11 Transitional arrangements

Introduction

  1. 11.1 Implementation of the Commission’s proposed changes to the sex offenders registration scheme would result in two very different schemes for two groups of people—those already on the Sex Offenders Register and those placed on the Register by a court order under the refined scheme—unless the new arrangements can be applied to those people now on the Register.
  2. 11.2 There is a need for consistency in the way sex offenders are managed under a registration scheme, regardless of the time at which they were registered. The absence of appropriate transitional arrangements would prolong the inefficiency and expense caused by the current undifferentiated approach to the selection of offenders for inclusion in the Register. Transitional arrangements are also necessary as a matter of fairness to those people who are now included in the Register so that they are treated in the same way as later offenders.
  3. 11.3 The major differences between the current scheme and the revised scheme proposed by the Commission are set out in Table 7 at the end of this chapter.
  4. 11.4 In Chapter 5, the Commission discussed the reasons for recommending that people who commit sexual offences against adults should no longer be eligible for inclusion in the Register, and for recommending a graded individual assessment scheme for use when determining whether people who have been found guilty of committing sexual offences against children should be included in the Register.
  5. 11.5 In Chapter 6, the Commission discussed the reasons for recommending shorter reporting periods and for recommending that judges and magistrates have access to a broader range of reporting conditions when making a sex offender registration order.
  6. 11.6 These proposed changes to the means of selecting people for inclusion in the Register, to the duration of the reporting obligations, and to the reporting conditions that a registered sex offender must comply with should be applied to existing registrants through a transitional process that is rigorous, efficient, transparent and fair.

Submissions and consultations

  1. 11.7 Transitional arrangements were raised in various consultations.1 Some people felt that those who are already registered should be able to seek review of the continuing need for registration,2 ideally by the court that sentenced the person for the offences that led to inclusion in the Register.3 However, the need to consider the workload of the courts was also emphasised in consultations because so many registered sex offenders are likely to seek review if this option is open to them.4 The County Court pointed out that it could potentially be ‘swamped with applications’.5
  2. 11.8 The Criminal Bar Association of Victoria suggested that another approach would be to deem all current registered sex offenders to be in the category that applied to them under the proposed revised scheme.6 However, this approach would mean that some offenders would be automatically de-registered or receive drastically reduced reporting periods without any consideration of their individual circumstances.

Commission’s conclusions and recommendations

  1. 11.9 The Commission considered a number of options when searching for an appropriate transitional process. As well as the two options mentioned above, the Commission also considered whether a determination by the Chief Commissioner of Police, reviewable by the Victorian Civil and Administrative Tribunal (VCAT), was a feasible transitional mechanism.
  2. 11.10 The option of returning to the sentencing court would be extremely time consuming and resource intensive. It would also contribute to further delays in the criminal courts. The option of deeming all registered sex offenders to be in the category that applied to them under the proposed revised scheme lacks rigour. It is a mechanistic approach to an undertaking that demands individual assessment, both in terms of the need for continued registration and of the reporting obligations that should be imposed.
  3. 11.11 The option of a transitional determination by the Chief Commissioner of Police is not supportable for three reasons. First, it is not a traditional police function to make decisions about applying preventative mechanisms to individuals convicted of particular offences. Second, there would be an appearance of a conflict of interest, and perhaps a real conflict in some instances, if the Chief Commissioner were asked to make decisions about the continued inclusion of people in a scheme that the Chief Commissioner administered. The involvement of the Chief Commissioner in decisions of this nature would also probably attract expensive judicial review litigation in some circumstances. Third, the likely cost of the process, especially when coupled with a right of review in VCAT, would not be an efficient use of public resources.

