Teens convicted of sexting could end up on Peter Dutton's proposed child sex offenders register once they turn 18, and police resources could be used up protecting those on the list from vigilantes, lawyers have warned.
On Wednesday Dutton announced consultation for the new national online register that would allow people to look up the names, photos, physical descriptions, and crimes of registered child sex offenders in their neighbourhood.
BuzzFeed News has obtained a copy of the consultation paper provided to stakeholders this week, and under the preliminary model proposed by the federal government, only offenders aged 18 or over would be on the register. Who would be included in the national database would be up to the states and territories.
The proposal outlines that child sex offenders under 18 would not have their information made public "while the offender remains under the age of 18", suggesting that once the person turns 18, they could be added to the register.
The difficulty is that the laws that determine who is included in current registers and for how long differ in each state.
For example, in New South Wales there is an 8-year time limit on people being on the register without police applying for the term to be extended. In Victoria, those who end up on the register can be there for life, no matter what ongoing risk they pose to the community. That is a problem, according to Law Institute of Victoria spokesperson Michael Holcroft.
"As soon as you bring in mandatory reporting, you are going to get unjust outcomes," he told BuzzFeed News.
"By putting people on the register who are not a significant risk to the community, what you are doing is actually decreasing the police's ability to properly monitor the people who are."
One such example could be that children under the age of 18 can, in some states and territories, be convicted over consensual sharing of intimate images of themselves with their peers.
Historically, police and prosecutors in Australia have tended to exercise discretion when it comes to charging and prosecuting teenagers for consensually sharing intimate images of themselves with their peers while underage. In the United States, though, there have been cases where consensual sexting situations have resulted in people ending up on a register.
Liana Buchanan, Victoria's commissioner for children and young people, told BuzzFeed News in a statement that she was concerned that children who offended while underage would end up on the register after they turn 18.
"We have already seen serious problems with existing registration schemes that have criminalised and stigmatised young people who have engaged in sexting, and these problems would only be amplified by a public register," she said. "A public register that disclosed offences committed in childhood would result in stigma and discrimination affecting these individuals' future lives and impeding their rehabilitation."
Holcroft said in Victoria there is also judicial discretion over whether a child under the age of 18 ends up on the register after being convicted, but that didn't exist once they turned 18. Additionally, Holcroft said there were also people on the register who now had dementia and were no risk to the community, but there was no way to remove their details.
While New South Wales has a term limit on the register, there was also no discretion about who was added to the register, Sydney Criminal Lawyers spokesperson Ali Saleh told BuzzFeed News. He said it would be better if the only way someone could be added to the register was if someone were to apply for that person to be added.
"There has to be an interested party applying to the courts to place someone on that register. I think that is a better idea," he said. "There are different levels of offences, it can vary significantly.
"Maybe there would be a set category of offences, the more serious ones, that if they occur would place them on the list automatically, and then another class where another has to apply."
Law Council of Australia president Arthur Moses backed the position of the other lawyers BuzzFeed News has spoken to that only those offenders who pose a "demonstrated risk" to children should be placed on the register by a court.
Holcroft warned that the register could tap out police resources keeping those low-to-no-risk offenders under tabs and protecting them from vigilantes.
"If they've got to monitor 5,000 people it is a lot harder than only having to monitor 800 people," he said.
"And that's leaving aside all the possibility of vigilantism. And then what happens is police have to protect people on the register. So they're taking resources away from protecting the community again."
BuzzFeed News did not receive a response to a request for comment put to Dutton's office. The Department of Home Affairs, however, said that the register "remains a matter under consultation" and those who are registered would depend on the existing state and territory legislation for the state registers.
Part of the issue is also the short consultation period. Stakeholders have only had until today to put in a response to the consultation period.
Moses said the 36-hour consultation period was "absurd".
"The legal profession would be very troubled if this issue is being rushed for political purposes rather than considered reform," he said in a statement. "Politicising this issue or rushing it through without proper thought would be an affront to all victims of sexual abuse."
Josh Taylor is a Senior Reporter for BuzzFeed News and is based in Sydney.
Contact Josh Taylor at email@example.com.
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