Sex Offenders Registration Amendment (Miscellaneous) Bill 2017

I am very pleased to speak on the Sex Offenders Registration Amendment (Miscellaneous) Bill 2017, which is before us this evening. The main purpose of the bill is to introduce some very important registration exemption orders under the Sex Offenders Registration Act 2004 (SORA). I am very pleased to see these reforms being introduced by the government. That, I would say, is the main reason for the bill and the main impetus behind the bill, but it also makes some other changes, particularly with regard to the collection of forensics samples, fingerprints and finger scans from those people who are currently on the sex offenders register and for whom the police do not have those forensics samples.
Thursday, June 8, 2017 - 11:15am
Speaker:
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak on the Sex Offenders Registration Amendment (Miscellaneous) Bill 2017, which is before us this evening. The main purpose of the bill is to introduce some very important registration exemption orders under the Sex Offenders Registration Act 2004 (SORA). I am very pleased to see these reforms being introduced by the government. That, I would say, is the main reason for the bill and the main impetus behind the bill, but it also makes some other changes, particularly with regard to the collection of forensics samples, fingerprints and finger scans from those people who are currently on the sex offenders register and for whom the police do not have those forensics samples. I will return to that part of the bill a bit later.

It is worth just briefly going over how the sex offenders register operates. It has been in operation since 2004. It is mandatory for adults who have been convicted of committing a sexual offence towards children to be included on the register. These are schedule 1 and 2 offences or class 1 and class 2 offences. Young offenders and adults who commit offences towards other adults are not automatically included. It is at the discretion of the court for these offenders to be placed on the register and to be made to abide by reporting obligations if they pose a serious risk to the safety of the community. As of May this year, there were 7193 people on the sex offenders register. Of that number, Victoria Police are currently supervising 4207 in the community. The remaining 2986 registered sex offenders are not required to report to police because they are either in government custody, residing outside Victoria, have completed their reporting obligations or are deceased. People who are deceased stay on the register, so people are listed on the register even after they die.

The vast majority of persons on the register are registered by way of automatic registration. Victoria Police does not report on the number of registered sex offenders by offence type. However, they do provide a summary in their annual report. From the end of this financial year this summary will be slightly more detailed due to amendments to the SORA that commenced earlier this year.

A person who is on the register must report their personal details to the police each year, including name, date of birth, address, telephone number, email address, any internet user names, instant messaging user names or chat room user names the offender uses on the internet, personal details of any children the offender has contact with, job details and car details. They must report any changes to these details to police within seven days. Strict conditions on details that must be provided also apply for leaving Victoria for more than two days, and there is even more detail.

It is interesting to note that children may not be found guilty of production, procurement or possession of child pornography or child abuse material if there is less than two years difference in age between the children in the images and both are consenting. This means that children caught sexting will not be placed on the sex offender register as long as there is less than two years age difference between the sender and the receiver and both are consenting. This exception applies strictly to children — that is, people under the age of 18. If a teenager's boyfriend or girlfriend is 18 or over and he or she is caught sexting the teenager, they may be found guilty of possessing child pornography or child abuse material and placed on the register.

This bill brings changes in this area so that young people aged 18 or 19 years caught sexting in a consensual sexual relationship under circumstances in the bill will be exempted from being on the register.

Clause 7 of the bill, under 'Registration exemption orders', allows a court to grant an exemption order to registration for limited circumstances. Young people found guilty of sexting when they were 18 or 19 at the time of the offence can apply for a registration exemption order. This change under the bill means that young people placed on the sex offender register for sexting partners who were under the age of 18 or for a specified offence defined as a class 1 or 2 offence as referred to in schedule 5 in clause 11 of the bill will now be able to apply to have their name removed. This is very welcome for 18 or 19-year-olds who were in a consensual sexual relationship with teenagers a few years their junior and were caught under the strict child abuse material and child sex laws.

These changes are strongly supported by the Law Institute of Victoria, for example, and by Youthlaw and Liberty Victoria — although the Law Institute of Victoria say that court discretion about whether a person is placed on the register should be permitted for all cases. This was a recommendation in the Victorian Law Reform Commission (VLRC) report that was handed down in 2012 as well. We are told that this exemption clause will apply to around 30 people per year.

As I said, I have raised issues about the application and operation of the sex offender register for a very long time — in fact the first time I raised it was in September 2009. In debate on the Justice Legislation Further Amendment Bill 2009 I stated that I asked the department:

… whether placing child offenders on the register … effectively diminishes their opportunities for help and rehabilitation …

In September 2014 in debate on the Sex Offenders Registration Amendment Bill 2014 I said:

… the operation of the sex offenders register has been highly controversial, with many advocates saying that it is inflexible and too complex.

I queried whether it was operating in the best interests of the community. At that time there were 4165 people on it and it was predicted that by 2020 there would be 10 000 people on the register. Three years later we are now at more than 7000 people on the register, when in 2014 there were just over 4000. Details of people who might be potentially dangerous reoffenders sit alongside details of offenders who in reality pose no risk to the community. In April 2016 in debate on the Sex Offenders Registration Amendment Bill 2016 I again raised the issue of the operation of the register. In New South Wales and Queensland it applies only to child sex offenders — those who offend against children — as also recommended in the Victorian Law Reform Commission report.

