FEDERAL COURT OF AUSTRALIA

Mentink v Queensland Police Commissioner (No 2) [2020] FCA 1025

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, to be assessed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    In 2017, by the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) (POTCSO Act), the Commonwealth Parliament amended the Criminal Code 1995 (Cth) (Code) so as to insert Division 271A – Overseas travel by certain registered offenders. That Division comprises but one section, s 271A.1, which provides:

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 applicant, Mr Wilfred Jan Reinier Mentink, is an Australian citizen. He is also, for the purposes of s 271A.1 of the Code, a person whose name is entered on a child protection offender register of Queensland. He has reporting obligations in connection with that register. The entry of Mr Mentink’s name and his related reporting obligation are the result of the application to him of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (CP(OR) Act).

3    The CP(OR) Act applies to Mr Mentink because, on 14 November 2017, in the District Court at Brisbane, he was convicted of two counts of indecent treatment of children under the age of 16 between 31 May and 31 December 1976, contrary to s 210(1)(a) of the Criminal Code 1899 (Qld). In respect of each of those offences he was sentenced to imprisonment for nine months, to be suspended for two years after serving four months, to be served concurrently. On 3 August 2018, the Court of Appeal dismissed an appeal against those convictions by Mr Mentink and also dismissed an application by him for leave to appeal against that sentence: R v Mentink [2018] QCA 180.

4    Each of the offences was a “reportable offence” for the purposes of the CP(OR) Act: see s 9 and Sch 1, item 4. Even though they were committed in 1976, it was not until 2017, after the commencement of s 5 of the CP(OR) Act, that Mr Mentink was convicted, thereby making him a “reportable offender”: s 5(1)(a) of the CP(OR) Act. Mr Mentink’s reporting obligation under the CP(OR) Act arose from his 2017 convictions: s 35(1)(b) of the CP(OR) Act. Mr Mentink’s status as a reportable offender means that his name and identifying and offending particulars have been entered on the child protection register which the Queensland Commissioner of Police (Commissioner) is required by s 68 of the CP(OR) Act to establish and maintain.

5    Mr Mentink wishes to travel to Indonesia for an indefinite period and to do so lawfully. For that purpose, he applied on 24 September 2019 to the Commissioner under s 271A.1(3)(a) of the Code for permission to leave Australia.

6    The Commissioner is, for the purposes of that provision, a “competent authority”. That term is materially defined by s 12(3) of the Australian Passports Act 2005 (Cth) (Australian Passports Act) by reference to the person who under a State law, materially the CP(OR) Act, has responsibility for a reportable offender such as Mr Mentink. In Queensland, under the CP(OR) Act, the Commissioner has that responsibility. It will be necessary later in these reasons for judgment to elaborate upon why the Commissioner is a competent authority.

7    By a letter dated 10 February 2020, the Commissioner, for reasons attached to that letter, advised Mr Mentink that his overseas travel application had been refused. It is apparent from the reasons that the refusal decision was made on 4 February 2020.

8    By an amended originating application filed on 22 March 2020, Mr Mentink has challenged the Commissioner’s refusal decision.

9    That application does not expressly refer to the source of jurisdiction invoked. In form, the application is in Form 66 and refers to r 31.01(1) of the Federal Court Rules 2011 (Cth). Each of these is applicable to an application made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). That suggests that it is the jurisdiction conferred on the Court by s 8 of the ADJR Act which Mr Mentink has sought to invoke. In terms of s 3 of the ADJR Act, a decision under s 271A.1(3)(a) of the Code is a “decision to which this Act applies”, which may be the subject of an application for review under s 5 of that Act. It is thus clear that, insofar as it proceeds under the ADJR Act, the Court has jurisdiction to entertain Mr Mentink’s application. However, as will be seen, some of the relief sought by Mr Mentink, albeit in the alternative, is premised on the basis that the Court itself has jurisdiction to make an evaluative judgment as to whether or not to grant him permission to leave Australia. That goes beyond the relief which might be granted under s 16 of the ADJR Act. If, truly, the Court has such a jurisdiction, it would matter not that the application was in form one which suggested just the invocation of the ADJR Act. It will therefore be necessary to consider whether there is some alternative jurisdictional basis upon which the Court may grant such relief.

10    At the time when Mr Mentink originally initiated proceedings against the Commissioner on 10 December 2019, the Commissioner had yet to make a decision in respect of his application for permission to leave Australia. Events overtook the original intent of the proceedings, which was to secure a decision by the Commissioner. It has proved convenient, and certainly in the interests of justice, to allow the amendment of the original application so as to accommodate the course of events in public administration in relation to Mr Mentink’s application for permission to leave Australia. In this, the Commissioner has, as one might hope and expect in light of her model litigant obligations, been fully supportive.

11    As the proceeding was originally constituted, and for some time thereafter, the Australian Federal Police Commissioner (AFP Commissioner) was also named by Mr Mentink as a respondent. However, given Mr Mentink’s Queensland residence and his application to the Queensland Police Commissioner, the decision on his application was always one for the Queensland Police Commissioner to make. Further, especially once the decision had been made by the Queensland Police Commissioner, there was no basis at all for the AFP Commissioner to remain as a respondent. The appropriate contradictor was the Queensland Police Commissioner. On 5 March 2020, on the application of the AFP Commissioner, I dismissed that police official as a respondent: Mentink v Queensland Police Commissioner [2020] FCA 377 (interlocutory judgment).

12    Thereafter, at Mr Mentink’s express request and with the concurrence of the Commissioner, the proceedings have been heard on the basis of written submissions and a consensual reception into evidence of the letter conveying the refusal decision and setting out the reasons for it, together with the material which was before the Commissioner’s delegate when the decision under review was made. Mr Mentink also relied upon a succession of affidavits filed by him (Affidavit of W Mentink 1 December 2019; Affidavit of W Mentink 1 March 2020; Affidavit of W Mentink 20 March 2020 and Affidavit of W Mentink 19 April 2020). Given the conclusion, set out below, as to the nature of the jurisdiction exercised by the Court, most of what is in these affidavits is not relevant or duplicates what is in the Court Book containing the material before the decision-maker.

13    Mr Mentink conceived that there was forensic advantage to him in the adoption of a hearing on the papers. The impact of public health restrictions arising from the present COVID-19 pandemic has certainly made this a convenient course to adopt. Of course, convenience is no substitute for observance of the rules of natural justice, which is a necessary concomitant of any exercise of the judicial power of the Commonwealth. What is necessary for the observance of those rules varies according to the circumstances of a given case. The hearing and determination of the proceeding would certainly have much benefited from the reception of oral submissions and a related, Socratic dialogue at trial with a party or, as the case may be, that party’s counsel. I should not therefore have granted the request made by Mr Mentink other than in the present, unusual circumstances and so as to afford each of the parties, and him in particular, the earliest possible resolution of the controversy between them. I have been more liberal than I otherwise would have been in relation to the imposition of page limits on submissions in writing. I am well satisfied that each party has thereby been afforded the necessary opportunity to be heard and that, in the circumstances, it is apt to exercise judicial power to determine the proceedings in the manner sought.

14    The grounds of review pleaded in the amended originating application are prolix. They also conflate grounds of review with submissions in relation to those grounds. As it happens, that latter feature makes it convenient to set out the grounds as pleaded in full. That is because so doing not only discloses recognisable grounds upon which, under s 5 of the ADJR Act, the decision is amenable to review but also offers a useful summary of the related submissions made by Mr Mentink. As pleaded, the grounds are:

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 respondent, acting as a competent authority, routinely engaged an actuarial tool known as RM2000 and derived a rating indicating a low risk that the applicant would reoffend sexually. This conduct was not disclosed during court proceedings in 2018, incurring a breach of natural justice.

1.2.    In the current reasons the respondent declared the applicant’s RM2000 risk rating to be “high” but gave that risk 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 that the applicant had been rescored with attendant potential error, involving an exercise of power in bad faith.

1.3.    In March 2018 the respondent procured Mr Ashley Phelan, described as the respondent’s 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 assessment was not disclosed during court proceedings in 2018, incurring a breach of natural justice. The assessment was affirmed on 23 January 2020 with further opinions. 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 Johnston in the course of the respondent’s prosecution of the applicant, raising a further apprehension of bias thus involving a breach of natural justice.

2.    The respondent 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, and prosecute and incapacitate them even at the risk of compromising the goal of rehabilitation.

3.    In the reasons justifying the decision the respondent made significant errors of fact which are not per se raised as a ground of review but as conduct, whether conscious or otherwise, that raises an apprehension of bias thus involving a breach of natural justice. Further, the respondent made findings in relation to facts, whether those facts are on the record, or distorted, or invented, that are so irrational that a reasonable person would regard the cognition as raising an apprehension of bias. Grounds 4 – 14 are examples of such error that can only be explained as the product of a biased mind, in this case advised by others who are similarly biased. Further such examples of factual and cognitive error will be particularized under the overarching ground that individually and collectively they demonstrate bias.

4.    The respondent misrepresented each of the four offences of which the applicant was convicted, in each instance exacerbating and justifying the finding of “very serious” offending, and irrationally argued the disjointed chronology to predict “any future offending” to be “likely to be serious”, an irrelevant consideration and cognition raising an apprehension of bias.

5.    The respondent relied on facts concerning the applicant’s matters in 2003 in East Timor declared to be derived from the applicant’s correspondence and a further manuscript said to have been authored by him, with undisclosed information from a former AFP agent who has long been the subject of allegations of serious misconduct, making erroneous findings and irrational conclusions justifying the decision, the errors of fact and cognition raising an apprehension of bias.

6.    The respondent gave unreasonable weight to the 25 year‐old report of Stephen Smallbone, demonstrating significant cognitive distortion by

6.1.    irrationally denying the fact that Mr Smallbone’s five recommendations were made to the Parole Board and were rationally and reasonably intended to apply only during the applicant’s parole period, and that the Parole Board’s specific direction was that the applicant attend counselling with Dr Rosevear;

6.2.    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;

6.3.    failing to qualify this aspect of the 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;

6.4.    unreasonably failing 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;

6.5.    irrationally and unreasonably criticizing the report of Dr Kovacevic in terms of

6.5.1    failing to state qualifications in the area of child sex offending,

6.5.2    admitting to certain caveats including uncertainty as to risk in Indonesia,

6.5.3    engaging face‐to‐face with the applicant for less than 2 hours,

6.5.4    failing to address certain issues raised by Mr Smallbone 25 years earlier,

6.5.5    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 circumstance that the psychological credentials of the respondent, and her delegate 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 respondent’s lack of rationality in the area of psychology/treatment raises an apprehension of bias in the mind of a reasonable person.

