August 14, 2012

Plans for Closure of Criminals’ Name-Change Loophole

Under proposed amendments to the Corrective Services Act 2006 (Qld) announced by the Hon Jack Dempsey MP, Minister for Police, a loophole regarding convicted criminals changing their names will no longer be available in Queensland.

Laws currently exist which require prisoners and certain convicted offenders to obtain permission to change their name from either the chief executive of Corrective Services or the police commissioner, depending on the situation.  The Courier-Mail recently reported that there is presently no law preventing such persons from “acquiring a new identity” as there is no obligation on the registrar of Births, Deaths and Marriages (BDM) to inform the police of any changes in name for such persons. 

The Courier-Mail reported further that:

36 convicted offenders, including several murderers, rapists, fraudsters and a child abuser on parole or probation, had successfully applied to the Community Safety Department to change their names through the Registry of Births, Deaths and Marriages (BDM) since 2008, but police were not notified.

Mr Dempsey has indicated that he intends to “close the loophole and ensure police were informed of any name changes”.  He also stated that he has requested his department “to make changes to the Corrective Services Act to stop any prisoner in custody, on probation or parole changing their name”.

Current Legislative Framework

The current legislative framework in Queensland regulating the ability of certain persons, such as (1) prisoners, (2) released dangerous sexual offenders, and (3) released child sex offenders, to change their names is summarised below.

Prisoners
The Corrective Services Act 2006 (Qld) requires prisoners intending to change their names to obtain the written permission of the chief executive of Corrective Services before applying to change their name under the Births, Deaths and Marriages Registration Act 2003 (Qld) (s 27).  The maximum penalty for this offence is a fine of $2000 or imprisonment for 6 months. 

When deciding whether to grant permission, the chief executive must consider whether the proposed name change:
  • poses a threat to the security of a corrective services facility;
  • affects the safety of any person;
  • could be used to further an unlawful activity; or
  • could be considered offensive to a victim of a crime or an immediate family member of a deceased victim of a crime (s27(2)). 
If registration of the name change takes place without permission being obtained from the chief executive, then the chief executive may apply to the registrar under the Births, Deaths and Marriages Registration Act 2003 (Qld) for the registration to be cancelled (s 27(3) & (4)).

Released Dangerous Sexual Offenders
The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was amended in 2010 to require certain dangerous sexual offenders, who have been released into the community under a supervision order or interim supervision order, to obtain the written permission of the chief executive of Corrective Services before applying to change their name under the Births, Deaths and Marriages Registration Act 2003 (Qld) (ss 3, 18 & 43AB(1)).  The maximum penalty for this offence is a fine of $2000 or imprisonment for 6 months.  The relevant considerations in granting permission are:
  • the safety of the person and other persons;
  • the person’s rehabilitation or care or treatment;
  • whether the proposed name change could be used to further an unlawful activity or purpose; and
  • whether the proposed name change could be considered offensive to a victim of a crime or an immediate family member of a deceased victim of a crime (s 43AB(2)).
If registration of the name change takes place without permission being obtained from the chief executive, then the chief executive may apply to the registrar under the Births, Deaths and Marriages Registration Act 2003 (Qld) for the registration to be cancelled (s 43AB(3) & (4)).

Released Child Sex Offenders
As part of national legislation aimed at protecting children, the Child Protection (Offender Reporting) Act 2004 (Qld) provides for the registration of offenders who commit sexual or certain other serious offences against children (known as reportable offenders) to keep police informed, for a period of time after they have been released from prison into the community, of their whereabouts and other personal details, including  their name, together with any other name by which they are, or have previously been, known, and any subsequent change of name (ss 3, 16, 19 and the Explanatory Notes to the Child Protection (Offender Reporting) Act 2004 (Qld), pp 1 and 4). 

The Child Protection (Offender Reporting) Act 2004 (Qld) supports the operation of the Australian National Child Offender Register (ANCOR) which is maintained by police and comprises the details of all reportable offenders.

The scheme introduced by the Child Protection (Offender Reporting) Act 2004 (Qld) was akin to the then existing scheme in section 19 of the Criminal Law Amendment Act 1945 (Qld) which was transferred to the 2004 Act (see s 23 of the Criminal Law Amendment Act 1945 (Qld) and Explanatory Notes to the Child Protection (Offender Reporting) Act 2004 (Qld), p 2).

Under 2011 amendments to the Child Protection (Offender Reporting) Act 2004 (Qld), a reportable offender must obtain the police commissioner’s written permission before changing, or applying to change, the offender’s name under the relevant law.  It is an offence not to do so, with a maximum penalty of a fine of $2000 or imprisonment for 6 months (s 74A(1) and (2)).  The relevant considerations in granting such permission are:
  • the safety of the reportable offender and other persons;
  • the reportable offender’s rehabilitation or care or treatment;
  • whether the proposed name change could be used to further an unlawful activity or purpose; and
  • whether the proposed name change could be considered offensive to a victim of a crime or an immediate family
  • member of a deceased victim of a crime (s 74A(3)).

