Western Australian Consolidated Acts Western Australian Consolidated Acts1 This is a compilation of the Community Protection (Offender
Reporting) Act 2004 and includes the amendments made by the other written
laws referred to in the following table 1M, 1a. The table also
contains information about any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
72 of 2004 |
8 Dec 2004 |
s. 1 and 2:
8 Dec 2004; |
|
|
Criminal Law and Evidence Amendment Act 2008
s. 58 |
2 of 2008 |
12 Mar 2008 |
27 Apr 2008 (see s. 2 and Gazette
24 Apr 2008 p. 1559) |
|
Acts Amendment (Justice) Act 2008
s. 127 |
5 of 2008 |
31 Mar 2008 |
30 Sep 2008 (see s. 2(d) and Gazette
11 Jul 2008 p. 3253) |
|
Criminal Law Amendment (Homicide) Act 2008
s. 25(1)-(3) |
29 of 2008 |
27 Jun 2008 |
1 Aug 2008 (see s. 2(b) and (d) and
Gazette 22 Jul 2008 p. 3353) |
|
Community Protection (Offender Reporting) Amendment
Act 2008 |
27 of 2008 |
1 Jul 2008 |
2 Jul 2008 (see s. 2(b)) |
|
Reprint 1: The Community Protection (Offender
Reporting) Act 2004 as at 14 Nov 2008 (includes
amendments listed above) |
|||
|
Child Pornography and Exploitation Material and
Classification Legislation Amendment Act 2010 s. 13 |
21 of 2010 |
7 Jul 2010 |
28 Aug 2010 (see s. 2(b) and Gazette
27 Aug 2010 p. 4105) |
|
Statutes (Repeals and Minor Amendments) Act 2011
s. 15 |
47 of 2011 |
25 Oct 2011 |
26 Oct 2011 (see s. 2(b)) |
1M Under the Cross-border Justice Act 2008 section 14, in
order to give effect to that Act, this Act must be applied with the
modifications prescribed by the Cross-border Justice Regulations 2009
Part 3 Division 5 as if this Act had been altered in that way. If a
modification is to replace or insert a numbered provision, the new provision is
identified by the superscript 1M appearing after the provision number. If a
modification is to replace or insert a definition, the new definition is
identified by the superscript 1M appearing after the defined
term.
1a On the date as at which this
compilation was prepared, provisions referred to in the following table had not
come into operation and were therefore not included in this compilation. For
the text of the provisions see the endnotes referred to in the table.
Provisions
that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|
Community Protection (Offender Reporting)
Act 2004 s. 12 and Sch. 3 3 |
72 of 2004 (as amended by No. 29 of 2008
s. 25(4)) |
8 Dec 2004 |
s. 12 and Sch. 3: to be proclaimed (see s.
2) |
|
Prostitution Amendment Act 2008
s. 29 5 |
13 of 2008 |
14 Apr 2008 |
To be proclaimed (see s. 2(b)) |
|
Community Protection (Offender Reporting) Amendment
Act 2012 Pt. 2 6 |
1 of 2012 |
15 Mar 2012 |
To be proclaimed (see s. 2(b)) |
2 Formerly referred to the Criminal Law (Mentally Impaired
Defendants) Act 1996 the short title of which was changed to the
Criminal Law (Mentally Impaired Accused) Act 1996 by the Criminal
Procedure and Appeals (Consequential and Other Provisions) Act 2004
s. 82. This reference was changed under the Reprints Act
1984 s. 7(3)(gb).
