What is the Sex Offenders Register?
In Victoria, the Sex Offenders Register contains information about ‘registrable offenders’ convicted of certain sexual offences who are subject to reporting requirements and employment restrictions. The register is established and regulated by the Sex Offenders Registration Act 2004 (Vic) (the Act) and the Sex Offenders Registration Regulations 2014.
Registered offenders must report to Victoria Police at least annually, providing a range of personal details, including their movements, for a period determined by the legislation. It is an offence for a registered sex offender to fail to comply with their reporting obligations or to furnish false or misleading information while purporting to comply with reporting obligations.
The registration scheme is part of a national approach to monitoring the activities of people convicted of sexual offences. All States and Territories in Australia have similar laws, and Victoria’s scheme applies to sex offenders registered in other jurisdictions who move to or visit Victoria from interstate.
Purpose of the Sex Offenders Register
The purpose of the Sex Offenders Registration Act 2004 (Vic) is to require registrable offenders to keep police informed of their whereabouts and personal details to reduce the likelihood of reoffending, facilitate investigations and prevent offenders from working in child-related employment (the Act s 1). Upon registration, sex offenders must comply with various ‘Reporting obligations‘.
The registration scheme under the Sex Offenders Registration Act 2004 (Vic) (the Act) applies to any ‘registrable offender’ (a person convicted of a registrable offence).
Subject to exceptions, a ‘registrable offender’ is a person who has been sentenced for a ‘registrable offence‘, is a ‘corresponding registrable offender’ or a ‘New South Wales registrable offender and a court has not made a registration exemption order (ss 6, 9, 10).
An offence can become a ‘registrable offence’ either:
- Automatically, for a ‘registrable offence’ committed by an adult listed in Schedule 1 and Schedule 2 of the Act, known as ‘Class 1’ and ‘Class 2’ offences; or
- Following the exercise of judicial discretion, when an offence becomes a ‘registrable offence’ due to the court making a sex offender registration order (s 7).
Exceptions apply to offenders sentenced before 1 October 2003, offenders receiving foreign witness protection, and where the conviction or order is quashed or set aside (ss 6, 7).
There are 4 classes of registrable offences, which vary in nature and degree of seriousness. Class 1 offences are the most serious criminal offences involving child sexual abuse. Class 2 offences include a broader range of sex offences involving children, including indecent assault of a child and child pornography offences. Class 3 & 4 registrable offences are similar to offences in classes 1 and 2 but are committed by a ‘serious sexual offender’ against an adult.
A person convicted of a Class 1 or Class 2 offence is subject to a mandatory registration order (ss 6, 7). Whereas, the court has discretion whether to impose a registration order for a person convicted of a Class 3 or 4 offence (s 11). Under section 11, a court may also impose a discretionary sex offence registration order against a person found guilty of a registrable offence in another jurisdiction.
In summary, offenders sentenced for sexual offences against children are automatically registered, while other sexual offenders are liable to registration only if they are ‘serious sexual offenders’ and a discretionary order is made under s 11.
Mandatory registration and Serious Sex Offences
Under the Serious Offenders Act 2018, a court can make an order requiring the ongoing supervision or detention of a serious offender convicted of a ‘serious sex offence’. These offences are listed in Schedule 1 of the Serious Offenders Act 2018 and include rape, sexual assault, child abuse and child pornography offences.
The court must make a sex offender registration order for an offender who previously received a custodial order for a ‘serious sex offence’ (and is not already subject to an order) if the court:
- makes or confirms a supervision order or a detention order;
- varies a supervision order;
- adds or removes a condition of a supervision order; or
- confirms a condition of a supervision or interim supervision order on a review (Sex Offenders Registration Act 2004 s 11(9)).
This is a mandatory process with no exceptions.
Discretionary registration orders
A person convicted of any offence, other than those listed in Class 1 or 2 (which lead to automatic registration) may be subject to a discretionary sex offender registration order under section 11. While the courts have not defined a limit to offences that may qualify for a discretionary registration order, the purpose of the Act is to mitigate the risk of sexual re-offending, and the court may only make a discretionary order upon consideration of the risk of sexual safety to others (s 11(3)).