7.    The respondent’s decision was irrational in finding the applicant to lack remorse on the basis of

7.1    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;

7.2.    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 a finding cannot be made by a reasonable person,

such irrationality arousing apprehension of bias in the mind of a reasonable person.

8.    In respect of the finding of ongoing lack of insight:

8.1.    The respondent’s reasons state 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 in treatment. No reasonable person would consider the text to display lack of insight at the present time, being 29 years after the manuscript was written;

8.2.    The reasons refer to the applicant’s letter to Frances as evidence of his lack of insight on the basis of the applicant’s disclosure that he had apologised to her son who had responded, in effect, that he was okay and had forgiven the applicant. A reasonable person would not find therein evidence of lack of insight and remorse at any time; the respondent’s view is the product of bias;

8.3.    Entertaining an entirely irrelevant consideration, the respondent referred to the applicant’s complaints to the Commissioner for Northern Territory Police on 15 November 2018 at a time when the applicant’s wife was dying and he was facing disaster; no reasonable person could find the content of this letter to evidence lack of insight;

8.4.    The respondent’s reasons 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;

8.5.    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 respondent concluded the applicant’s “ignorance” of that recommendation to evidence lack of insight. A reasonable person would find the reasoning irrational;

such irrationality arousing apprehension of bias in the mind of a reasonable person.

9.    The respondent assesses the applicant’s risk of reoffending relative to the day he completed the sex offender treatment program in 1995 and the day he was released from his 4‐month incarceration on the convictions (arising from allegations made concerning 1976) in March 2018. The respondent relies on the applicant’s “failure” to engage psychiatric treatment throughout the intervening period of 23 years, a requirement the reasons state to have been derived from the Smallbone report and notified to the applicant during 2018. The cognition and the misrepresented facts engaged in the face of 28 years of non‐offending are irrational and raise an apprehension of bias.

10.    The respondent persists in justifying the decision by reliance on a fact that does not exist, namely that the applicant has had direct contact with Indonesian children in performing inoculations, a matter aggravated by the fact that the applicant has no medical qualifications. The respondent’s conduct is perverse and raises an apprehension of bias.

11.    The respondent acts upon the decision of the Commissioner for Northern Territory Police to not vary the terms of permission given on 18 October 2018 and cause the applicant’s passport to be cancelled because of the applicant’s “deliberate” failure to return to Australia on 15 November 2018, conduct which in the circumstances is clearly excused under the doctrine of necessity. This consideration is irrelevant to the decision under review other than raising the applicant’s commitment to his wife and to his son as a matter supporting an assessment of low risk. It is perverse, and inhumane, the respondent oblivious to the applicant’s circumstances that were clearly envisaged to favour relief in submissions put to the legislature. It raises an apprehension of bias.

12.    The respondent referred to the applicant’s complaint about the conduct of police leading to his convictions in 2017 and having observed that he was bound to take the convictions into account appeared to make a finding that the offences did occur. While the submission that in doing so the respondent 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.

13.    While it was relevant to consider evidence of child protection measures in Indonesia, the respondent, asserting that “child protection” in Indonesia is not as robust as in Australia particularly because of a lack of a child sex offender register, “reporting requirements”, “associated deterrent effects” and unspecified “monitoring”,

13.1.    failed to consider the highly relevant evidence of the AFP operations from 2003 until the present time concerning the applicant in Indonesia;

13.2.    contending that the applicant shows little insight, failed to take into account the evidence provided in the applicant’s affidavit of 20 August 2018;

13.3.    unreasonably required the applicant to disclose his convictions as a self‐imposed “community notification” in Indonesia, a measure which is not required by Australian law in Australia for the reason that the law respects the former offender’s need for privacy in reintegrating with community;

the reasoning effectively rules out any possibility of giving permission and raises an apprehension of bias.

14.    The respondent continues to question the reliability of the evidence provided by the applicant, reasons citing two examples of inconsistent information:

14.1.    Dr Kovacevic reported the applicant as denying stress to be a common causal factor leading to his offending whereas in his letters of 1993 the applicant spoke of “depression and other stresses” leading him to become more reliant on boys for companionship and affirmation, constructs that are not incompatible,

and, admitting a “lesser” inconsistency,

14.2.    the applicant had reported his son’s age in late 2008 to be 10 years whereas Dr Kovacevic had recorded the boy’s age at the commencement of the applicant’s marriage to be 12 years, being a matter easily explained and of no relevance because the applicant had never had any need to commit such information to memory, relying instead on simple calculation which if required would have interrupted the assessment of the psychiatrist.

The respondent’s election to rely on such trivial examples suggests that there is no significant inconsistency and raises an apprehension of bias.

15.    To justify the decision the respondent made a finding that the applicant “is and always has been” homosexual, casting aspersions on his relationship with his wife and insinuating ongoing risk of offending against boys. A matter supporting the respondent’s view appears in the material to which he had regard: an allegation that in prison the applicant attempted to caress the lower body of a male adult prison officer. In fact the prison officer was female, and irrespective of whether the gender of the officer is able to be discerned on the record, the person advising the respondent changed the gender to suit her view of the applicant’s homosexuality, raising an apprehension of bias in the persons providing advice and recommendations to the respondent.

16.    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.

17.    The applicant had a legitimate expectation that in his circumstances from March 2018 until the present time, he would receive permission from the respondent to regain his family life in Indonesia. The primary basis for the expectation is found in the extrinsic material.

18.    The respondent’s decisions in the applicant’s case are manifestly disproportionate. Whilst acknowledging the applicant’s rights in terms of liberty and family, the respondent’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.

[emphasis in original]

15    It is desirable also to set out the relief claimed by Mr Mentink. He 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 respondent, being a 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 respondent is disqualified because of irremediable bias.

3.    An order setting aside the decision of the 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 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 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 with the right to return to Australia upon prior notification to a relevant competent authority,

alternatively,

6.    Such orders that do justice between the parties.

The nature of the jurisdiction

16    As can be seen, the fourth of the orders sought by Mr Mentink is premised on the Court itself also being a competent authority for the purposes of s 271A.1 of the Code. That is not a view shared by the Commissioner. Neither does it accord with the agreement which I expressed earlier in these proceedings in the interlocutory judgment with the conclusions reached by Doyle J in Zaharis v Commissioner of Police (2018) 337 FLR 70 (Zaharis). The Commissioner commended to me, and adopted by analogy in submissions, the reasoning in Zaharis.

17    In Zaharis, and in relation to South Australia, Doyle J concluded that the only relevant competent authority was that State’s Commissioner of Police. As I noted in the interlocutory judgment, such a conclusion was also consistent with the bases upon which Ammouche v Chief Commissioner of Police (2018) 266 FCR 430 (Ammouche) and Mentink v Commissioner for Queensland Police (2018) 335 FLR 64 (Mentink v QPOL) had earlier respectively been decided in this Court and in the Queensland Supreme Court. Each of those cases was decided on the footing that the competent authority was the chief police officer, however described, of the State concerned. As I observed in the interlocutory judgment, that would make the Australian Federal Police Commissioner a competent authority only in respect of those federal territories (not the Northern Territory) for which he was responsible for community policing.

18    The view which I expressed in the interlocutory judgment that the Court was not a competent authority for the purposes of s 271A.1 of the Code is, strictly, obiter. That is because the fact that it was the Queensland Police Commissioner, not the Australian Federal Police Commissioner, who made the relevant refusal of permission decision was itself a sufficient basis upon which to dismiss the latter as a respondent. For this reason, and in deference to the thoughtful, considered submissions made on the subject both by Mr Mentink and the Commissioner, for which I am truly grateful, I propose to consider the question of the role of the Court afresh. I have approached the question from first principles, so as to determine whether Zaharis is clearly wrong. Ordinarily, in a matter concerning the construction of a Commonwealth Act, and even though not bound so to do, I should follow a considered judgment on that construction point by a State or Territory Supreme Court. Further, because the role undertaken by the Court is fundamental to the approach to the determination of the proceedings, it is desirable that it be addressed first.

19    For the purposes of s 271A.1 of the Code, competent authority is defined by reference to the meaning of that term in s 12 of the Australian Passports Act or s 13 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (Foreign Passports (Law Enforcement and Security) Act). The combination of Mr Mentink’s Australian citizenship and his sometime holding only of an Australian passport means that it is not necessary further to consider the Foreign Passports (Law Enforcement and Security) Act.

20    I have already explained above how, by reference to that meaning, the Commissioner is a competent authority. I did not understand Mr Mentink to submit that it was never possible for the Commissioner lawfully to have given him permission to leave Australia for the purposes of s 271A.1 of the Code. Rather, one basis of his application, reflected in the fourth of the orders which he sought, was that it was additionally lawfully possible for the Court to grant him permission to leave, because the Court, too, was a competent authority.

21    Considering afresh whether the Court is a competent authority requires that s 12 of the Australian Passports Act, which includes the definition of that term, be set out in full:

12    Reasons relating to Australian law enforcement matters

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

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

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

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

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

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

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

Note:    See also Subdivision D.

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

(a)    an Australian citizen; and

(b)    a reportable offender.

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

(3)    In this section:

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

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

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

prevented from travelling internationally includes:

(a)    required to remain in Australia; and

(b)    required to surrender an Australian travel document; and

(c)    not permitted to apply for an Australian travel document; and

(d)    not permitted to obtain an Australian travel document.

reportable offender means a person:

(a)    whose name is entered on a child protection offender register (however described) of a State or Territory; and

(b)    who has reporting obligations (however described) in connection with that entry on the register.

22    Consideration of who is a competent authority for the purposes of s 271A.1 of the Code must, of course, commence with the text of that provision, read in context and having regard to the subject matter, scope and purpose of the Code and of the provision itself: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

23    Reference to the text of s 271A.1 and context leads to the conclusion that the adoption, in that section, of the definition of competent authority in, materially, s 12 of the Australian Passports Act is no coincidence. The POTCSO Act not only inserted s 271A.1 into the Code. At the same time, it also, inter alios, amended s 12 of the Australian Passports Act so as to introduce s 12(1A) and also the definition of “reportable offender” found in s 12(3). Having regard to the wording of that definition of “reportable offender”, and to a like formulation in the text of s 271A.1, it is obvious that the prohibition on leaving Australia, subject to the granting by a competent authority of permission, in s 271A.1 of the Code, and the ability of a like competent authority in s 12(1A) of the Australian Passports Act to request the cancellation of the Australian passport were intended to operate in relation to the same class of persons not just in a mutually complementary way but also in a way which complemented the operation of State and Territory regimes providing for a child protection offender register (however described) and for reporting obligations (however described) in connection with an entry on such a register.

