Plaintiff v First Defendant

ADMINISTRATIVE LAW - Whether application for exemption order commenced prior to notification of reporting obligations to offender under s 50(5) or s 54 of the SORA was invalid - No invalidity - No jurisdictional error established.

ADMINISTRATIVE LAW - Whether Chief Commissioner of Police denied procedural fairness - No notice of application for exemption order given to Commissioner- Commissioner a mandatory party under s 11F of SORA - No opportunity to make submissions on application - Jurisdictional error established.

ADMINISTRATIVE LAW - Whether primary Judge failed to consider question of 'risk to the sexual safety of one or more persons in the community' under s 11B of the SORA - No jurisdictional error established.

No appearance by or for the second defendant, who has taken a Hardiman position.

1 On 13 July 2022, Mr Corey Weir[1] was charged with a single count of sexual assault pursuant to s 40(1) of the Crimes Act 1958 (Vic). At the time of the offending, 22 November 2020, Mr Weir was 19 years of age and the victim was 17 years of age. The offending occurred in the context of a party with friends at Mr Weir's home. The victim initially engaged in consensual sexual intercourse with Mr Weir, but withdrew her consent during the course of the act. Mr Weir was heavily intoxicated at the time of the offence, and could not recall anything other than kissing the victim.

2 On 2 September 2024, on the morning of the first day of the trial, Mr Weir entered a guilty plea before a Judge of the County Court. A plea hearing was conducted two days later. On 6 September 2024, the Judge entered a conviction and ordered that Mr Weir serve a Community Correction Order for a period of two years, commencing on that date. In his sentencing reasons, the Judge found that the crime was at the lower end of the spectrum of such offending, and was persuaded that there were compelling mitigating factors, including that Mr Weir was a youthful first time offender who was both remorseful and well progressed in his rehabilitation at the time of sentencing.[2] In particular, the Judge referenced the delay in prosecution as a mitigating factor.[3]

3 At sentencing, the Judge did not make any orders pursuant to the Sex Offenders Registration Act 2004 (Vic) (SORA). His Honour found that the offence of sexual assault against s 40(1) of the Crimes Act was a Schedule 4 offence under the SORA and observed that the Court had discretion as to whether Mr Weir should be placed on the Sex Offender Register established under the SORA. The Judge further observed that the Director of Public Prosecutions had not submitted that he should be placed on the Register.[4] In all the circumstances, his Honour determined not to do so.

4 Shortly after the hearing, the Crown identified that Mr Weir's conviction in fact concerned a Class 2 offence for the purposes of s 7(3) of the SORA, being an offence against s 40(1) of the Crimes Act committed against a child.[5] Thus, it was a registrable offence under s 7(1)(b) of the SORA.[6] After some interaction between the prosecution and the Judge's chambers, on 18 September 2024, Mr Weir filed an application for a registration exemption order pursuant to s 11A of the SORA. No notice of the application was given to the Chief Commissioner of Police as required by s 11D(3) of the SORA.

5 At the mention hearing before the Judge on 22 October 2024, there was agreement the offence, committed against a 17-year-old, was a Class 2 offence. Counsel for Mr Weir submitted that as Mr Weir was 19 years old at the time of the commission of the offence, it was open to the Judge to make a registration exemption order on the basis that he had been convicted of a registrable offence that was also a specified offence, enlivening the discretion available under s 11A(1) of the SORA.

6 When pressed by the Judge about how Mr Weir's conviction concerned a registrable offence that was also a specified offence, counsel for Mr Weir submitted that a conviction under s 40(1) of the Crimes Act fell within Item 7 of Schedule 5 of the SORA. Prosecution counsel also submitted that Mr Weir was eligible to make an application for a registration exemption order, but declined to make submissions on whether the order should be made. The Judge accepted the submissions advanced by counsel for Mr Weir on the exercise of the discretion, amended his earlier sentencing order and declared pursuant to s 11B(1) of the SORA that Mr Weir was not a 'registrable offender' in respect of that offence (exemption order).

7 The Commissioner was notified of the exemption order on 22 October 2024. Subsequently, on 16 December 2024 the parties returned before the Judge for the hearing of an application by the Director. It was contended that the decision to grant the exemption order was an error of law, and that the Judge had the power to correct that error pursuant to s 104B of the Sentencing Act 1991 (Vic). His Honour concluded that registration under the SORA did not constitute the imposition of a penalty and, therefore, the Court did not have power to make any correction to the exemption order. In those circumstances, his Honour did not reconsider whether Mr Weir was in fact eligible for the exemption order.

8 On 20 December 2024, the Commissioner commenced this proceeding, seeking judicial review of the decision of the Judge to make the exemption order, and an order quashing the exemption order based on jurisdictional error. The Commissioner also contends that the decision to make the exemption order was affected by a further, different kind of error of law, asserting that the Judge failed to give proper consideration to the question of risk pursuant to s 11B of the SORA. Further, the Commissioner contends that the Judge erred in permitting an application under s 11A to be made and determined prior to Mr Weir having been notified of his reporting obligations pursuant to ss 50(5) or 54 of the SORA, leading to further jurisdictional error.