Discretionary registration orders may only be made by the court upon application by the prosecution within 30 days of sentencing. Once the court’s power to make a discretionary order is enlivened, the court considers whether an order is justified in the circumstances (Bowden v R). Upon making an order, the offender is subject to the order for life, unless the order is quashed or set aside by a court (s 11(1), (11)). However, the offender must only comply with the reporting obligations for the period determined under sections 34 and 35 of the Act (see ‘length of reporting period‘ below).
A discretionary registration order is only available in the following conditions:
- a person has been found guilty of an offence committed as an adult, that is not a Class 1 or Class 2 offence;
- a person has been found guilty of an offence committed as a child, including a Class 1, 2, 3 or 4 offence;
- a person has been found guilty of an offence committed as an adult in a foreign jurisdiction, that is not a Class 1 or 2 offence; or
- a person has been found guilty of an offence committed as a child in a foreign jurisdiction, including a Class 1, 2, 3 or 4 offence (s 11).
The prosecution may apply no later than 45 days after a sentence is imposed for orders concerning Victorian offences. However, a police officer may apply for a sex offender registration order at any time for registration orders based on offences in foreign jurisdictions.
Discretionary registration order considerations
- The inquiry whether to make a registration order involves a two-stage process.
- The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.
- For the court to be so satisfied, the risk must be real rather than fanciful.
- The evaluation of risk is directed to the risk upon the offender’s release into the
community, assessed by what is presently known.
- The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.
- The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender’s right to enjoy freedom and autonomy of action.
- The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.
Risk to the sexual safety of others
A court may only make a sex offender registration order under section 11 if it is satisfied, beyond reasonable doubt, that the offender “poses a risk to the sexual safety of one or more persons or of the community” (s 11(3)).
In making this assessment, the risk must be a ‘real risk’, that is, more than a merely theoretical, remote or imagined risk (Bowden v R). The assessment is contingent on whether the offender will pose a relevant risk upon their release from custody, not whether they pose a risk at the time of sentence.
In R v Chan, for example, the offender was 26 at the time of the offending and had committed prior sexual offences as a child. Psychiatric evidence indicated a ‘slight chance’ of reoffending. As this constituted only a ‘remote’ chance of reoffending, the Court of Appeal held that sex offender registration was not justified.
Furthermore, under section 11(4), the risk to one or more community members must relate to ‘sexual safety’ and include a risk of another registrable offence occurring. However, the court is not limited to considering the risk of physical safety, bodily integrity or contact and may also consider sexual conduct posing a psychological risk to others, such as wilful and obscene exposure (eg Bowden v R; Blyss v Magistrates’ Court of Victoria).
A person found guilty of a registrable offence committed as a child is not automatically registrable if sentenced for a Class 1 or Class 2 offence. However, a child can become registrable subject to the court’s discretion and the making of a sex offender registration order (s 11). If the court makes a registration order for an offence committed as a child, the court may exempt the child from particular reporting obligations, or reporting obligations may be modified (s 11(2B)).
Registration exemption orders also allow a court to exempt certain young offenders from the reporting obligations who have been found guilty of a ‘specified offence’. Specified offences are Class 1 or 2 offences listed in schedule 5 of the Act (s 3).
See our article on ‘Sex offender registration exemption orders‘ for further information.
Appeals against registration
Under the Sex Offenders Registration Act 2004, there is no right of appeal against automatic registration, such as for class 1 and 2 offences. Similarly, there is no provision for the Director of Public Prosecutions (DPP) to appeal against a court’s decision that an offender is not subject to mandatory registration.
However, as section 3 of the Criminal Procedure Act 2009 (the CPA) defines ‘sentence’ to include an order made under section 11 of the Sex Offenders Registration Act 2004, an offender does have a right of appeal against sentence in cases of a discretionary registration order (CPA s 278).
The DPP may appeal against a sentence if there was an error in a sentence imposed by the court (CPA s 287). However, in cases of a failure to make a sex offender registration order, the decision may be characterised as a failure to impose a sentence, in which case, there is no sentence for the DPP to appeal. As the court has not yet determined this issue, it is unclear whether the DPP can successfully appeal a decision not to impose a discretionary registration order (see DPP v Cartwright (2015) 45 VR 168).
