The consultation exercise is on interest in relation to current debate about the state's Charter of Human Rights & Responsibilities, the management of serious offenders and the long-term criminalisation of sexting by minors.
The Paper for example noted that -
The Sex Offenders Registration Act imposes limits upon three rights recognised and protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). They are:The Commission commented that -• the right to move freely within Victoria, enter and leave it, and choose where to liveThe Charter permits limitations of rights that are reasonable and proportionate.4 One of the matters that may be considered when determining whether limits placed on a person’s rights are reasonable and proportionate is the rights of others. The Charter recognises the right of children to protection that is in their best interests and which they require as children.
• the right of every person not to have their privacy, family, home or correspondence arbitrarily
or unlawfully interfered with or their reputation unlawfully attacked
• the right to freedom of association with others.
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 Paper asked -
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.
PurposesThe Paper noted that mandatory reporting by registered offenders includes the following information -
1. To what extent does the Sex Offenders Registration Act fulfil its stated purposes?
2. Should the Sex Offenders Register be a primary source of information to the Department of Human Services about child protection concerns?
3. Does the Sex Offenders Registration Act establish an effective scheme for monitoring the activities of convicted child sex offenders who are likely to re-offend?
Inclusion in the Sex Offenders Register
4. Should inclusion in the Sex Offenders Register be an automatic administrative consequence of a person being convicted of and sentenced for a Class 1 or Class 2 offence?
5. Should the court have a discretionary power to decide whether to order that a person who is convicted of some or all of the Class 1 or Class 2 offences be placed in the Sex Offenders Register?
What criteria should govern the exercise of any discretionary power?
6. Should an order placing a person in the Sex Offenders Register be a matter that the court can take into account when sentencing a person for a Class 1 or Class 2 offence?
7. Should it continue to be possible for a court to order that a person convicted of any offence be placed in the Sex Offenders Register if the court is satisfied that the offender poses a risk to the sexual safety of any other person?
Duration of reporting obligations
8. Should the duration of a registered sex offender’s reporting obligations continue to be automatically determined by a legislative classification of offences?
9. Should the court have a discretionary power to determine the length of the reporting period? What criteria should govern the exercise of any discretionary power?
10. Are the current provisions in the Sex Offenders Registration Act for suspending the reporting obligations of sex offenders adequate?
11. Should the Chief Commissioner of Police or some other statutory official have the power to apply to a court for an order extending a registered sex offender’s reporting obligations?
Content of reports
12. Should all registered sex offenders continue to have the same reporting obligations that are automatically determined by the legislation?
13. Should the court have a discretionary power to determine the content of a registered sex offender’s reporting obligations? What criteria should govern the exercise of any discretionary power?
14. Should the Chief Commissioner of Police have additional powers which would permit police officers to test the truth of any report provided by a registered sex offender? If yes, what should those powers be and in what circumstances should they be available?
Management, use and disclosure of information in the Register
15. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to CrimTrac for national law enforcement purposes?
16. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to the Secretary of the Department of Human Services for child protection purposes?
17. Should the Chief Commissioner of Police have an express power to give some or all information in the Sex Offenders Register to any other public body or official for any other purpose?
18. Should registered offenders continue to be required to report ‘unsupervised contact’ with a child? If so, should the legislation contain guidance about what is meant by this term? Should registered sex offenders be required to report 'unsupervised contact' with a child before it occurs rather than after it has occurred? If reporting were required in advance of contact, should it be before the first contact, a subsequent contact, or at any other point in time?
Protections for registered sex offenders
19. Are there adequate protections for registered sex offenders in the Act?
Accountability and review
20. Are the current accountability and review mechanisms in the Act adequate?
Management of other information about registered offenders
21. Should other government agencies be required or permitted by legislation to give the Chief Commissioner of Police information about a registered sex offender for inclusion in the Sex Offenders Register? If so, what type of information?
22. Should Corrections Victoria be required or permitted by legislation to give the Secretary of the Department of Human Services information about a sex offender that is acquired during any treatment programs undertaken by the offender when in custody or on parole?
• name(s) by which they are knownIn a cogent submission the Office of the Privacy Commissioner, the state agency that's more engaged than its national counterpart, highlighted several concerns regarding the Victorian regime.
• any other name(s) by which they have been known in the past, and the period for which they were known by that name
• date of birth
• address of each place they reside for at least 14 days (whether consecutive or not) in any 12 month period or, if homeless, the localities in which they can generally be found
• telephone number
• email address
• name and business address of internet service provider
• internet, instant messaging, chat room or other user names or identities used through the internet or other electronic communication services
• names and ages of any children with whom they usually live or have unsupervised contact for at least three days (whether consecutive or not) in any 12 month period
• employment details, including work under an employment contract, as a self-employed person or sub-contractor, any practical training as part of an educational or vocational course, or work as a volunteer or for a religious organisation, for at least 14 days (whether consecutive or not) in any 12 month period
• details of affiliations with any clubs or organisations that have child membership or child participation in their activities
• details of any motor vehicle they own or drive on at least 14 days (whether consecutive or not) in any 12 month period
• details of any existing or former tattoos or permanent distinguishing marks
• details of any requirement to register and report under corresponding sex offender legislation
• details of any periods of government custody since they were either sentenced or released from custody for the registrable offence
• if they travel interstate at least once a month on average, or plan to do so, the reason, frequency and destinations of the travel
• passport number and country of issue of each passport held.
The submission commented that -
Act silent on removal from the RegisterMoreover -
It should be noted that there is a lack of clarity in the SOR Act as to when an offender’s information is removed from the Register. The Act does discuss the length of reporting obligations but is silent on any removal. Although the Chief Commissioner must destroy certain materials obtained from the offender, there is no requirement for the information to be deleted from the register itself.
This is a concerning feature of the SOR Act. Where a person becomes a registered sex offender and is required to report for 8 years, one would naturally expect that on conclusion of the period their reporting obligations cease and they are removed from the Register. The SOR Act does not provide for this, and does not direct the Chief Commissioner to remove the registered sex offender’s name from the Register once the reporting period ends.
It is of great importance that this anomaly be rectified, and the Act should be amended to ensure that once an offender’s reporting period ends, the individual’s name and all entries are removed from the Register. Similarly, all information concerning the person should similarly be removed from ANCOR.
2. Act silent on appeal rights against discretionary orders
The Act currently contains a court discretion (s 11(3)) to make an order requiring an offender to become a registered offender under the Act.
For those automatically included by virtue of the mandatory registration provisions of the Act, there are obviously no appeal rights. However, where a court has a discretion to impose reporting obligations, it appears that the decision of the court in this instance is not open to appeal. This appears to be an oversight, and is out of step with other jurisdictions (Tasmania, South Australia and Queensland) which treat the order to register as a sentence imposed on conviction and reviewable as such.
It is entirely possible that an offender, registered under the discretion of the court, would be able to appeal a decision utilising the inherent jurisdiction of the Supreme Court but this is not entirely clear. A better approach would be to institute a specific appeal ground (similar to the jurisdictions above) deeming the decision appealable as if a sentence imposed on conviction.
3. Collection of information from offenders should only be in accordance with the Act
The SOR Act defines what registrable offenders ‘must report’
It is entirely possible that Victoria Police may ‘over-collect’ information from offenders that is not required under the SOR Act. The offender, in a position of potential stress, may additionally volunteer information over and above what is required under the reporting provisions of the Act. but is silent as to collection of information outside the parameters of what must be reported.
In the New South Wales Ombudsman Report into operation of the NSW equivalent of the SOR Act, the Ombudsman detailed a system of collection occurring where police procedures directed the registering police officer to ‘try to obtain further information’. The report also indicates that few (only 18% of respondents) told them that they did not have to provide the additional information.
It should be made clear in the SOR Act that if additional information is sought from sex offenders, the offender be informed that provision of the additional information is optional. It is inappropriate to collect information outside of the set of information mandated by Parliament by using the position of relative weakness and purported compliance to obtain additional information.
I am unaware as to whether this is occurring in Victoria, but the fact that off-statute collection of information appears to have occurred in other jurisdictions is alarming. Legislative protection should be given to offenders to ensure that any collection of information outside that required by the SOR Act is truly voluntary and that offenders are informed as such.
