Executive summary

 

Introduction

  1. 1. This report is concerned with strengthening Victoria’s sex offenders registration scheme so that it plays a more effective role in protecting children from sexual abuse.
  2. 2. The Attorney-General asked the Victorian Law Reform Commission to review the registration of sex offenders in response to a report by the Ombudsman on a whistleblower’s complaint. The whistleblower had alleged that Victoria Police failed to inform the Department of Human Services of more than 300 registered sex offenders who were living with children or had unsupervised contact with them.
  3. 3. In his report, the Ombudsman was critical of the key agencies for failing to share responsibility for ensuring that the Sex Offenders Register contributed to the protection of children. He referred to concerns held by various senior public officials about the limitations of the Sex Offenders Registration Act 2004 (Vic) and recommended that the Commission consider the legislative arrangements in place for the registration of sex offenders.

The sex offenders registration scheme

  1. 4. The Sex Offenders Registration Act established a mandatory registration scheme that has operated since October 2004. All adults sentenced for committing sexual offences involving a child are automatically included in a register of sex offenders. Sex offenders under the age of 18 years and adults sentenced for sexual offences against an adult may also be included in the Register by court order.
  2. 5. Registered sex offenders living in the community are required to keep the police informed about their personal details and whereabouts for a period determined by the Act. They are also required to report the names and ages of children with whom they live or have had ‘regular unsupervised contact’.
  3. 6. Adult offenders are required to report for eight years, 15 years or life, depending on the offences for which they have been sentenced. Young offenders report for four years or seven and a half years. There is no scope for the period of registration to be extended.
  4. 7. Apart from requiring offenders to meet their reporting obligations, the Sex Offenders Registration Act also prevents them from engaging in child-related employment in any capacity.

The evolving purpose of the scheme

  1. 8. The purpose of the scheme—as set out in the first section of the Act—is to require sex offenders to provide information to the police on a regular basis in order to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of future offences. The information was to be stored in a register that could be used as a law enforcement resource. Over time, the purpose of the scheme has evolved. Now, as the Ombudsman’s report shows, one of its primary functions is to operate as a source of information for child protection authorities about children who may be at risk of harm.
  2. 9. The shift in focus to child protection is one of degree. The specified purpose does not mention child protection, yet the Act requires all adult child sex offenders to report ‘regular unsupervised contact’ with children. Although the Act does not indicate how the police are expected to use this information, the policy of the legislation makes clear that it is gathered in order to protect children from potential harm. The police have no clear power, however, to share the information with child protection authorities.
  3. 10. In this report, the Commission makes a series of recommendations to strengthen the registration scheme by sharpening its focus on the protection of children. The recommendations will enable police to:
  • better manage those offenders who could pose a risk of harm to children, and
  • provide child protection authorities with timely information about children who might be at risk unless those authorities and the children’s parents take action to safeguard the child.

Interaction with other post-sentence schemes

  1. 11. The Sex Offenders Registration Act is one of three statutory post-sentencing schemes that seek to protect children from exposure to convicted sex offenders who are living in the community. As the first comprehensive legislative scheme to take a preventative approach to sexual offending in Victoria, the Act led the government into uncharted territory.
  2. 12. It was soon followed by the Serious Sex Offenders Monitoring Act 2005 (Vic) and the Working with Children Act 2005 (Vic). This later legislation has contributed to the evolving purpose of the registration scheme, because it has provided additional ways of taking preventative action when responsible authorities fear that a particular convicted sex offender might pose a risk to the safety of children.
  3. 13. These later schemes have taken over and refined some of the preventative expectations of the registration scheme. The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)—which replaced the Serious Sex Offenders Monitoring Act—permits a targeted response when there is evidence to suggest that an offender should be detained in custody, or subjected to close supervision while living in the community, because of an unacceptable risk of re-offending. The Working with Children Act addresses the risk of harm from any sex offenders targeting and abusing children through their paid or voluntary work.
  4. 14. The three statutory schemes have not been designed as part of a fully integrated response to sexual offending against children. This review provides an opportunity for greater integration. The Commission recommends that the provisions in the Sex Offenders Registration Act prohibiting registered sex offenders from engaging in child-related employment should be incorporated into the Working with Children Act now that it is fully operational. This would rationalise and consolidate the protective legislative response to the risk of children being exposed to harm by adults who work with them in a paid or voluntary capacity.