I again raise the issue of the register becoming too unwieldy and therefore not as effective as it should be in protecting the community. Again, in May 2016 in debate on the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 I pointed out that the register is too big and does not focus on the most serious offenders and that it includes people who committed acts when they were very young and are not regarded as ongoing risks to the community. In 2014 I also attempted to refer that bill to the legal and social issues committee for examination in light of the Victorian Law Reform Commission report.

I have actually been advocating for these changes, particularly with regard to young people being placed on the sex offender register when they pose no risk to the community of reoffending in any way whatsoever, so I am very pleased to see them being included in this bill, especially as I know members in this place have had representations from, and in fact some of us have met with the parents of, a particular young person who has been caught up in this situation. This person is not a risk to the community, was involved in a consensual relationship with a young person when they were just over 18 and have been placed on the sex offender register, and that has had a very, very devastating effect on that young person's life.

This anomaly in the strict application of the register is being remedied by this bill, and it is very welcome to see it happening.

As I said, the Victorian Law Reform Commission and others in the community are advocating further reforms. I mentioned that I have raised this issue in debates on a couple of bills over the years, and they have all been missed opportunities to make the register more focused and therefore more effective in protecting the community. As I noted before, we have gone from having just over 4000 people on the register in 2014 to now having just over 7000 people on the register, and Victoria Police are supervising more than 4200 people. That is a lot of people, and there is not really any risk assessment being done as to the risks posed by those people. As I said, some people are potentially very high risk to the community, and their names are sitting alongside the names of people who basically could be viewed as posing little or no risk to the community. In terms of the effectiveness of the register there still is a lot that could be done to amend the act to make it more effective and more focused for the community.

Mr O'Donohue referred to the genesis of the Victorian Law Reform Commission report. In fact it came after a protected disclosure report made by the Victorian Ombudsman after a whistleblower, in 2010, made an anonymous disclosure to the Ombudsman that the police had failed to inform the Department of Human Services of more than 300 registered sex offenders who were living with or had unsupervised contact with children. The Ombudsman was informed that as a consequence of the inaction by Victoria Police hundreds of children may have been exposed to registered sex offenders.

There is quite a lot of detail in the Ombudsman's report, but the upshot of it was that the Ombudsman made recommendations that included that the meaning of the requirement that registered sex offenders report regular unsupervised contact with children be reviewed, that a clear definition of unsupervised contact be provided, that the power of police officers to test the veracity of the information that registered sex offenders provide also be reviewed, that limitations in relation to the sharing of information between Victoria Police, Corrections Victoria and the department be reviewed and that the Victorian Law Reform Commission review the legislation for the sex offenders register and the management of the system.

In its final report in 2012 the VLRC made 79 recommendations for reform. A summary of those is that not all sex offenders present the same risk of offending, so 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, and that the current undifferentiated method has led to a register that appears to have outstripped initial estimates of size and is becoming increasingly expensive to maintain. It was very strong in saying that there is a need to strengthen the scheme by sharpening its focus. The commission said that registration should be more closely aligned with risk of harm to children and recommended replacing automatic inclusion with a process that allows for individual assessment of the offender.

I should say that the law reform commission also recommended that registration should not necessarily be for life, although this bill does clarify that that is what is actually meant. Some feedback we have had from those in the legal profession is that that has not necessarily been well understood — it is being clarified in this bill — and that perhaps magistrates might not have put people on the register if they had understood that that was the case.

The VLRC recommended that a registration order in respect of a person found guilty of a category 1 or 2 offence be five years and that a registration order in respect of a person found guilty of a category 3 offence should be of three years duration, but that it should be possible for the Chief Commissioner of Police to apply to a court for an extension of a registration order and that there should be no limit to the number of times that a registration can be extended. That would be the counter effect to the limited time.

The Sex Offenders Registration Amendment Act 2014 implemented or partially implemented eight of the 79 recommendations that the VLRC had put forward. We are very supportive of those changes under clause 7 of the bill, and I note that Mr O'Donohue raised the issue of the minister clarifying that there would be no risk to the community. I think new section 11B, 'Determination of application' — the factors that the court has to take into account when looking at an application for an exemption — is fairly strong. So it does not necessarily mean there would be an automatic exemption; there is just a right to apply for the exemption.

I will have a question to the minister in the committee stage about new section 11C, which applies a time period of six months with regard to when the application can be made. I would like to be sure that is going to work in the interests of young people.

The bill also makes some other changes with regard to the collection of forensic samples, as I mentioned before, and under part 2 of the bill there are new powers to obtain fingerprints and DNA profiles from registered sex offenders without the need for a court order. We certainly raise some concerns about this part of the bill, with regard to why there would not be oversight by the courts of the taking of these samples. I would certainly like to ask a couple of questions of the minister with regard to this issue in the committee stage. Usually the court does have oversight of the taking of forensic samples of people — the Magistrates Court or a higher court in some situations. We have also raised the issue of whether the police could make that particular request at the time of the sentencing of a person. Anyway, I will certainly ask some questions about this issue when the bill is in the committee stage.

The bill as I said clarifies that all registered offenders are prohibited from engaging in child-related employment for life. As I said some people have questioned whether some people who are not automatically on the register would in fact have been put on the register if that was understood at the time.

The bill also under part 2 allows for new search powers for police whereby a magistrate will be able to issue a warrant where it is satisfied there are reasonable grounds for suspecting that an offence against the act has been or is about to be committed and it is necessary to search premises to investigate or prevent that offence.

With those comments, the Greens will be supporting the bill, although I will be following up in the committee stage those issues that I have raised.