FEDERAL COURT OF AUSTRALIA
AUSTRALIAN FEDERAL POLICE COMMISSIONER
DATE OF ORDER:
THE COURT ORDERS THAT:
2. All further proceedings in this matter be as between the applicant and the first respondent, with the second respondent being removed as a party.
3. The applicant pay the second respondent’s costs, of and incidental to the proceedings, including the interlocutory application made today, to be fixed by a Registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(REVISED FROM TRANSCRIPT)
1 On 10 December 2019, the applicant, Mr Wilfred Mentink (Mr Mentink), instigated judicial review proceedings in this Court, naming two respondents, as first respondent, the Queensland Police Commissioner, and, as second respondent, the Australian Federal Police Commissioner (AFP Commissioner). At that time, Mr Mentink did not have the benefit of a decision by any person even purporting to be a competent authority, with respect to permission to travel overseas, which s 271A.1 of the Criminal Code (Cth) contemplates might be given by a competent authority.
2 As originally filed, the only relief expressly sought against the AFP Commissioner was in paragraph four of the application:
An order restraining the second respondent from communicating to the Government of the Republic of Indonesia information about the applicant’s criminal history and scheduled arrival in Indonesia for the reason only of the applicant’s record of offences committed prior to 1993 and of being deemed a reportable offender under Queensland legislation from 14 November 2018.
3 On 10 February 2020, the Queensland Police Commissioner, via a delegate, at least purportedly made a decision as a competent authority to refuse Mr Mentink permission to travel to Indonesia.
4 Pursuant to leave granted to Mr Mentink on 4 February 2020, at the case management hearing, he has come to amend his judicial review application. That amended application seeks the following orders:
1. A declaration in such terms as the Court sees fit that pursuant to s271A.1(3) of the Commonwealth Criminal Code the relevant competent authority has jurisdiction to grant the applicant permission to leave Australia and remain in the Republic of Indonesia indefinitely subject to the law of Indonesia.
2. A declaration with the effect that insofar as s271A.1(3) empowers a competent authority to deny or grant the applicant permission (however described) to leave Australia the first respondent is disqualified because of irremediable bias.
3. An order setting aside the decision of the first respondent.
4. An order by the Court as a competent authority pursuant to s271A.1(3) of the Commonwealth Criminal Code giving the applicant permission to leave Australia on the sole condition that he remain in the Republic of Indonesia subject to the law of Indonesia and with the right to return to Australia upon notification to a relevant competent authority, alternatively,
5. An order pursuant to s271A.1(3) of the Commonwealth Criminal Code that the first respondent give the applicant permission to leave Australia on the sole condition that he remain in the Republic of Indonesia subject to the law of Indonesia and with the right to return to Australia upon prior notification to a relevant competent authority, alternatively such orders that do justice between the parties.
5 Those orders are sought on grounds specified in the amended originating application as follows:
In these grounds a “reasonable person” means a sane, unbiased person taking an unprejudiced and objective view of facts and reasoning based on those facts.
1. With reference to conduct in the making of the decision that may have commenced even prior to the applicant’s request for permission in March 2018:
1.1. It is apparent that in March 2018 the first respondent, the competent authority, routinely engaged an actuarial tool known as RM2000 and derived a rating indicating a high risk that the applicant would reoffend sexually, significantly erring in so doing. This conduct was not disclosed during court proceedings in 2018, incurring a breach of natural justice.
1.2. In the current reasons the competent authority mentioned the actuarial tool RM2000 and the applicant’s high risk rating but gave that assessment no weight at all despite its direct support of the decision; this irrational conduct was engaged to obscure the fact that the use of RM2000 had not been declared in 2018 and involves an exercise of power in bad faith.
1.3. It is apparent that in March 2018 the competent authority procured Mr Ashley Phelan, described as Manager, Forensic Behavioural Services, to review the applicant’s case and provide an assessment, in the event a high risk of sexual recidivism in Indonesia. This conduct was not disclosed during court proceedings in 2018, incurring a breach of natural justice. Mr Phelan’s qualifications have not been disclosed, and it is apparent that he is associated with the victim lobby group “Bravehearts” which acted for the complainant Kelvin Johnston in the course of the competent authority’s prosecution of the applicant, raising a further apprehension of bias thus involving a breach of natural justice.
2. The competent authority is inherently biased in his position described as the “ultimate officer in charge of the Child Abuse and Sexual Crime Group” and “Co-ordinator of State Child Protection Investigation Units”, being police units the function of which is to detect offenders, prosecute, and incapacitate them even at the risk of compromising the goal of rehabilitation.
3. In his reasons justifying the decision the competent authority
3.1. made significant errors of fact which are not per se raised as a ground of review but as conduct, conscious or otherwise, that raises an apprehension of bias thus involving a breach of natural justice.
3.2. made findings in relation to facts, whether those facts are on record, distorted, or invented, that are so irrational that a reasonable person would regard the cognition as raising an apprehension of bias.
3.3. gave unreasonable weight to the 25 year-old report of Stephen Smallbone, demonstrating significant cognitive distortion by
3.3.1. irrationally denying the fact that Mr Smallbone’s five recommendations were made to the Parole Board and were rationally and reasonably intended to apply during the parole period, and that the Parole Board’s direction was that the applicant attend counselling with Dr Rosevear;
3.3.2. referring to Mr Smallbone in 1995 as a professor with doctoral qualifications when at the time of the report he did not have those credentials;
3.3.3. failing to qualify these reasons by the unsupported advice of Mr Phelan that the current expert consensus is that the applicant be regarded today as “untreated”, a view that of itself is manifestly unreasonable;
3.4. unreasonably failed to give any weight at all to the evidence of Dr Rosevear, whose work with victims and offenders was during the relevant period viewed with high regard by the Parole Board;
3.5. irrationally criticized the report of Dr Kovacevic in terms of
3.5.1. failing to state qualifications in the area of child sex offending,
3.5.2. admitting to certain caveats including uncertainty as to risk in Indonesia,
3.5.3. engaging face-to-face with the applicant for less than 2 hours,
3.5.4. failing to address certain issues raised by Mr Smallbone 25 years earlier,
3.5.5. relying on information provided by the applicant,
ignoring Dr Kovacevic’s conclusion of not unacceptable relatively low risk given the caveats the doctor had identified;
all in the circumstances that the psychological credentials of the competent authority and his advisers have not been disclosed and it was the applicant who had, directly and indirectly provided all of the information relied upon by Mr Smallbone. The competent authority’s lack of rationality in the area of psychology/treatment raises an apprehension of bias in the mind of a reasonable person.
4. The decision of the competent authority was irrational in finding the applicant to lack remorse on the basis of
4.1. a manuscript said to be authored by the applicant and described as a novel (re 1991) and letters penned by the applicant (1993) said to be relevant but from which a finding of lack of remorse at the present time could not be made by a reasonable person;
4.2. adverse remarks of the sentencing judge in 2017 with respect to the 1976 offences, and the submission by counsel that a complainant lied to obtain compensation, said to be relevant but from which such findings cannot be made by a reasonable person, such irrationality arousing apprehension of bias in the mind of a reasonable person.
5. In respect of the finding of ongoing lack of insight:
5.1. The competent authority stated that the applicant sought to publish the manuscript (re 1991); no reasonable person having read the material would accept that. The applicant did apply for an exemption in order to legally possess it as his personal document, but primarily to permit psychologists to possess and use it. No reasonable person would consider the text to display lack of insight at the present time being 29 years after the manuscript was written; the matter raises apprehension of bias.
5.2. In an entirely irrelevant consideration, the competent authority referred to the applicant’s complaints to the commissioner for Northern Territory police, who is now the second respondent, on 15 November 2018 at a time when the applicant’s wife was dying and he was facing disaster; no reasonable person could find this matter to evidence lack of insight, raising an apprehension of bias.
5.3. The reasons of the competent authority refer to the applicant’s failure to declare his criminal history on arrival in East Timor in 2003, deriving the information from a manuscript said to have been authored by the applicant which provides context from which no reasonable person could infer lack of insight, raising an apprehension of bias.
5.4. Having referred to Mr Smallbone’s recommendation 25 years earlier concerning unsupervised contact with boys, and noting that the applicant had committed no offences in Indonesia, the competent authority concluded the applicant’s “ignorance” of that recommendation to evidence lack of insight. A reasonable person would find the reasoning irrational and raising an apprehension of bias.
6. The competent authority referred to the applicant’s complaint about the conduct of police leading to his conviction in 2017 and having observed that he was bound to take the conviction into account appeared to make a “finding” that the offences did occur. While the submission that in doing so the competent authority acted ultra vires is not advanced, it is the reasoning offered that is submitted as evidence of irrelevant considerations that are completely irrational and can be explained only by bias.
7. While it was essential to consider evidence of child protection measures in Indonesia, the competent authority
7.1. failed to consider the highly relevant evidence of the second respondent’s operations from 2003 until the present time concerning the applicant in Indonesia;
7.2. unreasonably required de facto “community notification” which is not required by Australian law in Australia.
8. The making of the decision was an improper exercise of power in that the decision-maker wrongly constrained the exercise of the discretion by declaring that he is not in a position to provide indefinite and unqualified permission to leave Australia.
9. The applicant had a legitimate expectation that in his circumstances from March 2018 until the present time, he would receive permission to regain his family life in Indonesia. The primary basis for the expectation is found in the extrinsic material.
