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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 September 2006
JUDGES AND MAGISTRATES REMUNERATION REPORT: ADOPTION; CRIMINAL LAW (SEXUAL OFFENCES) BILL [B50- 2003]: DELIBERATIONS
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Criminal Laws (Sexual Offences) Bill as at 12/09/06
Redraft: Clauses 33 and 57 of Bill
Submission by Mr L Levitt
Letter Draft Proclamationon Remuneration of Judges
Letter on Remuneration of Magistrates
The Committee adopted the remuneration of judges and magistrates reports. On the submission by Mr L Levitt on medical aid and car allowance, it agreed that such issues should be addressed to the Judicial Services Commission and not to the Portfolio Committee.
The Committee continued with its deliberations on the Sexual Offences Bill, dealing with Chapters 5 and 6. In response to media reports that the Committee was criminalising the soliciting of sexual services, it was noted that there existed a court decision that provided that a person who had paid for sex was guilty of a crime in terms of the common law. The Bill was merely restating the common law in criminalising the soliciting of sexual services.
The Bill provided for the recording of particulars of persons who had been convicted of a sexual offence against a child. It also provided for the removal of the particulars after a certain period of time had lapsed. The Committee debated whether it should be possible to remove the particulars from the register. It was noted that the Bill could possibly violate the Constitution should it not allow for the removal of the particulars after some period of time. The recording of a person's particulars in the register could be interpreted as a second sentence. It was suggested that the register contain particulars of people convicted of only serious offences if it was decided that no particulars should be removed. The problem with this was that a paedophile could be convicted on a less serious offence and this would mean that his particulars would not be recorded in the register. The details of all convicted persons should be put into the register but it also had to provide for a removal mechanism so that it was not seen as double sentence. The non-removal of particulars would be a large invasion of their right to make a living and it was important to strike the right balance.
The issue of whether a person who had been raped was entitled to Post Exposure Prophylaxis would depend on a case-by-case basis. Both the outcome of the application for the HIV testing of the alleged offender and the HIV test results should be treated confidentially. The outcomes could only be communicated to listed persons.
Remuneration of Judges and Magistrates
In reply to the Chairperson asking if anyone wanted to raise any issue on the salaries of judges and magistrates, Ms S Camerer (DA) and Imam G Solomon (ANC) felt that it was too late to make any input since the President had already signed the Proclamation. The Chairperson pointed out that it was only a draft.
Mr J Jeffrey (ANC) said that there was a submission by Mr Levitt that dealt with the issue of medical aid and car allowance.
The Chairperson said Mr Levitt was complaining that the 5, 75% increase was not made applicable to his car allowance. She said that it was unbecoming for people to make such submissions to Parliament. Such submission should be processed internally in the Judicial Service Commission. She hoped that the Committee would in future not receive such submissions.
Ms M Mahlawe (ANC) noted that the home owner's and medical aid allowance of a magistrate was the allowance which was applicable to a deputy director in the public service as amended from time to time. She asked if magistrates would receive home owner's and medical aid allowances that were equivalent to those of deputy directors.
The Chairperson agreed. There was a dispute involving magistrates who had functioned in acting capacity. It was claimed that they were entitled to all benefits for the duration of the acting period. This had now been clarified and acting magistrates would not be entitled to all benefits. There would be a 5, 75% increase for all salary scales.
The Chairperson read the Committee's reports on the remuneration of judges and magistrates. The Committee agreed to the proclaimed remuneration for judges and magistrates. The reports were adopted unanimously.
Criminal Laws (Sexual Offences) Bill
Ms S Camerer (DA) said the media was editorialising against the Committee about the criminalisation of the soliciting of sexual services. Escort agencies were entitled to apply for licences and many of them had applied.
The Chairperson said that escort agencies were not necessarily prostitution agencies. There was a court decision that provided that a person who had paid for sex was guilty of a crime in terms of the common law. The Bill was therefore merely restating the common law.