24    This conclusion is reinforced by consideration of the wider context offered by areas of Commonwealth and State and self-governing territory executive governmental responsibility and legislative competence.

25    This exercise of Commonwealth legislative power via the amendments made by the POTCSO Act is not just a manifestation of legislative competence in relation to “emigration” and “external affairs” as respectively found in s 51(xxvii) and s 51 (xxix) of the Constitution. It also can be seen as a recognition by the Parliament that the responsibility for the conduct of Australia’s foreign relations is vested in the Queen, in her capacity as Queen of Australia, and exercisable by the Governor-General on the advice of the Federal Executive Council, as part of the executive power of the Commonwealth (s 61 and s 62 of the Constitution respectively). Shortly put, the responsibility for the conduct of Australia’s foreign relations is for the Australian government, not those of the several States and Territories. Insofar as an exercise of legislative power is needed to augment the Australian government’s conduct of those foreign relations, the heads of legislative power in s 51 of the Constitution just mentioned are two of those available to the Parliament to enact such measures as considered necessary.

26    In contrast, in the absence of the domestic implementation of an international agreement to which the Australian executive government has subscribed or a choice, in respect of a territory, to exercise the power found in s 122 of the Constitution, the establishment of a child protection offender register and the imposition of reporting obligations in connection with an entry on such a register are subjects within State or self-governing territory legislative competence, not Commonwealth legislative competence. So, too, is the criminalisation of conduct with respect to children within their borders. However, the travel abroad of individuals on such a register, subject to such reporting obligations, is within the purview of the executive government of the Commonwealth in the conduct of Australia’s foreign relations.

27    In enacting the POTCSO Act, the Parliament was self-evidently persuaded of the desirability of not diffusing responsibility in relation to a given individual who was a member of a specified class. One purpose served by that Act, via the amendment of the Code, was to provide for a measure of control over whether a member of that class might leave Australia. Subject to what might be regarded as a failsafe reservation granted to the relevant federal Minister, both the identification of the repository of the power as a competent authority to grant permission to leave Australia in s 271A.1 and, in turn, the ability to make a “refusal/cancellation request” under s 12 of the Australian Passports Act focus on responsibility for a particular circumstance. For present purposes, having regard to the correspondence between s 271A.1(1)(b) and (c) of the Code and s 12(1A)(b) and the definition of “reportable offender” in the Australian Passports Act, the material circumstance, in terms of the meaning of competent authority in s 12(3) of the Australian Passports Act, is a child protection register and related reporting obligations in connection with that register. The necessary inference, arising from the text and context of the amendments made by the POTCSO Act, is that the Parliament considered it inherently likely that a person with the experience gained of a particular individual and from the day to day exercise of responsibility for a child protection register and related reporting obligations would be well-placed to decide whether that individual should be granted permission to leave Australia.

28    In relation to Mr Mentink, the relevant child protection register and related reporting obligations are those for which CP(OR) Act provides. The question therefore becomes who is the person (or perhaps persons) who has responsibility for, or powers, functions or duties in relation to, that register and related reporting obligations under that Act? It is that person who will be the competent authority for the purpose of granting or refusing, under s 271A.1(3) of the Code, permission to leave Australia.

29    Were a court, any court, to have such a responsibility or powers, functions or duties, and subject to a reservation stemming from the ordinary meaning of “person”, canvassed below, s 271A.1(3) would, by necessary implication, confer on that court federal jurisdiction in the exercise of which permission to leave Australia might be granted or refused.

30    In contrast, and contrary to a submission made by Mr Mentink, were an administrative official, be that the Commissioner or another, not a court, to have such a responsibility or powers, functions or duties, “necessity” arising from bias, actual or apprehended, on the part of that administrative official could never be a source of federal judicial power alternatively to decide a matter consigned by Parliament to the decision of that administrative official. In relation to judicial power, all that necessity might, exceptionally, dictate is that a jurisdiction otherwise lawfully conferred on a court might have to be exercised by that court constituted by a particular judge or judges, because none other were available to constitute that court, even though, for some reason, it would otherwise not have been appropriate for that judge or judges to constitute that court: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 96 per Deane J; and see, generally, Cranston R, “Disqualification of Judges for Interest, Association or Opinion” (1979) Public Law 237, at 239, and Tracey R, “Disqualified Adjudicators: The Doctrine of Necessity in Public Law” (1982) Public Law 628.

31    By virtue of s 68(1) of the CP(OR) Act, it is the Commissioner who must “establish a child protection register or arrange with another entity to establish a child protection register on his or her behalf”. Control of access to the register and the release of information on the register and the maintenance of confidentiality in relation to the register are the responsibilities of the Commissioner: ss 69, 70, 71 and 72 of the CP(OR) Act. It is the Commissioner who has the responsibility of determining, upon an application for review, whether an entry on the register should be corrected: s 74 of the CP(OR) Act.

32    Under the CP(OR) Act, this Court has no role to play in relation to the discharge of these functions or in the exercise of related powers. Indeed, having regard to Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Wakim), one might doubt whether it would be within the legislative competence of any State parliament to confer any jurisdiction under the CP(OR) Act on this Court. The attempt, via State cross-vesting legislation, to confer State judicial power on this Court was held to be invalid in Wakim.

33    Regard to Pt 4 of the CP(OR) Act, which is directed to the subject of reporting obligations, discloses that it is the Commissioner to whom an individual subject to a reporting obligation must report. The core provision is s 19(1) of the CP(OR) Act, which provides, “A reportable offender must make a periodic report in each reporting month, starting in the first reporting month after the offender makes the offender’s initial report”. Also noteworthy are the obligations to report travel outside Queensland, including travel outside Australia (s 20) and the Commissioner’s obligation to inform the AFP Commissioner of “a reportable offender’s intentions in relation to travel out of Australia” (s 24). Mr Mentink’s reporting obligation began when he was sentenced in 2017 and will end five years thereafter: s 35(1)(b) and s 36(1)(a)(ii), CP(OR) Act respectively. All of the related provisions assign functions and related powers to the Commissioner. None are given to this Court. Once again, one might doubt, in light of Wakim, whether, validly, they ever could be.

34    Mr Mentink made reference in his submissions to the jurisdiction which the CP(OR) Act vests in a court to make prohibition orders on the application of the Commissioner in relation to a “relevant sexual offender” who has engaged in “concerning conduct”: see, generally, Pt 3A of the CP(OR) Act. It may readily be accepted that not all of the functions and related powers for which the CP(OR) Act provides are conferred on the Commissioner. Indeed, some of the decisions of the Commissioner in relation to reporting obligations may, after internal review, be the subject of an appeal to the Magistrates Court: see s 67G and s 67J and sch 4 of the CP(OR) Act. Significantly however, “If the Magistrates Court amends the decision or substitutes another decision, the amended decision, or the substituted decision, is taken to be the decision of the police commissioner for the purposes of this Act, other than this part”: s 67J(5) of the CP(OR) Act (emphasis added). Judgments of that Court on these matters are thus assimilated with those of the Commissioner. Also, once again, this Court has no appellate jurisdiction in respect of these decisions and one might doubt, in light of Wakim, whether, validly, any such jurisdiction could be so conferred.

35    Further, and in any event, the relevant “circumstance” for the purpose of identifying the competent authority is not any of the judicial ones under the CP(OR) Act identified by Mr Mentink, but rather that specified by me earlier. Having regard to Mr Mentink’s circumstances and to the CP(OR) Act, the answer to who has responsibility for the child protection register and related reporting obligations is the Commissioner and only the Commissioner.

36    Mr Mentink also made reference to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act). He submitted that, “It is clear that the CP(OR) Act and the related amendments to the Passports Act and the Commonwealth Criminal code must be read in the context of the DPSO Act”. This was on the basis that the intrusions on civil liberties for which the DPSO Act provides by way of continuing detention or supervision orders could only occur via an exercise of judicial power either in the original jurisdiction of the Queensland Supreme Court in its Trial Division or, on appeal, by an order of the Court of Appeal (or by special leave to appeal, the High Court). He also made reference to the purely administrative roles undertaken by the Commissioner under the CP(OR) Act in contrast to the exercise of judicial power under that Act by a Magistrates Court or, on appeal, a District Court or, as the case may be, the Childrens Court.

37    As I understood it, given the need under both the DPSO and CP(OR) Acts for an exercise of judicial power in relation to the restrictions on civil liberties, Mr Mentink’s submission was that it would be incongruous to construe the power to grant or refuse permission to travel outside Australia found in s 271A.1(3) of the Code, and its incorporation by reference of the meaning of competent authority in s 12 of the Australian Passports Act, as conferring that power on an administrative official such as the Commissioner rather than on a court.

38    The meaning of competent authority in s 12 of the Australian Passports Act is responsibility for circumstance focussed. The definition in s 12(3), Australian Passports Act looks to more than one circumstance. However, and as I have already observed, given the application of s 271A.1 of the Code to those whose names are on a child protection register (however described) and who have reporting obligations (however described) in connection with that entry on the register, the relevant “circumstance” must be that set out in s 12(1A) of the Australian Passports Act.

39    The parenthetical addition of “(however described)” both in s 271A.1 itself and in the definition of “reportable offender” in s 12(3) of the Australian Passports Act, necessarily means that, in the identification in a given case of that “circumstance” and related responsibility, one is concerned with substance, not form. I also accept that there is an ambulatory quality to competent authority in its application. There may, conceivably, be more than one child protection register (however described) and related reporting obligations (however described) in connection with an entry on such a register. The obvious example, unsurprising because s 271A.1 of the Code is intended not just to operate nationally but also federally, is that each State or self-governing territory may have one such regime. But it is also conceivable that there may even be more than one register (however described) within a given State or Territory. It may also be that, under particular legislation providing for a child protection register (however described) and related reporting obligations (however described) in connection with an entry on such a register, responsibility for, or powers, functions or duties in relation to, that circumstance may not necessarily repose just in a police commissioner or any other officer of an executive government, but also, or rather, in a court. Parliament’s intent is to empower each competent authority with responsibility for the relevant “circumstance”.