The way forward: A Sex Offenders Registration Review Panel

  1. 11.12 A further, preferred, option identified by the Commission is to establish a panel of experts to review the circumstances of each existing registered sex offender in order to determine how that person should be dealt with under the proposed new scheme. The Commission believes that this process can be rigorous, efficient, transparent and fair. The Criminal Bar Association of Victoria supported the proposal of panel review.7
  2. 11.13 The Commission proposes that the panel be comprised of a retired judge, a health professional who is experienced in treating child sex offenders, and at least one other person with experience making decisions about the management of offenders, such as a current or former member of the Adult Parole Board. A panel of this nature should bring appropriate experience to the task of making transitional decisions.
  3. 11.14 There are fair and transparent means of making the transitional process efficient. If the panel is directed to apply the rebuttable presumption that offenders should be transferred to the category that applies to them under the proposed revised scheme unless other arrangements might be more appropriate, many cases could be dealt with after considering documentary evidence and in the absence of any hearing.
  4. 11.15 This process would be fair for those offenders who would be transferred to the appropriate category under the proposed revised scheme because many would experience shorter reporting periods and none would be given longer reporting periods. It would be transparent in the sense that interested persons would know that the usual, but rebuttable, rule was that offenders would be transferred to the category that applies to them under the proposed revised scheme unless the expert panel were of the view that the offender’s circumstances justified departure from that rule.
  5. 11.16 Fairness could be maintained in those cases where the panel was of the opinion that it might be appropriate to depart from the ‘usual rule’ by giving the offender and a delegate of the Chief Commissioner of Police an opportunity to be heard before any final determination was made. The panel could then tailor suitable conditions after hearing from the offender and the Chief Commissioner, who would be representing the public interest.

Recommendations

70. The Sex Offenders Registration Act 2004 (Vic) should establish a Sex Offenders Registration Review Panel. The Panel should comprise a retired judge, a health professional with experience in the treatment and management of child sex offenders, and at least one other person with significant experience in making decisions about the management of offenders.

71. The role of the Sex Offenders Registration Review Panel should be to review all registrations under the Sex Offenders Registration Act 2004 (Vic) prior to the amendments.

 

Powers of the Sex Offenders Registration Review Panel

  1. 11.17 The primary aim of the transitional arrangements should be to ensure that the child protection benefits that result from strengthening the scheme are not lost by continuing with an unmanageably large Register that is not sufficiently focused on those offenders who pose the greatest risk of harm to children. These proposed panel reviews will remove people from the Register who do not present a risk and they will also ensure equal treatment for all registrants.
  2. 11.18 The panel must be given an appropriate range of powers when reviewing offenders who are already on the Register. The panel should be permitted to reduce the length of existing registration periods to bring them into line with the duration of orders under the three revised categories, to impose any additional conditions on a registrant that a court could impose under the proposed revised arrangements and to terminate an offender’s reporting obligations if they would have expired under the proposed revised arrangements or when the panel is of the view that no useful protective purpose is served by requiring an offender to continue to report. Those young people who are currently subjected to lengthy reporting obligations after being found guilty of ‘sexting’, or of having a ‘consensual’ sexual relationship with an underage partner, could be eligible for termination of registration by the panel.
  3. 11.19 The jurisdiction of the Sex Offenders Registration Review Panel should not extend to interstate, corresponding registered offenders. The Commission does not believe that interstate registrants should be encouraged to re-locate in order to benefit from any changes to Victoria’s legislation. Victoria should continue to require interstate offenders who re-locate to remain on the Register for the period determined by the law in the original jurisdiction.

Recommendations

72. The Sex Offenders Registration Review Panel should be permitted to terminate the registration of any person, other than an interstate or corresponding registrable offender, who was registered for an offence that is no longer a registrable offence in Victoria.

73. The Panel should be permitted to suspend the reporting obligations of any person who would be permitted to seek suspension of their reporting obligations under the new registration scheme due to physical or cognitive impairment.

74. The Sex Offenders Registration Review Panel should not be permitted to terminate an existing registration for an offence that is a Category 1 offence under the new registration scheme unless:

  1. (a) an exception would apply under the new registration scheme, or
  2. (b) the offender was a child at the time of the finding of guilt for the Category 1 offence and the Panel is satisfied that no useful protective purpose is served by the registration continuing.

75. The Sex Offenders Registration Panel should be permitted to terminate an existing registration for:

  1. (a) an offence that is a Category 2 or 3 offence under the new registration scheme, where a finding of guilt was made when the offender was an adult, or
  2. (b) an offence that is a Category 2 or 3 offence under the new registration scheme, where a finding of guilt was made when the offender was a child,

if it is satisfied that no useful protective purpose is served by the registration continuing.

 

  1. 11.20 As discussed in Chapter 6, the Commission has been unable to discover the reasons for the Sex Offenders Registration Act’s current reporting periods.8 The Commission has recommended standard reporting periods of five years and three years, with provisions for the Chief Commissioner of Police to apply for an extension of an offender’s registration order. There would be no limit on the number of times a registration order could be extended. It is desirable that initial reporting periods under the revised scheme and extension periods for offenders registered under the current scheme are the same.

