FEDERAL COURT OF AUSTRALIA

AB v Chief Commissioner of Police [2020] FCA 14

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the name of the applicant be replaced by a pseudonym, being ‘AB’, and the name of the applicant’s wife be replaced by a pseudonym, being ‘CD’ for the purposes of the transcript, and there not for a period of 45 years be publication of any information relating to this proceeding tending to identify the applicant or his wife.

2.    Until further order, the court file in this proceeding not be available for public inspection.

3.    The applicant have leave to amend his originating application in the form filed with the Court on 9 January 2020.

4.    The application be dismissed.

5.    There be no order as to costs.

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 is booked to leave Australia shortly upon an organised overseas tour of 44 days in the company of his wife. He seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in relation to the refusal by the Chief Commissioner of Victoria Police, or his agents or delegates, to give him permission to leave Australia. The applicant requires permission because his name is entered on the Register of Sex Offenders maintained by the Chief Commissioner of Police under s 62 of the Sex Offenders Registration Act 2004 (Vic). Section 271A.1 of the Criminal Code (Cth) provides that an Australian citizen whose name is entered on a child protection offender register, and who has reporting obligations, commits an offence if the person leaves Australia. However, no offence is committed if a “competent authority” has given permission for the person to leave Australia, or if the reporting obligations of the person are suspended at the time the person leaves Australia –

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).

2    The Chief Commissioner is a competent authority for the purposes of s 271A.1: Ammouche v Chief Commissioner of Police [2018] FCA 1703; 266 FCR 430 at [11]. It was not in dispute that the Chief Commissioner may for the purpose of s 271A.1 act through agents. As to the distinction between delegation and agency, see Re Reference under s 11 of the Ombudsman Act 1976; ex parte Director General of Social Services (1979) 2 ALD 86 at 94 (AAT, Brennan P).

Preliminary issue

3    The applicant sought an order that the decision of the Chief Commissioner be quashed, and an order that he be directed to give permission to the applicant to leave Australia. Putting aside other difficulties attending an application for an order that the Chief Commissioner be directed to give permission, counsel for the Chief Commissioner raised at the commencement of the hearing a Melbourne Corporation objection to any order directed to the Chief Commissioner requiring him to make another decision, citing O’Donoghue v Ireland (2008) 234 CLR 599. The Chief Commissioner foreshadowed the need to serve notices under s 78B of the Judiciary Act 1903 (Cth) should that issue remain alive.

4    After discussion, and in view of the need for expedition of the hearing and determination of this proceeding, the parties agreed to a practical approach: the applicant would seek, principally, a declaration in relation to the legality of the Chief Commissioner’s decision, and the Chief Commissioner undertook that if such a declaration was made, then he would re-consider the applicant’s application for permission to leave Australia, and would make another decision. Consequently, the applicant was given leave to amend his originating application for judicial review so as to include a claim for declaratory relief.

5    In the circumstances, I have not considered whether there was any merit in the Chief Commissioner’s submission in reliance on O’Donoghue v Ireland, and I express no view about it.

Background

6    The applicant is in his late 60s, has been married to his wife since the early 1970s, and has four adult children. In 2012, the applicant pleaded guilty in the Magistrates’ Court of Victoria to three charges of unlawfully and indecently assaulting a girl. The offences occurred on two separate days in 1973 when the applicant was aged about 23. The applicant was convicted and placed upon a good behaviour bond, and ordered to pay $2,000 into the Court fund.

7    The victim of the applicant’s offending was 8 or 9 years of age at the time of the offending, and was his sister-in-law, that is, his wife’s sister. The child victim of the offending informed some of her family members of the offending at various times in later years. In 2007, the applicant and the victim communicated about the offending, and the applicant apologised to the victim. In 2008, the victim reported the offending to the police, subsequent to which the applicant was arrested and interviewed. During the interview, the applicant made some admissions. At the end of 2011, the applicant was charged with six offences, and at the beginning of 2012 he was charged with a seventh offence. Four of the charges were later withdrawn, and the applicant pleaded guilty to three charges of unlawful and indecent assault of a girl. The evidence does not disclose the reason for the delay in bringing the charges following the applicant’s arrest and interview.

8    In July 2007, the applicant commenced seeing a forensic psychologist with specialist expertise in assessing and treating persons who have sexually offended. The applicant was referred to the psychologist before the police became involved in 2008. The applicant attended 18 sessions with the psychologist between 2007 and 2012. In 2012, the psychologist prepared a report that was before the sentencing Magistrate. The report is lengthy and it is unnecessary fully to summarise it for present purposes. The material features of the report are as follows –

    The applicant’s developmental history was such that he matured late, was socially awkward, had an avoidant type personality, and probably lacked emotional regulation skills.

    By reason of his acceptance into his wife’s family, the applicant had access to his young victim with the power and control that the situation set up.

    The applicant’s offending was predatory, opportunistic and impulsive, and at the time, he showed no regard or empathy to the victim.

    There was no further criminal history, sexual or non-sexual, recorded or suggested, so it appeared that the applicant’s offending was situational.

    As to the risk of re-offending, the psychologist employed the “Static-99” risk assessment, which is designed to assist in the prediction of sexual recidivism amongst adult males. Using that instrument, the psychologist considered that the applicant fell into the low risk category, as the applicant had a score of 0 on a scale of 0 to 6. That score corresponded statistically with groups that have about a 6% likelihood of being convicted of a new sexual offence within five years, 7% within ten years, and 7% within 15 years “post release”. The psychologist also referred to research on the Static-99 calculations that showed that a lengthy period of living offence-free in the community, and being over the age of 60 years, reduced the recidivism rates to about 2%. The psychologist stated that given that the applicant’s sexual offending was (at the time of the report) 39 years earlier, and that there had been no further offending since 1973, he agreed that the applicant was a low risk of sexually reoffending.

    The psychologist was also of the opinion that the risk factors referrable to the applicant were all past risk factors, and that he showed no evidence of any present or future risk factors for consideration.

    The psychologist was of the opinion that the applicant’s sexual offending appeared to be a situational and opportunistic offending that was facilitated by his lack of maturity, emotional regulation, and social skills, rather than driven by any deviant sexual interests. He expressed the opinion that after his lengthy therapeutic interventions the applicant understood his motivation to offend as well as the full impact of that behaviour on his victim, and was sincerely repentant.

    The psychologist also referred to the applicant’s social supports, namely his wife and four adult children, who, although they did not condone the applicant’s behaviour, supported him. The psychologist stated that the applicant had a thorough understanding of the negative impact of sexual offending on his victim and society as well as his family, and that he was unlikely to repeat any type of future offending.

9    The seriousness of the applicant’s offending may be placed into a contemporary context. As I have noted, the offences to which the applicant pleaded guilty were three counts of unlawful and indecent assault of a girl. That was an offence under s 55 of the Crimes Act 1958 (Vic) as it stood in 1973. The summary of charges describes two acts of digital penetration by the applicant. There have been significant reforms of the law relating to sexual offences in Victoria since 1973, including those effected by the Crimes (Sexual Offences) Act 1980 (Vic), the Crimes (Sexual Offences) Act 1991 (Vic), and the Crimes Amendment (Sexual Offences) Act 2016 (Vic). Under current legislation, there is an offence of sexual penetration of a child under the age of 12, which carries a maximum sentence of 25 years imprisonment, a standard sentence of 10 years imprisonment, and in respect of which there is generally a requirement to impose a custodial order: Crimes Act 1958 (Vic), s 49A; Sentencing Act 1991 (Vic), s 5(2G).

10    In March 2018, the applicant commenced chemotherapy to treat lymphoma in his lungs, and undertook that treatment for much of 2018. The applicant’s lymphoma is now in remission. The applicant also suffers from a number of other sundry health issues that were referred to in a report by his haematologist.

11    In December 2018, the applicant and his wife booked a 44-day organised overseas tour which includes a 10-day cruise ship tour. The applicant and his wife paid a deposit at that time, and made further part-payments in May, June, and July 2019 totalling more than $35,000.

12    The applicant’s wife has taken long service leave for the purposes of the tour, and deposes that she will be with the applicant the entire time. The tour is the subject of a very detailed itinerary prepared by the applicant’s travel agent and the organiser of the tour. All 44 days of the tour are accounted for in the itinerary prepared by the tour organiser. The applicant and his wife are due to depart Australia within days, and to return in early March 2020. The applicant and his wife have taken a number of overseas trips over the years, including another organised tour in 2015.

13    In September 2019, the applicant ascertained from his case manager appointed for the purposes of his reporting obligations under the Sex Offenders Monitoring Act 2004 (Vic) that there had been a change in the law such that he was required to seek permission in order to leave Australia. The applicant did not require permission to travel in 2015, because the amendment of the Criminal Code by the insertion of s 271A.1 did not commence until 13 December 2017.

14    On 13 September 2019, the applicant completed a pro forma application to the Chief Commissioner for permission to leave Australia for the purposes of the tour that he and his wife had booked. By his application, the applicant identified the countries that he would be visiting. The applicant prepared a spreadsheet which accompanied the application which accounted for each day of the tour and identified the hotels at which he and his wife were booked to stay. As I have mentioned, included in the proposed tour is 10 nights on a cruise ship. There is also a four day trip on a train. The reason for the travel was described by the applicant in his application as –

Bucket List Dream. (Wife and I)

Recuperation (mental) from cancer (lymphoma)

15    Payment of the balance of monies payable for the tour was required by 11 October 2019, and on 10 October 2019 the applicant and his wife paid the balance of the monies due. The total sum that they have paid is over $66,000. That sum is not recoverable should the applicant and his wife now cancel the arrangements.

16    By letter dated 19 November 2019, Detective Acting Inspector Kline of Victoria Police wrote to the applicant advising that his application for permission to leave Australia had been denied, and by a separate letter dated 19 November 2019 provided the following reasons (inter alia) –

As a ‘competent authority’, the Chief Commissioner of Police has the authority to approve or deny any travel requests made by relevant persons. I have been delegated the duties, functions and powers under the Australian Passports Act 2005, the Criminal Code and the Foreign Passports Act 2005 to assess your application for approval to travel to [Country A], [Country B], [Country C], [Country D] and [another place] for approximately 6 weeks from 19th January 2020 to 4th March 2020.

In deciding whether or not to grant the approval you seek, I must take into account the purpose of s 271A.1 of the Criminal Code 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.

…

I have placed significant weight on your sexual offending history for which you were found guilty, convicted and sentenced at the Melbourne Magistrates Court on 11 September 2013.

You were subsequently placed on the Sex Offenders Register for a period of 15 years. Your sexual offences were committed upon a 7-year-old girl over an extended period between 1970 and 1971. Based on your conviction for those offences, I determine that there is an appreciable risk of you offending against children in future and have taken that risk into account with my determination.

I have placed less weight on the reason you have provided for travel as ‘Bucket list dream and Recuperation (mental) from cancer (lymphoma).’

I have placed weight on the intended destination countries and the duration of your intended stays within those countries. In my view, the child protection framework in [Country A], [Country B], [Country C], [Country D] affords children less protection than it does in Australia. All of these destinations are classified as ‘Tier 2’ countries within the meaning of the Trafficking Victims Protection Act of 2000 (US). I accept [Country A] is classified as Tier 1, whilst [the other place] is not classified under this framework.

Taking all the above matters into consideration, your risk of offending against children during a period of 44 days out of Australia outweighs the reason you have provided for your intended travel. While the risk may not be high, the risk is still appreciable and I consider it outweighs the reason for your intended travel. It is therefore my decision that your application for approval for International Travel is denied.

17    The two letters to the applicant from Detective Acting Inspector Kline were emailed to him by Detective Sergeant Meagher of Victoria Police on 21 November 2019. On 22 November 2019, the applicant responded to the email of Detective Sergeant Meagher inquiring whether, if he and his wife changed their travel to include only two of the countries that were identified, it was likely to be approved. By email later that morning Detective Sergeant Meagher responded as follows –

I understand your frustration with this.

The appreciable risk must be taken into account when assessing suitability to undertake International Travel.

Unfortunately you have been unable to provide a compelling reason for the travel in this instance.

Based on this it is unlikely that your travel would be approved even with the suggested change.

18    There were some factual errors in the reasons of Detective Acting Inspector Kline, including that the offences of which the applicant was convicted occurred on two separate days in 1973, and not “over an extended period between 1970 and 1971”. The applicant drew these errors to the attention of Detective Sergeant Meagher by a second email of 22 November 2019 in which he also provided some further information, and submitted that he had a “compelling reason” for travel. The applicant requested reconsideration of his application, pleading –

I have undertaken extensive/ numerous psychology sessions through out 2006 - 2012 with a forensic psychologist Ross Wall and he saw no reason to continue sessions as he deemed me ultra-low risk of reoffending.

I am totally totally remorseful for my actions of 45 years ago. I live with the consequences of my actions on my family every day.

I have endeavoured to be the best person I could be.

19    Detective Sergeant Meagher responded as follows –

As stated previously I understand your frustration.

Victoria Police have assessed your application and have come to the decision to deny you permission to undertake International Travel on this occasion.

I encourage you to obtain independent legal advice should you wish to do so.

20    On 9 December 2019, the applicant commenced this proceeding. The application is supported by three affidavits of the applicant, an affidavit of his wife, and two affidavits of the applicant’s solicitor. The applicant also tendered a copy of the Victims of Trafficking and Violence Protection Act of 2000, which is an Act of the US Congress, to which it shall be necessary to refer later, together with a report of the US State Department of June 2019 relating to Trafficking in Persons, and a US Congressional Research Service Report dated 30 October 2019 relating to the State Department’s Trafficking in Persons Report.

21    The application was initially returnable on 12 December 2019. On that occasion, the Chief Commissioner accepted that in light of the additional material that had been produced by the applicant, a new decision ought to be made. The Court adjourned the application for judicial review to a date to be fixed.

22    On 20 December 2019, a different officer, Detective Inspector Volk of Victoria Police, determined again to refuse permission to the applicant to leave Australia for the purposes of his proposed travel with his wife. Detective Inspector Volk provided written reasons for his decision. He stated that he had decided to undertake a fresh assessment of the application in light of the additional material that had been received by the Chief Commissioner, and stated that he had undertaken an independent review of the material, both existing and new, and that he had not been influenced by the earlier decision. The material referred to included the original application dated 13 September 2019, and the affidavit material filed on behalf of the applicant in this proceeding up to that time. The reasons of Detective Inspector Volk for refusing permission were as follows –

Background

…

5.    My decision about whether or not to grant the approval you seek is framed by the purposes of s 271A.1 of the Criminal Code which include:

i.    Sex offenders may pose a risk to vulnerable children if they travel outside Australia;

ii.    That risk may manifest to a higher degree in countries that do not have monitoring and reporting systems in place in relation to sex offenders that are as stringent as the systems in Australia; and

iii.    Offending that is sufficient to require an offender to be placed on a relevant register is indicative of the risk that the legislation seeks to address.

…

Relevant considerations

7.    In deciding on your application, I consider the following points to be particularly relevant to my decision:

a.    I have placed weight on your sexual offending history for which you were found guilty, convicted and sentenced at the Melbourne Magistrates Court on [date] 2012. The reasons I have placed weight on this factor are:

i.    Your sexual offences were committed upon an 8 - 9-year-old girl on two separate occasions in 1973. Due to the seriousness of these offences you were placed on the Sex Offenders Register for a period of 15 years. The fact of your conviction means that I conclude that there is a risk that you may offend against children in the future.

ii.    The amount of weight I have placed on this factor is reduced (but not eliminated) by the fact that your sexual offending occurred approximately 46 years ago and that you have not re-offended since.

iii.    I also reduce the weight that I place on this factor because your wife would be accompanying you on the proposed trip and is aware of your offending history. I accept this mitigates the risk of you offending whilst on the trip. However, I do not accept this factor completely mitigates the risk as I cannot be sure she will scrutinise your movements 24 hours a day notwithstanding her expressed intention to do so.

iv.    I have also considered the statement from Peter Towner that your “overseas travel [is] not opposed. Nil child contact” and other comments. However, this statement does not change my assessment of the material given in support of your application. In particular, I do not know the basis upon which Mr Towner says you will have “nil child contact”.

v.    Based upon your conviction for the offences (which Parliament has determined are sufficiently serious that you be placed on the Sex Offenders Register), I consider that there is a risk of sexual offending against children in the future.

b.    I have placed weight on the intended destination countries identified in your application. The child protection framework in [Country B], [Country C], and [Country D] affords children less protection than it does in Australia. All of these destinations are classified as ‘Tier 2’ countries within the meaning of the Trafficking Victims Protection Act of 2000 (US). I accept [Country A] is classified as Tier 1, whilst [another place] is not classified under this framework. The risk that you might reoffend is exacerbated in countries where the child protection framework is substantially weaker than that of Australia.

c.    I have placed weight on the duration of your intended stays within those countries and whilst on the cruise ship. The risk of sexually offending against children in overseas countries is increased by virtue of being away from Australia, and therefore the Victorian sex offender management scheme, for an extended period (44 days). One significant matter relevant to this consideration is that there is no requirement to comply with your reporting obligations either on the cruise ship or within any of the overseas countries identified within your itinerary. Because you will be away from Australia and outside the associated registered sex offender management schemes within Australia, I conclude that the duration of your proposed travel increases the risk of you sexually re-offending against children.

d.    In terms of the [cruise] aspect of your trip, I understand that this involves an approximately 10-day period on a cruise ship, commencing 26 January 2020. You have placed before me no evidence that no children will be on this cruise ship. I am therefore unable to conclude that you will not have contact with children during the cruise or that, if you were to have contact with children, any risk of you reoffending will be sufficiently mitigated by the presence of your wife.

e.    I do not place much weight on the reason you have provided for travel as ‘Bucket list dream and Recuperation (mental) from cancer (lymphoma).’ This is due to the protective purpose of s 271 A.1 of the Criminal Code Act 1995 which I have outlined above. However worthy your intended trip might be, I need to bear steadily in mind the protective purpose of the legislation. Further, in terms of recuperation from your illness, I am not satisfied this could not be achieved within the borders of Australia. The ‘bucket list dream’ aspect is not persuasive in my considerations due to it being an activity that you would like to undertake as opposed to there being a demonstrated need or imperative aspect to undertake the travel as an essential activity.

f.    I have considered the aspect of the monies you have paid for the proposed travel which are listed as $66,725.30. I place little weight on this aspect, notwithstanding that I accept you will likely lose this money should your application be denied. I do so primarily because it is not relevant to the protective purpose of the legislation and the requirement that you obtain approval before travelling is a matter of publicised and generally applicable law.

8.    When turning my mind to the principal issue with which I must grapple, being your risk of sexually re-offending against children, I take all of the aforementioned issues into consideration. I have also read the report of psychologist Ross Wall, dated 9 August 2012. Mr Wall concludes that you have a “low ongoing risk for sexual re-offending.” I accept the views of Mr Wall and that you have a low risk of sexual re-offending. Nonetheless there remains a risk, albeit it is low. I have made my decision after balancing the (low) risk that is present against factors that might be said to further mitigate or diminish that risk. The risk (low as it is) of you sexually re-offending is in my view of increased significance as a result of you intending to visit countries whose child protection framework is weaker than that of Australia. The purpose of the relevant Commonwealth legislation is to prevent travel which poses a real risk to vulnerable children.

Conclusion

9.    Taking all the above matters into consideration, your risk of offending against children during a period of 44 days out of Australia (notwithstanding the factors that mitigate that risk, such as the length of time since you offended and the presence of your wife travelling with you) taken together with the weakness of the relevant safety frameworks operating in the places that you intend to visit, outweighs the reason you have provided for your intended travel. While, after taking the mitigating factors into account I accept that the risk may not be high, the risk is still, in my judgement, appreciable and I consider that this risk outweighs the reason for your proposed travel and the fact that you might lose the money that you have already spent. It is therefore my decision that your application for approval for International Travel is denied.