Clause 31 Services for victims relating to Post Exposure Prophylaxis (PEP) and compulsory HIV testing of sexual offenders
The Chairperson said that there were issues relating to the rendering of services by private clinics. There could be problems if they were forced to render certain services. The best idea was to get the public service fully functional.
Ms Camerer said that people had a right to emergency medical treatment. A question had been raised as to why emergency medical treatment should not be available everywhere.
The Chairperson said that the very fact of a medical emergency was a matter that would have to be determined on a case by case. A question could be posed as to whether a person who had just been raped was in a life or death situation. The law took care of life and death situations.
Ms Camerer said that there was medical evidence that a person who had been raped should get some medical drugs in order to prevent HIV infections. It was a life-threatening situation.
The Chairperson said that the courts would have to determine the issue on a case by case basis. Clinics would argue that they did not have capacity if Parliament was to legislate that everybody who had been raped should be given PEP. One could not say that every case was a life and death situation in the absence of conclusive medical evidence.
Mr Basset said that clause 31(3)(a) referred to a medical practitioner or a qualified health care professional. He did not know where the term "a qualified health care professional" came from and requested that the drafters should be given time to look at it.
The Chairperson said that the definition of "interested person" referred to a 'health service provider'. She wondered what this term referred to.
Mr Basset said that there were some inconsistencies in the Bill. He requested an opportunity to have another look at some of the provisions of the Bill. The issue was who should the victims of sexual offences talk to when they arrive at health care institutions. Should it be a nurse or a doctor?
The Chairperson wondered if this was not the idea behind "qualified heath care professional". She suggested that the Bill should simply refer to a nurse.
Mr Basset agreed with the Chairperson's view. The terms "medical practitioner" and "nurse" were defined in the Bill.
The Chairperson noted that there was an interesting submission in relation to mental disability. The Committee should have a close look at the definition of "interested person" in relation to mentally disabled persons.
Clause 32 Designation of public health establishments for purposes of providing Post Exposure Prophylaxis and carrying out compulsory HIV testing
Mr Basset said that the drafters had approached the Department of Health and hoped to get response soon on wall to wall roll out of services.
The Chairperson said that the obligation to distribute the notice referred clause 32(3)(b) should be put as a separate clause. The obligation was very important and should be made clear.
Mr du Preez said that sub-clause (2) required the publication of the first notice to be done within a period of two months of the implementation of this clause. He wondered of reference to "within two months" should not be replaced by a requirement that the notice should be issued as soon as this Chapter was implemented.
The Chairperson said that the Committee would discuss this issue again at a later stage.
Ms Camerer said that there were no timeframes for the implementation of the clause.
The Chairperson said that designated health establishment would be expected to provide treatment immediately after the notice had been issued in the Gazette.
Clause 33 Application by victim or interested person for HIV testing of alleged sexual offender
The Chairperson said that the initial window period was 60 days but some of the information that the Committee had in its possession seemed to suggest 90 days. She requested the drafters to ask the Department of Health to clarify this issue.
She said that the Human Rights Commission had said that it was better to refer to a "person with mental disability" and not to a "mentally disabled person". The first expression recognised the person before the disability. She suggested that the whole Bill should refer to a person with a mental disability and not a mentally disabled person. The definition of a mentally disabled person as used in the Bill was very specific.
Mr Basset referred to the redrafted clause 33(2). The Committee had expressed concerns around the risk of exposure to HIV and the about setting out the grounds of exposure.
The Chairperson asked if the grounds pertained to risk of exposure as opposed to the alleged sexual offence. A victim would have to allege that a sexual offence had taken place and that the offence was of such a nature that he or she was exposed to bodily fluid. The victim would then proceed to set out the grounds of exposure.
Mr Basset said that the redraft did not go to extent suggested by the Chairperson. He proceeded to read the redrafted sub-clause (2). The redraft did not deal with the grounds of exposure.
