Mongrel Mob to be outlawed in Queensland

It is expected that New Zealand’s, Mongrel Mob, will be declared an ‘identified organisation’, under the Serious and Organised Crime Legislation Amendment Act 2016

The declaration comes following purported intelligence gathered by the Police Commissioner advising that there is evidence of Mongrel Mob activity in Queensland. The power to declare the gang an identified organisation is an unfettered discretion of the executive branch and is not the subject of any judicial scrutiny. [Read more…]

Sentencing Advisory Council – Intermediate Sentencing Options and Parole

Criminal lawOn 26 October 2017, the Sentencing Advisory Council received Terms of Reference from the Attorney General regarding “community-based sentencing orders, imprisonment and parole options”.  At the core of the sentencing process is the effective rehabilitation, reintegration and supervision of prisoners released into the community.  Other than those serving a life sentence, there must be an acknowledgment that at some point an offender will be released back into the community.  Parole is crucial in reducing the risk of re-offending by those under supervision, prior to the end of their sentence.

Sofronoff Report

The terms of reference are in response to the recommendations in the 2016 Queensland Parole System Review Final Report undertaken by the new president of the Court of Appeal, Walter Sofronoff.  The examination of the parole system in followed widely published media reports of the alleged murder of Elizabeth Kippin by a man on parole.

Sentencing Advisory Council terms of reference

During the 18-month review, the Sentencing Advisory Council will look at recommendations 2–5 of the Sofronoff Report:

  • Recommendation 2: Court ordered parole should be retained.
  • Recommendation 3: A Court should have the discretion to set a parole release date or a parole eligibility date for sentences of greater than three years where the offender has served a period of time on remand and the Court considers that the appropriate further period in custody before parole should be no more than 12 months from the date of sentence.
  • Recommendation 4: A suitable entity, such as the Sentencing Advisory Council, should undertake a review into sentencing options and in particular, community-based orders to advise the Government of any necessary changes to sentencing options.
  • Recommendation 5: Court ordered parole should apply to a sentence imposed for a sexual offence.

Legislation

The review will consider the relevant legislation, including

  1. Penalties and Sentences Act 1992; and
  2. Corrective Services Act 2006

Consultation

As part of the review, The Queensland Sentencing Advisory Council will consult with:

  1. Members of the public;
  2. the judiciary;
  3. legal profession;
  4. victim of crime groups;
  5. prisoner advocacy and support groups; and
  6. relevant government agencies.

Key Dates

  1. consultation paper and call for submissions – 2018:
  2. The Queensland Sentencing Advisory Council is to report back by 30 April 2019.

 

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Welcome Return Of Drug Court To Queensland Courts

Law BooksIn acknowledging the link between addiction and the commission of criminal offences, the Queensland government has reinstated the Drug Court in Queensland.  This court recognises that rehabilitation is often the best way of achieving the objective of keeping the community safe from recidivist offenders, who might otherwise be unable to give up their drug and/or alcohol addiction.

On 24 October, the Queensland parliament passed the Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Bill 2017.  This bill is not only re-established the previous regime but expands it to include alcohol as a relevant drug.

In her August 10 Media Release, the Attorney General said that the bill introduces  “a new sentencing option that allows a court to place a Drug and Alcohol Treatment Order on those whose offending is directly linked to their severe drug or alcohol use, which will help put them back on the right path in life, away from re-offending in the long term.”

The primary policy objective of the legislation is to insert a new sentencing option into the Penalties and Sentences Act 1992 to respond to those offenders whose offending is linked to their severe drug or alcohol use.

The legislation follows 2016, Drug and Specialist Courts Review.  The drug court is aimed at addressing severe substance abuse.  The Review’s Final Report was tabled in the Queensland Legislative Assembly on 13 June 2017 and included 39 key recommendations.

 

Mrs D’Ath in her 24 October media release said the new Drug and Alcohol Court pilot in Brisbane should be operational in November.

Creation of a Drug and Alcohol Treatment Order

The Bill will insert a new part 8A into the Penalties and Sentences Act to provide for the establishment, imposition and management of a new sentencing order in Queensland called a Drug and Alcohol Treatment Order (treatment order).

New part 8A of the Penalties and Sentences Act will provide for the making of a treatment order.  The order is designed to facilitate the rehabilitation of offenders by providing judicial supervision combined with therapeutic treatment, to reduce the offender’s substance use.  The previous drug court demonstrated that this regime reduced the level of criminal activity associated with addiction.

