Policy Statement - Registration and Reporting Obligations for Child Sex Offenders
3 November 2010
In every state and territory of Australia, legislation has been enacted which requires people who have been found guilty of certain offences against children to be entered on a register of offenders. Registered persons must keep police informed, for a specified or indefinite period, about 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.
The legislation is based on the premise that knowledge of the whereabouts and activities of convicted sex-offenders:
- better enables police to prevent child sex abuse;
- assists in the investigation and prosecution of child sex offences committed by recidivist offenders;
- provides a deterrent to re-offending; and
- affords child abuse victims and their families an increased sense of security.
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 2004. However, differences remain between the legislative regimes of each jurisdiction.
CrimTrac maintains the Australian National Child Offender Register, which allows police from all jurisdictions to share information about registered persons and which enables alerts to be generated when registered persons notify that they are planning to travel interstate or overseas.
The Law Council does not object in principle to the maintenance of child protection registers of the type described.
However, acknowledging that inclusion on the register brings with it onerous reporting obligations; ongoing police monitoring of, and involvement in, one’s activities; and the risk of adverse community attention, the Law Council is of the view that only offenders who pose a demonstrated risk to children should be required to register. The experience of legal practitioners in recent years suggests that the registers do not always operate in this targeted manner.
People are automatically required to register upon a finding of guilt for a wide variety of offences. There are myriad factual scenarios which may lead to a successful prosecution for a qualifying offence, not of all which are indicative of a propensity for sexual predation. This is particularly the case where the qualifying offence involves:
- consensual sexual activity between young people;
- an isolated act of violence committed by one young person against another young person;
- kidnapping where there is no sexual motive (for example where a car is stolen and a child is in the back); or
- the possession, production or distribution (again, potentially by young people themselves) of material which falls within the outer reaches of the broad definition of child pornography.
Inclusion on the register, and the reporting obligations it entails, has the potential to extend a person’s contact with police and the criminal justice system well beyond the expiry of any sentence they receive. Likewise, it casts the constant spectre of negative exposure and unwarranted discrimination over a person’s future employment opportunities and engagement in the community. The consequences, particularly for first time and one-off offenders, can be unduly punitive.
For that reason, the Law Council’s National Criminal Law Liaison Committee has formulated the following statement of principles, which the committee submits ought to govern the operation of the register in each state and territory. At present, there is no state and territory legislative regime which complies with all of the principles.
The Law Council notes that this statement does not address in detail a range of particular concerns relevant to the inclusion of certain individuals on child sex offender registers, such as concerns relating to individuals experiencing mental illness or the inclusion of juveniles on the register.
This statement is intended to provide broad guidance as to the key principles that ought to be governing the operation of the register in each state or territory.