Home Affairs Minister Carm Mifsud Bonnici told Parliament on Tuesday that while there were certain disagreements on the discretion given to the judiciary on who to include in the register of those harming minors, the courts should exercise discretion since cases differed from one another.

Winding up the debate in second reading of the Protection of Minors Bill, Dr Mifsud Bonnici said this provision was inserted to avoid cases where there was a threat to the minor while the offender did not commit an act under the schedule. The minister said that the court had already exercised discretion in fining offenders.

Opposition spokesman on justice, Josè Herrera said that the Bill aimed to protect minors, where a register would record persons who had committed related offences. Those who were the most vulnerable needed to be protected because, admittedly, offences of this type had increased.

Since the penal certificate was secret, employers could not know whether the person to be employed had committed any similar offence. Moreover the penal certificate was different from the conduct certificate.

Organisations providing child-related services would be obliged to require the penal certificate before employing an individual. Moreover, they would be subject to fines if they failed to have such a certificate.

He argued that one should distinguish between someone who had failed to require the penal certificate and another who intentionally engaged a particular individual. Fines should reflect this distinction.

Dr Herrera suggested the Minister ought to insert an amendment whereby it would oblige those who had requested and received this data to sign a declaration of confidentiality.

Dr Herrera argued that in giving discretion to the judiciary to include a person in the registry, one could be playing with fire with regard to its constitutionality as a person would have been punished for an offence not contemplated in the Bill.

Carmelo Abela (PL) said one should not look at this Bill only from the legal aspect. The Bill was a preventive one. Instead of a court register, one could have considered that the register be left in the custody of the Commissioner for Children.

There were unnecessary legal complications for people making use of the proposed legislation. It applied to every organisation and activity where minors were present. These included the Church, schools, NGOs, and sports organisations, many of which were managed by volunteers. Procedures on how the law would be applied was to be kept simple and with no extra expense.

He agreed with the use of discretion, but the register had to be easily accessible. He asked whether the register would be divided under different categories according to offences. He asked whether it was possible that the register include the names of people who were convicted of such offences before the law would come into force.

There were social consequences emanating from the Bill and this should be tackled. The Bill gave wide discretionary powers to the Courts on who should be registered in the offenders’ register. Parliament had to legislate on clear regulations which the Court could follow.

Court sentences were available on the court website. Did this mean that anyone could see that an offender has been put on the offenders’ register?

Anġlu Farrugia (PL) called for vigilance because one could abuse on how to use the register. Morally it gave MPs the satisfaction of contributing towards the control of immorality in the country.

Discretionary powers had to be used fairly and with responsibility according to clear guidelines. Discretion should be used by judges conscientiously. It should be used only for certain offences such as sex and drugs. They should not be used for soft crimes.

Procedures had to be expedient in cases where employers had to make a request to the Court for information.

He said the register could include a substantial number of names.

He appealed to people who suffered sexual abuse to report to the authorities concerned if they had not done so yet. The Bill made it clear that offenders convicted abroad would also be included in the Malta register.

Winding up the debate, Dr Mifsud Bonnici said a person would be given the opportunity to file a plea in court to be removed from the offenders’ register if he proved that he had changed.

He disagreed with José Herrera and argued that one should not introduce the intentional element in this scenario. One should not distinguish between institutions that failed to require the penal certificate and others that engaged a particular individual intentionally. Ultimately, both were obliged to protect children within their institutions.

Replying to Mr Abela, Dr Mifsud Bonnici said that he was ready to insert the declaration of confidentiality, which would be binding on individuals who requested relevant information.

He assured Dr Herrera that when a new schedule was introduced in the Act, it would not apply retroactively.

The Attorney General would serve as a calming effect, therefore, he might argue that an individual was not entitled to request such information.

The Bill was unanimously approved in second reading.