Child Protection (Offenders Registration) Amendment Bill 2004
Reverend the Hon. Dr GORDON MOYES: The object of the Child Protection (Offenders Registration) Amendment Bill is to introduce amendments to the Child Protection (Offenders Registration) Act 2000 in order to strengthen and consolidate the current child protection offender registration regime. New South Wales was the first State in Australia to introduce such a scheme, taking some inspiration from similar arrangements put in place in the United States of America, Canada and the United Kingdom. The Christian Democratic Party supports in general the thrust of this bill.
The Child Protection (Offenders Registration) Act 2000 established a register of offenders that records the details of persons who have been in government custody for having committed registrable offences. Registrable offences are class 1 or class 2 offences and are defined by the Act. Examples of a class 1 offence are murder of a child and sexual intercourse with a child. An example of a class 2 offence is one that involves an act of indecency with, or against, a child, which carries a penalty of 12 months imprisonment. One of the biggest downfalls to the success of the New South Wales regime has been the absence of interstate arrangements on the registration of offenders against children. For example, New South Wales offenders can disappear from police attention when they travel outside New South Wales. With the large number of cases being brought to the attention of the public in recent days we know how mobile some of these offenders have been.
Without these offenders being monitored in other States, it will be difficult to detect their re-entry into New South Wales. Consequently, the Minister for Police has pursued the development of complementary State and Territory legislation through the Australasian Police Ministers Council, and for that we commend the Minister. The bill proposes to strengthen the regime to dispose of such loopholes and, amongst other things, introduce other measures to increase the accountability of offenders to New South Wales police. As the Hon. David Clarke said, we need to be vigilant against offenders and we need to be carers for all children in the community.
I commend the objectives of this bill. The Christian Democratic Party believes that measures to tighten and strengthen the current arrangements for dealing with offenders against children should be adopted wholeheartedly. However, I have concerns about some of the provisions in this bill and I will mention them in due course. I will first address some of the most salient aspects of the bill, and I indicate that we will propose some amendments in Committee. The bill introduces additional Commonwealth offences relating to sexual intercourse with children overseas, and also in relation to children generally. The offences were covered previously in a general sense, but they are now specified. The spelling out provisions of such importance is necessary for the sake of transparency and clarity. The inclusion of these offences expands the type of activity that can be captured in the net of this legislation.
The bill allows also for regulations to be made to include offences of a foreign jurisdiction that do not have a New South Wales equivalent. For example, we are very conscious of paedophiles who holiday frequently in countries such as Thailand and Cambodia and who have been involved in the child sex trade. A very important objective of the bill is to make provision for persons who have committed registrable offences outside the jurisdiction of New South Wales. The measures in the bill that will extend the reach of the legislation are most commendable. For example, the definition of “foreign jurisdiction” has been expanded to include jurisdictions outside Australia—not just New South Wales—so that countries such as Thailand and Cambodia are covered.
The definition of the term “government custody” is expanded also to include custody under a law of a foreign jurisdiction. A new category of registrable person is provided for, that of a “corresponding registrable person”, that is a person from another jurisdiction who is not subject to obligations in New South Wales. In some instances certain people will not be considered as registrable—that is in the case of a person who has been sentenced in respect of a single class 2 offence.
When it comes to paedophilia or child abuse, I strongly oppose what can be seen as “exemptions” to what constitutes a registrable person as prescribed by proposed section 3A, particularly section 3A (2) (b) and©. One of those provisions says, in effect, that where a person has committed a single class 2 offence that does not attract a sentence of imprisonment, the person should not be considered a “registrable person”. A class 2 offence includes, but is definitely not limited to, such things as making a film for sexual gratification purposes of a child against the child’s will. I believe that an offence of which a person is found guilty only once, is likely to have long-term traumatic affects. That can be devastating for a child. A child can be scarred for life by “just one offence”.
The ramifications of “just one offence” should not be minimised. In her work “Mind and Brain”, Dr A. S. Gilinsky discusses how children are at a stage of development where they are extremely sensitive to stimuli. During the time a child is growing up, cellular memory groups are being formed and linked together with other cell groups with great rapidity. We all accept as fact that severe accidents, death and so on, can have traumatic impacts upon children later in their lives. So too can traumatic child sexual abuse. These cellular memories act as a window through which a child will eventually perceive themselves and their world for the rest of their lives.