40    None of this means that the power granted by s 271A.1(3) of the Code to grant or refuse permission to travel outside Australia can only repose in a court. Mr Mentink did not, in terms, submit that, only that having regard to judicial powers exercisable under the DPSO and CP(OR) Acts, it would be incongruous not also so to construe the power to grant or refuse permission to leave Australia as extending to a court.

41    In R v Davison (1954) 90 CLR 353 (Davison), at 368, Dixon CJ and McTiernan J observed, “The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively”. The converse can also be true, subject, federally, to a constraint on the Parliament’s ability validly to confer a power to make binding and authoritative decisions in respect of a justiciable controversy otherwise than on a court constituted in accordance with Ch III of the Constitution: see, for example, Lane v Morrison (2009) 239 CLR 230.

42    It is by no means impossible to see how a function to grant or refuse permission to leave Australia to a member of a particular class of persons might be conferred on a court. However, to acknowledge that does not mean that such a function can only be so conferred. Further, had such a submission been advanced, it would necessarily have raised a question arising under the Constitution, requiring the giving of notices to the various Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) and a related adjournment for a reasonable time to allow an opportunity for intervention or an application for removal into the High Court.

43    In relation to entry to Australia by non-citizens, hundreds of thousands of decisions under the Migration Act 1958 (Cth) are made administratively by the relevant Minister and his delegates annually pursuant to a valid exercise of Commonwealth legislative power. There could be no question that such decisions could only be made by a court. Also under that Act, decisions to deport, or which engage an obligation to deport, a non-citizen are frequently made by the relevant Minister and his delegates without there being any question that such decisions could only lawfully be made by a court. In theory, a power to order deportation for cause of a non-citizen might be conferred on a court but that does not mean it must be. Equally, a power to grant or refuse permission for a citizen falling within a particular class to emigrate might be conferred on a court but that does not mean that it must be.

44    What is entailed in relation to whether this type of power is conferred on a court or an administrative official, or perhaps even each, is a policy value judgment for the Parliament to make. Parliament has, via the amendments made by the POTCSO Act, decided that persons falling within a specified class ought not freely to be able to travel abroad. The place of intrusion on civil liberties and proportionality arguments and judicial power examples offered by the DPSO and CP(OR) Acts advanced by Mr Mentink in his submissions is in a representation to Parliament. The parliamentary value judgment having been made and found in amendments effected by the POTCSO Act, it is merely necessary to construe the text chosen by the Parliament. For the reasons given and in the circumstances of this case, that leads inexorably to a conclusion that, in the present case, the only competent authority is the Commissioner.

45    Another possible basis upon which it might be concluded that neither this Court nor any other court had power under s 271A.1(3) of the Code to grant or refuse permission to leave Australia is that the word “person”, in the incorporated meaning of competent authority, does not, as a matter of ordinary English, naturally extend to a court. In the context of official secrecy provisions in income tax legislation, “person” has not been regarded as embracing a court: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, at 6, per Dixon CJ; Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257, at 262 (Full Court). Neither does the ordinary legislative meaning given to “person” by s 2C(1) of the Acts Interpretation Act 1901 (Cth) make that word extend to a court. However, I expressly refrain from reaching a concluded view on this point as it is unnecessary so to do in the circumstances of the present case.

46    I therefore conclude that this Court has no jurisdiction under s 271A.1(3) of the Code to grant or refuse permission to leave Australia. The jurisdiction invoked by Mr Mentink is solely to review under the ADJR Act the administrative decision made by the Commissioner under s 271A.1(3) of the Code to refuse him permission to leave Australia. Approaching the subject afresh and from first principles, I have reached a like conclusion to that reached by Doyle J in Zaharis as to the person who is a competent authority and, as it happens, for like reasons.

47    I should record that having reached this conclusion in that fashion, I consulted but have not been assisted by the Explanatory Memorandum in respect of the Bill which became the POTCSO Act. In [13] of Scheudle 1 of that memorandum it is stated:

13.    In the context of new subsection 12(1A), a competent authority will generally be the relevant State or Territory authority, namely a State and/or Territory’s court, sex offender registry, or police.

[emphasis added]

I have acknowledged that there is an ambulatory quality in the definition of competent authority. That is consistent with the view expressed in the Explanatory Memorandum. Whether, as the then Minister for Foreign Affairs apprehended in circulating that memorandum, the power introduced by that Act to grant or refuse permission to leave Australia in respect of a particular individual falling within the specified class extends to any court is, however, aptly left to a case where responsibility for the “circumstance” dictates that the point must be addressed.

48    That the jurisdiction exercised by the Court is under the ADJR Act does, with respect, sound an interrogative note as to the jurisdictional basis upon which the Queensland Supreme Court entertained the application for the review of the earlier decision under s 271A.1 of the Code in Mentink v QPOL. It could not, with respect, have been under the Judicial Review Act 1991 (Qld), because a decision under s 271A.1 of the Code is a decision under an Act of the Commonwealth, not the Queensland, Parliament. Subject, materially, to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth Cross-vesting Act), the jurisdiction to review a decision to which the ADJR Act applies is not exercisable by any court of a State: s 9, ADJR Act. For the purposes of the Cth Cross-vesting Act, a proceeding under the ADJR Act is a “special federal matter”: see para (1)(c) of the definition in s 3 of the Cth Cross-vesting Act. In relation to a State Supreme Court and in respect of a “special federal matter”, the conferral of additional jurisdiction on such a court by s 4 of the Cth Cross-vesting Act is qualified by the requirements found in s 6 of that Act. Materially, in Mentink v QPOL, there is no reference either to the ADJR Act or to the Cth Cross-vesting Act, much less to the making of an order under s 6(3) of the Cth Cross-vesting Act, after notice under s 6(4) to the Commonwealth Attorney-General and to the Queensland Attorney-General, that the Court was satisfied that there were special reasons for its determining the proceeding in the particular circumstances of the proceeding. It seems likely that in Mentink v QPOL, the Court’s attention was not drawn by counsel to the ADJR Act and to the Cth Cross-vesting Act. The absence of the giving of notice under s 6(4) or of the making of an order under s 6(3) would not have invalidated the decision in Mentink v QPOL: s 6(9), Cth Cross-vesting Act.

49    In contrast, in Zaharis, it is patent that the Court was well aware of the impact of the ADJR Act and the Cth Cross-vesting Act but, having concluded that the application before it would fail in any event, determined that there would be no utility in adjourning the proceedings for further consideration of the issue of whether special reasons existed.

50    The present case offers a useful opportunity to remind those who would challenge on judicial review a decision made under s 271A.1(3) of the Code that, in the absence of a special reason, and that is not found in the convenience of the parties, the proceeding should be instituted, if the challenge is brought under the ADJR Act, in this Court or, because it has concurrent jurisdiction under that Act, in the Federal Circuit Court of Australia, not in a State or Territory Supreme Court. If, either further or alternatively, reliance is placed on s 39B(1) of the Judiciary Act 1903 (Cth), in which the Federal Circuit Court of Australia does not have concurrent jurisdiction, the challenge ought ordinarily be instituted in this Court.

Rights of Challenge

51    That the ADJR Act applies to a decision made under s 271A.1(3) of the Code does not, ipso facto, mean that the rules of natural justice or procedural fairness apply to such a decision: Kioa v West (1985) 159 CLR 550 (Kioa v West), at 577, per Mason J (Deane J, at 630 agreeing), at 594, per Wilson J (Deane J, at 630, agreeing), at 625, per Brennan J. However, affecting as it does, a freedom otherwise enjoyed by Mr Mentink, a duty arises at common law to observe those rules: Kioa v West, at 584, per Mason J, at 593, per Wilson J, at 609, per Brennan J, at 632, per Deane J.

52    There is nothing in the Code which either expressly or by necessary implication excludes the application of the common law to such a decision. The application of the rules of natural justice meant that Mr Mentink was entitled to know the case sought to be made against him and to be given an opportunity of replying to it. He was also entitled to have the decision in respect of his travel application made impartially, that is by a person who was neither actually biased nor could, reasonably, be apprehended to be biased.

53    Apart from a right, in the circumstances, to challenge the refusal decision on the basis of non-observance of the rules of natural justice, the ground for which s 5(1)(a) of the ADJR Act provides, Mr Mentink was also able to challenge the decision on other grounds for which s 5(1) of the ADJR Act provides, to the extent those grounds of challenge were applicable in the circumstances of his case.

54    Upon being convicted and sentenced in 2017 of the offences charged, Mr Mentink did not thereby forfeit all civic rights. He became subject per force of statute to certain limitations on his freedoms for which the Parliament, via the amendments made by the POTCSO Act, and the Queensland Parliament, via the CP(OR) Act, each within the limits of their respective legislative competencies, had provided. He did not thereby forfeit a right to observance of the rules of natural justice in the making of a decision under s 271A.1 of the Code. This proposition legitimately premised Mr Mentink’s submissions.

55    It is desirable to make these further observations in relation to that premise. Public opprobrium for crimes of a sexual nature, especially those involving minors, does not extinguish an obligation impartially to decide questions which arise concerning whether or not to impose a particular restriction on what would otherwise be the freedoms of a person convicted of such a crime. In the face of such public opprobrium, which may well include the related rhetoric of politicians, interest groups self-appointed and otherwise, and the media, singular independence of character and thought is required of those in either the judicial branch or, as the case may be, the executive branch who are charged with making decisions which may impact upon the freedoms of those convicted of such crimes. I had occasion in 2017 in Singh (Migration) [2017] AATA 850, at [18], to remark on this requirement when acting as President of the Administrative Appeals Tribunal. Refusal, under s 271A.1(3) of the Code, of permission to leave Australia offers an example of a restriction on freedoms. For the Commissioner or her delegates discharging the role of competent authority to refuse permission to leave Australia in deference to such rhetoric or so as to garner favour would be a form of official misconduct, all the more serious because such conduct can have insidious qualities not readily detected. That is to be contrasted with legitimately taking into account statutory purpose or public policy.

56    I turn now to consider the various grounds of review as discernible from Mr Mentink’s amended originating application.

Bias – Actual or Apprehended

57    It is common ground that the refusal decision was made by a delegate of the Commissioner, Detective Superintendent Denzil Clark, who is the officer in charge of the Child Abuse and Sexual Crime Group within the Queensland Police Service’s State Crime Command.

58    Mr Mentink alleged what he termed “inherent bias” on the part of Detective Superintendent Clark as well as an apprehension of bias arising from the circumstances, which materially included the reasons which he gave for the decision adverse to him.

59    I took Mr Mentink’s allegation of inherent bias to amount to an allegation of actual, albeit subconscious, bias on the part of Detective Superintendent Clark.

60    In order to prove actual bias, Mr Mentink would have to prove that Detective Superintendent Clark had approached the task of whether or not to grant him permission to leave Australia with a closed mind, in effect that he was unable or unwilling to do other than refuse permission. An allegation of actual bias requires an assessment of the state of mind of the decision-maker rather than a conclusion as to what a reasonable, fair minded, by observer acquainted with the circumstances might apprehend: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [33] (Michael Wilson).

61    The onus of proving this fell on Mr Mentink. Though the standard of proof would remain proof on the balance of probabilities, it is nonetheless not a conclusion that ought lightly to be made: Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 (Sun), at 123, per Wilcox J and, at 127, per Burchett J; s 140, Evidence Act 1995 (Cth). I accept, as Burchett J allowed in Sun, at 127, that actual bias might be subconscious and proved as a matter of inference from other facts but it remains a grave finding to make.

62    Mr Mentink submitted that Detective Superintendent Clark was inherently biased because he not only had to make an evaluative judgment under s 271A.1(3) of the Code as to whether to grant him permission to leave Australia but also had responsibility for “detecting offenders and prosecuting and incapacitating them”. It was not controversial that Detective Superintendent Clark’s duties, as his then title of post indicated, extended to investigating and, if evidence gathered warranted, bringing charges concerning sexual crimes involving children.

63    Mr Mentink also reiterated, in relation to alleged inherent bias, a submission that the evaluation of risk, conceded to be relevant to a decision under s 271A.1(3) of the Code, was a task which required an exercise of judicial, not administrative power, because of the potential of the decision to intrude on civil liberties. He again cited the examples offered by the DPSO and CP(OR) Acts in relation to the conferral of judicial power in respect of the making of decisions affecting the civil liberties of those convicted of particular sexual offences.

64    As I have already stated, the present is just one of those cases where the Parliament might, perhaps, have chosen to consign, or at least non-exclusively to consign, a jurisdiction to grant or to refuse permission to a court. For reasons which I have already given, in relation to Mr Mentink’s circumstances and on the construction I have adopted of s 271A.1(3) of the Code, the jurisdiction to grant or refuse permission to travel from Australia has been consigned to the Commissioner. That is a parliamentary value judgment made within the limits of legislative competence. Such value judgments are to be respected by the courts. They may not be impeached or questioned in a court exercising federal jurisdiction under a bias error ground on the basis of a submission that greater independence of decision-making might have been afforded to a person affected had the jurisdiction been assigned to a court. The place for such a submission is in the court of public opinion and in representations to parliament.

65    The Commissioner, Detective Superintendent Clark and all officers, non-commissioned officers and constables within the Queensland Police Service have the powers of a constable at common law in addition to those which they have under any other Act or law, the difference being that non-commissioned officers and constables are to exercise such powers, whereas the others mentioned may exercise them: s 3.2(2) and s 3.2(3), Police Service Administration Act 1990 (Qld); see also s 9(a), Police Powers and Responsibilities Act 2000 (Qld).

66    At common law, constables “had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony”: Enever v The King (1906) 3 CLR 969, at 975 – 976, per Griffith CJ, Barton J, at 985, agreeing but adding additional reasons; and to like effect per O’Connor J, at 991 – 992. Having the powers and duties of a constable, neither the Commissioner nor Detective Superintendent Clark could, for example, if they had encountered it, have ignored evidence that Mr Mentink had committed the offences of which he was convicted in 2017.

67    In terms of the very heritage of our system of government, there is inherent tension in the notion that actual bias is to be found just in the selection of the holder of the office of constable to make a decision such as the present. Rendered into modern English and numbered, cl 45 of Magna Carta 1215 (Eng) provides:

(45)    We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.

(British Library, English translation of Magna Carta, published online, 28 July 2014)

68    The point of recalling this feature of office shared by both the Commissioner and her delegate, Detective Superintendent Clark, is that not only is each of the Commissioner and, by delegation, Detective Superintendent Clark a competent authority for the purposes of s 271A.1(3) of the Code, each also has all of the powers and duties of a constable at common law. Parliament has thus chosen to grant the power to grant or to refuse permission to travel outside Australia to the holder of an office whose duty it is to conserve the public peace (also known in a constitutional monarchy such as ours as the Queen’s peace). That legislative choice cannot itself be proof of actual bias in the exercise of the power to grant or to refuse permission to travel: Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551, at 566.

69    In part, these propositions also answer Mr Mentink’s objection to Detective Superintendent Clark being the repository of delegated authority from the Commissioner to exercise the power as competent authority. Any member of the Queensland Police Service to whom the Commissioner delegated her power would, necessarily, have the powers and duties at common law of a constable, in addition to those for which statute provided. Further, and also part of that legislative choice, it is the Commissioner who is charged under the CP(OR) Act with establishing and maintaining the child protection register. Apparently, these obligations are discharged by officers within the Queensland Police Service under Detective Superintendent Clark’s command.

70    The relevant distinction, however, and this takes up another of Mr Mentink’s submissions, is that Detective Superintendent Clark is the officer within the Queensland Police Service who has direct command responsibility for the Child Abuse and Sexual Crime Group. It necessarily follows, in Mr Mentink’s submission, that by holding this office Detective Superintendent Clark must, at least subconsciously, actually be biased against him in deciding whether to grant him permission to travel. In other words, the very choice made by the Commissioner as to which officeholder was to be the repository of delegated authority was necessarily productive of actual bias. Relying on an inference so as to prove actual bias, manifests a choosing by Mr Mentink to assume a more difficult proof than would be necessary to sustain a reasonable apprehension of bias on the same factual foundation.

71    There is certainly not a scintilla of direct evidence, his reasons (analysed below) included, which would support a conclusion of actual bias on the part of Detective Superintendent Clark. It is relevant to consult Detective Superintendent Clark’s reasons for the purpose of determining whether they evidence actual, as opposed to a reasonable apprehension of, bias: Michael Wilson, at [67]. Yet further, it would be fallacious to draw an inference that Detective Superintendent Clark must actually have been biased because he decided the application adversely to Mr Mentink: Michael Wilson, at [67].

72    One difficulty about reliance on the particular office which Detective Superintendent Clark holds is that, even where the inference promoted is for the different purpose of supporting a reasonable apprehension rather than an actuality of bias, it by no means follows that the possession of prior experience in a particular field (Labour Relations Board of Saskatchewan v John East Iron Works Limited [1949] AC 134, at 151 (John East Iron Works)) or that, in combination with having acted in the past for a party to a case (Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 (Polites)) will be sufficient to support such an inference. Indeed, prior experience can be a desirable feature for administrative decision-making in particular fields.

73    There is no evidence that Detective Superintendent Clark had any personal interest in the making of a decision adverse to Mr Mentink any more than there is no evidence which would show he had a personal interest in making a decision in his favour. Irrationality or illogicality or unreasonableness, each also error grounds advanced by Mr Mentink, might be steps along the way to an inference of actual bias but would not, even if present, dictate that conclusion. A wrongheaded decision may nonetheless be one made in good faith. I do not accept that the office held by Detective Superintendent Clark inferentially means that he has been shown actually to be biased. If anything, the training and experience of a senior detective ought, inferentially, to carry with it knowledge that adverse findings require supporting evidence.

74    The better inference to draw from the Commissioner’s choice of the officer in charge of the Child Abuse and Sexual Crime Group is that she has selected a subordinate within the Queensland Police Service peculiarly suited, in her view, by training, responsibility and experience to make an assessment about the risk presented by the class of persons to whom s 271A.1(3) of the Code applies. Risk of the commission of the type of offence conviction and sentencing in respect of which makes a person a reporting offender whose name is entered on the register and who is subject to reporting obligations is, undoubtedly, a relevant consideration in relation to granting or refusing permission to leave Australia. Such choices of delegate are, as the Commissioner submitted, for the Commissioner, not for the courts to make. The remit of a court is not to act as a type of police service ombudsman, it is only, materially, to determine whether, in a given case brought before it, a ground of review has been established. If the evidence in a given case reveals that the Commissioner has selected a delegate who is actually biased or whom in the circumstances might reasonably be apprehended to be biased, then that delegate’s decision on behalf of the Commissioner will be quashed by an exercise of judicial power. In some cases, perhaps, that quashing may carry with it ramifications in relation to the continued suitability for office of the Commissioner herself, in other cases it may not but such assessments would not be for a court to make.

75    I am not at all persuaded that the holding by Detective Superintendent Clark of the position of officer in charge of the Child Abuse and Sexual Crime Group inferentially means that he must have prejudged Mr Mentink’s application. Further, in relation to actual bias, any such inference would have to go beyond establishing a tendency of mind (and it does not even do that). The requisite state of mind which would have to be established is one so fixed as to be incapable of alteration, whatever the evidence may be. This was emphasised by Gleeson CJ and Gummow J in their joint judgment in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, at [72]:

… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

76    There is just no evidence which would inferentially support a conclusion that Detective Superintendent Clark had such a state of mind. I therefore reject the allegation of actual bias.

77    What of the alternative allegation that there existed, in the circumstances, a reasonable apprehension of bias on the part of Detective Superintendent Clark?

78    In their joint judgment in CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 (CNY17), Nettle and Gordon JJ summarised the test for apprehended bias as follows:

56.    The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”. A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is “reasonable” is not assisted by philosophical conceptions of the varieties of seriousness or materiality.

[footnote references omitted]

The test entails the answering, successively, of two questions:

(a)    A source of partiality question – what it is that might lead a decision-maker to decide a case other than on its legal and factual merits?

(b)    A logical connection question – is there “a logical connection … between the identified thing and the feared deviation from deciding the case on its merits”?

CNY17, at [57], per Nettle and Gordon JJ.

