Changes to laws for registered sex offenders

The article Changes to laws for registered sex offenders is written by Doogue + George Defence Lawyers.

Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.
 

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There have been a number of changes to both Commonwealth and Victorian Sex Offender registry laws that impact upon persons with reporting obligations under the Sex Offenders Registration Act 2004 (Vic).

Main Changes to Commonwealth Law – Overseas Travel

On 20 June 2017, the Commonwealth Parliament passed legislation¹ that amended the Australian Passports Act 2005 (Cth) and the Criminal Code Act 1995 (Cth). Those changes commence operation from 13 December 2017. The changes apply to reportable offenders. A reportable offender means a person:

1. whose name is entered on a child protection offender register (however described) of a State or Territory; and
2. who has reporting obligations (however described) in connection with that entry on the register.

The effect of the changes was to create:

1. the power to refuse to issue a passport or to cancel an existing passport²; and
2. a new criminal offence relating to overseas travel by registered sex offenders

Refusal / Cancelation of Passports

A relevant Sex Offender Registry may request that the Minister for Foreign Affairs refuse to issue or cancel a passport³. Once that request is made the Minister must cancel or refuse to issue the passport⁴. Following the request, the decision to refuse or cancel is mandatory and not subject to merits review by the Administrative Appeals Tribunal.

Offence to Travel Overseas Without Permission

The changes also create an offence for a person whose name appears on a state or territory child sex offender register to travel or attempt to travel overseas without permission from a competent authority. An offence against this new law will be punishable by up to five years’ imprisonment.

The following section creates the offence:

Division 271A—Overseas travel by certain registered offenders
271A.1 Restrictions on overseas travel by certain registered offenders

1. A person commits an offence if:
   1. the person is an Australian citizen; and
   2. the person’s name is entered on a child protection offender register (however described) of a State or Territory; and
   3. the person has reporting obligations (however described) in connection with that entry on the register; and
   4. the person leaves Australia.

   Penalty: Imprisonment for 5 years.

2. Absolute liability applies to paragraph (1)(a).
   Note: For absolute liability, see section 6.2.
3. Subsection (1) does not apply if:
   1. a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or
   2. the reporting obligations of the person are suspended at the time the person leaves Australia.
   Note: The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).

For Victorian registered offenders, permission to travel must be sought from the Victoria Police Sex Offenders Registry. There is no legislation governing their decision making on granting permission or not. Under the state act, the only obligation with respect to travel is to notify the Registry.

Importantly the offence provision, and the need to obtain permission to travel do not apply to a person whose reporting obligations are suspended⁵.

Further information for reportable offenders may be found at the Australian Passport Office website:
https://www.passports.gov.au/Pages/information-for-reportable-offenders.aspx#faq27

Changes to Victorian Law

As of 1.3.18 changes to the Sex Offenders Registration Act 2004 made by the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 come into effect.

The effect of these changes will create the ability to apply to

1. The sentencing Court be exempt from registration
2. the Chief Commissioner of police to suspend reporting for up to five years

The starting point for applying for exemption or suspension of reporting obligations is to prepare a detailed written application. The application should be accompanied by reports from psychologists and/or psychiatrists that will formally assess your risk of re-offending. Such a report needs to be well written and comprehensive. This is something that your lawyer will help you with.

We appear regularly for people with issues relating to the Sex Offender registry so please contact one of our lawyers to discuss.

Exemption Orders

An exemption order is available to anyone who was 18 or 19 at the time of an offence where the victim was of the age of 14 or older. An applicant must satisfy the Court on the balance of probabilities that they pose no risk or a low risk to the sexual safety of the community.

The ability to apply for such an order has never previously existed.

