Community Protection (Offender Reporting) Act 2005 (Tas)

Community Protection (Offender Reporting) Act 2005 An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time (to reduce the likelihood that they will reoffend and to facilitate the investigation of any future offences that they may commit), to enable courts to make orders specifying certain offenders to be reportable offenders, and for related purposes [Royal Assent 15 December 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary matters 1. Short title This Act may be cited as the Community Protection (Offender Reporting) Act 2005 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the context otherwise requires – approved place means a place approved by the Registrar under section 20 ; authorised person means a police officer of a class prescribed by the regulations; child means a person who is under 18 years of age; Class 1 offence has the meaning given to that term in section 13 ; Class 2 offence has the meaning given to that term in section 14 ; Class 3 offence has the meaning given to that term in section 15 ; Commissioner means the person holding or acting in the office of Commissioner of Police under the Police Service Act 2003 ; community order means – (a) a community service order or probation order made under the Sentencing Act 1997 ; or (b) a community service order or probation order made under the Youth Justice Act 1997 ; community protection order has the meaning given to that term in section 3A ; corresponding Act means a law of a foreign jurisdiction that – (a) 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) is prescribed by the regulations to be a corresponding Act for the purposes of this Act; corresponding offender reporting order means an order made under a corresponding Act that falls within a class of orders that are prescribed by the regulations to be corresponding offender reporting orders for the purposes of this Act; corresponding registrar means the person whose functions under a corresponding Act most closely correspond to the functions of the Registrar under this Act; corresponding reportable offence means an offence that is a reportable offence for the purposes of a corresponding Act but is not a reportable offence as referred to in section 12(a) , (b) or (c) ; corresponding reportable offender has the meaning given to that term in section 11 ; court includes a court (however described) of a foreign jurisdiction; detainee means a person who is subject to a detention order under section 47 of the Youth Justice Act 1997 ; existing controlled offender means a person who, as a result of having been sentenced for a reportable offence, is subject to a community order or parole or is under the supervision of a supervising authority immediately before the commencement of this Act and includes a person who was under similar supervision under the laws of a foreign jurisdiction and a person who was in government custody in respect of a reportable offence at that time; foreign jurisdiction means a jurisdiction other than Tasmania (including jurisdictions outside Australia); foreign witness-protection law means a law of a foreign jurisdiction that provides for the protection of witnesses; government custody means – (a) custody as a prisoner or detainee or as a mentally impaired defendant where the order made under the Criminal Justice (Mental Impairment) Act 1999 requires the person to be detained in a secure mental health unit (or, in the case of an order made under Part 4 of that Act before 20 February 2006, detained in a special facility within the meaning of that Act as originally enacted) or to be kept in government custody; or (b) custody under a law of a foreign jurisdiction in the nature of custody referred to in paragraph (a) ; non-intimate forensic procedure means non-intimate forensic procedure as defined in the Forensic Procedures Act 2000 ; offender reporting order means an order made under section 6 , 7 or 9 and includes a corresponding offender reporting order; parole means parole under an order made under the Corrections Act 1997 and includes parole under an equivalent order made under the laws of a foreign jurisdiction; personal details means the information listed in section 17(1) ; personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information; prisoner has the meaning given to that term in the Corrections Act 1997 ; public authority means – (a) a State Service Agency; or (b) a council; or (c) any other body, whether incorporated or not, that is established or continued for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of the State; Register means the Community Protection Offender Register established under section 43 ; Registrar means a police officer appointed to that position under section 42 ; reportable contact, in relation to a reportable offender's contact with a child, means the contact listed in section 17(4) ; reportable offence has the meaning given to that term in section 12 ; reportable offender has the meaning given to that term in section 5 ; reporting obligations, in relation to a reportable offender, means the obligations imposed on him or her by Part 3 ; reporting period means the period, as determined under Division 5 of Part 3 , during which a reportable offender must comply with his or her reporting obligations; sentence includes – (a) an exercise of power under section 7 of the Sentencing Act 1997 ; and (b) an exercise of power under section 47 of the Youth Justice Act 1997 ; and (c) an order made under the Criminal Justice (Mental Impairment) Act 1999 ; and (d) anything prescribed by the regulations to be a sentence for the purposes of this definition – and any sentence or equivalent exercise of power or order under the laws of a foreign jurisdiction; supervising authority, in relation to a class of reportable offenders, means the authority prescribed by the regulations as the supervising authority of that class of reportable offenders; young reportable offender means a reportable offender who is a child. 