CHILD SEX OFFENDERS REGISTRATION (CONTROL ORDERS AND OTHER MEASURES) AMENDMENT BILL

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:35): I rise to speak on the Child Sex Offenders Registration (Control Orders and Other Measures) Amendment Bill 2014, and indicate that the opposition has considered this bill, which is to provide for an enhancement, I think is the best way to describe it, of the protection of children from sex offenders, which we consider is a sensible addition. There are a number of matters, though, that I wish to place on the record.

Let me start with the Law Society. The Law Society put in a submission in this matter, as a legitimate stakeholder in relation to any changes of the law, particularly criminal law. Unusually, I think, their submission on this occasion was to not have anything to say about it. In fact, from memory, their letter was about a sentence long, saying that they did not have any comment to make at all. To quote them correctly, it says, by letter of 2 June 2014:

The society appreciates the opportunity to consider this matter; however, on this occasion, we will not provide any comment.

That is what they gave to us. I am assuming it is consistent with what they gave the government. I was a little concerned as to why that may be, because they certainly had a lot to say, as I recall, in respect of the Child Sex Offenders Registration Bill when it originally went through the parliament to become, really, the bible on registration arrangements for sex offenders. Not all members were present, but that was legislation that was passed in the Child Sex Offenders Registration Act in 2006. That introduced a new regime of registration of persons who had committed sexual offences.

It was a new model of how the offenders would be monitored. This whole registration process was one designed, particularly, to be able to keep an eye on them. It is a model which provides for the Commissioner of Police to be the keeper of the registration. That process, as I say, was set up to ensure that certain offenders had to be registered, had to report and had to comply with certain directions. Under the principal act—the Child Sex Offenders Registration Act—they were precluded from engaging in any child-related work, and there were some other limitations placed on them.

My recollection was that, when the bill was debated to establish this registration procedure, the Law Society had quite a bit to say about it. It is fair to say that not everyone agrees that registration procedures and then what you do with that information is necessarily a good thing. But I think it is fair to say that at the time of passing that legislation it was obviously at a time where the community were well aware of the concerns that the community had generally about sexual assault and sexual abuse of children. There were a number of different reasons for that, but it was commonly reported and it was an issue of public discussion. I do not want to demean it by saying that it is now what we call in political terms a 'barbecue stopper', but it was the sort of issue during the last decade that did cause a lot of discussion—not just academic interest—but I think amongst the general public.

The public were concerned that their own children and other children would be protected and that we should do everything we possibly could—including in here at the legislative level—to set up an umbrella upon which we could hang a monitoring system or a mechanism as an effective tool in preventing child abuse and offences against children.

So, this was one which came in with a number of people at the individual rights libertarian approach, including some comments that were made by those in the legal profession at the time, to say that this was unnecessary along with if it is going to be implemented, there needs to be a lot of protective action on those who are going to be in control of it. It was largely the Commissioner of Police and his or her senior officers who were going to be responsible for the compliance with this registration process and the publication of material, if there was noncompliance.

Probably the most controversial question at the time was if a person who was obliged to be registered either failed to register or having registered and then not complied with the reporting mechanisms, could ultimately have their details published on a website, and that that publication was seen as really unnecessary. It is not so much a 'name and shame', it is a recognition of the fact that website publication is comprehensive. It is not like putting a poster up or even putting a notice in the newspaper.

Once things go on a website, there is the opportunity to publish that—perhaps unreasonably—or to have use of that information by others who may have some deep-seated hatred towards someone who has offended, and there could be some unreasonable use and abuse of that process.

So at the time there were concerns raised about the need to have such a structure. It was always one where we had to consider the cost of running these registers because police personnel, including at the higher level, are obliged to keep these registers current and the reporting obligations take up police officers' time and obviously it costs money.

The legislation we passed was very prescriptive: ultimately there had to be an initial report that had to be quite detailed. There had to be obligations when there was any change in those details—address, partner, work, employment and those types of things—and there had to be annual reporting. There was some change to this legislation in the last session of the parliament as I recall, to try and deal with, and make it a little more streamlined and easier to comply with the registration action where the offender is in a remote area in South Australia and to easily facilitate the compliance.

I suppose that really highlighted to us the attempt to protect children measured against the practical application that meant that hardworking officers, for example, in remote areas were having to undertake duties that were either oppressive or very time consuming in follow-ups, so there were some changes at that time.