The risk of harm from sex offenders

  1. 15. The Sex Offenders Registration Act is based on two premises. They are, first, that the incidence of child sexual abuse in the community requires the existence of a regime to monitor people who have prior convictions for child sexual offences and, second, that a registration scheme deters and reduces re-offending by those people.
  2. 16. In order to test these premises, the Commission consulted reports on the incidence of child sexual abuse in the community, rates of recidivism among sex offenders, and the results of research into the effect of registration on the risk of re-offending.
  3. 17. Most victims of child sexual abuse are girls, and they are most likely to be abused by a male relative. There is no compelling evidence as to whether there has been a significant increase in child sexual abuse in Victoria in recent years, as distinct from an increase in prosecutions for child sexual offences.
  4. 18. Existing research indicates that child sex offenders do not comprise a homogenous group. For example, commonly held assumptions that child sex offenders have high rates of recidivism and predominantly prey upon children who are unknown to them are not supported by evidence.
  5. 19. On the other hand, criminological studies demonstrate the existence of a subset of child sex offenders who do re-offend frequently and who target extra-familial male children. There is empirical evidence that these offenders abuse a high number of victims. The Commission considers that the registration scheme should be refined and strengthened in order to concentrate upon those people who pose the most risk to children.
  6. 20. There is little evidence to suggest that registration schemes are an effective means of reducing child sexual abuse because they deter re-offending. Although the Australian research is very limited, many studies have been completed overseas and most have failed to find that registration laws reduce recidivism.
  7. 21. In any event, the contribution that a registration scheme can make to the incidence of child sexual offending needs to be seen in the context of the fact that most child sexual offences are committed by persons without prior convictions for this type of offending and who are known to the victim. Of the 1000 victims of sexual assault in Victoria in 2010 who were under the age of 15, 399 (40 per cent) were assaulted by family members and 499 (50 per cent) by someone else they knew. Assaults by strangers accounted for 67 (7 per cent) of the cases.
  8. 22. Most sexual offences are committed by people with no previous convictions for offences of this type. For example, over the period 2006–07 to 2007–08, 93.1 per cent of the charges in Victoria for sexual penetration of a child aged 10 to 16 were against defendants with no prior sexual offence convictions. The highest proportion of defendants with a prior sexual offence conviction occurred in cases with charges of sexual penetration of a child aged under 10 (22.5 per cent).

Refining the scheme by strengthening its focus

  1. 23. As not all sex offenders present the same risk of re-offending, the automatic registration of every adult who commits a sexual offence against a child has extended the reach of the scheme to offenders who are highly unlikely, based on any reasonable assessment, to offend again. In practice, it has not been apparent to people who witness the scheme in operation, such as judges, magistrates, legal practitioners and police officers, why reporting obligations are imposed on an offender who is highly unlikely to re-offend.
  2. 24. The Sex Offenders Registration Act proceeds on the assumption, however, that all people convicted of the same offence pose the same risk of re-offending and should have the same reporting obligations for the same period. The current undifferentiated method of selecting who should be registered solely by reference to the number and type of offences for which they have been convicted has led to a register which appears to have outstripped initial estimates of size. The Register, which is becoming increasingly expensive to maintain, contains a vast amount of information of variable usefulness. It is time to assess whether the benefits of the scheme in its current form justify its escalating cost, especially as there are approximately 50 new registrants each month.
  3. 25. As at 1 December 2011, 4165 people had been included in the Sex Offenders Register in the seven years since the scheme commenced. At the current rate of increase, there will be approximately 10,000 registrations by 2020. As details are collected from all registered offenders for many years—and from some for life—the value of the information that is collected is highly likely to decline as the Register continues to expand. Details about people who might be potentially dangerous re-offenders sit alongside those of offenders who pose no risk of harm, with police and child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders.
  4. 26. The long reporting periods impose a significant burden on the police to compile and manage information that may be of little operational value in many instances. Demands on the time of child protection workers at the Department of Human Services are also building as the number of reports of contact between registered sex offenders and children continues to rise. Understandably, all of these reports are investigated regardless of the risk of re-offending posed by a particular offender, unless there is compelling evidence of the child’s safety.