For many years I have been responsible for caring for children who suffer from intense childhood trauma. Currently I am responsible, as guardian ad litem, for 3,614 children, most of whom have suffered great trauma in their life. My staff inform me that only one severe traumatic incident can have long-term consequences. Consequently, future growth and development, especially in the emotional realm, may be greatly retarded through exposure to traumatic events, indecent acts, or an event such as children being filmed against their will for sexual gratification.
Some will find the events too traumatic and, if adequate help is not found, may try to end their lives. They may suffer from a whole range of mental and psychological illnesses. Some children will suffer long-term distortion of social norms. Dolf Zillman and Jennings Bryant showed that children exposed to indecent acts suffer serious adverse effects on their beliefs about sexuality, on attitudes towards members of the opposite sex, and on their own self-efficacy. Many of the women have come to me as a counsellor have problems within their marriages that date back to traumatic experiences in their early childhood. Stephen Kavanagh, in his publication titled “Protecting children in Cyberspace”, has stated:
Children often imitate what they’ve experienced, seen, read and heard. Studies suggest that exposure to indecent acts/material can prompt children to act out against younger, smaller and more vulnerable children. Experts in the field of childhood sexual abuse report that premature sexual activity in children always suggests two possible stimulants: experience and exposure. This means that the sexually deviant child may have been molested or simply exposed to indecent material.
We as legislators have a responsibility to protect the children in our State to the best of our ability. This is one area where I feel we should slightly stiffen the provisions of the bill. The bill provides that persons subject to “child protection registration orders”—those not involving a class 1 or class 2 offences—may need to comply with the reporting obligations of the Act. The court may only make the order if satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally. The importance of the inclusion of persons under such orders is of crucial significance to say the least.
There is in the bill a provision that says that section 3D, dealing with “child protection registration orders”, ought to be reviewed. I do not believe that this should be the case, given the tenor of this significant provision. Reporting obligations for registrable persons are also delineated in a clear manner, taking into account the obligations for those who have committed “registrable offences” in other jurisdictions. The bill also requires that registrable persons report their relevant information to the Commissioner of Police each year. Ongoing reporting obligations are a necessary initiative in order that registrable persons be accountable to the police. It is also important to let the Commissioner of Police know when these people move back into New South Wales.
Also, and importantly, the list of relevant information in the Act has been expanded by the bill to include more information that may incidentally deal with children or put children at risk. Accountability is also ensured by a number of other requirements, including the proposed mandatory requirements that a registrable person report changes to relevant personal information and that any intended absence from New South Wales be reported to the Commissioner of Police.
Privacy concerns potentially held by registrable offenders are addressed. Apart from these, the registrable person may request the Commissioner of Police to provide a copy of all the reportable information that is held in the register in relation to the person. That should satisfy privacy issues. The bill provides that a police officer receiving a report from a registrable person may cause to be taken, by a person authorized by the police officer, the fingerprints of the registrable person. This can occur if the police officer is not reasonably satisfied as to the identity of the registrable person after the officer has examined all of the material relating to identity given to the officer by the registrable person or on behalf of the registrable person.
As New South Wales Police keep a database on fingerprints, there does not seem to be any strong argument against allowing fingerprints to be taken in this context, especially when only “reasonable force” may be used to compel someone to give their fingerprints. Better information relating to the identification of offenders is always needed in order to more effectively facilitate the identification of offenders. At a later date I will make comments about the provisions concerning photographing identifiable marks. The bill, quite modestly, suggest that no photographs may be taken of the genital areas, the anus or the breasts of a person for any identifiable marks. I inform the Minister that these days there is a special concern by those desiring to be tattooed to be tattooed in places that are not normally photographed because of modesty. The fact is that people now are more likely to have tattoos in places excluded by this legislation than on any other parts of the body.
The bill provides that special arrangements be made for reports where a registrable person resides more than 100 kilometres from a police station at which a report may be made. This is a practical and important provision. Registrable persons may apply to the Administrative Decisions Tribunal for an order suspending the person’s reporting obligations. This can be done only when a person does not pose a risk to the safety of children and the community. This is a commendable initiative, as the Administrative Decisions Tribunal, though heavily burdened, is in a sound position to make an assessment on this issue. The Commission for Children and Young People is also to be a party to any proceedings brought to discharge reporting obligations. Importantly, any order made in favour of a registrable offender ceases to have effect if, for example, a person is found guilty of a registrable offence.
Lastly, it is of importance to note that the term “Register of Offenders” is done away with and is replaced with the term “Child Protection Register”. Renaming this register is a symbolic representation and stark declaration of the intention behind the bill. In Committee I will move four amendments that I believe will further enhance the bill. We congratulate the Government and the Minister on introducing the bill and I commend it to the House.
