FEDERAL COURT OF AUSTRALIA

Ammouche v Chief Commissioner of Police [2018] FCA 1703

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant file a brief note as to costs not exceeding 2 pages by 4.00 pm, 13 November 2018.

3.    The respondent file a brief note as to costs not exceeding 2 pages by 4.00 pm, 14 November 2018.

4.    The question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in relation to a decision of a delegate of the respondent dated 9 October 2018 by which the respondent gave permission to the applicant to travel from Australia to Dubai for a period of 7 days from 11 October 2018 provided that he returned to Australia by 20 October 2018, but denied the applicant permission to leave Australia to travel to Lebanon for a further four week period following the applicant’s planned stay in Dubai.

2    The applicant is a 34 year old man. On 6 April 2011 the applicant was found guilty in the County Court at Melbourne of one count of sexual penetration of a child under the age of 16. The applicant’s offence was committed in 2007 when he was 22 years of age. The applicant was not convicted, and he was sentenced to a community-based order for 18 months, and ordered to perform 100 hours of unpaid community work.

The legislation

3    The offence for which the applicant was sentenced is a “Class 1 offence” for the purposes of the Sex Offenders Registration Act 2004 (Vic). In consequence of the sentencing of the applicant he is, for the purposes of the Act, a “registrable offender”; he is subject to reporting obligations under the Act for a period of 15 years; and his name and details are on the Register of Sex Offenders, which is maintained by the respondent under s 62 of the Act.

4    The reporting obligations of a registrable offender under the Sex Offenders Registration Act include an obligation under s 18 to report intended travel out of Australia –

18    Intended absence from Victoria to be reported

(1)    This section applies if a registrable offender—

(a)    intends to leave Victoria for 2 or more consecutive days to travel elsewhere in Australia; or

(b)    intends to leave Victoria to travel out of Australia.

(2)    At least 7 days before leaving Victoria, the registrable offender must report the intended travel to the Chief Commissioner of Police and must provide details of—

(a)    each State, Territory or country to which he or she intends to go while out of Victoria; and

(b)    the approximate dates during which he or she intends to be in each of those States, Territories or countries; and

(c)    each address or location within each State, Territory or country at which he or she intends to reside (to the extent that they are known) and the approximate dates during which he or she intends to reside at those addresses or locations; and

(d)    if he or she intends to return to Victoria, the approximate date on which he or she intends to return; and

(e)     if he or she does not intend to return to Victoria, a statement of that intention.

5    Section 19 of the Sex Offenders Registration Act requires a registrable offender, when out of Victoria, to report as soon as practicable any decision to extend a stay, or to change details that had been given under s 18 –

19    Change of travel plans while out of Victoria to be given

(1)    This section applies if a registrable offender who is out of Victoria decides—

(a)    to extend a stay elsewhere in Australia beyond 2 days; or(b)    to change any details given to the Chief Commissioner of Police under section 18.

(2)    As soon as is practicable after making the decision, the registrable offender must—

(a)    if subsection (1)(a) applies, report the details required by section 18(2) to the Chief Commissioner of Police (including those details as they relate to the travel that has already been completed);

(b)    if subsection (1)(b) applies, report the changed details to the Chief Commissioner of Police.

(3)    The registrable offender must make the report—

(a)    by writing sent by post or transmitted electronically to the Chief Commissioner of Police or to any other address permitted by the regulations; or

(b)    in any other manner permitted by the regulations.

6    In relation to travel outside Australia, there are additional reporting obligations in s 21A of the Sex Offenders Registration Act as follows –

21A    Additional reporting obligation in relation to travel out of Australia

(1)    This section applies if a registrable offender is required to report in accordance with—

(a)    section 18 that the registrable offender intends to leave Victoria to travel out of Australia; or

(b)    section 20(2A) that the registrable offender has returned to Victoria after the period of travel referred to in paragraph (a).

(2)    The registrable offender must, at the time of making a report referred to in subsection (1), produce to the Chief Commissioner of Police—

(a)    the registrable offender’s passport; and

(b)    documents specified by the regulations for the purposes of this section to verify or support the details in the report; and

(c)    in the case of a report referred to in subsection (1)(b)—if the registrable offender, during the period of travel referred to in subsection (1)(a), made a report under section 19, documents specified by the regulations for the purposes of this section to verify or support the details in that report.

7    For the purposes of s 21A(2)(b) and (c) of the Sex Offenders Registration Act, reg 13A of the Sex Offenders Registration Regulations 2014 (Vic) specifies the following documents that must be produced to the respondent if the registrable offender has access to the specified document or documents at the time of making the report—

(a)    any travel itinerary issued to the registrable offender by a travel agent, airline, passenger ship operator or other person or body that has organised travel, transport or accommodation for or on behalf of the registrable offender;

(b)    any booking confirmations issued to the registrable offender by a travel agent, airline, passenger ship operator, accommodation provider or other third party;

(c)    any loose-leaf or paper visas issued to the registrable offender;

(d)    any airline or ship boarding passes issued to the registrable offender; and

(e)    any receipts issued to the registrable offender by travel providers or accommodation providers.

8    Section 46 of the Sex Offenders Registration Act creates offences for failing to comply with reporting obligations, and s 47 of the Act creates offences for furnishing false or misleading information. Section 47(1), which would apply to the reporting obligations under sections 18, 19, and 21A of the Act is in the following terms  –

47    Offence of furnishing false or misleading information

(1)    A registrable offender who in purported compliance with this Part furnishes details (other than details to which section 14 applies) that the registrable offender knows to be false or misleading in a material particular is guilty of an offence and liable to level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units).

9    The obligations under the Sex Offenders Registration Act of a registrable offender intending to travel outside Australia, and while outside Australia, are essentially reporting obligations. Under the Sex Offenders Registration Act there is no constraint on a registrable offender’s freedom of movement within or outside Australia, and there is no power under that Act to constrain a registrable offender’s ability to leave Australia.

10    The Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) effected amendments to the Australian Passports Act 2005 (Cth), and to the Criminal Code. In relation to the Criminal Code, s 271A.1 was inserted, which commenced on 13 December 2017. Section 271A.1 is in the following terms –

271A.1    Restrictions on overseas travel by certain registered offenders

(1)    A person commits an offence if:

(a)    the person is an Australian citizen; and

(b)    the person’s name is entered on a child protection offender register (however described) of a State or Territory; and

(c)    the person has reporting obligations (however described) in connection with that entry on the register; and

(d)    the person leaves Australia. Penalty: Imprisonment for 5 years.

(2)    Absolute liability applies to paragraph (1)(a).

Note:    For absolute liability, see section 6.2.

(3)    Subsection (1) does not apply if:

(a)    a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or

(b)    the reporting obligations of the person are suspended at the time the person leaves Australia.

Note:    The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).

11    Section 271A.1(3) refers to a “competent authority” within the meaning of s 12 of the Australian Passports Act 2005 (Cth) or s 13 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). Section 12 of the Australian Passports Act relevantly provides –

12    Reasons relating to Australian law enforcement matters

(1)    If a competent authority believes on reasonable grounds that:

(a)    a person is the subject of an arrest warrant issued in Australia in respect of an indictable offence against a law of the Commonwealth, a State or Territory; or

(b)    a person (including a person who is in prison) is prevented from travelling internationally by force of:

(i)    an order of a court of the Commonwealth, a State or Territory; or

(ii)    a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of the Commonwealth, a State or Territory; or

(iii)    a law of the Commonwealth, or an order or other direction (however described) under a law of the Commonwealth;

the competent authority may make a refusal/cancellation request in relation to the person.

Note:    See also Subdivision D.

(1A)    A competent authority may make a refusal/cancellation request in relation to the person if the person is:

(a)    an Australian citizen; and

(b)    a reportable offender.

(2)    If a competent authority makes a request under subsection (1), the Minister must not issue an Australian passport to the person but may issue a travel-related document to the person.

(3)    In this section:

competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b) or (1A)(b), means:

(a)    a person who has responsibility for, or powers, functions or duties in relation under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or

(b)    a person specified in a Minister’s determination as a competent authority in relation to the circumstance.