10. The competent authority’s decisions in the applicant’s case are manifestly disproportionate. Whilst acknowledging the applicant’s rights in terms of liberty and family, the competent authority’s reasons consistently minimize the unavoidable grave consequences of the decision for the applicant and magnify the speculative risk that the decision is said to ameliorate. A reasonable person would recognize the cognitive distortions involved to arouse an apprehension of bias.
As can be seen, order 4 as originally sought is no longer sought in the amended application.
6 The AFP Commissioner has sought, pursuant to the rules, the summary dismissal of Mr Mentink’s application. To uphold such an application is no light thing. I must be persuaded that Mr Mentink, in effect, has instituted as against the second respondent, a proceeding which is either frivolous or vexatious or has no reasonable prospect of success.
7 Mr Mentink’s affidavit filed on 2 March 2020, is replete with references in documents to conduct by officers of the Australian Federal Police abroad, prior to the making of the Queensland Police Commissioners refusal decision. I can well understand how, at a general level of abstraction, Mr Mentink might think that this conduct is related to the refusal decision. But the latter is a discrete decision by the Queensland Police Commissioner, exercising a power conferred by implication by s 271A.1 of the Criminal Code (Cth). It is with that decision that Mr Mentink is presently aggrieved.
8 It may perhaps, even more than perhaps, be that, were Mr Mentink ever to receive permission to travel, and be issued with an Australian passport for that purpose, that the AFP Commissioner would seek to communicate information concerning him to the police authorities of, it would seem, Indonesia. If that conduct were to occur, and there is reason to think that it might, having regard to past conduct evidence, then a separate controversy may well arise as to whether the AFP Commissioner was lawfully entitled to communicate such information. On the face of things, that communication would seem to be authorised by s 8(1)(bf) of the Australian Federal Police Act 1979 (Cth) (Australian Federal Police Act), but I express no concluded view on that subject. The point for today is that this is something that may occur in the future. The metes and bounds of the present controversy are confined to the Queensland Police Commissioner’s decision.
9 Whilst it may be that the Queensland Police Commissioner has taken into account information which includes information ultimately sourced in a document issued by the AFP Commissioner, the amended judicial review application does not engage at all with that. There is truly no present controversy as between Mr Mentink and the AFP Commissioner, arising from the decision made by the Queensland Police Commissioner.
10 In Zaharis v Commissioner of Police (2018) 131 SASR 576 at  to  (Zaharis), Doyle J offers, with respect, a very searching analysis indeed of the obtuse interplay between s 271A.1 of the Criminal Code (Cth), s 12 of the Australian Passports Act 2005 (Cth) or s 13 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) and State legislation making provision for reporting by reportable offenders. In essence, in relation to those convicted of offences relating to children, his Honour’s conclusion is that the relevant competent authority is the relevant Police Commissioner, in that case, the South Australian Police Commissioner. Having regard to s 8 of the Australian Federal Police Act, one might apprehend that, in relation to the Australian Capital Territory or the Jervis Bay Territory, that the Australian Federal Police Commissioner is, in relation to those territories, a competent authority. But neither that Act nor s 271A.1 of the Criminal Code (Cth), nor the Federal Acts referred to in s 271A.1 give any indication at all that the AFP Commissioner has any wider or overarching role as a competent authority.
11 Further, Doyle J’s conclusion in Zaharis is that a Court is not a person and not a competent authority.
12 In relation to a view expressed in another superior court concerning the meaning and effect of a Federal enactment, I would only depart from that view if convinced that it was clearly wrong. I am not so convinced. His Honour’s conclusion that the relevant competent authority was a State Police Commissioner is consistent with conclusions reached in or at least, the basis upon which these further cases were decided: Ammouche v Chief Commissioner of Police (2018) 266 FCR 430 and Mentink v Commissioner for Queensland Police (2018) 335 FLR 64. Consistent though it may be, in neither of those cases, it must be said, was that the elaborate reasoning to such a result as is found in Zaharis.
13 Mr Mentink, in substance, in his submissions foreshadowed the amendment of the existing amended application so as to seek relief restraining the AFP Commissioner from communicating information. But that is beyond the metes and bounds of the present controversy. Further, there is nothing at present which indicates that the AFP Commissioner seeks, in the absence of a travel proposal following permission to make any such communication. The amendment proposed would not, in any event, relate to the judicial review of the existing refusal decision by the Queensland Police Commissioner. It would not be an amendment which would be permitted, even assuming that it could be seen to raise any judicial controversy and that is a very large assumption indeed.
14 The existing proceeding then, in my view, has no prospect reasonably of any order being made against the AFP Commissioner. The AFP Commissioner is not a necessary party in relation to the present justiciable controversy arising from the making of an adverse decision under s 271A.1 of the Criminal Code (Cth), by the Queensland Police Commissioner, for Mr Mentink to have permission to leave Australia for the purpose of travel to Indonesia.
15 In these circumstances, the continued presence of the AFP Commissioner as a respondent is an embarrassment.
16 For these reasons, I dismiss the application as against the second respondent.