Victorian law criminalises possession or transmission of child pornography, characterised as images showing those under 18 "engaging in sexual activity or depicted in an indecent sexual manner or context". Conviction of anyone over 18 results in automatic listing as a sex offender under the Sex Offenders Registration Act 2004 (Vic).
The unidentified case reportedly saw a young man plead guilty after he has received, when an 18 year old,
four uninvited text message pictures of girls, aged between 15 and 17 years, topless or in their underwear. Police found the pictures on his mobile phone and laptop and charged him with child pornography offences.There is no indication of how the images came to police attention and why the young man did not delete the images.
The Age states that
The magistrate, who spoke on condition of anonymity, said he had made the unusual decision to speak out because he was troubled by cases recently identified by The Sunday Age. ...The Law Reform Commission discussion paper noted above comments that
On legal advice the youth pleaded guilty and was sentenced to a one-year good behaviour bond without conviction. The magistrate refused the prosecutor's application for the young man to be placed on the sex offender register but police later realised his guilty plea resulted in mandatory registration for eight years. Magistrates have discretion for those aged under 18, but none for adults.
"These people shouldn't be regarded as sex offenders. It's going beyond the pale in relation to the imposition of long-term penalties which are not judicial penalties, they're not fines or community-based orders or even sex offender treatment programs. This is a limitation on what a person can and can't do for the next eight years of their life, for God's sake" ...
The magistrate said that in the sexting cases coming before him in court the offenders "have a minimal amount of culpability attached to them and a minimal amount of danger to any other person in the community. That's when it becomes so unjust".
He called for magistrates and judges to be given discretion over who ought to be listed as a sex offender. "We're the ones that see the material, we hear the pleas from the legal practitioners, we get to hear the prior convictions if there are any, we get to see the actual participants - the people who have been involved in this sort of activity" ...
In November 2003, the Australasian Police Ministers Council formally approved the establishment of the Australian National Child Offenders Register (ANCOR), which became operational on 1 September 2004. ANCOR is a national database of information about registered offenders that is collected under the registration schemes of each Australian state and territory. CrimTrac describes it as ‘a web-based system designed to assist police to register, case manage and share mandatory information about registered persons as required by legislation’. This ‘legislation’ is the registration legislation in each Australian jurisdiction.That legislation includes -
Shortly before ANCOR became operational, the Australasian Police Ministers Council agreed on model sex offender registration legislation. All Australian states and territories now have legislation governing the registration of sex offenders, although it is not uniform.
• Child Protection (Offenders Registration) Act 2000 (NSW)The paper goes on -
• Child Protection (Offender Reporting & Registration) Act 2004 (NT)
• Child Protection (Offender Reporting) Act 2004 (Qld)
• Community Protection (Offender Reporting) Act 2004 (WA)
• Community Protection (Offender Reporting) Act 2005 (Tas)
• Crimes (Child Sex Offenders) Act 2005 (ACT)
• Child Sex Offenders Registration Act 2006 (SA).
Mandatory registration forms part of the sex offender registration schemes in most Australian jurisdictions. In Victoria, mandatory registration applies only to adults convicted of sex offences against children. In other states and territories, conviction for child homicide, kidnapping and other offences also results in mandatory registration.
Tasmania is the only state that allows some judicial discretion in relation to the registration of child sex offenders. A person convicted of a registrable offence in Tasmania must be placed on the register ‘unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future’.
All Australian jurisdictions give courts a discretionary power to order that people convicted of offences other than child sexual offences be placed on the Register. The court can make a registration order on its own initiative in the Northern Territory, Queensland, Western Australia and Tasmania. An application by the prosecution is required in New South Wales, the Australian Capital Territory and South Australia, as it is in Victoria. Most jurisdictions only allow a registration order to be made at the time of sentencing. The exceptions are Victoria and New South Wales, where the application for an order can be made within a few weeks of sentencing.
In all states and territories, except Tasmania, the court can make a registration order if it is satisfied that the offender poses a risk to the ‘sexual safety’ of children, people, or the community generally. It is not necessary, in any jurisdiction, to identify a particular class of children or persons who are at risk. In Tasmania, the court must be satisfied that there is a risk the offender will commit a registrable offence in future. Only the Victorian legislation requires the court to be satisfied beyond reasonable doubt that the person poses a risk to sexual safety; the other jurisdictions do not specify what standard of proof is required.
Generally, when a registered sex offender who is required to comply with reporting obligations under the registration scheme in one jurisdiction moves to or visits interstate, they will be deemed to be a ‘corresponding registered offender’. This means that they will still be a registered offender if they move interstate and will be subject to that new state or territory’s reporting requirements.
The length of a registered sex offender’s reporting period depends upon the type and number of offences for which they were convicted and their age at the time of the offence. The correlation between reporting periods and offences varies across jurisdictions, but the possible duration of a reporting period for an adult is consistently eight years, 15 years or the rest of the offender’s life.
In all jurisdictions except South Australia, the reporting period for juvenile offenders is half of the applicable period for an adult offender. Offenders who are required to report for life may apply to a court — or in New South Wales, the Administrative Decisions Tribunal — after 15 years to have their reporting obligations suspended. Offenders with shorter reporting periods are unable to apply to have the length of their reporting obligations reduced.
In each Australian jurisdiction, the head of the police force maintains the Register. The extent to which the operations of the registration scheme are externally monitored and reviewed varies between jurisdictions.
The New South Wales legislation required the Ombudsman to report to the Minister for Police on the operation of the Act after two years, and the Minister for Police to report to Parliament on the police objectives of the Act as soon as possible after receiving the Ombudsman’s report. Both of these reports have been completed.
Several other jurisdictions have review requirements that involve reporting to Parliament, while some do not deal with review at all. The monitoring provisions in the Australian Capital Territory and Victoria are limited to checking that the police comply with their statutory obligations concerning maintaining and securing access to the Register.
The Sex Offenders Registration Act establishes a mandatory and universal registration scheme that seeks to monitor the activities of child sex offenders when they return to the community after completing their sentences. The scheme is universal in two respects: it applies to all people convicted of sexual offences involving children and the same reporting requirements apply to all registered sex offenders. It applies to a very broad range of offences.
The courts do not have the power to determine which convicted sex offenders require monitoring or to devise individualised reporting requirements that seek to monitor the activities of a particular offender. Research indicates, however, that sex offenders do not re-offend more often than other serious offenders and that there are identifiable characteristics of ‘high risk’ offenders that could possibly be useful predictors of recidivism. The Commission will investigate whether some form of individualised judicial decision making about both inclusion in the Register and the content of reporting obligations is desirable.
The universal operation of the scheme has caused the Sex Offenders Register to grow very quickly, with more than 20,000 registrants anticipated in the first 30 years of the scheme. The Commission will investigate the resource implications of this growth, especially for Victoria Police and the Department of Human Services.
The scheme appears to have become a significant source of child protection notifications to the Department of Human Services. The Commission will examine whether information provided as part of the sex offender registration scheme provides the Department of Human Services with useful advice about possible child abuse.
The scheme also appears designed to give convicted child sex offenders and the community important messages. It seeks to inhibit re-offending by making convicted sex offenders aware of the fact that they are being monitored and to reassure the community that the police are aware of some of the activities of these people. Both points were emphasised by the New South Wales Minister for Police in 2000 when introducing the Bill upon which the national registration scheme was based. The Minister said that the scheme would ‘better convey to the offender that police are aware of them’ and ‘provide child abuse victims and their families with an increased sense of security’. The Commission will investigate whether this scheme is an effective means of achieving these goals.