9 In the alternative, the Commissioner seeks orders quashing the exemption order and remitting Mr Weir's application for a registration exemption order to the County Court constituted by a different judge for hearing and determination according to law. The Commissioner contends that he was not accorded procedural fairness on the hearing of the application for a registration exemption order, because he did not receive the required notice of the application and, consequently, was not provided with an opportunity to make submissions under s 11F of the SORA about the application.

10 For the reasons that follow, I am satisfied that the Judge did not have jurisdiction to make the exemption order under s 11B of the SORA. The exemption order must be quashed.

• B.1 The Crimes Act

11 The resolution of the key statutory construction issue in this proceeding requires consideration of a number of provisions in Part I, Division 1 of the Crimes Act. It is helpful to record the following matters.

12 Subdivision (8) is entitled 'Sexual offences (general provisions)', and provides a series of definitions and aids to interpretation.

13 Section 35B sets out the meaning of 'touching', including identifying circumstances in which touching may be sexual.[7] Sections 36, 36AA, 36A and 36B deal broadly with the issue of consent, and related matters. In particular, s 36A addresses the concept of 'reasonable belief in consent'.

14 Section 37A provides for the objectives of Subdivisions (8A) to (8G):

The objectives of Subdivisions (8A) to (8G) are -

(a) to uphold the fundamental right of every person to make decisions about their sexual behaviour and to choose whether or not to engage in sexual activity;

(ab) to promote the principle that consent to an act is not to be assumed - that consent involves ongoing and mutual communication and decision-making between each person involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent);

(b) to protect children and persons with a cognitive impairment or mental illness from sexual exploitation.

15 Further, s 37B gives a specific guide to interpretation, in the form of guiding principles. It provides:

It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that -

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and

(d) sexual offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

16 Subdivision (8A) details specific offences, including different forms of rape, sexual assault, and assault. It includes s 40, entitled 'Sexual assault', which provides:

(1) A person (A) commits an offence if -

(a) A intentionally touches another person (B); and

(b) the touching is sexual; and

(c) B does not consent to the touching; and

(d) A does not reasonably believe that B consents to the touching.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

17 Finally, it is important to identify s 49D, which creates the offence of sexual assault of a child under the age of 16. It provides:

(1) A person (A) commits an offence if -

(a) A intentionally -

(i) touches another person (B); or

(ii) causes or allows B to touch A; or

(iii) causes B -

(A) to touch, or to continue to touch, themselves; or

(B) to touch, or to continue to touch, another person (C); or

(C) to be touched, or to continue to be touched, by C; and

(b) B is a child under the age of 16 years; and

(c) the touching is -

(i) sexual; and

(ii) contrary to community standards of acceptable conduct.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(2A) The standard sentence for an offence against subsection (1) is 4 years.

(3) Whether or not the touching is contrary to community standards of acceptable conduct depends on the circumstances.

(4) For the purposes of subsection (3) -

(a) the circumstances include -

(i) the purpose of the touching; and

(ii) whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b) the circumstances do not include -

(i) whether B consents to the touching; or

(ii) whether A believes that B consents to the touching.

Relevant legislative history of the Crimes Act

18 The Parliament made significant changes to the law relating to sexual offences by the introduction of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, with a broad suite of amendments to the law in respect of sexual offences. The amendments were intended to make the laws 'clearer and fairer' and 'to improve the effectiveness of the law and ensure that perpetrators of sexual offences are held to account.'[8] The new offences of sexual assault (s 40) and sexual assault by compelling sexual touching (s 41) formed part of those amendments.

19 Further wide sweeping reforms were introduced by the Crimes Amendment (Sexual Offences) Act 2016 (Vic) (2016 Act). The Explanatory Memorandum circulated with the Bill for the 2016 Act makes plain that its objectives were to 'modernise and simplify numerous sexual offences including sexual offences against children, incest offences and offences against persons with a mental illness or cognitive impairment'.[9] Those objectives were reflected in the purposes of the 2016 Act.[10]

20 Importantly, by s 5 of the 2016 Act, the existing s 35 of the Crimes Act was substituted for a new s 35, providing for new definitions to apply to all sexual offences contained in Part 1, Division 1, Subdivisions (8A) to (8F), introducing the objectives (s 35A) and guiding principles (s 35B) provisions, and making plain that there was no defence of mistaken but honest and reasonable belief in circumstances of sexual assault and other specified offences (s 48B).

21 New Subdivision (8B), 'Sexual offences against children' introduced a range of new offences in respect of children under the age of 12 (ss 49A), children under the age of 16 (ss 49B, 49D, 49F, 49H, 49J, 49K and 49M) and children aged 16 or 17 where the child is under care, supervision or authority (s 49C, 49E, 49G and 49I and 49L), together with other related offences.

22 The 2016 Act also introduced certain amendments to the sexual assault provisions contained in s 40. However, sexual assault against a child aged 16 or 17 remains an offence against s 40(1). There is no separate offence of sexual assault against a child aged 16 or 17, unless that child is under care, supervision or authority (s 49E).