The Chairperson said that the clause should incorporate the grounds of exposure.
Clause 34 Consideration of application by magistrate and issuing of order
The Chairperson said that the Committee should decide if the period referred to in sub-clause (3) should be 60 or 90 calendar days.
Clause 35 Application by police official for HIV testing of alleged offender
Mr Basset said that this clause was aimed at dealing situation wherein the police, the victim and the prosecution needed the HIV results of the alleged offender.
The Chairperson wondered if reference to 33(1)(a)(i) in clause 35(1)(b) was correct. She said that clause 33(1)(a)(I) dealt with an application and not an order. Mr Basset agreed that it was an application.
Mr Basset said that clause 35(1)(a) dealt with an application by the police for the testing of the alleged offender. Paragraph (1)(b) dealt with the situation where the victim had already applied for the testing of the alleged offender and there were tests available.
The Chairperson said that the point was whether the reference to clause 33(1)(a)(I) was correct. She felt that it might be better to refer to any HIV test results. It seemed that the clause assumed that an order had already been granted. An application could have already been made but the result might not have been obtained yet. Paragraph (b) would only apply if there were test results.
Mr du Preez said that the Committee should keep in mind that the investigating officer was the person who would finally take the victim's application to the magistrate. There was a concern that there might be two applications following each other. This would not necessarily be the case because the investigating officer would either take the initiative to bring the application or wait for the victim's application. There would be a central point where the State would be aware that a victim's application had been lodged. There was no risk of the investigating officer and the victim lodging their own separate applications.
The Chairperson said that one could get a situation wherein the investigation officer had changed. Mr du Preez said that the docket would not change. The Chairperson requested the drafters to make the provision more simple and clearer. The Committee had felt that the police should be able to make an application after conviction but before sentencing. She asked why sub-clause (2)(b) provided that an application contemplated in sub-clause (1) should be made as soon as possible after a charge had been laid. The offender should always be given the results if there was a test.
Mr du Preez said that sub-clause (2) referred to an application contemplated in sub-clause (1). This meant that sub-clause (1) was applicable to sub-clause (2)(a) and (b). He felt that sub-clause (2) should refer to sub-clause (1)(a).
The Chairperson asked why sub-clause (1) should not apply to sub-clause (2)(a) and (b). She said that sub-clause (1)(a) and (b) did not provide for different processes. Paragraphs (b) was there as a convenience. The grounds should be set out irrespective of whether a test would be conducted anew or whether one would simply access results of a test that had already been done.
Mr du Preez agreed but asked whether it was necessary to set out the grounds in relation to 35(1)(b). The application by the victim had already been considered in chambers.
The Chairperson said that Mr du Preez was assuming that the investigating officer already knew the results in any case. One could not have something that was designed to empower the victim being used for police investigations. There would be problems in relation to interpretation should this not be made clear. The Bill provided for a mechanism to allow victims to apply for the testing of the alleged offender should they want to know the offender's status. There was also an investigative tool that should be shown to be relevant the investigation of particular crime.
Clause 36 Execution of order and issuing of warrant of arrest
The Chairperson asked which provision indicated that an investigation officer should go to a designated establishment to get the specimens taken. It seemed that one could go to anyone to get the specimens taken. The Committee had agreed that any medical practitioner or nurse could take the specimens.
She noted that sub-clause (1)(d)(iv) provided that one sealed record of the test results should be retained in the prescribed manner and place. The Bill provided for the confidentiality of the results. The results were meant to be used for the investigation and finalisation of the case and would be contained in the docket. The docket could not just sit around in the office were any police official could get access to it. She asked at what point did the investigating officer hand the test results over to the prosecutor. There should be protocols devised between the police and prosecutors on how to handle the test results. There might be a situation wherein an investigating officer had obtained the results but felt that the results were insignificant and should therefore not be handed over to the prosecution. The question could be why should the prosecution be given the results if they were negative.