Individual assessment instead of automatic inclusion

  1. 27. The Commission considers that if registration were more closely aligned with the risk of harm to children, the rate of growth in numbers of registered offenders might be manageable. The police and child protection resources allocated to administering the scheme and taking protective action could be directed to those people who are more likely to re-offend. Replacing automatic inclusion in the Register with a process that allows for individual assessment of the offender is highly likely to enhance the effectiveness of a scheme that places a great strain on the resources of Victoria Police and the Department of Human Services without, as yet, any clear evidence of its success in reducing child sexual abuse.

Revised registrable offences

  1. 28. Another important means of strengthening the scheme’s contribution to child protection is by revising the character and categorisation of the offences that lead to registration. The Commission has devised a refined list of offences which will assist in focusing the scheme on offenders who pose a risk of harming children.
  2. 29. In place of the existing two classes of child sexual offences set out in the Sex Offenders Registration Act, the Commission recommends re-ordering them into three categories according to the type of offending. The categories seek to reflect, in very broad terms, the risk of harm from re-offending.
  3. 30. The Commission proposes that the courts would be given clear legislative guidance when making individual assessments of the need for offenders in each category to be registered. They would be required to apply a different test for each category. The policy underpinning these tests is clear: the higher the category of offence, the higher the expectation that the court will make a registration order.
  4. 31. The proposed changes seek to ensure that the court assesses whether the individual offender poses a risk of harm to children. By directing courts to consider whether registration will serve a useful protective purpose, the new system should avoid the over-inclusiveness of the current scheme, which has led to unnecessary diversion of police and child protection resources from dealing with people who pose some risk of re-offending.
  5. 32. The practical outcome will be that most adults who commit penetrative sexual offences against children will be registered, and all other child sexual offenders will be registered only if the court finds that this step will serve a useful protective purpose.

Category 1

  1. 33. Category 1 offences involve, or may involve, the sexual penetration of a child by the offender. The offender should be registered in all but exceptional circumstances for these offences. The fact that the offender has committed an offence of this nature is sufficient reason in most cases to take the protective measure of imposing reporting obligations because the consequences of any re-offending are profound.
  2. 34. However, a clear exception is a young person who is involved in an ongoing, sexual relationship that would not have constituted sexual offending but for the age of one of the parties involved. In such cases, the court would make an individual assessment.

Category 2

  1. 35. Category 2 offences are the offences, other than those in Category 1, that involve, or may involve, the perpetrator taking part in sexual activity with a child. As with Category 1, many offenders who commit these crimes should be monitored for a reasonable time because they might pose an ongoing risk to children.
  2. 36. The Commission believes that there should be a presumption that a person found guilty of a Category 2 offence will be included in the Register unless the offender can satisfy the court on the balance of probabilities that making an order would serve no useful protective purpose.
  3. 37. To ensure that courts consider appropriate expert evidence before making decisions about Category 2 offenders, they should consider a risk assessment report from a suitably qualified psychiatrist or psychologist unless there are exceptional circumstances that justify making an order without a report.

Category 3

  1. 38. Category 3 offences are non-contact offences where the principal offender does not actually participate in sexual activity with a child. They include child pornography offences and other offences that are often committed for commercial purposes. While these offences are serious and merit appropriate penalties, the offenders do not actually engage in sexual contact with the victim and might not pose a risk of committing contact offences.
  2. 39. In view of the need to ensure that the registration scheme uses police and child protection resources effectively, the Commission believes that a registration order should only be made in these cases where the court considers that it is necessary to protect children from the risk of sexual abuse.
  3. 40. Some of the offences in Category 3, such as possessing child pornography, can occur in a diverse range of circumstances. The offence of possessing child pornography applies to young people who take photographs of naked, underage partners with their permission, and to members of paedophile rings that collect graphic child abuse and child pornography material. Registering the former offenders might be of little benefit, while registering the latter might assist in protecting children from the risk of sexual abuse.
  4. 41. The Commission believes that the prosecution should bear the burden of satisfying a court on the balance of probabilities that it is necessary to make a registration order for a person found guilty of a Category 3 offence. As with Category 2 offences, courts should consider a risk assessment report from a suitably qualified psychiatrist or psychologist unless there are exceptional circumstances that justify making an order without a report.

