9 Information sharing

Introduction

  1. 9.1 The Commission’s terms of reference direct it to consider ‘the management and use of information about registered sex offenders’.1 The Ombudsman reported that various people had informed him about the limitations of the Sex Offenders Registration Act 2004 (Vic) concerning information sharing between Victoria Police, Corrections Victoria and the Department of Human Services.2
  2. 9.2 The Sex Offenders Registration Act requires the Chief Commissioner of Police to establish and maintain the Sex Offenders Register.3 While the Chief Commissioner has limited power to disclose some ‘personal information’4 in the Register,5 unauthorised disclosure of any ‘personal information’ is a serious offence.6
  3. 9.3 The information sharing provisions in the Sex Offenders Registration Act are not well aligned with its current purposes. Although the Register was initially designed as a law enforcement tool,7 it has now become a source of information for child protection authorities and a means of cooperating with other Australian agencies—via CrimTrac—to monitor the movement of registered sex offenders into and out of Victoria. The Sex Offenders Registration Act does not facilitate the timely flow of this information.
  4. 9.4 This chapter addresses:
  • the current law governing disclosures of information about registered sex offenders
  • the provision of information in the Victorian Register to interstate law enforcement agencies and CrimTrac
  • the sharing of information about registered sex offenders’ contact with children between Victoria Police and the Department of Human Services
  • the powers of the Department of Human Services and Victoria Police to disclose to a child’s parent or carer that someone having contact with their child is a registered sex offender
  • the separate, but related, issue raised by the Ombudsman8 of the provision of other information about registered sex offenders by Corrections Victoria to the Department of Human Services.

Current law

  1. 9.5 Under the Sex Offenders Registration Act, the Chief Commissioner and any other person authorised to have access to the Register are permitted to disclose any ‘personal information’ in the Register to only three nominated public bodies—a government department, a public statutory authority or a court—for only three purposes:
  • for the purpose of law enforcement or judicial functions or activities
  • as required by or under any Act or law, or
  • if the Chief Commissioner or a person authorised to have access to the Register believes on reasonable grounds that to do so is necessary to enable the proper administration of the Sex Offenders Registration Act.9
  1. 9.6 Any disclosure of personal information held in the Register, other than a disclosure specifically authorised by the Sex Offenders Registration Act, is an offence punishable by a fine or two years imprisonment.10

Disclosing information to CrimTrac

Authority to disclose to CrimTrac

  1. 9.7 As discussed in Chapter 2, the Sex Offenders Registration Act is based on model legislation that was agreed upon by the Australasian Police Ministers’ Council in support of a national approach to registration.
  2. 9.8 When announcing that the police ministers had agreed to a nationally consistent approach to registration, the Commonwealth Minister for Justice and Customs said:

it is critical that governments come together to ensure that child sex offenders who travel across borders are treated in a consistent manner and that no state or territory can be used as a haven for those who wish to commit these crimes.11

  1. 9.9 The model legislation was intended to facilitate the collection and sharing of information. The Minister added:

Once a national system is implemented, the Commonwealth will also be able to negotiate agreements with other countries for the exchange of information on the movement of registered child sex offenders.12