Eligibility for a drug court treatment order

A treatment order may only be made for an offender if the offender has a severe substance use disorder and the disorder has contributed to the commission of an offence.

Severe substance use disorder

“Severe substance use disorder” is defined as a disorder prescribed by Regulation, or if not prescribed, as a substance use disorder estimated to be severe under the Diagnostic and Statistical Manual of Mental Disorders 5th Edition, as published by the American Psychiatric Association in 2013.

This ensures that the legislation will be able to adapt to any developments in the science surrounding the recognition and classification of disorders associated with the use of drugs or alcohol.

Types of offences

An offender may proceed through the drug court in respect of either:

  1. a summary offence; or
  2. an indictable offence, that is dealt with summarily.

Included offences

Offences involving violence may be subject to a drug court treatment order, however, as the person will be released back into the community as part of the sentence, the court must not make a treatment order if it is satisfied that the offender would pose an unacceptable risk to the safety and welfare of community members.

Excluded offences

  1. sexual assault offences,
  2. offenders who are subject to a parole order; or
  3. offenders who are serving a term of imprisonment

Balance of treatment order

A drug court treatment order comprises of two parts:

Custodial part – A term of imprisonment of up to four years which is suspended for a designated period of up to five years;

Rehabilitation part  – A period of at least two years that requires compliance with core conditions including:

  1. not commit another offence,
  2. appear before the court as and when directed;
  3. report any change in residence;
  4. report any change in employment;
  5. report to a review team member or an authorised corrective services officer as required; and
  6. to comply with every reasonable direction given by the court, a review team member, or an authorised corrective services officer.

Consequence of non-compliance with treatment order

The court must have regard to a number of considerations, including:

  1. the extent of the offender’s general compliance,
  2. the nature and seriousness of the non-compliance; and
  3. any other consideration that would make the particular order unjust in the circumstances.

Where the court is satisfied that the offender has demonstrated non-compliance with the rehabilitation part of the treatment order the court may:

  1. impose further conditions to achieve the purpose of the treatment order;
  2. require the offender to perform community service; order the person serve a period of the suspended sentence of up to seven days; or
  3. revoke the rehabilitation part of the treatment order and order that the offender serve all or part of the suspended sentence.

Recognition of compliance with a treatment order

The court may cancel either the whole or part of a rehabilitation part of the treatment order if it considers that the offender has complied or substantially complied with the treatment program and that continuation of the rehabilitation part is not necessary to achieve the purpose of the treatment order.

The court may amend the rehabilitation part by amending the conditions of the treatment order, including amending the type or frequency of alcohol or drug testing.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

 

Proposed penalties for driving offences leading to death or serious injury

The Queensland government is currently considering introducing a new mid-range driving offence between the existing Criminal Code offence of Dangerous Driving, and the TORUM offence of Driving without Due Care and Attention offence.  The proposed offence will include a circumstance of aggravation for offending drivers who cause death or grievous bodily harm in the commission of the offence of Driving without Due Care and Attention, where they were driving whilst unlicensed or their license was suspended, or disqualified.  The proposal follows the Coroners recommendations in the matter of Audrey Anne Dow.

Inquest into the death of Audrey Anne Dow

Audrey Anne Dow passed away at Mackay Base Hospital on 31 July 2013, from injuries sustained in a motor vehicle accident. The collision occurred when Aaron John Kite crossed over the continuous double centre line and collided head-on with Ms Dow’s vehicle. Mr Kite was disqualified from driving at the time of the collision.  Mr Kite was fined $4000 for the offence of driving without due care and attention.  He was again disqualified from holding or obtaining a drivers license.

The Coroner David O’Connell examined whether the available offences applicable to the circumstances of the incident should be reviewed.  He delivered his findings of inquest on 6 March 2015.

In particular the Coroner O’Connell determined that:

Clearly the law in Queensland needs to change to allow for a mid-range offence. In addition it may be appropriate that the present driving laws be amended to have a specific circumstance of aggravation for driving without due care and attention where the offending driver causes grievous bodily harm or death; and where they were driving while either unlicensed, suspended, or disqualified.

Careless Driving

The offence of careless driving of motor vehicles, is less serious than the criminal offence of Dangerous Operation of a motor vehicle. In order to make out the offence, the prosecution must prove that a person drove without due care and attention or without reasonable consideration for other road users.