3A. Community protection order For the purposes of this Act, a community protection order includes each of the following orders: (a) a community protection order made, and in force, under section 10A ; (b) an interim community protection order made, and in force, under section 10B ; (c) an order made and in force in a State or Territory, or in New Zealand, that corresponds, or substantially corresponds, with an order made under section 10A or 10B . 4. Other reference provisions (1) 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 against the same person. (2) A reference in this Act to doing a thing "in person" is a reference to doing the thing by personal attendance at a place, and it is not sufficient to attend the place by telephone or by any other electronic means. PART 2 - Offenders to whom Act applies 5. Reportable offenders (1) A reportable offender is a person – (a) whom a court, on or after the commencement of this Act, sentences for a reportable offence; and (b) in respect of whom the court makes an order under section 6 . (2) A person is also a reportable offender if the person was sentenced for a reportable offence before the commencement of this Act and is an existing controlled offender in respect of that offence and is made subject to an order under section 9 . (3) A person is also a reportable offender if the person is subject to an order under section 7 . (4) A person who is a corresponding reportable offender is also a reportable offender. (5) A person ceases to be a reportable offender if – (a) the finding of guilt in respect of the only offence that makes the person a reportable offender for the purposes of this Act is quashed or set aside by a court; or (b) the person is a reportable offender only because he or she is subject to an offender reporting order and that order is quashed on appeal. (6) 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 offender reporting order. 6. Order requiring registration of offender (1) The court is to make an order directing that – (a) the Registrar cause the name of a person whom the court sentences for a reportable offence to be placed on the Register; and (b) the person comply with the reporting obligations under this Act – unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future. (2) The court is to make the order at the time the person is sentenced for the reportable offence. (3) For the purposes of subsection (1) , it is not necessary that the court be able to identify a risk of offending against a particular person or particular persons or a particular class of persons. 7. Reporting orders for other offences (1) If – (a) a court sentences a person for an offence that is not a Class 1 offence, Class 2 offence or Class 3 offence; and (b) apart from this section, that offence would not result in the person becoming a reportable offender – the court may make an order directing that – (c) the Registrar cause the name of the person to be placed on the Register; and (d) the person comply with the reporting obligations under this Act – if the court is satisfied that the person poses a risk of committing a reportable offence in the future. (2) For the purposes of subsection (1) , it is not necessary that the court be able to identify a risk of offending against a particular person or particular persons or a particular class of persons. (3) The court must make the order at the time the person is sentenced for the offence. (4) An application for the imposition of an order under subsection (1) may be made by the prosecution, but an application is not necessary for the court to make the order. (5) For the purposes of Division 5 of Part 3 , a person subject to an order made under this section in respect of an offence that is not a reportable offence is taken to have been sentenced for a Class 2 offence when the order was made. 8. Commissioner may apply for reporting order If – (a) a person has been sentenced before the commencement of this Act for a Class 1 offence, a Class 2 offence or a Class 3 offence; and (b) the person is not and has not been a reportable offender in respect of that offence – the Commissioner may apply to a magistrate for an order that the person's name be placed on the Register and that the person comply with the reporting obligations under this Act. 9. Magistrate may make reporting order on application from Commissioner (1) In relation to an application under section 8 , the magistrate may make an order that a person comply with the reporting obligations under this Act if the magistrate is satisfied that the person poses a risk of committing a reportable offence in the future. (2) For the purposes of subsection (1) , it is not necessary that the magistrate be able to identify a risk of offending against a particular person or particular persons or a particular class of persons. (3) For the purposes of Division 5 of Part 3 , a person subject to an order made under this section is taken to have been sentenced for a Class 2 offence. 