  1. 9.10 The Australian National Child Offender Register (ANCOR) was established by the CrimTrac agency to support the national approach to registration. Each jurisdiction enters standardised information into the database about offenders registered under its scheme.
  2. 9.11 The information in ANCOR remains the property of the jurisdiction that provides it, and it is managed in accordance with that jurisdiction’s legislation. Victoria and New South Wales maintain their own registries, and upload some of the data into ANCOR. Other jurisdictions use ANCOR to host their registries.
  3. 9.12 Staff of the Sex Offender Registry in Victoria enter data into ANCOR manually, though the process is expected to be automated when the Register is migrated to a new system.13 Only 12 Victoria Police personnel have access to ANCOR. A national view of the information in ANCOR is available to registrars and others with ‘Registrar’ access.14
  4. 9.13 The Commission understands that ANCOR is used for alerting law enforcement agencies to movements by registered offenders across jurisdictional borders. Movements interstate are flagged on the system, alerting the Registrar in the destination jurisdiction. ANCOR is also used by the Australian Federal Police to generate alerts about registered offenders travelling overseas for the Passenger Analysis, Clearance Evaluation (PACE) system used by Australian Customs and Border Protection Services.
  5. 9.14 The disclosure provisions of the Sex Offenders Registration Act make no allowance for the national dimensions of the registration scheme. The Act does not refer to ANCOR or expressly authorise the Chief Commissioner to disclose information on the Sex Offenders Register to CrimTrac.
  6. 9.15 Direct disclosure to some other agencies ‘for the purpose of law enforcement’ is permitted by section 64(2)(a) of the Sex Offenders Registration Act. This provision authorises the Chief Commissioner, or anyone authorised to have access to the Register, to disclose personal information in the Register to a government department, public statutory authority or court for the purpose of law enforcement or judicial functions or activities.15
  7. 9.16 CrimTrac is not a government department or public statutory authority. It is an executive agency of the Commonwealth established under section 65 of the Public Service Act 1999 (Cth). There is no other provision in the Sex Offenders Registration Act that authorises information from the Victorian Register to be included in ANCOR.
  8. 9.17 The status of CrimTrac as a Commonwealth executive agency, and any concerns about who is accountable for the management of the information it receives from Victoria Police, has not prevented the authorised disclosure of information to it in other circumstances. The exchange of DNA information with CrimTrac for limited purposes is expressly permitted by the Crimes Act 1958 (Vic),16 and information about the identity and location of serious sex offenders may be disclosed to CrimTrac under the Serious Sex Offenders (Detention and Supervision Act 2009.17
  9. 9.18 In view of the policy intent of the police ministers when they agreed to adopt a national approach to registration, the omission in the Sex Offenders Registration Act is an anomaly. The Commission notes that disclosure to CrimTrac was not mentioned in the model legislation and only the Australian Capital Territory has specifically authorised it in legislation.18 However, other jurisdictions do not restrict the entities to which personal information about registered offenders can be disclosed for law enforcement purposes,19 or to which the Police Commissioner may authorise disclosure.20 In addition, the question of whether there is a need to authorise disclosure to CrimTrac may not have arisen in the jurisdictions that do not maintain a separate register.21
  10. 9.19 The Commission considers that the Act should be amended to provide a clear authority to disclose personal information from the Sex Offenders Register to CrimTrac in order to facilitate national and international monitoring of the movement of registered offenders.

Recommendation

52. The Chief Commissioner of Police should be permitted to disclose information from the Sex Offenders Register to the CrimTrac agency where necessary for the purpose of alerting law enforcement agencies in other jurisdictions that a registered sex offender has left, or has reported an intention to leave, Victoria either temporarily or indefinitely.

 

 

Governance of CrimTrac

  1. 9.20 The Commission is aware that the Commonwealth Government has been actively considering whether CrimTrac should have a legislative base. Concerns about the governance and accountability of the agency have been raised since its inception.
  2. 9.21 For example, in 2002 the Office of the Victorian Privacy Commissioner said that:

CrimTrac will be vulnerable to the least secure, least privacy sensitive among its participating jurisdictions. Its transparency and accountability structures should reflect that fact. It is inappropriate that coordination of vast amounts of the personal information of Australians should be centralised, while the accountability for collection, use and quality of that information should be dispersed among participating jurisdictions.22

  1. 9.22 Among its recommendations, the Office of the Victorian Privacy Commissioner called for a ‘clear, uniform, purpose-built statutory basis for the broader CrimTrac system, to be adopted by each participating jurisdiction’.23
  2. 9.23 In 2004, the Australian National Audit Office conducted a performance audit of CrimTrac.24 Among the findings was that

after some three years of operation, it is timely for a review of the nature of the relationship between the partners in the CrimTrac initiative, and a clarification of their various roles and responsibilities.25

  1. 9.24 Changes have been made to the governance of CrimTrac since then,26 and more are being discussed, including a legislative backing. The CrimTrac Strategic Plan 2010–2015 is described as progressing the agency’s ‘journey towards strengthened governance and streamlined information sharing arrangements, including statutory recognition of CrimTrac’.27
  2. 9.25 The Commission sees merit in providing legislative backing for CrimTrac in order to ensure it is subject to independent scrutiny and is accountable to Parliament for its operations.
  3. 9.26 Recommendations that would assist in achieving these objectives were made recently by the Joint Parliamentary Committee on the Australian Commission for Law Enforcement Integrity (ACLEI).28 The Committee examined which agencies should be subjected to the oversight of the ACLEI and presented its final report on the operation of the ACLEI in July 2011.
  4. 9.27 The Committee had made recommendations in an interim report about the agencies with the highest potential corruption risk.29 In the final report, it recommended a second tier of jurisdiction of medium risk agencies.

ACLEI would have the opportunity to establish a relationship with medium-risk agencies that fulfil a law enforcement function of some kind to build resistance to corruption through education, awareness raising, ongoing communication and investigation as appropriate. Those with the highest potential risk should be subjected to ACLEI’s oversight, ensuring the application of measures and resources that are commensurate with the degree of risk.30

  1. 9.28 The Committee has recommended that CrimTrac be included within the scope of the new second-tier of jurisdiction.

