Ms BADGER (Lyons) – Honourable Deputy Speaker, I rise to speak on behalf of the Greens on the Community Protection Offender Reporting Amendment Bill 2024. We would also like to acknowledge Bruce and Denise Morcombe here with us in the Chamber and acknowledge they have been in this place all day waiting to hear this debate. Thank you.
It is fair to say, as other members have touched on, that this bill has resulted in very mixed feedback from stakeholders and from the community. All emotions aside, and under the situation, I am frankly appalled that we are in this situation today, on what is such an important matter, and I am sorry to all the stakeholders and the sector advocates and organisations who have not been heard.
To recap the background of this bill for the sake of Hansard, a version of this bill was first tabled in 2023, and then what we have in front of us was re‑tabled in late 2024. At that point, stakeholders were still deeply concerned about the contents of the bill, including the fact that there appear to be basic drafting flaws, and I will speak on those later on. To be clear, a public disclosure aspect of the bill is not a commission of inquiry recommendation.
On 7 May, as member for Lyons, Ms Butler, alluded to, members of this place sent a joint letter to the minister in good faith asking him to withdraw and redraft the bill so we could debate this once and do it right, noting that there was no opposition to the principal intent of the bill. The minister did not even acknowledge the letter, but less than 24 hours later, he was in the media announcing that the bill, which was first tabled in 2023, now had a name change as Daniel’s Law.
At 11.00 a.m. on the day of the debate is when the new second reading speech was circulated. Today, we will have a debate. For how long exactly, we still have not actually been told. We are going to have a debate, today or at some point into the future, into a Committee whereby the government will be required to amend its own bill, as will many other members of this place. That situation is articulating exactly what all of us had put forward in this place, trying to avoid, so that that did not happen.
The integral action would have been for the minister just to redraw the bill, draft it properly with consultation, devote it as Daniel’s Law, and re‑table it. Then it may have passed smoothly. But here we are, and we are likely to come back and have to go through this again.
Minister, I understand your office has reconsulted with a select few stakeholders, so perhaps you would like to inform this place precisely which organisations were consulted recently, how these stakeholders were identified for consultation, and did your office reach out to all who made submissions on this bill?
The Greens’ ultimate position on the bill will be determined based on the final bill that is before this House after the various amendments. There are a range of matters in this bill that the Greens are comfortable to support. The provisions dealing with interagency information‑sharing and a presumption that a person who was a child at the time of offending is not to be declared a reportable offender. These are two matters in particular that are in line with addressing the issues that are identified in the commission of inquiry.
We also support amendments allowing the register to share details with a register in another jurisdiction and a court. Similarly, we support amendments that provide greater flexibility in dealing with a change in circumstances, and this includes the ability for a magistrate to vary, extend or revoke a Community Protection Order if there has been substantial change in circumstances, and the ability for the Commissioner to suspend reporting obligations in certain circumstances. There are also a range of more technical amendments that we support, such as the most recent order prevailing in the event of an inconsistency and allowing for alternatives to reporting in-person where necessary. One of the elements of this bill that is deeply concerning to the Greens is the proposed community disclosure scheme.
I note that in the minister’s second reading speech, all versions of it, they had only provided for a brief paragraph in respect to this component of the bill. This paragraph provided a very basic description of the scheme. The intended purpose was not outlined, nor was the evidence nor arguments for the scheme articulated. I will say that our briefing, and thank you to the members of Tasmania Police who provided it, did provide a fairly detailed explanation of the purpose of the scheme as well as the intended operation of the scheme. I think it is a shame that those details that were shared in the briefing were not fully included in the second reading contribution because the details of how a scheme is intended to work operationally varies significantly from how a straight read of this legislation would.
For example, this bill provides a parent or guardian the need to provide evidence that a person they are making a disclosure request in regard to has or has had regular unsupervised access to their child; that is, the person has had three days of unsupervised access in a 12‑month period. What was made apparent in the briefing is that this alone would not qualify a person to be provided with a disclosure, rather a person would have to demonstrate that they had reasonable grounds for concern.