23    Following the second refusal, the applicant approached the Court and by orders made on 24 December 2019 he was granted an expedited hearing of the application for final relief, and was given leave to file an amended originating application for judicial review so as to bring within it a challenge to the second decision.

24    For completeness, I record that I received into evidence without objection an affidavit of the applicant that annexed a medical report of his treating general practitioner dated 6 January 2020. Although the report does not say so expressly, I infer from its contents that the medical practitioner has been treating the applicant for some years. The medical practitioner confirms that the applicant underwent six cycles of chemotherapy in 2018, and states that such treatment involves considerable fatigue with which is associated a reduction in libido, and that these symptoms have persisted since the treatment. The applicant’s treating medical practitioner concludes –

My conclusion from this and also taking into account that on my understanding it is over 40 years since the offence with no relapse in offending during that time and complete compliance with the law surrounding his offence, the fact that he has since undergone serious medical treatment with a significant change in his general health, all would lead me to conclude that there is effectively no chance that he would re-offend in future.

25    The above opinion was not before the Chief Commissioner when making either of his decisions. It may be material should the Chief Commissioner have occasion to reconsider the applicant’s application for permission to leave Australia.

The legislation

26    The express purposes of the Sex Offenders Registration Act are specified in s 1 of the Act and include –

to require certain offenders who commit sexual offences to keep Police informed of their whereabouts and other personal details for a period of time –

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

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

27    These purposes are protective, and not punitive: WBM v Chief Commissioner of Police (2012) 43 VR 446 at 44 (Warren CJ). Each of the three offences for which the applicant was sentenced on 12 September 2012 was a “Class 2 offence” for the purposes of the Act. As such, the applicant became subject to the reporting requirements of the Act and to the restrictions imposed by the Act in relation to child-related employment. Those reporting requirements include the initial reporting of the personal details required by s 14, together with ongoing reporting obligations required by s 16 to s 21A. The parties proceeded on the basis that the relevant reporting period applicable to the applicant under s 34 of the Act was 15 years, commencing from 12 September 2012, being the date on which the applicant was sentenced for the offences.

28    The applicant’s reporting obligations are imposed directly by the terms of the legislation: they were not imposed by any order made by the sentencing court. The reporting obligations are extensive. The personal details that a registrable offender is required to report include –

    The address of each of the premises at which he or she generally resides.

    Details that are sufficient to identify any place where the person sleeps on a regular basis.

    Details in respect of each child with whom he or she has contact.

29    For the purposes of s 14 of the Act, a registrable offender sleeps at a place on a regular basis if the person sleeps at that place more than once in any period of 14 days. In relation to contact with a child, s 4A of the Act provides –

4A    When does a registrable offender have contact with a child?

For the purposes of this Act, a registrable offender has contact with a child if the offender—

   (a)    resides with the child; or

(b)    stays overnight at a place of residence where the child resides or is staying overnight; or

   (c)    cares for, or supervises, the child; or

(d)    provides the offender’s contact details to the child or receives the child’s contact details from the child; or

(e)    engages in any of the following with the child for the purpose of forming a personal relationship with the child —

   (i)    any form of actual physical contact;

(ii)    any form of oral communication (whether face to face, by telephone or by use of the internet);

(iii)    any form of written communication (whether electronic or otherwise).

30    The ongoing reporting obligations under the Act include a requirement under s 16 that a registrable offender report his or her personal details to the Chief Commissioner of Police annually, and a requirement under s 17 of the Act that a registrable offender report any change in his or her personal details within seven days after that change occurring. The reporting obligations of a registrable offender include an obligation under s 18 to report intended travel for two or more consecutive days elsewhere in Australia, and 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.

(3)    If circumstances arise making it impracticable for a registrable offender to make the report 7 days before he or she leaves, it is sufficient compliance with subsection (2) if the registrable offender reports the required information to the Chief Commissioner of Police at least 24 hours before leaving Victoria.

31    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.

32    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.

33    Section 46 of the Sex Offenders Registration Act creates offences for failing to comply with the reporting obligations, and s 47 of the Act creates offences for furnishing false or misleading information.

34    One of the two circumstances in which s 271A.1(2) of the Criminal Code does not apply is where the person’s reporting obligations have been suspended. Under the provisions of Division 6 of the Sex Offenders Registration Act, the reporting obligations of a registrable offender may be suspended. Under s 39 of the Act, the reporting obligations may be suspended by an order of a court upon the application of a registrable offender where the reporting requirements are for the offender’s lifetime and 15 years have passed. Under s 39A of the Act, the Chief Commissioner may apply to the sentencing court for an order suspending the reporting obligations. And under s 45A of the Act, the Chief Commissioner may suspend the registerable offender’s reporting obligations –

45A    Chief Commissioner of Police may suspend reporting obligations for period not exceeding 5 years in certain circumstances

(1)    Subject to subsection (2), the Chief Commissioner of Police, by written notice served on a registrable offender, may suspend the registrable offender’s reporting obligations for a period (not exceeding 5 years) specified in the notice.

(2)    The Chief Commissioner of Police must not act under subsection (1) unless satisfied that the registrable offender does not pose a risk or poses a low risk to the sexual safety of one or more persons or of the community.

(3)    In deciding whether to act under subsection (1), the Chief Commissioner of Police must take into account—

(a)    the seriousness of the registrable offender’s registrable offences and corresponding registrable offences; and

    (b)    the period of time since those offences were committed; and

(c)    the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and

    (d)    the registrable offender’s present age; and

    (e)    the registrable offender’s total criminal record; and

(f)    the extent to which the registrable offender has complied with their reporting obligations; and

(g)    the registrable offender’s physical or cognitive capacity to comply with their reporting obligations; and

(h)    any other matter that the Chief Commissioner of Police considers appropriate.

   (4)    The Chief Commissioner of Police—

(a)    may suspend a registrable offender’s reporting obligations more than once; and

    (b)    may cancel a suspension under this section at any time.

(5)    A suspension under this section is taken to be cancelled if during the period of the suspension an order is made under section 40 in respect of the registrable offender.

35    Section 271A.1 of the Criminal Code was inserted by the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth). That Act also made a number of amendments to the Australian Passports Act 2005 (Cth) which included the insertion of s 12(1A) and s 22AA which in combination require that the Minister must cancel the passport of a reportable offender upon a request by a “competent authority”.

36    Extrinsic material that is indicative of the legislative purpose of the amending Act was referred to in Mentink v Commissioner for Queensland Police [2018] QSC 151; 353 FLR 64, Zaharis v The Commissioner of Police [2018] SASC 143; 131 SASR 576; 337 FLR 70, and Ammouche. 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 at [19]-[24], and a passage from the second reading speech of the Minister in the House of Representatives was set out at [25]. The explanatory memorandum stated the purpose of the amending legislation as follows –

The purpose of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Bill) is to prevent Australians listed on a State or Territory child sex offender register with reporting obligations (a reportable offender) from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where the law enforcement framework is weaker and their activities are not monitored.

37    Amongst other things, the explanatory memorandum included a statement on compatibility with human rights which provided –

6.    Consistent with the [Convention on the Rights of the Child [1991] ATS 4 (CRC)], this Bill gives priority to the best interests of the child through amendments to the domestic legal framework applicable to reportable offenders. The legislation is intended specifically to protect vulnerable children overseas from sexual exploitation or sexual abuse by reportable offenders due to their ongoing risk to children.

7.    While reportable offenders are in Australia they are monitored and subject to the robust legal framework Australia has for child sex offences. If allowed to travel overseas these offenders may evade their reporting obligations and supervision. There is a high risk of reportable offenders re-offending in countries where the legal framework is weaker, their activities are not monitored and child sexual exploitation is rampant.

8.    Article 34 of the CRC provides that States Parties undertake to protect children from all forms of sexual exploitation and sexual abuse. In particular, States must take all appropriate national, bilateral and multilateral measures to prevent a child from engaging in any unlawful sexual activity. States are also required to protect children from exploitation, from prostitution or other unlawful sexual practices, and from their use in pornographic performances and materials.

9.    The measures in the Bill will provide an effective means to sharply reduce the opportunity for reportable offenders to engage in the sexual exploitation and sexual abuse of children overseas.

10.    Child sexual exploitation and abuse are predatory crimes, in which offenders prey on the most vulnerable in society. Through these measures Australia will take a leading role internationally to advance the rights of the child enshrined in the CRC and [the Optional Protocol to the Convention on the Rights of the Child]. These measures are a signal to Australians as well as to other countries that Australia is committed to protecting children around the world from sexual exploitation and abuse.

38    In Mentink, Mullins J also referred to paragraphs 15, 16, and 32 of the statement of compatibility and at [24] cited the following paragraph from Schedule 1 of the explanatory memorandum relating to the insertion of s 12(1A) in the Australian Passports Act referred to at [35] above –

The amendment will not amount to a permanent travel ban for persons who are listed on a relevant child sex offender register. Child sex offenders who are listed on such a register will only be subject to passport restrictions for the period that they are subject to reporting obligations under the register. Further, if there are good reasons for making an exception, a competent authority will be able to permit a reportable offender to travel on a case by case basis.

39    In the second reading speech in the House of Representatives on 14 June 2017 the Foreign Minister stated –

This bill responds to community concern about Australian child sex offenders travelling overseas to sexually abuse vulnerable children in countries where the law enforcement framework is weaker and their activities are not monitored.

This concern is justified. In 2016, more than 770 Australian registered child sex offenders travelled overseas. Half of them were registered by state and territory police as being medium to high risk offenders and a third of them violated an obligation to notify police of their intended travel.

These offenders have a high propensity to re-offend in countries where they are not monitored and where child sexual exploitation is rampant. Registered child sex offenders are subject to reporting obligations in Australia specifically because of their ongoing risk to children.

Existing measures are clearly ineffective.