Even back in the 2005-06 period of debating whether we would have a registration procedure at all, ultimately there were reporting obligations: to identify where things had to be reported; how they had to be reported; the right to privacy of certain information; the power of the police to take fingerprints, finger scans and photographs; all of the powers associated with enforcement (reasonable use of force, for example); the retention of material; and all of the circumstances of the exceptions, when there would be an exemption from reporting.

There was some judicial oversight. That was another aspect of the debate that took up the time of the parliament. Essentially, the registration procedure is something that is under the responsibility of the Commissioner of Police and his or her officers. It does not have magistrate or court oversight, but the act made provision for the Supreme Court to be able to intervene in the registration process and grant exemptions. That was really as a sort of appeal mechanism to get some relief in certain circumstances, but it was really to be administered by the police force.

Obviously, when you have a registration process it requires information to be able to flow from the police to the courts and the courts to the police. Again, there is a transfer of information. Sometimes members of the public think, 'Well, somebody has been convicted, they go on a list and that that is really the end of it,' but when you have annual reporting processes and obligations to really report, with stringent penalties if they do not—even such minor changes in detail—you can just imagine the paperwork that flows from that and the considerable amount of work to be done. The offences are quite severe for failing to comply with reporting obligations and notifications when someone is on the list, so obviously there has to be significant compliance.

There were obviously special rules that we had to ultimately determine about who could get access to the register, because it was not going to be a situation, we felt at the time of those debates, where it should be a public register. So, in the last session we came back to amend this legislation to enable there to be publication of information—largely, when there had been a failure to comply, that is, someone fails to report—so the highest level of those could then be put on the website. The police commissioner had some discretion in that regard. In fact, there had to be some gatekeeper in that regard.

We had quite a long debate again about loosening up the use or publication of this information, so we then had to tidy that up to allow for the publication, which we did, via the police commissioner. We insisted that the police commissioner had to take into account certain matters in granting that. I cannot remember offhand exactly what they were, so I will refer to the act.

The matters for consideration included things such as: interfering with the investigation of other offences by police officers of that person or of other offences with the person's compliance with the reporting obligations; whether the publication of identifying information about the person might identify a victim of the offence or a school attended by the victim—all logical things; the effect of the publication on identifying information about the person may have on the victim; whether statements made by the victim to the commission of the publication of the identifying information about the person had been supported or opposed by a victim of the offence committed by the person; and whether the publication of identifying information about the person would increase the risk of a person committing offences.

These are all considerable features of matters to be taken into account by the police commissioner and which, in a practical way, obviously impose an obligation on the commissioner, but I think members would appreciate it sets out a number of things that at least have to be investigated presumably by serving police officers, who then provide a report on these types of things for the commissioner for their consideration. No-one is suggesting the police commissioner has to go out and investigate all these things themselves, but somebody has to do it, and it is a time-consuming exercise. Specifically, the act provided:

(3) Before publishing identifying information—

so, a photograph with a name—

the Commissioner must take reasonable steps to consult with any persons that the Commissioner believes may be adversely affected by publication of the information.

That places on them a statutory obligation to do quite a bit of work. I think it was fair to say that during the course of those debates, the Attorney had indicated—and I think that I am paraphrasing his position correctly; I am sure he will correct me if I did not—that there was an expectation that a photograph, name, address or details of an offender, particularly a photograph, would not be published unless it was a very serious offence, which is provided for, but also that there had actually been a breach—a failure to report—so, some attempt had been made to locate that person, they are at large and were considered to be in the category where a further offence could occur. So, there needed to be pretty serious circumstances surrounding that.

I note that we are coming up to make some amendments to this bill, apart from the introduction of control orders, which I will get to shortly, and that is why I particularly raise it. Whilst we had set out a fairly comprehensive amount of legislation—I think we put in a number of protections to ensure that the most serious were the ones captured, and that there was a minimal interference to the workload as must as we could—one of the things that we are being asked to consider today in the bill is the amendment to section 66F which sets out the details of registerable offenders that can be published.

The bill proposes to allow the Commissioner of Police to publish certain details about missing registerable offenders on a website. The section at present does not specifically state the Commissioner of Police can publish the fact that a person is a registerable offender under the act, although it is clearly implied. The government are asking us, in this bill, to make that explicit. We do not object to that, but they are wanting to make it abundantly clear.

I have not seen anything in any second reading or briefings that suggests that is necessary. We are not going to oppose it, but I do recall in the debates that we were conscious of the fact that once you put something on a website it does have comprehensive coverage, and we do not want that to be abused by those who might cause some mischief with it.