…

Background

12    The applicant lodged a pro-forma application dated 4 June 2018 titled “Registered Offender Overseas Travel Application” at the Mernda police station. In response to the request in the application form to provide reasons for travel the applicant stated –

going For a holiday break with my parents will be travelling with my parents the whole Time. going to meet my Adult girl Friend & if goes well I will propose to her.

13    The completed application had other details and supporting material, including an itinerary issued to the applicant and his parents that referred to an Emirates flight leaving Melbourne on 11 October 2018 and arriving in Dubai the next day, a flight from Dubai to Lebanon on 17 October 2018, and a two leg return flight from Beirut to Melbourne leaving on 15 November 2018 and arriving on 16 November 2018.

14    On 20 August 2018, Detective Inspector Volk of Victoria Police wrote to the applicant refusing his application for permission to travel (the first determination), stating (inter alia) –

The Chief Commissioner of Police has received an application from you for approval for travel to Lebanon on and between 11/10/2018 and 16/11/2018. I have been delegated the Chief Commissioner of Police’s power, as competent authority, to determine an application for permission to leave Australia.

Our records indicate that you attempted to depart Australia on 08/01/2018 without seeking prior approval from the Chief Commissioner of Police. You are therefore in breach of the above-mentioned Commonwealth legislation and your International Travel Application has been denied.

15    After receiving the letter from Victoria Police, the applicant sought legal advice and then prepared and signed a written statement outlining in greater detail his reasons for wanting to travel which he then submitted to the respondent. By letter dated 18 September 2018 Detective Acting Inspector Kline of Victoria Police refused the applicant’s further application for permission to leave Australia (the second determination), stating (inter alia) -

The Chief Commissioner of Police has received a further application from you in relation to your request to travel to Lebanon and Dubai between 11/10/2018 and 16/11/2018. I have been delegated the Chief Commissioner of Police’s power, as competent authority, to determine an application for permission to leave Australia.

Our records indicate that you attempted to depart Australia on 08/01/2018. This breached both new Commonwealth legislation as well as existing SORA legislation that you acknowledged by signing your notice of reporting obligations on a number of occasions since your registration. I have considered this as well is your reason for travel and determined that your application is denied.

16    Following the second determination, the applicant commenced this proceeding by an originating application for judicial review filed 27 September 2018 seeking orders that the second determination be quashed or set aside. At the time this proceeding was commenced, the applicant was due to travel with his parents to Dubai on 11 October 2018, and then from Dubai to Lebanon for a further four week period between 17 October 2018 and 16 November 2018. The tickets for the trip had been booked by the applicant’s mother on 8 June 2018. The applicant stated in an affidavit sworn 27 September 2018 that there were two purposes for the trip: to meet a dying aunt in Dubai, and then to travel to Lebanon to visit his family and to spend time with his partner to whom he is engaged to be married. The applicant stated that he met his partner on an Islamic dating website, and stated that in accordance with Islamic cultural practice all interactions would be under the supervision of her parents, and his parents.

17    On 3 October 2018, the lawyers for the respondent, the Victorian Government Solicitor’s Office (VGSO), wrote to the applicant’s lawyer stating that the respondent was prepared to reconsider the determination, and sought further documents from the applicant, including: documents supporting the details of the illness and prognosis of the applicant’s aunt in Dubai; documents supporting the applicant’s ongoing relationship with his partner, and the agreed plan that they are to be engaged; and documents supporting the need for the travel to be of five weeks duration.

18    Later on 3 October 2018, the applicant’s lawyer provided to the VGSO a file containing a download of “WhatsApp” messages as evidence of the applicant’s relationship with his partner, Ms Omarieh, and foreshadowed the provision of medical evidence concerning the applicant’s aunt.

19    By letter dated 4 October 2018, the VGSO invited the applicant’s lawyer to provide any submissions which addressed the applicant’s offending history insofar as it related to his risk of re-offending during the proposed period of travel.

20    On 5 October 2018, the applicant’s lawyer furnished written submissions concerning the applicant’s offending history, and medical evidence concerning the condition of the applicant’s aunt.

21    At an interlocutory hearing before Murphy J on 5 October 2018, counsel for the respondent accepted that the respondent should make a fresh determination, and the Court ordered that the respondent provide a further determination of the applicant’s request for permission to travel by 5.00pm on 6 October 2018.

22    On 6 October 2018, Detective Acting Superintendent Volk of Victoria Police wrote to the applicant granting permission to the applicant to travel to Dubai on 11 October 2018 provided that the applicant returned to Australia by 20 October 2018, but denied the applicant permission to travel to Lebanon (the third determination). The letter contained detailed reasons for the decision, and concluded as follows –

… I am of the view that the risk of you reoffending while in Dubai is outweighed by the reason you have supplied for your travel to Dubai. In this respect, I have taken into account the length of your desired stay in Dubai and the fact that you will be under the supervision of your parents whilst you are there. Even though Dubai is a ‘tier 2’ country, the short period of your proposed stay there means that the risk of you reoffending against children in Dubai is not so great so as to reject your application to travel to see your ill aunt. I accept that your parents will be able to supervise you for the relatively short period you propose to be in Dubai.

In respect of your desire to visit Lebanon, I consider that your risk of reoffending over a four week period in Lebanon where you will not be subject to reporting requirements and where the child protection framework affords children with less protection than children enjoy in Australia outweighs the reason you have supplied to travel to Lebanon. The comparatively longer period of your desired stay in Lebanon will make it appreciably harder for your parents to supervise you and will afford you with a greater opportunity to offend against any vulnerable children you may come into contact with. In my view, this risk outweighs your stated reason for travelling to Lebanon.

Taking all the above into account, it is my decision that your application for authority to travel to Lebanon is denied. However, I will grant you authority to travel to Dubai on 11/10/2018 provided you return to Australia by 20/10/2018. Excluding travel time to and from Dubai, this authority should allow you to spend about 7 days in Dubai seeing your ill Aunt under the supervision of the your [sic] parents.

23    The letter of 6 October 2018 from Detective Acting Superintendent Volk to the applicant referred to the applicant’s sexual offending history that placed him on the register, namely the finding of guilt in 2011 of the sexual penetration of a child under 16 that occurred in 2007, and a report of the applicant’s ‘Static 99 Risk Assessment’, as well as a ‘Dynamic SHARP assessment’ that was conducted by the Sex Offender Registry.

24    On 7 October 2018, and following the third determination, the applicant’s lawyer foreshadowed amendments to the originating application so as to seek review of the third determination, and requested discovery of documents relating to the applicant’s ‘Static 99 Risk Assessment’, the ‘Dynamic SHARP assessment’, and the prosecution of the applicant.

25    On 8 October 2018, the VGSO provided to the applicant’s lawyer copies of the ‘Static 99 Risk Assessment’, the ‘Dynamic SHARP assessment’, and a copy of the prosecution brief summary of charges. The respondent proposed that the matter be reconsidered on the basis that the applicant provide submissions in relation to those documents by 5.00 pm that day, and that a further determination would be made as a matter of urgency and by no later than 5.00 pm on 9 October 2018.

26    By a letter to the VGSO dated 8 October 2018, the lawyers for the applicant addressed submissions to the three documents, namely the ‘Static 99 Risk Assessment’, the ‘Dynamic SHARP assessment’, and the summary of charges.

27    On 9 October 2018, Detective Acting Inspector Johnstone of Victoria Police denied the applicant’s request to travel to Lebanon, but approved the proposed travel to Dubai for a period of 7 days from 11 October 2018 provided that the applicant returned to Australia by 20 October 2018 (the fourth determination).

28    The applicant then sought an expedited hearing of this proceeding to challenge the fourth determination. The proceeding was listed for a case management hearing on 12 October 2018 where the Court was informed by counsel for the applicant that the applicant had by that time cancelled his ticket, but that there remained utility in the proceeding because the applicant desired to travel to, and stay in Lebanon for such of the planned four week period until 16 November 2018 as remained reasonably possible.

29    The hearing took place on 18 October 2018. At the hearing the Court raised with the parties the question whether the respondent was authorised to give conditional permission to leave Australia, and in this case, whether the respondent was authorised to give permission to the applicant to travel to Dubai, but not to Lebanon. I gave leave to the applicant to raise these issues by way of additional amendments to the originating application for judicial review, and I directed the parties to file written submissions relating to the subject matter of those amendments.

