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


COMMUNITY PROTECTION (OFFENDER REPORTING) AMENDMENT BILL (NO. 2) 2011

                     Western Australia


Community Protection (Offender Reporting)
     Amendment Bill (No. 2) 2011

                        CONTENTS


       Part 1 -- Preliminary
 1.    Short title                                                2
 2.    Commencement                                               2
       Part 2 -- Community Protection
            (Offender Reporting) Act 2004
            amended
 3.    Act amended                                                3
 4.    Long title amended                                         3
 5.    Part 5A inserted                                           3
       Part 5A -- Publication of information
             about offenders
       Division 1 -- Preliminary
       85A.      Terms used                                  3
       85B.      Delegation by Commissioner                  4
       85C.      Commissioner not required to publish or
                 provide information                         4
       85D.      Restriction on information about protected
                 witnesses                                   4
       Division 2 -- Commissioner may publish information
       85E.      Application                                 4
       85F.      Commissioner may publish personal
                 details of certain reportable offenders     4
       85G.      Commissioner may publish photograph
                 and locality of certain persons             6
       85H.      Removal of photograph and locality from
                 website                                     9
       85I.      Commissioner may take into account
                 certain matters                            10



                          236--1                                  page i
Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011



Contents



              85J.      Commissioner may inform child's parent
                        or guardian whether specified person is a
                        reportable offender                         11
              85K.      Protection as to publication and other
                        provision of information                    12
              Division 3 -- Offences
              85L.      Conduct intended to incite animosity
                        towards or harassment of identified
                        offenders                                   13
              85M.      Publication, display and distribution of
                        identifying information                     14
      6.      Section 115 amended                                        15
              Part 3 -- Other Acts amended
              Division 1 -- Criminal Investigation (Identifying
                    People) Act 2002 amended
      7.      Act amended                                                16
      8.      Section 73 amended                                         16
              Division 2 -- Dangerous Sexual Offenders
                    Act 2006 amended
      9.      Act amended                                                16
      10.     Section 18 amended                                         16




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY



  Community Protection (Offender Reporting)
       Amendment Bill (No. 2) 2011


                               A Bill for


An Act to amend the Community Protection (Offender Reporting)
Act 2004 and to make consequential amendments to the Criminal
Investigation (Identifying People) Act 2002 and the Dangerous Sexual
Offenders Act 2006.



The Parliament of Western Australia enacts as follows:




                                                               page 1
    Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
    Part 1        Preliminary

    s. 1



1                          Part 1 -- Preliminary
2   1.       Short title
3            This is the Community Protection (Offender Reporting)
4            Amendment Act (No. 2) 2011.

5   2.       Commencement
6            This Act comes into operation as follows --
7             (a) Part 1 -- on the day on which this Act receives the
8                   Royal Assent;
9             (b) the rest of the Act -- on a day fixed by proclamation.




    page 2
      Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
           Community Protection (Offender Reporting) Act 2004        Part 2
                                                    amended

                                                                                s. 3


1     Part 2 -- Community Protection (Offender Reporting)
2                   Act 2004 amended
3    3.     Act amended
4           This Part amends the Community Protection (Offender
5           Reporting) Act 2004.

6    4.     Long title amended
7           In the long title after "may commit," insert:
8
9                to enable information to be published about certain
10               offenders,
11


12   5.     Part 5A inserted
13          After section 84 insert:
14


15                Part 5A -- Publication of information
16                          about offenders
17                          Division 1 -- Preliminary
18        85A.      Terms used
19                  In this Part --
20                  DSO supervision order means a supervision order
21                  under the Dangerous Sexual Offenders Act 2006;
22                  locality, of a person, means a description of the general
23                  locality, such as the town or suburb, in which the
24                  person resides;
25                  publish, except in section 85M, means make available
26                  for inspection by members of the public on a website
27                  maintained by the Commissioner.


                                                                         page 3
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1           85B.     Delegation by Commissioner
2                    The Commissioner may delegate under section 110 a
3                    power of the Commissioner under Division 2 only to a
4                    police officer who holds or is acting in the office of
5                    Deputy Commissioner or Assistant Commissioner.

