In January 2012 the Law Reform Commission of WA (the Commission) completed its final report on aspects of the Community Protection (Offender Reporting) Act 2004 (WA). The reference was prompted by concerns that the mandatory nature of the scheme may be unfairly capturing low-risk offenders and less-serious offences. The Commission recommended that the current mandatory registration of offenders should be abandoned in favour of a discretionary approach. In particular, it recommended two separate schemes: one for juveniles providing the sentencing court with discretion to determine reportable offender status, and another for adults so that adult offenders will only be able to seek an exemption order in exceptional circumstances.
Whether the WA government will implement the proposed reforms is yet to be seen. However, it is clear that momentum for change is increasing. Earlier this year, the Victorian Law Reform Commission recommended that its mandatory registration scheme for adults should be replaced with a more flexible scheme that allows for consideration of the individual risk posed by the offender (Victoria already has a discretionary scheme for juveniles). It has been estimated that after 30 years there will be 20,000 registered offenders in Victoria alone.
It is time to carefully scrutinise the impact of automatically registering every offender who is convicted of a reportable offence irrespective of the individual circumstances and the risk of reoffending. Otherwise, sex offender registration schemes are likely to be overburdened and less effective. Furthermore, fairness dictates that low-risk offenders should not be subject to onerous and stigmatising reportable obligations. Following the recent passage of legislation in WA which will enable the public to have access to details about certain registered offenders, the need for discretion in this state is even more critical.
VICTORIA WILLIAMS is author of the Law Reform Commission’s Discussion Paper (2011) and Final Report (2012) on the Community Protection (Offender Reporting) Act 2004 (WA).