Given the value of the information held by CrimTrac to serious and organised criminal networks and the fact that it works closely with Commonwealth, state and territory police agencies, the Committee considers that CrimTrac should be subject to a certain level of ACLEI oversight, and hence should initially be included in a second tier arrangement.31

  1. 9.29 The Commission notes that CrimTrac told the Committee that it supported the recommendation.32 The Commission is also aware that the Commissioner for Law Enforcement Data Security remains concerned about the accountability mechanisms for CrimTrac.
  2. 9.30 The recommendation of the Committee to extend the jurisdiction of the ACLEI will introduce a measure of independent scrutiny of the operations of CrimTrac and should be supported.

Recommendation

53. The Minister for Police should request the Commonwealth Attorney-General to:

  1. (a) take steps to provide a statutory basis for the CrimTrac agency that establishes independent audit, investigation and complaints-handling mechanisms, and sanctions for misuse of the information it holds
  2. (b) bring the CrimTrac agency within the jurisdiction of the Australian Commission for Law Enforcement Integrity, as recommended by the Commonwealth Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity in July 2011.

 

Victoria Police sharing information with the Department of Human Services

  1. 9.31 The Sex Offenders Registration Act does not expressly authorise the Chief Commissioner of Police to disclose information to the Secretary of the Department of Human Services—the statutory official with primary responsibility for child protection—about any contact with a child that a registered sex offender provides to the police as part of their reporting obligations.
  2. 9.32 The Commission understands that reports from Victoria Police to the Department of Human Services33 of unsupervised contact between a registered offender and a child are currently characterised by both the Department of Human Services and Victoria Police as mandatory reports under the Children, Youth and Families Act 2005 (Vic).34 This characterisation appears designed to attract the operation of section 64(2)(b) of the Sex Offenders Registration Act, which permits disclosure of ‘personal information’ from the Register to a government department when ‘required by or under any Act or law’.35

Mandatory reporting under the Children, Youth and Families Act

  1. 9.33 Any person who has a significant concern for the wellbeing of a child, or who believes on reasonable grounds that a child is in need of protection, may make a report to the Department of Human Services.36 Certain people, including police officers, doctors and teachers, are described as mandatory reporters.37 These people must report to the Department of Human Services beliefs they hold on reasonable grounds that a child is in need of protection from significant harm as a result of physical or sexual abuse, and that the child’s parents are unlikely to protect the child from that harm.38
  2. 9.34 Police and other mandatory reporters are required to report as soon as reasonably practicable after forming the belief that a child is in need of protection, and after each occasion on which they become aware of further grounds for holding that belief.39 Failure to comply with mandatory reporting obligations is an offence.40 Reports made in good faith by mandatory reporters do not constitute unprofessional conduct or a breach of professional ethics by the person making the report.41
  3. 9.35 In order for reports of contact between a registered sex offender and a child to be properly characterised as mandatory reports under the Children, Youth and Families Act, the police officer concerned would clearly need to be satisfied on reasonable grounds:
  • that the child is at risk of harm from sexual abuse from the registered sex offender, and
  • that the child’s parent is unlikely to protect them from that harm.
  1. 9.36 This level of satisfaction appears to require an individual assessment in each case of both the risk that a registered sex offender poses to a particular child and the likelihood of the child’s parents being able to protect the child from the risk of sexual abuse.
  2. 9.37 At present, the Victoria Police Manual requires police officers to advise the Department of Human Services of all reported contact between a registered offender and a child.42 This direction to police clearly extends beyond the mandatory reporting obligations in the Children, Youth and Families Act, because no individual assessment of risk is required.
  3. 9.38 Consequently, reports to the Department of Human Services about unsupervised contact between a registered offender and a child, which are not mandatory reports under the Children, Youth and Families Act, do not appear to be disclosures permitted by section 64(2)(b) of the Sex Offenders Registration Act because they are not ‘required by or under any law’.

