Daniel's Law submission
The Secretary
Justice Integrity and Community Safety Committee
Parliament House
Email: jicsc@parliament.qld.gov.au
Dear Madam,
DANIEL’S LAW
Please accept this submission in relation to the above Bill.
The Council accepts that it is a fundamental human right of all persons particularly children to be protected from sexual assault. The QCCL opposes this Bill on the basis that not only would it not protect children, but it may also expose them to greater risk of sexual assault.
First, we note that sex offenders are already required to report their location to police. The QCCL does not oppose this measure which allows police to protect the community without the adverse consequences of public reporting.
1.1 Ineffective
Notification laws will not protect children. They are at best ineffective and at worst create a false sense of security which may actually expose children to risk. In addition, there is the danger of vigilantism that risks harming innocent bystanders. These propositions are supported by a number of reports.
The United Kingdom’s National Society for the Prevention of Cruelty to Children published a review of these laws in November 2006 which found that there was no empirical evidence that community notification has had a positive impact on offender recidivism rates. Furthermore, they found there is no evidence that community notification has resulted in fewer assaults by strangers on children.
More recent research into the effectiveness of public registers of sex offenders such as Megan’s Law in the United States which was passed in 1996 generally shows that these measures do not lead to significant reductions in recidivism[1].
1.2 Make matters worse
The National Society’s report noted that governments have great difficulty in locating housing for those who are subject to notification. This increased the prospect of offenders being located together with the very serious risk that they would network increasing the risks to children.
It is well established that access to housing, employment and stable social relationships were fundamental to reducing the risk of re-offending. However, community notification increases in fact the prospect of the offenders being ostracized, harassed and relocated significantly reducing the chances of successful rehabilitation.
It also increases the prospect the offenders will go into hiding which must surely be a most undesirable outcome.
1.3 Vigilantism
American research[2] shows that there have been numerous reports of vigilantism against people on the sex offender registry including harassment, threats and even murders[3]. The research says 47% of those on a register who were surveyed stated that they had been harassed, 28% had received telephone calls and 16% had been assaulted[4].
1.4 False sense of security
Sex offender registries create a false sense of security because most perpetrators of sex offences are known to their victims or their families. In 2015 around 75% of sexual assault victims knew their offender, while one third of victims were assaulted by a family member[5]
Human Rights Watch in its report No Easy Answers: Sex Offenders Laws in the US[6] summarized the position as follows:
The evidence is overwhelming, as detailed that these laws cause great harm to the people subject to them. On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them…
sex offender laws are predicated on the widespread assumption that most people convicted of sex offenses will continue to commit such crimes if given the opportunity. Some politicians cite recidivism rates for sex offenders that are as high as 80-90 percent. In fact, most (three out of four) former sex offenders do not reoffend, and most sex crimes are not committed by former offenders….
Registrants and their families have been hounded from their homes, had rocks thrown through their home windows, and faeces left on their front doorsteps. They have been assaulted, stabbed, and had their homes burned by neighbours or strangers who discovered their status as a previously convicted sex offender. At least four registrants have been targeted and killed (two in 2006 and two in 2005) by strangers who found their names and addresses through online registries. Other registrants have been driven to suicide, including a teenager who was required to register after he had exposed himself to girls on their way to gym class. Violence directed at registrants has injured others. The children of sex offenders have been harassed by their peers at school, and wives and girlfriends of offenders have been ostracized from social networks and at their jobs. (pages 4-7)
1.5 Recidivism
If recent evidence which suggests that recidivism rates amongst sex offenders are in fact low is correct, then community notification legislation has the potential to be seriously dysfunctional.
As noted by Human Rights Watch, there is a stark contrast between the view of the general public that all child sex offenders are compulsive recidivists who cannot be rehabilitated and the conclusion of the criminology community that many sex offenders have lower rates of recidivism than other types of offenders[7].
A review of the evidence by the Australian Institute of Criminology[8] indicates that the level of recidivism depends on the type of offence and that those who target male victims outside their family have a higher rate of re-offending in the long term than other types of offenders.
A common criticism of the criminologists’ point of view is that it is based on conviction rates. The evidence used by Ms Richards is based on arrest rates.
In addition, the Justice Policy Institute Paper referred to previously quotes a US Bureau of Justice statistics study also based simply on re-arrest rates which shows that sex offenders are less likely to be re-arrested than people who are convicted of other offences.
1.6 Right to know
To the argument that wouldn’t you want to know if there is a dangerous sex offender in your neighbourhood the Council says that this is not the right basis for making policy. Should people be entitled to know that the person moving in next to them has been convicted of stealing or driving without due care and attention on the basis that they might be a risk of repeating those offences? This argument would potentially justify the disclosure to everyone (or at least everyone who asks) of the criminal or traffic history of every person who has one. It is first noted that these are people who have been punished. This is just a form of collateral punishment. The interest of the community and the individual in the rehabilitation of offenders and the presumption of innocence preclude such disclosures. Not to mention the lack of any clear evidence that such disclosures would be effective in doing anything other than harming the person identified.
Some people would want to know the HIV status of a doctor or dentist even though the risk to patients from a HIV infected doctor is miniscule and notification would result in significant harm. The same principle applies in the case of sex offenders: where the evidence is that notification is not going to reduce the risk of offending, and it may result in harm to the offender and their family there is no justification for a right to know. This is particularly so if has been suggested the proposal is based on a false view of the rate at which sex offenders reoffend in comparison with other types of offenders.
1.7 Moral Harm
There is also another moral argument against these laws. The likely result of these laws is that responsibility for the commission of these crimes will be passed on to parents and other relatives who didn’t check the register or didn’t take some hypothetical steps rather than responsibility clearly and solely lying with the offender
1.8 The Bill
We note that the scheme in the Bill is based on the Western Australian model and will have three tiers.