Imam Solomon suggested that the results should be handed over to the prosecution if applicable.
The Chairperson asked who would decide if the results were applicable. One did not want a dispute arising between the police and prosecutors on when results were applicable to a given case. It was important to have directives on this issue.
Mr Basset said that they had already drafted something in the directives. He referred the Committee to clause 61 which provided that the National Commissioner of the South African Police Service should consult other role players in relation to instructions regarding the manner in which police officials should deal with the HIV test results in order to ensure confidentiality.
The Chairperson said that there was emphasis of confidentiality on the one had and the sharing of information on the other. The National Commissioner should compile directives to regulate the police when dealing with prosecutors. There should be a clause that would deal with this.
The Chairperson noted that clause 36(2) provided that an order made in terms of clause 34(3) lapsed if the charge had been withdrawn by the prosecution at the request of the victim. There was the issue of the abuse of the system. One could not have a situation where a person could lay a charge just for the sake of getting the tests done. The law allowed the prosecution to continue with the proceedings even if the victim did not want to co-operate with the prosecution. She asked what was the effect of the withdrawal of the charge by the victim.
Mr Basset replied that it was the prosecution that actually withdrew a charge. The prosecutor should agree to the victim's request to withdraw the charge should the victim indicate that did he or she not want to continue to participate in the proceedings.
The Chairperson asked what would happen should the prosecution refuse a victim's requests for the withdrawal of the charge. Should the victim not be prevented from getting the results under such circumstances? The results should be destroyed if they had already been communicated to a victim who had refused to continue to participate in the proceedings. There was no protocol on the destruction of the results once communicated to the victim. A person who had laid a charge with the sole intention of getting the results would tun the risk of being prosecuted for malice.
Clause 37 Use of results of HIV tests
The Chairperson said that results were sealed when handed to investigative officer. Paragraph (a)(i) should provide that the results would be used to inform a victim or an interested person whether or not the alleged offender in the case in question was infected with HIV with the view to "empowering the victim to make informed medical, lifestyle and personal decision". The lifestyle issue would include taking better care and not exposing children to infected bodily fluid.
Clause 39 Confidentiality of outcome of application
The Chairperson said that clause 39(c)(Ii should simply refer to a prosecutor. It should not matter why the prosecutor needed the results. She asked the drafter to explain paragraph (c)(ii).
Mr Basset replied that sub-paragraph (ii) dealt with other people who would need to know that application had been made.
The Chairperson asked for the difference between clauses 39 and 40.
Mr du Preez replied that clause 39 dealt with a situation wherein an application for the testing of the alleged offender had been made and the magistrate had granted an order. The outcome of the application for testing was subject to confidentiality. Clause 40 dealt with the actual test results obtained after the test. The Chairperson wondered if there was a need for sub-paragraph (ii) in clause 39(c).
Imam Solomon said that clause 39 was related to the register. Any application for testing and the results of the application should be recorded. There were certain people who had the right to know the results of the application. These included the prosecutor, the victim and the alleged offender. He asked why a person who wanted the results for the purposes of civil proceedings should not have access to the results of the application.
The Chairperson said perhaps there should be reference to people who had access to the register in terms of clause 38(2).
Clause 40 Confidentiality of HIV test results obtained
The Chairperson said that this clause dealt with actual HIV test results. Clause 40(1)(c)(i) should refer to a "prosecutor if the alleged offender is tested as contemplated in section 35".
Clause 41 Offences and penalties
The Chairperson said that laying a charge with malicious intent by definition meant that the charge was false. This also meant that the person who had allegedly committed the offence could, strictly speaking, not be called an alleged offender. She wondered if the clause should not refer to the intention of ascertaining the HIV status of "any person" and not "alleged offender". She said that the suggested formulation would not really make any significant difference but would make it clear that the clause was concerned with a person who had laid a false charge. Paragraph (c) was added on basis of suggestions that victims who wanted to withdraw charges would be further victimised by the crime that this clause was creating. This clause would place the decision making power to a higher level. She felt that it would help a great deal in addressing the concerns. There should be directives relating to when such prosecution should take place.