79    In that same case and to no different effect, at [132], Edelman J referred to the test as entailing a “double might”, his Honour’s formulation being, “whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial and independent mind to the fair resolution of the issue to be decided” (emphasis in original). Recently, in AAL19 v Minister for Home Affairs [2020] FCAFC 114 and with reference to this formulation and to observations made by Baroness Hale in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731, at [38], the Full Court observed, at [91]:

… In context, his Honour’s reference to “independence” appears to be a reference to independence of thought rather than institutional independence. As to the latter, in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731, at [38], Baroness Hale opined that impartiality and independence in the institutional sense were separate although not unrelated, stating, “[i]mpartiality is the tribunal’s approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also in the perception of the public”.

80    One limb of Mr Mentink’s submissions in relation to bias, either actual or apprehended, on the part of Detective Superintendent Clark was in substance a contention that, given his position, he lacked institutional independence, relative, for example, to members of the judicial branch of government to who particular decision-making roles were consigned under the DPSO and CP(OR) Acts. Even though, at common law, any holder of the office of constable is afforded a measure of independence, I accept that Detective Superintendent Clark does not, as a member of the Queensland Police Service, enjoy the same institutional independence as a Queensland judge or magistrate. But the relevant apprehension must be that he might not have brought independence of thought to the making of the decision with respect to Mr Mentink’s application.

81    As I have already highlighted by reference to John East Iron Works and Polites, possession of prior relevant experience can be viewed by a parliament as a desirable feature in public administration decision-making. Parliament has in the amendments to the Code made by the POTCSO Act evidently selected as a competent authority a person whom one might expect to have, by office, prior relevant experience and done so in a way which reflects the allocation of responsibilities in our Federation. The source of partiality is not to be found in that selection alone.

82    Perhaps the closest, recent example of the type of apprehended bias case sought to be advanced by Mr Mentink is offered by Isbester v Knox City Council (2015) 255 CLR 135 (Isbester). That case was decided against the following background. An officer of the Knox City Council determined that charges should be laid against Ms Isbester as her Staffordshire terriers had attacked another dog and one of the terriers had bitten a person. That officer arranged for the charges and summonses to be drafted, and signed some of the charges. She also gave instructions to the council’s lawyers to prosecute the charges and to negotiate pleas. Ms Isbester subsequently pleaded guilty to the charges. The same council officer thereafter arranged for a panel of three delegates of the council, including herself, to conduct a hearing to determine whether to recommend that the dog which bit the person should be destroyed. The panel conducted the hearing, deliberated and recommended that the dog should be destroyed. The council officer participated fully in the hearing as a member of the panel. Against this background the High Court concluded, in respect of a bias challenge to the panel’s decision, that a fair-minded observer might reasonably apprehend that the council officer might not have brought an impartial mind to the panel’s decision. In that case, an interest on the part of the council officer, which pointed to a conflict of interest, when participating in the panel’s decision was able to be identified.

83    Had Detective Superintendent Clark been shown, on the evidence, actively to have participated in the investigation and charging of Mr Mentink in respect of the offences of which he was convicted in 2017, or even perhaps those in respect of which he had earlier been convicted (detailed below), he may have been able to advance an Isbester analogy based challenge on the footing that, though a delegate, Detective Superintendent Clark had an analogous interest that indicated an analogous conflict of interest. Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and Dickason v Edwards (1910) 10 CLR 243 would offer similar examples, from earlier times, of circumstances giving rise to this type of apprehended bias.

84    On the evidence, Detective Superintendent Clark is not shown to have had any such prior personal involvement. Even if there were such evidence, a question would arise as to whether Detective Superintendent Clark’s earlier role could be “quarantined” from his later role as, by delegation, a competent authority decision-maker: qv Isbester, at [41] – [42]. The position would not be as stark as in Isbester, where the destruction order might alternatively have been sought to have been made in the proceedings in respect of which the council officer was prosecutor. Given the absence of foundational evidence, it is not necessary further to consider this point. As it is, the mere holding by Detective Superintendent Clark of his particular appointment within the Queensland Police Service does not, reasonably, give rise to an apprehension of bias in relation to the deciding of Mr Mentink’s application for permission to travel.

85    On the evidence, Mr Mentink’s apprehended bias allegation fails at the first hurdle. There is nothing which might have led Detective Superintendent Clark to decide his application for permission to travel other than on its legal and factual merits. Alternatively, even were the interest found in the other duties of his position, there is no logical connection between those other duties and the alleged deviation from deciding the application on its merits.

Collective Involvement

86    Mr Mentink did not plead as a separate ground of challenge that the refusal decision was not truly that of Detective Superintendent Clark. He did, however, put in submissions that, “While Mr Clark takes responsibility for the decision and signs the statement of reasons, he and his staff are collectively involved in making the decision”.

87    The evidence discloses that consideration of Mr Mentink’s application for permission to travel outside Australia passed up a chain of command within the Child Abuse and Sexual Crime Group of the Queensland Police Service to Detective Superintendent Clark. He acted on the recommendations of subordinates. That does not mean that the decision is not his or that the reasons for the decision are not his. He has signed off on the decision and on the reasons for that decision thereby, prima facie, evidencing both that he had the decision and that his reasons were as stated. There is nothing to displace that prima facie position. So it is inaccurate to describe the decision as a “collective”.

88    Unless, exceptionally, a statute provides, or its very nature indicates, that a power, in all aspects of its exercise, can only be undertaken personally by a nominated member of the executive branch, the ordinary position is that a Minister, departmental head or a delegate thereof is entitled to adopt and act upon factual summaries, submissions and related recommendations made by subordinates. Public administration would be unworkable were that not so. The corollary to this, however, is that the unqualified adoption by a decision-maker of such summaries, submissions and related recommendations adopts not only their virtues but their vices. The relevant principle was stated by Gibbs CJ in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 30 – 31:

Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

89    Consideration of Mr Mentink’s other grounds of review thus does not entail whether there is error of law in a “collective decision”. It may, however, reveal that the adoption by Detective Superintendent Clark of the recommendations of subordinates as manifested in his reasons also entailed the adoption, as his own, of a transgression of a pleaded statutory ground of review.

Indefinite and unqualified permission to leave Australia

90    Mr Mentink submitted that Detective Superintendent Clark made an error of law because he “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”. Understanding this alleged error requires that [69] and [70] of Detective Superintendent Clark’s reasons be set out:

69.    The Applicant’s period of travel is proposed to be very lengthy. I am not in a position to provide indefinite and unqualified permission to leave Australia and therefore I must consider that the Applicant is not likely to return to Australia if he is not assured that he will be given further permission to travel, similar to his decision not to return to Australia from the Northern Territory.

Destination of Travel

70.    The Applicant wishes to travel to Indonesia indefinitely.

91    These paragraphs must, in turn, be read in the context of the reasons as a whole. Yet further, they must not be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 271 – 272. So read, it is apparent that all that Detective Superintendent Clark was saying in the impugned part of his reasons was that he could not give Mr Mentink what one might term a blanket “come and go” permission. This does not evince a misconstruction of s 271A.1 of the Code. An offence against that section is committed by a discrete departure from Australia without a related permission. The section contemplates that, in relation to permission, if sought, each proposed departure will be assessed on its merits having regard to duration, destination of travel and other considerations relevant to the proposed travel.

92    Contrary to his submission, Mr Mentink could have no “legitimate expectation” that he would be granted permission to leave Australia after March 2018 (which I took to mean after he was released from the custodial portion of his 2017 sentence). Indeed, the High Court has, more than once now, deprecated and discouraged the use of the term “legitimate expectation” in Australian administrative law: see, notably, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, at [28], and following under the heading, “Legitimate expectation”, per Kiefel, Bell and Keane JJ. Circumstances can arise where, in light of previous representations or treatment of like cases, procedural fairness might require that a decision-maker not depart from an earlier position or decision without affording a person affected an opportunity to be heard. Even the favourable decision made in 2018 by the Northern Territory Police Commissioner (NT Commissioner) did not mean that Mr Mentink would be given permission to leave Australia when he applied for that in September 2019. It was not and could not be a source of a right to have the discretion found in s 271A.1(3) of the Code always exercised in his favour. The September 2019 application had to be considered on the material then to hand, which included events which had occurred after the NT Commissioner had granted Mr Mentink permission to leave for a period.

Relevant and Irrelevant Considerations

93    Bases upon which a decision can be impeached under s 5(1)(e) of the ADJR Act as an improper exercise of power include that an irrelevant consideration was taken into account or that a relevant consideration was not taken into account: s 5(2)(a) and s 5(2)(b) respectively. In this context, a consideration will only be irrelevant if the statute by or under which the power is conferred either expressly or by necessary implication prohibits the taking into account of that consideration and the converse applies in relation to what constitutes a relevant consideration: Peko-Wallsend, at 39 – 40, per Mason J. There may be many other considerations which may permissibly be taken into account in the exercise of the statutory power, even though there is no obligation to take them into account.

94    In relation to the exercise of a power under s 271A.1(3) of the Code, it is necessarily relevant for the competent authority to conclude that the person making the application falls within the class of persons to whom the section applies. Also necessarily relevant is that the person intends to travel outside Australia. It would follow by necessary implication that a related relevant consideration is to where does the person propose to travel and for how long?

95    I expressed above the view that the risk presented by the applicant for permission to travel is also, in the sense described, a relevant consideration. This is not expressly so stated in s 271A.1(3) of the Code. Rather, it seems to me necessarily to follow from the context in which that subsection is found and the statutory purpose. The evident statutory purpose of s 271A.1 is to prohibit travel outside Australia by a particular class of persons to whom that section applies unless permission is granted by a competent authority. That class is those whose name is on a child protection offender register (however described) of a State or Territory and who have related reporting obligations. In this regard, the Code is responsive, in terms of federal control of emigration and responsibility for Australia’s external affairs, to a purpose which underpins the nominated State or Territory obligation. The evident State or Territory legislative purpose is that a particular class of person presents a risk of reoffending in a particular way and ought therefore to be subject to particular reporting obligations. Those reporting obligations are in practice rendered nugatory by a departure from Australia. From this it would necessarily follow by implication, in my view, that a relevant consideration in relation to the granting or refusal of permission to travel is the risk that the reportable offender presents of committing offences of the kind that resulted in entry on the register and a related imposition of a reporting obligation, if permitted to travel abroad for the period sought. The risk assessment is therefore not an inchoate or abstract one, but rather one informed by the nature, duration, destination and other related circumstances of the proposed travel.