23 The SORA was introduced in 2004 principally for the purpose of reducing the likelihood that certain sexual offenders reoffend.[11] It provides, inter alia, for the establishment of the Register under Part 4, reporting obligations under Part 3, restrictions on registrable offenders in respect of child-related employment, and the making of prohibition orders under Part 4A.

24 Part 2 of the SORA specifies those offenders who become subject to its various provisions, including the entry of 'registrable offenders' on the Register pursuant to s 62(2). A 'registrable offender' is defined in s 6(1) as a person whom a court has, at any time, sentenced for a 'registrable offence'.[12]

25 Section 7(1) of the SORA specifies the meaning of 'registrable offence'. It provides:

(a) a Class 1 offence committed as an adult; or

(b) a Class 2 offence committed as an adult; or

(c) an offence that results in the making of a sex offender registration order.

Class 1 and Class 2 offences are listed in Schedules 1 and 2 respectively of the SORA.[13]

26 Item 1 of Schedule 2 expressly identifies an offence against s 40(1) of the Crimes Act (being sexual assault) where the person against whom the offence is committed is a child. Pursuant to s 3 of the SORA, a child is 'any person who is under the age of 18 years'. Thus, there is no dispute in this proceeding that Mr Weir's conviction for sexual assault pursuant to s 40(1) was a Class 2 offence.[14] The offence was a registrable offence; upon sentencing, Mr Weir became a registrable offender for the purposes of s 6(1) of the SORA.

27 The consequences of designation as a registrable offender are immediate, and significant. Unless a person ceases to become a registrable offender, their entry onto the Register is permanent.[15] A registrable offender is prohibited from applying for or engaging in any child related employment.[16] A single conviction for a Class 2 offence committed as an adult will subject the offender to reporting obligations for eight years, unless suspended in accordance with Division 6.[17]

28 Section 11A outlines circumstances where a person found guilty of a registrable offence may apply for a registration exemption order. Relevantly, s 11A(1) provides:

(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 -

(a) at any time during the commission of the offence, was 18 or 19 years of age; and

(b) at all times during the commission of the offence, was not more than 19 years of age.

The term 'specified offence' is defined in s 3(1) as meaning 'a Class 1 or Class 2 offence referred to in Schedule 5'.

29 Schedule 5 is entitled 'Specified offences'. Item 1 of Schedule 5 lists 10 provisions of the Crimes Act. Items 1(a)-(e) are specific sexual offences against children under the age of 16, but not under the age of 12, including offences against s 49B(1) (sexual penetration involving a child under the age of 16)[18] and s 49D(1) (sexual assault of a child under the age of 16).[19] Items 1(f)-(j) are certain offences relating to child abuse material. Item 2 lists certain offences committed against children under the age of 16, but against provisions in force prior to the commencement of the 2016 Act. Item 5 concerns offences against the Criminal Code of the Commonwealth in respect of children outside Australia, the use of postal and carriage services involving persons under 16 years of age, and certain offences relating to child abuse material.

30 Of particular relevance in this proceeding are Items 6-10, which read:

1. 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 referred to in this Schedule.
2. An offence an element of which is an intention to commit an offence of a kind referred to in this Schedule.
3. An offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this Schedule.
4. An offence that, at the time it was committed, was referred to in this Schedule.
5. An offence committed before the commencement of section 11 of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 that was an offence of a kind referred to in this Schedule.

31 Pursuant to s 11B(1) of the SORA, the Court may make orders declaring that the s 11A applicant is not a registrable offender if satisfied that:

(a) at all times during the commission of the specified offence -

(i) any victim of the offence is of or over the age of 14 years [...]

(b) 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 -

(i) the seriousness of the specified offence; and

(ii) the ages of the applicant and any victim of the specified offence at the time of the commission of the specified offence; and

(vi) any other matter that the court considers relevant; and

(c) but for the specified offence, the applicant would not be a registrable offender.

32 Section 11C is entitled 'When application may be made' and provides:

An application under section 11A may be made not later than 6 months after the day on which the applicant is first given notice under section 50 or 54 of the applicant's reporting obligations.

33 Pursuant to s 11F of the SORA, the Commissioner is a party to an application under s 11A and may make any submission to the Court in respect of the application. Notably, s 11B(5) provides that when deciding whether to make an order under s 11B(1), the Court must take into account any submissions made by the Commissioner under s 11F. Further, pursuant to s 11D(3), an application under s 11A must be served on the Commissioner as soon as practicable after the filing.

Relevant legislative history of the SORA

34 In 2017, significant amendments were made to various aspects of the SORA by the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 (Vic) (2017 Act). In part, the amendments reflected acceptance of the fact that the automatic effects of designation as a registrable offender had resulted in unfair and unnecessary consequences for some young adult offenders. It is helpful to reproduce in full the Minister's observations on this topic in her Second Reading Speech (emphasis added):[20]

New limited exception to automatic registration.

The amendments I have discussed clearly demonstrate the Victorian government's commitment to ensuring Victoria Police has the powers it needs to monitor and investigate sex offenders. However, it is also important to reflect on the existing powers and requirements under the [SORA] and ensure that they are working as intended.

