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To View the Report 40TH PARLIAMENT Report 52 STANDING COMMITTEE ON ENVIRONMENT AND PUBLIC AFFAIRS Punitive not protective: when the mandatory registration of young people is not based on risk Presented by Hon Matthew Swinbourn MLC (Chairman) May 2020 Standing Committee on Environment and Public Affairs Members as at the time of this inquiry: Hon Matthew Swinbourn MLC (Chairman) Hon Colin Holt MLC (Deputy Chairman) Hon Samantha Rowe MLC Hon Tim Clifford MLC Hon Dr Steve Thomas MLC Staff as at the time of this inquiry: Amanda Gillingham, BA (Hons) Alex Hickman, LLB (Advisory Officer (Legal)) (Research Officer) Maddison Evans (Committee Clerk) Kristina Crichton (Committee Clerk) Address: Parliament House 4 Harvest Terrace, West Perth WA 6005 Telephone: 08 9222 7300 Email: [email protected] Website: www.parliament.wa.gov.au ISBN 978-1-925578-96-6 Chair’s Foreword There would be few of us who have not made a mistake as a child that when we would look back on them as an adult wonder ... what was I thinking? For most, these mistakes are minor and innocent in their nature, for others they are far more serious. Overwhelmingly, they are mistakes of youth that are not repeated in adulthood. Punishment for childhood offences usually reflect the community’s desire to see children and young people accept responsibility for their conduct, to learn and correct their behaviours and to be dealt with in a way that is proportionate and appropriate for their age. Yet we currently have a system of mandatory registration of children and young people on a sex offender register that continues to punish some for the mistakes that they made as a child or young person for the rest of their life. They are permanently stigmatised as a child sex offender, in essence a paedophile. Make no mistake; registration as a child or young person on the mandatory sex offender register is a punishment for life. Sexual offences against children are serious and require a grave and severe response by the community. However, in its response to sexual offences committed by children and young people the State must avoid doing harm that is additional to that caused by the offending. The mandatory registration of children and young people on the sex offender register can have the perverse effect of actually causing additional unnecessary harm, not just to the offender, but also to the offender’s family, friends and even perversely, in some circumstances, the victim. Plainly, if this can be avoided it ought to be. The Committee has taken a sombre and serious approach to its task. In no way has the Committee sought to downplay the seriousness of sexual offending against children. Unquestionably, some children and young people should be placed on the sex offender register for the offences they commit against other children. What the Committee has been able to recognise is that for the overwhelming number of children and young people that commit sexual offences against other children a rehabilitative and therapeutic approach is likely to deliver the best outcome for the future of the child or young person and the broader community. Mandatory registration on the sex offender register is the antithesis of this. Given the purpose of the sex offender register is to provide protection to the community against recidivist child sex offenders, the fact that a significant number of young people on the register pose a negligible risk to the community and are not recidivists, is of grave concern. Having our police monitor people they do not need to, takes their full attention away from those that they should really be spending their time and resources monitoring. This is not a good public policy outcome. It would be fair to say that there is overwhelmingly support from those who provided submissions and evidence to the inquiry, including from Western Australian Police Force, for the introduction of judicial discretion. This also includes the provision of a mechanism of review for those children and young people who were mandatorily placed on the register. Given this evidence which the Committee supports, it is plain that the Community Protection (Offender Reporting) Act 2004 needs to be amended to introduce judicial discretion as to whether a young person is placed on the sex offender register. On behalf of the Committee, I would like to thank all those that took the time to make a submission and to attend our hearings. This is a sensitive and difficult topic. It would be fair to say that all those that engaged with the Committee did so in good faith and in a cooperative manner. I would like to acknowledge the petitioner who brought this issue to the attention of the Committee. I would like to thank my fellow Committee members, the Deputy Chairman, Hon Colin Holt MLC, Hon Samantha Rowe MLC, Hon Tim Clifford MLC and Hon Dr Steve Thomas MLC for their active participation and contribution to this report. I would also like to thank the Committee’s Research Officer, Ms Amanda Gillingham, our Legal Advisory Officer, Mr Alex Hickman and our Committee Clerks, Ms Maddison Evans and Ms Kristina Crichton for all their assistance throughout the inquiry and their considerable effort in preparing this report. Hon Matthew Swinbourn MLC Chairman Government response This report is subject to Standing Order 191(1): Where a report recommends action by, or seeks a response from, the Government, the responsible Minister or Leader of the House shall provide its response to the Council within not more than 2 months or at the earliest opportunity after that time if the Council is adjourned or in recess. The two-month period commences on the date of tabling. CONTENTS Executive summary .................................................................................................................................... i 1 Introduction .................................................................................................................................. 1 Introduction ...................................................................................................................................................................1 Inquiry procedure........................................................................................................................................................1 National scheme for child protection offender registration ......................................................................2 2 The Community Protection (Offender Reporting) Act 2004................................................... 4 Introduction ...................................................................................................................................................................4 Purpose of the CPOR Act .........................................................................................................................................4 Key features of the CPOR Act .................................................................................................................................5 Inquiry by the Law Reform Commission of Western Australia .............................................................. 10 Statutory Review of the CPOR Act .................................................................................................................... 12 Approaches to mandatory registration in other Australian jurisdictions ........................................... 13 3 Sexual behaviour in context ..................................................................................................... 20 Introduction ................................................................................................................................................................ 20 The transition from childhood to adulthood ................................................................................................ 20 Adolescent development and offending behaviour .................................................................................. 23 Age appropriate behaviour .................................................................................................................................. 25 Young people’s understanding of sexual boundaries and consent ..................................................... 27 Harmful sexual behaviour ..................................................................................................................................... 29 Conclusion .................................................................................................................................................................. 35 4 The decision to charge and prosecute .................................................................................... 36 Introduction ................................................................................................................................................................ 36 Age of criminal responsibility .............................................................................................................................. 36 Cognitive impairment and criminal responsibility ...................................................................................... 37 Police discretion to charge ................................................................................................................................... 38 Prosecutorial discretion ......................................................................................................................................... 41 Conclusion
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