2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Bill 2015
SERIAL NO. 139
EXPLANATORY STATEMENT
GENERAL OUTLINE
This Bill delivers on a government commitment to establish a publicly accessible website listing the names and limited details of child sex offenders and child homicide offenders.  The website is intended as an additional tool to assist Northern Territory families keep their children safe. 
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill.  The Bill, when passed, may be cited as the Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Act 2015. 
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence.  The Act will commence on a day fixed by the Administrator by Gazette notice.  In accordance with the Interpretation Act, this clause operates so that the various provisions of the Act may be commenced on separate days.
Clause 3.	Interpretation
This clause defines various words and expressions used in the Act.  The key definitions are: 
	child homicide offender and sex offender refer to ‘reportable offenders’ under the Child Protection (Offender Reporting and Registration) Act.
	Offender Reporting Act refers to the Child Protection (Offender Reporting and Registration) Act.
	relevant offender means a person who is a reportable offender and will be considered to have their details published on the website.  The person will be subject to reporting obligations under the Child Protection (Offender Reporting and Registration) Act and who has a reporting period for the remainder of their life, for 15 years, where the offender’s whereabouts are unknown, or where the offender is a child but subject to an order under section 38(b) of the Child Protection (Offender Reporting and Registration) Act and has since turned 18 years old. 
relevant victim, in relation to a relevant offender at a particular time, means: 
(a)	a person who is a victim of an offence that resulted in the offender becoming a reportable offender;
(b)	where the victim is a victim of a sex offender, the parent or legal guardian of the victim at the time of publication where the victim is under 18 years of age; or 
(c)	where the offender is child homicide offender, the relevant victim is a person who was a parent or legal guardian of the victim at the time of the child homicide. 
	details, in relation to an offender, means the details to be published on the website.  These details are the person’s name (including any aliases), the person’s date of birth, the names and section numbers of offences in the relevant Act for which the offender became a reportable offender, the year or range of years in which the offence was committed, a photograph of the person and the general location in which the person resides (or last known location where the person’s whereabouts are unknown).
Clause 4.		Application of Criminal Code
This is a standard clause that provides that Part IIAA of the Criminal Code applies to an offence against this Act.  Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.  Part IIAA also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Part 2		Sex Offender and Child Homicide Offender Public Website
Clause 5.		Website
This clause requires the Commissioner of Police to establish and maintain the Sex Offender and Child Homicide Offender Public Website.
Clause 6.		Publication on and removal from website of details 
This clause requires the Commissioner of Police to post details of an offender on to the website, in accordance with section 13.  The Commissioner of Police is required to remove the details of an offender from the website in accordance with section 14.
Clause 7.		Material change to details 
This clause requires the Commissioner of Police to post changes to the website where the Commissioner is satisfied that there has been a material change to a detail published on the website in relation to an offender.  An example of a material change could be a change to an offender’s appearance requiring a new photograph to be posted on the website.
Part 3		Publication of details
Division 1		Panel
Clause 8.		Panel
This clause establishes a panel for the purposes of the Act.  The members of the panel are the Commissioner of Police, the Commissioner of Correctional Services and the Chief Executive Officer of the Agency.  The Agency, in this context, means the Department of the Attorney-General and Justice. 
Clause 9.		Delegation
This clause permits a member of the panel to delegate any of the member’s powers and functions under this Act to a person employed within the organisation managed by that member.
Division 2		Panel decision
Clause 10.		Decision of panel on publication of details 
This clause requires the panel to make a decision whether to publish the details of an offender on the website.  The decision must be made after taking into account all information the panel considers relevant.
Clause 10(1)(a) provides that, if the panel is satisfied of a matter mentioned in section 11 (this sets out when details are not to be published), the panel’s decision must be that the details must not be published.  Where that paragraph does not apply, the panel’s decision must be that the details must be published. 
Clause 10(2) requires the panel to give notice of its decision about the publication of the details of an offender to each victim, where the victim has registered under the Victims of Crime Rights and Services Act, or where the victim has requested the panel inform them about the publication of the details in relation to the offender.  Where the panel decides that details in relation to an offender must be published, the panel must provide a decision notice to the offender.  