Recommendation

76. The Sex Offenders Registration Review Panel should be permitted to reduce the reporting period of a registered sex offender under the existing scheme so that it corresponds with the reporting period accorded to the same offence under the new provisions.

 

  1. 11.21 The Commission considers it desirable that the panel have the ability to impose the same additional conditions on an existing registered sex offender’s registration as a sentencing court would be able to impose when making a registration order under the refined scheme. The additional conditions, discussed in Chapter 6, are:
  • A requirement to report in person more frequently than as prescribed in the Act.
  • Where the court is satisfied that the person has a cognitive disability or mental illness, a requirement that the person must be accompanied by an independent third person, assigned by the Office of the Public Advocate, when making a report in person.
  • A requirement to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community.
  • Authorising the presence of a delegate of the Secretary of the Department of Human Services in her capacity as a protective intervener when a person makes a child contact report to a delegate of the Chief Commissioner of Police.
  1. 11.22 The panel should have the flexibility to add some or all of these conditions at the time of review, where appropriate.

Recommendation

77. The Sex Offenders Registration Review Panel should be permitted to impose any of the conditions provided for in the new registration scheme if it is satisfied that this would reduce the risk of the registered sex offender committing a Category 1, 2 or 3 offence during the period for which the order would apply.

 

Procedures of the Sex Offenders Registration Review Panel

  1. 11.23 It will be necessary for the panel to review all registered sex offenders who currently live in the community, as well as those who are presently in custody and whose reporting obligations will commence when they are released. As at 1 December 2011, there were 3475 people in these two categories.
  2. 11.24 It is important that the panel process is both fair and efficient. People have a common law right to a fair hearing when a court, tribunal or public official has the power to make a decision that affects their ‘rights, interests and legitimate expectations’.9 It is possible to remove this right by legislation in particular circumstances,10 as occurs, for example, in relation to determinations by the Adult Parole Board.11
  3. 11.25 It would be an elaborate and expensive process for the panel to conduct hearings for the 3475 people who should be dealt with under any transitional arrangements. As many of these people are likely to have the length of their reporting period reduced and experience no change to their reporting conditions, any decision of the panel would not adversely affect their rights, interests and legitimate expectations. In these circumstances, it is appropriate to permit the panel to make a transitional determination that is favourable to the registrant without conducting a formal hearing. The panel should be permitted to make determinations in these cases after considering appropriate documentary evidence.
  4. 11.26 When, after considering documentary evidence, the panel makes a preliminary determination that it might not reduce a registered sex offender’s reporting period so that it corresponds with the proposed new arrangements, or that additional reporting conditions might be warranted, the offender should have the right to appear before it. There should be a right to legal representation in these circumstances.
  5. 11.27 The Chief Commissioner of Police should have a right to be heard by the panel in such instances in order to represent the public interest.

Recommendation

78. The Sex Offenders Registration Review Panel should be permitted to make decisions favourable to the registered sex offender without a hearing, but in any other circumstances the offender should have a right to be heard by the Panel before any decision that might be adverse to that person’s interests is made. The Chief Commissioner of Police should have a right to be heard by the Panel in such instances in order to represent the public interest.

 

  1. 11.28 The Commission believes that it should be possible to appeal from any decision of the panel to the court that found the person guilty of the offences that led to inclusion in the Sex Offenders Register. This step will bring transparency and rigour to the panel review process.

Recommendation

79. The Chief Commissioner of Police and the registered sex offender should have the right to review any decision of the Panel in the court in which the offender was found guilty of the offences that led to inclusion in the Sex Offenders Register.

 

Table 7—Proposed changes to the registration scheme that will affect existing registered sex offenders

Current scheme

Proposed revised scheme

Reporting obligations for 8 years, 15 years or life for adult offenders and 4 years or 7.5 years for offenders who are under the age of 18. No provision for extensions.

Registration for 5 years or 3 years, with no limit to the number of extensions that may be sought by the Chief Commissioner of Police.

Mandatory registration in most instances.

Structured individual assessment of each case, so that the higher the category of the offence, the greater the expectation that the court will make a registration order.

Standard reporting conditions apply. No conditions devised for particular offenders such as behavioural support.

Individualised conditions such as behavioural support may be ordered by the court in addition to the standard reporting conditions.

Applies to sexual offences committed against or involving adults and children, and bestiality offences.

Applies only to sexual offences committed against or involving children.

 

Footnotes

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