3 The operation of the registration scheme

 

Introduction

  1. 3.1 The Sex Offenders Registration Act 2004 (Vic) requires sex offenders to report a range of information to the police for specified periods. The information encompasses various personal details, their travel out of the state and the country, and many of their interactions with children. The Chief Commissioner is required to store this information in a Register and to comply with various restrictions about its use and disclosure.
  2. 3.2 The Sex Offenders Registration Act is exceedingly complex, both in terms of the scheme it creates and in its drafting. The Act is dense, unclear in places, highly prescriptive about some matters and vague about others, and it is obscure or silent about fundamental elements of the scheme.1 The Commission encountered numerous examples of the registration scheme being misunderstood by police officers, legal practitioners, judicial officers and government officials who have worked with the legislation for some time.
  3. 3.3 Four key features of the scheme define its scope and determine its operation:
  • Offenders who are sentenced for certain sexual offences, known as registrable offences, can be required to comply with the reporting obligations set out in the Act.
  • Most of the people on the Register have been included as an automatic consequence of being convicted of particular offences; only a small number have been included by a court exercising the power given to it to make a registration order in some instances.
  • All registered sex offenders living in the community are required to comply with reporting obligations for a period of time that is determined by the sexual offences for which they have been sentenced.
  • The information they report and other information about them is held in a Register maintained by Victoria Police.
  1. 3.4 These four features are described below. In Chapters 5 and 6, they are examined in more detail and recommendations for reform made.

Registrable offences

  1. 3.5 Registrable offences are those that result in the offender becoming a registered sex offender. They are divided into four classes and listed in schedules 1 to 4 respectively of the Sex Offenders Registration Act.
  2. 3.6 The offences are classed as follows:
  • Class 1—serious crimes, generally involving penetrative sex with a child and including Commonwealth as well as Victorian offences2
  • Class 2—a broad range of sexual offences involving children, including indecent assault of a child and possession of child pornography, and bestiality, and including Commonwealth as well as Victorian offences3
  • Class 3—similar to the Class 1 offences but committed by a ‘serious sexual offender’4 against an adult rather than a child and confined to Victorian offences5
  • Class 4—similar to the Class 2 offences but committed by a ‘serious sexual offender’ against an adult rather than a child and confined to Victorian offences.6
  1. 3.7 The schedules to the Act are out of date and difficult to follow.7 Updated and simplified lists are contained in Appendix C of this report.
  2. 3.8 The class of the offence determines the period for which the offender is required to report under the Act. For adult offenders, it also determines whether they are included in the Register automatically or by order of the court.
  3. 3.9 The Commission understands that detailed information about which offences led those who are currently on the Register to be registered, and how many offenders are on the Register for each offence, is not available.

Inclusion in the Register

  1. 3.10 Anyone sentenced for committing a sexual offence listed in a schedule to the Sex Offenders Registration Act may be included in the Register. Whether registration is mandatory depends on the age of the victim and the age of the offender.
  2. 3.11 Adults who commit a child sexual offence (a Class 1 or Class 2 offence) are automatically registered as an administrative consequence of being sentenced for the offence. The Commission refers to this as ‘statutory inclusion’.
  3. 3.12 Adults who commit an adult sexual offence (a Class 3 or Class 4 offence), and children who commit any registrable offence, are registered only if a court makes a registration order. The Commission refers to this as ‘discretionary inclusion’.
  4. 3.13 In addition, any person found guilty of any offence may be ordered to comply with the reporting obligations set out in the Act if the sentencing court is satisfied beyond reasonable doubt that the offender poses a risk to the sexual safety of any person or the community.8
  5. 3.14 Table 1 summarises the statutory and discretionary inclusion of offenders in the Register.
  6. 3.15 Information on how many offenders have been registered by category of offence is not available.9

Table 1—Statutory and discretionary inclusion in the Register

Offence

Adult Offender

Young Offender

Class 1—Offence against a child

Statutory

Discretionary

Class 2—Offence against a child

Statutory

Discretionary

Class 3—Offence against an adult by serious sex offender

Discretionary

Discretionary

Class 4—Offence against an adult by serious sex offender

Discretionary

Discretionary

Other

Discretionary

Discretionary

 