Clause 11.		Details not to be published 
This clause provides that the panel must decide not to publish the details of an offender in certain circumstances.  These circumstances include where publication would contravene a court suppression order or non-publication order, where significant harm to a victim that would be caused by the publication outweighs any benefit of the publication to any other relevant victim and any public benefit in that publication, or, where there are other valid reasons not to publish the details.  Other valid reasons could include potential prejudice to an investigation, prejudice to the fair trial of a person, or to avoid unrest in specific communities.
Clause 12.		Reconsideration of decision 
This clause provides that the panel must reconsider a decision, on application by a victim, or, may reconsider its decision on the panel’s own initiative.  The panel, when reconsidering a decision, must take into account all information the panel considers relevant, and make a decision to confirm the decision, or, set aside the decision and substitute a new decision. 
Division 3		Publication on website 
Clause 13.	Time for publication of details on website 
This clause requires the Commissioner of Police to publish details in relation to a person as soon as practicable after the ‘earliest publication date’. 
‘Earliest publication date’, in this context, is the latest of the following:
·	expiry of 28 days after the panel decides to publish details of an offender;
·	where the panel reconsiders a decision to publish an offender’s details and the details are not yet published, 28 days following reconsideration by the panel;
·	a date that is greater than 28 days after the panel deciding or reconsidering the decision, as specified by the panel.  Examples of where this might occur is where an offender is still in custody, a decision may be made to publish the offender’s details when they are released from custody, but there is still greater than 28 days left to serve prior to release;
·	the day on which a relevant offender enters the Territory; or
·	the date on which the offender is released from custody.’
Clause 14.		Time for removal from website of details 
This clause sets out the circumstances in which the Commissioner of Police must remove an offender’s details from the website.  An offender’s details must be removed as soon as practicable where the panel so decides after reconsideration of its decision under section 12, where the Northern Territory Civil and Administrative Tribunal orders removal of the offender’s details, where the offender dies, where the person was a relevant offender only because the person’s whereabouts were unknown and the person’s whereabouts have since been identified, or where the person is in custody or otherwise ceases to be reportable offender. 
Division 4	Offender not permanently in Territory 
Clause 15.	Relevant offender not permanently in Territory
This clause applies to relevant offenders who are not permanent residents of the Territory, but who frequent the Territory.  Examples of these offenders include those on ‘fly-in fly-out’ work arrangements, and those offenders who visit the Territory eg on holidays.
The clause also applies to Territory reportable offenders who are otherwise permanent residents of the Territory, but who leave the Territory for work arrangements or holidays for periods longer than 14 days.
Where an offender enters the Territory, the clause permits the panel to consider publication of the offender’s details on the website, despite the offender having subsequently left the Territory.  Where the person subsequently returns to the Territory, subclauses (4), (5) and (6) permit publication of the offender’s details on the website.  Where an offender’s details have been published on the website, and the offender then leaves the Territory for a period longer than 14 days, the person’s details must be removed from the website.  The details may be published again when the offender re-enters the Territory.
Part 4		Miscellaneous matters 
Division 1	Jurisdiction of Tribunal 
Clause 16.		Meaning of reviewable decision 
This clause defines a reviewable decision as a decision of the panel where details, in relation to a sex offender or child homicide offender, must or must not be published. 
Clause 17.		Meaning of affected person
This clause defines an affected person, for the purposes of a reviewable decision, as a relevant victim, and where the decision is that details in relation to a sex offender or child homicide offender must be published, the offender. 
Clause 18.		Jurisdiction of Civil and Administrative Tribunal
This clause provides that an affected person may apply to the Tribunal for review of the decision. 
Division 2		Information Sharing 
Clause 19.		Definition
This clause defines an information sharing authority to mean a person who is the Chief Executive Officer of an Agency, a public sector employee or police officer, and who is acting under a law of the Territory in relation to a sex offender or child homicide offender, or who otherwise has relevant information in relation to a sex offender or child homicide offender or a relevant victim.  Relevant information, in this context, could include information such as health records, housing records or education records.  A victim is also an information sharing authority. 
