Above: The lunchtime time slot for the Alice Springs public meeting might help explain the small attendance. The issues however were canvassed thoroughly.
REPORT by KIERAN FINNANE
A website that outs predatory pedophiles in your neighbourhood, or would the Territory’s proposed Daniel’s Law cast the net wider? And what would be the implications, including for victims?
In yesterday’s public meeting to discuss the proposed law – held at lunchtime in the Central Australian Development Office and attended by only a handful of people – it became clear that the legislation as drafted (and withdrawn last December to allow further consultation) does indeed cast the net much wider.
The people named on the site would be there for the world to see. The only check on access would be to agree to user terms. Those named – with photograph, date of birth, date of offence, type of offence and general locality – would be the perpetrators of a child homicide and / or sex offences against children, who have reporting requirements to police, upon release from gaol, of 15 years to life. Generally speaking such reporting periods apply to serious offenders: people who have had sexual intercourse with a child under 16, committed acts of gross indecency on a child, or been involved in the production of child pornography.
However, a person convicted more than once of less serious offences, for example related to the viewing of child pornography, could also be eligible to be named on the site. The meeting heard of an example: a man who had allowed a child access to his mobile phone on which there was pornographic material. The child saw the material as did another child sitting close by. For that incident the man earned convictions on two counts of allowing the exposure of a child under 16 years to indecent material. The two convictions got him a 15 year reporting requirement on leaving gaol, and this would make him eligible to be outed on the site.
President of the Criminal Lawyers Association of the NT, Russell Goldflam, gave the meeting this example. Another example was given by one of the two facilitators of the meeting, both of them policy lawyers with the Department of the Attorney-General and Justice. (There were no politicians present.) The facilitator said an 18 year old man who had sex with his 15 year old girlfriend, having been convicted of a sex offence in that circumstance, would have a 15 year reporting requirement and thus be eligible to be named on the site.
This would not apply, she said, to a 16 year old boyfriend / 14 year old girlfriend, at least not automatically. There would have to be a specific application (under separate existing legislation). Such applications are rare and are decided by a judge. She could think of only one that was current, and the convicted offender turning 18 in this case was not a boyfriend of the victim and his offending behaviour had been very serious. Nonetheless, it is up to judges to decide and there is nothing in the draft legislation of Daniel’s Law that would prevent children convicted of sex offences ending up on the site once they turn 18, as Mr Goldflam pointed out.
The default position of the draft law would be to name eligible offenders on the site. There would be a process, however. It would not be automatic. The decision would be made by a panel, consisting of the Commissioner of Police, the Commissioner of Correctional Services and the CEO of the department, or their representatives.
Right: Information about where offenders are living would be by region, as the map shows. Alice Springs would sit in the MacDonnell Region but would have its own separate list. The Darwin / Palmerston area would be divided into several smaller regions.
The facilitator said the possible delegation of their powers could be a way around the monocultural identity of the panel: they’re all white middle aged men, an issue raised apparently in other public meetings on the matter. The panel’s delegates could bring more diversity to the task, she suggested.
But equally the loose definition of who could be a delegate could be a matter of concern. As the draft legislation stands it could, in theory, fall to a junior constable to be a panel member making these decisions, said Mr Goldflam.
Currently there are 234 offenders in the NT who would be eligible to be on the site, 19 of them on a lifetime reporting requirement. (This is an update on figures given yesterday, which were as of the end of 2015.) More than half the total are in the Darwin / Palmerston area, whose combined population, of course, accounts for almost half of the NT’s total.
These numbers include people who are at least some way into their 15 year reporting requirements. Someone might, for instance, have only five years left but they would become eligible for naming on the site.
The proposed arrangements represent a much broader sweep and more open access than the nearest thing in another Australian jurisdiction, Western Australia. There the only open access is to a page naming offenders who are supposed to be reporting but aren’t and who thus are being sought by police, a cyber version of a ‘Wanted’ poster. Otherwise users must apply for access, with specific information requests, giving their name, address and a form of identification such as a driver’s licence, which situates them in a specific neighbourhood. The user can then ask for notification about known sex offenders in that locality.
A third tier process in the WA system is to apply to make enquiries about a specific person whom the user names – does he or she have a record as a sex offender?
This third tier is similar to the UK’s scheme, known as Sarah’s Law. Its limits, in terms of community protection, is that most child sex offenders have never been convicted before, as confirmed by the facilitator. (And the majority of offenders are also not strangers to their victims.)
A danger is that a negative answer as to a person’s record has the potential to create a false sense of security, as Mark O’Reilly, Principal Legal Officer with Central Australian Aboriginal Legal Services, pointed out.