This bill will address current deficiencies and will prevent Australian registered child sex offenders with reporting obligations from travelling overseas by:

  (1)    denying offenders a passport; and

(2)    making it an offence for offenders to travel overseas without permission from authorities.

The passport measures introduced under this bill will apply to the approximately 20,000 registered child sex offenders with reporting obligations in Australia. It will also apply to future child sex offenders registered annually. … If there are good reasons, offenders with reporting obligations will be able to obtain permission from authorities to travel overseas.

40    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.

41    As stated in Ammouche at [58], s 271A.1(3) of the Criminal Code contains no express criteria by reference to which permission 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 s 271A.1 of the Code, is relevant to its objects. In that regard, it is permissible to have regard to the legislative context, including extrinsic material as an aid to the identification of legislative purpose: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [60]-[61] (O’Callaghan and Wheelahan JJ).

42    In Ammouche, the following passage from R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 was cited, which concerned a statutory discretion to consent to the transfer of a broadcasting licence, where the Court (Stephen, Mason, Murphy, Aickin and Wilson JJ) stated at 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”.

43    See also, Price v Elder [2000] FCA 133; 97 FCR 218 at [13], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40.

44    As to the legislative purpose of s 271A.1 of the Criminal Code, while its purposes may be taken to include the prevention of child sex tourism and other forms of travel posing a real risk to vulnerable children, neither the text of the legislation nor 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: Ammouche at [61]. While the Victorian legislation treats the fact of offending and the class of offending as being indicative of risk, those matters are obviously not determinative of risk, and nor do they speak to the precise nature of the risk in individual circumstances. The powers to suspend reporting requirements in Division 6 of Part 3, and the power to make specific prohibition orders in Part 4A of the Victorian Act are statutory recognition that the nature and extent of the risk posed in individual cases will vary. Other legislation, such as the Serious Offenders Act 2018 (Vic) which provides for court-ordered supervision of serious sex offenders, is further recognition that there will be variation in circumstances and risk.

45    In Ammouche, it was held that the Chief Commissioner has a broad discretion under s 271A.1 of the Criminal Code that is to be exercised consistently with the purposes of both the relevant Commonwealth and State legislation, and the following guidance of Doyle J in Zaharis at [95] was endorsed –

… 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.

46    In Zaharis at [108], Doyle J referred again to the requirement to assess applications on a case-by-case basis in terms with which I respectfully agree –

While it is true that the legislation is not intended to foreclose the possibility of travel by registered persons even for purely holiday or recreational purposes, it is also true that the legislation contemplates the potential for significant restrictions in this regard. While this might operate punitively in respect of some registered persons, that was the intention of the legislature. Again, it all depends on a case-by-case assessment of the risk presented by the particular person seeking permission and the location and circumstances of their proposed travel.

47    I also respectfully agree with Doyle J in Zaharis at [88] that the proper assessment on a case-by-case basis requires some form of specific risk assessment, which goes beyond mere reference to the inherent risk –

I accept that a proper exercise of the Commissioner’s power to grant permission to travel outside of Australia does require the more specific form of risk assessment contemplated by the plaintiff’s submission. It would not be sufficient for the Commissioner (or his delegate) to proceed by reference to the inherent risk that exists in respect of any person whose name is on the Register, without regard to the circumstances of the particular person in question and the nature of their travel plans.

48    Of course, the extent of the specific form of risk assessment that is reasonable will vary from case to case. There would be a danger that, if a specific form of risk assessment is not undertaken by reference to the circumstances of the particular person, the mere fact that the person is a registrable offender might be given disproportionate weight. The majority in Hughes v The Queen [2017] HCA 20; 263 CLR 338 referred at [17] to some of the dangers of tendency reasoning in the context of the admission in a criminal proceeding of evidence relating to past events, and to the danger of an emotional response to tendency evidence. See also the dissenting reasons of Gageler J at [70]-[72] and the dissenting reasons of Nettle J at [154] and [169]. However, it is important to recognise that the evaluation of prospective risk in determining whether to exercise statutory powers for protective purposes is different from the treatment of evidence in a curial context to prove past events, and that it will usually be necessary for the purposes of the evaluation of risk to engage in rational tendency reasoning. Nonetheless, there are particular difficulties in evaluating a risk of re-offending that were referred to by Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice (2008) 21 VR 526 in the context of the evaluation of expert opinion for the purposes of an application for a supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic) (since repealed), where there was a statutory onus on the applicant for the order to show that it was more probable than not that a relevant offence would be committed if the offender was not made subject to a supervision order. Their Honours stated at [16]-[17] –

Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult. The Monitoring Act recognises that the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion. As the report in the present case illustrates, the making of such a prediction in a particular case requires expertise in observation and assessment of those who commit offences of the particular type, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments.

One thing is clear. Judges, including experienced criminal judges, have no such expertise. Neither the conduct of criminal trials nor the sentencing of offenders requires judges to have, or equips them with, the ability to assess the likelihood that an offender will re-offend. We express this view fully recognising that a sentencing judge has to consider the need for specific deterrence and the prospects for rehabilitation; that bail decisions often involve predictive considerations; and that assessing dangerousness is the basis of decisions under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to impose or vary supervision orders in respect of persons found not guilty of criminal offending by reason of mental impairment.

(Citations omitted)

49    Section 271A.1 of the Criminal Code addresses the management of risk outside Australia by seeking to prevent all Australian citizens who are registrable offenders and who are subject to reporting requirements from leaving Australia, subject to the implied conferral of power on a competent authority to give permission on a case-by-case basis. As was remarked in Ammouche at [74], the implied conferral of the decision-making function on a competent authority such as the Chief Commissioner 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. This was recognised by [10] of Schedule 1 to the explanatory memorandum to the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill –

It is appropriate that the competent authority makes these decisions as they have the expertise and background knowledge of the offender to best assess the offender’s risk and circumstances for overseas travel.

50    Within the bounds of legal reasonableness, the identification of matters amongst permissible considerations that are material to the Chief Commissioner’s decision whether to consent to the applicant leaving Australia, the weight to be given to those considerations, and the balancing of competing considerations, are for the Chief Commissioner to determine.

The applicant’s grounds of review

51    Under s 3(2)(b) of the ADJR Act, a reference to the making of a decision includes a reference to refusing to give permission. The applicant is a person who is aggrieved by the Chief Commissioner’s refusal to give permission to him to leave Australia for the purposes of his planned travel, and is therefore aggrieved by a decision for the purposes of the Act.

52    The applicant’s grounds of review and written submissions were expansive, and were organised by reference to the grounds of review under s 5 of the ADJR Act upon which the applicant relied. Those grounds of review were as follows –

    s 5(1)(a) – breach of the rules of natural justice;

    s 5(1)(b) – procedures required by law to be observed were not observed;

    s 5(1)(e) – the making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made –

    s 5(2)(a) – the Chief Commissioner took account of irrelevant considerations;

    s 5(2)(b) – the Chief Commissioner failed to take account of relevant considerations;

    s 5(2)(c) – the discretionary power was exercised for a purpose other than a purpose for which the power was conferred;

    s 5(2)(f) – the power was exercised in accordance with a rule or policy without regard to the merits of the particular case;

    s 5(2)(g) – the exercise of power was so unreasonable that no reasonable person could have so exercised the power;

    s 5(1)(f) – the decisions involved error of law, whether or not the error appears on the record of the decisions;

    s 5(1)(h) – there was no evidence or other material to justify making the decisions; and

    s 5(1)(j) – the decisions were otherwise contrary to law.

53    There was some repetition and overlap of the matters that were advanced to support the statutory grounds of review. Some grounds of review were not addressed in submissions. I shall summarise the main propositions advanced by the applicant in the course of my consideration of them. I shall consider only those grounds that were the subject of written and oral submissions on behalf of the applicant. During the course of the hearing counsel for the applicant stated that he did not rely on several grounds alleging bad faith by the Chief Commissioner, and I shall treat those grounds as having been abandoned.

Consideration

Preliminary observation

54    The Court has no power to review the merits of the Chief Commissioner’s refusal to give permission to the applicant to leave Australia: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J). Whether permission should be given, or not, was a matter for the Chief Commissioner or his delegates or agents to determine. The Court’s powers under the ADJR Act are supervisory in nature. The Court is concerned with the legality of the decision of the Chief Commissioner. If no ground under the ADJR Act is made out, then the Court has no power to interfere: see Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 11 (Sheppard J).

The impugned decisions

55    The applicant challenged both decisions refusing permission to leave Australia: (1) the decision of 21 November 2019; and (2) the subsequent decision of 20 December 2019.

56    Section 33(1) of the Acts Interpretation Act 1901 (Cth) has the effect that the power impliedly conferred by s 271A.1 of the Criminal Code may be exercised from time to time as the occasion requires. The Chief Commissioner did not seek to defend the first decision, and submitted that the second decision is the operative decision because it is a fresh decision on the merits in response to the new information that was furnished by the applicant. In my view, the second decision is a supervening event, and the consideration of any question whether the first decision should be quashed would be inutile: see, Coco v Commissioner of Taxation (No 2) (1993) 43 FCR 140 at 143 (Lockhart J). During argument, counsel for the applicant accepted that the relevant decision was the second decision, and I shall therefore confine my consideration to the second decision.

The second decision

57    I have set out the material parts of the reasons for the second decision at [22] above. In summary –

(1)    The Chief Commissioner placed weight on the applicant’s sexual offending history. By the fact of the conviction for the offences, the Chief Commissioner concluded that there was a risk that the applicant may offend against children in the future. The Chief Commissioner also accepted the opinion of the applicant’s psychologist, which was the only expert opinion before the Chief Commissioner on the question of risk, that the applicant had a low ongoing risk of sexual re-offending, and the Chief Commissioner concluded that there remained an appreciable risk, albeit low.

(2)    As to factors mitigating the risk, the Chief Commissioner took account of, and gave weight to –

(a)    the fact that the sexual offending occurred 46 years ago; and

(b)    the applicant’s wife would be accompanying him on the proposed trip and was aware of his past offending.

