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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 35
As laid on the table and read a first time, 21 June 2006
South Australia
Child
Sex Offenders Registration Bill 2006
A Bill For
An
Act to establish a register of child sex offenders; to prevent registered child
sex offenders engaging in child-related work; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Object
4 Interpretation
5 Conduct equated with commission of
an offence
Part 2—Offenders to whom Act
applies
6 Who is a registrable offender?
7 Who is a foreign registrable
offender?
8 Who is a New South Wales registrable
offender?
9 Child sex offender registration
order
10 Appeal against order
Part 3—Reporting obligations
Division 1—Initial report
11 When report must be made
12 When new initial report must be made
by offender whose previous reporting obligations have ceased
13 Initial report by registrable offender
of personal details
14 Persons required to report under
corresponding law
Division 2—Ongoing reporting
obligations
15 Registrable offender must report
annually
16 Registrable offender must report
changes to relevant personal details
17 Intended absence from South Australia
to be reported
18 Change of travel plans while out of
South Australia to be given
19 Registrable offender to report return
to South Australia or decision not to leave
20 Report of other absences from South
Australia
Division 3—Provisions applying
to all reporting obligations
21 Where report is to be made
22 How report is to be made
23 Right to privacy and support when
reporting
24 Receipt of information to be
acknowledged
25 Additional matters to be provided
26 Power to take fingerprints or
fingerscan
27 Power to take photographs
28 Reasonable force may be used
29 Criminal Law (Forensic Procedures)
Act 1998 not to apply
30 Retention of material for certain
purposes
31 Reporting by remote offenders
Division 4—Suspension of reporting
obligations
32 Suspension of reporting obligations
Division 5—Reporting period
33 When reporting obligations begin
34 Length of reporting period
35 Reporting period for foreign
registrable offenders
36 Reporting period for New South Wales
registrable offenders
Division 6—Exemption from
reporting obligations
37 Supreme Court may exempt certain
registrable offenders
38 Order for suspension
39 Commissioner is party to application
40 No costs to be awarded
41 Restriction on right of unsuccessful
applicant to re-apply for order
42 Cessation of order
43 Application for new order
Division 7—Offences
44 Offence of failing to comply with
reporting obligations
45 Offence of furnishing false or
misleading information
46 Time limit for prosecutions
47 Bar to prosecution for failing to
report leaving South Australia
Division 8—Notification of
reporting obligations
48 Notice to be given to registrable
offender
49 Courts to provide information to
Commissioner
50 Notice to be given when reporting
period changes
51 Supervising authority to notify
Commissioner of certain events
52 Notices may be given by Commissioner
53 Failure to comply with procedural
requirements does not affect registrable offender's obligations
Division 9—Modified reporting
procedures for protected witnesses
54 Who this Division applies to
55 Report need not be made in person
56 Order as to whether Division applies
57 Appeal to District Court
58 When order takes effect
59 Modification of ongoing reporting
obligations
Part 4—The register of child
sex offenders
60 Register of child sex offenders
61 Access to register to be restricted
62 Restriction on who may access personal
information on protected witnesses
63 Registrable offender's rights in
relation to register
Part 5—Registrable offenders
prohibited from child-related work
64 Interpretation
65 Registrable offender excluded from
child-related work
66 Offence to fail to disclose charges
Part 6—Miscellaneous
67 Confidentiality of information
68 Restriction on publication
69 State Records Act 1997 and
Freedom of Information Act 1991 not to apply
70 Immunity of persons engaged in
administration of Act
71 Effect of spent convictions
72 Evidentiary
73 Regulations
Schedule 1—Class 1 and 2 offences
Part 1—Preliminary
1 Interpretation
Part 2—Class 1 offences
2 Class 1 offences
Part 3—Class 2 offences
3 Class 2 offences
Schedule 2—Information disclosure principles
1 Interpretation
2 General principles governing
disclosure
3 Authorisation of disclosure
4 Circumstances where information may
be disclosed without authorisation
5 Circumstances
where information may be disclosed with authorisation
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Child Sex Offenders Registration
Act 2006.
This Act will come into operation on a day to be fixed by
proclamation.
The object of this Act is to protect
children from sexual predators by—
(a) requiring
certain persons who may have a propensity to commit sexual offences against
children to keep the Commissioner of Police informed of their whereabouts and
other personal details for a period of time—
(i) to
reduce the risk of such offences being committed; and
(ii) to
facilitate the investigation and prosecution of any offences that are
committed; and
(b) preventing
such persons from engaging in child-related work.
(1) In this Act, unless the contrary intention
appears—
child means a person under the age of 18 years;
child sex offender registration order means an order made under section 9
and includes a corresponding child sex offender registration order;
class 1 offence means an offence listed in Schedule 1 Part 2;
class 2 offence means an offence listed in Schedule 1 Part 3;
Commissioner means the Commissioner of Police;
corresponding child sex offender registration order means an order made under a corresponding
law that falls within a class of order that the regulations state is a
corresponding child sex offender registration order for the purposes of this
Act;
corresponding law means a law of a foreign jurisdiction—
(a) that
requires people who have committed specified offences to report, in that
jurisdiction, information about themselves and to keep that information current
for a specified period; and
(b) that
is declared by the regulations to be a corresponding law for the purposes of
this Act;
corresponding registrar means the person whose duties and
functions under a corresponding law most closely correspond to the duties and
functions of the Commissioner under this Act;
court includes a court (however described) of a foreign jurisdiction
but does not include a family conference within the meaning of the Young
Offenders Act 1993;
detainee means a person who—
(a) is
detained in a training centre within the meaning of the Young Offenders
Act 1993; or
(b) is
detained as a result of being declared liable to supervision under Part 8A
of the Criminal Law Consolidation Act 1935;
disability means intellectual disability or physical
disability;
Note—
The meaning of disability is affected by
subsection (3).
existing licensee means a person who has been released from government
custody on licence and includes a person who has a similar status under the
laws of a foreign jurisdiction;
finding of guilt in relation to an offence committed by a
person (however expressed) means—
(a) a
court making a formal finding of guilt in relation to the offence; or
(b) a
court accepting a plea of guilty or other admission of guilt from the person in
relation to the offence; or
(c) a
court declaring under Part 8A of the Criminal Law Consolidation
Act 1935 that the person is liable to supervision in relation to the
offence, or an equivalent declaration or finding under the law of a foreign
jurisdiction; or
(d) in
the case of conduct that is, under section 5, equated with an offence for
the purposes of this Act, a court making a formal finding that the person
engaged in that conduct,
but does not include a finding of guilt that is subsequently
quashed or set aside by a court;
fingerscan means fingerprints taken by means of a device to obtain a record
of the fingerprints;
foreign jurisdiction means a jurisdiction other than South Australia (including
jurisdictions outside Australia);
foreign registrable offence means an offence that is not a
registrable offence under this Act but that is specified in a corresponding law
as an offence the commission of which results in a requirement that the
offender report, in the jurisdiction in which the corresponding law is in
force, information about himself or herself;
foreign registrable offender has the meaning set out in
section 7;
foreign witness protection law means a law of a foreign jurisdiction
that provides for the protection of witnesses;
good behaviour bond means a bond entered into under Part 5 of the Criminal
Law (Sentencing) Act 1988;
government custody means—
(a) custody
as a prisoner or detainee; or
(b) custody
under a law of a foreign jurisdiction in the nature of custody referred to in
paragraph (a);
intellectual disability means permanent or temporary loss or
imperfect development of mental faculties resulting in reduced intellectual
capacity;
New South Wales Act means the Child Protection (Offenders Registration) Act
2000 of New South Wales;
New South Wales registrable offender has the meaning set out in
section 8;
offence includes conduct that is, under section 5, equated with an
offence for the purposes of this Act;
parole means an order made under Part 6 Division 3 of the Correctional
Services Act 1982 and includes any equivalent order made under the
laws of a foreign jurisdiction;
personal details means the information listed in section 13(1);
physical disability means—
(a) the
total or partial loss of any function of the body; or
(b) the
total or partial loss of any part of the body; or
(c) the
malfunctioning of any part of the body; or
(d) the
malformation or disfigurement of any part of the body,
whether permanent or temporary, but does not include intellectual
disability;
prisoner has the same meaning as in the Correctional Services
Act 1982;
register means the register of registrable offenders established under
section 60;
registrable offence means—
(a) a
class 1 offence; or
(b) a
class 2 offence; or
(c) an
offence that results in the making of a child sex offender registration order;
registrable offender has the meaning set out in section 6;
reporting obligations, in relation to a registrable offender, means the
obligations imposed on him or her by Part 3;
reporting period means the period, as determined under Part 3 Division 5, during
which a registrable offender must comply with his or her reporting obligations;
sentence, in relation to an offence, includes—
(a) the
imposition of a penalty for the offence, or the making of any other order or
direction consequent on a finding of guilt in relation to the offence; and
(b) the
making of a declaration under Part 8A of the Criminal Law Consolidation
Act 1935 that a person charged with the offence is liable to
supervision; and
(c) the
making of a restraining order under section 99AA of the Summary
Procedure Act 1921 where the grounds for making the order consist of,
or include, the commission of the offence; and
(d) the
making of any equivalent order or declaration under the laws of a foreign
jurisdiction;
strict supervision means—
(a) supervision
by a person or body whose functions or powers include supervision of persons in
government custody or persons subject to a supervised sentence; and
(b) supervision
by an authority of a foreign jurisdiction in the nature of an authority
referred to in paragraph (a);
supervised sentence means—
(a) parole;
or
(b) a
sentence of home detention; or
(c) a
sentence of community service; or
(d) a
good behaviour bond under which the person entering into the bond is required
to submit to strict supervision; or
(e) a
supervision order within the meaning of Part 8A of the Criminal Law
Consolidation Act 1935 under which the person the subject of the order
is released on licence;
supervising authority, in relation to an offender, means the authority
prescribed by the regulations as the supervising authority in relation to the
class of offender to which he or she belongs.
