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DANGEROUS SEXUAL OFFENDERS BILL 2005
Introduction and First Reading
Bill introduced, on motion by Mr J.A. McGinty (Attorney General), and read a first time.
Explanatory memorandum presented by the Attorney General.
Second Reading
MR J.A. McGINTY (Fremantle - Attorney General) [12.26 pm]: I move That the bill be now read a second time.
This bill will significantly enhance the protection of children from child sex offenders. Paedophilia is recognised
as a serious, complex problem that requires a multifaceted approach to ensure that the community is protected
from such offenders. The government is committed to doing everything in its power to minimise paedophilia.
These proposed new laws will realise this commitment by ensuring that people who commit these horrendous
crimes are not released until they no longer pose a threat to the community.
The government has provided Western Australian children with the most comprehensive protection in the nation
against child sex offenders. Through the Criminal Law Amendment (Simple Offences) Act 2004, the
government amended the Criminal Code to provide that a person who is a child sex offender who habitually
consorts with another person whom the police have warned is also a child sex offender could be
imprisoned for two years and fined $24 000;
amended the Criminal Code to provide that a child sex offender could incur the same penalty for being,
without reasonable excuse, in or near a school, kindergarten, childcare centre or any other public place
where children are regularly present; and
abolished the Police Act offences of loitering, evil designs, being suspected of having committed an
offence and being suspected of being about to commit an offence and replaced them with a move-on
power to enable the police to adequately deal with loitering and suspicious behaviour, such as peeping
Toms who have not yet committed the substantive offence.
Through the Community Protection (Offender Reporting) Act 2004, the government now requires convicted
paedophiles to report routinely to police and advise them of relevant personal information, including their name,
date of birth, address, employment details, details of motor vehicles owned or driven by them, club memberships
and travel plans. Details are logged on a national sex offender register. Police are empowered to share this
information with other policing jurisdictions to better control the predatory migration of these offenders.
Through the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004, the government amended the Criminal Code and the Evidence Act so that if a defendant is accused of committing
multiple offences, the prosecution will more readily be able to join the charges to be dealt with under
the one indictment;
provided legislative protection for counselling communications;
provided that one or more visually recorded interviews may be admitted as the whole or part of the
evidence in chief of a child witness, and limited the grounds upon which courts may exclude visually
recorded evidence to when the prejudicial effect of the evidence exceeds its probative force; and
amended the Evidence Act to remove the requirement for children to have an understanding of their
duty to tell the truth that is over and above the ordinary duty to tell the truth.
Through the Working with Children (Criminal Record Checking) Act 2004, the government has provided
procedures for checking the criminal records of people who carry out child-related work or who propose to carry
out such work, and prohibited certain people who have been convicted of or charged with certain offences from
carrying out child-related work.
In addition, the government has introduced into Parliament the Criminal Code Amendment (Cyber Predators)
Bill 2005 to address the use of electronic communication, particularly the Internet, by offenders who seek to
sexually exploit children.
The Dangerous Sexual Offenders Bill further enhances the protection of children in this state, fulfilling the
government’s election commitment. There has been growing concern in our community about the release from
prison of convicted sex offenders and paedophiles who are not rehabilitated. The real possibility of them
reoffending poses a risk to the community that the government views as unacceptable.
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Mr Jim McGinty
The bill will enable the Supreme Court to order the post-sentence preventative detention or supervision of sex
offenders who pose a serious danger to the community. These new laws will complement the existing provisions
in part 14 of the Sentencing Act 1995, which allows a court to impose an indefinite sentence on an offender. If a
superior court sentences an offender for an indictable offence to a term of imprisonment, does not suspend that
imprisonment and does not make a parole eligibility order under part 13 of the Sentencing Act 1995 in respect of
that term, it may in addition to imposing the term of imprisonment for the offence - the nominal sentence - order
the offender to be imprisoned indefinitely. Indefinite imprisonment must not be ordered unless the court is
satisfied on the balance of probabilities that, when the offender would otherwise be released from custody in
respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it. An
application for an indefinite sentence can only be made as part of the sentencing process at the time of
conviction.
This bill provides a process separate from the sentencing process for detaining persons who have been convicted
of a serious sexual offence and whose risk of reoffending demands that the community be protected. This bill
recognises the priority that must be given to protecting the public, our families and children from the serious
danger that a person, having already been convicted and imprisoned for committing a serious sexual offence,
poses to the community because of his propensity for committing such an offence again.
Under these new laws, if there is cogent evidence indicating that a person convicted of a serious sexual offence
and who is under a sentence of imprisonment wholly or in part for that offence poses a real risk of reoffending,
the Director of Public Prosecutions or the Attorney General can apply to the Supreme Court for orders requiring
the person to submit to psychiatric assessment and be detained in custody. Serious sexual offences are sexual
offences in the Criminal Code for which the maximum penalty that may be imposed is seven years or more.
When such an application is made, the court can order that the person undergo a risk assessment by two
appropriately qualified psychiatrists, who must prepare a report for the court on the level of risk posed by the
person. The court is required to assess the person’s risk of reoffending. It can impose either a continuing
detention order or a supervision order containing strict supervision conditions.
The new law will apply to any person under sentence of imprisonment from the time the law comes into effect,
regardless of when his offence was committed. If the person under sentence of imprisonment is in custody, the
application cannot be made unless there is a possibility that the person might be released from custody within the
period of six months after the application is made. This is to ensure that the person is able to take full advantage
of any opportunities for rehabilitation offered during the term of imprisonment and orders are not applied for
prematurely. Applications can also be made in relation to a person who is under a sentence of imprisonment not
in custody but in the community.
A number of important protections are contained in the bill to ensure no person is unfairly or inappropriately
incarcerated. Before considering the evidence of the risk that the person will commit a serious sexual offence,
the court must obtain two independent psychiatric reports on the person. The person must also be given notice
of the application to enable him or her to obtain separate reports and present any evidence in rebuttal of the claim
that he or she is a serious danger to the community. Only the Supreme Court may make orders and only if the
court is satisfied by acceptable and cogent evidence and to a high degree of probability that the person would
pose a serious danger to the community if an order was not made. The bill also contains provision for appeals to
the Court of Appeal against the decision of the Supreme Court on the principal application.
If a continuing detention order is made, it must be fully reviewed by the Supreme Court at least every 12 months.
The order can only be continued if the same test as that satisfied at the previous hearing is again satisfied; that is,
that the court considers the person a serious danger to the community. The scheme of the law ensures that the
independence of the court’s discretion is respected. As an alternative to custodial detention, the court may make
a supervision order. This will allow the court to impose conditions such as reporting to and/or receiving visits
from community corrections officers, taking part in rehabilitation programs and staying within Western Australia
unless authorised to travel elsewhere. The court can amend a supervision order if there is a change in the
person’s circumstances. If a person breaches a supervision order, a police officer or community corrections
officer has the power to apply to a magistrate for a summons or warrant that the person be arrested and brought
back before the Supreme Court to be dealt with.
This bill is largely based on the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003, which has
withstood constitutional challenge in the High Court. This bill is yet another measure this government has
introduced to address legitimate public concern about the danger the community is exposed to by offenders who
commit a serious sexual offence and who are unwilling or unable to be rehabilitated. I commend the bill to the
house.
Debate adjourned, on motion by Mr M. Cowper.
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