offender must not obstruct the exercise of this authority.
Where there is reason to suspect a reportable offender is, or has committed an
offence against the Act, section 45C permits police, without warrant, to enter into,
remain, search and inspect any place, premises, conveyance or container reasonable
believed is or has been used by a reportable offender. In the exercise of this power,
police may use any force as is reasonably necessary, inspect, copy and seize records
or other things considered relevant, break open and search any cupboard, chest,
trunk or other thing and require a conveyance to be stopped. A police office may
also inspect any computer, phone or data storing device and where necessary,
remove any computer, phone or device for the purpose of further inspection. In
addition, a reportable offender must supply any password, code or other
information necessary for access to any data stored on such devices.
This clause provides for a penalty not exceeding 100 penalty units and/or a term of
imprisonment not exceeding 6 months for a breach of this section or where a
reportable offender does not allow a police officer to perform his functions in
respect to entry, search and inspection.
The power of entry, search and inspection does not extend to a place used solely
for residential purposes by a person other than a reportable offender unless there is
consent or the existence of a search warrant.
Section 45D relates to the failure of a reportable offender to comply with the Act
and prescribes for a penalty not exceeding 100 penalty units and/or a term of
imprisonment not exceeding 6 months. There is also a power of arrest, without
warrant, where a police officer suspects on reasonable grounds that a reportable
offender has failed to comply with the Act.
Clause 18: Sections 47A inserted (Publication of personal details of certain reportable
offenders)
For the purposes of section 47A, this clause defines personal details as including
photographs and digital images and permits the Commissioner to publish any or all
personal details of a reportable offender, or a corresponding reportable offender
who is not a child. This is only allowable where the reportable offender’s
whereabouts is unknown and the Commissioner is satisfied that the reportable
offender has either failed to comply with one or more of his or her reporting
obligations, or, in respect to his or her reporting obligations, provided false or
misleading particulars.
Clause 19: Schedule 1 amended (Class 1 offences)
Schedule I of the Act is amended by inserting Indecent or offensive behaviour as
per section 21 of the Police Offences Act 1935 as a Class 1 offence.
PART 4 – REPEAL OF ACT
Clause 20: Repeal of Act
This clause provides that the Community Protection (Offender Reporting) Amendment
Act 2016 is repealed on the three hundred and sixty fifth day from the day on
which it commences.