(2) For the purposes of this Act, offences arise
from the same incident only if—
(a) they
are committed by the offender within a single period of 24 hours and are
committed against the same person; or
(b) they
are the result of a single act or omission of the offender (whether committed
against the same person or not).
(3) For
the purposes of this Act and without limiting the meaning of disability
given by subsection (1), a person has a disability if he or she is being
detained as a result of a court declaring under Part 8A of the Criminal
Law Consolidation Act 1935 that the person is liable to supervision in
relation to an offence.
(4) A
reference to doing a thing in person in this Act is a reference
to doing the thing by personal attendance at a place (and does not include
attendance by telephone or by any other electronic means).
5—Conduct equated with commission of an offence
If a court finds that a person has engaged in conduct that is not
an offence but is sufficient to ground the making of a restraining order under
section 99AA of the Summary Procedure Act 1921, that conduct
is, for the purposes of this Act, equated with the commission of an offence.
Part 2—Offenders to whom Act applies
6—Who is a registrable offender?
(1) Subject to this section, a registrable
offender is a person—
(a) whom
a court has at any time (whether before, on or after the commencement of this
section) sentenced for a class 1 or class 2 offence; or
(b) who
is, or has been, subject to a child sex offender registration order.
Note—
This Act applies to persons sentenced by a court of a foreign
jurisdiction for certain offences under the law of that jurisdiction—see the
definitions of court and sentence in
section 4, the description of class 1 and class 2 offences in Schedule 1
and the power to make an order under section 9(2).
Some requirements of this Act apply to certain people who are
registrable offenders for the purposes of equivalent laws outside South
Australia, even though they are not registrable offenders under this Act—see
section 14.
(2) A person who is—
(a) a
foreign registrable offender; or
(b) a
New South Wales registrable offender,
is also a registrable offender.
(3) Unless he or she is a registrable offender
because of subsection (2), a person is not a registrable offender merely
because he or she—
(a) while
a child committed a class 1 or class 2 offence for which he or she has been
sentenced; or
(b) is
a person on whom a sentence has been imposed in respect of a single class 2
offence, if the sentence—
(i) did
not include a term of imprisonment; and
(ii) was
not a supervised sentence.
(4) Unless he or she is a registrable offender
because of subsection (2) or is, immediately before the commencement of
this section, in government custody in relation to a registrable offence, a
person is not a registrable offender merely because he or she was sentenced for—
(a) a
class 2 offence more than 8 years before the commencement of this section; or
(b) a
class 1 offence more than 15 years before the commencement of this section.
(5) A person is also not a registrable offender
if he or she—
(a) is
receiving protection under a foreign witness protection law specified by the
regulations for the purposes of this subsection; or
(b) has
the same status as such a person under an order made under a corresponding law
specified by the regulations for the purposes of this subsection.
(6) A person ceases to be a registrable
offender if—
(a) his
or her finding of guilt in respect of the only registrable offence that makes
him or her a registrable offender for the purposes of this Act is quashed or
set aside by a court; or
(b) his
or her sentence in respect of that offence is reduced or altered so that he or
she would have been a person described in subsection (3)(b) had the
amended sentence been the original sentence; or
(c) he
or she is a registrable offender only because he or she is, or has been,
subject to a child sex offender registration order and that order is quashed by
a court.
(7) For
the purposes of this section, it is irrelevant whether or not a person may
lodge, or has lodged, an appeal in respect of a finding of guilt, sentence or
child sex offender registration order.
(8) For
the purposes of subsection (3)(b), 2 or more class 2 offences arising from
the same incident will be treated as a single class 2 offence.
7—Who is a foreign registrable offender?
A foreign registrable offender is a person
who—
(a) has
at any time (whether before, on or after the commencement of this section) been
sentenced in a foreign jurisdiction for a foreign registrable offence of a
prescribed class; and
(b) having
been sentenced for that offence, would, if he or she were currently in that
foreign jurisdiction, be required to report to the corresponding registrar in
that jurisdiction for a particular period (the recognised foreign reporting
period).
8—Who is a New South Wales registrable offender?
A New South Wales registrable offender is a person who had been in
New South Wales at a time before the date specified by the regulations for the
purposes of this section and whose reporting obligations under the New South
Wales Act had begun at that time, other than a person who falls within a class
of person whom the regulations prescribe not to be a New South Wales
registrable offender for the purposes of this Act.
9—Child sex offender registration order
(1) A court may—
(a) on
sentencing a person for an offence that is not a class 1 or class 2 offence; or
(b) on
sentencing a person for a class 1 or class 2 offence committed while the person
was a child; or
(c) on
sentencing a person for a single class 2 offence where the sentence imposed
does not include a term of imprisonment and is not a supervised sentence; or
(d) on
making a restraining order against a person under section 99AA of the Summary
Procedure Act 1921,
order that the person comply with the reporting obligations of this
Act.
(2) The Magistrates Court may order that a
person who has been sentenced for an offence against the law of a foreign
jurisdiction (and who is not otherwise a registrable offender in respect of
that offence) comply with the reporting obligations of this Act.
Note—
A person who has been sentenced for an offence against the law of
a foreign jurisdiction may be a registrable offender, in the absence of such an
order, because the offence was a class 1 or 2 offence or because the person is
a foreign registrable offender.
(3) The
court may only make an order under this section if, after taking into account
any matter that it considers appropriate, it is satisfied that the person poses
a risk to the sexual safety of any child or children.
(4) For
the purposes of subsection (3), it is not necessary that the court be able
to identify a risk to a particular child or particular children.
(5) The court may only make an order under this
section on the application of—
(a) in
the case of an order under subsection (1)(a), (b) or (c)—the prosecution;
or
(b) in
the case of an order under subsection (1)(d) or subsection (2)—a
police officer.
(6) For
the purposes of subsection (1)(c), 2 or more class 2 offences arising from
the same incident will be treated as a single class 2 offence.
(1) If
a court makes a child sex offender registration order, an appeal lies against
the making of that order in the same way as an appeal against a sentence
imposed by the court.
(2) On an appeal, the appellate court may—
(a) confirm,
vary or quash the order; and
(b) make
ancillary orders and directions.
(1) A registrable offender of a kind referred
to in column 1 of the Table must report his or her personal details to the
Commissioner within the period specified in relation to him or her in column 2
of the Table:
Table |
|
Column 1 |
Column 2 |
Registrable Offender |
Period for Initial Report |
A registrable offender (other than a foreign registrable
offender) who enters government custody in South Australia on or after the
commencement of this section as a consequence of having been sentenced for a
registrable offence and who ceases to be in government custody whilst in
South Australia |
Within 28 days after he or she ceases to be in government
custody |
A registrable offender (other than a foreign registrable
offender) in government custody in South Australia immediately before the
commencement of this section and who ceases to be in government custody
whilst in South Australia |
Within 28 days after he or she ceases to be in government
custody |
A registrable offender (other than a foreign registrable
offender) who is in South Australia on the commencement of this section, but
who is not in government custody at that time |
Within 45 days after the commencement of this section |
Any other person who becomes a registrable offender because he
or she is sentenced for a class 1 or class 2 offence in South Australia or
who becomes a registrable offender because of a child sex offender
registration order made by a court in South Australia |
Within 28 days after he or she is sentenced for the class 1or
class 2 offence or the child sex offender registration order is made (as the
case may be) |
A registrable offender who enters South Australia from a foreign
jurisdiction and who has not previously been required under this section to
report his or her personal details to the Commissioner |
Within 14 days after entering and remaining in South Australia
for 14 or more consecutive days, not counting any days spent in government
custody |
A foreign registrable offender who has not previously reported
his or her personal details to the Commissioner and who is in South Australia
on the date on which he or she becomes a foreign registrable offender |
Within 28 days after he or she becomes a foreign registrable
offender or 28 days after he or she ceases to be in government custody,
whichever is the later |
(2) A
registrable offender who is leaving South Australia must, despite any period
that would otherwise apply in relation to the registrable offender in
accordance with subsection (1), report his or her personal details to the
Commissioner before leaving South Australia unless he or she entered South
Australia from a foreign jurisdiction and remained in South Australia for less
than 14 consecutive days, not counting any days spent in government custody.
12—When new initial report must be made by offender whose previous reporting obligations have ceased
(1) If a registrable offender's reporting
period expires but he or she is then sentenced for a registrable offence, he or
she must report his or her personal details to the Commissioner—
(a) within
28 days after he or she is sentenced for the registrable offence; or
(b) if
the registrable offender is in government custody, within 28 days after he or
she ceases to be in government custody,
whichever is the later.
