10 Accountability and review

Introduction

  1. 10.1 The Sex Offenders Registration Act 2004 (Vic) established a new means of responding to a profound social problem—child sexual abuse. Commenting on the Act soon after it commenced, the Minister for Police and Emergency Services observed that it was ‘legislation which to some extent takes us into uncharted territory’. He added that ‘it is always difficult to anticipate all the different possibilities’.1
  2. 10.2 The Victorian Parliament had no Australian research to call on when the scheme was devised in 2004. It now appears to have outgrown initial expectations in size and to have an evolving purpose. It is based on an unproven—and probably unprovable—assumption that people convicted of sexually abusing children will be less likely to re-offend if they are required to provide reports to the police about their personal details, their movements and some of their interactions with children.
  3. 10.3 The Sex Offenders Registration Act has been amended on a number of occasions since 2004. It has also been complemented (and to some extent overtaken) by other protective schemes that target particular problem areas: high risk offenders and those who gain unsupervised access to children via their work or community activities. Seven years after the commencement of the Act, there is still no published Australian research about the effect of sex offender registration schemes on offender behaviour.
  4. 10.4 This report, and the Ombudsman’s February 2011 report,2 have permitted the Parliament to receive some information about the operation and impact of the scheme. Such opportunities for review are not built into the Sex Offenders Registration Act. The Director, Police Integrity has had a limited role in monitoring the management of information in the Sex Offenders Register, but the findings are not public. There is no provision for a general review of the effectiveness of the registration scheme.
  5. 10.5 This chapter discusses the existing mechanism for monitoring the administration of the Act, the need for regular independent statutory reviews of the scheme and the desirability of longitudinal research into the effects of registration.

The role of the Director, Police Integrity

  1. 10.6 The Sex Offenders Registration Act provides for very limited scrutiny of the registration scheme. One of the statutory purposes of the Act is to empower the Director, Police Integrity to monitor compliance with Part 4.3
  2. 10.7 Part 4 of the Act requires the Chief Commissioner of Police to establish and maintain the Sex Offenders Register and control access to the information it contains. It also enables registered sex offenders to seek a copy of the information in the Register that they have provided in the course of meeting their reporting obligations, and make corrections if necessary.
  3. 10.8 The role of the Director, Police Integrity has been to ensure that the Chief Commissioner meets the requirements in Part 4 when managing the information in the Sex Offenders Register. In practice, the Office of Police Integrity has conducted one compliance inspection each year.4
  4. 10.9 There is no independent monitoring of police compliance with the remainder of the Act. Most notably, the Director, Police Integrity has no power to monitor compliance with Part 3, which regulates the collection of information. As a result, there has been no external scrutiny of compliance with the provisions concerning the manner of reporting, including those that grant the registered offender the right to privacy and support when making a report5 and empower the police to obtain fingerprints, fingerscans and photographs.6 Nor has the Office of Police Integrity monitored notification to registered offenders of their obligations,7 the calculation of reporting periods8 or the destruction of material when a reporting period ends.9
  5. 10.10 The Chief Commissioner may monitor these activities internally, and complaints about the actions or behaviour of police members can be made to the Victoria Police Ethical Standards Department. Any complaints about conduct that breaches an information privacy principle in the Information Privacy Act 2000 (Vic) may be referred to the Privacy Commissioner to investigate and conciliate.10 However, by confining scrutiny by the Office of Police Integrity to Part 4, the Act fails to provide for ongoing independent monitoring of the way in which the reporting obligations under the registration scheme are administered.
  6. 10.11 The Commission believes that it would advance the interests of all people affected by the operations of the Sex Offenders Registration Act for Part 3 to be regularly monitored.

Recommendation

64. The compliance monitoring currently undertaken by the Director, Police Integrity should be extended to include compliance with Part 3 of the Sex Offenders Registration Act 2004 (Vic).

 

 

Transfer of the functions of the Director, Police Integrity

  1. 10.12 A bill currently before Parliament will, if passed, repeal the Police Integrity Act 2008 (Vic) and in doing so transfer the functions of the Director, Police Integrity under the Sex Offenders Registration Act to the new Independent Broad-based Anti-corruption Commission.11 The new commission will have the power to investigate corruption in the police force, the judiciary and the public sector generally.12
  2. 10.13 The new commission will have broader focus and greater responsibilities to investigate corrupt conduct than the Director, Police Integrity.13 The ongoing function of monitoring compliance with provisions of the sex offenders registration scheme may be peripheral to the new commission’s core business. If so, the function may be better transferred to the Ombudsman when the Office of Police Integrity ceases to exist.
  3. 10.14 The Ombudsman has the independence and skills to assess the performance of Victoria Police in administering the registration scheme, and the function would align with his other responsibilities. The office is responsible for enhancing the accountability of government agencies to the public and is already required to monitor compliance by police with Division 3 of Part 4 of the Melbourne City Link Act 1995 (Vic),14 and by approved general inspectors with Part 2A of the Prevention of Cruelty to Animals Act 1986 (Vic).15 The Ombudsman initially performed the role of Director, Police Integrity—including monitoring compliance with Part 4 of the Sex Offenders Registration Act—until the Office of Police Integrity was re-established as an independent body under the Police Integrity Act.