30    Pursuant to the leave given on 18 October 2018, the applicant filed a third amended originating application for judicial review. By that application the applicant seeks relief under the ADJR Act in relation to the fourth determination. The grounds of the application are set out in the pleaded grounds, which may be summarised as follows –

(a)    the respondent erred in law by seeking to apply conditions to a determination granting permission to travel for the purposes of s 271A.1 of the Criminal Code, thereby attracting the ground in s 5(1)(f) of the ADJR Act;

(b)    the respondent erred by taking into account irrelevant considerations, thereby attracting the grounds in s 5(1)(e) and s 5(2)(a) of the ADJR Act;

(c)    the respondent erred by making a decision that was so unreasonable that no reasonable decision-maker could have made it, thereby attracting the grounds in s 5(1)(e) and s 5(2)(g) of the ADJR Act; and

(d)    the respondent breached the rules of natural justice in connection with making the decision, thereby attracting the ground in s 5(1)(a) of the ADJR Act.

The application of the ADJR Act

31    In Zaharis v Commissioner of Police (SA) [2018] SASR 576 (Zaharis) Doyle J held at [67]-[68] that s 271A.1(3) of the Criminal Code impliedly required and authorised a competent authority to determine whether a person should be given permission to leave Australia. Doyle J relied on a passage from the reasons of Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99 at 130 [89] as being pertinent –

The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met.

32    Doyle J referred to similar observations of Mason, Deane and Dawson JJ in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303, and held that it followed that a decision of a competent authority to give, or to decline permission to leave Australia is a decision “under an enactment” for the purposes of s 3 of the ADJR Act.

33    In Mentink v Commissioner for Queensland Police [2018] QSC 151; 335 FLR 64, which was decided before Zaharis, Mullins J reviewed the Commissioner for Queensland Police’s decision to refuse the applicant permission to travel outside Australia under the law applicable in Queensland. But as Doyle J observed in Zaharis, her Honour proceeded upon an assumption of jurisdiction, and the question of the applicability of the ADJR Act was not considered.

34    In this case, the applicant’s claim for relief was based solely on grounds arising under the ADJR Act. Counsel for the respondent informed the Court at the hearing that the respondent did not challenge the correctness of Doyle J’s decision in Zaharis that a determination of a competent authority to give or refuse permission for the purposes of s 271A.1(3) of the Criminal Code is a decision “under an enactment” for the purposes of s 3(1) and (2) of the ADJR Act. The applicability of the ADJR Act was therefore not in issue.

The issues

35    The grounds of review under the ADJR Act that are the subject of the applicant’s third amended application, and which are summarised at [30] above, raise the following issues –

(a)    did the respondent err in law by seeking to apply conditions to the fourth determination, namely to limit the applicant’s travel to the United Arab Emirates, and for the period from 11 October 2018 to 20 October 2018 [s 5(1)(f)];

(b)    did the respondent err by taking into account irrelevant considerations [s 5(1)(e) and s 5(2)(a)];

(c)    did the respondent err by making a decision that was so unreasonable that no reasonable person could have made it [s 5(1)(e), s 5(2)(g)]; and

(d)    did the respondent breach the rules of natural justice in connection with the making of the decision [s 5(1)(a)]?

Can permission be qualified or conditional?

36    The first issue for determination is whether the respondent as a competent authority was authorised to give conditional or qualified permission to the applicant to leave Australia.

37    The respondent submitted that s 271A.1(3) of the Criminal Code impliedly vests a competent authority with a discretion as to whether or not to “give permission (however described)” to a registered sex offender to “leave Australia”. The respondent submitted that, properly construed, and in light of the clear purpose of the legislation, that implied power includes the power to refuse to give permission entirely and, therefore, the “lesser power” to condition any permission granted by, for example, specifying that an offender be allowed to “leave Australia”, but only if he or she travels to a particular destination for a specified period. It was submitted that viewed in this way, the power to impose conditions is a necessary component of the implied power itself. The respondent submitted that, properly construed, the implied power pursuant to s 271A.1(3)(a) of the Criminal Code to give permission to leave Australia necessarily includes a power to give permission to leave Australia on particular conditions including as to destination and period of travel. Alternatively, it was submitted that if the respondent did not have power to give permission on conditions, then the whole of the fourth determination was affected by legal error, and should be set aside.

38    In support of the respondent’s primary argument, the respondent relied on the decision of the Queensland Court of Appeal in Commissioner of the Australian Federal Police v Hart (2016) 336 ALR 492. In Hart the Queensland Court of Appeal (P Lyons J, Douglas J agreeing, and Morrison JA dissenting in relation to one of the appeals, but agreeing on this point) had held that the power to make declaratory orders under s 102(1) of the Proceeds of Crime Act 2002 (Cth) included a power to make orders that were subject to conditions. The respondent relied on passages from the reasons of Morrison JA at [210]-[211], and on the following passages from the reasons of P Lyons J at [925]-[932] –

[925]    I also agree with [Morrison JA’s] conclusion that the power to make orders in s 102(1) includes a power to make orders which are subject to conditions.

[926]    Bennion identified Attorney-General v Great Eastern Railway Co [(1880) 5 App Cas 473] as the source of a rule that an express statutory power carries implied ancillary power where needed. The learned author cited two passages from the judgments in that case. The first was from that of Lord Blackburn [at 481], with respect to whether the conferral of a discretion carries with it the implied conferral of an incidental power,

“... those things which are incident to, and may reasonably and properly be done under the main purpose (of an enactment), though they may not be literally within it, would not be prohibited.”

[927]    The second is from the judgment of Lord Selborne [at 478], who, in a similar context, said,

“... whatever may fairly be regarded as incident to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.”

[928]    The latter passage was referred to by Brennan J in Johns v Australian Securities Commission [(1993) 178 CLR 408 at 429] (Johns) as authority for the conclusion that the Commission had the implied power to impose a condition of confidentiality, available information obtained under its coercive powers, for the assistance of a State Royal Commission. In the same case McHugh J said [at CLR 469] of s 127(4) of the Australian Securities Commission Act 1989 (Cth), which authorised the Commission to make the information available to the State Royal Commission,

“Unlike s 25(3), s 127(4) contains no express power to impose conditions. But it is a discretionary power, and the discretion can be exercised by requiring the recipient of the information to comply with specified conditions. The scope of a statutory power is ascertained ‘by the character of the statute and the nature of the provisions it contains’ [Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, 410]. When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation. Consequently, the repository of the power may impose conditions on those affected by the exercise of the power as long as the conditions are not inconsistent with the purpose for which the power is granted.”

[929]    In North Sydney Council v Standley & Associates Pty Ltd (Michael Standley) [(1998) 43 NSWLR 468 at 476] Mason P appeared to recognise that this was a general principle concerning the conditional exercise of discretionary powers. His Honour referred to the judgments of Brennan and McHugh JJ in Johns, as well as the United States decision of Southern Pacific Co v Olympian Dredging Co [260 US 205 (1922) at 208]. There, Sutherland J, for the Supreme Court of the United States, said “The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval”.

[930]    In Jaimee Pty Ltd v Council of the City of Sydney [[2010] NSWLEC 245 at [34]-[37] Craig J, after citing the passage referred to in the judgment of Mason P in Michael Standley, and before referring to the passages from Johns, with reference to the judgment of Mason P, said

“Those observations of the President were taken up by McClellan J, when Chief Judge of this Court, in 1643 Pittwater Rd Pty Ltd v Pittwater Council [[2004] NSWLEC 685]. For reasons then given by his Honour, he decided that an application under s 96 of (The Environmental Planning and Assessment Act 1979 (NSW)) could be determined by the grant of a conditional consent or approval, notwithstanding the absence of any specific power in the Act or Regulation so to do and notwithstanding the provisions of the Act expressly providing for conditions to be imposed upon the grant of development consent: see for example, ss 80 and 80A. The correctness of the decision in 1643 Pittwater Road has not since been questioned in this Court.”