(2) If a registrable offender's reporting
period expires but he or she then becomes a foreign registrable offender who
must, under section 35, continue to comply with the reporting obligations
imposed by this Part for any period, he or she must report his or her personal
details to the Commissioner—
(a) within
28 days after he or she becomes a foreign registrable offender; or
(b) if
the registrable offender is in government custody, within 28 days after he or
she ceases to be in government custody,
whichever is the later.
(3) If a registrable offender's reporting
obligations are suspended by an order under section 38 (or an equivalent
order in a foreign jurisdiction) and that order ceases to have effect under
section 42 (or an equivalent provision of the laws of a foreign
jurisdiction), he or she must report his or her personal details to the
Commissioner—
(a) within
28 days after the order ceases to have effect; or
(b) if
the registrable offender is in government custody, within 28 days after he or
she ceases to be in government custody,
whichever is the later.
(4) If
a registrable offender is not in South Australia at the time he or she would be
required under subsection (1), (2) or (3) to report his or her personal
details to the Commissioner, the registrable offender must report his or her
personal details within 14 days after entering and remaining in South Australia
for 14 or more consecutive days, not counting any days spent in government
custody.
(5) A
registrable offender who is leaving South Australia must, despite any period
that would otherwise apply in relation to the registrable offender in accordance
with subsections (1) to (3), report his or her personal details to the
Commissioner before leaving South Australia unless he or she entered South
Australia from a foreign jurisdiction and remained in South Australia for less
than 14 consecutive days, not counting any days spent in government custody.
13—Initial report by registrable offender of personal details
(1) The details the registrable offender must
report are as follows:
(a) his
or her name, together with any other name by which he or she is, or has
previously been, known;
(b) in
respect of each name other than his or her current name, the period during
which he or she was known by that other name;
(c) his
or her date of birth;
(d) the
address of each of the premises at which he or she generally resides or, if he
or she does not generally reside at any particular premises, the name of each
of the localities in which he or she can generally be found;
(e) the
names and ages of any children who generally reside in the same household as
that in which he or she generally resides, or with whom he or she has regular
unsupervised contact;
(f) if
he or she is working—
(i) the
nature of the work; and
(ii) the
name of his or her employer (if any); and
(iii) the
address of each of the premises at which he or she generally works or, if he or
she does not generally work at any particular premises, the name of each of the
localities at which he or she generally works;
(g) details
of his or her affiliation with any club or organisation that has child
membership or child participation in its activities;
(h) the
make, model, colour and registration number of any motor vehicle owned by, or
generally driven by, him or her;
(i) details
of any tattoos or permanent distinguishing marks that he or she has (including
details of any tattoo or mark that has been removed);
(j) whether
he or she has ever been found guilty in any foreign jurisdiction of a
registrable offence or of an offence that required him or her to report to a
corresponding registrar or been subject to a corresponding child sex offender
registration order and, if so, where that finding occurred or that order was
made;
(k) if
he or she has been in government custody since he or she was sentenced or
released from government custody (as the case may be) in respect of a
registrable offence or foreign registrable offence, details of when and where
that government custody occurred;
(l) if,
at the time of making a report under this Division, he or she leaves, or
intends to leave, South Australia to travel elsewhere in Australia on an
average of at least once a month (irrespective of the length of any such
absence)—
(i) in
general terms, the reason for travelling; and
(ii) in
general terms, the frequency and destinations of the travel.
(2) For the purposes of this section—
(a) a
registrable offender does not generally reside at any particular premises
unless he or she resides at those premises for at least 14 days (whether
consecutive or not) in any period of 12 months; and
(b) a
child does not generally reside in the same household as a registrable offender
unless they reside together in that household for at least 14 days (whether
consecutive or not) in any period of 12 months; and
(c) a
registrable offender does not have regular unsupervised contact with a child
unless he or she has unsupervised contact with the child for at least 14 days
(whether consecutive or not) in any period of 12 months; and
(d) a
registrable offender does not generally work at any particular premises unless
he or she works at those premises for at least 14 days (whether consecutive or
not) in any period of 12 months; and
(e) a
registrable offender does not generally drive a particular motor vehicle unless
the person drives that vehicle on at least 14 days (whether consecutive or not)
in any period of 12 months.
(3) For the purposes of this section, a person
is working if he or she—
(a) carries
out work under a contract of employment or a contract for services (whether
written or unwritten); or
(b) carries
out work as a self-employed person or as a sub-contractor; or
(c) carries
out work as a minister of religion or as part of the duties of a religious or
spiritual vocation; or
(d) undertakes
practical training as part of an educational or vocational course; or
(e) carries
out work as a volunteer including the performance of unpaid community work in
accordance with an order of a court.
14—Persons required to report under corresponding law
(1) This
section applies to a person (other than one to whom Division 9 applies) who has
been required to report to a corresponding registrar, irrespective of whether
he or she is a registrable offender for the purposes of this Act.
(2) Unless
the person has previously complied with the obligation imposed by this section,
he or she must, within 7 days after entering and remaining in South Australia,
contact (by telephoning South Australia Police or another prescribed means) the
Commissioner.
(3) The
Commissioner must advise the person whether he or she is a registrable offender
for the purposes of this Act and any reporting obligations that he or she has
under this Act.
(4) A person is not guilty of an offence
against section 44 because of a failure to comply with the reporting
obligation imposed by subsection (2) if he or she—
(a) is
not a registrable offender for the purposes of this Act; or
(b) has
not been notified of that reporting obligation; or
(c) does
not remain in South Australia for 14 or more consecutive days, not counting any
days spent in government custody; or
(d) reports
in accordance with section 11.
Division 2—Ongoing reporting obligations
15—Registrable offender must report annually
(1) A
registrable offender must report his or her personal details to the
Commissioner each year.
(2) The
registrable offender must make the report by the end of the calendar month in
which the anniversary of the date on which he or she first reported in accordance
with this Act or a corresponding law falls.
(3) If
the registrable offender has been in government custody since he or she last
reported his or her personal details under this section, the details he or she
must report include details of when and where that custody occurred.
(4) If
a registrable offender's reporting period expires, but he or she is then
required to report again under section 12, the reference to the date on
which he or she first reported is to be read as a reference to the date on which
he or she first reported in respect of the current reporting period.
16—Registrable offender must report changes to relevant personal details
(1) A
registrable offender must report to the Commissioner any change in his or her
personal details within 14 days after that change occurs.
(2) For
the purposes of subsection (1), a change occurs in the premises or
household where the registrable offender or a child generally resides, or as to
when the registrable offender has unsupervised contact with a child, or in the
premises where the registrable offender generally works, or the motor vehicle
that he or she generally drives, only on the expiry of the relevant 14 day
period referred to in section 13(2).
(3) If the personal details of a registrable
offender (other than one to whom Division 9 applies) change while he or she is
not in South Australia, he or she must report the change to the Commissioner
within 14 days after entering and remaining in South Australia for 14 or more
consecutive days, not counting any days spent in government custody.
Note—
Under section 32, certain reporting obligations of a
registrable offender are suspended while he or she is out of South Australia
unless Division 9 applies to him or her.
(4) A registrable offender who is in government
custody for 14 or more consecutive days must report his or her personal details
to the Commissioner—
(a) within
28 days after he or she ceases to be in government custody; or
(b) before
leaving South Australia,
whichever occurs first.
17—Intended absence from South Australia to be reported
(1) This section applies if a registrable
offender—
(a) intends
to leave South Australia for 14 or more consecutive days to travel elsewhere in
Australia; or
(b) intends
to leave South Australia to travel out of Australia.
(2) At least 7 days before leaving South
Australia, the registrable offender must report the intended travel to the
Commissioner and must provide details of—
(a) each
State, Territory or country to which he or she intends to go while out of South
Australia; and
(b) the
approximate dates during which he or she intends to be in each of those States,
Territories or countries; and
(c) each
address or location within each State, Territory or country at which he or she
intends to reside (to the extent that they are known) and the approximate dates
during which he or she intends to reside at those addresses or locations; and
(d) if
he or she intends to return to South Australia, the approximate date on which
he or she intends to return; and
(e) if
he or she does not intend to return to South Australia—a statement of that
intention.
(3) If
circumstances arise making it impracticable for a registrable offender to make
the report 7 days before he or she leaves, it is sufficient compliance with
subsection (2) if the registrable offender reports the required
information to the Commissioner at least 24 hours before leaving South
Australia.
18—Change of travel plans while out of South Australia to be given
(1) This section applies if a registrable
offender who is out of South Australia decides—
(a) to
extend a stay elsewhere in Australia beyond 13 days; or
(b) to
change any details given to the Commissioner under section 17.
(2) As soon as practicable after making the
decision, the registrable offender must—
(a) if
subsection (1)(a) applies, report the details required by
section 17(2) to the Commissioner (including those details as they relate
to the travel that has already been completed); or
(b) if
subsection (1)(b) applies, report the changed details to the Commissioner.
(3) The registrable offender must make the
report—
(a) by
writing sent by post or transmitted electronically to the Commissioner or to
any other address permitted by the regulations; or
(b) in
any other manner permitted by the regulations.
19—Registrable offender to report return to South Australia or decision not to leave
(1) This
section applies if a registrable offender was required to report that he or she
intended to leave South Australia under section 17.
(2) If
the registrable offender left South Australia, he or she must report his or her
return to South Australia to the Commissioner within 14 days after entering and
remaining in South Australia for 14 or more consecutive days, not counting any
days spent in government custody.