Statutory inclusion

  1. 3.16 All adults sentenced for a Class 1 or Class 2 offence since 1 October 2004, or serving particular sentences for a Class 1 or Class 2 offence immediately before that date,10 are on the Register. The only exceptions are those who are in a witness protection program of the Commonwealth or of another state or territory.11
  2. 3.17 Statutory inclusion occurs automatically once the adult offender has been sentenced for a Class 1 or Class 2 offence. There is no need for a court to make a registration order and, in fact, a court has no power to do so because of the automatic operation of the statutory scheme. However, the court must not have regard to any consequences under the Sex Offenders Registration Act when sentencing the offender.12
  3. 3.18 There is marked confusion about the statutory inclusion component of the registration scheme. Some judicial officers make registration orders in these circumstances because they believe the Act requires them to do so.13 In other cases, the parties have assumed that an offender has avoided inclusion in the Register when the judicial officer has not made a formal registration order.14
  4. 3.19 As at I December 2011, approximately 97 per cent of those on the Sex Offenders Register had been automatically included following sentencing for Class 1 and Class 2 offences. Relying on statutory inclusion as the primary means of selecting offenders for inclusion in the Register has had a number of consequences that have weakened the effectiveness of registration as a law enforcement tool and as a source of information for child protection workers. These consequences, and recommended reforms to strengthen the scheme, are discussed in Chapter 5.

Discretionary inclusion

  1. 3.20 Adult offenders may be included in the Sex Offenders Register at the discretion of the court if found guilty of any offence (including a Class 3 or Class 4 offence) other than a Class 1 or Class 2 offence.15
  2. 3.21 Offenders who commit a Class 1 or Class 2 offence, or any other offence (including a Class 3 or Class 4 offence) as a child may also be included in the Register at the court’s discretion.16 However, the court cannot make a registration order if it—
  • without conviction, dismisses the charge and orders the giving of an undertaking, as permitted by sections 360(1)(b) and 360(1)(c) of the Children, Youth and Families Act 2005 (Vic), or
  • without conviction, places the offender on a good behaviour bond, as permitted by section 360(1)(d) of that Act.17
  1. 3.22 The sentencing court exercises its discretionary power to include an offender in the Register by making a ‘sex offender registration order’. The order requires the offender to comply with the reporting obligations of the Act.18 Registration is, in effect, an administrative consequence of the order because the information the offender provides in compliance with the reporting obligations must be held in the Register.19
  2. 3.23 The court may make a registration order only if the prosecution applies for one within 30 days of sentencing 20 and the court satisfied beyond reasonable doubt that ‘the person poses a risk to the sexual safety of one or more persons or of the community’.21 It may take any matter that it considers appropriate into account in considering the application for the order, and is not required to identify who in particular may be at risk.22
  3. 3.24 Approximately 3 per cent of those currently on the Sex Offenders Register are there by way of a sex offender registration order. As at 1 December 2011, there were 139 offenders on the Register as a result of a registration order. Of these, 43 were children at the time they committed the offence (though most are now adults).23

Reporting obligations

  1. 3.25 Registered sex offenders are required to report details set out in the Act to Victoria Police at least once a year. Additionally, they must report when intending to travel interstate or overseas, and whenever the reported details change. All must report the same information. The period for which they must report depends on the class of the offence, the number of offences, and the offender’s age.24

