Registration and Reporting Obligations for Child Sex Offenders: Law Council Policy Principles v Current State and Territory Practice

Transcription

1 Registration and Reporting Obligations for Child Sex Offenders: Law Council Policy Principles v Current State and Territory Practice On 18 September, Law Council Directors approved a set of policy principles relating to the registration and reporting obligations of child sex offenders. The policy principles document, which includes background to and explanation of the principles, is available on the Law Council s website at Every State and Territory jurisdiction in Australia has legislation providing for the establishment and maintenance of a register for child sex offenders as follows: NSW: Child Protection (Offenders Registration) Act 2000 ( The NSW Act ). VIC: Sex Offenders Registration Act 2004 ( The Victorian Act ). QLD: Child Protection (Offender Reporting) Act 2004 ( The Queensland Act ). SA: Child Sex Offenders Registration Act 2006 ( The South Australian Act ). GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 WA: Community Protection (Offender Reporting) Act 2004 ( The West Australian Act ). NT: Child Protection (Offenders Reporting and Registration) Act 2004 ( The NT Act ). TAS: Community Protection (Offender Reporting) Act 2005 ( The Tasmanian Act ). ACT: Crimes (Child Sex Offenders) Act 2005 ( The ACT Act ). The legislation in each State and Territory is based on national model legislation which was formally agreed to by the Australasian Police Ministers Council on 30 June However, differences remain between the legislative regimes of each jurisdiction. This document considers the extent to which these State and Territory regimes comply with the Law Council s policy principles. Principle One: Inclusion on a child offender register should not be arbitrary or automatic At present, the only jurisdiction which complies with this principle is Tasmania. In every other State and Territory an adult offender is automatically included on the register once he or she is sentenced for a prescribed offence. No additional consideration is given to the individual offender s circumstances and whether or not it is appropriate or necessary for him or her to have to register and report. In Tasmania, notwithstanding that a person has been sentenced for a prescribed offence, the Court retains the discretion to decline to order that he or she be entered on the register. Specifically, the court may decline to make an order where the court is satisfied that the offender does not pose a risk of committing a prescribed offence in the future. (See section 6 of the Tasmanian Act.) In some jurisdictions, although the court does not have a discretion akin to that in Tasmania, the legislation at least provides that a person will not be entered on the register and have reporting obligations imposed where: - the person is sentenced for a single prescribed offence, it is of a less serious nature (that is, a class two offence) and the penalty imposed does not include a term of imprisonment or a supervisory order. (See the Queensland Act s5(2)(b); the South Australian Act s6(3)(b); the NT Act s11(1)(c) and the ACT Act s9(1)(b)). - the person is sentenced for a prescribed offence but is released or discharged without conviction (See the Queensland Act s5(2)(a); the NT Act s11(1)(b); the New South Wales Act s3a(2)(a); and the ACT Act s9(1)(a)) Victoria and Western Australia have no provision of this kind. In both those jurisdiction an adult offender, if sentenced for a prescribed offence, will be automatically entered on the register regardless of whether a conviction is recorded and regardless of the sentence imposed. LCA Policy Principles v State and Territory Practice Page 2

3 All jurisdictions have special provisions dealing with juvenile offenders. In South Australia, the Northern Territory and Victoria, where a person is sentenced for a prescribed offence that he or she committed as a child, he or she is not entered on the register and subject to reporting requirements, unless the court, on application by the prosecution, makes a specific order to that effect. Before making such an order, the court must be satisfied that the person poses a relevant risk to the community. (See the South Australian Act s6(3)(a) and 9(1)(b), The NT Act s11(1)(a) and 13(2); and the Victorian Act s6(3)(a) and 11(2).) In Queensland, New South Wales, Western Australia and the ACT, the Court does not have this discretion with juvenile offenders. However, the legislation provides that certain prescribed offences, when committed by an offender as a child, will not on their own result in inclusion on the register. For example, in Western Australia, this includes the offence of using a computer to distribute of obtain objectionable material. In Queensland this includes possessing or publishing child pornography and indecent treatment of a child under 16. In New South Wales and the ACT this includes committing an act of indecency and possessing child pornography. (See the Western Australian Act s6(4); the Queensland Act s5(2)(c); the New South Wales Act s3a(2)(c), and the ACT Act s9(1)(c)).. In Western Australia, although a juvenile who is sentenced for a prescribed offence will automatically be entered on the register regardless of the sentence received, the police commissioner has the power to personally suspend any reporting obligations which are imposed as a result of being on the register. The police commissioner must consider whether this is appropriate in every case that a juvenile offender is entered on the register. The Commissioner may approve a suspension of reporting obligations of this kind only where satisfied that the person does not pose a relevant risk to the community. (See the Western Australian Act s 61.) Principle Two: An offender should be required to register only where the sentencing court is satisfied that he or she poses a risk to the lives or sexual safety of one or more children, or of children generally At present, no jurisdiction complies with this principle. As noted above, except in Tasmania, or in the case of juvenile offenders, except in Victoria, South Australia and the Northern Territory, where a person is sentenced for a prescribed offence, the court has no discretion to determine whether or not he or she should be entered on the register and subject to reporting requirements. In Tasmania, the court must make a relevant order unless satisfied that the offender does not pose a risk of committing a prescribed offence in the future. Therefore, there is a presumption in favour of making the order. It is the offender who must satisfy the court that he or she should not be entered on the register, rather than the prosecution or police who must satisfy the court that such a course is necessary or desirable. In all jurisdictions, where: - a person has been sentenced for a non-prescribed offence; or LCA Policy Principles v State and Territory Practice Page 3

