overview

This page considers offender registers, including print and online 'community notification' schemes.

It covers -

• introduction - a 'right to know' about offenders?
• history of non-public registers and 'community notification' schemes
• on the web - is online access to public/private registers qualitatively different?

The following pages consider issues (including effectiveness and notions of justice), the Australian and overseas offender registration regimes, anti-social behaviour orders (ASBOs), studies and commercial registers (ie making money through 'naming and shaming'.

The Note supplements discussion elewhere on this site regarding privacy, security, Australian government personal data registers, vetting & identity verification services and internet-based neighbourhood information services (IBNIS).

     introduction

Do citizens have rights of access to information about criminal prosecutions and convictions? Do such rights encompass all offences? Should access to all information be unrestricted or instead differentiated by the nature of the offence, with for example restrictions placed on records of juvenile offenders? Should offenders not be required to disclose convictions for particular offences after a certain number of years have elapsed following imprisonment or other punishment? Should communities be warned that particular offenders are living in the neighbourhood, even though the offender has completed the penalties imposed by a court? Should notification schemes cover AntiSocial Behaviour Orders (ASBOs) and Apprehended Violence Orders (AVOs) rather than merely criminal convictions?

Traditionally, liberal democratic states have identified allegations, investigations and prosecutions in law enforcement agency records concerning individual offenders and incidents. Convictions have been identified in court records and law enforcement agency records concerning the individual offender and the prosecution. Information, accurate or otherwise, has featured in the media. Public access to court records has varied from jurisdiction to jurisdiction, typically involving examination of current/archival records on court premises on an item by item basis.

Publicly-available information about convictions generally has not been held in the form of a single register. Information has not been systematically published by government agencies or private bodies. Many jurisdictions have, however, required convicted offenders to alert law enforcement agencies about their place of residence after leaving prison. That information provided the basis for discrete geographical registers that complemented travel registration regimes. Individual police stations in pre-1945 France and Germany for example aimed to identify, albeit with some difficulty and uncertain accuracy, which former criminals were living in their territory and which strangers were staying in local hotels/boarding houses.

Changing attitudes towards justice, rehabilitation, risk and privacy saw moves over the past 40 years to give offenders substantial anonymity once they had 'served their time'. Law reform initiatives have, however, increasingly coincided with moves for registration of some offenders, in particular those convicted of sex offences and drug trafficking.

That registration has taken two forms -

• non-public registration schemes
• community notification schemes

As the name suggests, non-public registration information is formally not directly available to the public, although there appears to be substantial 'leakage' in particular jurisdictions through provision to childcare centres, schools and other bodies. Offenders are typically required to provide information to law enforcement bodies after release from custody, with that information being used to locate the offender and monitor movement.

Monitoring may include a requirement that offenders provide information about planned interstate/international travel; sharing of information by agencies may result in refusal of visas. It may be tied to electronic geolocation-based surveillance, with the offender for example being required to wear 'electronic handcuffs' that alert authorities if that individual moves outside a particular perimeter.

Critics have suggested that offender non-compliance and inaccurate registration is an ongoing problem. Others have commented that monitoring schemes are a tacit form of permanent imprisonment: the offender is let out of a custodial facility (saving costs borne by taxpayers) and enters into 'house imprisonment'.

Community notification, in contrast, involves general or selective disclosure of information to the public. That disclosure may take several forms, including official publication of a state/local register, provision of information to a commercial publisher, provision to a commercial profiling service or internet-based neighbourhood information service (IBNIS), letters to residents of a neighbourhood advising that an offender has moved in, newspaper advertisements, signage at the offender's residence and community notification meetings convened by officials.

The period of notification varies significantly, with notification in the US for example ranging from five years to life.

Australian critics Hinds & Daly persuasively comment that

Community notification is based on the deceptively simple belief that if you could identify all the "bad" people, you could protect your loved ones from harm.

Research on the effectiveness of community notification in the US appears to suggest that it

• does not provide a substantial deterrent to recidivism
• is draining on police and probation resources
• is an impediment to offender rehabilitation
• involves an inadequate understanding of the impact of community notification.

     history

Offender registration schemes in Australia and the US can be traced back to the 1930s but contemporary offender registration regimes essentially date from the early 1990s, with adoption and adaptation of 'Megan's Law' arrangements. Enthusiasm has centred on sex offender registration and overall has followed specific incidents in particular jurisdictions, with for example kidnappings being reflected in media events and opportunistic passage of enactments modelled on legislation in similar jurisdictions.