The details that must be reported

  1. 3.26 All registered sex offenders must report the following information to an authorised member of Victoria Police25 within seven days of being sentenced or, if they receive a custodial sentence, within seven days of being released from custody:26
  • name(s) by which they are known
  • any other name(s) by which they have been known in the past, and the period for which they were known by that name
  • date of birth
  • address of each place they reside for at least 14 days (whether consecutive or not) in any 12-month period or, if homeless, the localities in which they can generally be found
  • telephone number
  • email address
  • name and business address of internet service provider
  • internet, instant messaging, chat room or other user names or identities used through the internet or other electronic communication services
  • names and ages of any children with whom they usually live or have unsupervised contact for at least three days (whether consecutive or not) in any 12-month period
  • employment details, including work under an employment contract, as a self-employed person or sub-contractor, any practical training as part of an educational or vocational course, or work as a volunteer or for a religious organisation, for at least 14 days (whether consecutive or not) in any 12-month period
  • details of affiliations with any clubs or organisations that have child membership or child participation in their activities
  • details of any motor vehicle they own or drive on at least 14 days (whether consecutive or not) in any 12-month period
  • details of any existing or former tattoos or permanent distinguishing marks
  • details of any requirement to register and report under corresponding sex offender legislation
  • details of any periods of government custody since they were either sentenced or released from custody for the registrable offence
  • if they travel interstate at least once a month on average, or plan to do so, the reason, frequency and destinations of the travel27
  • passport number and country of issue of each passport held.

Frequency of reports

  1. 3.27 The first time the required details are provided is known as the initial report.28 The information must then be provided annually for the duration of the registered sex offender’s reporting period.29
  2. 3.28 In addition to reporting annually, registered sex offenders must report any changes to the information they provide within the following periods:
  • details of any children with whom they generally reside or have ‘regular unsupervised contact’30—within one day of the change31
  • changes to any of the other details—within 14 days of the change32
  • periods in government custody for 14 or more consecutive days—within 28 days after ceasing to be in custody or before leaving Victoria, whichever is sooner.33
  1. 3.29 Those who travel interstate for two weeks or more, or leave the country for any period, must inform Victoria Police beforehand about the dates and destinations of the travel, where they will be living, and the approximate date of their return to Victoria, if applicable.34 Reports of these details must be made at least seven days before leaving Victoria35 and any subsequent changes must be reported as soon as practicable.36

Method of reporting

  1. 3.30 All registered sex offenders must make their initial and annual reports in person at a police station.37 They must also present themselves in person to report changes to where they live and any new, altered or removed tattoos or other permanent distinguishing marks.38
  2. 3.31 Offenders who live in remote locations may, with the prior agreement of the Chief Commissioner, provide the required information by telephone or other means if they cannot make their report in person in time.39
  3. 3.32 Other reports, including those concerning a change of travel plans, may be made by telephone to the Chief Commissioner or the Registrar (being a police officer appointed by the Chief Commissioner for the purpose).40
  4. 3.33 When reporting in person, the registered sex offender is entitled to do so out of the hearing of members of the public and may be accompanied by a support person of their choosing. Registered sex offenders who are children must be accompanied by a parent or guardian or, if neither is available, an independent person.41 The accompanying adult may also make the report on behalf of the child.42
  5. 3.34 When the report is not required to be made in person, a parent, guardian, or independent person may make it on behalf of a registered sex offender who is a child.43
  6. 3.35 Similarly, if the registered sex offender has a disability that renders it impossible or impracticable to make a report, or to report in person, a parent, guardian, carer or anyone else they nominate may accompany them when they must report in person and/or make the report on their behalf.44
  7. 3.36 The police officers to whom they report must be authorised by the Chief Commissioner.45 Currently, about 280 police officers have been designated as ‘compliance managers’ for this purpose. Their responsibilities under the registration scheme are in addition to their general duties.46
  8. 3.37 Detectives,47 generally at the rank of senior sergeant, have primary responsibility for the management of registered sex offenders.48 Lower ranking detectives and uniform senior sergeants, sergeants and officers in charge of police stations may also be compliance managers for registered sex offenders in their policing area, particularly in rural areas.49 All compliance managers are trained in risk assessment and relationship building.50
  9. 3.38 A compliance manager may be responsible for monitoring the reporting obligations of as many as 120 registered sex offenders—or as few as two. Once the reporting period begins, the police conduct a risk assessment for resource allocation purposes. Higher risk offenders are monitored more closely than lower risk offenders.51
  10. 3.39 After receiving a report, the compliance manager must acknowledge it in writing and retain a copy of the acknowledgement. The acknowledgement must include the name of the compliance manager, details about when and where the report was received, and a copy of the reported information.52
  11. 3.40 Compliance managers must submit all information to the Sex Offenders Registry, the administrative unit within Victoria Police that manages the Sex Offenders Register.53 They are also responsible for verifying information about changes to registered sex offenders’ personal details or travel plans, and must notify the Sex Offenders Registry of a breach of reporting obligations if an offender does not make their annual report and cannot be located.54 The Victoria Police Manual requires compliance managers to notify the Department of Human Services if a registered sex offender reports that they have had unsupervised contact with children.55
  12. 3.41 The collection and management of information about unsupervised contact between registered sex offenders and children, including arrangements between Victoria Police and the Department of Human Services to share it, is discussed in Chapter 9.