One of the situations—which I think was a criticism—in Western Australia, where they have publication laws, including on the website, was this question of almost inciting fear in the community as a result of there being a website disclosure, and unnecessarily frightening the public and/or using it to further cause people to be frightened in a location if they thought someone who had been a registrable offender was living in their street or living near a school or the like.

You have to balance these things. You cannot just introduce something because you think it looks good and then realise later that it is a problem. However, in any event, today we are being asked to consent to the commissioner having the capacity to put the details of a registrable offender on the website. My understanding of that is that it will include a photograph with the details, such as the name and the like. I have not had any information provided to me, and I do not think our shadow attorney has, as to what publications there have been since we actually brought in the act and allowed for further commissionerapproved publications a year or so ago and how that has played out and whether in fact it has been used very often or at all and, if it has, how effective that has been. In any event, we are being asked to make absolutely clear the intention and we will give that consent.

Just in relation to that, section 66J makes provision for the Attorney-General to be able to give a person consent to republish identifying information published by the Commissioner of Police on the website. I think even the Attorney acknowledges that some of this information can be very sensitive and republication at the moment, without consent, would be an offence.

Again we are being asked by the Attorney-General to give himself the power to give consent to republish. I assume that to be the police commissioner who publishes—he has certain powers to do that—and then it can go on to someone else, and that might be a newspaper, a television group or someone who is publishing a newsletter, but I think we have to accept that there are some circumstances where it might be necessary.

No-one has suggested, for example, after the shocking events of today where someone ultimately died after a long police chase, that he had anything to do with child sex offences or was on a register. However, I make the point that there are certain circumstances in which the public need to be protected, and we were reminded of that during today's very extreme events which ended with Mr Rodney Clavell's death.

The events of today culminating in the death of Mr Clavell are just a reminder to us that there are certain extreme circumstances where someone is at large and they do need to be apprehended in the interest of protecting the public, and that needs to be attended to with all the support that can be given to the police. There are some exceptional circumstances, I can imagine, in which the Attorney-General would need to have at least the power to be able to give consent to republish identifying information.

The Attorney has indicated to us that he acknowledges that that consent to republish should only be given in circumstances where he himself has taken into account the same matters that the commissioner has to take into account, and I referred to a number of those on the decision to publish and, where the commissioner makes the decision to publish the personal information on the website, the commissioner is protected from any civil or criminal liability. The Attorney-General who gives consent on the information to be republished should also be afforded the same protection. I did not actually think that the Attorney needed to do that because he is the Attorney-General, but I suppose we will put him in there for safety's sake in case somebody does try to sue him for publishing information and has been found to have either failed to take into account the things that actually he is supposed to, or just done it in some reckless manner that should attract some civil or criminal prosecution. I suppose, in this instance, I do not want him to be unfairly burdened with the threat of that, and that he should be given some protection. I might be sorry for saying this but I have to assume that he is going to act responsibly and to ensure that he would not do such a thing to cause a decision to be made in any reckless manner.

I can remember saying the same thing about the power that we gave to the Attorney-General in respect of the determination that they could enable the remains of someone who had been exhumed to be reburied without a death certificate. This is some time ago under the amendments we had to do to the Cremation Act. It arose out of the circumstance where the bones identified two, possibly three persons, from a crypt in Glen Osmond (in my electorate, in fact). There had been some proposed development work and the bones were disturbed and, because they had been identified as persons who had been buried some time in the 1800s, it was very difficult, and they could not ultimately find death certificates or any identifying material as to how they died and therefore we had to change the law.

The Attorney-General gave himself in those amendments the power to be able to certify that in certain circumstances you could bury somebody, or allow a cremation in that instance at their discretion. Sometimes we have to trust people in high office to do that, and that they are responsible people, and I think most often they are. We, of course, have to make decisions in this place assuming the lowest common denominator, and just to be absolutely kind to the Attorney today, I do not put him in that character category. He might be close sometimes but he is not in that category.

The other amendment that we are being asked to consider, in the minor amendments as they have been described, is the tightening of the timeframes of section 18(1). The provisions under the current act provide that there are certain obligations for a registerable offender to notify parents or guardians of children in whose household they might go of the fact that they are a registered offender.

This is basically to cover the situation where a child visits a household, or stays overnight in a household, perhaps to stay with their friend's family; they go home there after school, stay with them overnight, go back to school the next day, stay for a week or whatever. In those circumstances, if there is an adult in that household who is a registered offender, they are obliged, before allowing that child to come into their household to stay overnight and the like, or indeed generally reside in that household, to tell the parent or guardian that they are a registrable offender.

There are some quite serious penalties. I think the current provision is a $25,000 fine or imprisonment for five years. What the government is proposing in this bill is to ensure that notice is not just given to one of the parents, or one of the guardians, but has to be given to all the people who are responsible for the child in that household. Accordingly, amendments are there to provide that each parent or guardian who resides with the child is informed. The penalty is still the same, that is, the maximums that are determined.

To some degree this, I think, comes out of some debate that we had. Our side of politics raised concern about legislation which was going to require advice to be given to the parents of children who were going to come into the house of the registrable offender. In other jurisdictions they had set about to have reporting obligations, but only when there had been more than three days, or some other sustained period, which seemed a bit absurd to us.

If it is safe enough to let someone into a household for a day, half a day, or two hours in the knowledge that there is a registrable offender there and that there is some risk, what is the point in only requiring them to tell the parents of a child who might potentially be exposed to that risk if they are there for three or four days? It just beggars belief that somebody had not realised that you could abuse a child in minutes. If there had to be some seduction process for the opportunity to do that, surely anybody with any wit would understand that you did not need three days to do that and children would be exposed in that time.

We welcome some tightening of that. Whether there is actually compliance or whether these penalties are going to be enough, I do not know. I suspect what will happen in the real world is that children will not be invited. The person who is a registered offender will not want to tell the parents of the friends of the other children who live in their household that they will not be having a party at their house or that their child will not be invited over, because they do not want to tell them that they are on a registered list. What will happen is that children just will not be invited.

They might say, 'Why don't your mum and dad let me come over and stay for the weekend?' or, 'Why aren't you having a party at your house?' That is just one of the complications you get with it. That is what I think will happen in the real world, that children just will not be welcomed into those households. And if that protects them in some circumstances, that is good thing, but I suspect it will mean that other children who are living in a household with a registered offender, for example, with a step-parent or so on, will actually be deprived of the opportunity to mix with other children, sometimes in circumstances which I think are a bit unfortunate. Nevertheless, we are here to try to save one even if a number are inconvenienced.

The third area that we are asked to consider is the question of excluding taxi drivers and hire car drivers from the list of definitions of what is in child-related work. This is an area of concern, I think. We raised this at the time. The general import of the legislation provides that if you are a registered offender you are prohibited from undertaking particular work. Post penalties, post the offence and the conviction, you are not allowed to engage in certain work. Some of them are obvious. You would say, of course, that you would not let somebody who had crossed the line, committed a criminal offence, be involved in certain things. I just want to list them because it is important to the issue I want to refer to. What is prohibited is having contact with children in connection with a preschool or kindergarten; childcare centres; educational institutions for children; child protection services; juvenile detention centres; refuges or other residential facilities used by children; foster care of children; hospital wards or outpatient services, public or private, in which children are ordinary patients; overnight camps; clubs, associations and movements, including cultural, recreational and sporting, with significant child membership or involvement; programs or events for children provided by any institution, agency or organisation; religious or spiritual organisations; counselling or other support services for children; commercial babysitting or child-minding services; commercial tuition services for children; services for transport of children; and, last of all, taxi services and hire car services.

In terms of services for transport of children, I think it was very clear that, when we learned of the shocking case of disabled children who were transported on a bus were the victims serious sexual offences some years ago, it offended everybody. It was completely unacceptable for all of the reasons of the vulnerability of those children. That is unsurprisingly in the list. But all that these have in common here, except taxi drivers and hire car services, I think speak for themselves. They are a program or an activity in which children are the predominant participant and they are in a circumstance where a person who has some wont to cause harm to a child in this way would have access to them, and it could be exclusive, and they could be on their own, and obviously they are placed in a vulnerable position. And, more than likely, in any of those situations they would be in attendance without a parent or guardian.

They are obvious, and I do not have any issue with them. At the time, when they added in taxi drivers and hire car drivers, I personally thought they were going a bit far. It seems that the government has realised that is going a bit far, and that this is not their principal activity, that taxi drivers do carry children, but most often with adults or with the permission of adults to put them into a vehicle.

Certainly, in terms of 14 or 16 year olds getting into a cab it would be hard for a taxi driver to know how old they are, but the reality is that children, vulnerable young children, are not likely to even be in these circumstances on their own or without the consent of a parent. I am pleased that the government has realised that this is something that should not be in there.

