Queensland: Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 An Act to require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of their whereabouts and other personal details for a period of time, to reduce the likelihood that they will re-offend, and to facilitate the investigation and prosecution of any future offences that they may commit, and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Purposes of this Act (1) Parliament recognises that any risk to the lives or sexual safety of 1 or more children, or of children generally, is unacceptable. (1A) The purposes of this Act are— (a) to provide for the protection of the lives of children and their sexual safety; and (b) to require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of the offender's whereabouts and other personal details for a period of time after the offender's release into the community— (i) to reduce the likelihood that the offender will re-offend; and (ii) to facilitate the investigation and prosecution of any future offences that the offender may commit. (2) In outline, this Act— (a) provides for the establishment of a child protection register; and (b) requires offenders who are sentenced for reportable offences to report specified personal details for inclusion in the register; and (c) requires those reportable offenders to keep those details up to date, to report those details periodically and to also report particular travel plans; and (d) imposes those reporting obligations for a period of between 21/2 years and life, depending on the number, severity and timing of the offences committed, and the age of the reportable offender at the time an offence was committed; and (e) allows for the recognition of the period of reporting obligations imposed under laws of foreign jurisdictions; and (f) provides for the making of orders against particular offenders who commit sexual, or particular other serious, offences against children to— (i) prohibit the offenders from engaging in conduct posing a risk to the safety or wellbeing of 1 or more children, or of children generally; or (ii) require the offenders to do particular things to reduce the risk to the safety or wellbeing of 1 or more children, or of children generally. (3) Subsection (2) is intended only as a guide to readers about the general scheme and effect of this Act. 4 Relationship between this Act and Dangerous Prisoners (Sexual Offenders) Act 2003 (1) This section applies to a person who is, for a period (the concurrent period)— (a) a reportable offender subject to reporting obligations under this Act; and (b) subject to the requirements of a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. (2) During the concurrent period, the reportable offender is not required to make any report under this Act other than an initial report. Part 2 Interpretation 5Reportable offender defined (1) A reportable offender is a person who is— (a) sentenced for a reportable offence, regardless of when the offence was committed or the person was convicted; or (b) sentenced for an offence for which a court has made a declaration under subsection (5); or (c) an existing reportable offender; or (d) a corresponding reportable offender; or (e) subject to an offender reporting order; or (f) subject to an offender prohibition order; or (g) the respondent for a registered corresponding order; or (h) a post-DPSOA reportable offender. (2) However, a person mentioned in subsection (1)(a) is not a reportable offender only because— (a) the person was convicted of a prescribed offence, if the conviction was not recorded under the Penalties and Sentences Act 1992, section 12 or the Youth Justice Act 1992, section 183, (or an equivalent order under the laws of a foreign jurisdiction); or (b) the person was sentenced for a prescribed offence that is a single offence, if the sentence did not include— (i) a term of imprisonment; or (ii) a requirement that the person be under the supervision of a supervising authority or another person or body; or (c) the person, as a child, committed— (i) a single offence against the Classification of Computer Games and Images Act 1995, section 26(3), the Classification of Films Act 1991, section 41 or 42 or the Classification of Publications Act 1991, section 13, 14, 15 or 16; or (ii) a single offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of Queensland; or (iii) a single offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of a foreign jurisdiction; or (iv) a single offence (including an offence under the law of a foreign jurisdiction) that falls within a class of offence that the regulations state is an offence for the purposes of this subparagraph. (3) Also, a person is not a reportable offender if the person— (a) is receiving protection under a foreign witness protection law specified under a regulation for the purposes of this subsection; or (b) has the same status as a person mentioned in paragraph (a) under an order made under a corresponding Act specified under a regulation for the purposes of this subsection. (4) For this section, it does not matter— (a) whether a person committed, was convicted of or sentenced for a reportable offence before or after 1 January 2005; or (b) whether or not a person may lodge, or has lodged, an appeal in relation to a conviction, sentence or the making of an offender reporting order. (5) For subsection (1)(b), if a court convicts a person of an offence other than a reportable offence, the court may also declare it is satisfied the facts and circumstances surrounding the offence constitute elements of a reportable offence. (6) For subsection (2)(b)(ii), a reference to being under the supervision of a supervising authority does not include supervision under a fine option order. 6Existing reportable offender defined (1) An existing reportable offender is— (a) a person who— (i) was convicted of a reportable offence before 1 January 2005; and (ii) on 1 January 2005, was serving a term of imprisonment, or was subject to a supervision order, for the reportable offence; or (b) a person who, immediately before 1 January 2005, was subject to a pre-2005 reporting order. (2) Subsection (1)(a) does not apply if a conviction was not recorded under the Penalties and Sentences Act 1992, section 12 or the Youth Justice Act 1992, section 183. 7Corresponding reportable offender and corresponding reportable offence defined (1) A corresponding reportable offender is a person who— (a) has, at any time, been convicted of a corresponding reportable offence; and (b) falls within a class of person whom a regulation states is a corresponding reportable offender. (2) A corresponding reportable offence is an offence against a law of a foreign jurisdiction if a person convicted of the offence would be required to report to the corresponding registrar in the foreign jurisdiction because of the conviction. 7APost-DPSOA reportable offender defined (1) A post-DPSOA reportable offender is a person who— (a) was sentenced for a reportable offence, whether before or after 1 January 2005; and (b) was, but is no longer, subject to a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003. (2) A person becomes a post-DPSOA reportable offender when the person stops being subject to the division 3 order mentioned in subsection (1)(b). 