The Supreme Court held that sexual assault contrary to s 40(1) of the Crimes Act 1958 (Vic) committed against a child aged 16 or 17 is not a 'specified offence' within the meaning of Schedule 5 of the SORA, and therefore an 18 or 19-year-old offender convicted of that offence is ineligible to apply for a registration exemption order under s 11A. Item 7 of Schedule 5 requires that an element of the subject offence be an intention to commit another offence listed in Schedule 5, and s 40(1) does not contain as an element an intention to commit sexual assault of a child under 16 under s 49D(1); the two offences are materially distinguishable in their elements. The Court also held that the Chief Commissioner of Police, as a mandatory party under s 11F, was denied procedural fairness by not being served with or notified of the exemption application, constituting a separate basis for jurisdictional error, but that the timing of the application before notification of reporting obligations under ss 50(5) or 54 did not constitute jurisdictional error as s 11C is procedural machinery rather than a jurisdictional precondition.
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