Child Protection (Offenders Registration) Act 2000 (NSW)

Child Protection (Offenders Registration) Act 2000 No 42 An Act with respect to registration and reporting requirements for certain offenders who commit sexual and other serious offences against children; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Child Protection (Offenders Registration) Act 2000. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act The objects of this Act are— (a) to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and (b) to ensure the early detection of offences by recidivist child sex offenders, and (c) to monitor persons who are registrable persons, and (d) to ensure that registrable persons comply with this Act. 3 Definitions (1) In this Act— child means any person who is under the age of 18 years. child abuse material has the same meaning as it has in section 91FB of the Crimes Act 1900. child protection registration order means an order made under Part 2A, and includes a corresponding child protection registration order. Class 1 offence means— (a) the offence of murder, where the person murdered is a child, or (b) an offence that involves sexual intercourse with a child (other than an offence that is a Class 2 offence), or (c) an offence against section 66EA of the Crimes Act 1900, or (d) an offence against section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth, or an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth if it relates to another Class 1 offence as elsewhere defined in this section, or (d1) an offence against section 80A of the Crimes Act 1900, where the person against whom the offence is committed is a child, or (e) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or (f) an offence under a law of a foreign jurisdiction that the regulations state is a Class 1 offence, or (g) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or (h) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or (i) an offence that, at the time it was committed— (i) was a Class 1 offence for the purposes of this Act, or (ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition. Class 2 offence means— (a) the offence of manslaughter (other than manslaughter as a result of a motor vehicle accident), where the victim of the manslaughter is a child, or (a1) an offence that involves sexual touching or a sexual act against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more, or (a2) an offence under section 33 (1) of the Crimes Act 1900, where the person against whom the offence is committed is a child under 10 years of age and the person committing the offence is not a child, or (a3) an offence under section 66EB or 66EC of the Crimes Act 1900, or (b) an offence under section 86 of the Crimes Act 1900, where the person against whom the offence is committed is a child, except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child, or (c) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or (c1) an offence under section 87 of the Crimes Act 1900, where the person committing the offence has never had parental responsibility (within the meaning of that section) for the child who is taken or detained, or (d) an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 (other than an offence committed by a child prostitute), or (e) (Repealed) (f) an offence under section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then a child, or (g) an offence against section 271.4, 271.7, 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.11, 272.12, 272.13, 272.14, 272.15, 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 471.26, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26, 474.27 or 474.27A of the Criminal Code of the Commonwealth, or an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth if it relates to another Class 2 offence as elsewhere defined in this section, or (h) an offence against section 270.6 or 270.7 of the Criminal Code of the Commonwealth where the person against whom the offence is committed is a child, or (i) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material, or (j) any offence under a law of a foreign jurisdiction that, if it had been committed in New South Wales, would have constituted an offence of a kind listed in this definition, or (k) an offence under a law of a foreign jurisdiction that the regulations state is a Class 2 offence, or (l) an offence an element of which is an intention to commit an offence of a kind listed in this definition, or (m) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this definition, or (n) an offence that, at the time it was committed— (i) was a Class 2 offence for the purposes of this Act, or (ii) in the case of an offence occurring before the commencement of this definition, was an offence of a kind listed in this definition. community correction order means a community correction order under the Crimes (Sentencing Procedure) Act 1999. community service order means a community service order under the Crimes (Sentencing Procedure) Act 1999 or a children's community service order under the Children (Community Service Orders) Act 1987. conditional release order means a conditional release order under the Crimes (Sentencing Procedure) Act 1999. corresponding Act means a law of a foreign jurisdiction— (a) that provides for 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 the regulations state is a corresponding Act for the purposes of this Act. corresponding child protection registration order means an order made under a corresponding Act that falls within a class of order that the regulations state is a corresponding child protection registration order for the purposes of this Act. corresponding registrable offence means an offence that is a registrable offence for the purposes of a corresponding Act but is not a registrable offence within the meaning of this Act. corresponding registrable person—see section 19BB. corresponding registrar means the person whose functions under a corresponding Act most closely correspond to the functions of the Commissioner of Police under this Act. court includes any Magistrate exercising functions under the Criminal Procedure Act 1986, and also includes a court (however described) of a foreign jurisdiction. detainee means a person who— (a) is a detainee within the meaning of the Children (Detention Centres) Act 1987, or (b) is absent from a detention centre pursuant to an order in force under section 24 of that Act. disability has the same meaning as it has in the Anti-Discrimination Act 1977. existing controlled person means a person who, immediately before the commencement of this section— (a) was subject to a sentence of imprisonment in respect of a registrable offence, including— (i) a term of imprisonment the subject of an intensive