8 When a person stops being a reportable offender A person stops being a reportable offender when any of the following events happen— (a) the conviction in relation to the only offence that makes the person a reportable offender under this Act is quashed or set aside by a court; (b) the person's sentence for the only reportable offence that makes the person a reportable offender under this Act is reduced or altered so that the person would have been a person mentioned in section 5(2)(a) or (b) had the amended sentence been the original sentence; (c) the offender reporting order that makes the person a reportable offender under this Act is quashed on appeal; (d) the end of all reporting periods to which the person is subject, including under an offender prohibition order. 9Reportable offence and existing reportable offence defined (1) A reportable offence is— (a) an offence (a prescribed offence) that is mentioned in schedule 1, item 9, if— (i) the offence is committed in respect of a child; or (ii) the police commissioner reasonably believes the reportable offender committed the offence in the belief that the person in respect of whom the offence was committed was a child; or (b) another offence (also a prescribed offence) that is mentioned in schedule 1; or (c) another offence that results in an offender reporting order being made; or (d) a corresponding reportable offence. (2) An existing reportable offence is a reportable offence committed before the commencement day, regardless of whether a person is convicted of the offence before or after the commencement day. 9AReportable contact defined (1) A reportable offender has reportable contact with a child if the offender— (a) has physical contact with the child; or (b) communicates with the child orally, whether in person, by telephone or over the internet; or (c) communicates with the child in writing (including by electronic communication). (2) Without limiting subsection (1), reportable contact includes contact with a child when the offender is— (a) supervising or caring for any child; or (b) exchanging contact details with any child; or (c) attempting to befriend any child. (3) Reportable contact does not include contact with a child that is incidental to the offender's daily life unless the contact— (a) involves an attempt by the offender to befriend, or establish further contact with, the child; or (b) occurs with a regularity or frequency, or in a way, that may reasonably be expected to result in a level of familiarity or trust between the offender and the child beyond what may reasonably be expected to be incidental to the offender's daily life. Examples of contact with a child that is incidental to a reportable offender's daily life— • the offender buys a newspaper from a shop where the shop attendant is a child • the offender buys takeaway food from a shop that has child employees (4) In this section— contact means contact that happens in Queensland or elsewhere. 10Conviction defined (1) A reference to a conviction in relation to an offence (however expressed) committed by a person is a reference to any of the following, whether or not a conviction is recorded— (a) a court making a formal finding of guilt in relation to the offence; (b) a court convicting the person of the offence, if 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 the Penalties and Sentences Act 1992, section 189 or the Youth Justice Act 1992, section 157, or under equivalent provisions of the laws of a foreign jurisdiction. (2) However, a reference to a conviction does not include a conviction that is later quashed or set aside by a court. 10APersonal details defined The personal details of a reportable offender are the details mentioned in schedule 2 for the offender. 10B When a person poses a risk to children A person poses a risk to the lives or sexual safety of 1 or more children, or of children generally, if there is a risk that the person will engage in conduct that may constitute a reportable offence against or in relation to a child or children. 11 References to other terms and concepts (1) A single offence is 1 or more offences committed against the same person within a single period of 24 hours that, together, are taken to be 1 offence. (2) A reference to doing a thing in person is a reference to doing the thing by personal attendance at a place, and is not a reference to attending the place by phone or by other electronic means. 12 Definitions The dictionary in schedule 5 defines particular words used in this Act. Part 3 Offender reporting orders Division 1 Making offender reporting orders 12A Offender reporting order defined An offender reporting order is an order made against a person that the person comply with the reporting obligations imposed on a reportable offender under this Act. 12B Making offender reporting order—conviction for offence other than prescribed offence (1) This section applies if a court— (a) convicts a person of an offence other than a prescribed offence; and (b) records a conviction and imposes a sentence for the offence. Note— For when no conviction is recorded, see the Penalties and Sentences Act 1992, section 12 and the Youth Justice Act 1992, section 183. (2) The court may also make an offender reporting order against the person if satisfied, on the balance of probabilities, after considering the matters mentioned in section 12D— (a) the person poses a risk to the lives or the sexual safety of 1 or more children, or of children generally; or (b) for a person convicted of a child abduction offence— (i) the context in which the offence was committed was not familial; and (ii) it is appropriate in the circumstances to make the order. Example of circumstances in which it is appropriate to make the order— The commission of the offence was not merely incidental. (3) For subsection (2)(a), it is not necessary that the court be able to identify a risk to particular children, or a particular class of children. 12C Making offender reporting order—forensic order (1) This section applies if a court makes a forensic order in relation to a person. (2) The court may also make an offender reporting order against the person if satisfied, on the balance of probabilities, after considering the matters mentioned in section 12D— (a) the person poses a risk to the lives or the sexual safety of 1 or more children, or of children generally; or (b) if the forensic order was made in relation to a child abduction offence— (i) the context in which the offence was committed was not familial; and (ii) it is appropriate in the circumstances to make the order. (3) For subsection (2)— (a) a reference in section 12D to an offence is a reference to the offence in relation to which the forensic order is made; and (b) a reference in section 12D to the conduct the subject of the order is a reference to the conduct that constitutes that offence. (4) For subsection (2)(a), it is not necessary that the court be able to identify a risk to particular children, or a particular class of children. (5) An offender reporting order made under subsection (2) ends if the forensic order is revoked under the Mental Health Act 2016, section 441. 