Related recommendations

  1. 42. The Commission believes that children and young people should be included in the Register in exceptional circumstances only, because there are other mechanisms that can be used to protect children from the risk of sexual abuse and because of the impact of registration on a young person. It recommends that the court not make a registration order for a child or young person unless it is satisfied that it would serve a useful purpose and all other reasonable protective responses have been exhausted.
  2. 43. In relation to all child sex offenders, there may also be some limited situations where a sex offender registration order would not be appropriate because of the inability of the offender to comply with the reporting obligations or because of the very unusual nature of the offending. The Commission recommends that the court should be permitted to decline to make a registration order if satisfied on the balance of probabilities that the person would be unable to comply due to physical or cognitive impairment, or where the offence was an isolated event that occurred a long time ago and no useful purpose is served by registration.
  3. 44. In the Commission’s view, it is no longer necessary to register offenders who have committed sexual offences against adults. They currently account for less than three per cent of all registered offenders and the Serious Sex Offenders (Detention and Supervision) Act provides a more suitable protective legislative response to the risk of harm these offenders pose to the community.

Reporting obligations

Special conditions

  1. 45. All registered sex offenders have the same reporting obligations regardless of their risk of re-offending or their need for assistance to avoid offending behaviour. There is no capacity for individual assessment that takes into account the needs of the community or the offender. Consequently, there is no opportunity to include any components that may assist the offender to comply with their reporting obligations or which could reduce the risk of re-offending. There is no scope to impose any additional preventative measures that may assist child protection authorities to safeguard particular children from harm or permit the police to monitor a particular offender more closely than others.
  2. 46. The Commission believes it should be possible to tailor reporting conditions to support registered offenders in functioning successfully in the community and to better manage the risk of harm to children when there are heightened concerns about the likely behaviour of a particular individual. It recommends that courts should be permitted to impose special conditions that:
  • provide for offenders who are of particular concern to report more frequently than annually and whenever personal details or contact with children change
  • require an offender with a cognitive disability or mental illness to be accompanied by an independent third person, assigned by the Office of the Public Advocate, when making a report in person
  • direct an offender to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community
  • authorise a representative of the Department of Human Services to be present when a registered sex offender is reporting information about their contact with a child or children to the police.

Duration and extension

  1. 47. The duration of a registered sex offender’s reporting obligations depends upon the nature of the offences for which the offender was sentenced, and whether the offender was an adult or a child at the time of committing the offences.
  2. 48. As at 1 December 2011, 711 of the 2830 registered sex offenders who were living in the community faced lifetime reporting obligations. Another 1178 were required to report for 15 years, while 912 registrants were required to report for eight years. A person who faces lifetime registration can apply to the Supreme Court for removal after 15 years. It will not be possible for anyone to make an application of this nature until 1 October 2019. The Chief Commissioner’s power to apply to the Supreme Court at any time for the suspension of a registered offender’s reporting obligations has not been used.
  3. 49. The Commission believes that the current reporting periods should be reconsidered because they are producing spiralling workloads for Victoria Police and the Department of Human Services without any evidence of the benefits that such lengthy registration produces.
  4. 50. Shorter initial reporting periods for the proposed three new categories of offenders are recommended. Category 1 and Category 2 offenders should be registered for five years, while Category 3 offenders should be registered for three years.
  5. 51. However, the total period for which a registered sex offender may be required to report could be longer. It should be possible for the Chief Commissioner of Police to apply to a court to extend a registration order (and the associated reporting period) for all three categories of offenders. There should be no limit to the number of extensions that can be made in relation to a particular offender.
  6. 52. The reviewing court should consider whether further monitoring would be useful and whether additional assistance such as ongoing participation in rehabilitation programs is desirable. A person’s registration should cease if no useful protective purpose would be served by ongoing reporting obligations.
  7. 53. As the performance of the person on the order would be a relevant factor in considering an extension, regular review would provide an incentive to the person to adhere with conditions such as rehabilitation programs, and to seek reintegration into the community.
  8. 54. Regular review of the need for continuing registration should make the allocation of police and Department of Human Services resources more effective by enabling them to focus on those offenders who pose a real risk of harm.