Proof of identity and the veracity of reported information

  1. 3.42 When providing a report in person, the registered sex offender must provide proof of identity by presenting a driver licence or other identifying documentation as specified in the regulations, and a passport-style photograph.56 Payslips must be produced to substantiate employment details, and registration papers or other documentation must be provided to show that the offender owns or generally drives a particular motor vehicle.57
  2. 3.43 The compliance manager may take the offender’s fingerprints or finger scan instead of requiring proof of identity documents,58 or if not reasonably satisfied of the offender’s identity after examining the documents.59 The fingerprints or finger scan of a child may be taken only if the child is accompanied by a parent or guardian or, if neither is available, an independent person.60
  3. 3.44 The police may also photograph the offender and, for this purpose, may require the offender to expose any part of the body on which there are tattoos or permanent distinguishing marks.61 The police cannot require some parts of the body to be exposed62 and the photography cannot occur where members of the public are present.63 If practicable, the photographer and any other police officers present must be of the same sex as the offender.64 The offender is entitled to be accompanied by a support person of their own choosing.65 A child must be accompanied by a parent or guardian or, if neither is available, an independent person.66
  4. 3.45 If the offender refuses to cooperate voluntarily, reasonable force may be used to obtain a fingerprint or finger scan or take a photograph.67 If practicable, the person who uses the reasonable force must be a police officer of the same sex as the offender.68
  5. 3.46 Victoria Police may retain copies of identifying documents, fingerprints, finger scans and photographs for the duration of the registered sex offender’s reporting period, following which the material must be destroyed.69 This identifying material is separate from photographs, fingerprints, DNA samples and other personal details that the police may have collected when investigating and prosecuting the offences and which may be retained for operational purposes.

Notification of obligations

  1. 3.47 When a court imposes a sentence for a registrable offence it must give the offender written notice of the reporting obligations and the reporting period.70 Upon release from government custody, the offender must again be given written notice of the reporting obligations and the consequences of failing to comply.71 Should the reporting period subsequently change, the Chief Commissioner must ensure that the offender is notified of this in writing.72
  2. 3.48 Similarly, registrable offenders entering Victoria who have not previously been given notice of their reporting obligations, and those in Victoria who become corresponding registrable offenders because they are registered under an equivalent law in another jurisdiction, must be notified by the police as soon as practicable.73
  3. 3.49 A failure to provide written notice as required by the Act does not, of itself, affect the offender’s reporting obligations.74 However, in proceedings for failing to comply with an obligation, it is a defence to establish that, at the time, the offender had not received notice and was unaware of the obligation.75

Reporting periods

  1. 3.50 Adult registered sex offenders are required to report for eight years, 15 years or the rest of their lives, depending on the offences they have committed.76
  2. 3.51 The reporting periods for child registered sex offenders are half that which would apply to an adult offender, but with a maximum of seven and a half years where an adult would be required to report for life.77
  3. 3.52 Calculating the reporting period can be quite complex. Table 2 summarises the provisions in the Act.