(3) If
the registrable offender decides not to leave South Australia, he or she must
report his or her change of intention to the Commissioner within 14 days after
deciding not to leave.
20—Report of other absences from South Australia
(1) This
section applies if a registrable offender, at the time of making a report under
this Division, leaves, or intends to leave, South Australia to travel elsewhere
in Australia on an average of at least once a month (irrespective of the length
of any such absence).
(2) The registrable offender must report the
following details to the Commissioner:
(a) in
general terms, the reason for travelling;
(b) in
general terms, the frequency and destinations of the travel.
Division 3—Provisions applying to all reporting obligations
(1) A report under this Part is to be made—
(a) if
a direction is given in accordance with the regulations as to the police
station at which the report is to be made—at the police station so directed; or
(b) if
no direction is given under paragraph (a)—at a place approved (either
generally or in a particular case) by the Commissioner.
(2) This
section does not apply if, under section 22(2), a report is permitted to
be made in a way that is inconsistent with this section.
(1) A registrable offender must attend in
person to make the following reports under this Part:
(a) a
report required by Division 1 (initial report);
(b) a
report required by section 15 (annual report);
(c) a
report of a change of address of the premises at which he or she generally
resides or, if he or she does not generally reside at any particular premises,
of the localities in which he or she can generally be found;
(d) a
report of the acquisition of, removal of, or change to, any tattoo or permanent
distinguishing mark.
(2) A
registrable offender may make any other report that he or she is required to
make by attending in person or by making the report in another way permitted by
the Commissioner or the regulations, either generally or in a particular case.
(3) Only
a police officer approved for the purpose by the Commissioner may receive a
report made by a registrable offender attending in person and only a police
officer or other person approved for the purpose by the Commissioner may
receive a report made in another way in accordance with subsection (2).
(4) If a registrable offender attending in
person is a child or has a disability that renders it impossible or
impracticable for him or her to make the report, the registrable offender will,
nevertheless, be taken to make the report if—
(a) in
the case of a registrable offender who is a child—a parent or guardian of the
child or, if neither a parent nor guardian is available, an adult who knows,
and is accompanying, the registrable offender makes the report (so far as is
reasonably possible) on the registrable offender's behalf; or
(b) in
the case of a registrable offender who is an adult who has a disability—a
parent, guardian, carer or other adult person nominated by the registrable
offender who is accompanying the registrable offender makes the report (so far
as is reasonably possible) on the registrable offender's behalf.
(5) Similarly, if a registrable offender who is
permitted, in accordance with subsection (2), to make a report otherwise
than by attending in person is a child or has a disability that renders it
impossible or impracticable for him or her to make the report, the registrable
offender will, nevertheless, be taken to make the report if—
(a) in
the case of a registrable offender who is a child—a parent or guardian of the
child or, if neither a parent nor guardian is available, an adult who knows the
registrable offender makes the report (so far as is reasonably possible) on the
registrable offender's behalf; or
(b) in
the case of a registrable offender who is an adult who has a disability—a
parent, guardian, carer or other adult person nominated by the registrable
offender makes the report (so far as is reasonably possible) on the registrable
offender's behalf.
23—Right to privacy and support when reporting
(1) A person making a report under this Part at
a police station or a place approved by the Commissioner—
(a) is
entitled to make the report out of the hearing of members of the public; and
(b) is
entitled to be accompanied by a support person of his or her own choosing and,
in the case of a child, must be accompanied by a parent or guardian of the
child or, if neither a parent or guardian is available, an adult who knows the
registrable offender.
(2) A
police officer or other person receiving the report may arrange for an
interpreter to be present when a person is making a report under this Part.
(3) A
police officer or other person receiving the report must not allow an
interpreter to be present when a person is making a report under this Part
unless the interpreter has signed an undertaking not to disclose any
information derived from the report unless required or authorised by or under
any Act or law to do so.
24—Receipt of information to be acknowledged
(1) As
soon as practicable after receiving a report under this Part, the police
officer or other person receiving the report must acknowledge the making of the
report.
(2) The acknowledgment must be in writing, must
be given to the person who made the report and must include—
(a) the
name and signature of the police officer or other person who received the
report; and
(b) the
date and time when, and the place where, the report was received; and
(c) a
copy of the information that was reported.
(3) The
Commissioner must ensure that a copy of every acknowledgment is retained.
25—Additional matters to be provided
(1) If a report is required to be made by
attending in person, the person making the report must also—
(a) present
for inspection the registrable offender's driver's licence (if any) or any
other form of identification or other document reasonably required by the
police officer receiving the report to verify or support details in the report;
and
(b) provide
a photograph of the registrable offender's head and face of a type suitable for
use in an Australian passport; and
(c) if
not the registrable offender, present for inspection his or her driver's
licence (if any) or any other form of identification reasonably required by the
police officer receiving the report.
(2) The
police officer receiving the report may waive any requirements of
subsection (1) if the police officer is otherwise satisfied as to the
identity of the person making the report.
(3) The
police officer receiving the report may copy any document presented to the
police officer for inspection under subsection (1)(a) or (c).
(4) If a report is made otherwise than in
person, the regulations may specify—
(a) the
circumstances in which—
(i) information
will be required concerning the identity of the registrable offender and the
identity of the person making the report; or
(ii) a
document will be required verifying or supporting details in the report; and
(b) the
manner in which that information or document is to be provided,
but may not require an original document to be provided.
26—Power to take fingerprints or fingerscan
(1) A
police officer receiving a report made in person under this Part may take, or
may cause to be taken by a person authorised by him or her, the fingerprints or
a fingerscan of the registrable offender if not reasonably satisfied as to the
identity of the registrable offender after the police officer has examined all
the material relating to identity provided or presented to him or her by, or on
behalf of, the registrable offender.
(2) A
police officer may only take, or cause to be taken, the fingerprints or a
fingerscan of a child under subsection (1) if the child is accompanied by
his or her parent or guardian or, if neither a parent nor guardian is
available, an adult who knows the child.
(1) A
police officer receiving a report made in person under this Part may take, or
may cause to be taken by a person authorised by him or her, photographs of the
registrable offender.
(2) A
police officer may only take, or cause to be taken, photographs of a child
under subsection (1) if the child is accompanied by his or her parent or
guardian or, if neither a parent nor guardian is available, an adult who knows
the child.
28—Reasonable force may be used
(1) Before attempting to exercise a power under
section 26 or 27, the police officer must inform the registrable offender
in language likely to be understood by him or her—
(a) of
the purpose for which the power is to be exercised; and
(b) that
reasonable force may be used if the registrable offender refuses to voluntarily
submit to the exercise of the power; and
(c) that
the fingerprints, fingerscan or photographs (as the case may be) will be
retained by the Commissioner.
(2) A police officer, or a person authorised by
him or her, may use reasonable force to take the fingerprints, fingerscan or
photographs of a registrable offender if—
(a) the
registrable offender refuses to co-operate voluntarily; and
(b) the
use of reasonable force is authorised by a police officer in charge of a police
station at the time of the request or a police officer of or above the rank of
sergeant.
29—Criminal Law (Forensic Procedures) Act 1998 not to apply
The Criminal Law (Forensic Procedures) Act 1998 does
not apply to the taking of fingerprints or a fingerscan in accordance with
section 26 or to the taking of photographs in accordance with
section 27.
30—Retention of material for certain purposes
The Commissioner may, during the reporting
period of a registrable offender, retain for law enforcement, crime prevention
or child protection purposes any of the following taken under this Division
from, or in relation to, the registrable offender:
(a) copies
of any documents;
(b) any
fingerprints or fingerscans;
(c) any
photographs,
and, at the end of that period, the Commissioner must cause them
to be destroyed.
31—Reporting by remote offenders
(1) This
section applies if a registrable offender resides more than 100 kilometres from
the nearest police station.
(2) A registrable offender need not comply with
a time limit concerning the making of a report in person under this Part if,
before the time limit expires, he or she or a person entitled to make the
report on his or her behalf contacts the Commissioner and—
(a) nominates
a reasonable time and place at which the report will be made; and
(b) provides
the Commissioner (by telephone or other means) with the information required to
be reported under Division 1 or Division 2.
(3) The
Commissioner must ensure that there is a method of recording any information
provided by a registrable offender in accordance with subsection (2).
Division 4—Suspension of reporting obligations
32—Suspension of reporting obligations
Any obligation imposed on a registrable
offender by this Part is suspended for any period during which he or she—
(a) is
in government custody; or
(b) is
outside South Australia unless he or she is a person to whom Division 9 applies
or the obligation is under section 18; or
(c) is
the subject of an order under Division 6 (or an equivalent order made under the
laws of a foreign jurisdiction).
33—When reporting obligations begin
For the purposes of this Division, a registrable
offender's reporting obligations begin—
(a) in
the case of a person who is a registrable offender because of a child sex
offender registration order made by a court in South Australia on the making of
a restraining order against him or her under section 99AA of the Summary
Procedure Act 1921—when the restraining order is made; or
(b) in
any other case—
(i) if
the registrable offender is held in government custody in relation to the
relevant registrable offence—when the registrable offender ceases to be in
government custody in relation to the offence; or
(ii) if
the registrable offender is not held in government custody in relation to the
relevant registrable offence—when the registrable offender is sentenced for the
offence.