Suspension

  1. 55. There are only a few circumstances in which reporting obligations may be suspended under the Sex Offenders Registration Act. The Commission understands that the reporting obligations of some registered sex offenders are currently suspended for medical reasons, even though there is no provision under the Act to deal with these situations.
  2. 56. The Commission recommends permitting the Chief Commissioner of Police to suspend the reporting obligations for up to 12 months if satisfied that the offender is no longer able to comply with them due to physical or cognitive impairment. A registered sex offender who unsuccessfully applies for suspension on these grounds should be permitted to seek a review of the Chief Commissioner’s decision in the court that made the registration order.
  3. 57. Where the registered sex offender is in government custody or under government supervision, no protective purpose is served by requiring them to comply with reporting obligations. The Act provides for the suspension of the reporting obligations when the offender is in government custody, but the definition does not extend to all relevant circumstances and the Commission recommends expanding it.
  4. 58. In all cases, time would continue to run during the period of suspension.

Transitional arrangements

  1. 59. 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 revised scheme—unless the new arrangements can be applied to those people now on the Register.
  2. 60. 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.
  3. 61. 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. These arrangements are also necessary as a matter of fairness to existing registered sex offenders so that they are treated in the same way as later registered sex offenders.
  4. 62. After considering various options, the Commission believes that a rigorous, efficient, transparent and fair process would be 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.
  5. 63. The Commission proposes that the panel comprise a retired judge, a health professional who is experienced in treating child sex offenders, and at least one other person with experience in 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.
  6. 64. 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.
  7. 65. 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
  • impose any additional conditions upon a registrant that a court could impose under the proposed revised arrangements
  • 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.
  1. 66. Those young people who are currently subjected to lengthy reporting obligations after being found guilty of ‘sexting’, or of having a sexual relationship with an underage partner that would otherwise have been lawful, could be eligible for termination by the panel.
  2. 67. The jurisdiction of the 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 Victoria to remain on the Register for the period determined by the law in the original jurisdiction.

Police powers and breaches of reporting obligations

  1. 68. The Commission’s terms of reference require consideration of the powers of the Chief Commissioner to assess the veracity of information provided by registered sex offenders. Although the police have no special powers to do this under the Sex Offenders Registration Act, general police powers of entry and search are available when the police are investigating possible breaches of the Act.
  2. 69. Failing to comply with the reporting obligations under the Sex Offenders Registration Act, for which the maximum penalty is five years imprisonment, is a ‘serious indictable offence’ for the purposes of section 459A of the Crimes Act 1958 (Vic). The police have the power to enter and search any premises without a warrant when they have reasonable grounds for believing that a registered sex offender has committed this offence.
  3. 70. The same powers are not available to the police in relation to the offence of furnishing false and misleading information, for which the maximum penalty is two years imprisonment or 240 penalty units.
  4. 71. The Commission believes that this inconsistency should be remedied by giving the police specific entry and search powers when dealing with all suspected breaches of the Sex Offenders Registration Act. The Commission also proposes that the two offence provisions be combined into a single summary offence for which the maximum penalty is proportionate to the degree of wrongdoing.

Reportable contact with children

  1. 72. The Commission makes a number of recommendations to enhance the timely flow of useful information from the Register to the Department of Human Services to assist it in investigating protective concerns about a registered sex offender having contact with a particular child or children. These recommendations include clearly defining the type of ‘contact’ with a child that registered sex offenders are required to report to police, and amending the process by which information about registered sex offenders’ contact with children is collected by Victoria Police and shared with the Department of Human Services.