96    In Zaharis, at [87] – [88], Doyle J reached a like conclusion as to the type of risk assessment which necessary implication required. His Honour adopted for that purpose formulations which had been offered by the plaintiff in that case, “the likelihood of the plaintiff committing a sexual offence during the period of the intended travel” and “an assessment of the risk presented by this particular plaintiff given his particular travel plans”. I respectfully agree with these formulations of risk as a relevant consideration as, I note, did Wheelahan J, at [59], in Ammouche. Yet more recently, in Kaufman v Chief Commissioner of Police [2019] FCA 1996 and in DKG v Commissioner of Police [2019] NSWSC 523, a like approach to that of Doyle J in Zaharis is evident.

97    Mr Mentink’s other grounds in one way or another were based on allegations of irrationality, illogicality and unreasonableness.

Irrational, illogical or otherwise unreasonable

98    Mr Mentink’s other grounds of review raise issues which are best grouped, as they raise in one way or another allegations that the decision was irrational, illogical or otherwise unreasonable.

99    As to judicial review on the ground of irrationality or illogicality, the task, as Crennan and Bell JJ stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [131]:

… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

That statement is not exhaustive of principles which attend reviewing a factually based decision on the basis of illogicality or irrationality (see: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, at [47]). It is, however, sufficient for present purposes. In turn, as was emphasised by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), at [68], what amounts in law to an unreasonable decision is not confined to the irrational or bizarre. Later in their joint judgment in Li, at [72], their Honours referred with evident approval to an observation about the unreasonableness ground in Peko-Wallsend, at 41:

Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

[footnote reference omitted]

The reference in this passage to “disproportionate weight” is not, however, a licence for a court judicially reviewing an administrative decision itself to make a factual evaluation on the merits of the question which arose for the making, administratively of that decision.

100    It is now necessary further to elaborate on the factual background of Mr Mentink’s overseas travel application as Detective Superintendent Clark found that to be and to indicate why, having regard to his reasons, the application was refused.

101    Mr Mentink is now in his early 70’s. He is a widower. His wife, an Indonesian, died in early 2019, survived by her son. Mr Mentink refers to that individual as his son, although, strictly, he is his step-son.

102    In 1993, in Queensland, Mr Mentink was convicted of sexual offences involving a 15 year old male minor, committed in 1991 and a 13 year old male minor, committed in 1992. Each of the offences occurred on Mr Mentink’s yacht. Each of the victims was one of his students. Mr Mentink was then a teacher, as he was when he committed the offences in 1976, of which he came to be convicted in 2017. Ultimately, after an appeal to the Court of Appeal, the sentence imposed on Mr Mentink in respect of the offences of which he was convicted in 1993 was six years’ imprisonment.

103    Detective Superintendent Clark, at [32] of his reasons, accurately identified that Mr Mentink’s past offences “involved contact offending against children who were in the applicant’s care at the time of offending”. Contrary to Mr Mentink’s submission, Detective Superintendent Clark’s consequential finding that his previous offending was “very serious” was reasonably open. So, too, was his assessment that any future offending was likely to be serious. Further, the past offending admitted on the material as entailing “homosexuality” and being “hebephiliac” (apparently meaning a sexual interest by adults in pubescent children), a feature noted by Dr Smallbone and adopted by Detective Superintendent Clark. That feature of the offending remained notwithstanding Mr Mentink’s later marriage. His reasons reveal that Detective Superintendent Clark was patently aware of, and took into account, that feature of Mr Mentink’s life. Given this, what to make of that in terms of the overall circumstances was for him, not me.

104    At [34] of his reasons, under the heading “Other Incidents of Concern”, Detective Superintendent Clark referred to an incident which he accepted, subject to qualification, had occurred when Mr Mentink was living aboard his yacht in East Timor:

34.    In 2003 the Applicant was living on his yacht in East Timor. The Applicant’s yacht was searched, locating sophisticated camera equipment, floppy disks, images, videos and a magazine which contained homosexual material. I have not been able to obtain copies of that material however I note that in the Applicant’s 15 Chapter Manuscript, at Chapter 10, he stated that the ‘gay’ magazine was in-your-face and shocking, that the disks contained photos of young models (although he claims not children), naturalist magazines and a yachting magazine that displayed a photograph of a naked one year old boy holding onto a sheet winch. I also note that the Applicant was charged with possessing child exploitation material however the Applicant was never convicted so I give that charge little weight except to say that it appears to support a view that the material may have been inappropriate, or at least concerning material to be in the possession of a child sex offender, and in an environment where the Applicant had previously offended, being his yacht.

105    In 2018, Mr Mentink sought permission from the Commissioner to travel overseas to Indonesia. This was refused by a delegate (not Detective Superintendent Clark). It was this refusal decision which was set aside in Mentink v QPOL in early July 2018. Later in July 2018, on reconsideration, another delegate of the Commissioner decided to refuse Mr Mentink’s overseas travel application.

106    Later in 2018, Mr Mentink chose to relocate residentially to the Northern Territory and there to make a fresh application for permission to travel to Indonesia. This was considered by a delegate of the NT Commissioner in the latter’s capacity as a competent authority for that territory. This application was successful but carried with it a requirement that Mr Mentink return to Australia by 15 November 2018. This he did not do. Detective Superintendent Clark was entitled to, and did, take into account Mr Mentink’s persistence, well beyond his wife’s death, in failing to return to Australia after his permission to be abroad had expired.

107    What occurred is related by Detective Superintendent Clark in his reasons as follows:

6.    The Applicant travelled to Indonesia but did not return on 15 November 2018. On 21 December 2018 the Minister for Foreign Affairs cancelled the Applicant's passport at the request of the competent authority. This resulted in the cancellation of the Applicant's visa in Indonesia and he was ultimately arrested and deported, arriving in Brisbane on 12 September 2019.

The competent authority in the passage quoted was the NT Commissioner. Mr Mentink chose to stay on in Indonesia without permission so as to care for his terminally ill wife. After she died, he continued to choose to live in Indonesia until he was deported.

108    Another sequel to Mr Mentink’s refusal to return to Australia as required was that his Australian passport was cancelled by the Minister for Foreign Affairs and Trade.

109    The purpose of each of the 2018 overseas travel applications was so as to live with and care for his wife and his step-son. Mr Mentink’s stated purpose for his present application is to care for his step-son.

110    Under the heading “Decision Making Framework”, Detective Superintendent Clark summarised his understanding of his function as a competent authority and, in a non-exhaustive way, what he considered was relevant to the deciding of an overseas travel application:

17.    The legislation is silent as to the test to be applied in determining whether or not a competent authority is to approve an application for overseas travel. In the absence of a prescribed test, the competent authority is to ascertain and weigh up all the relevant considerations to decide whether to grant or refuse this permission based on the legislation and its purpose. It is clear from the legislation and the explanatory notes that these considerations must include the purpose of the travel, the risk of the reportable offender sexually abusing vulnerable children overseas and the circumstances in the country of intended travel.

18.    In this regard, relevant considerations must include relevant risk and/or protective factors, including but not limited to:

•    The nature, duration, purpose and destination of the proposed travel;

•    What, if any, relevant risk factors exist which suggest risks to children overseas, including the nature and circumstances of the Applicant’s previous convictions (including the time that has elapsed since the Applicant's offending behaviour);

•    The Applicant’s compliance with relevant reporting obligations under the Act and/or proposed treatment or remedial programs;

•    What, if any, insight or remorse the Applicant has demonstrated in relation to the offending behaviour;

•    What, if any, measures the Applicant has employed to address the offending behaviour and/or ameliorate risks to children overseas;

•    What, if any, appropriate measures are available to monitor the Applicant’s behaviour whilst absent overseas;

•    What, if any, relevant protective factors exist to ameliorate the risks to children overseas.

19.    The weight to be given to any of the relevant factors is a matter to be determined by the decision maker in the particular circumstances of each case, however it is clear that the legislative regime requires the decision maker to have regard to the protection of children as a primary consideration.

This summary does not appear to me to contain errors of law identified by Mullins J in Mentink v QPOL such as a statutory presumption against overseas travel or there being an “onus” on an applicant to prove, and to a high standard, that he ought to be granted permission. Instead, the summary in substance takes up the formulation in Zaharis which, as noted above, has later commended itself also to other judges, including now me. “The nature, duration, purpose and destination of the proposed travel” is undoubtedly a “relevant consideration” in the Peko-Wallsend sense of one which must be considered and the other considerations are at the very least considerations which may permissibly be considered in the making of a decision under s 271A.1(3) of the Code.

111    Detective Superintendent Clark’s reasons reveal that he took into account the considerations mentioned under the following headings:

    The Applicant’s Circumstances

    Previous Convictions

    Other Incidents of Concern

    Insight and Remorse

    Psychological/Psychiatric Evidence

    Compliance with Reporting Obligations

    Other Relevant Factors [a reference to inconsistencies in information provided at various times by Mr Mentink]

    Purpose of Travel

    Duration of Travel

    Destination of Travel

112    Detective Superintendent Clark drew these various considerations together and evaluated them under the heading, “Ultimate Decision”. Given the nature of the grounds of challenge under present consideration and the related submissions made by Mr Mentink, it is desirable to set out those paragraphs under this heading in the reasons which expose the evaluation:

75.    I acknowledge that the Applicant has not been convicted of further offences for a lengthy period of time however the Applicant has continued to display a lack of remorse for his offending and a significant lack of insight into the issues contributing to his offending as outlined in detail above. Despite being aware of the QPS concerns regarding his lack of engagement with an appropriate specialist to address these issues or at least support the Applicant in maintaining his rehabilitation, the Applicant has not taken steps to address this concern other than to assert that he is no longer a risk and complain to various authorities about what he sees as injustices against him. In my view, these considerations are significant in determining the risk of the Applicant reoffending.

76.    I also note that Indonesia’s child protection system is not as robust as that in Australia and that the Applicant would not be subject to monitoring and reporting requirements, and their deterrent affects, as he would be in Australia. In my view this makes the risks outlined above more significant.

77.    I consider that the Applicant seeks to travel to Indonesia for a lengthy period of time, which also increases the significance of the risks identified above.

78.    Against that, I note the Applicant’s advanced age, that he was married for a lengthy period of time, that he has family in Indonesia, that he has completed a sex offenders treatment program whilst in custody in the 1990s and that he has engaged with Dr Kovacevic for one session, all which may be considered as protective factors.

79.    I accept that the Applicant’s desire to remain close to his step son, his property and his possessions is a valid and important consideration however I note that there may be alternate ways to achieve this.