Clause 30 Definitions
Ms Camerer asked if the definition should not also provide that there should be a medical officer who would determine if the specimens were right.
The Chairperson replied that test could only be done at designated places.
The Chairperson asked if medical practitioners were doctors. She also asked what else was included in the term.
Mr Basset replied that he would get back to the Committee on this.
The Chairperson said that one could not have dentists and pharmacists taking specimens. The actual tests would be done by specific persons who might not be doctors per se. The real problem would arise if the police were to police go to any medical practitioner to draw the specimens. People who worked in laboratories were not necessarily doctors.
Imam Solomon asked if the Bill did not provide for designated health institutions.
The Chairperson said that the problem would arise in cases wherein the police were allowed to go and draw the specimens. One might be in a rural area where there were no laboratories. The police officer should be allowed to go to the local nurse who was not necessarily part of designated institutions in order to get the specimens. At the same time, one did not want the police officer to be able to go to a pharmacist, for instance, to get the specimens taken.
Ms Mahlawe said that a medical practitioner referred to someone who was qualified as a doctor. There were specialists like gynaecologists.
Mr du Preez said that the definition had originally referred to the Nursing Act (1978) because it was still the Act that was in force. Mr Jeffrey had indicated that the Act had been replaced by another Act which was not yet in operation.
Imam Solomon asked if the definition of sexual offence applied to the whole Bill or only to Chapter 5 of the Bill. He also asked if a conduct was a sexual offence only if a victim had been exposed to bodily fluids. Was this definition used throughout the Bill.
Mr Basset said that sexual offence was also defined in clause (1) of the Bill.
The Chairperson said that the definition was qualified by the statement "fore the purposes of this Chapter, and unless the context indicated otherwise" at the beginning of clause 30.
The Chairperson said that a victim should be a person who had laid a charge.
Prohibition on certain types of employment relating to a child or children, or access to a child or children, of or by certain persons who have been convicted of a sexual offence against a child
Mr Basset said that there were three principles that the drafters wanted to include in the Bill. The first one provided that a person who had been convicted for a sexual offence with a child might not work with children. The second was that people who were seeking employment should disclose if they had been convicted for a sexual offence with a child. The third had to deal with the register. There were problems with removing the words "and whose particulars have been included in the register" from clause 43(1). There was a provision to the effect that a person's particular could be removed following application to court after a certain period of time. He asked what would happen once a person's particulars had been removed from the register.
The Chairperson said that the problem was the particulars of a person who had been convicted for a sexual offence against a child would be entered into the register. The Bill also established the principle that people who had been convicted of such offences but no longer in prison might not work with children. There was also the concept of the removal of names from the register. The problem was that a person could be convicted but not sentenced to a term in prison, in which case the name would not be entered into the register.
Mr Basset said that the name would still go to the register even if a person was sentenced to correctional supervision.
The Chairperson said that one could be given shorter sentences. The particulars would be in the register but for a short period of time. One question was whether it should even be possible to remove the particulars from the register. The Bill could possibly violate the Constitution should it not allow for the removal of the particulars after some period of time. One did not want people to interpret the recording of their particulars in the register as a second sentence. One might say that the register should contain particulars of people convicted of serious offences should it be decided that no particulars would be removed. The problem with this was that a paedophile could be convicted for a less serious offence and this would mean that his particulars would not be recorded in the register. One wanted the details of all convicted persons to be put into the register but to also provide for a removal mechanism so that it is not seen as double sentence. The non-removal of particulars would be a large invasion of their right to make a living and it was important to strike the right balance.