10. Matters to be taken into account (1) In deciding whether to make an order under section 6 or 7 in relation to an offence, the court may take into account the following: (a) any evidence given during proceedings for the offence; (b) any document or record (including an electronic document or record) served on the offender by the prosecution; (c) any statement tendered or deposition made, or exhibit tendered, at any proceedings in relation to the offence; (d) any evidence given by a victim or the offender in relation to the making of the order; (e) any pre-sentence report given to the court; (f) any victim impact statement given to the court; (g) any other matter the court considers relevant. (2) In deciding whether to make an order under section 9 , the magistrate may take into account the following: (a) any evidence given during proceedings in relation to the offence referred to in section 8(a) ; (b) any document or record (including an electronic document or record) served on the offender by the prosecution; (c) any statement tendered or deposition made, or exhibit tendered, at any proceedings in relation to the offence referred to in section 8(a) ; (d) any evidence given by a victim or the offender in relation to the making of the order; (e) any pre-sentence report given to the court that sentenced the offender for the offence referred to in section 8(a) ; (f) any victim impact statement given to the court that sentenced the offender for the offence referred to in section 8(a) ; (g) any other matter that the magistrate considers relevant. 10A. Magistrate may make community protection order on application from Commissioner (1) If the Commissioner is satisfied that a reportable offender poses a risk to the safety or wellbeing of any child, or children, the Commissioner may apply to a magistrate for a community protection order prohibiting or restricting the movement, or conduct, of the reportable offender. (2) In relation to an application made under subsection (1) , a magistrate may make a community protection order relating to a reportable offender if the magistrate is satisfied that – (a) the reportable offender poses a risk to the safety or wellbeing of any child or children; and (b) the making of the community protection order will reduce that risk. (3) A community protection order relating to a reportable offender made under subsection (2) may for a period specified in the order not exceeding 12 months, or for any further period specified in the order that the magistrate considers reasonably necessary to prevent a risk to any child, or children, prohibit or restrict the following movement or conduct: (a) the reportable offender associating with, or making contact or communicating with, a specified person, or persons of a specified class; (b) the reportable offender being present at, or in the vicinity of, a specified place or specified premises or a place or premises of a specified class; (c) the reportable offender undertaking specified employment or employment of a specified kind; (d) the reportable offender consuming intoxicating liquor; (e) the reportable offender taking, or being in possession of, a controlled substance as defined in the Misuse of Drugs Act 2001 ; (f) any other movement or conduct of a kind specified in the order if it is reasonably necessary to prohibit or restrict the movement or conduct in order to reduce the risk that a reportable offender poses to the safety or wellbeing of any child or children. 10B. Magistrate may make interim community protection order (1) At any stage during proceedings under section 10A , a magistrate may make an interim community protection order relating to a reportable offender, if the magistrate is satisfied in accordance with section 10A(2) . (2) An interim community protection order relating to a reportable offender made under subsection (1) may prohibit or restrict the movement or conduct referred to in section 10A(3) . (3) An interim community protection order is revoked – (a) when a community protection order in respect of the same parties takes effect under section 10A ; or (b) on a date ordered by a magistrate – whichever is the earlier. (4) An interim community protection order may be varied or extended at any time until the relevant application under section 10A has been determined. (5) An interim community protection order may be made, varied or extended in the absence of the person against whom it is made. (6) An interim community protection order or a variation or extension of such an order, takes effect – (a) if the respondent to the application is present before the court when the interim community protection order, variation or extension is made – on the making of the order, variation or extension; or (b) if the respondent to the application is not present before the court when the interim community protection order, variation or extension is made –when the respondent is served personally with the order, variation or extension or a copy of it. (7) Without limiting the power of the Supreme Court under section 107 of the Justices Act 1959 , on application by a person who is aggrieved by a decision of a magistrate made under this section or section 10A , the Supreme Court may – (a) order a stay of any proceeding under the decision; or (b) make any such other order in respect of the decision that the Supreme Court considers appropriate. 11. Corresponding reportable offenders A corresponding reportable offender is a person – (a) who had at any time (whether before, on or after the commencement of this Act) been in a foreign jurisdiction and at that time had been required to report to the corresponding registrar in that jurisdiction; and (b) who would, if he or she were currently in that foreign jurisdiction, be required to report to the corresponding registrar in that jurisdiction for a longer period than he or she would be required to report under this Act. 12. Reportable offences A reportable offence is – (a) a Class 1 offence; or (b) a Class 2 offence; or (c) a Class 3 offence; or (d) an offence that results in the making of an offender reporting order. 