It is suggested that effect could be given to the coroner’s recommendation by amending section 83 of the TORUM to create a circumstance of aggravation (punishable by a higher maximum penalty) where the careless driving caused the death of or the grievous bodily harm to another person.

A further aggravated penalty could apply where the driving caused the death of or the grievous bodily harm to another person and at the time of the driving, the offender had been disqualified from driving or was unlicensed to hold a driver license.

Proposed mandatory minimum licence disqualification

The changes include proposed mandatory minimum licence disqualification periods and an increase to the maximum penalty for offences causing death or grievous bodily harm.

Careless Driving causing death or GBH

  • Current max penalty – $5,046 or 6 months imprisonment (3 demerit points).
    • No minimum licence disqualification period.
  • Proposed max penalty – $10,092 or 12 months imprisonment (3 demerit points) and
    • Minimum licence disqualification period of at least 6 months.
  • Proposed max penalty (with circumstances of aggravation) – $20, 184 or 2 years imprisonment and
    • minimum licence disqualification of at least 6 months.

Dangerous Driving causing death or GBH

  • Current max penalty – 10 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty -10 years imprisonment; and
    • minimum licence disqualification period of at least 12 months
  • Current max penalty (with circumstances of aggravation) – 14 years imprisonment; and
    • minimum licence disqualification period 6 months
  • Proposed max penalty (with circumstances of aggravation) -14 years imprisonment; and
    • minimum licence disqualification period of at least 12 months.

Are you facing charges relating to dangerous driving or careless driving? Contact the traffic law experts at Gatenby Criminal Law today on  (07) 5580 0120 or contact us online.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Industrial Manslaughter Offence Introduced to Queensland

Drink Driving OffenceOn 12 October 2017, the Minister for Employment and Industrial Relations, Grace Grace, announced the introduction of “Tough new industrial manslaughter laws” in Queensland.  With maximum penalties of 20 years imprisonment for an individual, and a maximum fine of $10 million for a corporate offender, the new Industrial Manslaughter laws are significant.

The new Industrial Manslaughter laws were prompted by the 2016, workplace fatalities at Dreamworld, where four people lost their lives on the Thunder River Rapids Ride; and at Eagle Farm, where two workers were crushed when a precast concrete slab toppled over.  These incidents prompted the Government to engage Tim Lyons to review the Workplace Health and Safety Laws.  His report, “Best Practice Review of Workplace Health and Safety Queensland” was completed on 3 July 2017.

The Work Health and Safety and Other Legislation Amendment Bill 2017, creates two new offences: a senior officer offence and a corporate offence, where conduct negligently causes the death of a worker. The existing standard for criminal negligence is proposed to be applied, with a maximum penalty for an individual of 20 years imprisonment and a maximum fine of 100,000 penalty units, or $10 million for a body corporate.

The Bill introduces a new part 2A titled “Industrial Manslaughter” into the Work Health and Safety Act 2011.  The legislation defines in section 34A two classes of people:

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

senior officer, of a person conducting a business or undertaking, means—

(a)if the person is a corporation—an executive officer of the corporation; or

(b)otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

Offence

(1) A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

Conduct

A persons conduct causes death if the conduct substantially contributes to the death.  Further the Act provides that conduct includes not only a positive act but an omission to do an act.  It is imperative that employers are aware of their obligations to ensure that workplace undertakings are not conducted negligently.

Negligence

While the existing standard of proof in Queensland for criminal negligence will be applied industrial manslaughter offences, the new charge is for behaviour and attitudes that exceed that of recklessness under category 1 offences.

The guidelines for industrial manslaughter prosecutions are identical to those for manslaughter under the Criminal Code.

Defences

It is a defence to the charge to demonstrate that the accused is a volunteer.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Proposed Bill to prohibit DV Respondents from holding explosives licence

Following on from the Queensland Government’s Not Now Not Ever policy, the Land, Explosives and Other Legislation Amendment Bill has been introduced into parliament.  The aim of the proposed legislation is to prohibit those with Domestic and Family Violence protection orders against them from holding an explosives licence.

Currently Queensland is the largest user of explosives in Australia, predominately in the mining industry, using approximately one third of the three million tonnes consumed annually.

In Queensland, ‘explosives’ is defined in Schedule 2 of the Explosives Act and includes:

  1. ammunition,
  2. blasting explosives,
  3. distress signals,
  4. flares,
  5. fireworks,
  6. propellants; and
  7. pyrotechnics.