The Commission’s response and recommendations

Legislative provisions to permit information sharing

  1. 9.39 The Commission believes that the Chief Commissioner of Police should have clear legislative authority to pass information to the Secretary of the Department of Human Services about a registered sex offender’s contact with an identified child or children. Many people and organisations support such a change.43
  2. 9.40 This step is best taken under the auspices of the Children, Youth and Families Act. Under that Act, the Secretary of the Department of Human Services and all members of the police force are ‘protective interveners’.44 Protective interveners have responsibility for many areas of child protection, including receiving and investigating reports that a child may be at risk of harm, and making protection applications in the Children’s Court.45
  3. 9.41 While police no longer perform all of the functions of a protective intervener in practice,46 the two classes of protective interveners—police and Department of Human Services child protection workers—should be expressly permitted to share information about registered sex offenders who might pose a risk of harm to a particular child or children. The Commission is of the view, however, that it is more appropriate for the information sharing power to vest in the Chief Commissioner, rather than all members of the police force, because of the sensitivity of this information. Of course, the Chief Commissioner would be able to delegate this information-sharing power to officers of an appropriate rank.47
  4. 9.42 As well as permitting the Chief Commissioner to provide child contact reports to the Secretary of the Department of Human Services, the Children, Youth and Families Act should also permit exchange of information about registered sex offenders between the Chief Commissioner and the Secretary of the Department of Human Services when the Secretary is investigating contact between a child or children and a registered sex offender.
  5. 9.43 There may be information held by Victoria Police about a registered sex offender’s past convictions that will be of assistance to the Department of Human Services when investigating risk to a particular child. The Department of Human Services has indicated that the following information from Victoria Police is of assistance to protective investigations:
  • summaries of registered sex offenders’ convictions, which may include information about the complainants’ ages
  • witness statements.48
  1. 9.44 While the Department of Human Services already receives information of this nature from Victoria Police, the power to disclose it should be clarified.49
  2. 9.45 Although the primary focus of these recommendations is the transfer of information about registered sex offenders from Victoria Police to the Department of Human Services, there may also be information held by the Department of Human Services that Victoria Police wishes to access. Under the Children, Youth and Families Act, the Secretary of the Department of Human Services50 must, on request, provide any member of the police force with a ‘protection report’, when that member of the police force is conducting a criminal investigation that overlaps with a protective investigation.51 The report that the Secretary provides will deal with matters that are relevant to whether the child is in need of protection.52
  3. 9.46 Therefore, provision of much of the information sought by Victoria Police from the Department of Human Services will already be authorised under the Children, Youth and Families Act. The Department of Human Services may hold additional information about registered sex offenders that does not form part of a ‘protection report’ but may be of use to Victoria Police. The Department should be permitted to provide information of this nature to Victoria Police. It may include:
  • information regarding therapeutic treatment orders and treatment recommendations in relation to young registered sex offenders
  • static and dynamic risk factors
  • details of any additional children that child protection workers may identify when investigating cases where registered sex offenders are in contact with children.
  1. 9.47 The relevant legislative provisions about sharing child contact reports and other information about registered sex offenders should be included in the Children, Youth and Families Act. It should be possible for the Chief Commissioner of Victoria Police and the Secretary of the Department of Human Services to share information about a registered sex offender as protective interveners where there is an identifiable child who has had, or may be having, contact with that offender.
  2. 9.48 Section 64(2)(b) of the Sex Offenders Registration Act should also be amended to extend the Chief Commissioner’s disclosure power to circumstances where disclosure is ‘authorised by or under any Act or law’. At present, that provision only permits disclosure as ‘required by or under any Act or law’.53
  3. 9.49 These proposed changes complement the recommendation in Chapter 6 that it should be possible for the court to order, at the time of making a registration order, that a child protection worker from the Department of Human Services may be present when the person makes their child contact reports.

Recommendations

54. The Chief Commissioner of Police should be permitted to provide the Secretary of the Department of Human Services with a copy of the ‘child contact report’ form submitted by any registered sex offender where the information in the report identifies a particular child or children.

55. The Chief Commissioner of Police and the Secretary of the Department of Human Services should be authorised to exchange information they hold about a registered sex offender when the Secretary is investigating any contact between that offender and a particular child or children.

 

Classification of contact reports by the Department of Human Services

  1. 9.50 At present, the Secretary of the Department of Human Services can determine that various reports to her about children from members of the community and mandatory reporters are ‘protective intervention reports’ for the purposes of the Children, Youth and Families Act.54 This characterisation permits the Secretary to activate various responses and powers under that Act.
  2. 9.51 The Commission believes that the Children, Youth and Families Act should be amended to ensure that the Secretary of the Department of Human Services can also classify any information she receives via a child contact report, or otherwise as proposed in these recommendations, as a ‘protective intervention report’.55
  3. 9.52 This classification moves the report to the investigation and assessment phase.56 The Department’s current practice is to classify reports of contact between a registered sex offender and a child as protective intervention reports and transfer them for investigation, unless there is compelling evidence of the child’s safety.57 The Commission seeks to ensure that the Department continues to have the power to investigate such reports. However, as explained in the previous section, it is neither accurate nor helpful to characterise these reports as mandatory reports under the Children, Youth and Families Act.
  4. 9.53 The Commission considers it more appropriate for these reports to be deemed to be reports involving significant concern for the wellbeing of a child.58 At present, it is the usual policy of the Department of Human Services to refer child wellbeing reports to the Child and Family Information Referral and Support Team (Child FIRST),59 or another service, before investigating.60 A new policy dealing specifically with reports that a registered sex offender has had contact with a child would need to be developed.