4 - a person has been sentenced for a prescribed offence which did not result in automatic entry on the register because of his or her age at the time of the offence (Victoria, South Australia, Northern Territory), the court is empowered to order that the person be placed on the register regardless and subject to reporting requirements. In South Australia, Victoria, the ACT and NSW such orders may only be made on application by the prosecution or, in some cases, the police. In New South Wales, the court may make the order if satisfied that the offender poses a risk to the lives or sexual safety of one or more children, or of children generally. It is explained that a person poses such a risk if there is a risk that the person will engage in conduct that may constitute a prescribed offence against or in respect of a child or children. (See New South Wales Act s3d, 3E and 3H). Likewise, in Queensland, the Northern Territory and South Australia the court may make the order if is satisfied that the person poses a risk to the sexual safety of any child or children. (See the Queensland Act s13(2) ; the NT Act s13(3); and the South Australian Act s9(3).) In Victoria, the court may make the order if it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community. (See Victorian Act s11(3)). The test is the same in the ACT and Western Australia although the Court does not need to be satisfied beyond reasonable doubt (See ACT Act s16 and Western Australian Act s13(2)). Principle Three: There should be a right of appeal against a sentencing court s order that a person be required to register Again, as noted above, in all jurisdictions except Tasmania, in most cases a person will be entered on the register and subject to reporting requirements automatically upon being sentenced for a prescribed offence. Therefore there is no order or decision of the court to be appealed, and no exercise of Executive discretion to be reviewed. In Tasmania, the legislation provides that the person may appeal the decision as if it were a sentence imposed on conviction. (See the Tasmanian Act s50a.) The South Australian and Queensland legislation also specifically provides that where a person is placed on the register and subject to reporting obligations by order of the court, rather than simply by operation of the legislation, he or she may appeal the decision as if it were a sentence imposed on conviction (See the South Australian Act s10 and the Queensland Act s13(6)). It is assumed that in other jurisdictions, although the legislation is silent on the matter, a person would be able to appeal a court order directing that he or she be entered on the register in the same manner. LCA Policy Principles v State and Territory Practice Page 4

