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W.A. Dangerous Sexual Offender Legislation

Executive Summary

The Dangerous Sexual Offender Act 2006 was developed in order to continue detaining the high risk sex offenders at the end of their prison sentence. Many factors led to the development of the Act such as politicization of the scheme and the need to protect the community from re-offenders. DSOA not only applies to offenders released having served their sentence but also to offenders released on parole. The legislation entails the treatment and rehabilitation scheme for offenders. Although there are many benefits that resulted from the scheme such as the reduction of sexual re-offences in the community and the treatment and rehabilitation of the dangerous sex offenders, many drawbacks have led to its criticism. For instance, the assessment criteria for the likelihood of an offender to commit sexual offence are considered unreliable and highly prejudicial.

Table of Contents

Table of Contents

Executive Summary i

1.0 Introduction 1

2.0The Development of Legislation to Manage Dangerous Sexual Offenders 1

12.1 Social Factors

22.2 Political Factors

3.0 Dangerous Sexual Offender Legislation 2

4.0 Amendments to Dangerous Sexual Offender Legislation 3

5.0 Benefits and Criticisms of the Dangerous Sexual Offender Legislation 3

35.1 Benefits

45.2 Criticisms

6.0 Conclusion 4

1.0 Introduction

Over the years, the criminal justice systems of Australia have been battling with the perennial concern of what to do with the dangerous sex offenders and their likelihood of reoffending (White and Perrone, 2015. This issue has been intensified by the rising publicised incidents of sexual offences and the societal concern over safety. Australia contains a preventive detention schemes that operates in cities like West Australia and New South Wale. These schemes were developed in order to continue detaining the high risk sex offenders at the end of their prison sentence (DSOA, 2015). This paper will describe the development of the West Australia’s Dangerous Sexual Offenders Act 2006 and the purpose the legislation serves. It will also outline the amendments that have been made and the benefits and criticism of the legislation.

2.0The Development of Legislation to Manage Dangerous Sexual Offenders

2.1 Social Factors

The first legislation is Australia that allowed preventative detention of sexual offenders after serving sentence was the Dangerous Prisoner Sexual Offender Act 2003 which prompted the implementation of Dangerous Sexual Offender Act 2006 in West Australia. This legislation was a response to the community concern over a successive rapist by the name Gary Narkle (McSherry and Keyzer, 2009). The legislation was passed in order to keep Narkle Gary off the community as he was a potential danger to the public. The development of Dangerous Sexual Offender Act 2006 was more so brought about by the need for preventative detention that was justified by the communal need for a scheme that would be in the interest of the community protection (DSOA, 2015).

2.2 Political Factors

The development of DSOA in West Australia was as a result of the political public support for the incapability of policies to deal with recidivism. According to Mellema, 2014), preventative and treatment detention policies of the DSOA legislation reflect a political preference for the protection of community against sexual re-offences. The development of DSOA was politicized in that it was used by politicians to appeal to the voters and appear “tough” on sexual offenders as a result of public loathing towards such offences (Gunderson, 2007). Critics have argued that the development of the legislation was not to target real sex offenders but was used as a short-term political tool to appease the ill-informed public.

3.0 Dangerous Sexual Offender Legislation

According to the Dangerous Sexual Offender Act 2006, a “dangerous sexual offence” as quoted from section 106A of Evidence Act 1906(WA) is any criminal code offence that result to a maximum penalty of minimum of 7 years (DSOA, 2015). The legislation offer a mechanism where dangerous sex offenders are managed who have served their sentence but have the potential to re-offend and create risk to the community. The act provides an extended detention and supervision of dangerous sex offenders in order to ensure that the community is protected. Unlike DPSOA of Queensland, DSOA may apply to sexual offenders that involve no separation component of violence. It also applies to sexual offenders who have been discharged to the community on parole (DSOA, 2015). Since the implementation of DSOA, several continuing orders have been granted and others like DPP v Williams have been dismissed. The dangerous Sexual Offender Act 2006 was meant to protect the community from the potential risks of dangerous sexual crimes committed by sexual offenders released after serving their sentence (DSOA, 2015).