12D Matters court must consider before making offender reporting order The matters a court must consider for section 12B(2) or 12C(2) are— (a) when the conduct the subject of the proposed offender reporting order happened; and (b) the nature and seriousness of the conduct; and (c) for each offence to which the proposed order relates— (i) the age of the respondent, the age of the victim of the offence and the difference in their ages when the offence was committed; and (ii) the relationship, if any, between the respondent and the victim of the offence; and (d) the respondent's criminal history, including the seriousness of the criminal history; and (e) the respondent's circumstances, including— (i) the access the respondent has to children, including access through the respondent's employment; and (ii) the respondent's needs in relation to accommodation, employment, health and mental health; and (f) anything else the court considers relevant. 12E Court may act on own initiative or application (1) A court may make an offender reporting order— (a) on its own initiative; or (b) on the application of the prosecution. (2) The prosecution may make an application under subsection (1)(b) at any time within 6 months after the day the court— (a) imposes the sentence for the offence; or (b) makes the forensic order. Division 2 Appeals 12F Appeal under Criminal Code (1) If a court makes an offender reporting order against a person under section 12B, the person may appeal against the making of the order under the Criminal Code, chapter 67. (2) If a court refuses an application for an offender reporting order to be made against a person under section 12B, the Attorney-General may appeal against the refusal under the Criminal Code, chapter 67. (3) For subsections (1) and (2), the Criminal Code, chapter 67 applies as if the order, or the refusal, were a sentence pronounced on conviction of the person for an indictable offence. 12G Appeal under Mental Health Act 2016 (1) If a court makes an offender reporting order against a person under section 12C, the person may appeal against the making of the order under the Mental Health Act 2016. (2) If a court refuses an application for the imposition of an offender reporting order against a person under section 12C, the Attorney-General may appeal against the refusal under the Mental Health Act 2016. (3) For subsections (1) and (2), the Mental Health Act 2016 applies as if— (a) the order or refusal were a decision of the Mental Health Court; and (b) a reference in the Mental Health Act 2016 to the Mental Health Court were a reference to the court that made the order or refused the application. 13 [Repealed] Part 3A Offender prohibition orders Division 1 Offender prohibition orders Subdivision 1 Prohibition orders 13A Application (1) The police commissioner may apply to a court for a prohibition order for a person if the police commissioner believes, on reasonable grounds, the person— (a) is a relevant sexual offender; and (b) has engaged in concerning conduct. (2) The application must be in the approved form and must state— (a) the particulars of each conviction of the respondent for a reportable offence committed against a child; and (b) the particulars of the concerning conduct the respondent is alleged to have engaged in; and (c) when the respondent is alleged to have engaged in the concerning conduct; and (d) the conduct of the respondent proposed to be prohibited under the prohibition order, including the conditions sought by the police commissioner. (3) In this section— concerning conduct means an act or omission, or a course of conduct, the nature or pattern of which poses a risk to the safety or wellbeing of 1 or more children, or of children generally, and may include the following— (a) conduct that constitutes an offence; (b) conduct that is a single act or omission. Examples— • loitering at or near a park fitted with playground equipment regularly used by children • seeking employment or volunteer work that will involve the employee coming into contact with children, including, for example, door-to-door sales or collecting • living near a school • living in a household with children under 16 years 13B How proceeding for prohibition order is started (1) The police commissioner starts a proceeding against a respondent under section 13A(1) by issuing an appearance notice for the proceeding. (2) As soon as practicable after starting the proceeding, and before the time the respondent is required to appear at a place before a court under the appearance notice, the police commissioner must file the following documents with the registrar of the court at the place— (a) the application for the proceeding; (b) a copy of the appearance notice for the proceeding. (3) A police officer must serve a copy of the application and the appearance notice (the application documents) on the respondent. Note— For further provisions about service, see section 13ZL. (4) Also, for a child respondent, the police commissioner must, as soon as practicable after starting the proceeding, give a copy of the application documents to— (a) the chief executive (child safety), if the prohibition order sought is likely to result in the child respondent needing to change the child respondent's place of residence; and (b) a parent of the child respondent, if the police commissioner is able to find a parent of the child respondent after making reasonable attempts. 13C Making prohibition order (1) A court may make a prohibition order if the court is satisfied, on the balance of probabilities, after considering the matters mentioned in section 13D— (a) the respondent is a relevant sexual offender; and (b) having regard to the nature or pattern of conduct engaged in by the respondent— (i) the respondent poses an unacceptable risk to the safety or wellbeing of 1 or more children, or of children generally; and (ii) the making of the prohibition order will reduce the risk. (2) Also, for a child respondent, the court may only make the prohibition order— (a) after considering a report given to the court under section 13E; and (b) if satisfied the making of the prohibition order is a last resort and the most effective way of reducing the risk mentioned in subsection (1)(b)(i). (3) For subsection (1), it is not necessary for the court to be able to identify a risk to a particular child or particular children. (4) The application for the prohibition order may be heard in the respondent's absence if the court is satisfied the respondent was served with the application documents under section 13B(3). (5) However, the court may, at any time before making the prohibition order, direct the police commissioner to give a further appearance notice to the respondent as directed by the court. 