Let’s make something clear at the outset… not all people on the Sex Offender Register are the same.
As per section 6 of the Sex Offenders Registration Act 2004 (‘the Act’), a registrable sex offender is a person whom a court has at any time sentenced for a registrable sex offence.
Registrable offences vary greatly: they can include very serious charges (such as rape) to less serious charges (such as possessing a topless photo of your 17-year-old girlfriend – which would be deemed ‘child exploitation material’) and everything in between.
Registrable offenders are not all creepy men wearing trench coats watching children at playgrounds. Many of them are ordinary people who did the wrong thing. They could include a 20-year-old manager at McDonald’s who has consensual sex with the 17-year-old cashier.
Unfortunately, once you’re on the Register, it’s very difficult to get off. The only way to be removed completely is to apply for an Exemption Order under Section 11A of the Act. This is only available for people who were 18 or 19 years old at the time of the offending, and thus excludes many offenders.
So what can registrable offenders do? Where do they turn when they’re refused permission to travel overseas to visit a dying parent? Where do they turn when they forget to report a new tattoo and they’re dragged before the courts and prosecuted for a breach?
They may consider applying for suspension of their reporting obligations.
Under Section 45A of the Act, the Chief Commissioner may suspend a registered offender’s reporting obligations for a period not exceeding 5 years.
In deciding whether or not to suspend an offender’s reporting obligations, the Chief Commissioner must take into account:
- the seriousness of the registrable offences
- the period of time since those offences were committed
- the difference in age between the registrable offender and the victims of those offences
- the registrable offender’s present age
- the registrable offender’s total criminal record
- the extent to which the registrable offender has complied with their reporting obligations
- the registrable offender’s physical or cognitive capacity to comply
- any other matter that the Chief Commissioner of Police considers appropriate
It is very difficult to convince the Chief Commissioner to suspend an offender’s reporting obligations. For instance, if the offender has forgotten to report a couple of times, these breaches can be used against them to justify refusal of their application.
Our firm has had success with suspension applications, but only after a lot of research and hard work.
A Case Study
We assisted one of our clients to apply for suspension of his reporting obligations. He was a 30-year-old man who had consensual sex with a 15-year-old girl whom he believed was over 16 (but he did not have reasonable grounds for this belief).
The Chief Commissioner initially refused to suspend his reporting obligations because of the age difference between himself and the victim, and because he had been prosecuted for a minor breach of his reporting obligations.
We assisted this client to apply to the Supreme Court for judicial review of this decision. We contended that the Chief Commissioner took into account irrelevant considerations and failed to take into account relevant considerations when making his decision.
Before we even stepped foot in the Supreme Court, the Chief Commissioner offered to suspend our client’s reporting obligations. This was a fantastic result which changed our client’s life.
So what are the benefits?
If your reporting obligations have been suspended, this means that:
- You can travel overseas without asking the Chief Commissioner for permission first
- It is not the policy of the Australian Federal Police to notify countries that a registered offender with suspended obligations is travelling there, so the AFP should not notify your destination country of your arrival
- You do not have to remember to report tiny changes to your personal details (e.g. changing your Facebook name from ‘Jessica’ to ‘Jess’)
- You cannot be prosecuted for failing to report changes to your personal details
Basically, suspension means that life on the Register is a lot easier. It means the police have acknowledged that you are of low risk to society and you do not need to be monitored.
Most importantly, it means freedom.
 See Section 49C of the Crimes Act 1958.
 271A.1 of the Criminal Code 1995 mandates that registered offenders with reporting obligations commit an offence if they leave Australia without permission of a competent authority.
 Section 14(1)(h)(i) of the Sex Offenders Registration Act mandates that a registered offender must be report a tattoo.