Mistakes On Child Protection Registers Resulting In Wrongful Gaol Terms

MISTAKES ON CHILD PROTECTION REGISTERS RESULTING IN WRONGFUL GAOL TERMS

Mistakes On Child Protection Registers Resulting In Wrongful Gaol Terms

In 2001, the NSW Child Protection Register was established. Under the Child Protection (Offenders Registration) Act 2000 (NSW), the Register holds the information and personal details of those people convicted of sexual or violent offences against Children. Those convicted of offences involving child abuse material will also be on the Register. As of 2019, the Morrison government is suggesting a publicly accessible register which will enable access to photos, names and postcodes of offenders. The main concern is the accuracy of the information that will be input into this database, as we all know human error occurs and  mistakes can happen.

The current aim of the Register is to assist with keeping track of convicted offenders. Police are meant to use the Register to monitor and investigate offenders. Once convicted, an offender is on the register for up to 15 years. Convicted offenders have to regularly report to police and the must notify police in the even they intend to move from their residential address. It is an offence for a convicted offender to move and not provide the police with an update in relation to this. Penalties include gaol terms.

WHO IS A REGISTRABLE PERSON

The Act requires a person convicted of a ‘registrable offence’ against a child to be on the Register. ‘Class 1’ registrable offences include the murder of a child, sexual intercourse with a child, and the persistent sexual abuse of a child. While ‘Class 2’ offences include acts of indecency against a child (if the offence is punishable by imprisonment for 12 months or more), the kidnapping of a child, the sexual servitude of a child, child prostitution, and offences relating to child pornography.

The class of the offence is relevant to determining how long a person is under reporting obligations.

WHO DOESN’T NEED TO BE ON THE REGISTER

A person is not required to be on the Register if they are found to have committed a registrable offence but the matter is dismissed (in other words, no conviction is recorded). Other exceptions include where:

  • a person is convicted of a single ‘class 2’ offence, but the penalty does not involve a term of imprisonment, a community service order, or a bond under which they are required to submit to strict supervision; or
  • a child is convicted of a single offence involving an act of indecency or the possession or publication of child pornography.

In addition to the Act’s scheme of ‘registrable offences’, the Act provides that, where a person is found guilty of an offence that is not a registrable offence, the court may order the person to comply with the reporting obligations of the Act if it is satisfied that the person ‘poses a risk to the lives or sexual safety of one or more children, or of children generally’.

REPORTING OBLIGATIONS

A registered person is required to advise police of any changes to the information they provided at their initial registration within 14 days. Under the Act as first enacted, this generally had to be done in person at a police station. The amended Act allows police to make arrangements that a registered person does not need to report certain updated information in person in some circumstances.

The Act as first enacted did not require a registered person to report to police if there were no changes to the information provided at the initial registration. The amended Act now requires registered persons to provide their personal information annually.

A registered person must also advise police of the details of any intended travel outside NSW. Under the Act as first enacted, there was an exemption from this requirement in relation to travel elsewhere within Australia for 28 days or less. Under the amended Act, the exemption has been limited to travel of less than 14 days.

In 2005, the Ombudsman identified the need for the Monitoring Guidelines and Standard Operating Procedures to establish certain minimum standards of oversight for registered people, and reinforce the focus on the high risk offenders. The involvement and responsibilities of all police, not just those assigned to specific Register duties, should be clarified. This would improve the consistency of approaches across local area commands and remove uncertainties about roles and powers, allowing police to focus on more effectively using the Register to protect children. If minimum standards are established, the actions of commands to implement them should be closely monitored, and remedial action taken where a command’s response is inadequate.

And yet, the LECC found that over 700 incorrect decisions have been made since 2001.  The errors include a lack of knowledge as to exactly who needs to be on the Register, how many years any given offender needs to be on the Register and what the reporting requirements were.

The fallout from these errors has potentially put vulnerable members of the community at risk and also penalised others who have not needed to report up to and including wrongful convictions for failing to report.

For example, there have been instances where:

  • Child sex offenders have been released into the community without being monitored by police. 96 Offenders were left off the Register;
  • Over 500 people were taken off the Register too early, including a man who indecently assaulted a 10 year old girl on a bus in 2015;
  • NSW Police Force have unlawfully required people to report their personal information over a period of years;
  • People have been wrongly added to the Register; and
  • People have been wrongfully convicted and gaoled for failing to report to police. One man spent almost a year in gaol after failing to report. He was not required to report because his offending was as a juvenile. Another spent 183 days in gaol as a result of being wrongfully placed on the Register.

Between 2016 and 2018, police conducted an internal review of the files to identify and correct errors. When it ended in 2018, it found that almost half, some 2,557 of the Register cases contained errors.

REASONS FOR ERRORS

The LECC found that the specialist unit that maintains the NSW Child Protection Registry has not had sufficient staff to handle its increasing workload and The Child Protection Act can be difficult to apply, especially in a multi-agency environment.

“There have been multiple systemic issues that have contributed to these errors which have been outside the control of the registry,” the report said.

The report noted parliament never intended police to maintain the register and had assumed it would be so simple to manage, that court staff could do it automatically.

The LECC advised police to inform 277 current or former registered people that they may have been subjected to unlawful or unjust actions.

Police were urged to properly staff the department responsible for the register and introduce independent compliance audits.

The key recommendations are that:

  • the NSW Police Force ensures the Child Protection Registry has sufficient staff;
  • the NSW Law Reform Commission completes a comprehensive review of the CPOR Act within six months, and
  • an independent body be given the role of conducting audits of the Register.

PENALTIES FOR NOT REPORTING

It is a criminal offence for a registrable person who fails to comply with their registration and reporting requirements without reasonable excuse, or to knowingly provide police with false or misleading information. Both offences carry a maximum penalty of 100 penalty units (currently $11,000) and/or two years imprisonment.

ARE YOU EXEMPT?

The only mechanism to exempt persons from their reporting obligations is a right of review to the New South Wales Civil and Administrative Tribunal (‘Tribunal’) after 15 years for those required to comply with reporting obligations for their lifetime. The Tribunal can only make an order suspending a registered person’s reporting obligations if it considers that the person ‘does not pose a risk to the safety of children’.

You might be if you are under 18, a forensic patient or someone deemed to be ‘special needs’ such as those with an intellectual disability or mental illness.

CONTACT US                         

Have you been charged with a child sex offence? Are you on the Register and think perhaps you should not be? There are significant penalties including very long gaol terms and as such you need the best advice you can get.  Call Michael and his team of expert lawyers at National Criminal Lawyers on  02 9893 1889  0415 179 794

 

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