Community Protection (Offender Reporting) Act 2004

• Reportable offenders: Persons found guilty of Class 1, 2 or 3 offences, and persons subject to offender reporting orders. They must comply with extensive reporting obligations, submit to DNA, fingerprint and photograph collection, and comply with requirements relating to travel and contact with children.
• Juveniles who have committed reportable offences: Subject to a distinct juvenile framework with juvenile reporting orders and the possibility of exemption orders.
• The Commissioner of Police and police officers: Receive reports, maintain the Register, exercise enforcement powers, and make applications for past offender orders.
• Courts: Make offender reporting orders, juvenile orders, and exemption orders. District Court may grant exemptions from reporting obligations (s 52).
• Persons subject to corresponding Acts: Reportable offenders from other Australian states and from New Zealand are captured through the national recognition framework.
• Children (as potential victims): The register and reporting obligations are designed to protect children from future contact by reportable offenders.
• Publication framework: Part 5A enables the Commissioner to publish information about certain high-risk offenders.

Initial report (ss 24-27): A reportable offender must make an initial report of their personal details to police within the period specified in section 24. The report must include specified personal information under section 26, including name, residential address, employment, vehicle details, and other prescribed matters.

Annual reporting (s 28): Reportable offenders must report annually and as required by the Commissioner.

Reporting changes in personal details (s 29): Any change to relevant personal details must be reported to police within the time prescribed.

Reporting intended absence from WA (s 30): Intended absences from Western Australia must be reported, including the states, territories or countries to be visited, the intended dates, and each address or location at which the offender intends to reside.

Reporting travel plan changes (s 31): Changes to travel plans while out of Western Australia must be reported.

Reporting return to WA (s 32): Reportable offenders must report their return to Western Australia after an absence.

Reporting contact with children (s 33A): Ongoing reporting of reportable contact with a child is required. Exemptions from this obligation may be granted (s 33B) and cease in specified circumstances (s 33C).

Submission to collection of identifying material (ss 39-41): Police may take fingerprints (s 39), photographs (s 40) and DNA profiles (s 40A) from reportable offenders. Reasonable force may be used (s 41).

Commissioner's approval of suspension (ss 61-62): The Commissioner may approve a suspension of reporting obligations in appropriate circumstances. An approval ceases in the circumstances specified in section 62.

District Court exemption (ss 52-60): An offender may apply to the District Court to be exempted from reporting obligations. The Commissioner and certain chief executives are entitled to be parties (s 54). The court may order a suspension of obligations pending the application (s 53).

Publication of information (Part 5A): The Commissioner may publish personal details of certain high-risk reportable offenders under Division 2 of Part 5A (s 85F) and may provide information to parents and other persons with a child protection purpose.

Protection orders (Part 5): Courts may make protection orders prohibiting reportable offenders from engaging in specified conduct in relation to children.

Witness protection program modifications (Division 10, Part 3): Where an offender is a participant in a witness protection program, reporting obligations may be modified to protect the person's safety (ss 74-79).

Failure to comply with reporting obligations (s 63): A reportable offender who, without reasonable excuse, fails to comply with any reporting obligation commits a crime. Maximum penalty: 5 years imprisonment. Summary conviction penalty: 2 years imprisonment and a $24,000 fine. The court must consider specified factors in determining whether a reasonable excuse exists, including the person's age, disability, and adequacy of notification (s 63(2)). It is a defence if the person was not aware of the obligation (s 63(3)).

Providing false or misleading information (s 64): A person who provides false or misleading information in purported compliance with the Act commits an offence.

No time limit for prosecutions (s 65): There is no time limit for prosecuting offences against Part 3. This is a significant departure from usual limitation periods for criminal offences.

Bar to prosecution for failing to report leaving WA (s 66): A specific bar applies in certain circumstances where an offender failed to report their intended departure from Western Australia.

National recognition: Corresponding reportable offenders (from other jurisdictions) who fail to comply with their WA obligations are also subject to prosecution.

Initial report timing (s 24): The initial report must be made within a period calculated by reference to the date of finding of guilt and the nature of any sentence (immediate custody, community order, suspended sentence, etc.).