The prototype community notification scheme in the US was Washington state's 1990 Community Protection Act, authorising notification when "dangerous sex offenders" were released from custody. It was followed by other state statutes such as Wisconsin's 1993 Sexually Violent Person Commitments Act (aka Sexual Predator Law) and by the 1994 federal Jacob Wetterling Crimes Against Children & Sexually Violent Offender Registration Act (aka Jacob Wetterling Act) that encouraged US states to implement a sex offender register by linking federal funding to creation of the state register.

The 1994 Act did not mandate community notification and reflected questions about the constitutionality of statutes requiring convicted sex offenders to register with law enforcement agencies (including arguments that registration was "cruel and unusual punishment").

The 1996 federal 'Megan's Law' enactment, providing for community notification, followed the murder of New Jersey child Megan Kanka in 1995 by a previously convicted child molester. The offender lived across the street from his victim; the state law prohibited disclosure by local police of information about the offender. The federal Act spawned changes to legislation in most states and was seen as legitimating moves outside the US, with enactments for example being passed in the UK in 1997 and Eire in 2001.

The US federal Pam Lychner Sexual Offender Tracking & Identification Act of 1996 extended the Megan's Law regime, mandating lifetime registration for repeat and aggravated offenders. The legislation was further extended in 1998 through the federal Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act (CJSA) which strengthened the 'violent predator' provisions and added registration of federal and military sex offenders.

It encompassed offenders who are non-resident students or workers. It also established a National Sex Offender Registry (NSOPR) under the National Crime Information Center (NCIC). By 2002 some 42 US states published information about sex offenders on the internet.

Australia adopted a more cautious approach. Several states updated non-public sex offender registration requirements diring the late 1980s and 1990s, with Queensland for example strengthening 1945 legislation through amendments in 1989 that obligated child sex offenders to register with the state police.

Agitation in New Zealand in 1999 for community notification and in the UK during 2000 (the so-called Sarah's Law campaign) was reflected in a succession of announcements by the Australasian Police Ministers Council in 2002 and 2003 about movement towards a national child sex offender register under the auspices of CrimTrac, the body responsible for the national fingerprint database and other facilities.

The then federal Minister for Justice & Customs Senator Ellison announced that "a national initiative would facilitate assistance being provided to overseas agencies" (reflected in disclosure during 2005 that Australian National Child Offender Register (ANCOR) data provided to some South East Asian governments had prevented issue of visas for sex tourists).

Some politicians problematically suggested that the national register should feature "suspected" child sex offenders, with the then Minister for Children & Youth Affairs commenting that

Ministers are keen to investigate the issue more broadly because not all paedophiles have criminal convictions. ... Obviously, privacy, civil liberties and legal issues will have to be considered in detail, but protecting children should be our highest priority.

South Australian Police Minister Kevin Foley announced in July 2005 that under the SA legislation

offenders will have to report to police basics such as where they live, what car they drive, where they work, if they are affiliated to any clubs with child membership and they will have to report to police if any of these change.

Even if they get a new tattoo, they will have to report that to police, and if they don't that will also be an offence

We will do everything within our power to keep these filth as far away from our children as possible.

That emphasis on 'strangers' unfortunately conflicts with the vast weight of Australian and overseas studies suggesting that most child sex offences involve family members or close associates.

     on the web

Government, not-for-profit and commercial entities have unsurprisingly used the web for community notification.

The US federal Justice Department's NSOPR site for example features the name, picture and address of convicted sex offenders. It includes a database in which offenders can be searched by name, city, state or postal code. That database draws on registries maintained by 21 states. An example of a state site is that maintained by California here.

An example of nongovernment sites in the US is here. Some sites are based on coverage in newspapers; others use free/commercial access to government records.

Private sites typically feature calls for stronger punishment and may indulge in vilification of offenders and their families/associates or incite action by vigilantes. Increasingly they are including mapping facilities (eg here) and images of the offender or place of residence and occupation.

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