5 Principle Four: Following a specified period of time, a person should be able to apply to have his or her name removed from the register Although this principles is framed in terms of a person applying to be removed from the register, in practice a person is never removed from the register. After a specified period, he or she is simply no longer required to comply with the reporting obligations imposed on registered persons. Those reporting obligations require a registered person to keep police informed about matters such as their place of residence, place of employment, interstate or overseas travel plans, the motor vehicle they drive and other matters relating to their contact or likely contact with children. In each State and Territory, except Tasmania, the length of time a person remains subject to reporting requirements is automatically determined by the seriousness and/or number of offences committed by the person and whether or not the person is already on the register for another offence or offences. With some jurisdictional variations, if a person commits a single less serious offence (i.e. a class two offence), the reporting period is 8 years. If a person commits a more serious offence (i.e. a class one offence) or more than one offence (either a class one or two) the reporting period is 15 years. (NB for the purposes of calculating the reporting period, two or more offences that arise from the same incident are to be treated as a single offence.) If a person is already on the register and commits another prescribed offence then the person will generally have reporting obligations for life. Although in most jurisdictions, a person must be found guilty of 3 or more class 2 offences before they have reporting obligations for life. The length of the reporting periods are generally halved in respect of juveniles. (See the South Australian Act s34, The NT Act ss37-38; the New South Wales Act ss14a-14b, the Victorian Act ss34-35, the Queensland Act s36-37, the Western Australian Act ss46-47 and the ACT Act ss 84-90) With few exceptions, these statutorily prescribed reporting periods can not be reduced or suspended, even where a registered person may be able to demonstrate that he or she does not pose a threat to the community. One exception common to all jurisdictions is where a person is subject to reporting obligations for life. In those circumstances, he or she is able to apply to the court (or the Administrative Decision Tribunal in NSW) to have his or her reporting obligations suspended if he or she has spent a period of 15 years in the community without reoffending. Before making such an order the court must be satisfied that the person no longer poses a relevant risk to the community. (See the South Australian Act ss37-38, The NT Act ss41-42; the Victorian Act s39 &40, the New South Wales Act s16, the Queensland Act s41-42, the Western Australian Act ss52-53 and the ACT Act ss95-97.) In Victoria, the police commissioner also has a general power to apply to the court at any time to suspend a person s reporting obligations. As above, the court may only LCA Policy Principles v State and Territory Practice Page 5

6 make an order of this kind if satisfied that the registered person does not pose a relevant risk to the community. (See the Victorian Act s39a and 40). The regime in Tasmania is different to other jurisdictions and the most consistent with the Law Council principle. The Tasmanian Act prescribes the maximum period that the court may order that various offenders be subject to reporting requirements, but also allows the court the order a lesser period. (See the Tasmanian Act s 24.) Like in other jurisdictions, the Tasmanian Act allows a person who has been ordered to report for life to apply to the court, after a period of 15 years in the community without re-offending, to have his or her reporting obligations suspended. Uniquely, the Tasmanian Act also allows those who have been ordered to a report for a lesser period to apply to the court to have their reporting obligations suspended if they have already complied with the reporting obligations for three quarters of the time specified and they are not on parole. In both cases, the court may make the order only if satisfied that the registered person does not pose a risk of committing a reportable offence in the future. (See the Tasmanian Act ss27 to 29.) Principle Five: The legislation governing the establishment and administration of child offender registers should clearly set out who may have access to information on the register and for what purposes. With the exception of NSW, all jurisdictions have legislative provisions which purport to restrict access to the register and the information contained in it but which, in fact, leave it largely to the discretion of the police commissioner to determine who may have access to information on the register and for what purpose. (See the South Australian Act s61, The NT Act s65; the Victorian Act s63, the Queensland Act s 69, the Tasmanian Act s44 and the Western Australian Act s81; the ACT Act s118..) Most jurisdiction, require the police commissioner to develop guidelines in relation to the accessing and disclosure of personal information in the Register that ensure that access to the personal information in the Register is restricted to the greatest extent that is possible without interfering with the purposes of this Act. (see Western Australia Act s81(4), the South Australian Act s61(2); the Victorian Act s63(2); the Queensland Act s69(2); the NT Act s 65(3); and the ACT Act s118(2)). Inquiries made in several jurisdictions indicate that the guidelines are not readily available to the public. Beyond this, little specific legislative guidance is given about access to the register. In the ACT, the legislation is slightly more prescriptive than in other jurisdictions. Personal information on the register may only be disclosed by a person with access to the register: LCA Policy Principles v State and Territory Practice Page 6

7 - for law enforcement functions or activities and then only to an entity prescribed by regulation; or - as otherwise required or authorised by a regulation or under an Act or other law. (See the ACT Act s118(1)(b)) The regulations made under the ACT Act provide an exhaustive list of agencies and persons to whom information may be disclosed. (See Crimes (Child Sex Offenders) Regulation 2005 Reg 16A). The New South Wales Act is in different terms to other jurisdictions. The New South Wales Act was initially completely silent about how police should use information on the Register, because it was contemplated that NSW Police would formulate appropriate policies and procedures on these matters. In 2008, the New South Wales Act was amended to add section 19BA. This section specifically enables designated government agencies to collect and use personal information about a person on the register and to exchange such information with other designated government agencies. Before information can be exchanged a written authorisation must be in place between the agencies. Such an authorisation may only be issued where the agency is satisfied: - that there is a risk of substantial adverse impact on the registered person (or some other person or class of persons) if such information is not collected, used or disclosed - that the collection, use or disclosure of such information is likely to assist in developing, or giving effect to, a case management plan for the registrable person Substantial adverse impact is defined to include serious physical or mental harm, sexual abuse, significant loss of benefits or other income, imprisonment, loss of housing or the loss of a carer. The list of designated agencies includes, amongst others, the NSW Police Force; the Department of Ageing, Disability and Home Care; the Department of Community Services; the Department of Corrective Services; the Department of Education and Training; the Department of Health; and Housing NSW. Principle Six: Registered persons should be informed if information about them is disclosed to a person or agency, other than a law enforcement agency or officer At present, this principle is not reflected in the legislation of any jurisdiction. It may be reflected in internal police polices and procedures, which are not easily accessible to the public. The Law Council is presently attempting to gain a more complete picture of the use and disclosure guidelines and protocols in place in each jurisdiction. LCA Policy Principles v State and Territory Practice Page 7