13D Matters court must consider before making prohibition order The matters a court must consider for section 13C(1) are— (a) when the conduct that is the subject of the proposed prohibition order happened; and (b) the seriousness of the respondent's reportable offences committed against a child, whether committed in Queensland or elsewhere; and (c) the period since the reportable offences were committed; and (d) for each reportable offence— (i) the age of the respondent, and the age of the victim of the offence, when the offence was committed; and (ii) the difference in age between the respondent and the victim of the offence; and (e) the respondent's present age; and (f) the seriousness of the respondent's criminal history; and (fa) whether the respondent has ever been subject to a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003; and (g) the effect of the prohibition order sought on the respondent in comparison with the level of risk of the respondent committing a reportable offence against a child; and (h) the respondent's circumstances— (i) to the extent the circumstances relate to the conduct sought to be prohibited; and (ii) including the reportable offender's accommodation, employment needs and integration into the community; and (i) for a child respondent—the child respondent's educational needs; and (j) anything else the court considers relevant. 13E Court must order report before making prohibition order for child respondent (1) This section applies if the court is satisfied of the matters mentioned in section 13C(1) in relation to a child respondent. (2) Before making a prohibition order for the child respondent, the court must direct the chief executive (communities) to give to the court a written report containing stated information, assessments and reports about— (a) the child respondent; or (b) the child respondent's family; or (c) other matters. (3) The report may contain the opinion of the chief executive (communities) on what impact a prohibition order may have on the child respondent in relation to the child respondent's accommodation, educational, health, cultural or social needs. (4) The report must be given to the court within the period stated by the court in the direction. (5) When the report is given to the court under subsection (4), the registrar of the court must give a copy of the report to each party to the proceeding. 13F Conduct that may be prohibited (1) A prohibition order may prohibit the respondent from engaging in stated conduct, including, for example— (a) associating with, or otherwise contacting, stated persons or a stated kind of person; or Example— corresponding with other relevant sexual offenders (b) being in stated locations or a stated kind of location; or Example— within 200m of a school between 7a.m. and 7p.m. on school days (c) residing at a stated residence, stated residences, a stated kind of residence or a residence at a stated location; or Examples— • a residence within 200m of a school • a residence where children under 16 years reside (d) engaging in stated behaviour; or Examples— • taking photos of children • downloading from the internet catalogues that feature child models • using internet chat rooms that are primarily aimed at children (e) being in stated employment, or a stated kind of employment, whether paid or voluntary, that is likely to bring the respondent into contact with children. Examples— • employment in a cafe in the vicinity of a school • door-to-door sales or collecting (2) A prohibition order may prohibit conduct— (a) absolutely; or (b) on the terms the court considers appropriate. (3) A prohibition order may prohibit the respondent from entering or remaining in a stated place even if the respondent has a right to enter or to be in the place. (4) If a prohibition order prohibits the respondent from entering or remaining in a place as mentioned in subsection (3), the court must, if satisfied it is necessary to do so, ensure the prohibition order provides for the respondent to recover the respondent's personal property from the place. Example— A provision of a prohibition order may allow a respondent to enter a stated place between stated times, if accompanied by a police officer, to recover the respondent's property. 13FA Conduct that may be required (1) A prohibition order may require the respondent to do any of the following things— (a) wear a tracking device for a stated period; (b) comply with a condition the court considers necessary to facilitate the operation of a tracking device; (c) reside at a particular place of residence; (d) submit to psychological treatment; (e) comply with a condition the court considers necessary to reduce the risk to the safety or wellbeing of 1 or more children, or of children generally. (2) This section does not limit section 13F. (3) In this section— tracking device means an electronic device capable of being worn, and not removed, by a person for the purpose of the police service, or the chief executive (corrective services), finding or monitoring the geographical location of the person. 13G Term of prohibition order (1) A prohibition order— (a) takes effect on the day notice of it is given to the respondent; and (b) subject to subsection (3), remains in force for the following term— (i) for an adult respondent—5 years; (ii) for a child respondent—2 years. (2) Subsection (3) applies if an application for a new prohibition order for a respondent— (a) is made before the end of the term of the existing prohibition order for the respondent; and (b) is not decided before the day the existing prohibition order ends. (3) The existing prohibition order continues to have effect until the application for the new prohibition order is decided. (4) The term of a new prohibition order mentioned in subsection (3) starts when the term of the existing prohibition order mentioned in the subsection ends. Example— The term of the existing prohibition order ends on 30 June 2018. An application for a new prohibition order is made on 31 May 2018. The application for the new prohibition order is decided, and the new prohibition order is made, on 1 August 2018. Under subsection (3), the term of the existing prohibition order is extended until the new prohibition order is made on 1 August 2018. Although the new prohibition order takes effect on 1 August 2018 under subsection (1), its term starts on 1 July 2018 under subsection (4). (5) In this section— term, of an existing prohibition order, does not include the period for which the existing prohibition order's effect is continued under subsection (3). Subdivision 2 Temporary orders 13H Definition for subdivision In this subdivision— final order means an order under section 13C(1). 13I Applying for temporary order (1) The police commissioner may apply in the approved form to a magistrate for a temporary order for a person if the police commissioner— (a) has the belief mentioned in section 13A(1) about the person; and (b) also believes on reasonable grounds that— (i) the making of a temporary order for the person is necessary to prevent an immediate risk of the respondent engaging in conduct posing a risk to the safety or wellbeing of 1 or more children, or of children generally; and (ii) the making of the temporary order will reduce the risk. (2) The application must state— (a) the matters mentioned in section 13A(2); and (b) why the police commissioner believes the temporary order is necessary. (3) The application may be made without notice being given to the respondent, or a police officer may give notice, in the approved form, to the respondent stating— (a) when and how the application will be made; and (b) that the respondent— (i) may be present before the magistrate when the application is made; and (ii) may make submissions to the magistrate. (4) The Police Powers and Responsibilities Act 2000, sections 800 to 802 apply to the application for the temporary order as if the temporary order were a prescribed authority within the meaning of that Act. Note— The Police Powers and Responsibilities Act 2000, sections 800 to 802 provide for obtaining prescribed authorities by phone, fax, radio, email or another similar facility. 