3 On the date as at which this compilation was prepared, the
Community Protection (Offender Reporting) Act 2004 s. 12 and
Sch. 3 (as amended by the Criminal Law Amendment (Homicide)
Act 2008 s. 25(4)) had not come into operation. They read as
follows:
“
A Class 3 offence is —
(a) an offence against a provision listed in Schedule 3;
(b) an offence under a law of a foreign jurisdiction the elements of
which, if they had occurred in Western Australia, would have constituted an
offence of a kind referred to in this section;
(c) an offence under a law of a foreign jurisdiction that is prescribed by
the regulations to be a Class 3 offence;
(d) an offence an element of which is an intention to commit an offence of
a kind referred to in this section;
(e) an offence of attempting, or of conspiracy or incitement, to commit an
offence of a kind referred to in this section; or
(f) an offence that, at the time it was committed —
(i) was a Class 3 offence for the purposes of this Act; or
(ii) in the case of an offence committed before the commencement
day — was an offence of a kind referred to in this section.
[s. 12]
|
Enactment |
Description of offence |
|---|---|
|
The Criminal Code |
|
|
s. 279 |
Murder (if the person against whom the offence is committed is not a
child) |
|
s. 325 |
Sexual penetration without consent (if the person against whom the offence
is committed is not a child) |
|
s. 326 |
Aggravated sexual penetration without consent (if the person against whom
the offence is committed is not a child) |
|
s. 327 |
Sexual coercion (if the person against whom the offence is committed is not
a child) |
|
s. 328 |
Aggravated sexual coercion (if the person against whom the offence is
committed is not a child) |
[Schedule 3 amended by No. 29 of 2008 s. 25(4).]
”.
4 Schedule
1. This is a list of enactments and descriptions of offences formerly in
Schedule 1
The Criminal Code
s. 321A Sexual relationship with child under
16.
5 On the date as at which this compilation was prepared, the
Prostitution Amendment Act 2008 s. 29 had not come into
operation. It reads as follows:
“
29. Community
Protection (Offender Reporting) Act 2004 amended
(1) The amendments in this section are to the Community Protection
(Offender Reporting) Act 2004.
(2) Schedule 2 is amended by deleting the entry relating to the
Prostitution Act 2000 and inserting instead —
“
|
Sexual Services Act 2000 |
|
|
s. 16 |
Causing, permitting or seeking to induce a child to act as a sex
worker |
|
s. 17 |
Obtaining payment for commercial sexual act by a child |
”.
6 On the date as at which this compilation was prepared, the
Community Protection (Offender Reporting) Amendment Act 2012
Pt. 2 had not come into operation. It reads as follows:
Part 2 — Community Protection
(Offender Reporting) Act 2004 amended
This Part amends the Community Protection (Offender Reporting)
Act 2004.
In the long title after “may commit,”
insert:
to enable information to be published about certain
offenders,
After section 84 insert:
Part 5A — Publication
of information about offenders
In this Part —
DSO supervision order means a supervision order under the
Dangerous Sexual Offenders Act 2006;
locality, of a person, means a description of the general
locality, such as the town or suburb, in which the person resides;
publish, except in section 85M, means make available
for inspection by members of the public on a website maintained by the
Commissioner.
85B. Delegation
by Commissioner
The Commissioner may delegate under section 110 a power of the
Commissioner under Division 2 only to a police officer who holds or is
acting in the office of Deputy Commissioner or Assistant Commissioner.
85C. Commissioner
not required to publish or provide information
Nothing in this Part requires the Commissioner to publish or provide
information about any reportable offender or other person.
85D. Restriction
on information about protected witnesses
Nothing in this Part authorises the Commissioner to publish or provide
information about a person to whom Part 3 Division 10
applies.
Division 2 — Commissioner
may publish information
This Division has effect despite any written or other law to the
contrary.
85F. Commissioner
may publish personal details of certain reportable offenders
(1) In this section —
personal details, in relation to a reportable offender,
means the information listed in section 26(1) and —
(a) includes a photograph or digital image of the offender; but
(b) does not include any details that the offender reports under
section 26(1)(e) or any other details that would identify a
child.
(2) The Commissioner may publish any or all of the personal details of a
reportable offender, other than a reportable offender who is a child,
if —
(a) the Commissioner is satisfied that the reportable
offender —
(i) has failed to comply with any of his or her reporting obligations;
or
(ii) in purported compliance with Part 3, has provided information
that is false or misleading in a material particular;
and
(b) the reportable offender’s whereabouts are not known to the
Commissioner.