6           85C.     Commissioner not required to publish or provide
7                    information
8                    Nothing in this Part requires the Commissioner to
9                    publish or provide information about any reportable
10                   offender or other person.

11          85D.     Restriction on information about protected
12                   witnesses
13                   Nothing in this Part authorises the Commissioner to
14                   publish or provide information about a person to whom
15                   Part 3 Division 10 applies.

16            Division 2 -- Commissioner may publish information
17          85E.     Application
18                   This Division has effect despite any written or other
19                   law to the contrary.

20          85F.     Commissioner may publish personal details of
21                   certain reportable offenders
22             (1)   In this section --
23                   personal details, in relation to a reportable offender,
24                   means the information listed in section 26(1) and --
25                     (a) includes a photograph or digital image of the
26                            offender; but
27                     (b) does not include any details that the offender
28                            reports under section 26(1)(e) or any other
29                            details that would identify a child.



     page 4
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
          Community Protection (Offender Reporting) Act 2004        Part 2
                                                   amended

                                                                            s. 5


1          (2)   The Commissioner may publish any or all of the
2                personal details of a reportable offender, other than a
3                reportable offender who is a child, if --
4                  (a) the Commissioner is satisfied that the
5                       reportable offender --
6                          (i) has failed to comply with any of his or
7                               her reporting obligations; or
8                         (ii) in purported compliance with Part 3, has
9                               provided information that is false or
10                              misleading in a material particular;
11                      and
12                 (b) the reportable offender's whereabouts are not
13                      known to the Commissioner.
14         (3)   The Commissioner may at any time --
15                (a) remove any or all of the personal details of a
16                     reportable offender from the website on which
17                     they are published under subsection (2); or
18                (b) again publish under subsection (2) any or all of
19                     the personal details of the reportable offender
20                     after their removal under paragraph (a).
21         (4)   If --
22                 (a)   the Commissioner has published any personal
23                       details of a reportable offender under
24                       subsection (2); and
25                 (b)   the reportable offender subsequently reports his
26                       or her whereabouts to the Commissioner under
27                       Part 3,
28               the Commissioner must, as soon as is practicable after
29               receiving the report, remove those personal details
30               from the website on which they are published.




                                                                      page 5
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1           85G.    Commissioner may publish photograph and locality
2                   of certain persons
3             (1)   In this section --
4                   Department of Corrective Services means the
5                   department of the Public Service principally assisting
6                   the Minister in the administration of the Prisons
7                   Act 1981;
8                   photograph includes a digital image;
9                   prescribed offence means a Class 1 offence, a Class 2
10                  offence or a sexual offence, as defined in the Evidence
11                  Act 1906 section 36A.
12            (2)   Subject to this section, the Commissioner may publish
13                  a photograph and the locality of a person, other than a
14                  person who is a child --
15                    (a) if the person is subject to a DSO supervision
16                         order and that order does not provide that the
17                         person's photograph and locality are not to be
18                         published under this section; or
19                    (b) if --
20                            (i) the person, after becoming a reportable
21                                  offender, commits and is found guilty of
22                                  a prescribed offence; and
23                           (ii) any offence committed by the person,
24                                  including the prescribed offence, is a
25                                  Class 1 offence or an offence committed
26                                  against a child under The Criminal Code
27                                  section 323 or 324;
28                         or
29                    (c) if --
30                            (i) the person has been found guilty of an
31                                  offence punishable by imprisonment for
32                                  5 years or more; and



     page 6
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
          Community Protection (Offender Reporting) Act 2004        Part 2
                                                   amended