13J Temporary order made by magistrate (1) A magistrate may make a temporary order if the magistrate is satisfied, on the balance of probabilities, of the matters mentioned in section 13C(1). (2) For subsection (1)— (a) the reference in section 13C(1)(b)(ii) to the prohibition order is taken to be a reference to the temporary order; and (b) it is not necessary for the magistrate to be able to identify a risk to a particular child or particular children; and (c) sections 13C(2), (4) and (5), 13D and 13E do not apply. (3) Also, for subsection (1), if the application for the temporary order is made without notice being given to the respondent, the magistrate may not make the temporary order unless the magistrate considers it necessary to make the temporary order without notice to the respondent in the particular circumstances of the case. (4) The temporary order need only be supported by information the magistrate considers sufficient and appropriate having regard to the temporary nature of the temporary order. Example— oral submissions, rather than evidence on oath (5) When the magistrate makes the temporary order, the magistrate must fix a return date, time and place for an application for a final order. (6) On the making of the temporary order, the police commissioner must immediately start a proceeding under section 13B(1) for the final order. (7) The date, time and place stated in the appearance notice for the final order must be the date, time and place fixed under subsection (5). 13K Temporary order made by court (1) During a proceeding for a final order for a respondent, the court must, on its own initiative or on application by a party to the proceeding, decide whether to make a temporary order for the respondent. (2) However, the court may only make the temporary order if the court— (a) is satisfied, on the balance of probabilities, of the matters mentioned in section 13C(1); and (b) after the temporary order is made, adjourns the proceedings. (3) For subsection (2)(a)— (a) the reference in section 13C(1)(b)(ii) to the prohibition order is taken to be a reference to the temporary order; and (b) it is not necessary for the court to be able to identify a risk to a particular child or particular children; and (c) sections 13C(2), (4) and (5), 13D and 13E do not apply. (4) The temporary order need only be supported by information the court considers sufficient and appropriate having regard to the temporary nature of the temporary order. (5) The temporary order may be made in the respondent's absence if the court is satisfied application documents for the final order were served on the respondent under section 13B(3). 13L Conduct that may be prohibited Section 13F applies to a temporary order as if— (a) a reference in the section to a prohibition order were a reference to a temporary order; and (b) a reference in the section to the court included, for section 13J a reference to a magistrate. 13LA Conduct that may be required Section 13FA applies to a temporary order as if— (a) a reference in the section to a prohibition order were a reference to a temporary order; and (b) a reference in the section to the court included, for section 13J, a reference to a magistrate. 13M Term of temporary order (1) A temporary order takes effect— (a) if the respondent is present before the magistrate or court when the temporary order is made—when it is made; or (b) if the respondent is not present before the magistrate or court when the temporary order is made—when a copy of the temporary order is served on the respondent under section 13S(2). (2) The temporary order remains in force until whichever of the following happens first— (a) if the temporary order is made under section 13J—a proceeding for a final order is not started by the return date and time fixed by a magistrate under section 13J(5); (b) the application for the final order is next mentioned in a court and the court does not extend the term of the temporary order under section 13N; (c) the prescribed period ends; (d) a court decides the application for the final order; (e) the police commissioner discontinues the application for the final order; (f) the temporary order is revoked under section 13Q or on appeal. (3) In this section— final order means a final order for the respondent for the temporary order. prescribed period means— (a) the period for which the temporary order is extended under section 13N; or (b) otherwise—28 days. 13N Extending temporary order if application for final order adjourned (1) This section applies if— (a) a temporary order is in force for the respondent to an application for a final order; and (b) the court adjourns the application; and (c) the temporary order will end before the application is decided. (2) The court may, on application or on its own initiative, extend the temporary order for not more than 28 days, or a longer period to which the respondent consents. (3) The temporary order may be extended in the respondent's absence if the court is satisfied application documents for the final order were served on the respondent under section 13B(3). Subdivision 3 Other provisions about offender prohibition orders 13O Who may be present at hearing of application (1) A magistrate or court hearing an application for an offender prohibition order must hear the application in the presence of only— (a) the applicant; and (b) unless the application is heard in the respondent's absence—the respondent; and (c) any witness the magistrate or court allows for the application; and (d) another person the magistrate or court considers appropriate to be present and allows to be present; and Examples— • a parent of a child respondent • another person who is able to provide cultural or emotional support for the respondent, or for a witness whom the magistrate or court has allowed to be present • a person conducting relevant academic or scientific research (e) a lawyer representing anyone mentioned in paragraph (a), (b) or (c); and (f) a person whose presence the magistrate or court considers is necessary or desirable for the proper conduct of the proceedings. Example— a recorder performing a function under the Recording of Evidence Act 1962 (2) This section does not limit the Police Service Administration Act 1990, section 10.24. Note— The Police Service Administration Act 1990, section 10.24 provides for the representation of police officers in court. 