Registrable offences are listed in different classes under schedules 1-4 of the Sex Offenders Registration Act 2004.
Schedule 1, Class 1 offences are the most serious criminal offences involving child sexual abuse. These offences include:
- Persistent Sexual Abuse of a Child under the age of 16
- Facilitating a Sexual Offence Against a Child
- Facilitating Sexual Offences Against Children (repealed)
- Compelling sexual penetration of a child
- Persistent sexual abuse of child under the age of 16
- Aggravated sexual servitude
- Offences against various sections of the Commonwealth Criminal Code related to sexual activity with a child outside Australia.
- Any offence under a law of a foreign jurisdiction that, if it had been committed in Victoria, would have constituted an offence of a kind listed
- An offence an element of which is an intention to commit an offence of a kind listed
- An offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed
Schedule 2, Class 2 offences include a broader range of sex offences involving children, including indecent assault of a child and child pornography offences. These offences include:
- Sexual assault of a child under the age of 16
- Assault with intent to commit a sexual offence
- Assault with the intent to commit a sexual offence against a child
- Sexual assault of a child aged 16 or 17 under care, supervision or authority
- Sexual activity in the presence of a child under the age of 16
- Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority
- Grooming for sexual conduct with a child under the age of 16
- Loitering near schools etc. by sexual offender
- Abduction or detention of a child under the age of 16 for a sexual purpose
- Child abuse material offences
- Threat to commit a sexual offence against a child
- Performance of an act of indecency with child
- Indecent acts with a cognitively impaired person by providers of medical or therapeutic services, or special programs.
Schedule 3 & 4, Class 3 & 4 registrable offences are similar to offences in classes 1 and 2 but are committed by a ‘serious sexual offender’ against an adult. These offences include:
- Compelling sexual penetration
- Sexual assault or sexual assault by compelling sexual touching
- Assault with intent to commit a sexual offence
- Procuring sexual act by threat
- Sexual assault of a person with a cognitive impairment or mental illness
- Causing another person to provide commercial sexual services in circumstances involving sexual servitude
- Procuring sexual act by fraud
A person on the Register of Sex Offenders must report a range of personal information to Victoria Police within seven days from the date of sentence or release from custody. Convicted sex offenders must also report information if intending to travel interstate or overseas. Reported information must be provided annually or within seven days of any changes.
Personal details that must be reported include (see s 14):
- Name/s and date of birth;
- Address of each place of residence or, if homeless, localities they can generally be found;
- Email address, phone number and any internet, instant messaging, and chat room usernames;
- Names and ages of any children with whom they usually live or have unsupervised contact;
- Employment details;
- Details of affiliations with any clubs or organisations that have child membership or child participation in their activities;
- Details of any motor vehicles they own or drive;
- Details of any distinguishing marks such as existing or former tattoos;
- Whether they are required to register and report under corresponding sex offender legislation in a foreign jurisdiction;
- Details of any periods of custody since they were either sentenced or released from custody for the registrable offence;
- If leaving Victoria for travel within Australia, the general reason, frequency and destinations of travel; and
- Passport number and country of issue.
Reporting obligations for travel
Convicted sexual offenders must report when planning to leave Victoria for two days or more. The person must also report to the police within seven days of returning to Victoria after travelling interstate. The following information must be provided to Victoria Police seven days before leaving:
- Intended destinations, including state, territory or country, and where they will stay;
- The dates of travel; and
- The date of return to Victoria or a statement if they are not returning.
If travelling overseas, the person must produce their passport and travel documents before leaving and must report to the police again within one day of return.
Length of reporting periods
The period of time in which a person is required to comply with reporting obligations depends on the class of offence and the number of offences for which an adult or child has been convicted (including previous findings of guilt). Sections 34 to 38 specify the specific reporting periods for reporting obligations.
Under section 34 of the Sex Offenders Registration Act 2004, the reporting period for an adult registrable offender is determined as follows:
- 8 years if the offender has been found guilty of a single Class 2 offence (s34(1)(a)).