Publication of compliance reports

  1. 10.15 The Director, Police Integrity may give the Minister for Police and Emergency Services a written report about compliance with Part 4 of the Act at any time.16 The reports do not have to be made public and none have been released.
  2. 10.16 In 2005, the former Director, Police Integrity reported to the Minister and the Chief Commissioner on ‘a number of problems with the Register in its establishment phase’. The Minister subsequently announced that he had appointed a former Chief Commissioner of Police, Mr Neil Comrie, to review the requirements and arrangements for the establishment of the Register. The Comrie report has not been publicly released.17
  3. 10.17 The Commission considers that the damage to public confidence in the administration of the registration scheme following the Ombudsman’s 2011 report is likely to be improved by introducing more transparent monitoring processes. The Deputy Privacy Commissioner has stated that he would strongly support a requirement that compliance reports be tabled in Parliament.18
  4. 10.18 In addition, although the compliance inspections conducted by the Office of Police Integrity have not always identified major problems,19 the recommended expansion of the monitoring role will increase the significance of the reports that are prepared. Publication of the reports will strengthen the effect of compliance monitoring as an accountability mechanism and provide an early warning of systemic issues that may require a broader response.

Recommendation

65. Compliance monitoring reports to the Minister by the Director, Police Integrity (or any agency to which the compliance monitoring function is transferred) should be required to be tabled in Parliament.

 

 

Reports about the operation of the scheme

  1. 10.19 To ensure that relevant and useful information is collected and is available for the purposes of external monitoring and evaluation, there is merit in providing for regular reports of basic core data to Parliament. Not only would they inform community understanding of the nature and risks of sexual offending, the reports could encourage further academic and professional studies that would help to redress the paucity of research into the effectiveness of sex offender registration schemes in Australia.
  2. 10.20 Accountability mechanisms rely on timely and accurate data. The poorer the amount and quality of data about the operation of the scheme, the harder it is to determine whether it is operating in compliance with the legislation. Similarly, a lack of reliable data on which to base the evaluation hampers the task of determining whether the legislation is achieving its purpose.
  3. 10.21 In preparing this report, the Commission encountered difficulty in gathering information about the operation of the registration scheme. Some information had not been collected and some was too difficult to retrieve for technical reasons associated with the manner in which the Register has been maintained.
  4. 10.22 The Ombudsman’s report prompted all agencies involved in the management of registered sex offenders to review the way they handle information about these people. New information management systems planned or recently introduced by Victoria Police will increase their capacity to collect and analyse details about registered sex offenders in future.
  5. 10.23 In the Northern Territory, the Commissioner of Police must report to the Minister for Police, Fire and Emergency Services, within three months of the end of each financial year, data about the Northern Territory registration scheme as specified in the Child Protection (Offender Reporting and Registration) Act 2004 (NT). The data includes details of the number of registered offenders, how many of them committed further registrable offences during the year, the number of prohibition orders issued, the number of prosecutions for offences under the relevant legislation and other information about the operation of the scheme.20 The Minister must table the report within three sitting days of receiving it.21 A copy of the most recent report, for the 2010–11 financial year, is at Appendix G.
  6. 10.24 A similar reporting obligation could be placed on the Chief Commissioner of Victoria Police. The details of the required data should largely be determined by the Minister, but essential baseline information could be prescribed in the Act.

Recommendations

66. The Chief Commissioner of Police should be required to report to the Minister for Police data about the operation of the registration scheme, current as at the end of the financial year, within three months of the end of the financial year. The Minister should be required to table the report within 14 days of receiving it.

67. The data in the Chief Commissioner’s report to the Minister for Police on the operation of the scheme should include information about:

  1. (a) the number of registered offenders in total, and those added during the past financial year, by category of offence and length of reporting period
  2. (b) the number of prosecutions during the financial year for offences under the Act, by offence
  3. (c) the number of registered offenders who were sentenced for a subsequent Category 1, 2 or 3 offence during the financial year
  4. (d) the number of special conditions on registration orders; extensions of registration orders; and child protection prohibition orders made during the year
  5. (e) any other statistical information about the operation of the scheme as determined by the Minister.