The Bill will amend the Explosives Act 1999 to prohibit a person who is the subject of a domestic violence order from obtaining an explosives licence, or alternatively, if they are in possession of a licence the licence will be immediately suspended.

It has always been the case that a Respondent to a DV order was unable to possess a firearm, however the proposed legislation will have far reaching consequences, particularly given the wide definition of ‘explosives’ under the act.

Employees who are required to hold an explosives licence to either purchase, possess, use, transport and store explosives will be unable to maintain their employment.  With DV orders now generally in operation for five years there will be some real concern if this legislation is to pass.

Process

The chief inspector may decide to give a security clearance to the applicant only if satisfied the applicant is a suitable person to hold the security clearance. In making the determination the chief inspector is to consider the applicants criminal history and relevantly whether the applicant has, at any time, been named as the respondent in a  domestic violence order or police  protection notice; and whether release conditions have, at any  time, been imposed on the applicant under the Domestic and Family Violence Protection Act 2012, section 125;

In particular the Applicant will be deemed not to be a suitable person to hold the security clearance if either:

  1. the applicant is named as the respondent in a  domestic violence order, or police protection notice, that is in force; or
  2. release conditions have been imposed on the applicant under the Domestic and Family Violence Protection Act 2012, section 125 and the release conditions are in force.

For assistance with Domestic Violence legislation, Gatenby Criminal Lawyers are able to assist.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Criminal Law (Historical Convictions Expungement) Bill 2017

 

On Tuesday 10 October 2017, the Queensland Parliament passed The Criminal Law (Historical Convictions Expungement) Bill 2017.  The purpose of the legislation is to expunge historical convictions for eligible homosexual offences prior to the 1991 amendments.

Criminal offences

Consensual adult male homosexual activity ceased to be a criminal offence in Queensland on 19 January 1991, however a number of historical convictions remain on criminal histories.  The Criminal Code and Another Act Amendment Act 1990 repealed offences relating to homosexual activity, namely sections:

  • 208(1) and (3) (Unnatural offences);
  • 209, (Attempt to commit unnatural offences); and
  • 211, (Indecent practices between men).

Anecdotal evidence also suggests that some historical convictions relate to prosecutions using public order offences contained in the now repealed Vagrants, Gaming and Other Offence Act 1931 (Qld) and section 227(1) of the Criminal Code.

Law Reform Commission Report

On 29 November 2016, the QLRC’s report, “Expunging criminal convictions for historical gay sex offences‘  was tabled in the Legislative Assembly. The Report recommended the creation of a new legislative framework to allow for the expungement, on application, of convictions for historical Criminal Code offences from a person’s criminal history in certain circumstances.

Under the legislation, the Director-General of the Department of Justice and Attorney-General will be responsible for deciding applications for expungement. Decisions will also be able to be reviewed by the Queensland Civil and Administrative Tribunal.

Eligible Offence

An eligible offence is:

  1. A criminal code male homosexual offence; or
  2. A public morality offence; or
  3. Another offence prescribed by regulation.

Who may apply

A person who was convicted of, or charged with, an eligible offence before 19 January 1991,  can apply to have records expunged for eligible offences.  If the eligible person died after 19 January 1991, the application may be made by the first of the following who is available—

  1. the personal representative of the eligible person;
  2. a person who was the eligible person’s spouse on the day the eligible person died;
  3. a parent of the eligible person;
  4. an adult child of the eligible person;
  5. an adult sibling of the eligible person;
  6. an adult who was in a close personal relationship with the eligible person immediately before the eligible person died.

Requirements for historical convictions application

The application must be in the approved form and state the following information about each historical convictions to which the application relates:

  1. the date of the historical convictions or charge;
  2. the place and court (if any) where the eligible person was convicted or charged;
  3. the particulars of the offence;
  4. if the eligible person was convicted of the eligible offence—whether the eligible person was convicted on a plea of guilty;
  5. the details of any sentence imposed; and
  6. include the applicant’s consent to the making of inquiries of, and the exchange of information with, each criminal record holder for the purpose of deciding whether to expunge a conviction or charge the subject of the application.

Effect of Expungement

Once the Director-General of the Department of Justice and Attorney-General has expunged the historical convictions it is lawful for the person to claim, on oath or otherwise, including in a proceeding before any court or tribunal, that the person was not convicted of, or charged with, the offence.  The person is not required to disclose information about the conviction or charge to anyone.