Further detail about what is required is set out in the relevant sections of the Act:

11A Application for registration exemption order

1. Subject to this section, a person who has been found guilty by a court of a registrable offence that is a specified offence may apply for a registration exemption order in respect of the offence if the person—
   1. at any time during the commission of the offence, was 18 or 19 years of age; and
   2. at all times during the commission of the offence, was not more than 19 years of age.
2. A person may not apply for a registration exemption order if the person—
   1. has been found guilty of another registrable offence that is not a specified offence; or
   2. has been found guilty of another specified offence for which an application for a registration exemption
   3. was a registrable offender at the time the person committed the specified offence to which the application relates; or
   4. is a corresponding registrable offender or a New South Wales registrable offender.
3. A person may not apply for a registration exemption order in respect of a specified offence against more than one victim unless the offence relates to the possession of child abuse material or child pornography.
4. An application may relate to more than one specified offence if—
   1. each specified offence relates to the possession of child abuse material or child pornography; or
   2. each specified offence was committed against the same victim.

11B Determination of application

1. On the hearing of an application under section 11A, a court may, by order, declare that the applicant is not a registrable offender in respect of a specified offence if the court is satisfied on the balance of probabilities that—
   1. at all times during the commission of the specified offence—
      1. any victim of the offence is of or over the age of 14 years; or
      2. any person depicted or described in any material to which the offence relates is of or over the age of 14 years; and
   2. the applicant poses no risk or a low risk to the sexual safety of one or more persons or of the community, having regard to—
      1. the seriousness of the specified offence; and
      2. the ages of the applicant and any victim of the specified offence at the time of the commission of the specified offence; and
      3. whether any victim of the specified offence was under the care, supervision or authority of the applicant at the time of the specified offence; and
      4. whether any victim of the specified offence had a cognitive impairment or mental illness within the meaning of Subdivision (8E) of Division 1 of Part I of the Crimes Act 1958 at the time of the commission of the specified offence; and
      5. where the application relates to more than one specified offence—the number and nature of those specified offences, including whether the specified offences arose out of the same set of circumstances; and
      6. any other matter that the court considers relevant; and
   3. but for the specified offence, the applicant would not be a registrable offender.

Suspension of Reporting Obligations

Prior to the changes to the Act, the Chief Commissioner of Police could suspend a person’s reporting obligations for up to 12 months if satisfied that the person posed no risk to the sexual safety of the community. That risk assessment was interpreted strictly and almost no one had their obligations suspended.

The changes increased the length of time that the Chief Commissioner could suspend reporting obligations from 12 months to five years. The risk assessment was broadened from no risk to no risk or low risk to the sexual safety of the community. Establishing low risk will be much easier and the changes allow scope for many more people to have their obligations suspended.

The matters for the Chief Commissioner to consider are set out in the section of the Act:

45A Chief Commissioner of Police may suspend reporting obligations for period not exceeding 5 years in certain circumstances

1. Subject to subsection (2), the Chief Commissioner of Police, by written notice served on a registrable offender, may suspend the registrable offender’s reporting obligations for a period (not exceeding 5 years) specified in the notice.
2. The Chief Commissioner of Police must not act under subsection (1) unless satisfied that the registrable offender does not pose a risk, or poses a low risk to the sexual safety of one or more persons or of the community.
3. In deciding whether to act under subsection (1), the Chief Commissioner of Police must take into account—
   1. the seriousness of the registrable offender’s registrable offences and corresponding registrable offences; and
   2. the period of time since those offences were committed; and
   3. the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and
   4. the registrable offender’s present age; and
   5. the registrable offender’s total criminal record; and
   6. the extent to which the registrable offender has complied with their reporting obligations; and
   7. the registrable offender’s physical or cognitive capacity to comply with their reporting obligations; and
   8. any other matter that the Chief Commissioner of Police considers appropriate.
4. The Chief Commissioner of Police—
   1. may suspend a registrable offender’s reporting obligations more than once; and
   2. may cancel a suspension under this section at any time.

 
 

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_{¹ Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) is the amending bill.
² Once cancelled a demand for the surrender of a passport can be made, failure to comply with the demand is an offence.
³ s18 Australian Passports Act 2005 (Cth)
⁴ s22AA Australian Passports Act 2005 (Cth)
⁵ s271A.1 (3)(b) Criminal Code Act 1995 (Cth).}
 
 
 
Date Published: 15 March 2018