Daniel’s Law – a bad law gone for good

“Mr Deputy Speaker … I seek leave to withdraw Daniel’s Law from the Notice Paper.“

With those few words in the Legislative Assembly of the Northern Territory on the first day of December 2015, NT Attorney-General John Elferink rang the death knell for “Daniel’s Law,” more properly the Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Bill. Until a few weeks earlier, Daniel’s Law been promoted as a key election policy for Adam Giles’ minority CLP government at the next NT general election scheduled for August 2016.

Elferink, with the parents of Daniel Morcombe by his side, launched Daniel’s Law in Darwin in mid-October 2014.

The son of Bruce and Denise, Daniel Morcombe was a victim of the serial sexual predator Brett Cowan, who was found guilty of Daniel’s murder in March 2014. The connection between Daniel’s killer and the NT dates back to the early 1990s, when Cowan, already with at least one child-sex related conviction, was living in a Darwin caravan park. There he abducted and raped a six-year-old boy, leaving him for dead in a rusty car-wreck. Cowan entered a guilty plea to charges of deprivation of liberty, gross indecency and grievous bodily harm and received a seven year sentence. He was paroled after serving nearly four years.

In early 2014 a senior advisor to Attorney-General John Elferink’s flew to the Gold Coast to meet with the Morcombes to advise them that the NT government was proposing legislation similar to ‘Megan’s Law‘ that would establish a publicly-available register of sexual offenders. Elferink’s advisor told the Morcombes that, in honour of them and their son, the NT government would like to use Daniel’s name for the legislation.

Bruce and Denise Morcombe–who had been pitching a nationwide national child sex offender register for some time–commended the NT Government’s decision to “step up and be the first jurisdiction in the country to introduce a public website of this kind’ and were ‘honoured and humbled’ that the NT Government had committed to naming the legislation in honour of their son.

But the potential effectiveness of Daniel’s Law had been compromised before the October 2014 launch. As reported by the ABC:

The NT chose to pursue its own legislation after a proposed national sex offenders register was knocked back at the recent Council of Australian Governments (COAG) meeting, according to Mr Elferink. “From our perspective if it’s not done at a Commonwealth level then we’re going to do it in the NT and proudly so,” he said.

Tony Abbott reinforced COAG’s rejection of a national register solely focussed on sexual offences. “What other governments do is a matter for them. I am disinclined to pursue such a thing nationally. We don’t have a national murders register. We don’t have a national thieves register. We don’t have a national white collar criminals register.”

Local opposition didn’t take long to emerge. Russell Goldflam of the Criminal Lawyer’s Association of the NT (CLANT) wrote at The Northern Myth:

Daniel’s Law is modelled on its American cousin, Megan’s Law … There is now a significant corpus of research into the effectiveness of these laws, and the evidence is in: they do not reduce the incidence of sexual offending, the type of offending, or recidivism … The NTSOPW will provoke alarm, by ramping up paranoia about and hatred towards sex offenders, who John Elferink wasted no time in comparing to the lepers of old. His proposed leper-colony solution is to make them social pariahs, and to exclude them from civil society.

John Elferink told The Guardian that experts could give “all the reasons in the world” to not establish the register, but ‘then you sit down and speak to the Morcombe family and you realise that you are in fact compelled to do these things.’

Later that month in the Morcombe’s home state of Queensland the Liberal National Party government and the Labor Party opposition refused to support a private members bill to establish a public sex offenders register put forward by Katter’s Australian Party MP Shane Knuth in state parliament.

In May 2015 Elferink’s plans received a further blow when COAG blocked access to the records of CRIMTRAC, the Commonwealth’s national database purpose-built to allow easy information-sharing between Australian law enforcement agencies. Elferink told the NT News:

The other jurisdictions have now stopped us from accessing the data we would need (to establish the online registry).

Elferink said that NT Justice Department bureaucrats would have the unenviable task of ‘scour[ing] court and criminal records manually to work around the refusal by the states to allow access to offenders’ data … We’ll push ahead with our plans,’ he said. He was still confident that once the NT register was established, other states would follow the NT’s lead.

On 15 September 2015 Elferink, with the Morcombes watching from the public gallery, introduced Daniel’s Law into the NT parliament. In his second reading speech he told the Legislative Assembly that:

Work continues on the development of the website through a cross-agency working group. The website development is being led by the Child Protection Offender Registry within the Northern Territory Police … Work will commence shortly to initiate the process of notification to those offenders and, where appropriate, their victims about the potential publication of the offender’s details on the website.

After almost a year in development, this was the first opportunity for examination of the Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Bill. Tass Liveris, President of the Law Society of the NT was quick to react, noting that while the Society applauded the important work by the Morcombe family of educating children, assisting victims of crime and supporting families, the Law Society was concerned that the serious risks posed by Daniel’s Law greatly outweighed any intended benefits, especially in a jurisdiction the size of the NT.

Liveris raised a raft of concerns, including there being no evidence that a public website would work; the potential for negative effects upon victims; that offenders are already closely privately monitored by NT Police; that vigilantism couldn’t be controlled and of very real risks of retribution and mistaken identity. Other concerns included the non-judicial determination of who would–or would not–be on the register and the unidentified costs of the administration of the register.