What has concerned me even more is the situation where there might be other circumstances of there being a definition of child-related work. One came to my attention recently, because, whilst there is a definition in here about what child-related work means within the prohibition parts of this act, it should also be known that a member of the senior force can actually determine if a certain activity is childrelated work.

The circumstance I can think of recently that came to my attention was, in short, where an animal park tourism facility was deemed to be child-related work. That meant that an employee at the facility came into this category; in this instance it was somebody who was a registered offender for a relationship some 20 years before with a younger woman, obviously underage. It was a prohibited relationship that was clearly against the law—he is captured by this. It was somebody who had married, had other children and then was captured by this because the place of employment that he was in was deemed to be child-related work.

Here is the problem: not that this particular person is on the register—that is given and nobody takes issue with that—but if it is going to be the practice of the police to define child-related work as broadly as that, then it does raise the question of whether we need to tighten the definitions further, because otherwise we will have a situation where it relates to someone involved in any tourism activity which children might attend, even if they are likely to attend with a parent, teacher or be in an organised group.

A child could be wandering at large in a hotel, or they could go into a shop or a retail outlet on their own to buy a bag of lollies or whatever; a 10 year old or a six year old could go in there unescorted, unchaperoned by anybody. Are we going to be saying that that is child-related work, that a person cannot be a shop assistant in a general store because of the fact that an unattended child may be at risk in that circumstance?

So, we have to be practical about how this is going to affect activity and normal commerce and normal business legitimately able to be done, and if we are going to have a definition that is going to be that broad, to cast the net so wide, then surely we have to start looking at other types of exceptions to enabling work to be done by these people, whether it is under supervision or not to be with a child without another adult being present—these are the sorts of things that we could put in place. There are ways around it, but it just came to my attention recently.

I understood that we were going to be having some legislation to try and deal with this issue and tighten it up. I cannot see it in the bill, and I would hope that when we go into committee the Attorney will identify if I am wrong in that regard, but it does seem to me that, sure, we agree that taxi drivers and hire car drivers should be taken out, but we need to tighten up this issue as to how we are going to manage that for the future, because at the moment the only remedy someone has to challenge the determination (because we are dealing with all this administratively) is via an administrative appeal process by the decision of a senior police officer or the like.

People should not be put through that process. We should have something clearer to ensure that we encourage employment and recognise in cases where there is some lower level of risk, if it is relation to a previous relationship with a known party, as distinct from some predatory behaviour by someone towards children who might be vulnerable or on a scout camp. I hate to say that, because really I do not want to be anti-scout, but I think members will appreciate what I am saying. In all the ones that the legislation has already covered, we understand why they are there and we respect it and we support it, but we are going to cause a lot of problems if we do not deal with this properly. We can come back here, like we are now, and take out the taxi drivers and the hire car drivers because, clearly, they should not have been in it in the first place, but it can inadvertently capture people and put them to great inconvenience, cost and distress if we do not do it properly in the first place.

The Attorney-General may take the view that I have not spent much time on the control orders that are the nub of the reform in this bill; that is, to introduce a control order procedure. I would hate to say that I thought this would happen eventually, that this would be coming in and we would have control orders. I would not have been very happy with that if, in fact, we had had a control order process now introduced as a sort of second stage.

'We will get the first part of the bill in—Chapman will not disagree with that—and then we will come in with control orders in a year or so, and we might slip it past her.' I will tell you what the Attorney has done: he has learnt one thing. He has learnt that, when there is court oversight of something, he will not get much argument from me, because people have to have the protection of knowing that this is not just an administrative decision.

No reflection on those who might have been given the job, but if a control order is one which can be introduced—which provides for restrictions and the like, which we have talked about—but is done by a court, then applications can be made and are likely to be mostly made by the South Australia Police, I expect, but others can apply and magistrates can introduce that restriction. I do not have an objection to that. Our party does not have an objection to it generally. It is an application which we would hope will be part of a process to provide children with greater protection in that situation.

I cannot see it being used a lot, to be honest. I think there are other ways that we can deal with this, but it may be necessary so, if it is, and a court makes it, the Attorney will have no argument from me. I understand there will be an amendment coming in to deal with a matter. I have a brief bit to say about that, but it may be that the Attorney gives a comprehensive explanation of why we are having the amendment and he will not even get a question from me, but that would be unusual. Nevertheless, we will wait and see. I support the bill.