However, the Chief Commissioner did not consider these factors eliminated the risk.

(3)    The Chief Commissioner did not consider that the statement by the applicant’s case manager, Senior Constable Towner, that the overseas travel was not opposed, affected his assessment, and stated that he did not understand the basis on which Senior Constable Towner had stated that there would be “nil child contact”.

(4)    There were three other matters to which the Chief Commissioner gave weight in a way adverse to the applicant –

(a)    three of the countries which the applicant proposed to visit afforded children less protection than Australia, and were classed as “Tier 2” countries for the purposes of the Trafficking Victims Protection Act of 2000 (US);

(b)    the applicant would be away from Australia for a period of 44 days, and therefore outside the sex offender management schemes within Australia for that period; and

(c)    in relation to the 10-day cruise, it was not known if there would be any children on the vessel.

(5)    The protective purposes of the legislation outweighed –

(a)    the reasons that the applicant had given for the travel; and

(b)    the likelihood that the applicant would lose the monies that had been paid on account of the tour.

In respect of both the above matters, the Chief Commissioner gave them little weight.

Consideration of the applicant’s grounds

(1)    Breach of the rules of natural justice – ADJR Act, s 5(1)(a)

58    The applicant submitted that there was a breach of the rules of natural justice in five respects.

(a)    The applicant was not afforded the opportunity to respond to the Chief Commissioner’s concerns in relation to the comments of the case manager, Senior Constable Towner, and the passengers who would be on board the vessel for the cruise.

59    In considering the applicant’s request for permission to leave Australia for the purposes of s 271A.1 of the Criminal Code, the Chief Commissioner was required to accord the applicant procedural fairness: Ammouche at [95], citing Annetts v McCann (1990) 170 CLR 596 at 598. However, I express the tentative view that the content of those rules may be informed and shaped by the nature of the discretionary power, and its legal consequences. As I have indicated, the implied conferral of power to give permission to leave Australia is one that may be exercised from time to time. A refusal of permission does not have the legal consequence that the Commissioner may not re-consider the decision, as the decisions in Ammouche, Kaufman v Chief Commissioner of Police [2019] FCA 1996, and this case illustrate. Subject to the particular circumstances, a denial of procedural fairness might occur if the Chief Commissioner declined to reconsider a refusal of permission in light of answering material or new information.

60    In this case, I shall proceed on the basis that the applicable principles of procedural fairness are the common law principles referred to by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] –

Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

61    Their Honours cited Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591-592 in which the Full Court (Northrop, Miles and French JJ) stated –

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

62    In relation to any suggested obligation at common law of an administrative decision-maker to enquire, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [24] –

Mason CJ and Deane J in [Minister for Immigration and Ethnic Affairs v Teoh] also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.

(emphasis added, citation omitted)

63    The opinion of Senior Constable Towner was not adverse material that the Chief Commissioner was required to put to the applicant for comment before making the second decision. At [13] of his affidavit dated 9 December 2019, and prior to the second decision, the applicant deposed to the fact that his case manager wrote that he did not oppose the application, and that there would be no child contact. That affidavit formed part of the material that was before the Chief Commissioner when making the second decision. The Chief Commissioner was not required to give notice to the applicant, or invite comment on his thought processes in response to that material. Nor was the Chief Commissioner required to give the applicant notice of his view that it was unknown whether there might be children on board the vessel for the 10-day cruise and invite comment: Commissioner for ACT Revenue v Alphaone Pty Ltd at 591. The question of the potential for contact with children was beyond doubt an obvious issue for the Chief Commissioner’s consideration, and that issue in general terms had been foreshadowed to the applicant by the Chief Commissioner’s reasons for the first decision dated 19 November 2019.

(b)    The Chief Commissioner did not provide the applicant with the criteria that he would employ in making his decision with the consequence that the applicant was not given the opportunity to respond to the Chief Commissioner’s concerns. The Chief Commissioner did not actively seek, or make any requests for the information he required to make his decision.

64    The applicant submitted that the Chief Commissioner was required to inform him of the criteria that the Chief Commissioner required the applicant to meet, and of any concerns held by the Chief Commissioner, and that in failing to do so, the Chief Commissioner did not act justly or honestly. In support of this submission, the applicant cited Local Government Board v Arlidge [1915] AC 120 at 138 within the speech of Lord Shaw. I have studied page 138, and I do not find any support for the applicant’s submission. One may accept that the principles referred to by French CJ and Kiefel J in SZGUR referred to at [60] above were applicable. If it were not already apparent, the Chief Commissioner’s reasons for the first decision, extracts from which are set out at [16] above, gave the applicant ample notice of the issues for consideration.

65    The second part of the applicant’s submission referred to above was not developed by the applicant.

(c)    The Chief Commissioner had pre-judged the applicant’s application for permission to travel based upon the applicant’s reasons for travel.

66    I take this to be an allegation of apprehended bias, rather than actual bias. The existence of apprehended bias is a question of fact: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87. The applicant relied on the statement of Detective Sergeant Meagher which is set out at [17] above as supporting his claim. The evidence does not support an inference that that Detective Sergeant Meagher’s observations in his email are to be attributed to the second decision-maker, Detective Inspector Volk. Moreover, the evidence does not support a finding that there was any reason for the fair-minded lay observer to think that the Chief Commissioner or Detective Inspector Volk might not give the application fresh consideration, and the contents of the reasons for the second decision indicate to the contrary.

(d)    The applicant was required to commence this proceeding before the Chief Commissioner was persuaded to reconsider the first decision.

67    There is nothing in this submission. On the assumption favourable to the applicant that there was substance in the submission, it does not support any ground for impugning the second decision, as I am not persuaded that it is material.

(e)    The Chief Commissioner’s reasons for the decision were vague in that the weight (variously described) given by the Chief Commissioner to each factor that he considered was either unproportionate [sic], unreasonable in the circumstances, or could not be adequately determined in accordance with the Chief Commissioner’s criteria to grant permission.

68    There is no common law obligation on an administrative decision-maker to give reasons for a decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. Here, the Commissioner’s reasons for the second decision were volunteered, and were not provided pursuant to any statutory obligation to do so: cf, Dornan v Riordan (1990) 24 FCR 564; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480. Even on the assumption that reasons were required, there is no express or implied statutory standard against which the sufficiency of the reasons is to be measured: cf, ADJR Act, s 13(1); Acts Interpretation Act, s 25D. Nonetheless, I have summarised the Chief Commissioner’s reasons at [57] above, and I consider that the reasons were adequate to expose the Chief Commissioner’s path of reasoning, and to demonstrate the way in which the Chief Commissioner discharged the statutory power impliedly conferred upon him by s 271A.1 of the Criminal Code, and were adequate to enable the Court to determine whether or not the decision was affected by legal error: Wingfoot at [49], [54]-[55] (French CJ, Crennan, Bell, Gageler and Keane JJ). The terms of the Chief Commissioner’s reasons for the second decision do not give rise to any failure to accord natural justice to the applicant.

(2)    Procedures required by law to be observed were not followed by the Chief Commissioner – ADJR Act, s 5(1)(b).

69    There were five respects in which the applicant submitted that procedures required by law were not followed.

(a)    The Chief Commissioner unreasonably judged and or misinterpreted the purpose of s 271A.1 of the Criminal Code.

70    The Chief Commissioner at [5] of the reasons for the second decision set out in inclusive terms the purposes of s 271A.1 of the Criminal Code (see [22] above). Those purposes are supported by the extrinsic material to which I have referred at [36] to [40] above, and by the guidance in Ammouche at [61]. Bearing in mind the nature and purpose of the statement of reasons, there was no relevant error by the Chief Commissioner in his account of the purposes of s 271A.1.

(b)    The Chief Commissioner erred in considering and relying upon foreign Acts which have no bearing to the applicant’s personal circumstances.

71    At [7(b)] of his reasons for the second decision, the Chief Commissioner stated that the risk that the applicant might re-offend was exacerbated in countries where the child protection framework was substantially weaker than that of Australia. The Chief Commissioner stated that the child protection framework in three of the countries that the applicant proposed to visit afforded less protection than that in Australia, and stated that those countries were classified as “Tier 2” countries within the meaning of the Trafficking Victims Protection Act of 2000 (US) (Trafficking Act). The Chief Commissioner accepted that one of the countries was a “Tier 1” country, and that another place was not classified.

72    The Trafficking Act is within Division A of the Victims of Trafficking and Violence Protection Act of 2000, which is an Act of the US Congress. Section 102(a) of the Act provides –

(a)    PURPOSES.— The purposes of this division are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.

73    There is a lengthy preamble which includes the following –

(b)    FINDINGS.—Congress finds that:

(1)    As the 21st century begins, the degrading institution of slavery continues throughout the world. Trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today. At least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year.

(2)    Many of these persons are trafficked into the international sex trade, often by force, fraud, or coercion. The sex industry has rapidly expanded over the past several decades. It involves sexual exploitation of persons, predominantly women and girls, involving activities related to prostitution, pornography, sex tourism, and other commercial sexual services. The low status of women in many parts of the world has contributed to a burgeoning of the trafficking industry.

…

(6)    Victims are often forced through physical violence to engage in sex acts or perform slavery-like labor. Such force includes rape and other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological abuse, and coercion.

…

(24)    Trafficking in persons is a transnational crime with national implications. To deter international trafficking and to bring its perpetrators to justice, nations including the United States must recognize that trafficking is a serious offense. This is done by prescribing appropriate punishment, giving priority to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses. The United States must work bilaterally and multilaterally to abolish the trafficking industry by taking steps to promote cooperation among countries linked together by international trafficking routes. The United States must also urge the international community to take strong action in multilateral fora to engage recalcitrant countries in serious and sustained efforts to eliminate trafficking and protect trafficking victims.

74    The term “sex trafficking” is defined in the Trafficking Act as –

SEX TRAFFICKING.—The term ‘‘sex trafficking’’ means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.