Recommendation

56. The Children, Youth and Families Act 2005 (Vic) should be amended to provide that information obtained by the Secretary of the Department of Human Services about a particular child from a child contact report or from the Chief Commissioner of Police when exercising the powers to share information with the Secretary of the Department of Human Services should be deemed a report to the Secretary under section 28 of the Children, Youth and Families Act 2005 (Vic) about the wellbeing of a child.

 

Giving information to parents and carers

  1. 9.54 The Commission understands that child protection workers sometimes feel the need to disclose to a child’s parent during a protective investigation that a person having contact with the child is a registered sex offender.61 This need might arise when a relative who is a registered sex offender moves into a household with children or when a sole parent commences a new relationship with someone who has not disclosed that they are a registered sex offender. In these circumstances, child protection workers sometimes disclose both the fact that someone is a registered sex offender and the nature of their offences.62
  2. 9.55 There are no express powers in the Sex Offenders Registration Act that permit police or child protection workers to inform members of the community that a particular person is a registered sex offender.
  3. 9.56 In the absence of express authority in the Sex Offenders Registration Act, child protection workers rely on a provision in the Children, Youth and Families Act to make these disclosures. The Child Protection Practice Manual states:

Although the [Children, Youth and Families Act] authorises disclosure of the information that someone is on the Sex Offender Register, this information should be treated with the strictest of confidentiality and should only be shared with a person outside Child Protection where the disclosure of the information is vital to ensuring a child’s best interests. As it is the associated sex offending behaviour that is directly pertinent to the safety of the child … consideration should be given to whether disclosing the history of sex offending is sufficient, or whether it is essential in the particular case to disclose that the person is a registered sex offender.63

  1. 9.57 It seems that child protection workers rely upon that part of the Children, Youth and Families Act which states that on completion of an investigation, the protective intervener64 must make a written record of the details and results of the investigation.65 This record of investigation may then be disclosed to certain people, including:
  • the child
  • the child’s parents
  • the Secretary of the Department of Human Services
  • the Chief Commissioner of Police
  • anyone authorised in writing by the Secretary or the Chief Commissioner of Police to have access to the record.66
  1. 9.58 If the fact that a person is a registered sex offender, or the details of their past offending, were included in the record of investigation, disclosure of this information might be authorised by the Children, Youth and Families Act. However, these provisions do not authorise protective interveners to disclose this information to other carers, such as extended family members.

Interaction between disclosures to parents and laws prohibiting disclosures

  1. 9.59 There is the potential for disclosures by the Department of Human Services or Victoria Police to parents about a registered sex offender’s contact with their child to be in breach of a suppression order (or non-publication order). This might occur if there is a suppression order in respect of the offender’s court proceedings,67 or when the provisions that prohibit identification of a person against whom a sexual offence is alleged to have been committed apply,68 or when the relevant parties are under the age of 18.69

Suppression orders

  1. 9.60 In certain circumstances, a court may make a suppression order prohibiting the publication of:
  • a report of the whole or part of a proceeding, or any information derived from a proceeding, or
  • any specified material relevant to a proceeding that is pending in the court.70
  1. 9.61 It is an offence to publish information in contravention of a suppression order.71 However, the definition of ‘publication’ in relation to suppression orders is unclear, so it is not certain whether the Department of Human Services or Victoria Police would ever be ‘publishing’ information in contravention of a suppression order by telling a child’s parent or carer about a registered sex offender’s offending and convictions.72 The type of publication that is prohibited may be specified in the terms of the order.
  2. 9.62 Additionally, the offence of contravening a suppression order appears, on the face of the legislation, to be a strict liability offence that requires no knowledge of the order for the offence to be committed.73 However, the High Court has held that the word ‘contravene’ implies ‘disputation or denial rather than failure to comply with an unknown requirement’.74 Therefore, it seems that in order to commit the offence, the person in contravention of the order must have known about the order’s existence. This raises the question of whether a person commits the offence if they are wilfully blind to the existence of a suppression order.
  3. 9.63 The maximum penalty for contravening a suppression order is 1000 penalty units or three months imprisonment.75

Non-identification rules in relation to sexual offence complainants

  1. 9.64 It is also a criminal offence to publish, or cause to be published, any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed.76 For these purposes, ‘publish’ means:
  • insert in a newspaper or other periodical publication
  • disseminate by broadcast, telecast or cinematograph, or
  • disclose by any means to any other person, other than for a purpose connected with a judicial proceeding.77
  1. 9.65 This third category of publication is sufficiently broad to include disclosures made to third parties by the Department of Human Services or Victoria Police, and further disclosures made by those third parties. The maximum penalty for this offence, if committed by a person, is 20 penalty units or four months imprisonment, or both.78 It is a defence to this offence to prove that, at the time of the alleged offence, no complaint had been made to the police, or the publication was with the permission of the court or the complainant.79