8 Principle Seven: Registered persons should only be required and requested to provide police with information in accordance with the legislation. At present, no jurisdiction contains a legislative provision which prohibits police from seeking additional information from a registered person when he or she attends at a designated place to report to police in accordance with his or her obligations under the legislation. This matter may be addressed in internal police polices and procedures, which are not easily accessible to the public. The Law Council is presently attempting to gain a more complete picture of the relevant guidelines and protocols in place in each jurisdiction. A 2005 report by the NSW Ombudsman on the operation of the NSW regime (available at ) indicates that at the time the report was written, police in NSW routinely sought additional information, beyond that required by the legislation, from registered persons. The report also indicates that registered persons generally provided additional information to police without understanding that they were not required to do so or that no negative consequences would follow from a failure to cooperate. (See paragraphs 11.3 and of the Report.) Principle Eight: Registered persons must be able to provide information to police, in accordance with their reporting obligations, and police must verify that information, in a manner which does not in and of itself jeopardise the privacy of registered persons. In all jurisdictions, except Tasmania, there are provisions which require that a person who attends at a designated place in order to provide information in accordance with their reporting obligations must be able to do so in private, away from the hearing of the general public. (See the South Australian Act s23, The NT Act s27; the Victorian Act s24, the New South Wales Act s12b, the Queensland Act s27, the Western Australian Act s36 and the ACT Act s73.) No jurisdiction has a legislative provision which requires police, when seeking to verify the information provided by registered persons (for example by attending at a residential address or place of employment provided by him or her) to take reasonable steps to safeguard the privacy of the registered person, and in particular, not to inadvertently alert third parties that the person is on the register. This matter may be addressed in internal police polices and procedures, which are not easily accessible by the public. The Law Council is presently attempting to gain a more complete picture of the relevant guidelines and protocols in place in each jurisdiction. A 2005 report by the NSW Ombudsman on the operation of the NSW regime (available at ) indicates that at the time the report was written, despite the police guidelines which were in place, police were not always LCA Policy Principles v State and Territory Practice Page 8

9 sensitive to the privacy concerns of registered persons when carrying out routine monitoring activities. (See paragraphs of the Report.) Principle Nine: Unlawful disclosure of information on the child sex offenders register should constitute an offence. In all jurisdictions it is an offence to unlawfully disclose personal information obtained from the register. (See the South Australian Act s67, The NT Act s66; the Victorian Act s64, the New South Wales Act s21e, the Queensland Act s70, the Tasmanian Act s45, the Western Australian Act s82 and the ACT Act s121.) In Western Australian there is an additional aggravated offence where a person discloses the personal information contained on the register for a benefit. In the ACT, there is an additional offence where a person, who is not lawfully authorised to do so, accesses the register. (See ACT Act s 120.) Principle Ten: Unlawful disclosure offence provisions should be accompanied by a complaints based mechanism administered by an independent body such as the Privacy Commissioner. At present, no jurisdiction s child sex offenders registration Act has specific provisions providing for a complaints based mechanism of this kind. However, the Victorian Act contains provisions which task the Office of Police Integrity with monitoring and reporting on compliance with any guidelines issued by the police commissioner in relation to the accessing and disclosure of personal information in the Register. (See the Victorian Act s66a 66D.) Likewise, in other jurisdictions there are independent bodies, with more generic oversight of police and/or with more generic oversight of government information management, which are empowered to investigate complaints about the manner in which police or another agency with access to information on the register has handled or used that information. (See for example Ombudsman Act (ACT) 1989 s4a.) LCA Policy Principles v State and Territory Practice Page 9