CLANT’s Russell Goldflam provided a further article, Ten reasons the NT’s ‘Daniel’s Law’ will be bad for sexual assault victims setting out further arguments as to why Daniel’s Law was bad law.

The usual practice of the Department of the Attorney-General and Justice is to consult with the community by circulating draft Bills to the Law Society, the Bar Association, CLANT, key legal services providers and other stakeholders for comment. This did not occur in the case of the ‘Daniel’s Law’ Bill, which only became publicly available when it was tabled in the Legislative Assembly almost a year later, on 15 September 2015. Even then, no invitation to comment was sought by Government, and indeed on 10 November 2015, the Attorney-General dared legislators to oppose the law, boldly telling ABC radio ‘let’s make it a central issue for the next election’.

Notwithstanding the strong opposition to Daniel’s Law–or any similar register–there was apparent broad support outside of the NT government and the Morcombe family. Radio presenter Derryn Hinch launched a “Protect Our Children” petition that called for all Australian governments to “unite to publish an ongoing national public register of all convicted sex offenders similar to Megan’s Law in the United States.” In mid-September 2015 more than 157,000 had signed the petition.

As of early December, this October 2014 post at the Daniel Morcombe Foundation Facebook page had received more than 40,400 likes, 10,200 shares and 2,100 comments. The September 2015 Facebook post announcing the introduction of Daniel’s Law into the NT Legislative Assembly received more than 8,300 likes, 890 shares and 290 comments.

The Sex Offender and Child Homicide Offender Public Website (Daniel’s Law) Bill was scheduled to be debated in the NT Legislative Assembly in the November sittings. However, consistent with the chaotic conduct of the CLP government over the past few months if not years, during early morning sittings on 18 November John Elferink, as Leader of Government Business, sought to unseat the Speaker Kezia Purick. That failed coup attempt–in which a CLP MLA voted against his own party’s nomination for a replacement Speaker–plunged the government further into chaos. Labor leader Michael Gunner soon announced that he would introduce a Motion of No Confidence in the Giles government in the December sittings of the Assembly.

The next day Attorney-General Elferink announced that due to family reasons he was retiring from politics at the next NT general election due in August 2016. The following Monday Independent MLA Gerry Wood told local ABC radio that he would support Labor’s no confidence motion if Daniel’s Law was ‘pushed through’ the Assembly.

Wood told The Northern Myth that he didn’t think that the government had done its due diligence on the Bill and said he wanted to avoid what the NT Information Commissioner had called collateral damage. “I’ve always said it was a bad law and innocent people would’ve been hurt,” said Mr Wood.

Speaking to the ABC, NT Victims of Crime manager Mike Campbell said the Bill, while very well intentioned, cautioned that “there is a very real risk the child victim will be re-traumatised.”

The prospect that Wood, an influential but cautious politician who had saved a minority Labor government from a CLP no confidence motion in 2009, would support a similar motion against the CLP in 2015 if Daniel’s Law remained on the books appears to have rattled the CLP. On Friday 27 November Attorney-General Elferink released a statement advising that Daniel’s Law would be “delayed to allow more consultation on some aspects of the proposed legislation.”

During Legislative Assembly proceedings on 1 December Elferink announced the withdrawal of Daniel’s Law from the parliamentary Notice Paper. Later that day Labor’s no confidence motion was lost on the numbers. Along with two other independents, Gerry Wood abstained from the vote.

Understandably, the Morcombes are disappointed that Daniel’s Law has been withdrawn. Bruce Morcombe told The Northern Myth that while he was “a little frustrated and disappointed” at the withdrawal he believed that the NT government was committed to re-introducing it. Morcombe said that prior to the withdrawal of the Bill NT Chief Minister Adam Giles had called him and spoken of his frustration at the negative commentary regarding the structure of Daniel’s Law. Bruce Morcombe told The Northern Myth that, “Fingers crossed, that is our position” and that Giles had told him that a revised Daniel’s Law would be re-introduced to the Assembly ‘sooner rather than later.’

When asked how supporters of the Daniel Morcombe Foundation might react Bruce Morcombe said he was sure they would be “frustrated and enormously disappointed.” He also hoped that any delay might result in an improved Bill.

It is widely expected that NT Chief Minister Adam Giles will reshuffle his cabinet over the Christmas break and that at least some of Elferinks current roster of ministries will be reallocated. If that occurs it is difficult to see any other CLP minister–or Giles himself–quickly gaining sufficient familiarity with the complexities of Daniel’s Law or the having wit and wisdom to conduct what will undoubtedly be fraught consultations with interest groups and negotiations with a fractious cross-bench in order to produce a Bill acceptable to all. It is unlikely that Daniel’s Law will be re-presented to the NT Legislative Assembly before the next election–if ever.

Charles Darwin University’s Felicity Gerry QC is not supportive of Daniel’s Law but was able to find one positive. Gerry told The Northern Myth that: