Child Sex Offenders Registration Act (the Act) breach reporting obligations in South Australia.
This is a lengthy article, but if it relates to your situation, it is well worth a read.
What is considered ‘reportable contact with a child’?
We had a case recently, where we had to figure out what counts as ‘reportable contact with a child’ for people who are on the register of offenders in South Australia (the Act).
Our client got into legal grey area trouble regarding his reporting obligations as a registered sex offender, and he wants to help make sure others don’t make the same mistake he did. So, he gave us the green light to publish this article about what went down.
Our client is on the register of Child Sex Offenders Act in South Australia. He has a close personal bond with his nephew and niece. His sister is aware of his past offenses and why he is on that list.
So, what happened? They all decided to hit the swimming pool together during the school holidays, and as you can imagine, it was packed with kids and grown-ups having a good time. They were just like any other family at the pool, talking, swimming, and enjoying themselves.
During the four hours they were there, our client did have a couple of moments where he was alone with his 3-year-old nephew and 8-year-old niece. But let me tell you, it was only when his sister was busy attending to the other child, either taking them to the restroom or helping them change out of their swim gear.
So, all in all, during that whole time at the pool, he spent about 15 minutes total alone with either the nephew or the niece. That’s it!
There was no argument that our client, under the Act, was a ‘registrable offender’. Under the Act (s 20A of the Act) his legal obligation was that within 2 days of ‘reportable contact with a child’ he must self-report to the Australian National Child Offender Register South Australian Branch (ANCOR SA). But that not all contact with a child is reportable contact. Reportable contact is defined by section 4A of the Child Sex Offenders Registration Act.
The penalty for not reporting ‘reportable contact with a child’ is a fine of up to $25,000 or imprisonment for up to 5 years (s44(1a) if the Act). So, this is a serious obligation and offence if it’s breached.
Our client didn’t think he needed to report the contact he had with his niece and nephew during that pool day. He just didn’t realize it was necessary, why would it be?
But guess what? The police prosecution wasn’t having any of it! They went all out in court, arguing that the entire 4+ hours of contact with the kids at the pool should be considered reportable and they were pushing for jail time!
So, here’s the big issue: Was it the whole 4+ hours that he spent with his niece and nephew at the pool, or was it just those short 15 minutes he was alone with one of them that counted as reportable contact? That’s the question this all boils down to!
What is reportable contact with the child?
Not every contact with a child is reportable contact. Before a registered offender must report under the Act ‘reportable contact with a child’ there must be at least two separate elements to the nature of the contact with the child.
The first element
To count as ‘reportable contact with a child,’ there are two things that need to happen. First, there has got to be some kind of contact – this can be being in close vicinity to the child, communicating with the child in person or via written communication, a phone call or using some electronic or internet device to chat.
Now, just because he was at the pool during the school break with loads of kids around, doesn’t automatically mean it’s reportable contact with all those other children at the pool.
If the only thing that went down was some form of physical contact or closeness, it doesn’t count as ‘reportable contact with a child’. There must be something else too, something that meets one the alternatives set out in the second element that I talk about below. So, keep that in mind as you read the rest of this article!
By way of an aside, a reference to a ‘child’ includes-
- any person whom the registerable offender believes that the time of the contact occurring is under the age of 18 years – even if that person was not in fact under the age of 18 years; and includes,
- a fictitious person (normally a police officer) who is pretending to be a child under the age of 18 years.
The second element
The second element is tricky as it has various alternatives. To be ‘reportable contact with a child’ there needs to be the first element above and any one of the 3 alternatives of the second element.
If contact of the kind described in the first element above occurs during the registered person or the child visiting or residing at a dwelling (even if the person or the child is present with other adults the whole time) the contact is plainly reportable.
The reference to a ‘dwelling’ includes any form of accommodation including very temporary accommodation say for example a caravan or even a tent.
If contact of the kind described in the first element above occurs where the registered person (whether alone or with other adult persons) is in the role of ‘supervising’ or ‘caring’ for a child, then the contact is reportable.
If contact of the kind described in the first element above occurs where the registered person is providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further future contact or communication by or with the child, then again it is simple the contact is plainly reportable.
Legal Analysis of the facts in our case
Defences to breach reporting obligations
There are several defences to the charge of not complying with obligations to report ‘reportable contact with a child’ or other obligations but I will not go in to these in this article, but maybe I will write a separate one later.
The crowded swimming pool
In our situation, there was no claim our client had any contact with other kids at the pool, but it is easy to see why people might be concerned if a registered offender is at a swimming pool with other kids and adults but it is not an automatically reportable situation.
So, for it to be reportable contact under the Child Sex Offenders Registration Act, it’s not just about the physical stuff or the talking. It had to tick one of those second element alternatives I mention above.
Only when both the first and one of the second elements come together, the contact must be reported according to the Act.
The circumstances in this case
Alright, let’s delve into those element 2 alternatives in our case.
Yes, there was some physical contact, being close to the niece and nephew and chatting with them at the swimming pool. No doubt about that!
Yes, there might have been moments when he was close to other kids at the pool as they were running around or swimming past.
So, element 1 is being satisfied in both the situations above, I think that’s clear.
But here’s the key point: It’s still not reportable contact unless one of the alternatives under the second element also comes into play. Let’s break down those alternatives under element 2.
Well alternative 1 was not present because neither his niece or nephew nor any of the other children were in a residential building of any description. That is straight forward.