[931]    As McHugh J pointed out, the power to impose conditions is constrained by the scope and purpose of the legislation. Nor, it seems to me, could a condition be imposed which is inconsistent with a provision of the Act.

[932]    Bennion points out that in Ward v Metropolitan Police Commissioner [2006] 1 AC 23 Baroness Hale qualified the rule by stating [at [24]], “(t)he implication has to be necessary in order to make the statutory power effective to achieve its purpose”. The author submits that Baroness Hale went too far, relying on the speech of Lord Rodger of Earlsferry [at [5]. His Lordship identified the test for determining whether a power to impose a condition was to be implied, as being whether that power could fairly be regarded as incidental to the power expressly conferred. It seems to me, in light of the authorities discussed, that in Australia, an incidental power may be implied to impose conditions when a discretion is exercised, even if it is not necessary to make the primary power effective.

39    As the respondent acknowledged though, on appeal to the High Court in Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76, Gordon J held at [264] that the Queensland Court of Appeal’s conclusion that the power under s 102(1), Proceeds of Crime Act included a power to make conditional orders was “misplaced and may be put to one side”. At [2], Kiefel CJ, Bell, Gageler and Edelman JJ expressed agreement with Gordon J’s legal conclusions.

40    The respondent also relied upon the passage from the reasons of McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 429 (Johns), which was referred to by P Lyons J in Hart at [928] (set out under [38] above) as applying equally to implied powers such as that conferred on the respondent in the present case.

41    The respondent submitted that the presence of the words “however described” in s 271A.1 of the Criminal Code qualified the word “permission” such that the provision as a whole should be read to encompass “conditional” permission being granted. That is to say, the words are directed to encompassing permission that is “described” as conditional.

42    In response, the applicant submitted that the respondent’s reliance upon the Queensland Court of Appeal’s decision in Commissioner of the Australian Federal Police v Hart (2016) 336 ALR 492 was misplaced because the decision was reversed by the High Court in Commissioner of the Australian Federal Police v Hart, and that it was in any event distinguishable because, amongst other things, it concerned the implied power of a court rather than an administrative decision-maker.

43    The applicant submitted that s 271A.1(3) of the Criminal Code did not confer a statutory discretion on the respondent to grant permission to depart Australia with conditions or limitations which impose restrictions on travel that occur subsequent to the act of actual departure. It was submitted that once an individual has been granted approval and has departed Australia, there is no longer an offence for which the individual may be prosecuted under s 271A.1. The applicant submitted that by seeking to impose conditions on the grant of permission to travel involved misconstruing the provisions, and was an error of law.

44    The applicant also submitted that if Parliament had intended that the respondent have the power to impose conditions, Parliament would have legislated with a specific reference to approval being granted on “terms as the authority thinks fit”. Additionally, it was submitted that the provision would necessarily have to contemplate an enforcement mechanism for such conditions, and with no capacity to supervise once the applicant is outside the jurisdictional limits of a competent authority, Parliament may well have deemed granting powers to limit the freedoms of an individual in question a practical irrelevance.

45    In relation to the term, “permission (however described)” in s 271A.1(3) of the Criminal Code, the applicant submitted that the phrase “however described” is a common Commonwealth legislative and regulatory drafting term, and that a study of the use of the phrase in other contexts, for instance the Fair Work Act 2009 (Cth) or the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2015 (Cth), reveals that the phrase has its literal meaning; viz, an alternative descriptor may be used rather than the word of the statute. The applicant submitted that in the context of s 271A.l, it merely empowers the competent authority to grant approval, consent, authorisation, leave, etc, rather than requiring the authority to refer specifically to the word “permission”. It was submitted that the phrase provides latitude as to the description of the permission, not the substance of the permission granted.

46    I have been assisted in the resolution of the question whether permission given under s 271A.1 of the Criminal Code might be expressed in a qualified or conditional way by the written submissions that were provided on behalf of the parties. On that question, I have come to the following conclusions.

47    The question in issue in this case is whether the fourth determination, in denying the applicant’s request for permission to travel to Lebanon, and permitting travel to Dubai for a period of seven days provided that the applicant returned to Australia by 20 October 2018, was a lawful exercise of the implied power to give permission conferred by s 271A.1 of the Criminal Code. The resolution of this issue invites attention to the text of s 271A.1 together with its statutory purpose and legislative background. In relation to the identification of statutory purpose, in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592 [44] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated –

The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

48    The common law and statutory rules of construction that are referred to in Lacey permit regard to be had to legislative history and extrinsic materials, in order to shed light on the statutory text.

49    Passages from the explanatory memorandum for the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 were referred to by Mullins J in Mentink v Commissioner for Queensland Police [2018] QSC 151 at [19]-[24], and a passage from the second reading speech of the Minister in the House of Representatives was set out at [25]. In relation to the purpose of s 271A.1 Mullins J concluded at [26]-[27] –

[26]    Much of the extrinsic material relates specifically to the power conferred on the Minister automatically to cancel or refuse to issue a passport to an Australian citizen who is a reportable offender at the request of a competent authority. Where the extrinsic material does assist in relation to s 271A.1 of the Code is in the ascertainment of its purpose or object which is to prevent reportable offenders from travelling overseas to sexually exploit or sexually abuse vulnerable children in countries where the protection of those children from the activities of child sex offenders is less stringent than in Australia. This is facilitated by the creation of an offence under s 271A.1 of the Code, if a reportable offender leaves Australia without the permission of a competent authority.

[27]    There is no ambiguity in the terms s 271A.1. Its connection with the underlying purpose of the 2017 Act to prevent child sex offenders from travelling overseas to sexually abuse vulnerable children is readily apparent from its terms. The purpose of the proposed travel by the reportable offender and the risk of the reportable offender sexually abusing vulnerable children overseas must be relevant considerations to the decision of the competent authority on whether to grant permission to the reportable offender to travel overseas. Counsel for both Mr Mentink and the respondent submitted that the discretion conferred on the competent authority to grant or refuse permission is broad. That must be correct in the context of the purpose of is enactment.

50    I note three points that arise from paragraph [27] of the reasons of Mullins J set out above. First, the purpose of the proposed travel by the reportable offender is a relevant consideration; second, the risk of the reportable offender sexually abusing vulnerable children overseas must be a relevant consideration; and third, the discretion conferred on a competent authority to refuse permission is broad.

51    It is by operation of the Victorian Sex Offenders Registration Act that the applicant engages s 271A.1(1) of the Criminal Code. The text of s 271A.1(1) of the Criminal Code and the definition of “competent authority” in s 12 of the Australian Passports Act link the Criminal Code to the State and Territory legislation that impose the reporting obligations referred to in s 271A.1(1)(c) of the Criminal Code, and under which the responsibilities, powers, functions or duties of the “competent authority” arise for the purposes of s 12(3) of the Australian Passports Act. In this case, that linkage invites attention to the Sex Offenders Registration Act.

52    The terms of the Sex Offenders Registration Act mandate that, by reference to the category of offence for which the applicant was sentenced, namely a “Class 1 offence”, the applicant is a “registrable offender” for the purposes of that Act, and is subject to reporting obligations under that Act for a period of 15 years. The purposes of the reporting regime which is imposed by the Sex Offenders Registration Act include the express purposes that are identified in s 1(1) of that Act –

(a)    to reduce the likelihood that they will re-offend; and

(b)    to facilitate the investigation and prosecution of any future offences that they may commit.

53    The “competent authority” in this case is the Chief Commissioner of Police, who under the Sex Offenders Registration Act has powers, functions and duties in relation to the applicant’s circumstances as a registered sex offender under that Act (see Zaharis at [52]). Material to the grant of permission to leave Australia for the purposes of s 271A.1(3) of the Criminal Code are ss 18 and 21A of the Sex Offenders Registration Act, which are set out under paragraphs [4] and [6] above. Those provisions require a registrable offender to provide details and supporting documents to the respondent relating to intended travel outside Australia, and s 47(1) of the Act, which is set out under paragraph [8] above, creates an offence for furnishing false or misleading information. There are corresponding provisions in the legislation of the other States and the Territories which were in place at the time s 271A.1 was inserted into the Criminal Code, namely: Child Protection (Offenders Registration) Act 2000 (NSW), ss 11A, 18; Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 20, 51; Child Sex Offenders Registration Act 2006 (SA), ss 17, 45; Community Protection (Offender Reporting) Act 2004 (WA), ss 30, 64; Community Protection (Offender Reporting) Act 2005 (Tas), ss 19, 34; Child Protection (Offender Reporting and Registration) Act (NT), ss 20, 49; Crimes (Child Sex Offenders) Act 2005 (ACT), ss 42. The existence of this legislation is material to the purpose and scope of s 271A.1.

54    In my view, information provided by a registrable offender in relation to proposed travel, either voluntarily or pursuant to ss 18 and 21A of the Sex Offenders Registration Act, is capable of being relevant to the decision of a competent authority whether to give permission to a registrable offender to leave Australia. Matters such as intended destination, duration of travel, and whether the proposed travel is supported by a travel itinerary or booking confirmation, are capable of being considered by a competent authority for the purposes of deciding whether to give permission. Indeed, the travel intentions disclosed by that information might fairly be regarded in many cases, as they were in this case, as being the subject of the registrable offender’s request for permission to leave Australia. It follows that the giving or refusal of permission to leave Australia will often be responsive to, and may be expressed by reference to, an applicant’s intentions as disclosed by the information that is furnished to the respondent.

55    In this case, by the fourth determination the respondent gave permission to the applicant to leave Australia on 11 October 2018 for the purposes of travel to Dubai, but on the proviso that the applicant would return to Australia by 20 October 2018. The respondent denied the applicant’s request for permission to leave Australia for the purposes of the extended trip that had been booked, which included four weeks in Lebanon. In my view the fourth determination answered the description of “permission howsoever described” (cf, Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126 at 135-6). To the extent that the respondent gave permission on the proviso that the applicant should return to Australia by 20 October 2018, I do not consider that this amounted to an attempt to impose a condition that is enforceable under s 271A.1 of the Criminal Code. Rather, the limitations on the travel contemplated by the terms of the permission confined the terms of the permission, in that the permission given was to leave Australia on 11 October 2018 for the purpose of travel to Dubai. Implicit in the permission given in this case was that the applicant’s intended travel would then conform to the terms of that permission. In my opinion, it would be open to the respondent to request a registrable offender to confirm expressly for the purposes of ss 18 and 21A of the Sex Offenders Registration Act that the intended travel is within the scope of the permission given or proposed, before the permission becomes effective.

56    To the extent that the respondent gave any permission to the applicant to leave Australia, that permission related specifically to departure on 11 October 2018 to travel to Dubai. That permission has now lapsed by reason of the effluxion of time, and changed circumstances. On the evidence before me, the respondent has not given permission to the applicant to leave Australia at any later time, or under any other circumstances. Specifically, the respondent has not given permission to the applicant to leave Australia for the purposes of the proposed visit to Lebanon.

57    For the above reasons, to the extent that the fourth determination gave qualified permission to the applicant to leave Australia from 11 October 2018, I consider that such permission was not, for that reason, outside power. The purposes of s 271A.1 of the Criminal Code permit that regard may be had to the details and purpose of a registrable offender’s proposal to leave Australia, and in my view it is permissible for such matters to inform, and to shape the terms of any permission which is given to leave Australia.

Irrelevant considerations

58    Section 271A.1(3) of the Criminal Code contains no express criteria by reference to which permission for the purposes of s 271A.1(3) of the Code is to be granted or withheld. Therefore, it is open to a competent authority to take account of any matter which, on a proper construction of the Act, is relevant to its objects. In R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45, which concerned a statutory discretion to consent to the transfer of a broadcasting licence, the Court (Stephen, Mason, Murphy, Aickin and Wilson JJ) stated at p 49 –

Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is “unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the court to pronounce given reasons to be definitely extraneous to any objects the legislature would have had in view”, to use the words of Dixon J in Browning. In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury), “on the impossibility, when an administrative discretion is undefined, of a court’s doing more than saying that this or that consideration is extraneous to the power”.

59    I approach the question whether the respondent took into account irrelevant considerations on the basis that the respondent had a broad discretion that was to be exercised consistently with the purposes of both the Commonwealth and State legislation to which I have referred at paragraphs [47] to [54] above. I agree with guidance of Doyle J in Zaharis at [95] that –

… the issue of whether permission is appropriate requires a case by case assessment, taking account of the particular risk presented by the person wishing to travel and the nature and circumstances of their travel.

60    The applicant’s third amended originating application contains the following particulars in support of the claim that the respondent took into account irrelevant considerations –

2.1    The explanatory memorandum and second reading speech accompanying the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) … which effected the insertion of s 271A.1 into the Criminal Code, make it clear the amendments were intended to focus upon child sex tourism and other forms of travel posing a real risk to vulnerable children.

2.2    The Commissioner determined the application for permission to travel by Mr Ammouche by reference to an alleged prior offence to depart Australia on 8 January 2018 without seeking approval from the Commissioner, which is not a relevant consideration in determining prospective risk to vulnerable children.

2.3    The Commissioner determined the application for permission to travel by Mr Ammouche by reference to offences consisting of breaches of reporting obligations for which Mr Ammouche was charged during 2011 and 2015, which are not relevant considerations in determining prospective risk to vulnerable children.

2.4    The Commissioner determined the application for permission to travel by Mr Ammouche by reference to the ability of Mr Ammouche’s partner Ms Mariam Omarieh’s capacity to travel to Australia, which is not a relevant consideration in determining prospective risk to vulnerable children.

2.4    The Commissioner determined the application for permission to travel by Mr Ammouche by reference to the knowledge of Ms Mariam Omarieh of Mr Ammouche’s prior offending, which is not a relevant consideration in determining prospective risk to vulnerable children.

61    The statement of legislative purpose in paragraph 2.1 of the applicant’s particulars set out above is too narrow. While the purposes of s 271A.1 of the Criminal Code can be taken to include the prevention of child sex tourism and other forms of travel posing a real risk to vulnerable children, I do not consider that either the text of the legislation or the extrinsic material supports confining the focus of the legislation in that way. It must be borne in mind that the Victorian legislation, the operation of which will engage s 271A.1 of the Criminal Code, is the legislative response to the risk presented by offenders such as the applicant. It is the fact of the offending and the class of offending that are indicative of the risk that the legislation seeks to address by imposing reporting requirements under that legislation, including reporting in relation to overseas travel. One of the purposes of s 271A.1 of the Criminal Code is to address the risk arising where some countries do not have monitoring and reporting systems in place in relation to sex offenders. That object was referred to in the reasons for the fourth determination dated 9 October 2018.

62    In the reasons for the fourth determination, the delegate expressed concurrence with the decision and reasons for the third determination of 6 October 2018. In making the third determination the respondent’s delegate took account of an alleged prior attempt to depart Australia on 8 January 2018 without seeking approval from the respondent, and took account of the applicant’s non-compliance with reporting obligations in 2011 and 2015. By the particulars in paragraphs 2.2 and 2.3 of the originating application, the applicant claims that these were not relevant considerations. The reasons for the third determination state the following in relation to these considerations –

I consider that your attempt to depart Australia in January 2018 holds significant weight. Whilst I accept that this incident in January 2018 is still before the courts, I do not accept in your submission that you were ‘unfamiliar’ with your reporting obligations given that you had signed a ‘notice of reporting obligations’ a number of times since your initial registration and that you are required to notify police of travel outside Australia pursuant to the provisions contained in the Sex Offender Registration Act. I believe that this instance of non-compliance, as well as your other charges for non-compliance in 2011 and 2015 to a lesser degree, show an unwillingness to comply with your legal obligations. To my mind, that unwillingness increases the risk of you not complying with the law during your travel. It heightens the risk you may reoffend against children whilst travelling.

63    In relation to these considerations, the following written submissions were advanced on behalf of the applicant –

It is a fundamental flaw of logic to construe that as a general proposition, an individual’s propensity to offend in one manner (for instance by not complying with reporting obligations), necessarily leads to the inference the individual will offend in an entirely different manner (for instance by the commissioning of heinous crimes against children). The consideration of the Applicant’s breaches of his reporting obligations are so remote, so deprived of any nexus with conduct to which s 271A.1 is designed to prevent, that as considerations they can only be deemed irrelevant for present decision making purposes.

The attempted departure of the Applicant in January 2018 does not bear on the Applicant’s desire to abuse children. This much is abundantly clear by virtue of the results of the Applicant’s ‘Static 99 Risk Assessment’ and the ‘Dynamic SHARP Assessment’ (“the Risk Assessments”) conducted independently by the Sex Offender Registry.

64    I do not accept that alleged prior offending by the applicant in relation to his reporting obligations, and his alleged attempt to depart Australia in January 2018 without permission, were not permissible relevant considerations. The material before the respondent’s delegates included a Sex Offender Risk Assessment dated 4 October 2018 which stated the following –

History of supervision violation

AMMOUCHE presents with a recent history of supervision violation, having breached his SORA obligations on a number of occasions including within the past 12 months. AMMOUCHE most recently attempted to travel internationally without first notifying SOR or applying for approval on 08-JAN-2018 and was arrested at Melbourne International Airport on this date. During a subsequent police interview AMMOUCHE produced an Australian passport which he had not previously disclosed to SOR; this passport was issued in a different name (from Walid AMMOUCHE to Waled AMMOUCHE) and he confirmed that he had legally changed his name without first gaining permission from the Chief Commissioner of Police. AMMOUCHE has demonstrated a disregard for his SORA reporting obligations, however states that this was due to his lack of understanding rather than him having any malicious intent. A history of supervision violation is linked to a greater risk of sexual recidivism.

65    The decision-makers thought that the breaches of the reporting obligations and the alleged attempt to leave Australia in January 2018 without permission were relevant to the risk that the applicant would not comply with the law during his travel, and that it heightened the risk of re-offending against children. I am not persuaded that the legislation, which should be interpreted so as to give the respondent a broad discretion, does not permit these matters to be taken into account by a competent authority as bearing on the risk that the applicant might re-offend. I do not regard these matters as extraneous to the objects of the legislation (see the passage from R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd set out at [58] above).

66    The Sex Offender Risk Assessment dated 4 October 2018 also stated the following –

Protective factors

AMMOUCHE reports to be in a current age-appropriate relationship with a 26 year old woman who is residing in Lebanon. AMMOUCHE states that he met this person online and has applied to travel to Lebanon to meet her and her family in late 2018. This relationship may act protectively as AMMOUCHE would be less likely to seek sexual intimacy via illicit means. It is not currently known whether AMMOUCHE’s partner is aware of his sexual offending.

67    In the reasons for the third determination the respondent’s delegate stated –

In my view, the reason you have supplied as to your need to travel to Lebanon carries substantially less weight than the reason provided for your travel to Dubai. There is limited evidence of the existence of a ‘Miriam Omarieh’, her personal details or her knowledge of your offence history. Further, there is no evidence before me to suggest that she is unable to travel to Australia to meet you.

68    In the reasons for the fourth determination the respondent’s delegate stated –

Whilst an age appropriate relationship may be considered a protective factor, I consider that there is a lack of evidence before me to support Mariam Omarieh’s age. Further and in any event, there is no evidence as to her inability to travel to Australia to meet you.

69    By paragraph 2.4 of the particulars of the originating application the applicant relies on the reference to Ms Omarieh’s capacity to travel to Australia, and claims that it was not a relevant consideration in determining prospective risk to vulnerable children. I consider that paragraph 2.4 of the applicant’s particulars does not correctly identify the subject matter of relevance. The correct issue was not whether Ms Omarieh’s capacity to travel to Australia was relevant in determining prospective risk to vulnerable children, but was whether Ms Omarieh’s capacity to travel to Australia was relevant to the respondent’s consideration of whether or not to permit the applicant to leave Australia. I do not accept that Ms Omarieh’s capacity to travel to Australia was not a relevant consideration. One of the grounds advanced by the applicant to support his application for permission to travel to Dubai was to meet his aunt, who was ill with cancer. In respect of his aunt, the applicant had submitted for the respondent’s consideration a medical report confirming the diagnosis. In those circumstances, the respondent gave permission to the applicant to leave Australia to visit his aunt in Dubai. It is in that context that the reference to Ms Omarieh’s capacity to travel to Australia is to be understood, because it was relevant to the reasons given for the applicant’s proposed travel. In weighing all the considerations, the respondent gave more weight to the purpose of the proposed travel to Dubai than to the proposed travel to Lebanon. I therefore do not accept that the absence of evidence of Ms Omarieh’s inability to travel to Australia was not a consideration amongst a range of considerations that was relevant to the respondent’s broad discretion.

Unreasonableness

70    The applicant claims that the respondent made a decision that was so unreasonable that no reasonable decision-maker could have made it, and relies upon the grounds in s 5(1)(e) and s 5(2)(g) of the ADJR Act. Section 5(2)(g) of the ADJR Act requires that the applicant establish that there has been –

an exercise of power that is so unreasonable that no reasonable person could have so exercised the power

71    In support of the claim of unreasonableness, the applicant relies on the following particulars –

3.1    A reasonable decision-maker would not have made a decision to refuse permission for Mr Ammouche to travel outside of Australia to Lebanon having regard to:

3.1.1    the nature and full circumstances of the original offending which resulted in his placement on the Victorian Register of Sex Offenders operated under the Sex Offenders Registration Act 2004 (Vic);

3.1.2    the very low level of risk posed by Mr Ammouche as identified in the Static 99 Risk Assessment and Dynamic SHARP Assessment dated 4 October 2018;

3.1.3    the duration of time that has passed since the original offending and absence of any other accusations of related offending;

3.1.4    the nature and circumstances of subsequent alleged offending;

3.1.5    the nature and purpose of the proposed travel;

3.1.6    the location of the proposed travel; and

3.1.7    Mr Ammouche being accompanied by his parents on the proposed travel.

3.2    A reasonable decision maker could not have formed the view that supervised travel to the United Arab Emirates, a tier 2 country for the purposes of the Trafficking Victims Protection Act 2000 (US), presents an acceptable level of risk, but supervised travel to Lebanon, a tier 2 country for the purposes of the Trafficking Victims Protection Act 2000 (US) presents an unacceptable risk.

3.3    A reasonable decision maker could not have made the decision that the parents of Mr Ammouche are able to provide adequate supervision during travel within the United Arab Emirates but not during travel within Lebanon.

3.4    A reasonable decision maker could not have made a decision that exhibited such arbitrariness as exhibited by the granting of approval for a period of travel to the United Arab Emirates but no approval for travel to Lebanon; particularly having regards to the granting of approval for a reduced period of time of the over-all travel sought, but refusal to grant approval for travel of any length to Lebanon on the basis that the proposed stay in Lebanon would be of an excessive length of duration.

3.5    A reasonable decision maker could not have formed the conclusion that the risks to vulnerable children in Lebanon was so outweighed by the good reasons to travel to Lebanon given the pivotal life event that Mr Ammouche seeks to travel to attend.

3.6    A reasonable decision-maker would have made a decision to grant permission for Mr Ammouche to travel.

72    In advancing these grounds the applicant has to establish that the only reasonable decision that was open to the respondent was to permit the applicant to leave Australia for the purposes of travel, including travel to Lebanon. It is not to the point to claim, as the applicant does at paragraph 3.6 of his particulars, that a reasonable decision-maker would have made a decision to grant permission for the applicant to travel: Minister for Immigration v Stretton (2016) 237 FCR 1 at 8 [21] (Allsop CJ).

73     In Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 Dixon CJ stated –

This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

74    As I have identified at paragraphs [50], [59], and [65] above, s 271A.1 of the Criminal Code confers a broad discretion on the respondent. The respondent is the “competent authority” because he has functions and duties in relation to the applicant’s circumstances as a registered sex offender under the Sex Offenders Registration Act. In my view, the implied conferral by s 271A.1(3) of the Criminal Code of the decision-making function on a “competent authority” carries with it a recognition that the competent authority is likely to have knowledge and expertise in assessing risk that would be relevant to the exercise of the discretion whether to grant or to withhold permission. The identification of matters amongst permissible considerations that were material to the respondent’s decision whether to consent to the applicant leaving Australia, the weight to be given to those considerations, and the balancing of competing considerations, were for the respondent to determine.