(1) A registrable offender of a kind referred
to in column 1 of the Table must continue to comply with the reporting
obligations imposed by this Part for the period specified in relation to him or
her in column 2 of the Table:
Table |
|
Column 1 |
Column 2 |
Registrable Offender |
Period |
A registrable offender who is subject to a child sex offender
registration order made by a court in South Australia on the making of a
restraining order against him or her under section 99AA of the Summary
Procedure Act 1921 |
The period for which the restraining order remains in force |
A registrable offender who is subject to any other child sex
offender registration order made by a court in South Australia |
The period specified by the court in making the order |
A registrable offender who is subject to a corresponding child
sex offender registration order |
The period for which the person is required to report in
accordance with the corresponding law under which the order was made |
A registrable offender who has only ever been found guilty of a
single class 2 offence (where the sentence included a term of imprisonment or
was a supervised sentence) |
8 years |
A registrable offender who has only ever been found guilty of a
single class 1 offence |
15 years |
A registrable offender who has been found guilty of 2 class 2
offences |
15 years |
A registrable offender who has been found guilty of 2 or more
class 1 offences |
The remainder of the person's life |
A registrable offender who has been found guilty of a class 1
offence and 1 or more class 2 offences |
The remainder of the person's life |
A registrable offender who has been found guilty of 3 or more
class 2 offences. |
The remainder of the person's life |
Note—
A life-long reporting obligation may be suspended under Division
6.
(2) A
reference in subsection (1) to an offence extends to an offence committed
before the commencement of that subsection or for which a person was sentenced
before the commencement of that subsection.
(3) For the purposes of this section—
(a) 2
or more offences arising from the same incident are to be treated as a single
offence; and
(b) 2
or more offences arising from the same incident are to be treated as a single
class 1 offence if at least one of those offences is a class 1 offence.
Note—
The meaning of single offence is qualified by
section 4(2).
35—Reporting period for foreign registrable offenders
(1) Despite
anything in this Part, a foreign registrable offender must continue to comply
with the reporting obligations imposed by this Part for the recognised foreign
reporting period referred to in section 7(b).
(2) For
the purposes of this section, if a foreign registrable offender is a foreign
registrable offender under the laws of more than one jurisdiction, the
recognised foreign reporting period is the longest period for which he or she
would be required to report to the corresponding registrar of a foreign
jurisdiction.
36—Reporting period for New South Wales registrable offenders
(1) Subject
to subsection (2), a New South Wales registrable offender must continue to
comply with the reporting obligations imposed by this Part for the period he or
she is required to report in accordance with the New South Wales Act.
(2) A New South Wales registrable offender who,
on or after the date specified by the regulations for the purposes of
section 8, is sentenced for a registrable offence or becomes a foreign
registrable offender must continue to comply with the reporting obligations
imposed by this Part for—
(a) the
period referred to in subsection (1); or
(b) the
period that he or she is required to report in accordance with this Division
(other than this section),
whichever is longer.
Division 6—Exemption from reporting
obligations
37—Supreme Court may exempt certain registrable offenders
(1) This
Division applies to a registrable offender who is required to continue to
comply with the reporting obligations imposed by this Part for the remainder of
his or her life.
(2) If—
(a) a
period of 15 years has passed since he or she was last sentenced or released
from government custody in respect of a registrable offence or a foreign
registrable offence, whichever is later; and
(b) he
or she did not become the subject of a life-long reporting period under a
corresponding law whilst in a foreign jurisdiction before becoming the subject
of such a period in South Australia; and
(c) he
or she is not on parole in respect of a registrable offence,
the registrable offender may apply to the Supreme Court for an
order suspending his or her reporting obligations.
(1) On
an application under section 37(2), the Supreme Court may make an order
suspending the registrable offender's reporting obligations.
(2) The
Court must not make the order unless it is satisfied that the registrable
offender does not pose a risk to the sexual safety of any child or children.
(3) In deciding whether to make the order, the
Court must take into account—
(a) the
seriousness of the registrable offender's registrable offences and foreign
registrable offences; and
(b) the
period of time since those offences were committed; and
(c) whether
the registrable offender has ever been subject to a restraining order under
section 99AA of the Summary Procedure Act 1921; and
(d) the
age of the registrable offender, the age of the victims of those offences and
the difference in age between the registrable offender and the victims of those
offences, as at the time those offences were committed; and
(e) the
registrable offender's present age; and
(f) the
registrable offender's total criminal record; and
(g) any
other matter the Court considers appropriate.
39—Commissioner is party to application
The Commissioner is a party to an application under
section 37(2) and may make any submission to the Supreme Court in respect
of the application.
The Supreme Court may not award costs in respect of proceedings
under this Division.
41—Restriction on right of unsuccessful applicant to re-apply for order
A registrable offender in respect of whom the Supreme Court
refuses to make an order under this Division is not entitled to make a further
application to the Court until 5 years have elapsed from the date of the
refusal, unless the Court otherwise orders at the time of the refusal.
(1) An order made under this Division ceases to
have effect if, at any time after the making of the order, the registrable
offender—
(a) is
made subject to a child sex offender registration order; or
(b) is
found guilty of a class 1 or class 2 offence; or
(c) becomes
a foreign registrable offender who must under section 35 continue to
comply with the reporting obligations imposed by this Part for any period.
(2) An order that ceased to have effect in
accordance with subsection (1) is revived—
(a) in
the case of an order that ceased to have effect in accordance with
subsection (1)(a)—if the child sex offender registration order is quashed
by a court or the registrable offender's finding of guilt in respect of the
offence that resulted in the making of that order is quashed or set aside by a
court; or
(b) in
any other case—if the finding of guilt that caused the order to cease to have
effect is quashed or set aside by a court.
(3) For
the purposes of this section, it is irrelevant whether or not a person may
lodge, or has lodged, an appeal in respect of a child sex offender registration
order or a finding of guilt.
(1) If
an order ceases to have effect in accordance with section 42(1), the
registrable offender may apply under this Division for a new order.
(2) Section 41
does not apply with respect to an application referred to in
subsection (1).
(3) If
an order ceases to have effect in accordance with section 42(1)(b) or (c),
on an application under this Division for a new order, section 37(2)(a)
applies as if the period referred to were a period of 15 years (ignoring any
period during which he or she was in government custody) since he or she last
committed a registrable offence or a foreign registrable offence.
44—Offence of failing to comply with reporting obligations
(1) A registrable offender must not fail to
comply with any of his or her reporting obligations without a reasonable
excuse.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) In determining whether a person had a
reasonable excuse for failing to comply with his or her reporting obligations,
the court before which the proceedings are being heard is to have regard to the
following matters:
(a) the
person's age;
(b) whether
the person has a disability that affects the person's ability to understand, or
to comply with, those obligations;
(c) whether
the form of notification given to the registrable offender as to his or her
obligations was adequate to inform him or her of those obligations, having
regard to the offender's circumstances;
(d) any
other matter the court considers appropriate.
(3) It
is a defence to proceedings for an offence of failing to comply with a
reporting obligation if it is established by or on behalf of the person charged
with the offence that, at the time the offence is alleged to have occurred, the
person had not received notice, and was otherwise unaware, of the obligation.
45—Offence of furnishing false or misleading information
A person must not, in purported compliance
with this Part, furnish information that the person knows to be false or
misleading in a material particular.
Maximum penalty: $10 000 or imprisonment for 2 years.
46—Time limit for prosecutions
Proceedings for an offence against this Act must be commenced
within 2 years after the date on which the offence is alleged to have been
committed unless the Attorney-General authorises the commencement of the proceedings
at a later time.
47—Bar to prosecution for failing to report leaving South Australia
(1) This
section applies if a registrable offender leaves South Australia and is found
guilty of failing to report his or her presence in a foreign jurisdiction as
required by a corresponding law.
(2) The
registrable offender is not to be prosecuted for a failure to comply with
section 17 in respect of the travel out of South Australia.
Division 8—Notification of reporting obligations
48—Notice to be given to registrable offender
(1) The Commissioner must give a registrable
offender written notice of—
(a) his
or her reporting obligations; and
(b) the
consequences that may arise if he or she fails to comply with those
obligations.
(2) A registrable offender is to be given a
notice under this section as soon as practicable after any of the following
events happens:
(a) he
or she is sentenced for a registrable offence in South Australia or made
subject to a child sex offender registration order in South Australia;
(b) he
or she is released from government custody in South Australia (whether in
government custody for a registrable offence or not);
(c) he
or she enters South Australia, if he or she has not previously been given
notice of his or her reporting obligations in South Australia;
(d) he
or she becomes a foreign registrable offender, if he or she is in South
Australia at that time.
(3) Despite
anything in this Division, the regulations may provide that a notice given
under this section is not required to specify the registrable offender's
reporting period if the regulations require a notice containing that
information to be given at the time the registrable offender reports his or her
personal details to the Commissioner.
49—Courts to provide information to Commissioner
(1) This section applies if a court—
(a) makes
an order or imposes a sentence that has the effect of making a person a
registrable offender for the purposes of this Act; or
(b) imposes
a sentence on a person in relation to a registrable offence; or
(c) makes
an order in relation to a registrable offender that has the effect of removing
the person from the ambit of this Act.
Example—
Paragraph (c) would apply, for instance, if a court on appeal
quashes a person's finding of guilt in relation to a class 1 or class 2 offence
in respect of which he or she had been sentenced and that was the only offence
in respect of which he or she had ever been found guilty.