correction order, home detention order or sentence suspension order, and (ii) a term of imprisonment in respect of which the person was on release on parole under strict supervision, but not including a term of imprisonment in respect of which the person was on release on parole otherwise than under strict supervision, or (b) was a forensic patient in respect of a registrable offence, or (c) was an existing licensee in respect of a registrable offence, or (d) was participating in the Pre-Trial Diversion of Offenders Program under the Pre-Trial Diversion of Offenders Act 1985 in respect of a registrable offence, or (e) was the subject of a community service order in respect of a registrable offence, or (f) was subject to a good behaviour bond in respect of a registrable offence, being a bond under which the person was required to submit to strict supervision, whether under the laws of New South Wales or (in whatever terms expressed) under the laws of a foreign jurisdiction. existing licensee means a person who is— (a) the holder of an existing licence within the meaning of clause 22 of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999, or (b) the holder of a licence under section 7 of the Habitual Criminals Act 1957, or (c) the holder of any equivalent licence granted under the laws of a foreign jurisdiction, being a person who is for the time being required by the conditions of the licence to submit to strict supervision. finding of guilt—see subsection (2). foreign jurisdiction means a jurisdiction other than New South Wales (including jurisdictions outside Australia). foreign witness protection law means a law of a foreign jurisdiction that provides for the protection of witnesses. forensic patient means a person who is subject to an order of detention under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 as a result of a limiting term being imposed on the person, or the person being subject to a special verdict of act proven but not criminally responsible, under that Act. good behaviour bond means a good behaviour bond under the Crimes (Sentencing Procedure) Act 1999, and includes a good behaviour bond referred to in section 33 (1) (b) of the Children (Criminal Proceedings) Act 1987. government custody means— (a) custody as an inmate or detainee, and includes custody as a forensic patient where the order under section 33(1), 61(2) or 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, as originally made, requires the patient to be kept in strict government custody, or (b) custody under a law of a foreign jurisdiction in the nature of custody referred to in paragraph (a). home detention order means a home detention order under the Crimes (Sentencing Procedure) Act 1999. inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. intensive correction order means an order referred to in section 7 of the Crimes (Sentencing Procedure) Act 1999. interstate Registrar means an authority responsible under a law of another State or a Territory for the registration of births, deaths and marriages. NSW Registrar means the Registrar within the meaning of the Births, Deaths and Marriages Registration Act 1995. parole order means a parole order within the meaning of the Crimes (Administration of Sentences) Act 1999, and includes any equivalent order made under the laws of a foreign jurisdiction. Register means the Child Protection Register established under section 19. registrable offence means an offence that is— (a) a Class 1 offence, or (b) a Class 2 offence, or (c) an offence that results in the making of a child protection registration order. registrable person—see section 3A. relevant personal information—see section 9. reporting obligations, in relation to a registrable person, means the obligations imposed on the person by Part 3. reporting period means the period, as determined under Division 6 of Part 3, during which a registrable person must comply with the person's reporting obligations. sentence includes the following— (a) any order under section 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that causes a person to be kept in custody or an order of detention under section 33(1) or 61(2) of that Act, (b) any order under section 33 (1) of the Children (Criminal Proceedings) Act 1987, (c) any action taken under section 10A of the Crimes (Sentencing Procedure) Act 1999, (d) any undertaking under section 23 of the Pre-Trial Diversion of Offenders Act 1985, (e) any sentence or equivalent order or undertaking imposed under the laws of a foreign jurisdiction. sentence suspension order means an order under section 12 of the Crimes (Sentencing Procedure) Act 1999. sexual act, sexual intercourse and sexual touching have the same meanings as in Division 10 of Part 3 of the Crimes Act 1900. strict government custody, in relation to a registrable person, means custody as an inmate, detainee or forensic patient, but does not include such custody if the person— (a) is regularly permitted to be absent from a place of custody for any period, regardless of its length, whether on leave of absence or otherwise, and (b) is not at all such times under the immediate supervision of an officer of a supervising authority or other person having custody of the person. strict supervision means supervision by— (a) the Commissioner of Corrective Services or an officer employed within the Department of Corrective Services, or (b) the Director-General of the Department of Juvenile Justice or an officer employed within that Department, or (c) the Director-General of the Department of Health or an officer employed within that Department, or supervision by an authority of a foreign jurisdiction in the nature of an authority referred to in paragraph (a)–(c). supervised sentence means— (a) a sentence of imprisonment the subject of an intensive correction order or home detention order, or (b) a community service order or community correction order, or (c) a good behaviour bond or conditional release order under which the person is required to submit to strict supervision, or (d) an order of detention under section 33(1), 61(2) or 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, other than an order that, as originally made, requires the person to be kept in strict government custody. (e) (Repealed) supervising authority, in relation to a registrable person, means an authority prescribed by the regulations as the authority having control of the person. witness protection program has the same meaning as it has in the Witness Protection Act 1995. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) Except in so far as the context or subject-matter otherwise indicates or requires or as the regulations provide that this subsection not have effect, a reference in this Act to the Crimes (Sentencing Procedure) Act 1999 is a reference to that Act as in force at any time (whether before, on or after the commencement of this subsection). This subsection does not affect the meaning or construction of references to any other Act mentioned in this Act. Note— The principal purpose of this subsection is to make it clear that references to orders and bonds under the Crimes (Sentencing Procedure) Act 1999 extend to orders and bonds under that Act as in force at any time. (2) For the purposes of this Act, a reference to a finding of guilt in relation to an offence (however expressed) committed by a person is a reference to any of the following— (a) a court making a formal finding of guilt in relation to the offence, (b) a court convicting the person of the offence, where there has been no formal finding of guilt before conviction, (c) a court accepting a plea of guilty from the person in relation to the offence, (d) a court accepting an admission of guilt from the person in relation to the offence for the purpose of the offence being taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, or under equivalent provisions of the laws of a foreign jurisdiction, (e) a verdict under section 59(1)(b), (c) or (d) or of act proven but not criminally responsible under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or under equivalent provisions of the laws of a foreign jurisdiction. (2A) A reference to a finding of guilt in this Act does not include a finding of guilt that is subsequently quashed or set aside by a court. (3) For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person. (4) For the purposes of this Act, a person who is absent from a detention centre pursuant to an order in force under section 23 or 24 of the Children (Detention Centres) Act 1987 is taken to be in custody. (5) For the purposes of this Act, section 579 of the Crimes Act 1900 does not apply to or in respect of a registrable offence. (6) For the purposes of this Act, a registrable person has a special need if— (a) the person has impaired intellectual functioning, that is, the person has— (i) total or partial loss of the person's mental functions, or (ii) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or (iii) a disorder, illness or disease that affects the person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour, or (b) the person is subject to a guardianship order (within the meaning of the Guardianship Act 1987), or (c) the person is illiterate, or is not literate in the English language, or (d) the person is visually impaired to the extent that the person is unable to read a written notice, or (e) the person is subject to some other condition that may prevent the person from being able to understand a written notice. (7) A reference to sexual touching or a sexual act in this Act does not include a reference to an offence that only involves indecent exposure. (8) A reference to doing a thing "in person" in this Act is a reference to doing the thing by personal attendance at a place, it is not sufficient to attend the place by telephone or by any other electronic means. (9) Notes included in this Act do not form part of this Act. 3AA Risk to sexual safety of children—meaning (1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children. (2) In order for a court to be satisfied that a person poses a risk to the lives or sexual safety of one or more children, or of children generally, it is not necessary for the court to be able to identify a risk to particular children, or a particular class of children. (3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally— (a) the seriousness of each registrable offence committed by the person, (b) the age of the person at the time each of those offences was committed, (c) the age of each victim of each of those offences at the time that the offence was committed, (d) the seriousness of any other offences committed by the person, (e) the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence, (f) any other matter that the court considers to be relevant. Part 2 Offenders to whom Act applies 3A Registrable persons (1) A registrable person is a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person. (2) Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person— (a) is a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence, or (b) (Repealed) (c) as a child committed— (i) a single offence involving sexual touching or a sexual act, or (ii) a single offence under section 91H of the Crimes Act 1900 or an offence of producing, disseminating or possessing child abuse material (in whatever terms expressed) under the laws of a foreign jurisdiction, or (iii) a single offence under section 91J (1), 91K (1) or 91L (1) of the Crimes Act 1900, or (iv) a single offence (including an offence committed under the laws of a foreign jurisdiction) that falls within a class of offence the regulations prescribe for the purposes of this subparagraph, or (v) a single offence an element of which is an intention to commit an offence of a kind listed in this paragraph, or (vi) a single offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this paragraph, or Note— Savings and transitional provisions in Schedule 2 provide that references to certain offences in this paragraph are taken to include references to certain earlier offences under provisions that have since been repealed. (d) is a person whom a court has found guilty of a registrable offence before 15 October 2001, unless the person is an existing controlled person or the offence results in the making of a child protection registration order against the person. (3) A person is not a registrable person if the person is receiving protection under a foreign witness protection law specified by the regulations for the purposes of this subsection, or has the same status as such a person under an order made under a corresponding Act specified by the regulations for the purposes of this section. (4) 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 protection registration order. (5) A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident. 