Non-publication rules in relation to Children’s Court matters

  1. 9.66 Additionally, it is an offence to publish, or cause to be published:
  • a report of a proceeding in the Children’s Court containing any particulars likely to lead to the identification of a child or other party to the proceeding, or a witness in the proceeding, except with the permission of the President of the Children’s Court, or
  • any matter that contains particulars likely to lead to the identification of a child as the subject of an order made by the Court, except with the permission of the President of the Children’s Court or the Secretary of the Department of Human Services.80
  1. 9.67 For these purposes, ‘publish’ means:
  • insert in a newspaper or other periodical publication
  • disseminate by broadcast, telecast or cinematograph, or
  • otherwise disseminate to the public by any means.81
  1. 9.68 The Children, Youth and Families Act provisions clearly prohibit identification of a child who has been convicted of a sexual offence, or against whom a registration order or child protection prohibition order has been made. The penalty for a person who commits either of these offences is 100 penalty units or two years imprisonment.82

Commission’s response and recommendations

  1. 9.69 In certain circumstances, police officers and child protection workers should be permitted to disclose to a child’s parent or carer that a person having contact with the child is a registered sex offender. To enable parents and carers to understand the potential risk of harm to their child or children, the disclosure should sometimes include details of the registered sex offender’s prior offending. The Commission has been told that the Department of Human Services must sometimes provide additional information to parents and carers for them to fully understand the risk and act protectively.83
  2. 9.70 The Commission believes that disclosures of this nature should take place with clear statutory authorisation, but within narrowly defined circumstances only. To permit disclosure of this information on anything other than a ‘need to know’ basis by police and child protection officers of appropriate seniority would encourage sensationalism within some sectors of the media and facilitate vigilante action within some sectors of the community.
  3. 9.71 Disclosure of this information in some instances should permit parents and carers to take appropriate protective action. It might also circumvent the need for intrusive and unsettling intervention by child protection authorities, such as the Department of Human Services removing a child from their parent and making a protection application in the Children’s Court with the aim of securing a supervision order that would have the effect of removing the registered sex offender from the child’s household.84
  4. 9.72 Given the sensitivity of the information that would be disclosed, the Commission recommends that the Secretary of the Department of Human Services and the Chief Commissioner of Police authorise only officers of a particular grade or rank (designated officers) to make these disclosures. Further, disclosures should only be made if the designated officer believes, on reasonable grounds, that the disclosure is necessary to ensure the safety and wellbeing of the child. The Commission’s proposals draw upon guided disclosures for child protection purposes in the United Kingdom.85
  5. 9.73 Designated officers should not be permitted to make such disclosures if doing so would be in breach of a suppression order, or provisions prohibiting the identification of victims of sexual offences or defendants who are under the age of 18. The Chief Commissioner of Police and the Secretary of the Department of Human Services should develop guidelines to assist designated officers to:
  • ascertain whether a suppression order applies in a particular case and, if so, what information can be disclosed to a child’s parent or carer
  • ensure that no information is disclosed to a child’s parent or carer that may lead to the identification of a person against whom a sexual offence is alleged to have been committed or a defendant or respondent who is under the age of 18, in contravention of the rules discussed above.
  1. 9.74 In order to assist the child’s parent or carer to respond to a disclosure under these provisions, the designated officer should be required to refer the child’s parent or carer to an appropriate counselling service. The Commission does not believe it is necessary to recommend at this stage that there be a specific criminal sanction if a child’s parent or carer discloses information they have received about a person being a registered sex offender.
  2. 9.75 However, parents and carers, like designated officers, must comply with suppression orders and laws concerning identification of victims of sexual offences and children who are, or have been, parties to proceedings. As unauthorised disclosure by a parent or carer of a person’s status as a registered sex offender would be a matter of considerable concern, the Commission suggests that the Chief Commissioner and the Secretary of the Department of Human Services keep this matter under ongoing review. They are both well placed to recommend legislative action if unauthorised disclosures occur.
  3. 9.76 To make it clear that any disclosures made under these provisions are directed to the protection of identifiable children, they should be authorised under the Children, Youth and Families Act. Further, the Sex Offenders Registration Act should be amended to permit these disclosures by designated officers under the Children, Youth and Families Act.