13P Making order for adult respondent by consent (1) This section applies if an application is made to a magistrate or court for an order under this part for an adult respondent. (2) The magistrate or court may make the order if the applicant and the respondent consent to the making of the order. (3) The court may make an offender prohibition order with the consent of the applicant and the respondent without being satisfied of the matters stated in section 13C, or considering the matters mentioned in section 13D, unless the court considers it is not in the interests of justice to do so. (4) In considering the interests of justice for subsection (3), the matters to which the court may have regard include— (a) whether the respondent has obtained legal advice about the proposed offender prohibition order; and (b) whether the respondent— (i) has an intellectual disability or cognitive impairment; or Examples— an acquired brain injury, Alzheimer's disease or dementia (ii) has a significant mental illness that requires ongoing treatment by a psychiatrist; or (iii) has an alcohol or drug addiction that impairs the respondent's decision-making ability or has caused the respondent to be hospitalised; or (iv) is a person for whom an order appointing a guardian is in force under the Guardianship and Administration Act 2000; or (v) is illiterate, or is not literate in the English language; or Example— a person from a non-English speaking background (vi) is subject to some other condition preventing the respondent from understanding the effect of consenting to the proposed offender prohibition order being made. (5) This section does not limit the magistrate's or court's power under section 13C, 13J, 13K or 13Q. 13Q Varying or revoking offender prohibition order (1) The police commissioner, or the respondent, may apply to the court under the relevant rules of court for the variation or revocation of an offender prohibition order. (2) However, other than in relation to an offender prohibition order made in the respondent's absence, the respondent may only make an application under subsection (1) with the court's leave. (3) The court may grant the leave if satisfied— (a) it is in the interests of justice, having regard to changes in the respondent's circumstances, or circumstances affecting the respondent, since the prohibition order was made or last varied; or Example of the respondent's circumstances— the respondent's accommodation, employment, health, cultural or social needs Example of circumstances affecting the respondent— Under the prohibition order, the respondent is prohibited from going within a stated distance of stated premises and the premises have closed down since the prohibition order was made. (b) it is appropriate on compassionate grounds, including having regard to the respondent's culturally specific needs. Examples— • to visit a relative who is seriously ill • to attend a relative's funeral (4) In deciding the application, the court must have regard to— (a) the matters mentioned in sections 13C and 13D, to the extent the magistrate or court that made the offender prohibition order was required to have regard to those matters; and (b) any changes in the respondent's circumstances since the offender prohibition order was made or last varied. (5) A variation takes effect— (a) if the respondent is present in court when the variation is made—when it is made; or (b) if the respondent is not present in court when the variation is made—when a copy of the order varying the offender prohibition order is served on the respondent under section 13S(2). (6) A revocation takes effect when it is made. 13R Explaining and giving notice of offender prohibition order to respondent (1) Subsection (2) applies if the respondent is present before— (a) a magistrate when the magistrate makes an offender prohibition order; or (b) a court when the court makes or varies an offender prohibition order. (2) The magistrate or court must ensure all reasonable steps are taken to explain to the respondent in language likely to be understood by the respondent— (a) the respondent's obligations under the offender prohibition order or variation; and (b) the consequences that may follow if the respondent fails to comply with the obligations. (3) Also, subsection (4) applies if the respondent was not a reportable offender immediately before the offender prohibition order was made. (4) As soon as practicable after the offender prohibition order is made, the police commissioner must give the respondent an initial reporting obligations notice. (5) Subsection (4) applies despite section 54(4). (6) Failure to comply with subsection (2) or (4) does not affect the validity of the offender prohibition order. 13S Giving respondent copy of offender prohibition order dealt with in respondent's absence (1) This section applies if a magistrate or court makes, varies or revokes an offender prohibition order in the respondent's absence. (2) A police officer must serve the respondent with the documents mentioned in subsections (3) and (4). Note— For further provisions about service, see section 13ZL. (3) In each case, the respondent must be served with a copy of the order making, varying or revoking the offender prohibition order. (4) Also, if the magistrate or court makes an offender prohibition order, the respondent must be served with— (a) a notice stating that, if a law of another jurisdiction provides for registration of the offender prohibition order under corresponding provisions, the offender prohibition order may be registered in the other jurisdiction; and (b) if the respondent was not a reportable offender immediately before the offender prohibition order was made—an initial reporting obligations notice in relation to the respondent as a reportable offender. (5) Also, for a child respondent, the police commissioner must, as soon as practicable after the magistrate or court makes, varies or revokes the offender prohibition order, give a copy of the court's or magistrate's order to— (a) the chief executive (child safety), if the offender prohibition order is likely to result in the child respondent needing to change the child respondent's place of residence; and (b) a parent of the child respondent, if the police commissioner is able to find a parent of the child respondent after making reasonable attempts. (6) Failure to comply with any of subsections (2) to (5) does not affect the validity of the offender prohibition order. (7) In this section— corresponding provisions means provisions corresponding to division 2. 13T Making disqualification order instead of temporary order (1) This section applies if— (a) a magistrate hearing an application for a temporary order (the relevant application) for a person decides not to make the temporary order; or (b) a court hearing an application for an offender prohibition order (also the relevant application) for a person— (i) has not made a final order for the person; and (ii) decides not to make a temporary order for the person under section 13K. (2) The magistrate or court must consider whether to make an order (disqualification order) in relation to the person stating the person may not— (a) hold a working with children authority; or (b) make a working with children check application. (3) However, the magistrate or court may make the disqualification order only if the magistrate or court considers it would not be in the interests of children for the chief executive (justice) to issue a working with children authority to the person. (4) The following provisions apply to the making of the disqualification order— (a) if the relevant application is made under section 13I—section 13J(3) to (7); (b) if the relevant application is made under section 13K—section 13K(4) and (5). (5) The provisions mentioned in subsection (4) apply for that subsection as if— (a) a reference in the provisions to the respondent were a reference to the person; and (b) a reference in the provisions to a temporary order were a reference to the disqualification order. (6) If the magistrate or court makes the disqualification order in the person's absence, a police officer must serve the person with a copy of the disqualification order. 