Further to last year's CPD “Navigating the ever-changing landscape of sexual offences: a 2017 update” barristers Briana Goding and Abbie Roodenburg remind you that Part 2 Division 2: Exemption Orders of the Sex Offenders Registration Act comes into operation on 1 March 2018.
One of the aims of these new provisions is to “ensure that certain young adults are not inappropriately placed on the sex offender register and subjected to disproportionate and unnecessary impacts arising from automatic registration on that sex offender register.” Think about the young clients you may have had who were placed on the Sex Offenders’ Register (often for life), who may now be eligible to be exempted. The processes are still to be established and tested, and the Courts will no doubt issue/amend practice notes in due course. But the clock starts ticking 1 March 2018, so start considering now which former or current clients may benefit from these new provisions.
Overview of Exemption Orders
What? A process by which an otherwise registrable offender may be exempted from being registered on the Sex Offenders Register as a sexual offender, and thus cease to be a registrable offender for the purposes of SORA (s11E)
Who is eligible to apply? A person who has been found guilty of a registrable offence that is a specified offence who at any time during the commission of a specified offence was 18 or 19 years of age and at all times during the commission of a specified offence was not older than 19. (s11A(1))
How? An application is to be made in writing to the Court in which the offender was registered (or the sentencing Court of highest jurisdiction if there are multiple court appearances). It is anticipated there will be a prescribed application form. An application must state the grounds on which the application is made and any other matters prescribed by the rules of the court. All applications must be served on the Chief Commissioner of Police who is the respondent to the application. New rules are currently being drafted which will require applicants to file an affidavit in support of the application, in addition to the application form, which outlines relevant matters.
When can an application be made? There are strict time limits for the making of an application:
- For offenders found guilty after 1 March 2018 an application must be made within 6 months of being given notice of their reporting obligations (s11C)
- For offenders found guilty before 1 March 2018 an application must be made within 2 years of the commencement of the provisions, or 2 years of being given notice of their reporting obligations, whichever is the later. (s73H)
Test: In addition to the eligibility requirements of age and offence-type, an application must not be granted unless satisfied on the balance of probabilities that:
- at all times during the commission of the specified offence—
- any victim of the offence is of or over the age of 14 years; or
- any person depicted or described in any material to which the offence relates is of or over the age of 14 years; and
- the applicant poses no risk or low risk to the sexual safety of one or more persons or of the community, having regard to:
- Seriousness of the specified offence
- Age of the applicant and any victim at the time of the offence
- Whether any victim was under the CSA at the time of the offence
- Whether any victim had a cognitive impairment or mental illness
- the number and nature of offences, including whether the offences arose out of the same set of circumstances
- Any other matter the court considers relevant
- but for the specified offence, the applicant would not be a registrable offender (s11B)
A new Schedule 5 will also be added to SORA setting out what is a “specified offence”.
For more information on recent amendments relating to sexual offences, including the substantial 2017 amendments to the Crimes Act 1958 relating to child sex offences, the CPD can be viewed via https://www.youtube.com/watch?
If you have any queries about the upcoming amendments or SORA please contact Briana or Abbie, or one of Greens List clerks.