- 15 years if the offender has been found guilty of a single Class 1 offence, other than for persistent sexual abuse of a child, or has been found guilty of two Class 2 offences (s 34(1)(b)).
- Lifetime if the offender has been found guilty of:
- two or more Class 1 offences;
- a single offence for persistent sexual abuse of a child under 16;
- a Class 1 offence and one or more Class 2 offences; or
- three or more Class 2 offences (s 34(1)(c)).
Additional provisions for the purposes of determining the reporting period under s 34 are that:
- Two or more offences arising from the same incident are treated as a single offence (if any such offence is a Class 1 offence, the incident will be treated as a Class 1 offence per s 34(3)).
- Offenders found guilty of a Class 3 offence are deemed to have been found guilty of a Class 1 offence, and a Class 4 offence is deemed to have been found guilty of a Class 2 offence (s 34(4)).
After the relevant reporting period, the Chief Commissioner of Police is directed to destroy certain materials obtained from the sex offence register (s 31), but there is no provision for registered information to expire or for data to be removed from when the reporting period ends.
Child reporting periods
A child found guilty of an offence under Class 1 or 2 will not automatically be registrable. The Courts have a discretionary power to include children convicted of Class 1 and Class 2 sexual offences if the child presents a risk to the sexual safety of a member or members in the community.
The reporting period for a child is reduced to the following periods:
- 4 years if found guilty for a single class 2 offence (s34(1)(a)); or
- 7.5 years if found guilty for more than one class 2 offence, a class 1 offence, or any combination of class 1 or 2 offences (s 34(1)(b)).
Some exclusions apply to registrable offences committed by children depending on the nature of the offence, such as if the victim and offender were close in age and the sexual activity was consensual.
Registrable offenders from other jurisdictions
Any person with reporting obligations in another State or Territory in Australia, or any other country, also becomes a registrable offender in Victoria. Similarly, reporting obligations of offenders registered in Victoria continue to apply if an offender moves to another Australian jurisdiction.
Consequences of registration
A person registered as a sex offender under the Sex Offenders Registration Act 2004 (Vic) is subject to employment restrictions and reporting obligations, including:
- Restricted Activities: Sex offenders are generally prohibited from engaging in activities that could put children or vulnerable individuals at risk, including particular employment or affiliations with clubs or organisations involving child participation. Section 68(1) makes it an offence for a registrable offender to apply for or engage in ‘child-related employment’. The maximum penalty for this offence is two years imprisonment or a fine of 240 penalty units.
- Unauthorised Contact: Sex offenders are typically restricted from contacting children or engaging in activities that might facilitate contact unless authorised by the Court or relevant authorities.
- Travel Reporting: Sex offenders must report their travel plans when leaving Victoria for travel.
- Providing False Information: Sex offenders are prohibited from providing false or misleading information during the reporting process or to authorities.
- Access to Certain Areas: In some cases, sex offenders may be prohibited from entering certain areas, such as schools or playgrounds.
- Using Online Platforms: Sex offenders may be restricted from using certain online platforms or engaging in online activities that could harm or exploit children.
- Unlawful Activities: Sex offenders must refrain from engaging in any unlawful activities.
A registrable offender who fails to comply with reporting obligations or gives false or misleading information is guilty of a criminal offence and is liable to a maximum imprisonment sentence of 2 to 5 years, depending on the breach.
Checking if someone is on the sex offenders register in Victoria
The register of sex offenders in Victoria is only accessible with authorisation from the Chief Commissioner of Police. However, police can disclose non-identifying information for purposes deemed appropriate by the police.
In cases where a registered offender reports having contact with a child, the police can provide the offender’s information to the Department of Justice. This information may then be shared with any party in the interests of the child’s well-being. Additionally, the police can disclose information on the register to government departments, public authorities, or Courts for law enforcement or related purposes.
Questions about sex offender registration?
If you need advice or representation about sex offender registration or whether you may be eligible for an exception order, please get in touch with one of our sex offence lawyers.
See here for more information about the sex offence trial process.