(3) The Commissioner may at any time —
(a) remove any or all of the personal details of a reportable offender
from the website on which they are published under subsection (2);
or
(b) again publish under subsection (2) any or all of the personal
details of the reportable offender after their removal under
paragraph (a).
(4) If —
(a) the Commissioner has published any personal details of a reportable
offender under subsection (2); and
(b) the reportable offender subsequently reports his or her whereabouts to
the Commissioner under Part 3,
the Commissioner must, as soon as is practicable after receiving the
report, remove those personal details from the website on which they are
published.
85G. Commissioner
may publish photograph and locality of certain persons
(1) In this section —
Department of Corrective Services means the department of
the Public Service principally assisting the Minister in the administration of
the Prisons Act 1981;
photograph includes a digital image;
prescribed offence means a Class 1 offence, a Class 2
offence or a sexual offence, as defined in the Evidence Act 1906
section 36A.
(2) Subject to this section, the Commissioner may publish a photograph and
the locality of a person, other than a person who is a child —
(a) if the person is subject to a DSO supervision order and that order
does not provide that the person’s photograph and locality are not to be
published under this section; or
(b) if —
(i) the person, after becoming a reportable offender, commits and is found
guilty of a prescribed offence; and
(ii) any offence committed by the person, including the prescribed
offence, is a Class 1 offence or an offence committed against a child under
The Criminal Code section 323 or 324;
or
(c) if —
(i) the person has been found guilty of an offence punishable by
imprisonment for 5 years or more; and
(ii) on application by the Commissioner, that publication is authorised by
the Minister on being satisfied that the person poses a risk to the lives or
sexual safety of one or more persons, or persons generally.
(3) If the Commissioner proposes to publish the photograph and locality of
a person under subsection (2), the Commissioner —
(a) must give the person written notice of the proposal and the reasons
for it; and
(b) must inform the person in that notice that he or she has a specified
period (of not less than 21 days) to make submissions or be heard in
relation to the proposal; and
(c) if subsection (2)(a) applies in relation to the person, must give
written notice of the proposal to the chief executive officer of the Department
of Corrective Services.
(4) Before publishing the photograph and locality of the person, the
Commissioner must have regard to —
(a) any submission made, or information or document provided, by the
person within the period referred to in subsection (3)(b); and
(b) if notice is given under subsection (3)(c), any submission made
by the chief executive officer of the Department of Corrective Services within
the period of 21 days after that notice is given.
(5) For the purposes of subsection (2)(c), it is not necessary that
the Minister be able to identify a risk to a particular person or particular
persons or a particular class of persons.
(6) In determining whether to authorise publication under
subsection (2)(c), the Minister may take into account the
following —
(a) any medical, psychiatric, psychological or other assessment relating
to the person;
(b) any information indicating whether or not the person is likely to
commit a prescribed offence in the future;
(c) whether or not there is any pattern of offending behaviour on the part
of the person;
(d) the person’s antecedents and the seriousness of his or her total
criminal record;
(e) the person’s age and the age of any victims of any offences
committed by the person at the time those offences were committed;
(f) the difference in age between the person and any victims of those
offences;
(g) any other matter the Minister considers relevant.
(7) The Commissioner must provide with an application under
subsection (2)(c) any information available to the Commissioner that is
relevant to the Minister’s determination whether to authorise
publication.
(8) The fact that an offence in respect of which a person has been found
guilty becomes spent does not affect the consideration of the offence as part of
the person’s total criminal record for the purposes of
subsection (6)(d).
85H. Removal
of photograph and locality from website
(1) The Commissioner may at any time —
(a) remove the photograph and locality of a person from the website on
which they are published under section 85G(2); or
(b) again publish under section 85G(2) the photograph and locality of
a person after their removal under paragraph (a).