75    Under the Victorian legislation, the applicant has reporting obligations that arise as a result of the classification of the offence for which he was sentenced. The policy of that legislation, which emerges from the text of its operative provisions, is that the community is to have some measure of protection from persons who have committed offences that fall within the classes specified by the legislation. The offence created by s 271A.1(1) of the Criminal Code is directed to extending that protection to other countries. The statutory framework has as a premise that the community requires some measure of protection from offenders such as the applicant. In this case, the task confronting the applicant in seeking to establish that the respondent’s decision, within this statutory framework, was so unreasonable that no reasonable person could have so exercised the power is considerable.

76    I do not accept any of the applicant’s grounds under paragraph 3 of the originating application. In relation to the outcome of the respondent’s fourth determination of the application for permission to travel, the respondent by his delegate provided rational reasons, which are consistent with the objects of the legislation, for deciding to withhold permission for the applicant to travel to Lebanon.

77    Counsel for the applicant emphasised in submissions that the applicant had been assessed as “low risk”. But this was only one permissible consideration that had to be evaluated with other material considerations. The grounds alleged by the applicant in the particulars under paragraph 3.1 and its sub-paragraphs, invite the Court to evaluate a range of considerations for itself. That is not the task of the Court: Minister for Immigration v Stretton (2016) 237 FCR 1 at 8 [21] (Allsop CJ).

78    As to the particulars under paragraphs 3.2 to 3.4 of the originating application, the respondent gave rational reasons for forming the view that permission to leave Australia for travel to Dubai would be given, but permission to leave Australia for travel to Lebanon would be withheld. The material parts of those reasons are set out in paragraph [22] above. There is no reason to think that those reasons are unreasonable in the requisite sense.

79    As to the claim in paragraph 3.5 of the particulars that “a reasonable decision maker could not have formed the conclusion that the risks to vulnerable children in Lebanon was so outweighed by the good reasons to travel to Lebanon given the pivotal life event that Mr Ammouche seeks to travel to attend”, the applicant submitted that the low level risk of offending presented by the applicant was clearly outweighed by the purpose of the desired travel, being the meeting of families and engagement. I do not accept that a reasonable decision-maker was bound to reach that conclusion. As framed, the impugned conclusion involves value judgments which the respondent made taking into account a range of considerations, including the delegate’s view that the child protection framework in Lebanon affords children with less protection than children enjoy in Australia, and that the applicant proposed a stay in Lebanon of four weeks.

80    The ground alleged in paragraph 3.6 of the particulars is tantamount to alleging that the only reasonable decision open to the respondent was one that permitted the applicant to leave Australia in the circumstances for which permission was sought. For all of the reasons referred to in [72] to [79] above, that ground must be rejected.

Alleged breach of the rules of natural justice

81    The applicant claims that the respondent breached the rules of natural justice in making the decision, and relies on the ground in s 5(1)(a) of the ADJR Act. The particulars of this claim are as follows –

4.1    The Commissioner in exercising administrative power did not afford Mr Ammouche procedural fairness.

4.2    No opportunity was afforded to Mr Ammouche to respond to the Commissioner’s concerns in respect of:

5.3.1    The existence of his partner Ms Mariam Omarieh;

5.3.2    The personal details of Ms Omarieh;

5.3.3    The intended length of travel in Lebanon;

5.3.4    The Commissioner’s concern that parental supervision was deemed unacceptable in Lebanon (notwithstanding that parental supervision in United Arab Emirates was deemed satisfactory);

4.3    Natural justice was not afforded to Mr Ammouche in the making of the further determinations dated 6 October 2018 and 9 October 2018, having regard to the fact that the same delegate of the Commissioner merely remade an earlier determination, and this determination was subsequently relied upon in making the further determination dated 9 October 2018.

4.4    Further, the Commissioner was biased in his decision making because of Mr Ammouche’s prior offending.

82    The applicant’s claims of breach of the rules of natural justice fall into two categories: failure to afford an opportunity to be heard; and bias.

83    I have already set out in general terms at paragraphs [12] to [27] above the circumstances leading to the fourth determination. I shall now give attention to those aspects of the circumstances that are material to my consideration of the claim that there was a breach of the rules of natural justice.

84    The originating application was filed on 27 September 2018, after the second determination. After service of the originating application the respondent’s lawyers, the VGSO, wrote to the applicant’s lawyer by letter dated 3 October 2018 stating –

Our client has considered the Originating Application and the orders sought therein. Our client is prepared to reconsider its determination made under s 271A.1(3)(a) of the Criminal Code (Cth) in respect of the Applicant’s application to travel overseas on the following basis:

1.    That further documents are provided to our office as soon as possible in respect to the following matters:

1.1    Documents supporting the details of the illness and prognosis of the Applicant’s Aunt in Dubai;

1.2    Documents supporting the Applicant’s ongoing relationship with Maryam Imarieh and the agreed plan that they are to be engaged; and

1.3    Documents supporting the need for the travel to be of five weeks duration;

85    In response, the applicant’s lawyer stated by letter to the VGSO dated 3 October 2018 –

As to paragraph 1.1, please find enclosed a file containing a download of WhatsApp messages exchanged between the applicant and his partner Maryam Omarieh as evidence of their relationship and pending engagement.

86    As stated at paragraph [21] above, an interlocutory hearing took place before Murphy J on 5 October 2018. Murphy J made orders including the following –

1.    The Applicant provide to the Respondent any further materials in support of his request for permission to travel overseas by 2.00 pm today.

2.    The Respondent provide a further determination of the Applicant’s request for permission to travel overseas by 5.00 pm on 6 October 2018 (Further Determination).

3.    By 5.00 pm on 7 October 2018 the Applicant must notify the Respondent whether he seeks to review the Further Determination and the grounds for the review.

87    The third determination was made the following day, 6 October 2018. The reasons for the third determination of Detective Acting Superintendent Volk stated (inter alia) –

•    In my view, the reason you have supplied as to your need to travel to Lebanon carries substantially less weight than the reason provided for your travel to Dubai. There is limited evidence of the existence of a ‘Mariam Omarieh’, her personal details or her knowledge of your offence history. Further, there is no evidence before me to suggest that she is unable to travel to Australia to meet you;

•    Whilst the fact that your parents are travelling with you and your statements that they will supervise your interactions with Mariam does reduce the risk of reoffending whilst in Lebanon, I do not believe your parents will be able to supervise you at all times during the four weeks you propose to be in Lebanon. In this regard, I note that the original offending against your neighbour in 2007 occurred at a time when you were living with your parents;

88    In my view, these paragraphs raise the four issues that are set out under paragraph 4.2 of the applicant’s particulars set out under paragraph [81] above.

89    On 7 October 2018 the applicant’s lawyer sent an email to the VGSO which stated –

Pursuant to the orders of Justice Murphy dated 5 October 2018 in proceeding VID1242/2018, the Applicant hereby notifies the Respondent that he seeks to have the Further Determination of the Chief Commissioner dated 6 October 2018 reviewed.

The intended grounds for review are as follows:

1.    The Commissioner erred by taking into account irrelevant considerations, namely the offence of attempted departure from Australia on 8 January 2018 and prior breaches of reporting obligations pursuant, to ss 5(1)(e) and 5(2)(a) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act);

2.    The decision of the Commissioner involved an error in law, pursuant to s 5(1)(f) of the ADJR Act;

3.    The Commissioner erred by making a decision that was so unreasonable that no reasonable decision-maker could have made it pursuant to ss 5(1)(e) and 5(2)(g) of the ADJR Act; and

4.    The Commissioner breached the rules of natural justice in connection with the making of the decision s 5(1)(a) of the ADJR Act.

The Applicant intends to seek to amend the Originating Application, consistent with the revised grounds outlined above, including providing revised particulars in respect of the Further Determination.

The Applicant further requests that the Respondent discover the following documents to the Applicant namely:

-    The Indictment, Crown Opening and sentencing remarks in relation to the County Court matter for which the Applicant was sentenced on 6 April 2011.