75    The scheme of the Trafficking Act is multifaceted. One of its elements is a legislative command to the executive to treat foreign countries differentially in relation to foreign assistance according to whether, and the extent to which, countries comply with minimum standards for the elimination of trafficking. For those purposes, s 110 of the Act requires the Secretary of State to submit an annual report to the appropriate congressional committees that includes –

(A)    a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments fully comply with such standards;

(B)    a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not yet fully comply with such standards but are making significant efforts to bring themselves into compliance; and

(C)    a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not fully comply with such standards and are not ma ant efforts to bring themselves into compliance.

76    The applicant submitted that the tier ranking system adopted by the United States under the Trafficking Act was irrelevant to his circumstances. He submitted that the offences to which he pleaded guilty were unrelated to sex trafficking, and that the tier ranking system should not have been used as a basis to refuse his request for permission to leave Australia.

77    I do not accept the applicant’s submissions. The question before this Court essentially is whether the reference to three countries as being “Tier 2” countries was extraneous to a legally reasonable evaluation of risk. By the second decision, the Chief Commissioner employed the ranking of three countries as “Tier 2” as an indicator, or proxy, that the child protection frameworks in those countries were substantially weaker than that in Australia. I regard that as a rational process of reasoning for the purposes of evaluating risk. In Kaufman at [30] Anastassiou J held that it was quite proper and reasonable for the Chief Commissioner to have regard to a ranking of a country as “Tier 2” as being relevant to various social or risk factors in the country concerned, and I am of the same view. The applicant was on notice by the Chief Commissioner’s reasons for the first decision that the Chief Commissioner regarded the ranking of some of the countries as “Tier 2” as being material. It was open to the applicant to take issue with the relevance of this consideration when the Commissioner was evaluating the merits of the applicant’s application on the second occasion.

(c)    A proper exercise of the Chief Commissioner’s power on whether or not to grant permission to travel overseas requires a more specific form of risk assessment.

78    The applicant submitted that it was not sufficient for the Chief Commissioner to proceed by reference to the inherent risk that exists in respect of any person whose name is on the Register without regard to the circumstances of the particular person in question, and the travel plans, citing Doyle J in Zaharis at [88] (see [47] above). But here there was no failure by the Chief Commissioner to undertake a specific form of risk assessment. The Chief Commissioner had regard to, and agreed with the assessment of the applicant’s psychologist that he presented a low risk. As I have mentioned, that was the only expert opinion that was before the Chief Commissioner on the question of risk. The Chief Commissioner paid specific attention to the length of time since the applicant’s offending, the fact that he would be travelling with his wife, and to the places through which the applicant would be travelling, including the vessel on the 10-day cruise.

(d)    The Chief Commissioner as decision maker failed to investigate matters upon which he sought to rely.

79    The applicant submitted that the Chief Commissioner did not call upon the applicant’s case manager, Senior Constable Towner, to provide further relevant information. As I have mentioned at [63] above, and in [13] of his affidavit dated 9 December 2019 which was before the Chief Commissioner when making the second decision, the applicant deposed to the fact that Senior Constable Towner had written that he did not oppose the application. The Chief Commissioner took a different view. There was no obligation on the Chief Commissioner to communicate with the case manager in relation to his contrary opinion: see generally, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [18]-[27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

(e)    The Chief Commissioner failed to have proper regard to all the evidence before him.

80    The applicant submitted that the Chief Commissioner failed properly to consider the affidavit of the applicant’s wife in which she promised to monitor the applicant during the proposed trip. The applicant also submitted that the Chief Commissioner failed properly to consider all of the applicant’s issues and the effect of his health when assessing the applicant’s risk of committing a further offence.

81    Contrary to the applicant’s submission, the Chief Commissioner did consider the affidavit of the applicant’s wife. He referred to it in the list of materials which he stated he had read and considered, and he specifically referred to the applicant’s wife’s proposed presence on the tour at [7(a)(iii)] of his reasons (see [22] above). As to the other sundry matters, the Chief Commissioner stated that he had read and considered all the material that had been furnished and which he listed. While there may have been an obligation to accord procedural fairness by reading and considering that material, it does not follow that any, still less all of the features of the material and all the items of evidence were mandatory relevant considerations: cf, Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] (Robertson J), cited in Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(e)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Failure to take into account a relevant consideration can only be made out as a ground of review if the decision-maker was bound to take the matter into account. As the Full Court (Black CJ, Sackville and Emmett JJ) stated in Price v Elder [2000] FCA 133; 97 FCR 218 at [13] –

… Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statutes some implied limitation on the factors to which the decision-maker may legitimately have regard. Where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

82    The applicant has not established that the Chief Commissioner was bound to take any of the sundry matters he identifies into account.

(3)    The Chief Commissioner exercised the power conferred on him by s 271A.1 of the Criminal Code improperly within the meaning of s 5(1)(e) of the ADJR Act.

83    The applicant relied upon six sub-grounds referable to s 5(2) of the ADJR Act to support the submission that the power impliedly conferred by s 271A.1 of the Criminal Code was improperly exercised. There was some overlap with the applicant’s submissions made in support of the other grounds of review.

(a)    The Chief Commissioner considered irrelevant considerations within the meaning of s 5(2)(a) of the ADJR Act which influenced both the first and second decisions.

84    For a consideration to be irrelevant in the sense required by s 5(2)(a) of the ADJR Act, the statute must expressly or impliedly prohibit consideration of it: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 at [137] (Beaumont, Moore and Gyles JJ), citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40, and R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50.

85    In support of this ground, the applicant submitted that the Chief Commissioner’s reliance on the US Trafficking Act, was to take account of an irrelevant consideration. I have rejected this submission at [77] above.

(b)    The Chief Commissioner considered irrelevant considerations within the meaning of s 5(2)(a) of the Act which influenced his second decision.

86    The applicant submitted that the Chief Commissioner framed his decision upon a misapprehension of the purpose of s 271A.1, and relied on his earlier submissions on that topic which I have rejected at [70] above.

87    The applicant submitted that the Chief Commissioner’s reliance on the absence of a passenger list for the 10-day cruise was to rely upon an irrelevant consideration in circumstances where the Chief Commissioner had not sought that information, and did not allow the applicant an opportunity to respond. I do not accept this submission. The Chief Commissioner did not in terms refer to the absence of a passenger list, but referred to the absence of evidence that there would be no children on board the cruise vessel. The potential for the applicant to have contact with children was an obvious issue to be addressed, particularly having regard to the reasons for the first decision which referred to the applicant having an appreciable risk of re-offending. The Chief Commissioner relied on the absence of evidence that no children would be on the cruise ship in his reasons for the second decision, and I consider that this was a matter to which the Chief Commissioner could rationally have regard. The applicant’s submission that information in the nature of a passenger list was never and could never have been available does not assail the Chief Commissioner’s reasoning, but tends to support it.

88    The applicant made the following submission –

The Respondent considered the registration of the Applicant on the relevant register was as a result of his conviction in circumstances where such registration was not as a result of the sentencing of the Magistrate but such registration was automatic by way of operation of the Sex Offenders Registration Act 2004 (Vic).

89    I reject this submission as being without foundation. At [7(a)(v)] of his reasons for the second decision (see [22] above) the Chief Commissioner referred to the fact that Parliament had determined that the offences of which the applicant was convicted were sufficiently serious that he was placed on the Register. The reasons reveal no misunderstanding of the basis on which the applicant was placed on the Register. To the extent that the applicant also submitted that the Commissioner’s reliance on the fact that the applicant was a registrable offender meant that there had not been a form of specific evaluation of the risk presented by the applicant, I have rejected that submission at [78] above.

(c)    The Chief Commissioner failed to consider or give sufficient weight to relevant considerations within the meaning of s 5(2)(b) of the Act which influenced his second decision.

90    Under this sub-ground, the applicant submitted that the Chief Commissioner failed to consider appropriately, or give adequate weight to 16 matters –

(1)    The sworn evidence of the applicant’s wife that she is aware of the applicant’s offending history and would be present during the entire trip to monitor the applicant.

(2)    The organised nature of the tours, transfers and the limited amount of rest days during the intended trip. The applicant submitted that the constant tours was relevant to an evaluation of whether the applicant would be monitored whilst travelling.

(3)    The current age of the applicant, and his current age as compared to his age at the time of the offending.

(4)    The deteriorating health of the applicant, which the applicant submitted mitigated his risk of sexually offending overseas.

(5)    The claim that the applicant had travelled overseas with his wife previously both before and after his convictions, and before and after he revealed the circumstances of the 1973 offences, and that he had travelled without incident.

(6)    The applicant had not breached his reporting obligations.

(7)    The specific sentence imposed upon the applicant in 2012, namely that he received a 12-month good behaviour bond and was required to pay $2000 into the Court fund. The applicant submitted that this weighed against the punishment imposed upon the applicant by his inability to recover the monies paid for the intended trip which was clearly disproportionate to the punishment initially imposed.

(8)    The applicant pleaded guilty to the charges, and informed his wife of the offences prior to him being charged. The applicant submitted that this showed the remorse of the applicant at the time of his admissions and therefore went to significantly mitigate the risk of him re-offending in future.

(9)    The applicant submitted that the Chief Commissioner failed appropriately to consider the length of time taken by his delegate to issue the First Decision and how this impacted upon the Applicant’s ability to recover the costs of the intended trip.

(10)    The applicant submitted that the Chief Commissioner failed appropriately to consider that applicant was required to pay a non-refundable deposit of $8,502.90, and that the loss of this amount would be disproportionate to the sentence initially imposed upon the applicant. The applicant submitted that the requirements for the applicant to seek permission to travel required the applicant to purchase his tickets in circumstances where even if an applicant does not know whether he will obtain permission to travel in the hope of his application succeeding and run the risk of losing the fare paid if his application is unsuccessful, citing DKG v Commissioner of Police [2019] NSWSC 523 at [46].

(11)    The applicant submitted that the Chief Commissioner failed to give any or any adequate weight to the comments from his case manager, Senior Constable Towner, and his assessment of the application.