80.    In all of the circumstances I am not satisfied that the risks to children overseas if the Applicant was granted permission to travel have been appropriately addressed and I consider they outweigh the Applicant’s personal interests in travelling. In those circumstances I do not give permission for the Applicant to leave Australia.

113    Dr Kovacevic, mentioned in this part of the reasons, was the author of a report concerning Mr Mentink which had been submitted to the Commissioner at the time of the 2018 overseas travel application. That report formed part of the material Detective Superintendent Clark had in the material before him, as he recorded in his reasons. Also in that material and mentioned in those reasons was an Exit Summary and Psychological Report regarding Mr Mentink, prepared by Dr Smallbone after Mr Mentink had undertaken a Sexual Offender Treatment Program whilst in custody in the 1990s. The opinions expressed in these reports were evaluated in quite some detail by Detective Superintendent Clark in his reasons (see [45] – [52]) under the heading “Psychological/Psychiatric Evidence”.

114    The assessment of Mr Mentink as “high risk” using the “RM2000 risk assessment tool” is also referred to under this heading, at [44], as is a challenge made by Mr Mentink to its utility. Detective Superintendent Clark deliberately chose not to give the RM2000 assessment any weight, “given the significant amount of information available to me and my consideration of that material”. Instead, all that he did was to note the assessment but to place weight “on my findings as to the Applicant's individual circumstances to determine the risk that the Applicant may pose”.

115    The submissions made by Mr Mentink in relation to the RM2000 based risk assessment proceed upon the false premise that it was afforded weight in the decision-making process. Instead, as I have highlighted, that assessment was afforded no weight, merely noted, for the reason given by Detective Superintendent Clark. It is no part of the present proceeding to serve as a vehicle for the entertaining of a critique by Mr Mentink as to his perceived failings in the utility of that assessment tool.

116    It is obvious from Detective Superintendent Clark’s reasons that he was well aware of the age of Dr Smallbone’s report, as he was for that matter of the time which had elapsed since Mr Mentink’s last offending conduct. Detective Superintendent Clark made a rational use of the opinions expressed in this report about the risk presented by Mr Mentink in light both of subsequent events and of his then undetected 1976 offending conduct.

117    Detective Superintendent Clark was not obliged entirely to accept Dr Kovacevic’s opinions, including his risk assessment. They were critiqued by Detective Superintendent Clark in a rational way in his reasons thus:

49.    I note that the Applicant obtained a report from Dr Kovacevic, consultant psychiatrist, during the review proceedings in 2018 whereby he assessed the Applicant’s risk of reoffending as relatively low. I note however, that Dr Kovacevic recognises that the results of the risk assessment ratings must be interpreted with a degree of caution, in the Applicant’s case particularly because his circumstances in Indonesia are largely unknown. It is in these 'unknown' circumstances that I must consider the risk of the Applicant reoffending.

50.    I also note that Dr Kovacevic emphasises the importance of individual risk assessment and clinical judgement. I note that Dr Kovacevic prepared his report utilising information which you provided him, the content of which is unclear, and after one consultation with you. In those circumstances it is reasonable that Dr Kovacevic’s is somewhat superficial as Dr Kovacevic does not consider or address many of the issues raised by Dr Smallbone in detail, including the Applicant’s homosexuality and hebephilia, nor does the report extensively address the specific circumstances of the Applicant’s offending.

51.    Finally I note that Dr Kovacevic does not state, as part of his credentials, that he has had experience dealing with sex offenders, particularly child sex offenders.

118    Detective Superintendent Clark has identified, in a finding open to him on the material before him, that it fell to him to make a risk assessment in relation to Mr Mentink in largely unknown circumstances, precisely the type of circumstances which occasioned Dr Kovacevic to sound a cautionary note about his assessment.

119    That Dr Smallbone progressed further in formal qualification, experience and appointment after preparing his report (as Mr Mentink as much concedes in his submissions) and that the honorific “Dr” afforded to him in Detective Superintendent Clark’s reasons reflects a present level of attainment rather than that of the 1990’s is of no moment and its raising by Mr Mentink is an appeal to conduct merits review. If anything, were this merits review, and it is not and cannot be, knowledge of an author’s later attainments and eminence might, amongst other factors, quite rationally cause one to give greater weight to that author’s views than one might have at the time when they were authored. It is obvious from Detective Superintendent Clark’s reasons that he was well aware that Dr Smallbone’s was an aged report given in a particular context. I also note that Dr Kovacevic refers to “Dr Smallbone” in his report of 24 June 2018.

120    Mr Mentink has emphasised that he was also at that earlier time assessed by a Dr Rosevear, a general practitioner. That is revealed in the material before Detective Superintendent Clark (Dr Rosevear’s letters of 13 April and 30 May 2018), as is a lengthy general practitioner/patient clinical relationship. Detective Superintendent Clark does not make any mention of Dr Rosevear in his reasons.

121    It is not clear from Dr Kovacevic’s report whether he was briefed with material from Dr Rosevear but, in any event, he has chosen not explicitly to refer to any views expressed by Dr Rosevear, either in the 1990’s or more recently. Detective Superintendent Clark certainly might permissibly have referred to Dr Rosevear’s reports and to his view that it is “not likely for him to re offend”. Had Dr Kovacevic given particular emphasis and deference to Dr Rosevear’s views, unreasonableness in the relevant sense might perhaps have been found in a failure on the part of Detective Superintendent Clark to make any reference at all to those views. That might, in the circumstances, have amounted to a failure to give adequate weight to a relevant factor of great importance in the sense described by Mason J in Peko-Wallsend, at 41. An example of how that type of unreasonableness can arise in singular circumstances is offered by White v Board of Trustees [1997] 2 Qd R 659 at 677, where a decision-making body chose to act on a medical opinion the author of which expressly acknowledged that the author of another medical report, who offered a different view, was better placed to assess the applicant for a police superannuation disability benefit. Equally, however, an administrative decision-maker is not obliged to refer to each and every item of information in the material before him or her. I do not consider that unreasonableness is to be found in the circumstances of the present case in the failure to refer to the views of Dr Rosevear.

122    Detective Superintendent Clark’s reasons, at [36], reveal that he made use in his risk assessment of a novel authored by Mr Mentink which he sought to have published. He stated:

36.    The Applicant wrote of his previous offending in a publication which he then sought to have published but was ultimately declared a prohibition publication under the Classification of Publications Act 1991 due to its inclusion of child exploitation material. As late as 1996 the Applicant continued to attempt to have the publication reclassified to allow wider publication which I consider shows a considerable lack of insight into the inappropriate and harmful nature of his offending.

The assessment made by Detective Superintendent Clark of these facts as to lack of insight was reasonably open. Further, when, as one must, one reads his reasons as a whole, it is evident that his overall risk assessment was multi-factorial, informed in part by his view as to a lack of insight on Mr Mentink’s part about his offending conduct.

123    Detective Superintendent Clark was exercising executive or administrative, not judicial power. He was not bound by the rules of evidence. He was not obliged to conduct any formal hearing. It was obviously in Mr Mentink’s interests to support his application as best he could both by supporting materials and related submissions but no onus of proof was applicable to him. Detective Superintendent Clark was not obliged uncritically to accept either the material which Mr Mentink submitted or his related submissions. He was obliged to base his decision on material reasonably supportive of the conclusion which he reached.

124    It is desirable to recall the observations made by Brennan CJ, Toohey, McHugh and Gummow JJ in their joint judgment in Wu Shan Liang, at 282, about administrative decision-making:

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision­making is very different and the use of such terms provides little assistance.

[footnote reference omitted]

125    It is nothing to the point that other conclusions might have been reached on the whole of the material before Detective Superintendent Clark. The error ground of unreasonableness is not to be found in emphatic disagreement with an administrator’s reasons.

126    Long ago, in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 (Bott), the High Court had to determine whether a mandamus ought to go to compel an administrative tribunal to determine according to law its affirmation of a decision by the Repatriation Commission to reject a claim by a Gallipoli veteran for a pension based on an alleged war-caused disability. There was material, including medical evidence, before the tribunal that, if accepted, might have supported the veteran’s claim but there was other material, also including medical evidence, which did not. The tribunal sought and obtained a report from two independent medical specialists about the claim. As it happened, that report was not favourable to the veteran. No cross-examination of these experts was permitted by the tribunal although the contents of the report were made known to the veteran’s representative. In the result, on the whole of the material before it, including the specialists’ report, the tribunal affirmed the rejection decision. In their joint judgment in Bott, at 243, Rich, Dixon and McTiernan JJ, having outlined bases upon which a mandamus might be granted, each of which may now be found in grounds of review specified in s 5 of the ADJR Act, stated:

But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies.

127    Exactly the same might be stated in relation to the case which, at eloquent length, Mr Mentink sought to advance in the present case in relation to the decision of the Commissioner. Indeed, this, in essence, is the riposte made by the Commissioner in her submissions. In those submissions, the Commissioner chose to engage in even greater detail than I have above with Mr Mentink’s submissions. The pervasive point made by the Commissioner in her submissions is that Mr Mentink has raised issues in respect of which the weight to give them was for her delegate, Detective Superintendent Clark, not for the Court on judicial review. There is merit in this submission. My preference has been to set out the relevant principles that govern the judicial review grounds pleaded and then to illustrate by reference to particular issues pressed by Mr Mentink why, in terms of those principles, there was no error revealed by Detective Superintendent Clark’s reasons.

128    I have not therefore addressed in detail Mr Mentink’s grounds and related submissions as to findings made as to, for example, lack of remorse and inoculation program related potential for interaction with children. Suffice it to say, the findings made were reasonably open on the material before Detective Superintendent Clark.

129    The reasoning in [75] – [80] of Detective Superintendent Clark’s reasons is neither irrational nor illogical nor, to use Mr Mentink’s description “perverse”. The material before Detective Superintendent Clark was certainly not all one way. That, however, does not mean that the ultimate refusal decision is unreasonable in the sense described in the joint judgment in Li. It is a view to which a competent authority might reasonably come on the material before Detective Superintendent Clark for the reasons which he gave. That being so, the other grounds of review advanced by Mr Mentink must be rejected. It is not my role to comb through the Court Book and the voluminous material which he filed to see whether or not there is present somewhere some unpleaded ground of review which he might perhaps have advanced but has not.

Disposal

130    The application must be dismissed, with costs.

Associate:    

Dated:    22 July 2020