 

Independent review of the operation and effectiveness of the Act

  1. 10.25 The Sex Offenders Registration Act established, for the first time in Victoria, a scheme that imposed obligations on offenders after they had completed their sentences. It extended the reach of the law beyond punishing offenders to managing the risk that those who have completed their sentences for certain crimes may re-offend. It gave Victoria Police a new responsibility to monitor members of the community in the absence of any complaint or evidence that they have committed an offence.
  2. 10.26 The effectiveness of the scheme is uncertain, and the police and child protection resources it requires will continue to increase markedly if the scheme remains in its current form. However, there is no statutory requirement to review the operation and impact of the legislation and report to the Minister and Parliament. The Commission considers that the protection of our children is too important not to periodically review the performance of the scheme.
  3. 10.27 The role currently performed by the Director, Police Integrity is not sufficient for this purpose. Even if expanded to include ongoing monitoring of compliance with Part 3 of the Act, as the Commission has recommended, the role would not extend to reviewing the effectiveness of the registration scheme.
  4. 10.28 Although Victoria Police is responsible for collecting and compiling information about registered sex offenders, the purposes of the registration scheme can be achieved only by the effective collaboration of Victoria Police, the Department of Justice and the Department of Human Services. Any assessment of whether the scheme is effective needs to take into account the impact of the related legislation that those agencies administer and, in particular, the Working with Children Act 2005 (Vic) and the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The interaction with the Children, Youth and Families Act 2005 (Vic) should also be considered.
  5. 10.29 In the Commission’s view, the ongoing compliance monitoring currently undertaken by the Director, Police Integrity should be augmented by periodic external review of the effectiveness of the legislation. The review would examine whether the scheme is achieving its purpose in the context of other protective legislation and child protection programs, and could extend to identifying any unintended consequences for the justice system, such as contributing to delays in court proceedings.
  6. 10.30 Statutory reviews have been required in other jurisdictions. In New South Wales, the responsible Minister was required to review the Child Protection (Offenders Registration) Act 2000 (NSW) five years after the date of assent and ascertain whether ‘the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives’.22 When the Act was amended in 2004, a provision was inserted requiring the Minister to review the provisions about child protection orders within two years of the provisions commencing, and table the report in Parliament.23 A requirement for a further review of the Act and its policy objectives within five years was inserted by amendments in 2007.24
  7. 10.31 A review of the ‘operation and effectiveness’ of the Community Protection (Offender Reporting) Act 2004 (WA) by the responsible Minister in Western Australia is currently underway. The Act requires the review to be conducted within five years of commencement.25 A similar obligation applies to the Minister responsible for the Tasmanian registration scheme.26 In all cases, the legislation requires a report of the review to be tabled in Parliament.
  8. 10.32 These are examples of some of the reforms that could usefully be adopted in Victoria. They provide for an assessment of whether the legislation is achieving its purpose and ensure accountability through the Minister to Parliament. However, the legislation does not provide for periodic reviews and does not require external or independent scrutiny.
  9. 10.33 Periodic reviews of the Victorian legislation would enable the Parliament to monitor its effectiveness in a changing environment. For example, the impact of other preventative legislation may require adjustments to the way in which the registration scheme is targeted. New methods of sex offender management may suggest changes to reporting obligations. Importantly, regular reviews would build on the data that can be used to measure the effectiveness of the legislation.
  10. 10.34 The practice in other jurisdictions to conduct a review of the relevant legislation after five years of operation allows for a reasonable period of time for systems to be introduced and for a useful amount of data to be collected. The Commission considers that a system of rolling five-year reviews should be introduced in Victoria. However, to enable the impact of introducing five-year reporting periods for registered sex offenders to be assessed, the first review should be conducted seven years after the proposed reforms to the registration scheme come into effect.
  11. 10.35 The reviews should be conducted by independent experts with the necessary skills and resources to assess the operation and effect of the legislation. As the success of the registration scheme depends on the combined efforts of the courts, the police and government agencies, the reviewers will need to understand how they interact as well as how they are separately affected. They will also need to take into account the views of practitioners, academics, members of the community who are affected by the scheme and others with direct experience of its operations.
  12. 10.36 The report should be made to the responsible Minister, who should then table it in Parliament.

Recommendation

68. The Minister for Police should cause an independent review of the operation and effectiveness of the Sex Offenders Registration Act 2004 (Vic) to be conducted as soon as practicable seven years after the proposed revised scheme commences, and every five years thereafter. The report should be tabled in Parliament.

 

 

National longitudinal research project

  1. 10.37 The management of sex offenders is a complex and dynamic field of public policy. It is difficult to determine the impact of registration on offender behaviour, as distinct from the effect of other factors such as treatment and rehabilitation programs, sentencing practices and demographic change. Moreover, there has been very little research into this area. Further research could contribute to an understanding of the extent to which sex offender registration schemes discourage re-offending.
  2. 10.38 Ideally, the research should be conducted over a period of time that allows for the behaviour of a sample of offenders to be followed and trends to be identified. It should be objective, authoritative and conducted by independent researchers.
  3. 10.39 As all Australian states and territories have registration schemes, and encounter similar challenges and public expectations, the research could inform legal policy in all jurisdictions and reinforce national initiatives. The Commission considers that there would be benefits to state and territory governments in shared learning and cost efficiencies if the research were conducted as a national project under the auspices of police ministers.

Recommendation

69. The Minister for Police should propose to the Ministerial Council on Policing and Emergency Management—Police that an appropriate body or individual researchers be engaged to conduct longitudinal research into the effect of Australia’s sex offender registration schemes on recidivism.

 

 

 

Footnotes

Main menu

Back to top