Our criminal law clerk, Stefanie Schilkowski outlines the amendment to the Child Protection legislation.
CHILD PROTECTION – TOUGH, STREAMLINED AND HOLISTIC NEW LAWS?
Following the 2013 review by the Crime and Corruption Commission of the Child Protection (Offender Prohibition Order) Act 2008, the bill was introduced late 2016. In short, it means greater police powers (by amending the Police Powers and Responsibilities Act), extending protection to community members/children, an amalgamation of current laws and amendments to offender reporting.
Current Child Protection Reporting Regime
Queensland currently separates its offender reporting legislation into two distinct but linked Acts; The:
- Child Protection (Offender Reporting) Act 2004, placing reporting obligations on offenders, reporting personal details and whereabouts.
- Child Protection (Offender Prohibition Order) Act 2008, provides for the protection of the lives and sexual safety of children by regulating day to day conduct of relevant* sexual offenders through the issue of Offender Prohibition Orders (OPOs).
New Child Protection Bill
The new Bill amalgamates both laws and the Explanatory Notes state that the policies to be implemented by the Bill include:
- OPO applications can now be heard concurrent with the associated criminal proceeding. The Court can now make any OPO with the consent of the offender but where the interests of justice are not satisfied the court will be required to conduct a hearing.
- The court will have wider criteria to determine whether the relevant sexual offender is able to consent to the order, i.e. whether the offender has a cognitive disability, mental illness or an addiction, which impedes the person’s capacity to consent.
- The maximum penalty has now increased to five years imprisonment or 300 Penalty Units for offences associated with reporting and compliance under the new bill.
- Who is considered a reportable offender? There are occasions where a person escapes this classification simply because of the manner in which an indictment is presented to the court or because the person pleads to a lesser offence. To this, the Palaszczuk government says no more. Anyone who intends, attempts or commits sexual or particular other serious offences against a child will be liable to an offender reporting order where the court is satisfied that the facts and circumstances of the indicted offence contain elements of a reportable offence.
- The bill also strengthens the obligations placed on reportable offenders in relation to travel, contact with children and reporting information. In this regard, reportable offenders will be required to report any contact with children who reside outside of Queensland where that contact is beyond the incidental contact of daily life. This includes online contact, telephone contact, written contact and physical contact. Reportable offenders will also be required to report the details of any children they travel with or intend or expect to have contact with the outside of Queensland. The time frames associated with reporting travel have been reduced from seven days to 48 hours, minimising the opportunity for reportable offenders to leave Queensland undetected for short periods of time. The bill will also require reportable offenders to report the cessation of any personal particulars which are required to be reported—for example, the sale of a car or a house. This will ensure that the information held on the National Child Offender System is accurate and relevant.
- The bill tightens reporting requirements in relation to contact with children interstate. This is a response to the development of information technology and messaging software.
- Reporting obligations can be suspended where an offender has a significant mental illness.
- Greater Police Powers – which allow police to require access information (e.g. passwords) to electronic devices where there is a reasonable suspicion that the offender has committed an offence and to allow police to inspect those devices.
- Other protective mechanisms include restricting the number of times police can inspect a device in the possession of a reportable offender who has been convicted of a prescribed internet offence to four times in each 12-month period. Any further inspections would require approval by a magistrate and must be based on increased risk. All inspections based on increased risk are required to be approved by a magistrate. Every inspection will be recorded in the enforcement acts register and a report detailing the number of inspections undertaken, the outcomes of those inspections and any action taken by police as a result of each inspection will need to be tabled in parliament each year.
- An offender who fails to provide access information will commit an offence and will be liable to a penalty of up to 300 penalty units or five years imprisonment. While there is no provision for self-incrimination for failing to comply with a requirement to give access information, police must apply to a magistrate for a post approval order after a requirement has been made. A reportable offender will not commit an offence for failing to comply with a requirement for access information where a magistrate does not make a post approval order.
- The bill also provides police with additional opportunities to take fingerprints and photographs.
- Last but not least the new section 77B prohibits the cross-examination of child witnesses by unrepresented respondents.
This Bill relocates the provisions of the Child Protection (Offender Prohibition Order) Act 2008 into a newly created Part 3A of the Child Protection (Offender Reporting) Act 2004 to remove inconsistencies which have occurred as a consequence of separate regulatory regimes. The Child Protection (Offender Prohibition Order) Act 2008 will be repealed upon the commencement of the amalgamated legislation.
Explanatory notes
For a more extensive and detailed report on changes to the current laws please see the explanatory notes at Queensland Parliament website – Bill, Explanatory Note, Explanatory Speech
*Relevant sexual offenders are reportable offenders, previous reportable offenders and offenders who would have been reportable offenders had their sentences not been completed prior to the introduction of the offender reporting legislation
Disclaimer
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For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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