3B Circumstances in which person ceases to be registrable person A person ceases to be a registrable person if— (a) the finding of guilt against the person for the only offence that makes the person a registrable person is quashed or set aside by a court, or (b) the person's sentence in respect of that offence is reduced or altered so that the person would not have been a registrable person had the amended sentence been the original sentence, or (c) the person is a registrable person only because the person is subject to a child protection registration order and that order is quashed on appeal or otherwise ceases to have effect under this Act. 3C Discretion to treat child offender as non-registrable (1) A court that sentences a person for a sexual offence committed by the person when the person was a child may make an order declaring that the person is not to be treated as a registrable person for the purposes of this Act in respect of that offence. (2) While the order remains in force, the person is not a registrable person under this Act because of that offence. (3) A court may make an order under this section only if— (a) the victim of the offence was under the age of 18 years at the time that the offence was committed, and (b) the person has not previously been convicted of any other Class 1 offence or Class 2 offence, and (c) the court does not impose in respect of the offence— (i) a sentence of full-time detention, or (ii) a control order (unless the court also, by order, suspends the execution of the control order), and (d) the court is satisfied that the person does not pose a risk to the lives or sexual safety of one or more children, or of children generally. (4) This section applies only if the sexual offence concerned is a registrable offence and does not limit section 3A (2) (c) as it applies to offences committed by children. (5) If an order is made under this section, the order is taken, for the purpose of any provisions that enable the Crown or a prosecutor to appeal against a sentence imposed on the person, to be a part of the person's sentence. (6) In this section— control order means an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987. full-time detention has the same meaning as in the Crimes (Sentencing Procedure) Act 1999. sexual offence means the following offences regardless of when the offence occurred— (a) an offence under a provision of Division 10, 10A, 15 or 15A of Part 3 of the Crimes Act 1900 or under section 91J, 91K or 91L of that Act, (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence under section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material, (d) an offence under Subdivision D of Division 474 of Part 10.6 of the Criminal Code of the Commonwealth, (e) an offence of attempting to commit any offence referred to in paragraphs (a)–(d), (f) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(e). Part 2A Child protection registration orders 3D Child protection registration orders made during criminal proceedings (1) If a court finds a person guilty of an offence that is not a Class 1 or a Class 2 offence, it may order that the person comply with the reporting obligations of this Act. (2) A court may make an order under this section only if— (a) the court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally, and (b) the court imposes a sentence on the person in relation to the offence (other than an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987), and (c) an application for the imposition of the order is made by the prosecution. Note— The effect of subsection (2) (b) is to prevent a child protection registration order being made in certain circumstances if an order is made dismissing the charge or conditionally discharging the offender. (3)–(5) (Repealed) (6) For the purposes of Division 6 of Part 3, a person subject to an order under this section is deemed to have been found guilty of a Class 2 offence. (7) (Repealed) 3E Orders made after conclusion of criminal proceedings (1) The Local Court may, on application by the Commissioner of Police, order a person who has been sentenced by a court of New South Wales in respect of an offence that is not a Class 1 offence or a Class 2 offence to comply with the reporting obligations under this Act. (2) The Local Court may make an order under this section only if— (a) the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally, and (b) the sentence imposed on the person in respect of the offence was not an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or under section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987. Note— The effect of subsection (2) (b) is to prevent a child protection registration order being made if an order is made dismissing the charge or conditionally discharging the offender. (3) An application for an order under this section must be made within 60 days after the person with respect to whom the order is sought is sentenced for the relevant offence. (4) For the purposes of Division 6 of Part 3, if the Local Court makes an order in respect of a person under this section, the person is taken to have been found guilty of, and sentenced for, a Class 2 offence on the date an order under this section is made. 3F Orders made in relation to foreign offences and old offences (1) The Local Court may, on application by the Commissioner of Police, order any of the following persons to comply with the reporting obligations of this Act— (a) a person who has been found guilty of an offence against the law of a foreign jurisdiction that, if the offence had been committed in New South Wales, would have been an offence under the law of New South Wales, and who is not otherwise a registrable person in respect of that offence, (b) a person who has (at any time) been sentenced by a court for a Class 1 offence of which the person was found guilty before 15 October 2001, unless the person was a child at the time that the offence was committed, (c) a person who has (at any time) been sentenced by a court for an offence referred to in paragraph (a), (a2) or (c1) of the definition of Class 2 offence in section 3 (1), of which the person was found guilty before the commencement of this paragraph, unless the person was a child at the time the offence was committed. (2) The Local Court may make an order under this section only if it is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally. (3) For the purposes of Division 6 of Part 3, if the Local Court makes an order in respect of a person under this section, the person is taken to have been found guilty of, and sentenced for, a Class 2 offence on the date an order under this section is made. (4) Section 51 of the Local Court Act 2007 does not apply to proceedings for an order under this section. (5) The fact that an offence in respect of which a person has been found guilty is spent does not prevent the making of an order under this section. (6) For the purposes of this section, an offence is spent if, under a law in any jurisdiction, the person is permitted not to disclose the fact that the person was convicted or found guilty of the offence. 3G Child protection registration orders made after grant of bail under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (1) A court that grants bail to a person in respect of a Class 1 offence or a Class 2 offence under the Mental Health and Cognitive Impairment Forensic Provision