4. No requirement to safeguard privacy when verifying informationThe Commissioner concludes that -
... there is no requirement on Police, when checking the veracity of information reported by offenders, to take reasonable steps to protect the privacy of the registered offender so as to not inadvertently alert third parties that the individual is a registered sex offender.
This is problematic, as the protections contained in section 64 of the SOR Act could be potentially undermined if investigation into the veracity of offender provided information results in disclosure of the individual’s status as a registered sex offender.
It may be helpful to include a provision requiring police to take reasonable steps to ensure that the offender’s status as a registered sex offender is not disclosed when investigating compliance of reporting obligations. The requirement of reasonability should ensure that Police can properly investigate matters of non-compliance balanced against non-disclosure of the offender’s status. ...
6. Management, use and disclosure of other information about registered sex offenders
The Information Paper makes the point that other public entities (namely, Corrections Victoria and DHS) hold information about registered sex offenders that is not on the Sex Offenders Register, and is governed outside the scheme of the SOR Act. The Information Paper questions whether other agencies should be required or permitted to provide police with information about a registered offender for inclusion in the Register and whether Corrections Victoria should be permitted to provide information to the DHS that is acquired during treatment programs where the offender is on parole or in custody.
It should be questioned as to whether other organisations (such as Corrections Victoria or DHS) should be required to provide information for inclusion on the Register. This would somewhat change the nature of the Register – from a database containing the self-reported information of the Offender - to a larger generic database containing information sourced from various other areas.
However, if an organisation (such as Corrections Victoria or DHS) had serious concerns about an offender (including possible recidivism), it is entirely appropriate for that organisation to make those concerns known to the appropriate authority (such as Victoria Police). ... it may be that specific legislation pertaining to both Corrections Victoria (for example, the Corrections Act 1986) or DHS (for example, the Children Youth and Families Act 2005) contain secrecy or confidentiality provisions that limit disclosure of information above and beyond the limitations contained in the Information Privacy Act. If it is thought that amendment to such legislation to better enable disclosure from these agencies to Victoria Police is necessary, I would urge any amendment to take the form of the provisions in IPP 2 (in particular, IPP 2.1(d),(e) and/or (g)).
Where Victoria Police receives information from such agencies, it will effectively be a decision for Victoria Police as to how it manages such information. However, I would question whether adding the information to the Register would be helpful, or whether it is likely to create an unwieldy and difficult to manage Register. It may be appropriate for Victoria Police to record such information through its existing intelligence management systems, rather than adding information to the Register. However, such a question is one better determined by Victoria Police. I note that section 62(2)(g) of the Act does provide for Victoria Police to include ‘any other information that the Chief Commissioner of Police considers appropriate’ in the Register.
I would, however, caution against the adoption of wide information sharing powers contained in the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
The Sex Offenders Registration Act 2004 is a creation of a time when Victoria had not formally committed to the protection of human rights. As discussed above, the Act’s aims and goals are laudable and important. However, the failure to institute judicial discretion in deciding whether an offender will be subject to the registration and reporting provisions undermines the moral and ethical basis, and efficiency, of the Act’s obligations. The possibilities of unwarranted registrations, such as the example given in paragraphs 7-10, become probable. Resources are required to manage registration and reporting by offenders who pose little risk of recidivism.
From a privacy perspective, many aspects of the Tasmanian Act, with court discretion regarding registration, rights of appeal,and a more discretionary approach to the reporting period, would be worth adopting. Stronger protections for inter-jurisdictional sharing, clarification as to what ‘unsupervised contact’ means, clarification of removal from the register, better transparency as to Register oversight and clarification around information sharing (in line with privacy principles) are all recommended.
This review allows Victoria to consider an overhaul of the operation of the Act and ensure that it operates efficiently, effectively and provides protection to the community whilst simultaneously operating in a humane manner. Victoria has an opportunity to set an exemplary template for other states, territories and international jurisdictions to consider adopting in the area of sex offender registration statutes. As it currently stands, the Act is not a template for excellence.