She referred the Committee to clause 48. The recording of particulars was not a further punishment but a further protection measure. One should compare the right to make a living to the children's right to safety. The principle was that a person who had been convicted of any sexual offence against children should not able to work with children. She agreed that the words "and whose particulars have been included in the register" should not be removed from clause 43(1).
The Chairperson said that one was not dealing with the Child Care Act which had provisions that dealt with people who abused their own children. She was concerned with the impact clause 43(1)(b) in relation to people whose particulars had been entered into the register. The provision should relate to an employment scenario. Paragraph (a) should be reworded to provide that may not "be employed to work with a child or children in any circumstances".
Mr du Preez said that there was a concern about people who had their own businesses. The Chairperson felt that such people were covered by paragraph (b). Paragraph could be amended to ensure that it adequately covered such people.
Mr L Landers (ANC) asked who determined the recovery of a State patience. Was the determination an administrative act or legal act. He asked what informed the registrar's decision other than the amount of time served. He felt that the application for the removal should go to court.
The Chairperson replied that there was a process for determining the recovery of a State patient. An application had to be made to court for such determination. The process could end up in court if there was a dispute.
She said that clause 43(2)(a) dealt with what would happen once Chapter 6 of the Bill was implemented. People who were already employed in jobs that had something to do with children would be required to disclose previous conviction for a sexual offence with a child. In future, employers would not be allowed to employ anybody who did not have a clearance certificate.
Ms Camerer said that a lot of submissions had complained about the use of legal language in this Bill. There were too many instances wherein the Bill referred to a person "contemplated" in a particular clause. She wondered if it would not be better to identify the person with sufficient clarity instead of using the word "contemplated". One could simply say that employer might not use the services of a person whose particulars had been entered into the register.
The Chairperson understood that Ms Camerer had a problem with the use of the world "contemplated". She asked the drafters if they could accommodate Ms Camerer's suggestion.
Mr du Preez replied that the drafters were thinking about calling the persons concerned "affected persons".
The Chairperson said that sub-clause (4) was a redress that employers had once they had discovered that an employee's particulars were in the register. They would be obliged to terminate any existing contract of employment with such an employee and no legal consequences would flow from such termination.
Mr Basset said that this would also apply to persons who had been in employment when this legislation comes into operation.
The Chairperson asked what happen if somebody who was in employment had disclosed that he had been convicted of a sexual offence against a child. The whole point of the mechanism was to protect children. The contract should either be terminated or the employer should ensure that the employee did not have access to children.
Mr du Preez said that one would want to use the less drastic measures first. The employee concerned could be transferred to another division where possible.
The Chairperson said that nobody would be able to employ somebody who did not have a clearance certificate. An employer who had employed a person who did not have a certificate would be liable on conviction to a fine or imprisonment. The problem would be that there was still a binding contract of employment. There should be a provision designed to deal with the contract of employment. She wondered if one could simply say that the contract was null and void ab initio. There could be problems if one was to say that the contract was void ab initio. A question that would arise would be whether the employee would be required pay the salary back. She suggested that the contract should be simply terminated.
Ms M Meruti (ANC) said that Parliament usually passed laws and some people were not aware of them.
The Chairperson said that there was a provision that obliged the Commissioner to inform inmates about the effect of this legislation. People who would be convicted after this legislation had come into effect would be informed of the effect of the legislation upon sentencing. She admitted that people who had already been convicted and served their sentences might not know about the legislation.
Mr Landers said that it was in the interest of people like school principals and heads of children's day care centres to know about this legislation.
The Chairperson said that she had been thinking about the roles of the Ministers of Education, Social Development and Health. The Minister of Justice and Constitutional Development should ensure that certain provisions of the Bill were brought to the attention of these Ministers. This issue could be dealt with by way of a resolution on the Bill.
Mr Basset said that one could require the identified role players to issue directives and that the information should be disseminated down to the schools. The Chairperson agreed.