4.0 Amendments to Dangerous Sexual Offender Legislation

The significance changes were made in the Dangerous Sexual Offenders Act 2006 in order to strengthen the power of authorities to manage and control offenders as well as better the community at large (Colvin, Linden and McKechnie, 2005). The changes also were made following the society concern about the conditional release of TJD, a dangerous sex offender. One amendment made in the legislation included the doubling of the length of time of detention of dangerous sexual offender from one year detention to two. Also the amendments allowed victims to make a submission to the court regarding the conditions for their protection. In addition, offences committed in new jurisdictions by a sexual offender were to be accounted for by the court when deciding applications (Colvin, Linden and McKechnie, 2005). A minimum of 21 days was introduced in order to delay the release of a dangerous sexual offender in order for strict supervision arrangements to be put in place. The amendments also allow the court to restrict any media comment by a sexual offender about the victims of the sexual offending. The amendments had been done in order to adhere to the constitutional law that restricts the degree to which State Governments in Australia can detain offenders after serving their imposed sentences (Colvin, Linden and McKechnie, 2005).

5.0 Benefits and Criticisms of the Dangerous Sexual Offender Legislation

5.1 Benefits

The Dangerous Sexual Offender legislation in West Australia was considered a novel scheme used to detain sex offenders after serving their term in prison in cases where there is potential for reoffending (Keyzer and McShery, 2015). The act has ensured that the community is protected by preventing dangerous sex offenders from re-offending. In addition, the Dangerous Sexual Offender Act 2006 included the provision of treatment and rehabilitation to sex offenders who has the potential to re-offend. Following this, many sexual offenders have undergone treatment and have changes their ways considerably (McSherry and Keyzer, 2009). Since the commencement of the legislation, dangerous sexual cases committed by re-offenders have decreased dramatically (Gelb, 2007). Of those released under the legislation act of supervision and detention, none so far has committed dangerous sexual offence and the community is considered safe.

5.2 Criticisms

Under the Act, preventable detentions are justifiable and rely on techniques of identifying the offers with high probability of re-offending (Media Watch, 2008). The Act states that the determinants of probability of re-offending should be based on satisfaction to a higher level of probability driven by acceptance and cogent evidence from psychiatrists. Nevertheless, it is argued that the psychiatric assessments are too hypothetical and lack scientific validity for the determination of dangerousness (Baker, 2009). Another technique used to measure the probability of re-offending is the prisoner’s past conduct and behaviour. This is highly prejudicial and does not determine future conduct. In addition, one legislation purpose of Dangerous Sexual Offender 2006 Act is to rehabilitate and treat sex offenders. It is believed that best-practice rehabilitation programs have the potential to deliver positive results (Mischin, 2015). However, no additional resources have been present to implement the treatment and rehabilitative purpose. Although this legislation has been prised for its benefits, the governments have failed to offer the treatment and rehabilitation the priority necessary for positive outcomes.

6.0 Conclusion

The dangerous Sexual Offender Act 2006 came after an increased concern about dangerous sex offences and potential for re-offending. Many factors played a role in the development the legislation. First, as a result of the concern for the safety and protection of the community against sexual offenders who are released from prison such as Gary Narkle, the legislation was implemented. In addition, DSOA was politicized since it was used by politicians to gain votes from the public by acting tough against dangerous sexual offences. The legislation applies to offenders who have served their term but are considered dangerous to the community. It is aimed at protecting the community from sexual offences by providing treatment and rehabilitation for sexual offenders after serving prison sentence. Some critics argue that the government has failed to offer rehabilitation the priority in deserves and that the assessment method of the potential re-offending lacks scientific validity.


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Dangerous Sexual Offenders Act 2006 (2015).(WA)DPP (WA) v McGarry [No 7] [2015] WASC 32

E Colvin, S Linden & J McKechnie, (2005). Criminal Law in Queensland and Western Australia: Cases and Materials, 4th edn, Sydney: LexisNexis Butterworths.

Gelb, K. (2007). Recidivism of Sex Offenders: Research Paper. Melbourne: Sentencing Advisory Council.

Gunderson, Dan. (18 June 2007).«Sex offender laws have unintended consequences». MPR news.

Keyzer, P., & McSherry, B. (2015). The preventive detention of sex offenders: Law and practice. University of New South Wales Law Journal, 38(2), 792.

McSherry, B and Keyzer, P. (2009). Sex Offenders and Preventive Detention: Politics, Policy and Practice. Annandale:The Federation Press.

Media Watch (2008). Media Hunt a Monster. Australian Broadcasting Corporation. Retrieved from http://www.abc.net.au/mediawatch/transcripts/s2303501.htm

Mellema, Matt. (11 August 2014). «Sex Offender Laws Have Gone Too Far». Slate.

Mischin M. (2015). Western Australia, Parliamentary Debates, Legislative Council, 9224b – 9226a.

White, R., & Perrone, S. (2015). Crime, criminality and criminal justice (2nd ed.). Melbourne: Oxford University Press.