Definition of ‘contact’

  1. 73. The Commission believes that registered sex offenders should continue to be obliged to report the names and ages of any children with whom they have ‘contact’, as well as the addresses of those children and any other means of contacting them. The ‘contact’ that must be reported should include both the mode of contact—for example, whether it is face-to-face, over the telephone, or online—and the circumstances in which that contact occurs.
  2. 74. When describing the mode of contact the Commission recommends a definition based on the definition of ‘contact’ in Part 5 of the Sex Offenders Registration Act. This will cover particular types of physical contact, verbal communication and written communication, whether in-person, by telephone or over the internet. Physical contact should include both physical proximity and touching. The registered sex offender being present in the same dwelling as the child would constitute physical proximity.
  3. 75. Defining the circumstances of the contact that a registered sex offender must report is more difficult. The definition should include any contact, of a defined mode, where the registered sex offender is residing with, supervising, caring for, visiting or forming a relationship with the child, but exclude any incidental or one-off contact the offender may have with a child, for example, on public transport or in the street. There would no longer be any need for a distinction between ‘contact with a child’ and ‘residing with a child’.
  4. 76. The Commission recommends retaining the requirement for registered sex offenders to notify police that information about their contact with a child has changed, within one day of the contact occurring. This notification would not be a detailed report of the mode and circumstances of the contact, but simply an indication that the registered sex offender intends to make a full child contact report within seven days. Requiring this notification to be made within one day of the contact occurring is not particularly onerous, as the notification may be made by telephone. A more detailed child contact report form would need to be submitted in person within seven days of the contact occurring. The Commission considers that these short time frames for reporting contact with a child are necessary to enable the police and child protection to conduct their investigations as soon as possible after the contact occurring.

Contact reports

  1. 77. The Commission has been told by the Department of Human Services that the information it receives about registered sex offenders’ contact with children is sometimes not detailed enough, and may not include the nature of the contact, or the identity or whereabouts of the children. The Department has indicated a desire for more targeted information.
  2. 78. The current policy for all reports of unsupervised contact to be passed from Victoria Police to the Department of Human Services without filtering also means that the Department receives a large amount of information, not all of which will be relevant to investigating protective concerns. The Commission understands that this practice has had significant resource implications for the Department.
  3. 79. A new mechanism for collecting information from registered sex offenders is required to improve the varying quality of information currently provided to the Department of Human Services by Victoria Police about contact between registered sex offenders and children.
  4. 80. The Commission recommends that a new child contact report form should be devised by the key agencies after consulting organisations with relevant experience working with offenders. Both Victoria Police and the Department of Human Services should be responsible for designing the form, as police compliance managers will have primary responsibility for ensuring that registered sex offenders complete it appropriately and the Department of Human Services will use the information it contains to inform its protective investigations.

Child protection prohibition orders

  1. 81. Sometimes a person who has completed a sentence following a conviction for a sexual offence involving a child might behave in a way that is lawful but of concern to the police or child protection authorities. Such behaviour could include contacting a child against whom the person has previously committed offences, or frequenting a place where grooming or other offending previously occurred, such as a municipal swimming pool or park. Other Australian jurisdictions have introduced child protection prohibition orders to enable a court to place restrictions upon this type of behaviour.
  2. 82. Child protection prohibition orders provide a preventative mechanism that permits a court to order that a registered offender not engage in certain types of behaviour or employment, go to certain places, or contact certain people. They are similar to other types of preventative orders made under the Family Violence Protection Act 2008 (Vic) and Personal Safety Intervention Orders Act 2010 (Vic).
  3. 83. The Commission recommends that child protection prohibition orders should be available in Victoria as they would enable Victoria Police to take appropriate action to protect a child who may be at risk of harm from a registered sex offender without child protection authorities having to follow the existing practice of making a protection application in relation to the child.

Information sharing

  1. 84. The Commission’s terms of reference direct it to consider ‘the management and use of information about registered sex offenders’. The Ombudsman reported that various people expressed concerns to him about the Sex Offender Registration Act’s limitations concerning information sharing between Victoria Police, Corrections Victoria and the Department of Human Services.