-    The “Static 99 Risk Assessment” and “Dynamic SHARP Assessment” conducted by the Sex Offenders Registry and referred to in the Respondent’s letter dated 6 October 2018.

90    To the extent that this email alleged a breach of the rules of natural justice, no details were given. Specifically, there was no claim that no opportunity had been given to respond to the matters raised in the two paragraphs of the reasons referred to under [87] above, and no request for any opportunity to provide further information in relation to those topics. A fair reading of the letter of 7 October 2018 is that any denial of natural justice that was claimed related to the indictment, opening and sentencing remarks, and to the risk assessments that were referred to in the letter, in respect of which discovery was sought.

91    The VGSO responded to the applicant’s lawyer by letter dated 8 October 2018 stating (inter alia) –

Having considered the intended grounds for review this morning, our client is prepared to reconsider the Further Determination on the following basis:

1.    That we provide you with:

1.1    The ‘Static 99 Risk Assessment’ and ‘Dynamic SHARP Assessment’ referred to in the Further Determination;

1.2    The prosecution brief summary of charges. We are instructed that the Respondent did not consider the Crown Opening or the sentencing remarks in its Further Determination of the Applicant’s application to travel overseas. The Respondent did not have before him, and did not consider, any ‘Indictment’ as referred to in your email;

2.    That you provide us with any submissions in relation to the enclosed documents by no later than 5:00 pm today; and

3.    Our client will make a second further determination in respect of the application to travel overseas as a matter of urgency and by no later than 5:00 pm on 9 October 2018.

92    In my view, the VGSO letter was responsive to the contents of the applicant’s lawyer’s email of 7 October 2018, which had not raised any concerns that are now the subject of paragraph 4.2 of the applicant’s particulars set out at paragraph [81] above.

93    Later on 8 October 2018, the applicant’s lawyer wrote to the VGSO, and addressed submissions to the two risk assessments, and the summary of charges. No reference was made in that letter to any concerns that are now the subject of paragraph 4.2 of the applicant’s particulars set out at paragraph [81] above.

94    The applicant’s lawyer affirmed an affidavit on 15 October 2018 in which he deposed to receiving on 10 October 2018 a signed statement of Maryam Omareieh, which he annexed. The signed statement gave some personal details of Ms Omareieh, such as her age of 26 years, that she lived with her parents in Tripoli, Lebanon, and stated that she and the applicant intended to become engaged, and to marry in Lebanon. The statement stated that Ms Omareieh had the intention after getting married, and after having obtained a visa, to travel to Australia, and to live with the applicant as husband and wife. A photograph was attached to the statement.

95    On the premise that s 271A.1 of the Criminal Code effects an implied conferral of power on the respondent to give permission to the applicant to leave Australia, I accept that the rules of natural justice (to use the terminology of s 5(1)(a) of the ADJR Act) regulate the exercise of that power, there being no exclusion by plain words of necessary intendment: Annetts v McCann (1990) 170 CLR 596 at 598. The content of those rules is, however, another matter. In Kioa v West (1985) 159 CLR 550 at 587 Mason J stated, in relation to an application for an entry permit under the Migration Act 1958 (Cth) –

The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.

96    Putting the applicant’s claims of bias to one side, which I shall consider below, it is unnecessary for me to consider further the content of the rules of natural justice for the purposes of the claim at paragraph 4.2 of the particulars, which is set out under paragraph [81] above, that the applicant was not given an opportunity to respond to the respondent’s concerns. This case can be decided on the basis that, at a factual level, the applicant has not made out the allegations in the particulars in paragraph 4.2. As I have indicated in paragraph [88] above, the reasons of Detective Acting Superintendent Volk raised the four issues that are set out under paragraph 4.2 of the applicant’s particulars, but prior to the fourth determination the applicant did not seek to put any further material before the respondent that addressed those issues. The subsequent production in this proceeding by the affidavit affirmed 15 October 2018 of the document appearing to be a statement of Maryam Omareieh does not support the existence of any error in the fourth determination.

97    That leaves for consideration the claims of bias alleged in paragraphs 4.3 and 4.4 of the particulars. The applicant submitted that the third and the fourth determinations were made in circumstances where a fair-minded lay observer might reasonably apprehend that there was pre-judgment. The determination that the applicant seeks to have reviewed by this proceeding is the fourth determination, and so the third determination can be put to one side. In respect of the fourth determination the applicant submitted that –

It is clear the delegate making the Fourth Determination did not apply an independent mind to the decision-making process.

98    In oral submissions, counsel for the applicant confirmed that what was being put was apprehended bias, and not actual bias. The existence of apprehended bias is a question of fact: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87. In relation to bias in the nature of pre-judgment, in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 564 [185] Hayne J stated –

Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

99    I reject the applicant’s submissions that the fourth determination was affected by bias in the nature of apprehended pre-judgment. The fourth determination, which occurred in the circumstances referred to in paragraphs [84] to [93] above, was made by Detective Acting Inspector Johnstone, who had not made any of the earlier three determinations. In the reasons for the fourth determination Detective Acting Inspector Johnstone stated (inter alia) –

In determining your application I have reviewed the further determination made on the 6th of October 2018 by Acting Superintendent Matt VOLK (the Further Determination). I have separately and independently read all of the documentation that you have supplied in support of your application as well as submissions made on your behalf by Peter Monagale Lawyers prior to 6 October 2018. That supporting documentation and the submissions are described in the Further Determination.

…

In considering the most recent letter of 8 October 2018 from Will May, along with all the information before me, I advise you that I concur with the decision set out in the Further Determination. In doing so, I concur with and rely upon the reasoning set out in the Further Determination in addition to the matters I have set out in this letter.

100    In supporting the claim that the delegate who made the fourth determination did not apply an independent mind, the applicant relied on Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518. In Huluba the applicant applied for refugee status in Australia. A delegate of the Minister refused the application, giving reasons for the decision. The first decision was the subject of an internal review which resulted in confirmation of the first decision. The applicant in Huluba alleged that the second decision-maker had not applied an independent mind to the review, but had merely repeated the assessment of the first delegate because the reasons of the second delegate repeated, word for word, substantial portions of the reasons of the first delegate. In addressing the applicant’s submissions, Beazley J stated at p 529 –

A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker. This case is different. The second decision-maker's task was to make a new determination. In doing so there would have been no breach of the rules of procedural fairness for the second decision-maker to read and consider the findings of the first decision-maker. However, procedural fairness required that she reach an independent decision in the matter.

101    Beazley J held that there had been a denial of procedural fairness by the second decision-maker, stating at p 530 –

I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process.

102    To the extent that comparison with the facts of other cases assists, I consider that the circumstances in Huluba are distinguishable from the present case. In Huluba, the decision of the second delegate purported to be independent, but a comparison with the language of the reasons supporting the first decision, which included florid language, gave rise to an inference that it was not independent. The coincidence of the language was material to the decision in Huluba, because it supported an inference that the reasons of the second delegate were not what they purported to be.

103    In this case, the delegate who made the fourth determination was entitled to have regard to, and to concur with, the reasoning supporting the third determination. That concurrence does not support the idea that the decision-maker was not relevantly independent, particularly when the delegate stated that she had separately and independently read all of the documentation, and having regard to the short time-frame within which the decision was made. It follows that I do not consider that the fair-minded lay observer might reasonably apprehend that Detective Acting Inspector Johnstone might not have applied an independent mind to the decision-making process.

104    Finally, the applicant claimed by paragraph 4.4 of the particulars set out under paragraph [81] above that the respondent was biased in his decision-making because of the applicant’s prior offending. I take this to be an allegation of apprehended bias. This ground was not developed in the applicant’s written or oral submissions as a distinct ground of apprehended bias. The applicant made submissions in support of the claims in paragraphs 2.2 and 2.3 of the particulars set out under paragraph [60] above that prior offending had impermissibly been taken into account by the respondent, and submitted that the significant weight placed upon the applicant’s attempt to depart Australia without permission in January 2018 supported the applicant’s claim that the decision was unreasonable. I have rejected those grounds, and I also reject the claim that there was any apprehended bias that was referrable to the fact of the applicant’s prior offending.

Conclusion

105    The originating application for judicial review will be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:    12 November 2018