(2) If —
(a) the Commissioner has published a photograph and the locality of a
person under section 85G(2)(a); and
(b) the person ceases to be subject to the DSO supervision order;
and
(c) neither section 85G(2)(b) nor (c) applies in relation to the
person,
the Commissioner must, as soon as is practicable, remove the photograph
and locality from the website on which they are published.
(3) If —
(a) the Commissioner has published a photograph and the locality of a
person under section 85G(2)(b); and
(b) the person’s reporting obligations expire; and
(c) neither section 85G(2)(a) nor (c) applies in relation to the
person,
the Commissioner must, as soon as is practicable, remove the photograph
and locality from the website on which they are published.
85I. Commissioner
may take into account certain matters
(1) In determining whether or not —
(a) to publish any personal details of a person who is a reportable
offender under section 85F(2) or a photograph and the locality of a person
under section 85G(2) (the identifying information);
or
(b) to remove the identifying information from a website under
section 85F(3) or 85H(1),
the Commissioner may take into account the matters to which this section
applies.
(2) This section applies to these matters —
(a) whether the publication of the identifying information about a person
would interfere with —
(i) an investigation by police officers in relation to the person;
or
(ii) the person’s compliance with the reporting obligations of this
Act; or
(iii) the operation of a community order under the Sentencing
Act 1995, a DSO supervision order or any other order or requirement
under a written law to which the person is subject;
(b) whether the publication of the identifying information about the
person might identify a victim of an offence, or the school attended by a victim
of an offence, committed by the person;
(c) the effect that the publication of the identifying information about
the person might have on a victim of an offence committed by the
person;
(d) whether, in statements made by the victim to the Commissioner, the
publication of the identifying information about the person has been supported
or opposed by a victim of an offence committed by the person;
(e) whether the publication of the identifying information about the
person would increase the risk of the person committing offences;
(f) the Commissioner’s assessment of the benefit to the community of
the publication of the identifying information about the person;
(g) if the identifying information is about a person who is awaiting trial
on a charge of an offence — whether the publication of the
identifying information might prejudice the fair trial of the person;
(h) any other matter the Commissioner considers relevant.
85J. Commissioner
may inform child’s parent or guardian whether specified person is a
reportable offender
(1) A person may apply to the Commissioner to be informed whether or not a
person specified in the application (the specified person), other
than a person who is a child, is a reportable offender.
(2) The application must be made in a manner approved by the
Commissioner.
(3) The applicant must provide, in support of the application, any
evidence required by the Commissioner to be satisfied that the specified person
has regular unsupervised contact with a child of whom the applicant is a parent
or guardian.
(4) For the purposes of subsection (3), a person does not have
regular unsupervised contact with a child unless he or she has unsupervised
contact with the child for at least 3 days (whether consecutive or not) in
any period of 12 months.
(5) If the Commissioner is satisfied that the specified person has regular
unsupervised contact with a child of whom the applicant is a parent or guardian,
the Commissioner may inform the applicant whether or not the specified person is
a reportable offender.
85K. Protection
as to publication and other provision of information
(1) In this section —
information includes the identifying information referred to
in section 85I.
(2) If the Commissioner determines in good faith —
(a) to publish or provide any information under this Division;
or
(b) not to publish or provide any information under this
Division,
no civil or criminal liability attaches to the Commissioner or the State
by reason of publishing or providing that information or omitting to publish or
provide that information.
(3) If information is published or provided by the Commissioner under this
Division, that publication or provision of information is not to be
regarded —
(a) as a breach of any duty of confidentiality or secrecy imposed by law;
or
(b) as a breach of professional ethics or standards or as unprofessional
conduct.
85L. Conduct
intended to incite animosity towards or harassment of identified
offenders
(1) In this section —
animosity towards means hatred of or serious contempt
for;
harassment includes threat, serious and substantial abuse
and severe ridicule;
identified offender means —
(a) a person whose personal details are published by the Commissioner
under section 85F; or
(b) a person whose photograph and locality are published by the
Commissioner under section 85G; or
(c) a person in relation to whom the Commissioner provides the information
under section 85J that the person is a reportable offender;
public place includes —
(a) a place to which the public, or any section of the public, has or is
permitted to have access, whether on payment or otherwise; and
(b) a privately owned place to which the public has access with the
express or implied approval of, or without interference from, the owner,
occupier or person who has the control or management of the place; and
(c) a school, university or other place of education, other than a part of
it to which neither students nor the public usually have access.