13U Term of disqualification order (1) A disqualification order takes effect— (a) if the person who is subject to the disqualification order is present before the magistrate or court when the disqualification order is made—when it is made; or (b) if the person who is subject to the disqualification order is not present before the magistrate or court when the disqualification order is made—when a copy of the disqualification order is served on the person under section 13T(6). (2) The disqualification order remains in force until whichever of the following happens first— (a) if the disqualification order is made by a magistrate hearing an application for a temporary order under section 13J—a proceeding for a final order is not started by the return date and time fixed by the magistrate under section 13J(5); (b) the application for the final order is next mentioned in a court and the court does not extend the term of the disqualification order under section 13V; (c) the prescribed period ends; (d) a court decides the application for the final order; (e) the police commissioner discontinues the application for the final order; (f) the disqualification order is revoked under section 13W. (3) In this section— final order means a final order for the person. prescribed period means— (a) the period for which the disqualification order is extended under section 13V; or (b) otherwise—28 days. 13V Extending disqualification order if application for final order adjourned Section 13N applies in relation to a disqualification order as if— (a) a reference in the section to a temporary order were a reference to the disqualification order; and (b) a reference in the section to the respondent were a reference to the person who is subject to the disqualification order. 13W Revoking disqualification order (1) A person who is subject to a disqualification order may apply to the court under the relevant rules of court for revocation of the disqualification order. (2) However, other than in relation to a disqualification order made in the person's absence, the person may only make an application under subsection (1) with the court's leave. (3) The court may grant the leave if satisfied it is in the interests of justice to do so. (4) In deciding the application, the court must have regard to whether it would be in the best interests of children for the chief executive (justice) to issue a working with children authority to the person. (5) A revocation takes effect when it is made. 13X Costs A court must not award costs on an application for an offender prohibition order or for a variation or revocation of an offender prohibition order unless the court dismisses the application as frivolous or vexatious or another abuse of process. Division 2 Corresponding orders 13Y Application for registration of corresponding order in Queensland The police commissioner may apply in the approved form to the registrar of a Magistrates Court (the registrar) for the registration of a corresponding order. 13Z Registration of corresponding order (1) This section applies if the registrar is satisfied— (a) the corresponding order is in force; and (b) the corresponding order was served on the person against whom it was made under the law of the jurisdiction where the corresponding order was made. (2) Subject to subsections (3) and (10), the registrar must register the corresponding order. (3) The registrar must refer the corresponding order to the court for adaptation or modification for its effective operation in the State if— (a) the registrar believes it is necessary to do so; or (b) the police commissioner asks the registrar to do so. (4) If the corresponding order is referred to the court, a police officer must serve a copy of the application for registration of the corresponding order and an appearance notice on the respondent. (5) The application may be heard in the respondent's absence if the court is satisfied a copy of the application and an appearance notice were served on the respondent under subsection (4). (6) However, the court may, at any time before deciding the application, direct the police commissioner to give a further appearance notice to the respondent. (7) Section 13O applies to the hearing for the variation of the corresponding order as if the hearing were a hearing for an offender prohibition order. (8) The court may vary the corresponding order for the purposes of its registration by adapting or modifying it in a way the court considers necessary or desirable for its effective operation in the State. (9) For varying the corresponding order as mentioned in subsection (8), the court must consider— (a) anything that may be considered under sections 13C and 13D on an application for a prohibition order under section 13C; and (b) any changes in the respondent's circumstances since the corresponding order was made. (10) The registrar must register the corresponding order as varied by the court. (11) A registered corresponding order is registered for the period during which the corresponding order, as originally made, is in force. (12) A regulation may— (a) prescribe the way the registrar is to register a corresponding order or a varied corresponding order; and (b) provide for the keeping of the register and access to it. (13) In this section— appearance notice means a notice, in the approved form, stating the following in relation to a corresponding order— (a) that an application for the registration of the corresponding order has been referred to the court; (b) when and where the application is to be heard; (c) that the respondent is required to appear at the hearing; (d) that the court may register the corresponding order, or the corresponding order as varied by the court, in the respondent's absence if the respondent fails to appear at the hearing. 13ZA Action by registrar and police commissioner after registration of corresponding order (1) No later than 2 business days after registering a corresponding order, the registrar must give the police commissioner a certificate of the registration with a copy of the registered corresponding order attached. (2) The registrar may not ask the police commissioner for any fee, or reimbursement for any expenses incurred, under this division. (3) After receiving a copy of the registered corresponding order, the police commissioner must serve on the respondent— (a) a copy of the registered corresponding order; and (b) if the respondent for the registered corresponding order was not a reportable offender immediately before its registration—an initial reporting obligations notice in relation to the respondent as a reportable offender. Note— Under section 13ZB(1)(a), the registered corresponding order has the same effect as a prohibition order made under this part. (4) Also, for a child respondent, the police commissioner must, as soon as practicable after receiving a copy of the registered corresponding order, give a copy of the registered corresponding order to— (a) the chief executive (child safety), if the registered corresponding order is likely to result in the respondent needing to change the respondent's place of residence; and (b) a parent of the child respondent, if the police commissioner is able to find a parent of the child respondent after making reasonable attempts. (5) Failure to comply with subsection (3) or (4) does not affect the validity of the registration of the corresponding order. 