In 2011, the Victorian Law Reform Commission did exactly that and published its report, Sex Offenders Registration. In that report, it was made apparent that the existing system of 'automatically' registering all adults upon being sentenced for certain 'registrable' sexual offences has resulted in the inherently unfair and unnecessary registration of a small number of young offenders.

These cases have typically arisen in two types of situations involving young adult offenders:

offending that occurs in the course of an otherwise consenting relationship or encounter with someone under 16 but in circumstances where the young offender does not pose an ongoing threat to the community; and

offending that relates to 'sexting' or similar conduct where the person depicted was under the age of 18 at the time the images or video were taken but, again, in circumstances where the young offender does not pose an ongoing threat to the community.

The [SORA] was not focused on automatically capturing all of these cases without exception. Not only is automatic registration in certain strictly limited cases involving offenders aged 18 or 19 years old potentially unfair, it also requires police resources to be devoted to offenders that pose a very low risk to the community when they could be more effectively directed towards paedophiles and other offenders that represent a far greater risk to the community.

The Victorian Law Reform Commission recommended the abolishment of automatic registration completely and that persons are only registered at the discretion of the court, similar to the current requirements around the offenders who are under 18. The government does not agree with that recommendation. For the vast majority of adult sex offenders, automatic registration is the only effective means of ensuring that offenders do not slip through the cracks and can avoid the additional scrutiny of police that comes from being on the sex offenders register. All other Australian jurisdictions except Tasmania have taken a similar position and provide for automatic registration of adult sex offenders.

However, apart from Western Australia, those jurisdictions also include limited exceptions to the automatic registration process. To ensure that young adults are not inappropriately placed on the sex offenders register, this bill will do the same. The bill creates a process where offenders who are sentenced for a 'specified offence' committed when aged 18 or 19 will be able to apply to the courts for an order (a registration exemption order) exempting them from automatic registration. Persons already on the sex offenders register who would have been captured by the exception had it existed at the time will also be able to apply to be removed from the register.

The list of 'specified offences' is set out in the bill. These offences have been selected because they may arise in the context of otherwise consenting relationships between a young adult and a child under 16, or 'sexting' or related conduct.

The limited exemption scheme includes several important safeguards to ensure that offenders will only avoid registration in exceptional cases where registration serves no useful purpose. A person will only be eligible for exemption so long as the offending involved no more than one victim, unless the offending relates to the possession of child pornography or child abuse material.

An offender will not be eligible to apply for exemption where they would still be required to be registered for reasons other than they have been sentenced for a specified offence. For example, where the offender has been sentenced for another 'registrable offence' which is not a 'specified offence'. Offenders that commit further sex offences after being placed on the sex offenders register will also be ineligible from applying for exemption, as will offenders that have previously had an application for exemption refused.

Finally, a court may only grant exemption from registration where it is satisfied that:

any victims were at least 14 years old at the time of the offence; and

the offender poses no risk or a low risk to the sexual safety of one or more persons or of the community.

As I indicated earlier, the creation of this limited exemption scheme will mean Victoria's sex offender registration scheme is more consistent with those in the majority of other Australian states and territories. It also reflects community concerns about the stigma of being on the register and that some young people are being inappropriately labelled for life.

35 Thus, the 2017 Act effected the introduction of Part 2, Division 2 of the SORA, entitled 'Registration exemption orders', together with other related amendments. Further understanding of the legal and historical context for the passage of the amending legislation can be gleaned from the Explanatory Memorandum including, in particular, the introductory remarks (emphasis added):

Currently, all adults who are sentenced for a sexual offence listed in Schedule 1 or 2 to the [SORA] must be placed on the Register of Sex Offenders (that is, registration is "automatic" by force of that Act). These offences can be generally described as indictable sexual offences committed against children. The Bill introduces a scheme enabling young adults who are found guilty of one or more specified sex offences to apply in limited circumstances for a court order exempting them from being "automatically" registered upon being sentenced (a "registration exemption order"). Persons who have already been "automatically" registered as a result of being sentenced for a specified offence before the commencement of this Bill will also be able to apply for a registration exemption order removing them from the Register of Sex Offenders.[21]

36 Some additional guidance on both the legislative purpose underlying the new registration order exemption scheme and the identification of the specified offences is found in the explanation given in the Explanatory Memorandum of the new Schedule 5, as follows (emphasis added):

Clause 11 inserts new Schedule 5 to the Principal Act. As per the new definition of specified offence inserted into the Principal Act by clause 4, Schedule 5 sets out a list of Class 1 or Class 2 offences in relation to which an application for a registration exemption order may be made in accordance with new section 11A.

The [2016 Act] received Royal Assent on 6 September 2016 and makes a range of amendments to Victoria's sexual offences. It also includes consequential amendments to Schedules 1 and 2 to the Principal Act, which have yet to commence. The amendments will commence on 1 July 2017, if not proclaimed earlier. Schedule 5 of the amending Bill includes both the new offences created under the [2016 Act] and the offences in force immediately prior to the commencement of that Act.