Clause 45 Objects of register
The Chairperson said that one of the objects of the register should be to protect children.
Ms Camerer said that paragraph (b) should be reworded.
Clause 46 Contents of Register
Ms Camerer was again worried about the use of the word "contemplated" in this clause. She felt that the word was over used in the Bill.
Mr Landers asked if law enforcement agencies would have access to the Register. The register was created in order to protect children. It would make sense for the law enforcement agencies to be able to access the register when a rape had taken place against a child. This would allow the agencies to eliminate the people contained in the register as possible suspects.
The Chairperson said national Commissioner of police would regulate access to the register. This was a register of people who had been convicted of offences. The register was never intended to be an investigative tool. She reminded the Committee that there was another register kept in terms of the Children’s Act. She asked what would be the rationale for suggesting that any of the people listed in the register could have committed the offence under investigation. It would be seriously problematic to assume that they could have committed the offence simply on the basis that they had been convicted of a sexual offence against a child in the past. The police had access to previous conviction records.
The Chairperson wondered why the title of the person should not be included in the register. She also asked what happened in instances where a person had joined a church and took upon another name. Would the new name be an alias?
Mr Basset replied that the name did not change officially.
The Chairperson said that the drafters should remove reference to postal address in paragraph (b)(ii). She suggested that the paragraph could read "the last known physical address of the person and any other contact details including postal address".
Mr du Preez said that the information required in the sub-clause was related to the identity of the person. Postal address could be one of the identifying factors. He agreed to take it out.
The Chairperson said that the way the paragraph was written suggested that postal address was required. She wondered if paragraph (b)(iii) should not include prison registration numbers. She asked if it would be useful to include the prison registration number. She also asked what would happen in cases wherein a prisoner had raped a child. One could find that an allegation of rape was made but not charge was laid at all.
Mr Landers asked if there would be no trial.
The Chairperson said that her question was assuming that there was no charge laid, the person had come out of prison and the period in which such a person was not allowed to work with children had lapsed. What would happen should the person apply for removal from the register? Would the information relating to prison registration details not assist the registrar? The registrar should be able to revert to correctional services centres. The intention was to know what a person did whilst in prison.
Mr du Preez said that it would be necessary to have case numbers if prison registration numbers were required.
The Chairperson said that the Bill should also refer to the prison registration number.
Ms Camerer said that it would be appropriate to also refer to the age of victim and nature of offence in paragraph (b)(v).
Clause 47 Persons whose names must be included in Register and related matters
Mr Basset said that a question was raised if it was necessary to include particulars of persons who had been convicted of rape (not necessarily against children) and qualified for the imposition of a minimum sentence).
The Chairperson said that the clause was for the protection of children. There would problems should it be widening and include all rapes.
Mr Basset asked if register should not be limited to people who wished to enter the Republic.
The Chairperson said that reference to "former prisoner" in sub-clause (4)(b) should be deleted.
Mr Landers asked if a person who had had a sex change should notify the register of the change within 14 days. The person might still be lying on a hospital bed in pains. The Chairperson said that the most important thing was the name.
The Chairperson said that the two years sentence referred to sub-clause (7)(b) was too low. She said that it should be seven years. The sentence could negate the whole mechanism if it was too low. A person could change names and gain employment in a school.
Clause 48 Removal of particulars from Register
The Chairperson asked what was the court order referred to in sub-clause (1)(b).
Mr Basset replied that reference to court order was put for a specific reason but he could not remember the reason.
The Chairperson asked if the court order would include washing windows. The drafters would get back to the Committee on this paragraph. Clause 48(2)(b) could be interpreted in more than one way. It sounded like one was talking about more than one conviction against the same child. It should be redrafted to indicate that one was referring to more than one conviction against any child at any time.
Clause 50 Confidentiality and disclosure of information
The Chairperson said that sub-clause (2) should clearly prohibit the disclosure of information received from the register.
The meeting was adjourned.