(2) The
court must ensure that details of the order or sentence are provided to the
Commissioner as soon as practicable after the making or imposition of the order
or sentence.
(3) In this section—
court does not include a court of a foreign jurisdiction.
50—Notice to be given when reporting period changes
(1) This
section applies to a registrable offender whose reporting period has changed
since he or she was last notified of his or her reporting period in South
Australia.
(2) The
Commissioner must give (or cause to be given) written notice to the registrable
offender as soon as practicable after the change and in any event no later than
the time the offender next reports in accordance with this Act.
51—Supervising authority to notify Commissioner of certain events
(1) This section applies if a registrable
offender—
(a) ceases
to be in government custody; or
(b) ceases
to be subject to a supervised sentence; or
(c) ceases
to be subject to a condition of parole requiring the person to be subject to
supervision; or
(d) ceases
to be an existing licensee,
regardless of the reason why the registrable offender was in
custody, was subject to the sentence, was on parole or was a licensee.
(2) As
soon as practicable before or after the relevant event listed in
subsection (1) occurs, the supervising authority is to give written notice
of the event to the Commissioner.
(3) The
notice must include any details required by the regulations.
52—Notices may be given by Commissioner
The Commissioner may, at any time, cause
written notice to be given to a registrable offender of—
(a) his
or her reporting obligations; and
(b) the
consequences that may arise if he or she fails to comply with those
obligations.
53—Failure to comply with procedural requirements does not affect registrable offender's obligations
A failure by a person other than a
registrable offender to comply with any procedural requirement imposed on the
person by this Part or the regulations does not, of itself, affect a
registrable offender's reporting obligations.
Note—
This section aims to prevent a registrable offender who was not
given notice of a reporting obligation by an official as required by this Part
from arguing that the obligation does not apply to him or her as a result of
that failure if there is evidence that the registrable offender was aware of
the obligation through some other means. (If there is no such evidence then the
registrable offender would have a defence to the charge under
section 44(3) on the basis that he or she was not aware of the
obligation.)
Division 9—Modified reporting procedures
for protected witnesses
54—Who this Division applies to
(1) This Division applies to each of the
following:
(a) a
registrable offender who is currently a participant in the State Witness
Protection Program;
(b) a
registrable offender who is the subject of an order in force under this
Division declaring that he or she is a person to whom this Division applies.
(2) This
Division (except sections 56 to 58) also applies to a registrable offender
who is receiving protection under a foreign witness protection law specified by
the regulations for the purposes of this subsection, or who has the same status
as such a person under an order made under a corresponding law specified by the
regulations for the purposes of this subsection.
(3) In this Division—
State Witness Protection Program has the same meaning as in the Witness
Protection Act 1996.
Note—
Section 6(5) excludes from the definition of registrable
offender persons receiving protection under foreign witness protection
laws prescribed for the purposes of that section or who have the same status as
such persons under a corresponding law that is so prescribed.
55—Report need not be made in person
It is sufficient compliance with the
requirements of this Part—
(a) if
a person to whom this Division applies reports such of the information that he
or she is required to report under this Part as the Commissioner requires him
or her to report and does so at the times, and in a manner, authorised by the
Commissioner for the purposes of this section; and
(b) if
the acknowledgment of the making of a report is given in a manner approved by
the Commissioner.
56—Order as to whether Division applies
(1) The Commissioner must make an order
declaring that a registrable offender who is a participant in the State Witness
Protection Program either is, or is not, a person to whom this Division applies—
(a) when
the registrable offender ceases to be a participant in the program as a
consequence of a request under section 15(1)(a) of the Witness
Protection Act 1996; or
(b) when
the Deputy Commissioner makes a decision under section 15(1)(b) of the Witness
Protection Act 1996 that the protection and assistance provided to the
registrable offender under the program be terminated.
(2) On
making such an order, the Commissioner must take reasonable steps to notify the
registrable offender of the terms of the order.
(3) A
person who receives such a notification may, within 28 days after receiving it,
apply in writing to the Commissioner for a review of the order.
(4) On receiving an application for a review,
the Commissioner—
(a) must
review the order, and confirm or reverse it; and
(b) before
making a decision on the matter, must give the applicant a reasonable opportunity
to state his or her case; and
(c) after
making a decision on the matter, must given written notice of the decision to
the applicant.
(5) If
the decision of the Commissioner is to confirm the order, the notice of the
decision must inform the applicant of his or her rights under section 57.
(1) A
person who is aggrieved by a decision of the Commissioner in relation to an
order under this Division may appeal against the decision to the Administrative
and Disciplinary Division of the District Court.
(2) Subject
to this section, an appeal must be instituted within 1 month of the making of
the decision appealed against.
(3) The
Commissioner must, on application by a person affected by a decision that may
be the subject of an appeal, give the person a written statement of the reasons
for the decision.
(4) If
a written statement of the reasons for a decision is not given by the Commissioner
at the time of making the decision and the person affected by the decision,
within 1 month of the making of the decision, applies to the Commissioner for a
written statement of reasons for the decision, the time for instituting an
appeal runs from the time when the person receives the written statement of
reasons.
(1) An
order declaring that this Division applies to a registrable offender takes
effect immediately.
(2) An order declaring that this Division does
not apply to a registrable offender takes effect—
(a) at
the end of 28 days after notice of the making of the order is given to the
registrable offender; or
(b) if
an application referred to in section 56(3) is made before the end of that
period, at the end of 3 days after notice is given to the applicant as referred
to in section 56(4)(c); or
(c) if
an appeal is instituted under section 57, on the date on which the appeal
is determined,
whichever is the later.
59—Modification of ongoing reporting obligations
Sections 13(1), 17 to 20 and 47 apply with respect to a
person to whom this Division applies as if any reference in them to South
Australia were a reference to the jurisdiction in which the person generally
resides.
Part 4—The register of child sex offenders
60—Register of child sex offenders
(1) The
Commissioner is to establish and maintain a register of registrable offenders.
(2) The register is to contain the following
information in respect of each registrable offender (to the extent that it is
known by the Commissioner):
(a) the
registrable offender's name and other identifying particulars;
(b) details
of each class 1 or class 2 offence of which the registrable offender has been
found guilty or with which he or she has been charged;
(c) details
of each offence of which the registrable offender has been found guilty that
resulted in the making of a child sex offender registration order;
(d) details
of each restraining order made against the registrable offender under section
99AA of the Summary Procedure Act 1921;
(e) the
date on which the registrable offender was sentenced for any registrable
offence;
(f) the
date on which the registrable offender ceased to be in government custody in
respect of a registrable offence, or entered or ceased to be in government
custody in respect of any offence during his or her reporting period;
(g) any
information reported in respect of the registrable offender under Part 3;
(h) any
other information that the Commissioner considers appropriate to include in the
register.
61—Access to register to be restricted
(1) The
Commissioner must ensure that the register, or any part of the register, is
only accessed by a person, or a class of person, who is authorised to do so by
the Commissioner in accordance with guidelines approved in accordance with this
section.
(2) The
Commissioner must develop guidelines in relation to access to the register to
ensure that access to information contained in the register is restricted to
the greatest extent that is possible without interfering with the purpose of
this Act.
(3) Guidelines
developed under this section must be approved by the Minister.
(4) For
the purposes of this section, the register includes any information from any
register maintained under a corresponding law that is accessible by the
Commissioner, regardless of whether or not that information is physically part
of the register.
(5) This
section has effect despite any other Act or law to the contrary.
62—Restriction on who may access personal information on protected witnesses
The Commissioner must ensure that information in the register
about a person to whom Part 3 Division 9 applies that identifies, or might
identify, the person cannot be accessed other than by a person authorised by
the police officer or officer of an approved authority (within the meaning of
the Witness Protection Act 1996) responsible for the day to day
operation of the State Witness Protection Program.
63—Registrable offender's rights in relation to register
(1) If
asked, in writing, to do so by a registrable offender, the Commissioner must
provide the registrable offender with a copy of all the reportable information
that is held in the register in relation to the registrable offender.
(2) The
Commissioner must comply with subsection (1) as soon as practicable after
being asked to do so.
(3) A
registrable offender may make a written request to the Commissioner to amend
any reportable information held in the register in relation to the registrable
offender that is incorrect (and the Commissioner must, if satisfied that it is
incorrect, amend the information).
(4) The
Commissioner must take reasonable steps to notify the registrable offender as
to whether a request under subsection (3) is to be complied with.
(5) If
the Commissioner refuses to comply with such a request, the registrable
offender may, within 1 month after receiving notification of that decision,
apply in writing to the Police Complaints Authority for a review of the
decision.
(6) In
conducting a review under this section, the Police Complaints Authority may
exercise the same powers as it may exercise in conducting a review of a
determination under the Freedom of Information Act 1991.
(7) In this section—
reportable information means any information supplied to the
Commissioner by, or on behalf of, the registrable offender that the registrable
offender is required to report to the Commissioner and that is still held in
the register.