The briefing also described an intended system where an applicant for disclosure would result in an involved contact point that would allow for advice to be provided to concerned parents or guardians and for information to be collected by police that would provide them with important intelligence regarding registered offenders or other people of concern in the community. These details provide for a much better understanding of how the scheme is intended to operate than is readily apparent from the second reading speech. However, it has to be said that these matters at this stage are only intent and the bill does not mandate that this occurs and the extent to which this intended process becomes and remains a reality will be dictated by resourcing as well as the present and future administrations.
The scheme in this bill before us is based heavily on the Western Australian legislation, which has been operational since 2012. In many cases, this is almost just copy and paste, so we can look at the Western Australian experience and what evidence they have there as to the scheme’s effectiveness. The Western Australian scheme was also reviewed in 2018, and although the review does appear to be significantly flawed, and I will come back to that, it does contain some data. Indeed, it is the conspicuous absences of data that the Greens believe to be instructive.
I say the review appears significantly flawed because a read of the review makes it very clear that it is set out simply to validate the scheme. For example, in respect of the community disclosure, the review concluded;
The scheme can be considered effective as it meets the primary purpose of which it was developed; that is, to make information publicly available.
It did not assess whether the scheme increased public safety, prevented offending or assisted to identify breaches of the obligation of registered offenders. At the time of the review in 2018, the scheme had been operational for six years and only 16 disclosures had been made under the scheme.
Given the small number of disclosures made, it seems likely that if in the course of any of those disclosures, breaches of the obligations of registered offenders were identified, this would have been discernible by the reviewers and reported on in some form. But no such finding was made. It is also worth noting that of those 16 disclosures across six years, they were made in the context of the jurisdiction in Western Australia, where, at the time, there were 3500 reportable offenders. Tasmania has 400 reportable offenders.
If Tasmania were to follow this trend, noting that this proposed bill is almost identical to Western Australia’s, this would be one successful disclosure here every three years. Given we have hundreds of well‑evidenced independent recommendations from the commission of inquiry still to implement, is the expenditure and resourcing of this scheme, with such a low expected uptake, really a good use of our time and budget? The Greens do not think so.
I think it is also important to truly reflect on the actual value of the scheme and what value that would provide to both policing and community safety.
A person may access the scheme when a child under their care has unsupervised access to a person who is behaving in a way that gives rise to a concern that they may be a registered offender. In these circumstances, regardless of whether or not that person is a reportable offender, ideally this should mean that the child is removed from the care of that person of concern and that their behaviour is reported to police regardless. In the absence of a scheme, a person in these circumstances is able to remove their child from a person’s care and report their concerns to police.
The introduction of this scheme does not create a new pathway. Whether or not a person is a reportable offender would not be able to guarantee a child is safe. Their behaviour should be reported to police either way. As was stated in most submissions on this bill, we do not want to see a situation where the community has a false sense of security in the register alone in keeping children safe.
Where is the foundational support for those accessing the register? Where is the uptick in investment into the services that can support those who have experienced sexual assault or abuse themselves, who have children, partners or anyone else who has?
Off the back of this legislation, minister, how much and where will you be investing to support services to those who access the register? How much will this government be investing into education and community awareness for recognising the behaviour of a child who may have been put at risk and the behaviours of perpetrators, such as grooming?
In addition to the notification of whether or not a person is a reportable offender, being a redundant step in this case, it is also potentially a risky one. I recognise that it is intended for this scheme to operate in a way that communicates to people that just because a person is not a reportable offender, it does not mean that they are safe. However, schemes do not always operate as intended.
Another concerning piece of information contained in the review from the Western Australian legislation is that there were three convictions under their vigilante provisions during the review period. Three is not an insignificant number in the context where the total number of successful applicants was 16. That is almost 20 per cent disclosures under this scheme resulting in a person being convicted of a vigilante offence. Both the disclosure scheme and the vigilante offence provisions in this bill are again based on the Western Australian model. Not only is this a concern in terms of vigilante behaviour, but it is also a concern that a scheme providing no tangible benefit to community safety could result in the criminalisation of 20 per cent of its successful users. All of this gives the Greens significant pause and concerns about the risks and the lack of benefit associated with the proposed disclosure scheme.
