Sex Offenders Registration Act
The Register of Sex Offenders was established by the Sex Offenders Registration Act 2004 (‘the Act’), which commenced on 1 October 2004. Together with the Sex Offenders Registration Regulations 2014, the Act creates a system that imposes reporting obligations on registrable offenders.
Registrable offenders
Subject to exceptions, a person is a ‘registrable offender’ if they:
- Have at any time been sentenced for a ‘registrable offence’, are a ‘corresponding registrable offender’, or are 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’ in two ways:
- Automatically, as the Act lists certain offences as a ‘registrable offence’ when committed by an adult; or
- Following the exercise of judicial discretion as an offence is a ‘registrable offence’ when it leads to a court making a sex offender registration order (s7).
Registrable offences that result in an offender becoming a registered sex offender are divided into four classes listed in Schedules 1 to 4 of the Act.
Classes of offences
Class 1 offences specified in Schedule 1 primarily involve the sexual penetration of children. Class 2 offences specified in Schedule 2 involve other child sexual abuse offences and non-child specific offences committed against children (such as burglary with intent to sexually assault a child and child pornography offences).
Class 3 offences listed in Schedule 3 are similar to the Class 1 offences, except they are committed against adults rather than children. Class 4 offences listed in Schedule 4 are similar to the Class 2 offences, except they are committed against adults rather than children.
Automatic registration
An adult offender automatically becomes a ‘registrable offender’ when they are ‘sentenced’ for a ‘Class 1’ or ‘Class 2’ offence (subject to exceptions) (s 6, s 7). Class 1 and 2 offences are listed in Schedule 1 and Schedule 2 of the Act.
Exceptions relate to offenders sentenced before the commencement of the Act (1 October 2004), offenders receiving foreign witness protection, and where the conviction is quashed or set aside (see s 6, 7).
While many of the offences listed in Schedule 1 and 2 can be committed against either adults or children, to be a Class 1 or 2 offence, it must have been committed against a child (except for the offence of bestiality).
A child offender is not automatically registrable if they are sentenced for a Class 1 or 2 offence. However, a child can become registrable if the court makes a sex offender registration order (s 7).
Discretionary registration
A person convicted of any offence, other than those listed in Class 1 or 2, that lead to automatic registration, may be subject to a discretionary registration order under section 11. That is, courts are not limited to making orders in respect of class 3 and class 4 offences, which involve certain offences committed by a ‘serious sexual offender’ (s8).
However, a court may only make a sex offender registration order if satisfied beyond reasonable doubt that the offender poses a risk to the sexual safety of others (s 11(3)).
The operation of section 11(3) was explained by the Court of Appeal in Bowden v R and summarised in Sayer v R at [92].
The inquiry whether to make an 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 the sexual safety of others.
- The risk must be real rather than fanciful; and
- The evaluation of risk is directed to the risk upon the offender’s release into the community, assessed by what is presently known.
- If the court is satisfied that the requisite risk exists, the second question is whether the order should be made in all the relevant circumstances.
- This 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.
Reporting periods
The class and number of offences for which an adult offender is convicted determines the duration of reporting obligations as a registered sex offender (s 34). The specific reporting periods are specified in sections 34 to 38 of the Act.
For the purposes of reporting periods under section 34:
- Multiple offences arising ‘from the same incident’ are treated as a single offence (and if any of those offences is a Class 1 offence, the incident will be treated as a single Class 1 offence) (s34(3));
- Multiple offences arise ‘from the same incident’ only if committed within a 24-hour period against the same person (s5(1)); and
- Class 3 offences are treated as class 1, and class 4 offences are treated as class 2.
See the following summary of sections 34 and 35 (adapted from the Judicial College guide):
| Number of findings of guilt and class of offence | The reporting period for adults | The reporting period for children | ||
| One class 2 (or class 4) offence | 8 years (s34(1)(a)) | 4 years (s34(1)(a)) | ||
| One class 1 (or class 3) offence | Two class 2 (or class 4) offences | 15 years (s34(1)(b)) | 7.5 years (s34(1)(b)) | |
| Two or more class 1 (or class 3) offences OR one conviction for persistent sexual abuse of a child under 16 | Three or more Class 2 (or class 4) offences | One class 1 (or class 3) offence and one or more class 2 (or class 4) offences | Life (s34(1)(c)) | 7.5 years (s34(1)(c)) |
If the court makes a sex offender registration order under section 341 of the Serious Offenders Act 2018, the reporting period is at least 15 years (s 11(10)).