Annual reporting: Once per year plus as required by the Commissioner.

Reporting changes within specified period: Changes to personal details must be reported within the applicable period after the change occurs.

Absence reporting: Intended absences from WA must be reported within a specified period before the departure date.

Application for exemption (ss 52-60): An offender may apply to the District Court for an exemption from reporting. The court may suspend obligations pending the application. Costs may not be awarded against either party (s 56). If an application is unsuccessful, there are restrictions on re-applying (s 58).

Reporting period commencement (s 45): Reporting obligations begin on the day the offender is released from prison for the reportable offence (or on the day of sentencing if no custodial sentence is imposed).

Corresponding Acts (national recognition): Section 7 captures corresponding reportable offenders from other jurisdictions. Corresponding Acts are prescribed by regulation. The Act operates as part of a national offender reporting framework with equivalent legislation in each state and territory.

New South Wales reportable offenders (s 8): A specific provision for NSW reportable offenders reflecting the national recognition arrangement with NSW.

Sentencing Act 1995 (WA) / Young Offenders Act 1994 (WA): The definition of community order in section 3 refers to community based orders and other community supervision orders under these Acts. The initial report timing in section 24 is calibrated by reference to sentence types under WA sentencing legislation.

Criminal Law (Mental Impairment) Act 2023 (WA): The definition of community order references community supervision orders under this Act, reflecting the Act's coverage of mentally impaired persons who have committed reportable offences.

Police Act 1892 (WA): The Commissioner is defined by reference to the Commissioner of Police under the Police Act 1892.

Privacy legislation: The confidentiality provisions in section 82 and the restriction on access to the Register (s 81) interact with privacy laws applicable to personal information held by police.

No time limit on prosecution (s 65): Unlike most criminal offences, there is no limitation period for prosecuting offences under Part 3. A reportable offender who failed to comply with an obligation 10 years ago can still be prosecuted.

Lifetime obligations can trigger through combinations of offences: Section 46(3)'s lifetime reporting period can be triggered not just by one very serious offence, but by combinations of Class 1, 2 and 3 offences over time. Practitioners advising clients on guilty pleas must carefully analyse how the plea will affect the client's reporting period, particularly if they have prior reportable offences.

Reporting obligations begin even if sentence is suspended or non-custodial: Where no custodial sentence is imposed, reporting obligations begin at sentencing. A person who receives a suspended sentence may not appreciate they are immediately required to report to police.

The reasonable excuse defence is qualified: Section 63(3) provides a defence where the person was not aware of their reporting obligations, but the courts must have regard to the specified factors in section 63(2). The adequacy of notification by police is a relevant consideration.

Class 3 offences exist but are not yet in force: Section 12 states it has not come into operation. Practitioners should check the current status of the Class 3 offence provisions.

Juvenile exemption orders can lapse (s 33C): A juvenile offender exemption from ongoing reporting of contact with a child can cease in specified circumstances. The conditions triggering cessation must be monitored.

Example 1: Single Class 1 conviction. A person is found guilty of a serious sexual offence against a child (a Class 1 offence listed in Schedule 1). On release from prison, they must make an initial report under section 24. They are then subject to annual reporting, must report changes to personal details, must report intended travel outside WA, and must report contact with children. The reporting period is 15 years under section 46(2)(a) (assuming no prior reportable offences).

Example 2: Escalating offending. A reportable offender who is subject to a 15-year reporting period from a prior Class 1 offence commits a further Class 1 offence. Under section 46(3)(a), their reporting obligations become life-long.

Example 3: Failure to report travel. A reportable offender leaves Western Australia to visit a relative in Queensland without making the required report under section 30. They are prosecuted under section 63. The prosecution need not be commenced within any limitation period (s 65). The maximum penalty is 5 years imprisonment. The court considers whether the offender had a reasonable excuse by reference to section 63(2), including whether they had received adequate notification of the obligation.

Example 4: Exemption application. A reportable offender who has complied with all obligations for 10 years and presents evidence of rehabilitation applies to the District Court under section 52 for an exemption from their remaining reporting obligations. The Commissioner is entitled to be a party (s 54) and may oppose the application. If the application fails, section 58 restricts the offender's right to re-apply.