Sharing by Victoria Police and the Department of Human Services

  1. 85. 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.
  2. 86. The authority should be given under the Children, Youth and Families Act 2005 (Vic). Under that Act, the Secretary of the Department of Human Services and all members of the police force are ‘protective interveners’. 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.
  3. 87. The Commission considers that 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.
  4. 88. 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’.

Giving information to parents and carers

  1. 89. 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. The Commission considers that, 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.
  2. 90. 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. 91. 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.
  4. 92. Designated officers, parents and carers 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.
  5. 93. In order to assist the child’s parent or carer to respond to a disclosure under the recommended new provisions, the designated officer should be required to refer the child’s parent or carer to an appropriate counselling service. 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.
  6. 94. Disclosures of this nature could have grave consequences for the registered sex offender,
    particularly 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, the 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.
  7. 95. 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.

Sharing by Corrections Victoria and the Department of Human Services

  1. 96. Corrections Victoria currently provides information to the Department of Human Services in accordance with an Instrument of Authority, signed by the Minister for Corrections. The Commission recommends amending the Children, Youth and Families Act to codify the Instrument of Authority. The amendment 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 holds concerns about the risk the offender poses to a particular child or children.
  2. 97. The Commission also recommends that the Secretaries of the Department of Human Services and Justice should develop protocols for this purpose.

Contribution to a national approach

  1. 98. The Sex Offenders Registration Act is based on a model endorsed by all state and territory police ministers. All jurisdictions now have similar registration schemes, though they have departed from the model in different ways and are increasingly divergent. Importantly, however, registered offenders cannot avoid their obligations by moving interstate because each state and territory recognises and enforces the reporting obligations imposed in any Australian jurisdiction.
  2. 99. Underpinning the national approach to registration is a national database of registered offenders, known as the Australian National Child Offender Register, to which all police forces and other law enforcement agencies have access. CrimTrac, a Commonwealth executive agency, maintains the database.
  3. 100. Although the Act was passed in the context of building a national approach to registration, and allows Victoria Police to share information with other law enforcement agencies, it does not provide for the disclosure of information to CrimTrac. The Commission recommends that the Act be amended to rectify this anomaly.
  4. 101. The Commission is also concerned that CrimTrac is not a statutory body that is directly accountable to the Commonwealth Parliament for the management of the information it holds on offenders registered under the Act. The Commission supports moves for CrimTrac to be given legislative backing and recommends that it be brought under the jurisdiction of the Australian Commission for Law Enforcement Integrity.

Accountability and review

  1. 102. This report, and the Ombudsman’s report, have permitted the Victorian Parliament to receive some information about the operation and impact of the sex offenders registration scheme. Such opportunities for review are not built into the Sex Offenders Registration Act. The Director, Police Integrity has had a limited role in monitoring the management of information in the Register, but the findings are not public. There is no provision for a general review of the effectiveness of the registration scheme.
  2. 103. The Commission considers that the damage to public confidence in the administration of the registration scheme following the Ombudsman’s report is likely to be improved by introducing more transparent monitoring processes. It recommends:
  • expanding the compliance monitoring role that has been performed by the Director, Police Integrity and which is expected to be transferred to the Independent Broad-based Anti-corruption Commission, and requiring compliance reports to be tabled in Parliament
  • requiring the Chief Commissioner of Police to report statistical information on the operation of the scheme to the Minister for Police annually, for tabling in Parliament
  • external review of the effectiveness of the legislation every five years.
  1. 104. The management of sex offenders is a complex and dynamic field of public policy. It is difficult to determine the impact of registration on offender behaviour, as distinct from the effect of other factors such as treatment and rehabilitation programs, sentencing practices and demographic change. Moreover, there has been very little research into this area. The Commission recommends further research that can contribute to an understanding of the extent to which sex offender registration schemes discourage re-offending.
  2. 105. As all Australian states and territories have registration schemes, and encounter similar challenges and public expectations, the research could inform legal policy in all jurisdictions and reinforce national initiatives. The Commission recommends that the research be conducted as a national project under the auspices of police ministers.
Date Published: 
Tuesday, January 21, 2014 - 14:15

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