Recommendations

57. The Children, Youth and Families Act 2005 (Vic) should be amended to give the Secretary of the Department of Human Services and the Chief Commissioner of Police the power to authorise officers of a designated rank or grade to disclose to a parent or carer of a child who is having contact with a registered sex offender:

  1. (a) that the person is a registered sex offender
  2. (b) details of the offending that led to registration of that person, and
  3. (c) the duration and the conditions of registration.

The Sex Offenders Registration Act should be amended to permit such disclosures made under the Children, Youth and Families Act 2005 (Vic).

58. The designated officers should be permitted to make a disclosure only if they believe, on reasonable grounds, that disclosure of the information to a parent or carer is necessary to ensure the safety and wellbeing of the child.

59. The Children, Youth and Families Act 2005 (Vic) should provide that it is an offence for:

  1. (a) a person to make a disclosure of this kind without having been authorised to do so, or
  2. (b) a designated officer to make a disclosure of this kind that is not in accordance with the relevant provisions.

 

The test for limiting disclosure

  1. 9.77 Disclosures of this nature could have grave consequences for the registered sex offender, particularly for their living arrangements and relationships. Therefore, the Commission proposes that, if a designated officer intends to make a disclosure of this kind to a child’s parent or carer, that officer should be required to make all reasonable efforts to notify the registered offender prior to making the disclosure. This step will permit registered sex offenders to be involved in the process and prepare themselves for the possible effects of the disclosure. Research from the United Kingdom illustrates the need for any disclosure scheme to complement the rehabilitation of registered sex offenders.86
  2. 9.78 However, if the designated officer believes on reasonable grounds that notifying the registered sex offender before making a disclosure to a parent or carer would endanger the life or safety of any person, they should be permitted to dispense with this requirement.

Recommendation

60. The Children, Youth and Families Act 2005 (Vic) should provide that a designated officer who intends to make a disclosure to a parent or carer must make all reasonable efforts to notify the registered sex offender prior to making that disclosure unless the designated officer believes on reasonable grounds that to do so would endanger the life or safety of any person.

 

Corrections Victoria sharing information with the Department of Human Services

  1. 9.79 The Ombudsman’s report identified the need for information about registered sex offenders held by Corrections Victoria to be shared with the Department of Human Services to assist in investigating protective concerns.87 The Ombudsman made two recommendations about this matter:
  • Victoria Police should develop a protocol with the Department of Human Services and Corrections Victoria for the release and sharing of information on registered sex offenders.
  • Corrections Victoria should ensure the timely provision of assessment reports when requested by the Department of Human Services or Victoria Police to assist in the identification of risks posed to children by registered sex offenders.88
  1. 9.80 Corrections Victoria is a service agency within the Department of Justice.89 The Minister for Corrections has various powers to authorise the disclosure of information held by Corrections Victoria.90 Additionally, the Secretary of the Department of Justice has various information disclosure powers and functions under the Corrections Act 1986 (Vic), and may delegate these to the Corrections Commissioner and others.91 As Corrections Victoria is not a legal entity, and the Secretary of the Department of Justice is responsible for much of the information disclosure under the Corrections Act, it is appropriate that any legislative amendments to authorise disclosure of information held by Corrections Victoria to the Department of Human Services confer the relevant powers on the Secretary of the Department of Justice.
  2. 9.81 The Commission understands that an administrative process has been developed to facilitate the timely provision of risk summary reports from Corrections Victoria to the Department of Human Services and Victoria Police. It is important to note that Corrections Victoria does not hold information in relation to all registered sex offenders, only those who have served custodial sentences or community based orders.
  3. 9.82 At present, the Department of Human Services requests and receives the following information held by Corrections Victoria in relation to some registered sex offenders:
  • sentencing remarks from the registered sex offender’s court proceedings, where available
  • summaries of risk assessment reports that were prepared for court proceedings or other purposes.92
  1. 9.83 Where the sentencing remarks are matters of public record, provision of these to the Department of Human Services is uncontroversial. The risk summary reports provided by Corrections Victoria to the Department of Human Services include:93
  • details of the person’s order or sentence
  • details of an actuarial risk assessment (Static-99) conducted in respect of the person, assessing the person’s risk of re-offending relative to other sex offenders of the same gender
  • details of other risk assessments conducted in respect of the person94
  • the person’s attendance at and participation in treatment programs.