13. Class 1 offences A Class 1 offence is – (a) an offence against a provision listed in Schedule 1 ; or (b) an offence under a law of a foreign jurisdiction the elements of which, if they had occurred in Tasmania, would have constituted an offence of a kind referred to in this section; or (c) an offence an element of which is an intention to commit an offence of a kind referred to in this section; or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this section; or (e) 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 committed before the commencement of this Act, was an offence of a kind referred to in this section. 14. Class 2 offences A Class 2 offence is – (a) an offence against a provision listed in Schedule 2 ; or (b) an offence under a law of a foreign jurisdiction the elements of which, if they had occurred in Tasmania, would have constituted an offence of a kind referred to in this section; or (c) an offence an element of which is an intention to commit an offence of a kind referred to in this section; or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this section; or (e) 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 committed before the commencement of this Act, was an offence of a kind referred to in this section. 15. Class 3 offences A Class 3 offence is – (a) an offence against a provision listed in Schedule 3 ; or (b) an offence under a law of a foreign jurisdiction the elements of which, if they had occurred in Tasmania, would have constituted an offence of a kind referred to in this section; or (c) an offence an element of which is an intention to commit an offence of a kind referred to in this section; or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this section; or (e) an offence that, at the time it was committed – (i) was a Class 3 offence for the purposes of this Act; or (ii) in the case of an offence committed before the commencement of this Act, was an offence of a kind referred to in this section; or (f) an offence against section 158 of the Criminal Code if there are reasonable grounds to believe that, in the course of or as part of the events surrounding the commission of that offence, an offence specified in Schedule 1 , 2 or 3 was committed by the offender; or (g) an offence against section 159 of the Criminal Code if there are reasonable grounds to believe that, in the course of or as part of the events surrounding the commission of that offence, an offence specified in Schedule 1 , 2 or 3 was committed by the offender. PART 3 - Reporting obligations Division 1 - Report 16. Reporting obligations of reportable offenders A reportable offender must report to the Registrar or an authorised person – (a) within 7 days of the court making an order under section 6 or 7 or a magistrate making an order under section 9 ; or (b) if the offender is not a corresponding reportable offender and is in government custody, within 7 days after he or she ceases to be in government custody; or (c) if the offender is a corresponding reportable offender, within 3 days of arriving in Tasmania if he or she intends to remain in Tasmania for any period; or (d) subject to paragraph (da) , if the reportable offender intends to leave Tasmania for any period, no later than 7 days before leaving Tasmania; or (da) if circumstances make it impracticable for a reportable offender who intends to leave Tasmania for any period to make a report no later than 7 days before leaving Tasmania, no later than 24 hours before leaving Tasmania; or (e) if the reportable offender has been absent from Tasmania for any period, within 7 days of entering Tasmania; or (f) subject to paragraph (fa) , any changes to his or her personal details, within 7 days of the change of those details; or (fa) any changes to his or her reportable contact with a child, within 24 hours of the change of the reportable contact; or (g) any changes to his or her personal details which have occurred whilst absent from Tasmania within 7 days of entering Tasmania. 17. Report by reportable offender of personal details (1) The details the reportable offender must report are – (a) his or her name, together with any other name by which he or she is, or has previously been, known; and (b) in respect of each name other than his or her current name, the period during which he or she was known by that other name; and (ba) any application he or she has made, or intends to make, to the Registrar of Births, Deaths and Marriages for a change of details; and (c) his or her date of birth; and (d) the address of each of the premises at which he or she generally resides; and (da) the names and ages of any children with whom he or she engages in any form of direct or indirect communication for the purpose of inviting any further communication or contact with the child; and (e) the address of any premises to which he or she has unrestricted access for the purposes of storing any item or for any other purpose; and (ea) the names and ages of any children with whom he or she has reportable contact; and (eb) details of his or her parental status, including whether or not a partner or the reportable offender is pregnant; and (ec) the name and address of the school or child care facility attended by any child with whom he or she has reportable contact; and (ed) details of the existence of any family law court order that involves a child with whom he or she has reportable contact; and (f) if he or she is employed – (i) the nature of his or her employment; and (ii) the name