First, the Police Commissioner may publish facial photographs and personal details of reportable offenders who have failed to comply with their obligations and cannot be found. This information will be made available to the public until the person is located or reports themselves.
Under the second tier, Queensland residents may request facial images of certain reportable offenders who reside within the same suburb or locality. The offenders covered by this category will include those with a lengthy history of reporting obligations or history of repeat offending against children and will include those who have committed further reportable offences after becoming a reportable offender or are required to report for the remainder of their life or are categorised as dangerous sexual offenders.
The third tier would allow a parent, guardian or other person having the care of children to apply for information about whether a specific person who has or will have unsupervised contact with their child is a reportable offender. In such a case, the Commissioner will be able to tell the applicant whether or not the specified person is a current reportable offender.
It will be readily conceded that this scheme is superior to that which operates in the United States.
However, there is no evidence that the scheme as operating in Western Australia, or a similar scheme operated in the United Kingdom has been effective in reducing the commission of offences[9].
Nor is there any evidence to suggest that those two schemes have made any difference to the other issues that we have identified above.
That said we make the following specific comments on the Bill:
(a) Section 74AN - Once again, the government, like its predecessor, overrides the Human Rights Act chasing votes by appealing to populist notions of how to address crime, which have no basis in scientific evidence. If the government believes that its laws are just and consistent with the fundamental principles which underlie the Human Rights Act, then it should be willing to face the verdict of the Courts. After all no Court decision is binding on the Parliament. What is it afraid of?
(b) Section 74AM QCCL opposes privative clauses. Access to the Courts is a fundamental right of all people. Fortunately, since the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 the Parliament cannot completely deprive Queenslanders of this right. However, this does not justify restricting this right, as this section does, to the most narrow grounds and procedurally complex means of access. This provision should be removed
(c) Section 74AL.This provision makes the government immune from suit so long as decisions under the legislation are made honestly. Again, the rule of law requires that government be subject to the ordinary laws of negligence. This provision should not proceed.
(d) Section 74AJ These are the anti-vigilantism provisions. We attach screen shots of comments on stories about this legislation on the Courier Mail website[10]. These comments are very disturbing The first thing to be said is that murder, assault, stalking and harassment are already offences. Presumably they were also offences in the States of the United States in which vigilantism has been recorded. It is difficult therefore to see how these provisions will add any further deterrent. That said, we acknowledge the intention behind the proposed section[11]. However, a question must be asked as to why the provisions only apply to “public” acts. This means for example that a person who found the offender’s email address could harass them by that. It would also not prohibit a campaign of harassment through the post or by putting items in the person’s letter box or under their door. It is strongly arguable that none of these would be “public” acts but their impact on a person or their entirely innocent family members could be quite severe.
1.9 Other Options
In our view the first thing we need to do to protect children is to educate them and adults to recognise warning signs, speak up and protect themselves.
Bravehearts in its submission to the National Security and Law Enforcement Policy Division of the Department of Home Affairs dated 10 January 2019 suggested a number of other mechanisms for protecting children with which we would agree including:
(a) improved access to effective rehabilitation programs. In the experience of our members rehabilitation programs are chronically unavailable in this State’s corrections system
(b) focusing on addressing the risk of reoffending immediately after release.
We trust this is of assistance to you in your deliberations.
[1] Zgoba, K., Veysey, B.M., & Dalessandro, M. (2010). An analysis of the effectiveness of community notification and registration: Do the best intentions predict the best practices? Justice Quarterly, 27, 667-691. Tewksbury, R., Jennings, W.G., & Zgoba, K. (2012); A longitudinal examination of sex offender recidivism prior to and following the implementation of SORN. Behavioral Sciences & the Law, 30, 308-328. For similar views from a Queensland expert Dr Danielle Harris of Griffith University see this podcast A Matter of Crime - Should Australia have a sex offender registry: https://podcasts.apple.com/au/podcast/a-matter-of-crime/id1481063375?i=1000453409482 (published 14/10/19)
[2] American Justice Policy Institute: Registering Harm page 25
[3] Human Rights Watch in its report No Easy Answers: Sex Offenders Laws in the US https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us#:~:text=The - found evidence of 4 pre meditated murders of registrants - see pages 4-7
[4] We note that the Human Rights Act compatibility statement references other research supporting this proposition.
[5] Napier S, Dowling C, Morgan A & Talbot D 2018. What impact do public sex offender registries have on community safety?. Trends & issues in crime and criminal justice no. 550. Canberra: Australian Institute of Criminology. https://doi.org/10.52922/ti117905 page 2
[6] September 2007
[7] McSherry et al Preventive Detention for “Dangerous” Offenders in Australia: a critical Analysis and Proposal for Policy Development Monash University December 2006 para 1.3
[8] Richards K 2011. Misperceptions about child sex offenders. Trends & issues in crime and criminal justice no. 429. Canberra: Australian Institute of Criminology. https://doi.org/10.52922/ti258908. For a discussion of recent US research comparing sex offenders re offending rates with other types of offenders see - BJS fuels myths about sex offense recidivism, contradicting its own new data https://www.prisonpolicy.org/blog/2019/06/06/sexoffenses/.
[9] see this discussion by Bravehearts https://bravehearts.org.au/wp-content/uploads/2019/01/Comm-National-Register-consultation_Bravehearts-submission-no-signatures.pdf and Whitting, Laura, Andrew Day, and Martine Powell, ‘An Evaluation of the Impact of Australia’s First Community Notification Scheme,’ Psychiatry, Psychology, and Law (2017) 24(3): 339–55.
[10] These screenshots were provided to us by a member of the public who advises many were removed.
[11] The Bravehearts paper above notes one charge of vigilantism in Western Australia in 2015