For assistance with Applications, Gatenby Criminal Lawyers are able to assist.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

M1 Traffic Restrictions

Truck drivers need to be aware that from, 1 August 2017, all trucks with a Gross Vehicle Mass (GVM) over 4.5t will be restricted to travelling in the left 2 lanes in both directions between Springwood and Robina.  Penalties including fines and loss of demerit points will apply.

The restrictions are from the M1 motorway between exit 20 at Springwood and exit 82 Southbound and exit 79 northbound at Robina.  The rationale is that the measures will improve the traffic flow for the more than 152,000 vehicles using the M1 each day, particularly during the Commonwealth Games in 2018.

The Department of Transport will provide a report on the effectiveness of the measures following the Gold Coast Commonwealth Games on April 4 2018.  Queensland Trucking Association CEO, Gary Mahon is reported as saying that the measures are likely to continue beyond the Gold Coast Commonwealth Games Owner Driver News.

Affected Trucks

A truck is defined as a vehicle that weighs more than 4.5t but does not include a bus.

The 4.5t relates only to the GVM and excludes any trailer attached to the vehicle.

For more detail see Qld Transport Restrictions

Penalties

Individual – Fine of $126.00 and 3 demerit points

Businesses – Fine of $630.00

Additional measures

  1. Use of the hard shoulder for vehicles carrying athletes and officials under police escort;
  2. Reduce speed limit from Eight Mile Plains to Logan Motorway interchange from 100km/h to 90km/h
  3. Reduce from Logan Motorway interchange to Smith Street exit from 110km/h to 100km/h
  4. Additional resources for breakdowns
  5. Temporary Ramp Management.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

State Penalties Enforcement Amendment Bill 2017

GCL Dollar1

Criminal Lawyer, Sam Rigby explains the introduction of the State Penalties Enforcement Amendment Bill 2017 into the Queensland Parliament

The SPER registry oversees and manages debts, amounting to $1.17 billion. The management of such debts has been scrutinised over the past few years in dealing with the structure of debts, dealing with people who are suffering financial hardship or disadvantage and when an infringement should be referred to SPER.

Like many of our clients who appear before the court, their penalties are often referred to SPER. These fines can range in expense and if Sentenced more than once, the amount of debt can add up quickly. The bill introduces other non-monetary methods to pay these debts.

People who are eligible, falling into certain categories such as those who suffer domestic violence, homelessness, substance abuse or financial hardship have a variety of other options now. These options include and are not limited to unpaid community work, drugs and alcohol treatment and other forms of counselling.

The current system, for example, imposes fees for each debt referred to SPER and additional late fees making payment of their fine/s more difficult. The bill will introduce other systems which provide incentives for early payment, fees will now be applied to your SPER debt as a whole and it has included a better debt management process. The system, as it stands, is reliant on people having no more than two outstanding debts at a time. If you go beyond this, it becomes an uphill battle resulting in greater financial hardship. The bill introduces a system where SPER will review your debt as a whole rather than individually.

Day to day we are instructed by clients, who appear before the court in relation to driving offences, that they did not receive a letter from SPER informing of an outstanding account or issuing an infringement. People who rent or move residential addresses frequently face this problem more than most. The court abides by the ‘postal acceptance rule’ whereby if SPER have sent a letter to your most recent residential address it is accepted that the person has received the same. The new amendment provides for better ways to contact each individual. Now SPER correspondence can be sent to a residential address, postal boxes and email addresses. Not only will this allow infringements to be paid more efficiently it will also reduce disputes about whether or not the correspondence has been received. 

Although the bill introduces some more lenient features, as stated above, it has become more strict to those repeat offenders who do not pay the SPER debt. An example of added enforcement, vehicles can now be immobilised for a period of 14 days rather than the previous 5 days, garnishee orders can now be issued to those debtors who hold accounts with financial institutions, this includes the enhancement of current wage garnishee orders as well.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2016 ‘The Bill’

Sentencing LawOur 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:

  1. Child Protection (Offender Reporting) Act 2004, placing reporting obligations on offenders, reporting personal details and whereabouts.
  2. 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

https://www.parliament.qld.gov.au/work-of-committees/committees/ETISBC/inquiries/current-inquiries/13-ChildProtection

*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

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