Was not present because there was no provision of contact details between my client and his nephew and niece nor for that matter with any other children at the pool.
Neither was there any need for communication with his niece or nephew about future contact they were all going home together anyway.
This might have been different if he had innocently informed his niece and nephew that he would see them later and where and when – but he didn’t. It would have been and easy mistake for him to have unintentionally made but fortunately, in this case, they were all travelling together and so no such conversation was necessary.
So which alternative is the issue?
Alternative 2 is the problem grey area.
Okay, it’s pretty clear that when my client was left alone with each of the kids for a total of about 15 minutes, it was like the mom gave him full responsibility for those kids even though nothing was said between them. So, we’ve got both the first element (being in close physical proximity) and the second element alternative 2 (supervising or caring for the child) in the mix, which together amount to ‘reportable contact with a child’ – no doubt about it!
Now, here’s where it gets a bit tricky. Even when his sister was around, they were both looking after the kids together. So, the question is whether he was ‘supervising’ or ‘caring’ for the kids even in his sister’s presence. And that’s where the police prosecution stepped in claiming that he was jointly supervising the children and that there did not need to be any agreement between him and his sister for that to occur!
So, there’s the grey area. Even if someone else is present, it’s still about whether he was actively, or not so actively, involved in supervising or taking care of his niece and nephew. Based on this situation, it becomes 4+ hours of reportable contact and a serious breach warranting imprisonment… but was it really?
Submissions in court
The prosecution submitted that the entire 4+ hours contact at the swimming pool with the two children was reportable notwithstanding that the mother was present. The prosecution argued that because he was the uncle of the children, he was in effect sharing the supervision and care of the children with the mother.
The prosecutor, at the initial hearing, was arguing for a penalty of imprisonment by reason of the extensive contact with the children that was not reported.
On behalf of our client, we argued that the contact that was reportable was merely the 15 minutes or so in total when he was left alone with each of the children whilst the mother attending to necessities for the other child.
We argued that when the mother was present, he was not supervising nor caring for a child, the fact that he was their uncle did not make him automatically a supervisor when the mother was present and where there was no agreement between them that he would be.
We argued that imprisonment was not a penalty that should even be considered in the circumstances.
The Presiding Magistrate was in some doubt about the issue and adjourned the case to consider what might be the basis on which she would sentence our client.
A reminder, the penalty for not reporting ‘reportable contact with a child’ is a fine of up to $25,000 or imprisonment for up to 5 years (s44(1a) if the Act). So, this is a serious obligation and offence if breached.
We took no chances and before the following hearing date, we filed in court further written sentencing submissions for the Magistrate to consider our argument that only the 15 minutes or so was reportable contact with a child under the Act.
The ruling and penalty outcome
At the next hearing date, the Magistrate ruled that the reportable contact was only that 15 minutes of contact with his niece and nephew when the mother was not present.
The Magistrate recorded a conviction but in the circumstances of this case decided not to impose any penalty provided the client agree to enter a bond (a written promise) to be of good behaviour for a period of 2 years. Naturally he entered the bond and promised to be of good behaviour for 2 years and that was an end to the matter.
By sharing this experience in this way, our client aims to raise awareness and educate others, to help contribute to the prevention of such incidents by others and promote a safer environment for everyone involved.
If you are charged with a breach of the reporting obligations under Offenders Registration laws of South Australia and need some legal advice or representation, then contact the author Bill Morris at Northside Lawyers for a free first interview.
This article is only in relation to offending in South Australia. The law in this area is fast changing and this article is intended as a guide that is general in nature at the time of first publication and not intended to be legal advice in the context of the personal and factual circumstances of the readers situation, but I can say provide the following guidance-
- It is not an offence for a person registered under the Act to have some form of physical contact or close physical proximity with a child or some form of communication with the child either in person in writing by telephone or electronic device (element 1 contact) – unless a version of element 2 contact set out above is also present or if the nature of the contact is a criminal offence for some other reasons.
- It is only ‘reportable contact with a child’ where the contact meets both element 1 and one of the alternatives of element 2 contact referred to above.
- It is not an offence for a registered offender to have reportable contact with a child.
- It is only an offence to not report ‘reportable contact’ with a child’ within 2 days to ANCOR SA.
- There are statutory and common law defences to the non-reporting of child contact that you need to consider if an allegation is made against you. It is beyond the scope of this article to set out all the statutory and common law defences to this charge.
- If you are registered under the Act, it is important that you understand clearly your reporting obligations and the consequences for failure to do so.
- The definition of reportable contact is difficult to understand and so my client suggests, and it is also my strong recommendation to always report contact with a child even if you are satisfied it is not reportable contact because you have nothing to lose by reporting but the consequences of being wrong and not reporting are very serious indeed.
- In South Australia a registered offender has also to report contact with child (of any kind) that occurs in the circumstances prescribed in the Child Sex Offenders Registration Regulations 2022. At the time of writing this article (25 July 2023) there are no additional reportable contact provisions prescribed in the regulations beyond that set out in the Act.
Bill Morris Barrister, Solicitor and Principal Northside Lawyers
Note about the author Bill Morris:
Bill Morris is a very experienced criminal lawyer and former Magistrate himself so he well understands the law in this area, and how best to advise you of any defence, to present your case and importantly, about the kinds of penalties that might be imposed in the circumstances of your case.