The clause also provides a basis to prescribe another person or body as an information sharing authority, (or excluding a person or body as an information sharing authority) by regulation. 
Clause 20.		Sharing information 
This clause permits the panel to request an information sharing authority to provide information about a reportable offender that the authority holds.  The request is required to specify the information to which and the reportable offender to whom the request relates, and that the panel reasonably believes that the requested information would assist the panel to make a decision about publication of the offender’s details on the website. 
Subclause (2) requires the information sharing authority to, as soon as practicable, either provide the requested information to the panel, or refuse to provide the information requested where the authority does not hold a belief the provision of information would assist the panel in making a decision. 
Subclause (3) provides that, for the purposes of the information sharing authority forming the above belief mentioned in subsection (2)(a), the information sharing authority can ask the panel to provide further information to the information sharing authority.  The panel may provide this further information about the request to the information sharing authority as a way of clarifying or further identifying issues for the panel’s consideration. 
Subclause (4) provides that the information sharing authority may refuse to provide information to the panel after having been requested by the panel.  Subclause (4)(a) lists a number of bases in which an information sharing authority may refuse to provide information, including on the reasonable belief that provision could prejudice an ongoing investigation, prejudice a coronial inquest, inquiry or court or tribunal proceedings, or endanger a person’s life or physical safety, or cause distress to a victim.  Other circumstances where an information sharing authority may refuse to provide information to the panel may be prescribed in future by regulation. 
Subclause (5) requires an information sharing authority to, at the same time the authority refuses to provide the panel the requested information, provide the panel reasons for its refusal.
Clause 21.		Interactions with other laws
This clause provides that Division 2 has effect despite the operation of any other law of the Territory that prohibits or restricts the disclosure of information. 
Division 3 		Liability
Clause 22.		Protection from liability 
This clause provides that a person who commits an act or omission, in good faith, in the exercise of a power or performance of a function under this Act, as either a member of the panel, the Commissioner of Police, or a person delegated functions or powers under section 9 of the Act, is not civilly or criminally liable for that act or omission.  The section does not affect any liability the Territory would have, apart from that subsection, for the act or omission. 
Division 4		Offences
Clause 23.		Conduct promoting abuse of offender or family member
This clause establishes an offence where a person engages in behaviour that promotes the abuse of an offender or a member of the offender’s family.  
The elements of the offence are that the person has to intend to engage in conduct, elsewhere than in private, because that person ‘has knowledge’ the offender is a relevant offender and their details have been posted on the website, and the person is reckless whether their conduct is abuse towards, or would promote abuse of, the offender or member of the offender’s immediate family.  A maximum penalty of 400 penalty units or imprisonment for two years applies to this offence. 
Subclause (2) establishes an offence where the person engages in the same conduct as listed in subclause (1), but with a varied fault element.  This offence will apply where the person engages in the same behaviour, but is reckless as to whether the other person is a relevant offender with their details posted on the website.  The person needs to be reckless as to whether their conduct is abuse towards or would promote abuse of the other person’s status as a relevant offender, or a member of the offender’s immediate family.  A maximum penalty of 400 penalty units or imprisonment for two years applies to this offence. 
Subclause (3) provides that conduct, for the purposes of the above offences, is taken to be engaged in elsewhere than in private if the conduct consists of any form or communication with the public or a section of the public, or the conduct occurs in a public place or in sight or hearing of a person who is in a public place.
Subclause (4) provides that despite the operation of section 43AW of the Criminal Code, it is not a defence to a prosecution for an offence against subsection (2) if the defendant was under a mistaken belief about the status of the person as a relevant offender and the person’s details being posted on the website. 
Subclause (5) defines ‘abuse’ and ‘immediate family member’ for the purposes of section 23. 
Clause 24.	Publication or display of details 
This clause provides that the Minister may grant permission for a person to publish or display a detail that is on the website, on any conditions the Minister considers appropriate.
Subclause (2) establishes an offence where a person is reckless as to whether another person is a relevant offender in relation to whom details have been posted on the website, and the person intentionally publishes or displays a detail in relation to that other person that is otherwise in accordance with a permission granted by the Minister.  A maximum penalty of 200 penalty units or imprisonment of two years applies to this offence.  Strict liability applies to the person’s conduct where they publish material on a person otherwise than in accordance with a permission granted by the Minister. 