Part 5—Registrable offenders prohibited from child-related
work
(1) In this Part—
child-related work means work involving contact with a child
in connection with any of the following:
(a) pre-schools
or kindergartens;
(b) child
care centres;
(c) educational
institutions for children;
(d) child
protection services;
(e) juvenile
detention centres;
(f) refuges
or other residential facilities used by children;
(g) foster
care for children;
(h) hospital
wards or out-patient services (whether public or private) in which children are
ordinarily patients;
(i) overnight
camps regardless of the type of accommodation or of how many children are
involved;
(j) clubs,
associations or movements (including of a cultural, recreational or sporting
nature) with significant child membership or involvement;
(k) programs
or events for children provided by any institution, agency or organisation;
(l) religious
or spiritual organisations;
(m) counselling
or other support services for children;
(n) commercial
baby sitting or child minding services;
(o) commercial
tuition services for children;
(p) services
for the transport of children;
commercial baby sitting or child minding services means baby sitting or child minding
services that are provided on payment of a fee or reward;
commercial tuition services means tuition services (including of a
cultural, recreational or sporting nature) that are provided on payment of a
fee or reward;
contact means any form of contact between a
person and a child and includes—
(a) any
form of physical contact; and
(b) any
form of oral communication, whether face to face or by telephone; and
(c) any
form of written communication, including electronic communication;
educational institutions for children includes Government schools within the
meaning of the Education Act 1972 and non-Government schools
registered under Part 5 of that Act but does not include institutions the
principal function of which is the education of students at the tertiary level;
officer—
(a) in
relation to a body corporate that is a corporation within the meaning of the Corporations
Act 2001 of the Commonwealth, has the same meaning as in section 9 of
that Act; and
(b) in
relation to any other body corporate, means any person (by whatever name
called) who is concerned or takes part in the management of the body corporate;
work means—
(a) performance
of work—
(i) under
a contract of employment or a contract for services (whether written or
unwritten); or
(ii) as
a self-employed person or as a sub-contractor; or
(iii) as
a minister of religion or as part of the duties of a religious or spiritual
vocation; or
(b) undertaking
practical training as part of an educational or vocational course; or
(c) performance
of work as a volunteer including the performance of unpaid community work in
accordance with an order of a court.
(2) For the purposes of this Act (and without
limiting the circumstances in which a person may be found to be engaged in
child-related work) a person is engaged in child-related work if he or she is—
(a) an
officer of a body corporate that is engaged in child-related work; or
(b) a
member of the committee of management of an unincorporated body or association
that is engaged in child-related work; or
(c) a
member of a partnership that is engaged in child-related work.
65—Registrable offender excluded from child-related work
(1) A registrable offender must not—
(a) apply
for; or
(b) engage
in,
work that is child-related work.
Maximum penalty: Imprisonment for 5 years.
(2) In
proceedings for an offence against subsection (1), it is a defence to the
charge for the accused to prove that, at the time the offence is alleged to
have been committed, he or she did not know that the work was child-related
work.
66—Offence to fail to disclose charges
(1) A person engaged in child-related work
(including work under a contract for services) who is charged with a
class 1 or class 2 offence must disclose the charge to his or her
employer within 7 days after becoming aware of the filing of the charge or, in the
case of a charge that is pending immediately before the commencement of this
subsection, within 7 days after that commencement.
Maximum penalty: $5 000.
(2) A person who applies for work (including
work under a contract for services) that is child-related work and against whom
there is a pending charge of a class 1 or class 2 offence must
disclose the charge to his or her prospective employer at the time of making
the application.
Maximum penalty: $5 000.
(3) A person who has (whether before or after
the commencement of this subsection) applied for work (including work under a
contract for services) that is child-related work and who, while the
application is still current, is charged with a class 1 or class 2
offence must disclose the charge to his or her prospective employer within 7
days after becoming aware of the filing of the charge or, in the case of a
charge that is pending immediately before the commencement of this subsection,
within 7 days after that commencement.
Maximum penalty: $5 000.
(4) This
section does not apply in relation to a charge of a class 1 or class 2 offence
that was allegedly committed by a person while he or she was a child.
(5) In
proceedings for an offence against this section, it is a defence to the charge
for the accused to prove that, at the time the offence against this section is
alleged to have been committed, he or she did not know that the work was
child-related work.
67—Confidentiality of information
(1) A
person who has, or has had, access to information about a registrable offender
obtained under this Act must not disclose the information unless the disclosure
is made in accordance with the information disclosure principles set out in
Schedule 2.
(2) A person who intentionally or recklessly
discloses information in contravention of subsection (1) is guilty of an
offence.
Maximum penalty: Imprisonment for 5 years.
(3) A person who has, or has had, access to information
about a person obtained under section 66 must not disclose the information
except—
(a) to
a court or tribunal in the course of legal proceedings; or
(b) pursuant
to an order of a court or tribunal; or
(c) to
a law enforcement or prosecution authority of this State or of a foreign
jurisdiction or any other authority established by the government of this State
or of a foreign jurisdiction to facilitate law enforcement or the prosecution
of offences; or
(d) to
a legal practitioner for the purpose of obtaining legal advice or
representation; or
(e) with
the written authority of the person to whom the information relates; or
(f) to
the Police Complaints Authority, or the branch of South Australia Police
established under Part 3 of the Police (Complaints and Disciplinary
Proceedings) Act 1985, for the purposes of an investigation under that
Act or under this Act; or
(g) as
required or authorised by or under any Act or law.
(4) A person who intentionally or recklessly discloses
information in contravention of subsection (3) is guilty of an offence.
Maximum penalty: $5 000.
A person must not intentionally or
recklessly publish by newspaper, radio, television or in any other way, a
report containing information that has been disclosed in contravention of
section 67.
Maximum penalty: Imprisonment for 5 years.
69—State Records Act 1997 and Freedom of Information Act 1991 not to apply
(1) The
State Records Act 1997 does not apply to information obtained under
this Act.
(2) Information
obtained under this Act is not liable to disclosure under the Freedom of
Information Act 1991.
70—Immunity of persons engaged in administration of Act
(1) No
personal liability attaches to a person engaged in the administration of this
Act for an act or omission in good faith in the exercise or discharge, or
purported exercise or discharge, of official powers or functions.
(2) A
liability that would, but for subsection (1), lie against a person, lies
instead against the Crown.
71—Effect of spent convictions
(1) The fact that an offence in respect of
which a registrable offender has been found guilty becomes spent does not
affect—
(a) the
status of the offence as a registrable offence for the purposes of this Act in
respect of the registrable offender; or
(b) any
reporting obligations of the registrable offender.
(2) For
the purposes of this section, an offence becomes spent if, under a law in any
jurisdiction, the registrable offender is permitted to not disclose the fact
that he or she was convicted or found guilty of the offence.
(1) In proceedings under this Act, a
certificate signed by the Commissioner, or a police officer holding a position
designated in writing by the Commissioner for the purposes of this section,
certifying that the register—
(a) at
any particular date contained information specified in the certificate; or
(b) indicated
that, during any particular period, a specified person failed to notify
information as required by this Act,
is evidence, and in the absence of evidence to the contrary is
proof, of the details specified in the certificate.
(2) For
the purposes of this Act, a certificate that would be evidence under a
corresponding law that at a specified time, or during a specified period, a person
was required to report to a corresponding registrar under that Act is evidence,
and in the absence of evidence to the contrary is proof, of the facts stated in
the certificate.
(1) The
Governor may make such regulations as are contemplated by this Act or as are
necessary or expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1), the regulations may make provision as to the following
matters:
(a) matters
incidental to the making of reports under Part 3 including—
(i) the
manner and form in which a report must be made; and
(ii) the
nature of any verifying documentation or evidence to be produced in support of
a report; and
(iii) requiring
that a report contain additional information to that required by that Part;
(b) the
form of, or the information to be included in, any notice or other document
that is required by this Act to be given to registrable offenders;
(c) the
manner and form in which the register is to be established and maintained,
including the manner and form in which information is to be entered in the
register;
(d) requiring
or permitting the Commissioner to remove specified information, or information
of a specified class, from the register;
(e) the
notification of reporting obligations to registrable offenders, including the
following:
(i) the
manner and form in which the information is to be given to registrable
offenders;
(ii) permitting
the person notifying a registrable offender to ask the registrable offender to
acknowledge being given the notice;
(iii) making
special provision for the notification of registrable offenders who are
children or who have disabilities or other special needs;
(iv) permitting
or requiring a person or body to be notified of a registrable offender's status
as a child or person who has a disability or other special need to facilitate
notification and reporting;
(v) providing
for the notification to be given to a carer of, or a person nominated by, a
registrable offender who may be unable to understand his or her reporting
obligations or the consequences of failing to comply with those obligations;
(vi) requiring
that a registrable offender be given additional information to that required by
this Act;
(vii) requiring
a person or body to provide specified information to registrable offenders
concerning their reporting obligations;
(viii) requiring
a person or body to inform the Commissioner—
(A) that
a registrable offender has left the custody or control of the person or body;
or
(B) that
the person or body has given specified information to a registrable offender;
or
(C) that,
in the opinion of the person or body, a registrable offender does or does not
have the legal capacity to understand specified information;
(ix) requiring
a person or body to give the Commissioner any acknowledgment by a registrable
offender of the receipt of a notice or any other specified information that is
held by the person or body;
(f) empowering
the Commissioner to give directions as to which police stations are to be used
as a venue for the making of reports;
(g) providing
that a police station, or a class of police station, is not to be used as a
venue for the making of reports without the consent of the Commissioner;
(h) requiring
a person or body to create records for the purposes of this Act and to retain
those records for a specified period or an unlimited period;
(i) prescribing
any other matter required or permitted by this Act to be prescribed or that it
is necessary or convenient to prescribe to give effect to this Act.
(3) The regulations—
(a) may
be of general or limited application; and
(b) may
make different provision according to the persons, things or circumstances to
which they are expressed to apply; and
(c) may
require a matter affected by the regulations to be—
(i) in
accordance with a specified standard or specified requirement; or
(ii) approved
by, or to the satisfaction of, a specified person or a specified class of
person; or
(iii) as
specified in both subparagraphs (i) and (ii); and
(d) may
confer a discretionary authority or impose a duty on a specified person or a
specified class of person; and
(e) may
provide in a specified case or class of case for the exemption of persons or
things from any of the provisions of the regulations, whether unconditionally
or on specified conditions, and either wholly or to such an extent as is
specified; and
(f) may
impose a penalty not exceeding $2 500 for a contravention of the
regulations.
Schedule 1—Class 1 and 2 offences
Part 1—Preliminary
(1) In this Schedule—
sexual offence means any of the following offences
committed against a child:
(a) an
offence against section 48 of the Criminal Law Consolidation
Act 1935 (rape); or
(b) an
offence against section 49 of the Criminal Law Consolidation
Act 1935 (unlawful sexual intercourse); or
(c) an
offence against section 56 of the Criminal Law Consolidation
Act 1935 (indecent assault).
(2) A
description of an offence appearing in brackets in this Schedule is for
convenience of reference only.
Part 2—Class
1 offences
The following are class 1 offences:
(a) an
offence against section 11 of the Criminal Law Consolidation
Act 1935 (murder) if—
(i) the
victim was a child; and
(ii) the
offence arises from the same incident as a sexual offence;
(b) an
offence against section 29(1) of the Criminal Law Consolidation
Act 1935 (endangering the life of a person) if—
(i) the
person whose life was likely to be endangered was a child; and
(ii) the
offence arises from the same incident as a sexual offence;
(c) an
offence against section 39 of the Criminal Law Consolidation
Act 1935 (kidnapping) if the kidnapping was done with the intention of
committing a sexual offence against a child;
(d) an
offence against section 48 of the Criminal Law Consolidation
Act 1935 (rape) if the victim was a child;
(e) an
offence against section 49 of the Criminal Law Consolidation
Act 1935 (unlawful sexual intercourse);
(f) an
offence against section 59 of the Criminal Law Consolidation
Act 1935 (abduction) if the victim was a child;
(g) an
offence against section 66(1) of the Criminal Law Consolidation
Act 1935 (inflicting sexual servitude) if the victim was a child;
(h) an
offence against section 66(2) of the Criminal Law Consolidation
Act 1935 (unduly influencing a person to provide commercial sexual
services) if the victim was a child;
(i) an
offence against section 68(1) of the Criminal Law Consolidation
Act 1935 (use of a child in commercial sexual services);
(j) an
offence of persistent sexual abuse of a child (see section 74 of the Criminal
Law Consolidation Act 1935);
(k) an
offence resulting in the person being sentenced under section 20B(1)(b) of
the Criminal Law (Sentencing) Act 1988;
(l) an
indictable offence committed against a child that results in the person being
sentenced under section 23 of the Criminal Law (Sentencing)
Act 1988;
(m) a
conspiracy to commit, or an attempt to commit, an offence referred to in any of
the preceding paragraphs;
(n) an
offence of aiding, abetting, counselling or procuring the commission of an
offence referred to in any of the preceding paragraphs;
(o) an
offence against a law previously in force in this State that corresponds to an
offence referred to in any of the preceding paragraphs;
(p) an
offence against the law of a foreign jurisdiction that corresponds to an
offence referred to in any of the preceding paragraphs;
(q) an
offence against section 50BA, 50BB, 50DA or 50DB of the Crimes Act 1914
of the Commonwealth;
(r) an
offence against section 270.6 of the Criminal Code of the
Commonwealth if the victim was a child.
Part 3—Class
2 offences
The following are class 2 offences:
(a) an
offence against section 13 of the Criminal Law Consolidation
Act 1935 (manslaughter) if—
(i) the
victim was a child; and
(ii) the
offence arises from the same incident as a sexual offence;
(b) an
offence against section 29(2) of the Criminal Law Consolidation
Act 1935 (creating risk of serious harm to a person) if—
(i) the
person who was likely to suffer serious harm was a child; and
(ii) the
offence arises from the same incident as a sexual offence;
(c) an
offence against section 56 of the Criminal Law Consolidation
Act 1935 (indecent assault) if the victim was a child;
(d) an
offence against section 58 of the Criminal Law Consolidation
Act 1935 (gross indecency);
(e) an
offence against section 60 of the Criminal Law Consolidation
Act 1935 (procuring sexual intercourse) if the person procured to have
sexual intercourse was a child;
(f) an
offence against section 63 of the Criminal Law Consolidation
Act 1935 (production or dissemination of child pornography);
(g) an
offence against section 63A of the Criminal Law Consolidation
Act 1935 (possession of child pornography);
(h) an
offence against section 63B(1) or (3) of the Criminal Law Consolidation
Act 1935 (procuring child to commit an indecent act etc);
(i) an
offence of against section 67 of the Criminal Law Consolidation
Act 1935 (deceptive recruiting for commercial sexual services) if the
victim is a child;
(j) an
offence against section 68(2) or (3) of the Criminal Law Consolidation
Act 1935 (use of children in commercial sexual services);
(k) an
offence against section 72 of the Criminal Law Consolidation
Act 1935 (incest) if the person with whom the offender had sexual
intercourse was under the age of 17 years;
(l) a
conspiracy to commit, or an attempt to commit, an offence referred to in any of
the preceding paragraphs;
(m) an
offence of aiding, abetting, counselling or procuring the commission of an
offence referred to in any of the preceding paragraphs;
(n) an
offence against a law previously in force in this State that corresponds to an
offence referred to in any of the preceding paragraphs;
(o) an
offence against the law of a foreign jurisdiction that corresponds to an
offence referred to in any of the preceding paragraphs;
(p) an
offence against section 50BC or 50BD of the Crimes Act 1914 of the
Commonwealth;
(q) an
offence against section 270.7 of the Criminal Code of the
Commonwealth if the victim was a child;
(r) an
offence against section 271.4 of the Criminal Code of the
Commonwealth;
(s) an
offence against section 271.7 of the Criminal Code of the
Commonwealth;
(t) an
offence against section 474.19 of the Criminal Code of the
Commonwealth;
(u) an
offence against section 474.20 of the Criminal Code of the
Commonwealth;
(v) an
offence against section 474.22 of the Criminal Code of the Commonwealth;
(w) an
offence against section 474.23 of the Criminal Code of the Commonwealth;
(x) an
offence against section 474.26 of the Criminal Code of the
Commonwealth;
(y) an
offence against section 474.27 of the Criminal Code of the
Commonwealth.
Schedule 2—Information disclosure
principles
In this Schedule—
personal information means—
(a) information
obtained under this Act that identifies, or could reasonably identify, a person
as a registrable offender; or
(b) any
other information about a registrable offender obtained under this Act if the
recipient of the information is known to be aware that the person is a
registrable offender.
Example—
Disclosing the address of a registrable offender to a person who
knows that he or she is a registrable offender.
2—General principles governing disclosure
The following principles must be applied
in relation to the disclosure of personal information:
(a) the
information must not be disclosed unless—
(i) there
are good reasons for the disclosure; and
(ii) the
disclosure is otherwise made in accordance with this Schedule;
(b) an
assessment must be made before the information is disclosed of the risks
associated with disclosure and any risks associated with non-disclosure;
(c) the
information disclosed must be proportionate to the purpose of the disclosure;
(d) the
information disclosed must be reliable and accurate;
(e) details
of the disclosure must be documented.
If personal information may only be disclosed with authorisation
in accordance with clause 5, then the information must not be disclosed
unless the Commissioner, or a person authorised by the Commissioner for the
purpose of this Schedule, has given written authorisation for the disclosure.
4—Circumstances where information may be disclosed without authorisation
Personal information about a registrable
offender may be disclosed without authorisation in the following circumstances:
(a) if
the registrable offender consents to the disclosure of the information;
(b) if
the disclosure is required by an order of a court or tribunal;
(c) if
the disclosure is made to a supervising authority in connection with the
supervision of the registrable offender;
(d) if
the disclosure is made to a law enforcement or prosecution authority of this
State or of a foreign jurisdiction and is reasonably required for the purpose
of investigating a suspected registrable offence;
(e) if
the disclosure is made to a legal practitioner for the purpose of obtaining
legal advice or representation relating to a matter under this Act;
(f) if
the disclosure is made to the Police Complaints Authority, or the branch of
South Australia Police established under Part 3 of the Police
(Complaints and Disciplinary Proceedings) Act 1985, for the purposes
of an investigation under that Act or under this Act;
(g) if
the disclosure is required under any other Act or law;
(h) if
the disclosure is of a type prescribed by regulation for the purposes of this
clause.
5—Circumstances where information may be disclosed with authorisation
Personal information about a registrable
offender may only be disclosed with authorisation in the following
circumstances:
(a) if
the disclosure is to be made to a person exercising official duties under an
Act relating to the care or protection of children;
(b) if
the disclosure is made to a government or non-government agency for the purpose
of safeguarding the welfare of the registrable offender;
(c) if
the disclosure relates to information already in the public domain;
(d) if the disclosure is of a type prescribed by regulation for the purposes of this clause.