The Western Australian scheme, again near identical to this, has been operating for over a decade and yet the government has been unable to provide any evidence of benefit to community safety or police intelligence. To the contrary, the evidence suggests otherwise. On this basis, the Greens will be moving to remove these provisions from the bill.
We also have two technical amendments to this bill in relation to the definition of reportable contact in the principal act. This bill makes two references to reportable contact in relation to a charged in the proposed new sections 15C and 15E. The problem is that the definition of reportable contact in sections 3 and 17(4) in the principal act applies to a reportable offender. The current definition reads ‘reportable contact in relation to a reportable offender contact with a child means the contact listed in section 17(4).’ Section 17(4) similarly sets out that a reportable offender is taken to have had reportable contact with a child if the reportable offender meets the conditions listed in paragraphs A through to D.
A ‘reportable offender’ is a person who is sentenced to a reportable offence and who is subject to a court order to be placed on the register. The purpose defined of a charged person applies to a person who has been charged with a reportable fence whereby proceedings have not actually been finalised. This means that reportable contact definitionally can only occur in respect of a reportable offender. The proposed new 15C(1) and (1)(c) in this bill allows:
1. The Commissioner may give to a charged person, who is not a child, a notice in writing requiring the person to provide to the Commissioner –
…
(c) information regarding any reportable contact that the person has or expects to have with a child.
The problem with the clause is that a charged person cannot, by definition, have any reportable contact with a child, as only a reportable offender can have reportable contact. The proposed new 15E similarly allows the commissioner to advise ‘in respect to a charged person’ details to any parent, guardian or carer of a child with whom the person has had, or the commissioner reasonably believes may have reportable contact. Similarly, it is not actually possible for a charged person definitionally to have reportable contact.
Our amendments to clauses 5 and 20 simply amend that definition of reportable contact to also apply to a charged person. All other references to reportable contact that are in the principal act explicitly only apply to reportable offenders. Our amendment would not have any impact on the existing provisions under the principal act. The only effect of this amendment is to address the anomaly that would prevent the proposed sections of 19C and 19E from operating as intended.
The feedback from the commissioner of children on the bill recommended an amendment to clause 8 to reverse the presumption of inclusion on the register for children. They stated:
noting that children as young as ten can be subject to this law, it may be appropriate for there to be a presumption that a child is not named on the register unless the court is satisfied that the child poses an unreasonable risk of committing a reportable offence.
On this basis, we have prepared an amendment to provide that the court may not make such an order unless the court is satisfied that the child possesses an unreasonable risk.
We are also concerned that there may be some unintended consequences in the offence provisions of the proposed new section 34B, which creates an offence for publishing, distributing or displaying any identifying information other than that which is in accordance with the act. The definition of identifying information is limited to this information accessed or disclosed under the act. Our concern is that the proposed section 47A allows for the commissioner to publish identifying information in some circumstances. If the police were to publish the details of a registered person whose whereabouts were unknown, our read on the current section 34B is that a person could potentially be charged for sharing that information on social media, for example.
Our amendments would amend the definition of ‘identifying information’ to exclude information disclosed under section 47A. In our view, it is unreasonable to establish circumstances where information is made public by the police and members of our community could unknowingly be committing an offence by sharing that information, which is already public, thinking that they are doing the right thing, trying to help out.
Finally, I would like to thank all of the stakeholders and organisations who have been tirelessly trying to work across the Chamber in the past few weeks with the Greens, the independents, with Labor and also with the government to try to fix what are anything from substantial drafting concerns to very basic drafting flaws, so that we can try to get this right. We will see what happens in the committee stage of this bill, because with the saga that it currently is, who knows what kind of legislation we are going to get at the end of it.
This is an appalling way to go forward. It is completely unacceptable. I hope in my time I never see anything quite like this again.