It is possible for persons to be "automatically" registered for historical sexual offences and for offences committed outside Victoria (including overseas). Similarly, persons can be registered for new or updated offences that might replace those listed in Schedules 1 and 2 to the Principal Act even if they are not themselves listed in those Schedules. This is because items 6, 9, 10 and 13 of Schedule 1 to the Principal Act and items 26, 26A, 30, 31 and 34 of Schedule 2 provide that such offences can be Class 1 or Class 2 offences. For example, item 9 of Schedule 1 provides that 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 in Schedule 1 is a Class 1 offence.

Items 6, 7, 9 and 10 of new Schedule 5 capture these same types of offences where they are of a kind referred to in the new Schedule. For example, it is intended that an offence against section 66C of the Crimes Act 1900 of New South Wales (sexual intercourse - child between 10 and 16) would be a specified offence because it is an offence of a kind referred to in item 1(a) of the schedule (sexual penetration involving a child under the age of 16).[22]

• C.1 Ground 2 - The offence was not a specified offence

37 It is convenient to first consider the Commissioner's contention that the making of the exemption order gave rise to jurisdictional error. In short, it is contended that the Judge erred in concluding that Mr Weir was convicted of a specified offence which enlivened his eligibility to make an exemption application under s 11A.

38 The Commissioner submits that the offence of sexual assault contrary to s 40(1) of the Crimes Act is not an offence referred to in Schedule 5; it is plainly not one of the state or Commonwealth offences expressly listed in Items 1, 2 or 5, and it does not fall within any of the other Items in Schedule 5. Further, the Commissioner contends that the Judge erred in finding that, properly construed, an offence against s 40(1) was 'an offence an element of which is an intention to commit an offence of a kind referred to in [Schedule 5]' within the meaning of Item 7. In particular, it is submitted that that an offence against s 40(1) of the Crimes Act does not contain as an element 'an intention to commit sexual assault against a child under 16 years of age under s 49D(1) of the Crimes Act', being the only relevant offence of that kind specified in Schedule 5.

39 Mr Weir submits that an offence against s 40(1) (sexual assault) falls within Item 7 because it has 'a common element' with the offence listed in Item 1(b), being an offence against s 49D(1) (sexual assault of a child under the age of 16). In written submissions, it was contended that this commonality was the element of 'sexual touching;' in oral address, it was submitted that the common element was that of 'sexual assault'. He contends that the Commissioner's constructional focus on the intention to commit the whole of the offence against s 49D is erroneous. That is, the reference to 'an element' in singular form in Item 7 of Schedule 5 has the effect that it is only necessary to identify one common element between the subject Class 1 or 2 offence and another offence of a kind referred to in Schedule 5 in order to characterise the subject offence as a specified offence.

40 Mr Weir also contends that the construction of Item 7 contended for by the Commissioner produces an illogical and unfair result, because a person in his position who has been convicted of the sexual assault of a child aged 14 or 15 contrary to s 49D(1) of the Crimes Act would be eligible to make an exemption application, but a person committing what Mr Weir contends is the 'same offence' against a 16 or 17-year-old in contravention of s 40(1) of the Crimes Act would not. Mr Weir submits that such an outcome is inconsistent with the structure and evident purpose of the SORA.

41 Consideration of this ground of review requires, at the outset, resolution of the proper construction of the phrase 'an offence an element of which is an intention to commit an offence of a kind referred to in [Schedule 5]', as it appears in Item 7 of Schedule 5. There has been no previous judicial consideration of that phrase.[23]

42 A Schedule to an Act forms part of an Act,[24] and is to be interpreted in that context. It is thus appropriate to record, briefly, the relevant principles of statutory interpretation derived from well-settled authority:

(a) the text of the relevant provisions is both the start and the end point of the construction process, the object being to construe the provisions so that their legal meaning is consistent with both the language used and the legislative purpose of the statute;[25]

(b) legislative purpose is determined by considering the text of the relevant provision in the context of the entire statute in which the provision appears,[26] together with: the existing state of the law; the mischief the statute was intended to remedy; the history of the legislative scheme; and the extrinsic materials;[27]

(c) context is to be considered at the first stage of construction. It should be regarded in its widest sense, recognising that a word, properly understood in its context, may take on different meanings;[28] and

(d) where there is a choice to be made between possible meanings of a provision, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[29]

43 Commencing with the text, the phrase 'an offence an element of which is an intention to commit an offence of a kind referred to in [Schedule 5]' may usefully be broken down into the following four components.

44 First, the introductory words 'an offence' concern the subject offence; the offence for which the prospective applicant under s 11A of the SORA was convicted. Here, that the subject offence is sexual assault under s 40(1) of the Crimes Act.

45 Second, the words 'an element of which is an intention' directs consideration of a specified 'element' of the subject offence. The specified element, intention, is a mental element (mens rea) rather than a physical element.

46 Third, the specified mental element in the subject offence must be an intention 'to commit an offence' - another offence.