A question from a legal colleague about why the NT is being “so relaxed” about the information it is prepared to release was a “political question” which the facilitators, as public servants, could not answer. However, they would report the question as part of their feedback on the meeting.
THE INTERESTS OF VICTIMS
But what about the child victims of sex offenders? How would the site serve their interests?
They were the central concern of one woman who was of the view that sex offenders against children should never be let out of gaol (which would save having to name them on a website).
However, naming offenders risks identifying their victims, especially in small communities and especially if the victim is a family member of the offender. Mr Goldflam (pictured) asked how the draft legislation could protect victims, including those who live in Alice Springs, which is not such a large place and where it would be easy to identify victims once a perpetrator is known.
The facilitator said such protection of identity would be “very hard” and the way the legislation is currently drafted “nigh on impossible”.
Peter Turner (“Uncle”) expressed his concern on this issue, giving an example of family members who were known (without the help of a website) to have been victims of abuse by their father. They felt they had to leave their home country and have never returned – “a tragedy”.
Mr O’Reilly raised the possibility of victims, who were concerned about potential identification, deciding not to report the offending against them. Daniel’s Law could thus act as a disincentive to reporting, which would go against the interest of victims.
Victims would have a right to be heard by the Daniel’s Law panel, both before and after the decision to name an offender. Victims who are on the Victims of Crime register would be notified if those who offended against them were being considered for naming on the site. But not all victims are on this register.
For them, an 1800 number would be provided. They could enquire whether their offender was eligible, ask what it might mean for them if the offender was named, and get advice about access to support services.
Could victims under 18 years old be heard about their wishes? This would depend on how close to 18 they are. Younger children could be represented by a parent. But of course, if the perpetrator was a parent, then the situation could get “very messy”, as the facilitator put it.
How would people know about any of this? The facilitator said an extensive publicity campaign would be envisaged, including information in Aboriginal languages.
Mr O’Reilly expressed his concern about the ability to engage with the system of victims who may not speak English as a first language, may not be not literate and not necessarily have easy access to telecommunications. The horse might have bolted before they knew anything about it: there would be a need to make sure those people are protected.
A woman asked about the rationale of having the date of the offence on the site, which would help identify the victims. The type of offence could be sufficient. The facilitator took that on board as a good point.
WHAT ABOUT THE CHILDREN OF OFFENDERS?
Christa Bartjen-Westermann, from the NGO sector, asked about what the legislation would do to protect the children of offenders who might be victimised, particularly by other young people. The facilitator said that at the moment the Bill does nothing for them: it provides “no standing for offenders’ families”.
Ms Bartjen-Westermann was equally concerned with the potential for survivors of abuse, having been identified, to be victimised, especially through social media. Mr O’Reilly said this dynamic would be exacerbated in small communities.
The Bill would make it an offence to publish or display details from the site. This would go for ‘sharing’ on Facebook. That would be “very hard to control”, commented the Advocate’s journalist, Andrea Johnson. The facilitator agreed.
Mr O’Reilly was concerned about the potential of the site to drive offenders underground.
Ms Bartjen-Westermann wanted to know what would be done to prevent the persons named on the site from networking with one another – a problem pointed to in the international literature, according to Mr Goldflam.
There was discussion about what the international literature says on the effectiveness of such legislation. Mr O’Reilly said there was no evidence that similar laws had served to reduce offending. The facilitator said such a matter was difficult to quantify. Mr Goldflam said there have been extensive studies in the USA, where versions of Megan’s Law have operated for a long time. One study from New Jersey was conducted over a 20 year period and reported no observable reduction in offending. The facilitator pointed to a literature review published in the Australian and New Zealand Journal of Criminology that argued that “community notification” laws can be effective in some circumstances and ineffective in others.
The facilitator also clarified concerns previously raised that the NT will be cut out of national data-sharing on child sex offenders. Information about offenders will still be passed from one police service to another. What was originally proposed was that the NT be able to directly link its website to the national register. This was refused by the states.
Mr Turner asked why, with respect, the law would be called Daniel’s Law and not simply Children’s Law. Why would one child victim be highlighted more than others?
Mr Goldflam agreed. It should be called simply what it is, something like the Child Sex Offender Website. The Bill instead is named after Daniel Morcombe, who was killed in Queensland in 2003 by a previously convicted child sex offender. Mr Goldflam said the emotional response to Daniel’s fate and the grief of his parents distorts the debate around the impact of implementing the proposed legislation.
Mr Goldflam, who commended the public consultation process on the Bill, also put on the record his objection to Attorney-General John Elferink’s criticism of lawyers participating in the process. Mr Turner agreed: “The making of a good law is very crucial. It’s made by people in law and by the people. Politicians must listen. Russell’s a lawyer but he’s part of the public. To have good law it’s got to be put out there and get the best possible way to make it better.”