If registration of the name change takes place without permission being given by the police commissioner, then the police commissioner may apply to the registrar under the Births, Deaths and Marriages Registration Act 2003 (Qld) for the registration to be cancelled (s 74A(4) & (5)). 

Note: Under s 5 of the Penalties and Sentences Act 1992 (Qld), a penalty unit is currently $100.  The Penalties and Sentences and Other Legislation Amendment Bill 2012 (Qld), introduced into the Queensland Parliament on 11 July 2012, proposed to increase the value of a penalty unit to $110.  The Bill passed on 1 August 2012 and the relevant increase takes effect 7 days after assent.  Click here to follow the Bill’s status.

Proposed Changes in Queensland

The current legislative framework in Queensland relies on prisoners or released prisoners, who are classified as either dangerous sexual offenders or child sex offenders, obtaining permission from either the chief executive of Corrective Services or the police commissioner, depending on the applicable law, prior to applying for their name change to be registered.  Presently, the registrar of the BDM has no way of knowing whether the person applying for a change of name is required to obtain such a prior third-party approval or not.  The onus is on the prisoners or certain released prisoners to undertake the correct procedural requirements.

It is anticipated that the proposed changes to the Corrective Services Act 2006 (Qld), foreshadowed by Mr Dempsey, will require that an alert list of the names of prisoners and certain released prisoners be sent to the registrar of BDM and that this exchange of information will assist to ensure that any prisoners in custody or on parole will not be permitted to change their name by BDM without prior approval from the commissioner of Corrective Services or the police commissioner. 

It is likely that many of the proposed changes to Queensland’s laws will be similar to recent changes introduced in NSW (see discussion below).

Community Comment on Proposed Amendments
 
Queensland Police Union President, Ian Leavers: “I applaud Jack Dempsey and the LNP’s decisive move in ordering the Corrective Services department to abandon Labor’s disgraceful laws that guaranteed criminals could become anonymous when they were released” (Courier Mail, 1 June 2012).

Queensland Council of Civil Liberties Vice-President, Terry O’Gorman:  “[I]n the United Kingdom, studies had found if people with a criminal history couldn’t get a job, they were more likely to re-offend. … A person wanting to rehabilitate may often need to change their name simply because their name is so notorious that they cannot get on with their life. A case in point would be (convicted pedophile) Dennis Ferguson".  However, Mr O’Gorman agreed police should still be told if people with a criminal history changed their names (Courier Mail, 31 May 2012).

Bravehearts founder, Hetty Johnston: “[A]nyone convicted of crimes against children should be prohibited from changing their name.  ‘Whatever reason is not a good enough reason because it leaves the community at risk’" (Courier Mail, 31 May 2012).


Proposed National Approach & Situation in NSW

On 17 November 2011, the Hon Greg Smith SC MP, NSW Attorney General and Minister for Justice, announced in a media release titled Crackdown on Criminals Changing Names that:
  • the NSW Government was leading the way in a national crackdown on criminals changing their names to avoid detection, which will include an alert list for high-risk offenders;
  • he hoped other states and territories would agree to a 10-point plan developed by NSW when they met at the next Standing Council on Law and Justice meeting; and
  • under the strategy:
            -        all serious sex offenders would be required to obtain approval before changing their name; 
-        police would be asked to provide an alert list for high-risk individuals to BDM; 
-        prisoners and parolees would have to obtain approval and their supervising authorities would notify BDM of the change; and 
-        people would only be allowed to change their name three times in a lifetime.

At the 18 November 2011 meeting of the Standing Council on Law and Justice (SCLJ), the Ministers agreed to consider implementing a best-practice approach to the change of name process in order to minimise abuse of the system.  The Ministers also agreed to take this project off the SCLJ agenda for future meetings (SCLJ Communiqué, p 2).

Then, in March 2012, NSW enacted the Births, Deaths and Marriages Registration Amendment (Change of Name) Act 2012 (NSW) which provides, among other things, that:
  • “restricted persons” (including inmates of correctional centres, person on parole, persons that are subject to certain supervision orders etc.) may not make an application to change their name unless the supervising authority has approved the change of name;
  • the registrar of BDM may not register the change of name of a restricted person unless that approval has been obtained;
  • the registrar of BDM must not, during a specified period, register the name of a person who was a serious offender unless the approval of the commissioner of Corrective Services and the commissioner of police has been obtained; and
  • supervising authorities and the commissioner of Corrective Services must provide to the registrar of BDM information on restricted persons and former serious offenders (referred to as an “alert list” in the media release cited above) (see Explanatory Notes, pp 1 & 3).
 Key Documents
Ministerial Media Statements
Prior Queensland Parliamentary Library Publications
Selected newspaper reports
Kelli Longworth
General Distribution Research Team, Research and Information Service
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