47 Fourth, the other offence must be 'of a kind referred to in this Schedule'. It is clear that 'in this Schedule' means 'in Schedule 5'. I have been unable to identify any judicial consideration of the meaning of the words 'of a kind' in a similar context. I interpret it to mean that the offences listed in Schedule 5 are not an exhaustive enumeration of all offences which enliven the right to make application under s 11A; however, an offence which is not expressly listed must still be 'like', or relevantly similar, to a listed offence. In this way, Item 7 could have application in the case where a new or updated offence was created in either Victoria or another jurisdiction that is 'like', or relevantly, similar to an offence listed in Schedule 5, but has not (or not yet) been expressly enumerated in the Schedule.

48 Put simply, the text of Item 7 requires that one of the elements of the subject offence must be an intention to commit an offence listed in Schedule 5, or an offence that is like, or relevantly similar, to an offence listed in Schedule 5.

49 Adapting Ground 2 to the text, I am asked to consider whether the offence of sexual assault contrary to s 40(1) of the Crimes Act includes, as an element, an intention to commit the Schedule 5 offence of sexual assault of a child under 16 contrary to s 49D of the Crimes Act.

50 Section 40(1) does not contain any such element. Ground 2 likely fails based on the text of Item 7 alone.

51 Nonetheless, given the unusual circumstances of this matter, I further consider Mr Weir's submissions on Item 7 by reference to context and purpose.

52 The other items in Schedule 5 provide context to the meaning of Item 7 and, in particular, are relevant to the meaning of the fourth interpretive component listed above: 'of a kind referred to in this Schedule'. Importantly, this language also features in Items 6, 8, 9 and 10 of Schedule 5.

53 In my view, sexual assault contrary to s 40(1) of the Crimes Act is not an offence 'of a kind' referred to elsewhere in Schedule 5' and is different in many respects. Generally, Schedule 5 offences involve specific sexual offences against children aged between 12 and 15 (but not younger), or offences involving child abuse material. Further, for the offences specified in Items 1, 2 and 5, the elements of absence of consent and reasonable belief as to consent do not form any part of the offence.[30] The Commissioner submitted that many of the specified offences could arise in circumstances which may involve ostensible consent, such as in otherwise consensual relationships between young people. In this respect, it is notable that although s 49D(1) (sexual assault of a child under the age of 16) is a Class 2 offence identified in Schedule 5, Class 2 offences involving children aged 16 or 17 but under care, supervision or authority are not specified in Schedule 5.

54 Further, it is significant that Schedule 5 does not specify any of the offences contained in Division (8A) of the Crimes Act, even though those offences are specified as either Class 1 or Class 2 offences when committed against a child. Thus, it is not only sexual assault contrary to s 40(1) when committed against a child that was omitted from Schedule 5; all the offences identified in Division (8A) when committed against a child were omitted.

55 A narrower exercise comparing s 40(1) against s 49D also demonstrates that the former is not an offence 'of a kind' referred in Schedule 5. The provisions are distinguishable in at least three material ways:

(a) first, s 49D requires that the victim be a child between the ages of 12 and 15 whereas s 40(1) does not;

(b) second, s 49D requires that intentional touching of another person, is not only sexual, but also contrary ordinary standards of community conduct. Section 40(1) does not contain that requirement;

(c) third, in contrast with s 40(1), there is no requirement in s 49D to establish either the absence of consent or the absence of a reasonable belief that the other person consents to the touching.[31]

56 Thus, the text and context support the construction contended for by the Commissioner - an offence against s 40(1) is not a relevant offence 'of a kind specified in [Schedule 5]' in the manner contemplated in Item 7.

57 Further, in considering the broader legislative context, that construction is also consistent with the purpose of the 2017 Act and the mischief that the amendments were designed to remedy in the SORA.

58 In forming this view, I have carefully considered both the Minister's second reading speech and the explanatory memorandum accompanying the passage of the 2017 Act, the relevant passages of which are extracted above from [34] to [36]. I have emphasised those parts of the secondary materials that are relevant. The materials indicate a parliamentary intention to create a 'limited' or 'strictly limited' discretionary exception to the otherwise 'automatic' application of the SORA, particularly in the context of young adults engaged in otherwise consenting relationship with children under the age of 16. This legislative context supports a more confined construction of Item 7, and reinforces my conclusion that the offence of sexual assault pursuant to s 40(1) was not intended to be a specified offence for the purpose of making application for a registration exemption order. Parliament does reveal an intention to cure specific areas of unfairness with respect to registration, but the emphasis on specificity is key. There is no indication in the materials that Mr Weir's situation was contemplated by the legislature.

59 Mr Weir submits that this construction produces an illogical and unfair result (see [41], above). I do not accept that characterisation. Further, the construction urged on me by Mr Weir has a much more significant impact which I cannot accept was intended by the passage of the 2017 Act and the scheme of limited exceptions to mandatory registration of sex offenders. On his approach, any 18 or 19 year old convicted of the sexual assault of a child aged 16 or 17 contrary to s 40(1) of the Crimes Act would, in the first instance, be eligible to apply for a registration exemption order, irrespective of the circumstances of the offence.

