Discussion Paper - Law Reform Commission of Western Australia

ForewordThe Commission received this reference from theAttorney General after concerns were raised that theWestern Australian sex offender registration schemeestablished by the Community Protection (OffenderReporting) Act 2004 (WA) (‘the CPOR Act’) wasunnecessarily capturing low-level offenders.Registration operates after an individual is convicted andsentenced for certain types of sexual offences involvingchildren. In these circumstances, an individual isautomatically placed on a register and required to reportto the police on a regular basis. Registration with thepolice as a ‘sex offender’ and the requirement to reportto police (in many cases for a significant number ofyears) has a considerable impact and is, potentially, morestigmatising than the conviction itself.The Commission considered the purpose and operationof the registration scheme and the types of offendingbehaviour that may lead to registration. Because thepurpose of the CPOR Act is community protection,offender registration should, as far as practicable, bebased on an individual assessment of risk. In this regardthe Commission has found that the mandatory natureof the current registration scheme can be problematic.Mandatory rules mean that individual circumstancescannot be considered. The Commission has founda number of case examples that demonstrate seriousconcerns about the fairness of mandatory registration,particularly in the case of children. The Commissionhas also found examples where mandatory registrationcan unfairly impact upon adults in certain exceptionalcases. To include low-level or low-risk offenders inthe registration scheme may drain police resourcesand undermine the goal of community protection.Moreover, it is unfair that such offenders should besubject to onerous obligations that extend way beyondthe sentence imposed for the original offence.The Commission has made a number of proposals forreform. In doing so, the Commission has endeavouredto reach a balance between ensuring that the sexoffender registration scheme is effective and efficientand ensuring that low-level or low-risk offenders arenot unnecessarily subject to onerous registration andreporting requirements. The Commission’s proposalsappropriately establish two different regimes – one forchild offenders and one for adult offenders.It is appropriate the Law Reform Commission ofWestern Australia was given the task to investigate thisproblem. The subject matter is potentially controversialand the issues raised by the reference are sensitive. TheCommission has been particularly careful to approachthe reference objectively. Thorough research has beenundertaken regarding the characteristics of sex offenders;the purpose and operation of registration schemes inAustralia and overseas and the effect of registration.Importantly, the Commission consulted widely in bothmetropolitan and regional Western Australia and obtainedclear case studies which are presented throughout thispaper. In preparing the case studies the Commission has,wherever possible, endeavoured to access the transcriptof the original sentencing proceedings in order to ensurethat the most objective assessment of the circumstancesof the case has been considered. Given the nature ofthe cases the Commission has removed all identifyinginformation in order to ensure that the identity of theoffenders or the complainants is not revealed. The casestudies are an essential feature of this Paper and presenta compelling case for reform.My fellow Commissioners and I would like to especiallyacknowledge the lead researcher and writer of this Paper,Victoria Williams. Her thoroughness, commitment andhard work are evident throughout this excellent andcomprehensive Paper.The Commission would like to acknowledge and thankall those who voluntarily provided their time andexpertise during the consultations for this Paper.Executive Officer Heather Kay and Project ManagerSharne Cranston, who administered the project,both continue to provide excellent support to theCommissioners. We are also indebted to our technicaleditor Cheryl MacFarlane and to Dr Tatum Handsfor lending her law reform acumen to the project. TheCommission is privileged to continue to have such ahighly qualified and talented group.Mary Anne KennyChairv