13ZB Effect of registration of corresponding order (1) A registered corresponding order— (a) has the same effect as a prohibition order made under this part; and (b) may be enforced against the respondent as if it were a prohibition order made under this part. (2) Subsection (1) has effect even if the corresponding order was registered in the respondent's absence. (3) Subsection (4) applies if the corresponding order was varied under section 13Z(8) in the respondent's absence, and the respondent has not been notified of the variation. (4) Despite subsection (2), until the respondent is notified of the variation, the registered corresponding order has effect and is enforceable against the respondent as if it had not been varied. 13ZC Varying registered corresponding order (1) The police commissioner, or the respondent, may apply to the court under the relevant rules of court for a variation of a registered corresponding order. (2) In deciding the application, the court must consider— (a) anything that must be considered under sections 13C and 13D on an application for a prohibition order under section 13C; and (b) any changes in the respondent's circumstances since the registered corresponding order was registered or last varied. (3) Also, section 13Q(2), (3) and (5) applies to the application as if a reference in the subsections to an offender prohibition order were a reference to a registered corresponding order. 13ZD Cancelling registration of registered corresponding order (1) The police commissioner, or the respondent, may apply to the court for an order cancelling the registration of a registered corresponding order. (2) In deciding the application, the court must consider— (a) anything that must be considered under sections 13C and 13D on an application for a prohibition order under section 13C; and (b) any changes in the respondent's circumstances since the registered corresponding order was registered. (3) Also, section 13Q(2) and (3) applies to the application as if a reference in the subsections to an offender prohibition order were a reference to a registered corresponding order. (4) If the court cancels the registration of the registered corresponding order, the corresponding order, or the corresponding order as varied under this part, stops having effect in Queensland. Division 3 [Repealed] 13ZE [Repealed] 13ZF [Repealed] Division 4 Appeals 13ZG Who may appeal The police commissioner, or the respondent for an offender prohibition order or registered corresponding order (the relevant order), may appeal to the following entity (the appeal court) against a decision made by a court under this part (the relevant decision) in relation to the relevant order— (a) for a child respondent—a Childrens Court constituted by a Childrens Court judge; (b) otherwise—the District Court. 13ZH Starting appeal (1) The appeal must be started within 28 days (the appeal period) after— (a) the day the relevant decision is made; or (b) if the relevant decision was made in the absence of the respondent for the relevant order—the day on which a copy of the order resulting from the relevant decision is served on the respondent for the relevant order. (2) On application, the appeal court may extend the appeal period. (3) The appeal must be started by filing a notice of appeal in writing with the registrar of the appeal court. (4) If it appears to the appeal court that it is not reasonably practicable to serve a copy of the notice of appeal on the respondent to the appeal, the appeal court may make an order substituting another way of serving the notice of appeal. (5) The appeal must be heard in the presence of only— (a) the appellant; and (b) the respondent; and (c) any witness the appeal court allows for the proceeding; and (d) anyone else the appeal court considers appropriate to be present and allows to be present; and Examples— • a parent of a child respondent • another person who is able to provide cultural or emotional support for the respondent or a witness • a person conducting relevant academic or scientific research (e) a lawyer representing anyone mentioned in paragraph (a), (b) or (c). 13ZI Nature of appeal (1) The appeal is by way of rehearing and, subject to section 13ZH, under the Uniform Civil Procedure Rules 1999 or, to the extent the rules can not be applied to the appeal, in accordance with directions given by a judge of— (a) for a child respondent—the Childrens Court; or (b) otherwise—the District Court. (2) Despite subsection (1), further evidence may not be admitted on the appeal. (3) An appeal against a relevant decision does not stay the operation of the relevant order, unless the appeal court orders otherwise. 13ZJ Powers on appeal (1) The appeal court may, on an appeal against a relevant decision about an offender prohibition order— (a) make, vary or revoke the offender prohibition order, as it considers appropriate; or (b) make another order or decision it considers should have been made. (2) The appeal court may, on an appeal against a relevant decision about a registered corresponding order— (a) register, or revoke the registration of, the corresponding order or a variation of it; or (b) make another order or decision it considers should have been made. (3) An order or decision made under subsection (1)(b) or (2)(b) takes effect from when it is made. 13ZK Court may not award costs unless application is frivolous or vexatious or another abuse of process An appeal court must not award costs on an appeal under this division unless the appeal court dismisses the application as frivolous or vexatious or another abuse of process. Division 5 Miscellaneous 13ZL Service of documents (1) This section applies if a provision of this part requires a police officer, including the police commissioner, to serve a document on a respondent for— (a) a proposed offender prohibition order; or (b) an offender prohibition order; or (c) a corresponding order; or (d) a registered corresponding order. (2) This section also applies for the purpose of service of notice on a respondent in relation to an application for a temporary order if notice is given. (3) The document must be served personally on the respondent. (4) However, if, despite making reasonable attempts, a police officer is unable to personally serve a document on the respondent, the police commissioner may apply to the court to authorise substituted service under subsection (5). (5) If it appears to the court that it is not reasonably practicable to serve the document personally on the respondent, the court may authorise another way of serving it (subs