                                                                              s. 5


1                         (ii)   on application by the Commissioner,
2                                that publication is authorised by the
3                                Minister on being satisfied that the
4                                person poses a risk to the lives or sexual
5                                safety of one or more persons, or
6                                persons generally.
7          (3)   If the Commissioner proposes to publish the
8                photograph and locality of a person under
9                subsection (2), the Commissioner --
10                 (a) must give the person written notice of the
11                       proposal and the reasons for it; and
12                 (b) must inform the person in that notice that he or
13                       she has a specified period (of not less than
14                       21 days) to make submissions or be heard in
15                       relation to the proposal; and
16                 (c) if subsection (2)(a) applies in relation to the
17                       person, must give written notice of the proposal
18                       to the chief executive officer of the Department
19                       of Corrective Services.
20         (4)   Before publishing the photograph and locality of the
21               person, the Commissioner must have regard to --
22                 (a) any submission made, or information or
23                       document provided, by the person within the
24                       period referred to in subsection (3)(b); and
25                (b) if notice is given under subsection (3)(c), any
26                       submission made by the chief executive officer
27                       of the Department of Corrective Services
28                       within the period of 21 days after that notice is
29                       given.
30         (5)   For the purposes of subsection (2)(c), it is not
31               necessary that the Minister be able to identify a risk to
32               a particular person or particular persons or a particular
33               class of persons.


                                                                       page 7
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1             (6)   In determining whether to authorise publication under
2                   subsection (2)(c), the Minister may take into account
3                   the following --
4                     (a) any medical, psychiatric, psychological or other
5                           assessment relating to the person;
6                     (b) any information indicating whether or not the
7                           person is likely to commit a prescribed offence
8                           in the future;
9                     (c) whether or not there is any pattern of offending
10                          behaviour on the part of the person;
11                    (d) the person's antecedents and the seriousness of
12                          his or her total criminal record;
13                    (e) the person's age and the age of any victims of
14                          any offences committed by the person at the
15                          time those offences were committed;
16                     (f) the difference in age between the person and
17                          any victims of those offences;
18                    (g) any other matter the Minister considers
19                          relevant.
20            (7)   The Commissioner must provide with an application
21                  under subsection (2)(c) any information available to the
22                  Commissioner that is relevant to the Minister's
23                  determination whether to authorise publication.
24            (8)   The fact that an offence in respect of which a person
25                  has been found guilty becomes spent does not affect
26                  the consideration of the offence as part of the person's
27                  total criminal record for the purposes of
28                  subsection (6)(d).




     page 8
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
          Community Protection (Offender Reporting) Act 2004        Part 2
                                                   amended

                                                                          s. 5


1       85H.     Removal of photograph and locality from website
2          (1)   The Commissioner may at any time --
3                 (a) remove the photograph and locality of a person
4                      from the website on which they are published
5                      under section 85G(2); or
6                 (b) again publish under section 85G(2) the
7                      photograph and locality of a person after their
8                      removal under paragraph (a).
9          (2)   If --
10                 (a)   the Commissioner has published a photograph
11                       and the locality of a person under
12                       section 85G(2)(a); and
13                 (b)   the person ceases to be subject to the DSO
14                       supervision order; and
15                 (c)   neither section 85G(2)(b) nor (c) applies in
16                       relation to the person,
17               the Commissioner must, as soon as is practicable,
18               remove the photograph and locality from the website
19               on which they are published.
20         (3)   If --
21                 (a)   the Commissioner has published a photograph
22                       and the locality of a person under
23                       section 85G(2)(b); and
24                 (b)   the person's reporting obligations expire; and
25                 (c)   neither section 85G(2)(a) nor (c) applies in
26                       relation to the person,
27               the Commissioner must, as soon as is practicable,
28               remove the photograph and locality from the website
29               on which they are published.




                                                                     page 9
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1           85I.     Commissioner may take into account certain
2                    matters
3              (1)   In determining whether or not --
4                      (a) to publish any personal details of a person who
5                            is a reportable offender under section 85F(2) or
6                            a photograph and the locality of a person under
7                            section 85G(2) (the identifying information);
8                            or
9                      (b) to remove the identifying information from a
10                           website under section 85F(3) or 85H(1),
11                   the Commissioner may take into account the matters to
12                   which this section applies.
13             (2)   This section applies to these matters --
14                    (a) whether the publication of the identifying
15                          information about a person would interfere
16                          with --
17                             (i) an investigation by police officers in
18                                  relation to the person; or
19                            (ii) the person's compliance with the
20                                  reporting obligations of this Act; or
21                           (iii) the operation of a community order
22                                  under the Sentencing Act 1995, a DSO
23                                  supervision order or any other order or
24                                  requirement under a written law to
25                                  which the person is subject;
26                    (b) whether the publication of the identifying
27                          information about the person might identify a
28                          victim of an offence, or the school attended by
29                          a victim of an offence, committed by the
30                          person;
31                    (c) the effect that the publication of the identifying
32                          information about the person might have on a
33                          victim of an offence committed by the person;

