Page 4080 - Week 11 - Tuesday, 23 October 2018
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the criminal justice system in the ACT, which is an ideal that I am sure we all agree on.
The government aims to ensure that all ACT legislation is up to date and consistent. To this end, the bill will amend the Crimes (Child Sex Offenders) Act to clarify that warrants are issued by a magistrate rather than the court, to eliminate inconsistencies. This amendment responds to an issue raised by a number of our judiciary about the construction of the warrant regime in the act. The act falls within my responsibility, and sexual crimes committed against children have profound consequences for the victim, their family and the community. These crimes warrant the specific monitoring and reporting measures imposed by the child sex offender register, which requires offenders to keep police informed of personal information.
An important measure under the act is the ability for police to apply for a warrant to enter and search premises occupied by the registered child sex offender. A warrant may be applied for in circumstances where the registerable offender has incorrectly reported their personal details, or has breached an order prohibiting particular conduct, such as being within a certain distance of a school zone or living at a particular residence with a child.
The concern raised which has led to this amendment being proposed is that the warrant process differs from other warrant schemes created under other ACT legislation, as it empowers the Magistrates Court to issue a warrant rather than the “magistrate” or “issuing officer” in their personal capacity as a designated person. The concern is that this may trigger the usual procedural requirements in respect of applications such as filing and serving the application and conducting the proceedings in open court. This has the potential to jeopardise the safety of children and the protection of the community, as it may delay the time for the warrant to be issued or may provide time for an offender to destroy the evidence.
The amendments address issues about vesting the power in the court, rather than the specified person as a persona designata, to issue warrants. This is because it is well established that the process of issuing a warrant is an administrative function, not a judicial one. While ordinarily a judicial officer such as a judge or magistrate is empowered to issue warrants under various statutory regimes, in the performance of the function entrusted, the judicial officer is intended to act personally, detached from the court of which he or she is a member. While I am advised that it appears that this has not arisen as a practical issue in an application for a warrant to date, addressing it in this bill will prevent it becoming a live issue in the future.
For these reasons, an amendment to change the language of the act is critical to ensure that police are able to apply for warrants in a time-critical circumstance seamlessly. This is an important measure to allow police to apply for warrants in time-critical circumstances and will avoid unintended consequences such as triggering the application of the court procedures rules. If the rules were to apply, this may require the application to be heard in open court and served on the respondent, which would obviously undermine the purpose of being able to obtain warrants in a timely way. This amendment will also ensure consistency with other warrant regimes. I commend the amendment to the Assembly.
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