Subclause (4) establishes an offence where a person has published on the internet or displayed a person’s details in relation to a relevant offender in accordance with permission of the Minister, and the Commissioner of Police has removed the person’s details from the website.  The person commits an offence in these circumstances where the person is reckless as to whether the Commissioner has removed the details from the website, 30 days have passed since the Commissioner has removed the detail from the website, and the person has not removed the detail from the internet or display.  A maximum penalty of 200 penalty units or two years imprisonment applies to this offence.  With the exception of the person’s recklessness about whether the Commissioner of Police has removed the detail from the website, strict liability applies to the fault elements of this offence. 
Subclause (6) establishes a defence to an offence against subsection (4) where a person has taken all reasonable steps to remove the detail from the internet or display, but for technical reasons not within the control of the person, the details remain accessible on the internet.
Clause 25.		Criminal liability of executive officer of body corporate
This clause establishes criminal liability for an executive officer of a body corporate.  ‘Executive officer’ is defined in subclause (8) to mean a director or other person who is concerned with, or takes part in, the management of a body corporate. 
The clause provides that a body corporate commits an offence by contravening section 23 or 24 and the officer is reckless about whether the contravention would occur.  The officer is required to be in a position to influence the conduct of the body corporate in relation to the contravention, and the officer is reckless in their failure to take reasonable steps to prevent the contravention.  The maximum penalty that applies to this offence is the same maximum penalty that may be imposed on an individual for the relevant offence.  
Subclauses (3) and (4) set out non-exhaustive criteria that may be considered when deciding whether the executive officer took or failed to take reasonable steps to prevent the contravention.
Subclauses (5) and (6) confirms the offence does not affect the liability of the body corporate, and that the section applies whether or not the body corporate is prosecuted for, or found guilty of the relevant offence.  The section, however, does not apply if the body corporate would have a defence to a prosecution for the relevant offence.  
Division 5		Regulations and guidelines
Clause 26. 		Regulations
This is a formal clause that allows the Administrator to make regulations under the Act.
Clause 27.		Guidelines
This clause provides that the Minister may issue guidelines consistent with the Act and regulations, relating to the performance of function by the panel or the Commissioner of Police.  Subclause (2) requires the panel and the Commissioner of Police to have regard to the guidelines when performing functions under this Act.
Part 5		Transitional matter for Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Act 2015
Clause 28.		Application to pre-commencement offenders
This clause provides that the Act applies, in relation to a sex offender or child homicide offender, despite where the only offence that resulted in that person becoming a reportable offender occurred prior to the commencement of this Act.  
This means that reportable offenders managed pursuant to the Child Protection (Offender Reporting and Registration) Act prior to the commencement of this Act will be eligible for consideration to have their details published on the website.  
It also means that an offender who committed an offence prior to the commencement of this Act, but which was not detected until some later time, resulting in a subsequent conviction and reporting obligation, will also be eligible for consideration to have their details published on the website. 
Part 6		Consequential amendments
Division 1		Child Protection (Offender Reporting and Registration) Act
Clause 29.		Act amended
This clause provides for the amendment to the Child Protection (Offender Reporting and Registration) Act.
Clause 30.		Schedule 1 amended
This clause provides for the amendment to item 5 in Schedule 1.  The amendment is to correct incorrect references to the section numbers for the offences of murder and manslaughter as established in the Criminal Code.
Division 2		Information Act
Clause 31.		Act amended
This clause provides for the amendment to the Information Act. 
Clause 32. 		Section 49D inserted
This clause inserts a new section 49D into the Information Act.  The new section provides an exemption to the disclosure obligations in the Information Act if information is obtained or created in relation to the making of a decision, or any deliberations leading to the making of a decision of the panel under this Act, or is information considered by the panel before the panel makes a decision under the Act. 
Division 3		Expiry of Part
Clause 33.		Expiry of Part
This is a standard clause which provides that the Part expires the day after it commences.