(12)    The Respondent failed to give any or any adequate weight to the fact that the applicant has not re-offended since and that the offending occurred over 46 years ago.

(13)    The Respondent failed to give any or any adequate weight to the fact that the applicant has not had any other allegations made against him.

(14)    The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the assessment by psychologist Ross Wall dated 9 August 2012 that the applicant had a low risk of sexually re-offending. The applicant submitted that this opinion, paired with the fact that the Applicant has not committed any other offences goes to significantly mitigate any risk that he might re-offend in future.

(15)    The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the length of time the applicant has remained married to his wife, and submitted that the significant length of the marriage went to mitigate any risk that he might re-offend in future.

(16)    The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the cost of the trip and the inability of the Applicant to recover those costs. The applicant submitted that the significant loss of monies paid when compared to the sentence initially imposed was disproportionate, and could be observed as an additional punishment.

91    The weight to be given to the matters the subject of the above submissions was for the Chief Commissioner to evaluate: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40-1 (Mason J). Each of the above submissions, which relies on an alleged failure to consider appropriately, or to accord weight to various factors, seeks to engage with the merits of the Chief Commissioner’s decision. Furthermore, many of the submissions are factually incorrect. For instance, the Chief Commissioner accepted the opinion of the applicant’s psychologist, and acted on it. The Chief Commissioner did consider the evidence of the applicant’s wife. The submission that he failed appropriately to consider that evidence invites a merits review. The Chief Commissioner did consider the reasons for the applicant’s trip, and did consider the potential loss of the monies that had been paid, but determined to place little weight on those factors having regard to the protective purposes of the legislation. The submission that the Chief Commissioner’s decision amounts to further punishment of the applicant misses the point having regard to those protective purposes. Other submissions necessarily proceed on a premise that the Court should accept that the matters relied on are indicative of low risk. For the reasons given by Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice at [16]-[17] (see [48] above), I am not prepared to make that assumption.

(d)    The Chief Commissioner exercised the power provided under s 271A.1 of the Criminal Code for an improper purpose within the meaning of s 5(2)(c) of the ADJR Act.

92    The applicant submitted that the Chief Commissioner would not permit him to travel internationally without a reason that was considered compelling enough, and that the Chief Commissioner treated the effect of s 271A.1 as a blanket ban against recreational travel. The applicant cited the reasons of Doyle J in Zaharis where, after citing Mullins J in Mentink at [15]-[36] Doyle J stated at [95] –

I agree with her Honour’s conclusion in that case that there is nothing in s 271A.1 of the Criminal Code to warrant a decision-maker starting with a presumption against permission, or indeed to require satisfaction “by acceptable and cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight” to justify permission. Analogously with those conclusions, I do not think it is accurate to say that permission requires “exceptional circumstances”, or indeed to say (without qualification) that travel solely for holiday or recreational purposes should not be approved.

93    Doyle J then continued –

While the fact that travel is solely for holiday or recreational purposes will be a relevant consideration, ultimately 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.

94    The error that was identified by Mullins J in Mentink was that the decision-maker had framed the consideration by reference to a requirement that the decision-maker “must be satisfied by acceptable and cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to justify the decision”. Mullins J demonstrated that this language had been lifted from s 13(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and had been impermissibly applied to the exercise of the discretion under s 271A.1 of the Criminal Code when there was nothing in s 271A.1 that warranted the imposition of that threshold.

95    In Mentink, the competent authority had stated that an onus was on the applicant to displace the presumption which restricts international travel. In relation to that aspect of the reasons, Mullins J stated at [31] –

… the reference to a “presumption” against travel overseas by the reportable offenders should not be construed as the imposition of a fixed starting point for the decision making that there was a presumption against overseas travel. It is a shorthand reference to the position that now applies after the enactment of s 271A.1 of the Code that makes it an offence for a reportable offender to travel overseas without the permission of a competent authority.

96    In my view while it may not be correct to speak of an onus resting on an applicant, it is the case that a competent authority must be persuaded to give permission which, as Doyle J was careful to explain in Zaharis at [94], [95], [98], and [108], is to be evaluated on a case-by-case basis.

97    In the present case, fairly read the Chief Commissioner’s reasons for the second decision do not support the applicant’s submission that the Chief Commissioner regarded s 271A.1 as imposing a blanket ban on international recreational travel, or that the applicant would not be permitted to travel without a reason deemed compelling enough. The reasons for travel are a permissible relevant consideration, and in this case the Chief Commissioner took them into account but gave them little weight in his evaluation against other considerations.

98    The applicant also cited the reasons of Fagan J in DKG v Commissioner of Police [2019] NSWSC 523. In that case, the plaintiff had been convicted of assault of a 17 year old female with an act of indecency in consequence of which he became a “registrable person” for the purposes of the corresponding New South Wales legislation relating to registration of sex offenders. Fagan J regarded the plaintiff as a less serious offender, as his Honour’s comments at [28] of the reasons for judgment indicate. His Honour thought at [52] that on the material before him that there was no apparent or intelligible justification to refuse permission to the plaintiff to leave Australia for a proposed visit to his family in India, together with some travel to a neighbouring country. The passage of the reasons of Fagan J on which the applicant relied is –

If such a visit to family, combined with a holiday in a neighbouring country, is not regarded as a legitimate purpose for a grant of permission, it is difficult to imagine what [the decision-maker] would regard as legitimate.

99    These comments were obiter, because Fagan J held that no application under the ADJR Act to review the relevant decision was before the Court. Furthermore, Fagan J’s comments went to the merits of that case, where the offence in question was regarded by his Honour as less serious offending. Moreover, decisions on the facts of one case do not really aid in the determination of another. His Honour’s views of the merits in DKG do not operate as any sort of proposition with universal application. Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law: see the observations of Windeyer J in Teubner v Humble (1963) 108 CLR 491 at 503.

(e)    The Chief Commissioner exercised the discretionary power provided under s 271A.1(3) of the Criminal Code in accordance with a rule or policy without regard to the merits of the applicant’s case within the meaning of s 5(2)(f) of the ADJR Act.

100    The applicant submitted that the Chief Commissioner demonstrated a policy to deny registered offenders permission to travel internationally where reasons for such travel involved a holiday. The applicant submitted that the evaluation of whether to give permission requires a case-by-case analysis which was not adequately performed by the Chief Commissioner as demonstrated by the bias the Chief Commissioner held in relation to the reasons for travel provided by the applicant. I reject these submissions. I have already rejected at [78] the applicant’s claim that there was no specific risk assessment, and at [66] I have rejected the allegation of bias. I do not accept that the Chief Commissioner’s reasons for decision, or any surrounding documents, support an inference that the Chief Commissioner made the second decision by reference to any policy that denied the applicant permission to travel because he was undertaking a holiday. The reasons for the travel were matters of which the Chief Commissioner took account, but he gave them little weight when balanced against the other considerations that he thought were indicative of risk. That does not amount to a surrender of the Chief Commissioner’s discretion to a policy.

101    The applicant submitted that the Chief Commissioner demonstrated a policy not to properly consider the applicant’s case manager’s comments. I reject this submission also. It is not supported by the evidence. I have addressed the position that the Chief Commissioner was reasonably entitled to take in relation to the case manager’s opinions at [79] above. It is clear that the Chief Commissioner considered the case manager’s opinions. He was not required to give them weight, still less agree with them.

102    The applicant submitted that the Chief Commissioner demonstrated a policy to require the applicant to perform guesswork as to what evidence the Chief Commissioner required to grant permission to travel. I reject these submissions. The application form gave a clear indication that the potential for contact with children was a key consideration. The form invited attachments should the space available on the form be insufficient. Furthermore, the Chief Commissioner’s reasons for the first decision (see [16] above) gave a fairly clear indication of what the Chief Commissioner thought was relevant. It was only after the first decision that the applicant thought to provide the Chief Commissioner with more specific information concerning the circumstances of his past offending and the forensic evaluation of risk.

103    The applicant submitted that the Chief Commissioner demonstrated a policy by which an inherent risk that is applicable to every person whose name is on the Register was applied with the consequence that there was a blanket denial where permission is sought by registered offenders to travel internationally for recreational purposes. I reject this submission, and refer to my reasons at [78] above.

(f)    The Chief Commissioner exercised the power provided under s 271A.1 of the Criminal Code in a manner that was so unreasonable that no reasonable person could have so exercised the power within the meaning of s 5(2)(g) of the ADJR Act.

104    The statutory ground of review under s 5(2)(g) of the ADJR Act is that the making of the decision was an improper exercise of power for the purposes of s 5(1)(e) because, “the exercise of power is so unreasonable that no reasonable person could have so exercised the power”. This ground substantially reflects the language of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234, who identified a decision having that characteristic as one made in excess of the statutory powers conferred on the decision-maker. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36, Brennan J described the implied limitations on the exercise of power recognised in Wednesbury as being “extremely confined”, and stated that the limitations were “not calculated to secure judicial scrutiny of the merits of a particular case”. See also, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [88]-[92] (Gageler J).

105    The implied decision-making power conferred by s 271A.1(3) of the Criminal Code is binary in nature: permission to leave Australia for the purposes of particular travel may be given, or refused. Where the claim is that a decision to refuse permission to leave Australia was legally unreasonable, an allegation that the outcome of the evaluative process was legally unreasonable is tantamount to claiming that the only reasonable decision that could have been made was to grant permission: Ammouche at [80].

106    The statutory context here is important. The relevant Commonwealth and State legislation have protective purposes. In Kruger v The Commonwealth (1997) 190 CLR 1 at 36, Brennan CJ stated in relation to the exercise of a discretionary power that reasonableness “can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention”. As I have mentioned earlier, the implied decision-making power under s 271A.1(3) is conferred upon a competent authority, such as the Chief Commissioner, as a person who is likely to have the knowledge and expertise to make the necessary evaluative judgment consistently with the purposes of the legislation.