60 I readily accept that in the circumstances of this offending, together with the circumstances in which the SORA issue unfolded below, the future consequences for Mr Weir of the construction that I have adopted are harsh. It is plain that his offending was at the lower end of the range, reflected not only by the sentence imposed by the primary Judge and his willingness to make the registration exemption order, but also by the attitude of the Director to those same matters. The history of the prosecution and plea summarised in Part A, above, which saw the belated application of the SORA to Mr Weir, and the circumstances which led to the hastily advanced s 11A application were undoubtedly extremely unfortunate.

61 However, the arguably disproportionate effect of SORA registration on Mr Weir in the particular circumstances of his offending and the manner in which sentencing process unfolded is not a matter that can be resolved by me as part of an exercise in statutory interpretation. If parliament intends that an 18 or 19-year-old person in the position of Mr Weir be eligible to apply for a registration exemption order following a conviction for the sexual assault of a 16 or 17-year-old child, then that must be achieved through an amendment to the statute.

62 It follows that Mr Weir was not found guilty of a registrable offence that was a specified offence for the purposes of s 11A and that in those circumstances, the Judge did not have power to make the exemption order. The exemption order must be quashed.

63 Relief in the nature of certiorari is a discretionary remedy. No party submitted to me that there was any reason I should not exercise my discretion in the circumstances of a jurisdictional error of this kind. Accordingly, I will make an order in the nature of certiorari quashing the exemption order.

64 Given the view that I have come to on Ground 2, it is strictly unnecessary to consider the Commissioner's other grounds. However, I propose to give short reasons for completeness and given the novel circumstances of this application.

C.2 Grounds 1, 4 and 5 - Further jurisdictional error and procedural fairness breaches

65 Grounds 1, 4 and 5 all concern the process by which the s 11A application was heard and determined by the Judge, and it is convenient to deal with them collectively.

66 First, the Commissioner contends that the application process itself was affected by a jurisdictional error, in that Mr Weir was ineligible to make the application prior to having been notified of his reporting obligations by either the Court pursuant to s 50(5) of the SORA, or by the Commissioner pursuant to s 54 (Ground 1). The Commissioner contends that s 11C, which specifies a time limit for the making of an application, had the effect that Mr Weir was not eligible make application under s 11A unless and until either s 50(5) or s 54 had been complied with.

67 I do not accept this argument. The source of the entitlement to make a registration exemption application is found in s 11A; it contains the jurisdictional pre-conditions which enliven the right to approach the Court seeking a registration exemption order. Section 11C, expressed in permissive, rather than mandatory, language specifies the last date on which such an application is to be brought. It forms part of the procedural machinery of the application process, but is not a jurisdictional pre-condition to the exercise of the Court's discretion. Ground 1 is not made out.

68 Relatedly, the Commissioner contends that the making of the exemption order was attended by the breaches of procedural fairness:

(a) the Commissioner, a necessary party to the application pursuant to s 11F, was not served with the application in accordance with s 11D(3) (or at all) (Ground 4); and

(b) consequently, the Commissioner did not have the opportunity to make submissions to the Court in relation to the application as provided for by s 11F (Ground 5), noting that any such submissions were required to be taken into account by the Judge in considering whether or not to grant a registration exemption order in accordance with s 11B(5).

69 Specifically, it is contended that the Judge ought to have confirmed that the application had been served on the Commissioner, and also made enquiries on the hearing of the application as to whether in fact the Crown was also representing the Commissioner, or whether the Commissioner otherwise wished to be heard on the application.

70 The transcript suggests that no assistance was provided to the Judge by either prosecuting or defence counsel on the position of the Commissioner in respect of the application. The Commissioner also conceded before me that, 'for practical reasons' the Crown often appears on behalf of the Commissioner.[32] Prosecuting counsel did appear on the hearing of the application in the urgent circumstances described above. It is not difficult to see how the Judge could have been led into error, likely proceeding on the basis of compliance with the requirements that concerned the Commissioner's participation. Mr Weir contends that the presence of prosecuting counsel in these circumstances was sufficient to discharge the obligation of procedural fairness owed to the Commissioner.

71 It is not necessary for me to find that the Judge erred in the particular ways contended by the Commissioner to find that a failure to comply with the requirements of the SORA concerning the Commissioner's participation led to a breach of procedural fairness owed to the Commissioner, as a necessary party to the application. However, it is still necessary for the Commissioner to establish that each asserted error (whether consider separately or collectively) was material to the making of the exemption order under challenge.

72 Consideration of the materiality threshold is somewhat vexed and artificial in circumstances where I have found that there was no power to make the exemption order at all and I make an order in this proceeding quashing the exemption order. Indeed, it is difficult to see how Grounds 4 and 5 arise as an alternative to Ground 2. However, if, as I have found, Mr Weir was ineligible to apply for a registration exemption order, then it is self-evident that had notice been given, the Commissioner's submissions on the application could have made a difference to the result. In those circumstances, the materiality threshold is met and Grounds 4 and 5 are made out.

C.3 Ground 3 - There was no failure of the Judge to consider risk

73 Finally, the Commissioner submitted in the alternative that the exercise of the discretionary power available under s 11B of the SORA required the Judge to give proper consideration to the question of risk under s 11B(1)b) of the SORA. The asserted failure to do so was characterised as a breach of procedural fairness in the Originating Motion, but later advanced as a jurisdictional error in written and oral submissions. However, the character of the asserted jurisdictional error was more difficult to discern.