of his or her employer (if any); and (iii) the address of each of the premises at which he or she is generally employed or, if he or she is not generally employed at any particular premises, the name of each of the localities in which he or she is generally employed; and (g) details of his or her affiliation with any club or organisation that has members who are children or that conducts activities in which children participate; and (h) the make, model, colour and registration number of any motor vehicle, boat, caravan, motorhome, jet ski, or other vehicle, owned by, or generally driven by, him or her; and (i) details of any tattoos or permanent distinguishing marks (including details of any tattoo or mark that has been removed) and any surgery or cosmetic procedure which has significantly altered his or her appearance; and (ia) details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person; and (ib) details of the type of any internet connection used, or intended to be used, by the person, including whether the connection is a wireless, broadband, asymmetric digital subscriber line (ADSL), satellite or dial-up connection; and (ic) details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the person through the internet or other electronic communication service and any passwords associated with each of these; and (id) details of any passwords, codes or other information or assistance required to enable the Registrar, or a police officer of a class authorised in writing by the Registrar, to gain access to data stored on any computer, mobile telephone or other electronic device capable of storing electronic data owned, used, or intended to be used, by the person; and (ie) details of any mobile or fixed telephone number used, or intended to be used, by the person; and (j) whether he or she has ever been found guilty in any foreign jurisdiction of a reportable offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding offender reporting order and, if so, where that finding occurred or that order was made; and (k) if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a reportable offence or corresponding reportable offence, details of when and where that government custody occurred. (1A) A reportable offender must present to the Registrar or an authorised person for inspection all valid passports held by the offender and provide to the Registrar or an authorised person updated details in relation to any of those passports. (1B) A reportable offender must present to the Registrar, or an authorised person, for inspection, any computer, mobile telephone, or other electronic device capable of storing electronic data, owned, used, or intended to be used, by the reportable offender. (2) For the purposes of this section, a person is taken to be employed if he or she – (a) carries out work under a contract of employment; or (b) carries out work as a self-employed person or as a subcontractor; or (c) carries out work as a volunteer for an organisation; or (d) undertakes practical training as part of an educational or vocational course; or (e) carries out work as a minister of religion or in any other capacity for the purposes of a religious organisation. (3) For the purposes of this section, a person is taken to be an employer of a reportable offender if the person – (a) arranges, in the course of business, for the reportable offender to be employed by another person; or (b) engages the reportable offender under contract to carry out work. (4) For the purposes of this Act, a reportable offender is taken to have reportable contact with a child if the reportable offender – (a) generally resides in the same premises as the child, for at least 3 days (whether or not consecutive) in a period of 12 months; or (b) is unsupervised and cares for, or supervises, the child for at least 3 days (whether or not consecutive) in a period of 12 months; or (c) provides his or her contact details to the child or receives the child's contact details from the child; or (d) engages in any of the following with the child for the purpose of inviting any further contact or communication with the child: (i) any form of actual physical contact; (ii) any form of oral communication (whether face-to-face, by telephone or by use of the internet); (iii) any form of communication made in a document (whether by writing or printing). (5) The regulations may amend the personal details listed in subsection (1) , by omitting personal details listed, amending personal details listed or adding new personal details to that list. Division 2 - Ongoing reporting obligations 18. Reportable offender to report annually and as required by the Registrar (1) A reportable offender must report to the Registrar and provide his or her personal details to the Registrar each year. (2) The reportable offender must report to the Registrar and provide his or her personal details each year during the calendar month in which he or she first reported in accordance with this Act or a corresponding Act or at such other time as directed by the Registrar. 19. Intended absence from Tasmania to be reported (1) This section applies to a reportable offender who intends to leave Tasmania for any period to travel elsewhere. (2) At least 7 days before leaving Tasmania or, if circumstances make 7 days before leaving Tasmania impracticable, no later than 24 hours before leaving Tasmania, the reportable offender must report the intended travel to the Registrar and must provide – (a) details of each State, Territory or country to which he or she intends to go while out of Tasmania; and (b) details of the approximate dates of the periods during which he or she