Table 2—Statutory reporting periods

Reporting period

Offences

Adult offenders

8 years

One Class 2 or Class 4 offence

15 years

One Class 1 or Class 3 offence (other than persistent sexual abuse of a child under the age of 16), or

Two Class 2 or Class 4 offences

Life

More than two Class 1 or Class 3 offences, or

One offence of persistent sexual abuse of a child under the age of 16, or

One Class 1 offence or Class 3 offence plus one or more Class 2 or Class 4 offences, or

Three or more Class 2 or Class 4 offences

Young offenders

4 years

Offences for which the reporting period for an adult is 8 years

7.5 years

All offences for which the reporting period for an adult is 15 years or life

 

  1. 3.53 Reporting obligations do not apply while the offender is in government custody. Table 3 shows the reporting periods that applied to registered sex offenders living in the community as at 1 December 2011.78

Table 3—Reporting periods of registered sex offenders living in the community as at 1 December 2011

Reporting period

Number

7.5 years or less (young offenders)

29

8 years

912

15 years

1178

Life

711

 

  1. 3.54 In Chapter 6, the Commission recommends a series of changes to the reporting periods, to strengthen the scheme in protecting children from the risk of harm from people who have previously been sentenced for child sexual offences.

The Register

  1. 3.55 The Act makes the Chief Commissioner of Victoria Police responsible for establishing and maintaining the Register,79 controlling access to it80 and protecting the personal information in it from unauthorised disclosure.81
  2. 3.56 The Sex Offenders Registry has been established within Victoria Police to manage the Register. The Commission understands that the number of staff positions has recently increased to 20.82 The information collected from registered sex offenders is held in hard copy paper files and in a Microsoft Access database.
  3. 3.57 Registry staff enter information from the courts, Corrections Victoria, the Registry of Births, Deaths and Marriages, compliance managers and other sources into the Register. They also manually enter information into the Australian National Child Offender Register (ANCOR), held by the CrimTrac agency.83
  4. 3.58 The information in ANCOR is available to other law enforcement agencies and is used primarily to alert them to movements of registered sex offenders across state borders or overseas. Within Victoria Police, access to ANCOR is limited to registry staff and is similarly used to obtain information about registered sex offenders entering Victoria from other jurisdictions.
  5. 3.59 The Sex Offenders Registration Act does not specify when registration occurs or set out any registration procedure. Nor does it provide for a registered offender to be removed from the Register, as distinct from their reporting period ending. The Commission understands that these and other ambiguities in the legislation have led to confusion and inconsistencies in the administration of the scheme and procedural challenges for the Sex Offenders Registry.84
  6. 3.60 The Commission makes a number of recommendations about the use and disclosure of information contained in the Register in Chapter 9.

Enforcement

  1. 3.61 It is an offence for a registered sex offender to fail to comply with any reporting obligation without a reasonable excuse.85 The penalty was originally 240 penalty units or imprisonment for two years. In 2007, the penalty was increased to five years imprisonment.86 When introducing the amending legislation into Parliament, the then Minister for Police and Emergency Services said the increase was necessary because ‘failure to report changes in personal details is a serious matter and is often an indicator of further offending’.87
  2. 3.62 A court may consider the following factors when determining whether a registered sex offender had a reasonable excuse for not complying with a reporting obligation:
  • the registered sex offender’s age
  • whether the registered sex offender has a disability that affects their ability to understand or comply with the obligation
  • whether the form of notification given to the registered sex offender about the reporting obligation was adequate in the circumstances
  • any other matter the court considers appropriate.88
  1. 3.63 Providing false or misleading information is also an offence.89 The maximum penalty is 240 penalty units or imprisonment for two years.90
  2. 3.64 During 2011, Victoria Police directed particular attention to enforcing compliance with the reporting obligations and the number of offenders being prosecuted for breaches has increased substantially. The number of breaches has doubled each year since 2008–09. The figures since the scheme began are in Table 4.

Table 4—Breach offences by year91

Year

Offences

2004–05

14

2005–06

59

2006–07

64

2007–08

111

2008–09

118

2009–10

255

2010–11

518

 

  1. 3.65 The police rely on common law powers to investigate possible offences under the Sex Offenders Registration Act and can exercise their powers of arrest, entry and search under the Crimes Act 1958 (Vic)92 if the offender breaches the reporting obligations. These powers are discussed in more detail in Chapter 6.93

Footnotes

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