A convicted man has won his appeal in the Supreme Court to have his name struck off the Child Sex Offender Register.
The man was sentenced to nine months home detention in early 2018 after pleading guilty to possessing child pornography in early 2016.
At his 2018 sentencing, the Judge also made an order that he be placed on the Child Sex Offender Register, which was established using the Registration Act in late 2016.
The man committed the offence prior to the Registration Act coming into force but was convicted and sentenced after that date.
The man did not seek to appeal his nine-month home detention sentence but challenged the order to be placed on the Register.
The appeal raised two primary issues - whether the Registration Act applied to him, given he had offended before the law came into effect, and whether, if it did apply, the Judge should have ordered his name be applied to the Register, given that his level of offending did not require imprisonment.
Judges Winkelmann, O'Reagan and France found that the law was not clear enough to override the rules in the Sentencing Act 2002, which states an offender is entitled to the lesser penalty if the law is changed after committing the offence.
Judges William Young and Glazebrook disagreed and held that the Registration Act applied to all offenders convicted of a qualifying offence and sentenced to a non-custodial sentence after the law came into force.
By majority, the Court found the law did not apply to those who committed a qualifying offence prior it to coming into force and the registration order was quashed.
The law does, however, automatically and retrospectively apply to child sex offenders serving a prison sentence.
Despite quashing the order, the members of the Court went on to discuss whether the order should have been made, if it had been allowed to apply retrospectively.
Three of the judges believed the court must be satisfied the offender posed a real or genuine risk to children and that the risk was of sufficient gravity to justify making the order with the consequent impact on the right of the offender.
Chief Justice Winklemann and O'Reagan said while the appellant posed a real risk to children, it was not high enough to justify being on the Register.
Justice Glazebrook believed the order was proportionate and would have dismissed the appeal, as would have Judge William Young.
Justice France did not consider it necessary to express a view, given her view that the Act did not apply to the offender.