107    The decision in this case to refuse permission to the applicant to leave Australia for the purposes of overseas travel is undoubtedly perceived by the applicant and his wife as involving hardship. But that does not lead to the characterisation of the decision as being unreasonable in the sense contemplated by s 5(2)(g) of the ADJR Act. Section 271A.1 of the Criminal Code contemplates that significant restrictions might be placed on the applicant’s ability to travel: Zaharis at [108]. The decision made by the Chief Commissioner involved “evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred”, and other factors: see, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [17] (Allsop CJ). And as the Chief Justice further observed in Stretton at [21] –

The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. …

108    The Chief Justice then cited Minister for Immigration and Citizenship v Li. The subject-matter of Li was the refusal of the Migration Review Tribunal to adjourn a hearing, which the High Court held was legally unreasonable and involved jurisdictional error. An application for an adjournment of a hearing involves the evaluation of an issue with which judges are familiar, and with which they are equipped to deal. The subject-matter of the Chief Commissioner’s decision in this case is not in that category, as the observations of Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice set out at [48] above demonstrate.

109    The applicant’s submissions in support of the claim that the Chief Commissioner’s decision was unreasonable so as to engage s 5(2)(g) of the ADJR Act did little more than invite a merits review by the Court of the Chief Commissioner’s decision. The applicant submitted that the Chief Commissioner –

(1)    denied granting permission to the applicant to travel overseas despite the overwhelming evidence to the contrary that the applicant posed any risk of offending during the intended travels;

(2)    ignored relevant evidence that supported the claim by the applicant that he would not pose a risk of offending whilst overseas;

(3)    ignored relevant evidence that the applicant would be monitored whilst overseas by a capable person who is aware of the applicant’s offending; and

(4)    based his decision on irrelevant foreign legislation.

110    The applicant otherwise picked up in an omnibus way all the submissions relied on under s 5 of the ADJR Act.

111    I reject the claim that the Chief Commissioner’s decision was legally unreasonable. The Chief Commissioner acted on the only expert opinion directed to the risk of the applicant re-offending, namely the 2012 report of the applicant’s psychologist. He weighed the low risk identified by the psychologist in that report, which he rationally quantified as an appreciable risk, against other rational considerations that are summarised at [57] above. There is no expert evidence before the Court that would support a finding that, on the material before the Chief Commissioner, his evaluation of risk was in error, still less unreasonable in the sense required by s 5(2)(g) of the ADJR Act. And for the reasons referred to by Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice, the Court is hardly in a position to make its own assessment.

(4)    The Chief Commissioner’s decision involved an error of law – ADJR Act, s 5(1)(f).

112    Under this ground, the applicant made the following submissions –

(1)    the Chief Commissioner erred in law by applying a misinterpretation or incorrect judgment of the purpose of s 271A.1 of the Criminal Code;

(2)    the Chief Commissioner erred in law by considering and relying upon irrelevant foreign legislation;

(3)    the Chief Commissioner’s vague application of the weight he provided to certain factors is inconsistent with his decision to deny permission to travel internationally;

(4)    the Chief Commissioner erred in law by improperly considering the applicant’s conviction for offences, which took place over 46 years ago, as determinative of the ongoing risk the applicant poses to commit further offences in the future despite conceding that he has not re-offended since;

(5)    the Chief Commissioner erred in law by failing to provide how he determined the child protection framework in the intended countries is weaker than in Australia;

(6)    the Chief Commissioner erred in law by not considering or providing any or any adequate weight to the financial loss to be suffered by the applicant should he not be granted permission to travel and comparing that with the sentence actually imposed on the applicant in 2012; and

(7)    the Chief Commissioner erred in law by considering the reasons for travel inadequate and that a demonstrated need or imperative aspect was required before permission to travel would be required.

113    Each of these submissions should be rejected. They reflect arguments that I have already rejected, and I will not repeat my reasons for doing so. Furthermore, the submissions at (3) to (5) do no more than cavil with the merits of the Chief Commissioner’s decision.

(5)    The Chief Commissioner did not have any or any adequate evidence to justify its denial to grant permission to travel within the meaning of s 5(1)(h) of the ADJR Act.

114    By this ground, the applicant has misstated the terms of s 5(1)(h) of the ADJR Act, which is engaged if there is no evidence or other material to justify making the decision. Further, s 5(1)(h) of the ADJR Act is qualified by s 5(3), which provides –

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

115    The applicant did not address any submissions to these requirements, which have been considered in cases such as Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [576]-[581] (Weinberg J), and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224 (Black CJ, Spender J and Gummow J agreeing). Moreover, the no evidence ground in s 5(1)(h) of the ADJR Act is confined to findings of fact, and does not extend to expressions of opinion or value judgments: Telstra Corp Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 at [139] (Beaumont, Moore and Gyles JJ). The applicant did not identify any finding of fact that he sought to impugn by reference to s 5(1)(h) of the ADJR Act. By the terms in which the applicant’s submission was framed the applicant sought to impugn the value judgment that the Chief Commissioner made. I therefore reject this ground.

(6)    The Chief Commissioner’s decision was otherwise contrary to law, within the meaning of s 5(1)(j) of the ADJR Act.

116    In support of this ground, the applicant relevantly made the following submissions in relation to the second decision –

(1)    the Chief Commissioner failed to consider all of the evidence and material before him;

(2)    the Chief Commissioner determined the financial loss by the applicant as not relevant despite the significant amount, the delay by the Chief Commissioner in making the first decision, the initial refusal by the Chief Commissioner to reconsider the first decision, the disproportionate punishment the applicant would suffer by the financial loss when considered with the sentence imposed;

(3)    the Chief Commissioner had no legal basis upon which he could justify his reliance upon an irrelevant, foreign Act; and

(4)    the Chief Commissioner had no legal basis upon which he could justify his failure to consider relevant considerations such as the applicant’s health, the sworn evidence, and the tours the applicant is scheduled to be on.

117    I reject all of these submissions, which are largely further attempts by the applicant to cavil with the merits of the Chief Commissioner’s decision, and which are not directed to any legal error. The Chief Commissioner stated expressly at [6] of the reasons for the second decision that he had read and considered all the material which had been furnished, and which he listed in the body of the reasons. There is no reason to surmise that this did not occur. The Chief Commissioner was not required to regard any particular feature of that material as a relevant consideration unless the statute expressly or impliedly required that it be considered: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1 (Mason J). I have held that there was no error by the Chief Commissioner in having regard to the US Trafficking Act in the way in which he did by identifying three of the countries that the applicant proposed to visit as “Tier 2” countries (see [77] above). That consideration was not extraneous to the exercise of the power to make the decision. Otherwise, as I have held, the weight to be given to various factors was a matter for the Chief Commissioner to evaluate, and the outcome was not legally unreasonable.

Application for non-publication order

118    The applicant applied at the commencement of the hearing for a non-publication order in respect of the identity of the applicant, and his wife. I was persuaded to make the non-publication order on the grounds specified in s 37AG(1)(a) and (d) of the Federal Court of Australia Act 1976 (Cth), namely that the order is necessary to prevent prejudice to the proper administration of justice, and that the order is necessary to avoid causing undue distress or embarrassment to a party or to a witness in a criminal proceeding involving an offence of a sexual nature. In relation to s 37AG(1)(a), it is evident from the terms of the Sex Offenders Registration Act that there is a policy to constrain the dissemination of information relating to registrable offenders. That policy manifests itself in provisions such as s 63, which restricts access to the register to authorised persons, and the confidentiality obligations in s 70. The policy also manifests itself in the restrictions on publication that are found in sections 61A to 61G of the Act, and the restrictions on disclosure of information by persons who are authorised to have access to the register under s 64 of the Act.

119    In MSB v Chief Commissioner of Police (2018) 57 VR 360, the Victorian Court of Appeal was persuaded to continue an order by which the name of the applicant was anonymised. At [55] and [56] McLeish JA, with whom Maxwell P and Almond AJA agreed, stated –

55    An anonymisation order is not necessarily appropriate in every case brought in connection with the register. For example, some offenders and their crimes are sufficiently recent or notorious that revelation, through reasons of a court, that their offending had caused them to be placed on the register would not lead to public disclosure additional to that contemplated by the Act. There may be other factors tending against, or in favour of, an order in different cases. Each case will of course depend on its own circumstances.

56    Here, the effect of naming the applicant would be to give wide publicity to the fact that he is named in the register as a result of having been sentenced for the knowing possession of child pornography. The policy of the Act, as mentioned, is generally against such disclosure. In addition, the applicant would not have needed clarification of his status with respect to the register if the proper operation of the Act had been appreciated in the sentencing proceeding. These factors point in favour of anonymisation. The countervailing interest in open justice must in my opinion be accommodated to the identified policy of the Act. It must be borne in mind that the Act adopts that policy as part of a balance in which the community is sought to be protected by the maintenance and proper use of the register in accordance with the Act.

120    In this case, the identification of the applicant or his wife would be inconsistent with the policy embedded in the Sex Offenders Registration Act that the fact of the applicant’s registration as a sex offender is generally to remain confidential. The prospect that registrable offenders may have to be publicly identified is liable to have a chilling effect on the bringing of proceedings such as the present.

121    Furthermore, I have taken account of the terms of s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) by which the publication of the identity of a person against whom a sexual offence (as defined) is alleged to have been committed is prohibited. It is in the interests of justice that the effect of that provision is not undermined by the possibility that a victim of a sexual offence might be identified by the publication of the identity of the applicant, with accompanying details of the offending, in proceedings such as the present. Independently of this consideration, I consider that s 37AG(1)(c) is also engaged.

122    For the purposes of s 37AJ of the Federal Court of Australia Act, I consider that a period of 45 years is reasonably necessary so as to protect the interests of the victim of the applicant’s offending.

123    Accordingly, I determined to make orders prohibiting the publication of information liable to lead to the identification of the applicant and his wife, that the proceeding continue with the applicant identified by the pseudonym, “AB”, and his wife identified by the pseudonym “CD”, and that until further order, the documents on the court file not be available to public inspection.

Conclusion

124    None of the applicant’s grounds for review has been established. The application for judicial review will be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:    10 January 2020