74 The Commissioner's argument on this ground centred on a lack of evidence before the Judge on the question of 'risk to the sexual safety of one or more persons in the community' within the meaning of s 11B(1)(b). It was submitted that ordinarily the consideration of risk required expert evidence from a psychologist as to an offender's risk of sexual reoffending, and that the Community Correction Order Assessment Outcome Report adduced in evidence on the plea was silent on this core issue. In this respect, the argument was akin to a 'no evidence' argument, rather than one based on a failure to take into account a mandatory, relevant consideration. Establishing such an error of law would require the Commissioner to clear a very high bar, in circumstances where 'no evidence' is traditionally understood to mean 'not a skerrick of evidence'.[33]

75 The Commissioner pressed the submission, centred around authority decided in other contexts, that the Judge was not in a position to make an assessment of the kind required by s 11B(1)(b) in the absence of expert evidence. However, the position under the SORA is unlike the position considered in RJE v Secretary to the Department of Justice,[34] where the statute required that the Court's consideration of whether an offender was likely to commit a relevant offence if released unsupervised have regard to a particular kind of assessment report. The SORA contains no such requirement. Rather, the Judge was required to assess whether Mr Weir posed 'no risk or a low risk to the sexual safety of one or more persons or of the community' having regard to the factors specified in s 11B(1)(b)(i)-(vi).

76 In the ordinary circumstance, an application under s 11A must be accompanied by an affidavit supporting the application in accordance with the relevant rules under the SORA and the County Court Criminal Procedure Rules 2019 (Vic).[35] That did not occur. However, given the highly unusual circumstances in which this application unfolded, I am satisfied that the Judge, seized of the submissions made and evidence adduced on the plea, including the Community Correction Order Assessment Outcome Report, was in possession of all of the information and matters specified by the Rules.

77 Further, I am satisfied that the facts and materials before the Judge constituted more than a 'skerrick of evidence' upon which he could determine the necessary question of 'no or low risk' having regard to the statutory factors, namely:

(a) the relative seriousness of the offence;

(b) the age of both the offender and the victim;

(c) the fact that the victim was not under his care, supervision or authority;

(d) the fact that the victim did not have a cognitive impairment mental illness; and

(e) other relevant matters disclosed by the plea materials, including Mr Weir's absence of prior criminal history, the delay in the prosecution of the offence (which in the interim period revealed no further offending), and the primary Judge's assessment of Mr Weir's well progressed rehabilitation.

78 It follows that Ground 3 would not otherwise have been established.

79 I will make an order in the nature of certiorari quashing the exemption order and declaration made on 22 October 2024.

80 I will hear the parties on the question of costs.

[2] DPP v Weir (a pseudonym) [2024] VCC 1413 (Sentencing Reasons) [52]-[57] (Cahill J).

[7] See Crimes Act, s 35B(2).

[8] Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2015, 2933 (Robert Clark, Attorney‑General).

[9] Explanatory Memorandum, Criminal Amendments (Sexual Offences) Bill 2016 (Vic), 1.

[10] Crimes Amendment (Sexual Offences) Act 2016 (Vic) s 1(a).

[11] See SORA, s 1.

[12] Subject to ss 6(4) and 6(6), which are not relevant for present purposes.

[13] SORA, ss 7(2)-(3).

[14] Sexual assault pursuant to s 40(1) is otherwise a Schedule 4 offence. Section 11 of the SORA grants the Court a discretion to order that a person convicted of such an offence comply with the reporting obligations of the SORA.

[15] See Part 4 (including s 62) of the SORA.

[17] SORA, s 34(1)(a) and s 39.

[20] Victoria, Parliamentary Debates, Legislative Assembly, 11 May 2017, 1279-1280 (Lisa Neville, Minister for Police).

[21] Explanatory Memorandum, Sex Offenders Registration Amendment (Miscellaneous) Bill 2017 (Vic), p 1.

[23] Schedule 5(7) is in the same form as Schedule 1(65) and Schedule 2(6) to the Serious Offenders Act 2018 (Vic). There also appears to have been no judicial consideration of the phrase in that statute.

[24] Interpretation of Legislation Act 1984 (Vic) (IL Act), s 36(3).

[25] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[26] Ibid [69]-[70]; R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, 1117 [33] (Kiefel CJ and Keane J); IL Act, s 35(a).

[27] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39].

[28] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); see also Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531, 556-557 [65]-[66] (Gageler and Keane JJ).

[29] See, eg, Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 672 [23].

[30] Consent is necessary element of a defence to a charge of sexual penetration of a child under 16 against s 49B(1) in the circumstances specified in s 49U.

[31] Consent also does not provide a defence to a charge under s 49D(1).

[33] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

[34] [2008] VSCA 265 (Maxwell P, Nettle and Weinberg JJA).

[35] SORA, s 11D(1)(b); County Court Criminal Procedure Rules 2019 (Vic), r 10.02.