The risk summary report may also include the outcome of any treatment program attended by the person, and factors which may lead to the person offending again.95

  1. 9.84 Corrections Victoria currently provides information to the Department of Human Services in accordance with an Instrument of Authority, signed by the Minister for Corrections. In accordance with the Corrections Act, the Instrument of Authority permits various office holders within Corrections Victoria to disclose or communicate confidential information relating to registered sex offenders to the Secretary of the Department of Human Services and various delegates of the Secretary.96 Corrections Victoria may provide such information as sought by the Department of Human Services under certain provisions of the Children, Youth and Families Act.97
  2. 9.85 There is a separate Instrument of Authority that permits Corrections Victoria to disclose risk summary reports and other information to the Chief Commissioner of Police and various delegates.98

Disclosures of health information under the Health Records Act

  1. 9.86 The Health Privacy Principles in the Health Records Act 2001 (Vic) provide, in general terms, that organisations must not use or disclose health information—including information or an opinion about an individual’s mental or psychological health99—for a purpose other than that for which it was collected.100 However, information may be disclosed if the disclosure is required, authorised or permitted, expressly or impliedly, by or under law.101
  2. 9.87 Disclosing health information to the Department of Human Services, to enable it to conduct a protective investigation, will usually be a purpose other than that for which the information was collected.102 For such disclosures to be lawful, they must be ‘required, authorised or permitted under law’.103 The Instrument of Authority signed by the Minister for Corrections is one possible legal authority under which the disclosures are authorised.
  3. 9.88 The Commission understands that Corrections Victoria does not consider information contained in the risk summary report to be health information or to engage the provisions of the Health Records Act. However, it is possible that information about treatment outcomes could be considered an opinion about an individual’s mental or psychological health and, therefore, considered to be health information. For this reason, disclosures of risk summary reports should be clearly authorised by legislation.
  4. 9.89 Given the sensitive nature of the information in question, it would be appropriate for the Children, Youth and Families Act to authorise such disclosures only when the Department of Human Services is conducting a protective investigation following a report of contact between a registered sex offender and a particular child or children. A legislative provision should be inserted into the Children, Youth and Families Act to clearly define the circumstances in which Corrections Victoria may disclose health information about registered sex offenders to the Department of Human Services.

Consistency with the Australian Psychological Society’s Code of Ethics

  1. 9.90 Additionally, Corrections Victoria clinicians must abide by professional ethical standards, such as the Australian Psychological Society’s (APS) Code of Ethics. The Commission understands that Corrections Victoria takes the view that this Code of Ethics precludes it from providing the Department of Human Services with detailed information collected by clinicians in the course of treating a registered sex offender, whether in custody or elsewhere. While there is no suggestion that the Department of Human Services wishes to access Corrections Victoria’s clinical files, there is a need to ensure that the provision of risk summary reports and other information does not conflict with the Code of Ethics.
  2. 9.91 The APS Code of Ethics specifies that ‘psychologists safeguard the confidentiality of information obtained during their provision of psychological services’.104 However, the Code permits psychologists to disclose confidential information obtained in the provision of services ‘where there is a legal obligation to do so’.105 Therefore, if amendments were made to the Children Youth and Families Act requiring disclosure of information in certain circumstances, Corrections Victoria clinicians would be permitted to provide information under their Code of Ethics.
  3. 9.92 At the beginning of the professional relationship, psychologists are also required to inform patients of:
  • the limits to confidentiality, and
  • foreseeable uses of the information collected in the course of the relationship.106

The Commission understands that Corrections Victoria clinicians already forewarn sex offenders that information they provide may be passed on to the Department of Human Services.

Use of information by the Department of Human Services in protection application proceedings

  1. 9.93 The Children’s Court supports the provision of all relevant materials to the Department of Human Services.107 The Court also questions the admissibility of the risk summary report in proceedings before it. Although the Children, Youth and Families Act permits the Family Division of the Children’s Court to ‘inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary’,108 it must nevertheless make decisions on the best available evidence when matters are contested.109 Full assessment reports should be provided to the Department of Human Services for the purposes of making a protection application in the Children’s Court.
  2. 9.94 The Secretaries of the Department of Justice and Department of Human Services have already developed an administrative process for the timely sharing of particular information under the Ministerial Authority. They should continue to develop policies and procedures to facilitate the passage of information under the proposed legislative amendments.

Recommendations

61. The Children, Youth and Families Act 2005 (Vic) should be amended to codify the existing Ministerial Authority that permits Corrections Victoria to provide risk summary reports and assessment reports to the Department of Human Services.

62. The Children, Youth and Families Act 2005 (Vic) should authorise the Secretary of the Department of Justice to disclose risk summary reports or assessment reports in relation to a registered sex offender where the Secretary of the Department of Human Services has requested the information because the Secretary of the Department of Human Services holds concerns about the risks posed to a particular child or children by that registered sex offender.

63. The Secretaries of the Departments of Human Services and Justice should develop protocols identifying the reports that can be disclosed and establishing procedures to ensure the speedy provision of relevant information.

 

 

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