(2) A reference in subsection (4) or (6) to conduct includes a
reference to conduct occurring on a number of occasions over a period of
time.
(3) For the purposes of subsection (4) or (6), conduct is taken not
to occur in private if it —
(a) consists of any form of communication with the public or a section of
the public; or
(b) occurs in a public place or in sight or hearing of people who are in a
public place.
(4) A person must not engage in any conduct, otherwise than in private, by
which the person intends to create, promote or increase animosity towards, or
harassment of, a person as an identified offender.
Penalty: imprisonment for 10 years.
(5) An offence under subsection (4) is a crime.
(6) A person must not engage in any conduct, otherwise than in private,
that is likely to create, promote or increase animosity towards, or harassment
of, a person as an identified offender.
Penalty: imprisonment for 2 years.
85M. Publication,
display and distribution of identifying information
(1) In this section —
display means display in or within view of a public place,
as defined in section 85L(1);
distribute means distribute to the public or a section of
the public;
identifying information means information that is
identifiable as —
(a) the personal details of a person published by the Commissioner under
section 85F; or
(b) the photograph and locality of a person published by the Commissioner
under section 85G; or
(c) the information that a person is a reportable offender provided by the
Commissioner under section 85J;
publish means publish to the public or a section of the
public.
(2) A person must not, without having first obtained the written approval
of the Minister, publish, distribute or display any identifying
information.
Penalty: imprisonment for 2 years.
6. Section 115
amended
(1) After section 115(1) insert:
(2A) The Minister must carry out a review of the operation and
effectiveness of the amendments made to this Act by the Community Protection
(Offender Reporting) Amendment Act 2012 as soon as is practicable after
the third anniversary of the coming into operation of section 5 of that
Act.
(2) In section 115(2) delete “the review” and
insert:
each review
Defined
Terms
[This is a list of terms defined and
the provisions where they are defined. The list is not part of the
law.]
Defined Term Provision(s)
approved
place 3
authorised person 3
child 3
child protection prohibition
order 85
Class 1 offence 3
Class 2 offence 3
Class 3
offence 3
commencement day 3
Commissioner 3
community
order 3
conduct 85
corresponding Act 3
corresponding offender reporting
order 3
corresponding prohibition order 85
corresponding
registrar 3
corresponding reportable offence 3
corresponding reportable
offender 3
court 3, 14, 68(1), 85
detainee 3
disability 3
existing
controlled reportable offender 3
existing licensee 3
existing
order 90(4)
family order 107(1)
finding of guilt 3
foreign
jurisdiction 3
foreign witness protection law 3
government custody 3
in
person 5(2)
interim prohibition order 85
Internet carriage
service 26(1a)
Internet service provider 26(1a)
law enforcement
agency 81(3)
mentally impaired accused 3
misconduct restraining
order 107(1)
new order 90(4)
New South Wales Act 3
New South Wales
reportable offender 3
offender reporting order 3
parole 3
past offender
reporting order 3
personal details 3
personal information 3
police
order 107(1)
prisoner 3
prohibition order 3, 85
public
authority 3
recognised foreign reporting
period 49(1)
Register 3
registrar 14, 85
relevant
authority 54(1)
relevant day 115A(1)
relevant
offence 115A(1)
reportable information 84(1)
reportable
offence 3
reportable offender 3
reporting obligations 3
reporting
order 14
reporting period 3
respondent 14, 85
restraining
order 107(1)
sentence 3
specified 113(1)
strict government
custody 3
supervising authority 3
violence restraining
order 107(1)
witness protection program 74
young reportable
offender 3