A lawyer fears there may be cases of people being wrongly placed on the sex offenders register in Tasmania, after a protracted row with a division of the state's justice department.
Lawyer Dinesh Loganathan has uncovered what he believes is the incorrect application of a tool that authorities use to assess someone's likelihood of reoffending.
The assessment will form part of a report that the court will use to determine whether or not someone should be placed on the register.
He recently went head to head with Community Corrections in the Hobart Magistrates Court after the justice body used the tool to assess one of his clients as having a medium risk of reoffending.
The man, who moved to Australia from Nepal in 2015, had been caught masturbating in his car by a council worker.
The original Community Corrections assessment, which assigned him as being at medium risk of reoffending, meant the magistrate would have had to give "significant consideration" to placing him on the sexual offenders register.
Mr Loganathan said that could have led to his client being deported.
Disagreeing with their assessment, Mr Loganathan commissioned a report from clinical psychologist Grant Blake and provided him with a copy of Community Corrections' assessment.
"[Dr Blake], in my words, took offence to it," Mr Loganathan said.
"[Dr Blake strongly believed] Community Corrections had been doing this [assessment] wrong or are doing it wrong."
He said Dr Blake's position was that the risk assessment should never have been applied to the man because he had committed a "Category B" offence — which is either a crime with consenting parties or no specific victim.
According to the manual for Static-99R, Category B offences include sexting, consenting sex in public places and indecent behaviour without a sexual motive.
Mr Loganathan also said the risk assessment tool itself was not suitable for predicting recidivism in people of South Asian ethnicities as there was no specific evidence to support its use in that group.
He said some studies showed a difference in the risk of reoffending between different ethnic groups, making the tool potentially inaccurate.
He said he then became concerned about what this meant for other cases — and says Dr Blake felt the same.
"Community Corrections must be informed they are continuing to use risk assessment tools incorrectly," Dr Blake wrote in his report.
"It is unethical, unacceptable practice. It cannot continue."
Community Corrections 'weren't willing to concede they were wrong'
Mr Loganathan said Community Corrections questioned Dr Blake's experience and knowledge of the risk assessment tool.
So he commissioned a second opinion from psychologist Emma Collins — a certified Static-99R trainer who trains others to use it.
Her report backed up Dr Blake's but Mr Loganathan said Community Corrections still "weren't willing to concede they were wrong".
In court, Community Corrections representative Emily Drysdale, who did not administer the assessment, said her own "communication with senior management is that it was correctly applied".
Finally, Mr Loganathan received an email from one of the lead authors of the risk assessment tool's revised manual, Yolanda Fernandez.
She confirmed the previous reports, that Static-99R should not have been applied in that case.
After passing on this correspondence to Community Corrections and telling them he was prepared to subpoena Ms Fernandez, Mr Loganathan claimed they backed down.
He said Community Corrections abandoned its original report and replaced it with a new report that did not include Static-99R assessment.
He also said Community Corrections informed the court it could not indicate the man's risk of reoffending.
"Assistant Community Corrections Director Christopher Carney had to send both myself and the court a letter saying they retract their oppositions... [and] no longer make any formal recommendation to the court at risk of reoffending," he said.
'How many people have been wrongly subjected?'
While Mr Loganathan's client's matter is now finalised, he is worried others have had the risk assessment tool applied incorrectly by Community Corrections.
Following an earlier ABC story about the matter, he said he had had lots of calls and had found at least two cases that he believed had been wrongly assessed and put on the register.
"In 2022, we have discovered that Community Corrections have been using the Static-99R for quite some time [and] they have been applying it to Category B offences," he said.
"It's good that they have discovered that there is something wrong … that they have been doing something wrong.
"Now the question is how many people have been wrongly subjected to Static-99R and because of that wrong application of the risk assessment, are now currently on the register.
"That's my biggest worry."
Mr Loganathan said he plans to keep digging to find people who might have wrongly been placed on the list.
"We've seen and heard numerous times of the negative or detrimental effects that being placed on the register can have on people," he said.
"Worse case is if you're being put on the register when you shouldn't actually be on the register."
Department stands by original decision
Asked to respond, Community Corrections said the use of the tool had been reviewed in the case of the Nepalese man but gave no indication as to whether other cases would also be checked.
It said independent advice had been sought about whether the circumstances of the offence should have resulted in a Category A or B assessment.
It was advised that the circumstances fell into either category, and the final decision rested with a trained assessor to apply their judgement.
The statement also said that officers were required to "consider factors relevant to ethnicity in undertaking individual assessments".
"A number of studies have been conducted which did not find a statistically significant difference between the predictive ability of the tool to assess the presenting risk of sexual offending for different ethnic groups," it said.