     page 10
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
          Community Protection (Offender Reporting) Act 2004        Part 2
                                                   amended

                                                                            s. 5


1                  (d)   whether, in statements made by the victim to
2                        the Commissioner, the publication of the
3                        identifying information about the person has
4                        been supported or opposed by a victim of an
5                        offence committed by the person;
6                  (e)   whether the publication of the identifying
7                        information about the person would increase
8                        the risk of the person committing offences;
9                  (f)   the Commissioner's assessment of the benefit
10                       to the community of the publication of the
11                       identifying information about the person;
12                 (g)   if the identifying information is about a person
13                       who is awaiting trial on a charge of an
14                       offence -- whether the publication of the
15                       identifying information might prejudice the fair
16                       trial of the person;
17                 (h)   any other matter the Commissioner considers
18                       relevant.

19      85J.     Commissioner may inform child's parent or
20               guardian whether specified person is a reportable
21               offender
22         (1)   A person may apply to the Commissioner to be
23               informed whether or not a person specified in the
24               application (the specified person), other than a person
25               who is a child, is a reportable offender.
26         (2)   The application must be made in a manner approved by
27               the Commissioner.
28         (3)   The applicant must provide, in support of the
29               application, any evidence required by the
30               Commissioner to be satisfied that the specified person
31               has regular unsupervised contact with a child of whom
32               the applicant is a parent or guardian.



                                                                     page 11
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1              (4)   For the purposes of subsection (3), a person does not
2                    have regular unsupervised contact with a child unless
3                    he or she has unsupervised contact with the child for at
4                    least 3 days (whether consecutive or not) in any period
5                    of 12 months.
6              (5)   If the Commissioner is satisfied that the specified
7                    person has regular unsupervised contact with a child of
8                    whom the applicant is a parent or guardian, the
9                    Commissioner may inform the applicant whether or not
10                   the specified person is a reportable offender.

11          85K.     Protection as to publication and other provision of
12                   information
13             (1)   In this section --
14                   information includes the identifying information
15                   referred to in section 85I.
16             (2)   If the Commissioner determines in good faith --
17                     (a) to publish or provide any information under this
18                           Division; or
19                     (b) not to publish or provide any information under
20                           this Division,
21                   no civil or criminal liability attaches to the
22                   Commissioner or the State by reason of publishing or
23                   providing that information or omitting to publish or
24                   provide that information.
25             (3)   If information is published or provided by the
26                   Commissioner under this Division, that publication or
27                   provision of information is not to be regarded --
28                     (a) as a breach of any duty of confidentiality or
29                           secrecy imposed by law; or
30                     (b) as a breach of professional ethics or standards
31                           or as unprofessional conduct.


     page 12
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
          Community Protection (Offender Reporting) Act 2004        Part 2
                                                   amended

                                                                            s. 5


1                          Division 3 -- Offences
2       85L.     Conduct intended to incite animosity towards or
3                harassment of identified offenders
4          (1)   In this section --
5                animosity towards means hatred of or serious contempt
6                for;
7                harassment includes threat, serious and substantial
8                abuse and severe ridicule;
9                identified offender means --
10                 (a) a person whose personal details are published
11                        by the Commissioner under section 85F; or
12                 (b) a person whose photograph and locality are
13                        published by the Commissioner under
14                        section 85G; or
15                 (c) a person in relation to whom the Commissioner
16                        provides the information under section 85J that
17                        the person is a reportable offender;
18               public place includes --
19                 (a) a place to which the public, or any section of
20                        the public, has or is permitted to have access,
21                        whether on payment or otherwise; and
22                 (b) a privately owned place to which the public has
23                        access with the express or implied approval of,
24                        or without interference from, the owner,
25                        occupier or person who has the control or
26                        management of the place; and
27                 (c) a school, university or other place of education,
28                        other than a part of it to which neither students
29                        nor the public usually have access.
30         (2)   A reference in subsection (4) or (5) to conduct includes
31               a reference to conduct occurring on a number of
32               occasions over a period of time.


                                                                      page 13
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 2        Community Protection (Offender Reporting) Act 2004
                   amended

     s. 5


1              (3)   For the purposes of subsection (4) or (5), conduct is
2                    taken not to occur in private if it --
3                      (a) consists of any form of communication with the
4                            public or a section of the public; or
5                      (b) occurs in a public place or in sight or hearing of
6                            people who are in a public place.
7              (4)   A person must not engage in any conduct, otherwise
8                    than in private, by which the person intends to create,
9                    promote or increase animosity towards, or harassment
10                   of, a person as an identified offender.
11                   Penalty: imprisonment for 10 years.
12             (5)   An offence under subsection (4) is a crime.
13             (6)   A person must not engage in any conduct, otherwise
14                   than in private, that is likely to create, promote or
15                   increase animosity towards, or harassment of, a person
16                   as an identified offender.
17                   Penalty: imprisonment for 2 years.

18          85M.     Publication, display and distribution of identifying
19                   information
20             (1)   In this section --
21                   display means display in or within view of a public
22                   place, as defined in section 85L(1);
23                   distribute means distribute to the public or a section of
24                   the public;
25                   identifying information means information that is
26                   identifiable as --
27                     (a) the personal details of a person published by
28                            the Commissioner under section 85F; or
29                     (b) the photograph and locality of a person
30                            published by the Commissioner under
31                            section 85G; or


     page 14
      Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
           Community Protection (Offender Reporting) Act 2004        Part 2
                                                    amended

                                                                                  s. 6


1                        (c)   the information that a person is a reportable
2                              offender provided by the Commissioner under
3                              section 85J;

4                      publish means publish to the public or a section of the
5                      public.
6                (2)   A person must not, without having first obtained the
7                      written approval of the Minister, publish, distribute or
8                      display any identifying information.
9                      Penalty: imprisonment for 2 years.
10


11   6.          Section 115 amended
12        (1)    After section 115(1) insert:
13

14              (2A)   The Minister must carry out a review of the operation
15                     and effectiveness of the amendments made to this Act
16                     by the Community Protection (Offender Reporting)
17                     Amendment Act (No. 2) 2011 as soon as is practicable
18                     after the third anniversary of the coming into operation
19                     of section 5 of that Act.
20

21        (2)    In section 115(2) delete "the review" and insert:
22

23               each review
24




                                                                            page 15
     Community Protection (Offender Reporting) Amendment Bill (No. 2) 2011
     Part 3        Other Acts amended
     Division 1    Criminal Investigation (Identifying People) Act 2002 amended
     s. 7



1                     Part 3 -- Other Acts amended
2           Division 1 -- Criminal Investigation (Identifying People)
3                            Act 2002 amended
4    7.        Act amended
5              This Division amends the Criminal Investigation (Identifying
6              People) Act 2002.

7    8.        Section 73 amended
8              After section 73(1)(nb) insert:
9

10                   (nc)    for the purposes of the Community Protection
11                           (Offender Reporting) Act 2004 section 85F or
12                           85G;
13


14        Division 2 -- Dangerous Sexual Offenders Act 2006 amended
15   9.        Act amended
16             This Division amends the Dangerous Sexual Offenders
17             Act 2006.

18   10.       Section 18 amended
19             After section 18(2) insert:
20

21             (3)   Without limiting subsection (2), the supervision order
22                   may provide that the photograph and locality of the
23                   person are not to be published under the Community
24                   Protection (Offender Reporting) Act 2004 section 85G.
25




 


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