AB v Chief Commissioner of Police [2020] FCA 14 | Case summary

Consideration of the applicant's grounds (1) Breach of the rules of natural justice - ADJR Act, s 5(1)(a) 58 The applicant submitted that there was a breach of the rules of natural justice in five respects. (a) The applicant was not afforded the opportunity to respond to the Chief Commissioner's concerns in relation to the comments of the case manager, Senior Constable Towner, and the passengers who would be on board the vessel for the cruise. 59 In considering the applicant's request for permission to leave Australia for the purposes of s 271A.1 of the Criminal Code, the Chief Commissioner was required to accord the applicant procedural fairness: Ammouche at [95], citing Annetts v McCann (1990) 170 CLR 596 at 598. However, I express the tentative view that the content of those rules may be informed and shaped by the nature of the discretionary power, and its legal consequences. As I have indicated, the implied conferral of power to give permission to leave Australia is one that may be exercised from time to time. A refusal of permission does not have the legal consequence that the Commissioner may not re-consider the decision, as the decisions in Ammouche, Kaufman v Chief Commissioner of Police [2019] FCA 1996, and this case illustrate. Subject to the particular circumstances, a denial of procedural fairness might occur if the Chief Commissioner declined to reconsider a refusal of permission in light of answering material or new information. 60 In this case, I shall proceed on the basis that the applicable principles of procedural fairness are the common law principles referred to by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] - Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. 61 Their Honours cited Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591-592 in which the Full Court (Northrop, Miles and French JJ) stated - Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 62 In relation to any suggested obligation at common law of an administrative decision-maker to enquire, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [24] - Mason CJ and Deane J in [Minister for Immigration and Ethnic Affairs v Teoh] also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness. (emphasis added, citation omitted) 63 The opinion of Senior Constable Towner was not adverse material that the Chief Commissioner was required to put to the applicant for comment before making the second decision. At [13] of his affidavit dated 9 December 2019, and prior to the second decision, the applicant deposed to the fact that his case manager wrote that he did not oppose the application, and that there would be no child contact. That affidavit formed part of the material that was before the Chief Commissioner when making the second decision. The Chief Commissioner was not required to give notice to the applicant, or invite comment on his thought processes in response to that material. Nor was the Chief Commissioner required to give the applicant notice of his view that it was unknown whether there might be children on board the vessel for the 10-day cruise and invite comment: Commissioner for ACT Revenue v Alphaone Pty Ltd at 591. The question of the potential for contact with children was beyond doubt an obvious issue for the Chief Commissioner's consideration, and that issue in general terms had been foreshadowed to the applicant by the Chief Commissioner's reasons for the first decision dated 19 November 2019. (b) The Chief Commissioner did not provide the applicant with the criteria that he would employ in making his decision with the consequence that the applicant was not given the opportunity to respond to the Chief Commissioner's concerns. The Chief Commissioner did not actively seek, or make any requests for the information he required to make his decision. 64 The applicant submitted that the Chief Commissioner was required to inform him of the criteria that the Chief Commissioner required the applicant to meet, and of any concerns held by the Chief Commissioner, and that in failing to do so, the Chief Commissioner did not act justly or honestly. In support of this submission, the applicant cited Local Government Board v Arlidge [1915] AC 120 at 138 within the speech of Lord Shaw. I have studied page 138, and I do not find any support for the applicant's submission. One may accept that the principles referred to by French CJ and Kiefel J in SZGUR referred to at [60] above were applicable. If it were not already apparent, the Chief Commissioner's reasons for the first decision, extracts from which are set out at [16] above, gave the applicant ample notice of the issues for consideration. 65 The second part of the applicant's submission referred to above was not developed by the applicant. (c) The Chief Commissioner had pre-judged the applicant's application for permission to travel based upon the applicant's reasons for travel. 66 I take this to be an allegation of apprehended bias, rather than actual bias. The existence of apprehended bias is a question of fact: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87. The applicant relied on the statement of Detective Sergeant Meagher which is set out at [17] above as supporting his claim. The evidence does not support an inference that that Detective Sergeant Meagher's observations in his email are to be attributed to the second decision-maker, Detective Inspector Volk. Moreover, the evidence does not support a finding that there was any reason for the fair-minded lay observer to think that the Chief Commissioner or Detective Inspector Volk might not give the application fresh consideration, and the contents of the reasons for the second decision indicate to the contrary. (d) The applicant was required to commence this proceeding before the Chief Commissioner was persuaded to reconsider the first decision. 67 There is nothing in this submission. On the assumption favourable to the applicant that there was substance in the submission, it does not support any ground for impugning the second decision, as I am not persuaded that it is material. (e) The Chief Commissioner's reasons for the decision were vague in that the weight (variously described) given by the Chief Commissioner to each factor that he considered was either unproportionate [sic], unreasonable in the circumstances, or could not be adequately determined in accordance with the Chief Commissioner's criteria to grant permission. 68 There is no common law obligation on an administrative decision-maker to give reasons for a decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. Here, the Commissioner's reasons for the second decision were volunteered, and were not provided pursuant to any statutory obligation to do so: cf, Dornan v Riordan (1990) 24 FCR 564; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480. Even on the assumption that reasons were required, there is no express or implied statutory standard against which the sufficiency of the reasons is to be measured: cf, ADJR Act, s 13(1); Acts Interpretation Act, s 25D. Nonetheless, I have summarised the Chief Commissioner's reasons at [57] above, and I consider that the reasons were adequate to expose the Chief Commissioner's path of reasoning, and to demonstrate the way in which the Chief Commissioner discharged the statutory power impliedly conferred upon him by s 271A.1 of the Criminal Code, and were adequate to enable the Court to determine whether or not the decision was affected by legal error: Wingfoot at [49], [54]-[55] (French CJ, Crennan, Bell, Gageler and Keane JJ). The terms of the Chief Commissioner's reasons for the second decision do not give rise to any failure to accord natural justice to the applicant. (2) Procedures required by law to be observed were not followed by the Chief Commissioner - ADJR Act, s 5(1)(b). 69 There were five respects in which the applicant submitted that procedures required by law were not followed. (a) The Chief Commissioner unreasonably judged and or misinterpreted the purpose of s 271A.1 of the Criminal Code. 70 The Chief Commissioner at [5] of the reasons for the second decision set out in inclusive terms the purposes of s 271A.1 of the Criminal Code (see [22] above). Those purposes are supported by the extrinsic material to which I have referred at [36] to [40] above, and by the guidance in Ammouche at [61]. Bearing in mind the nature and purpose of the statement of reasons, there was no relevant error by the Chief Commissioner in his account of the purposes of s 271A.1. (b) The Chief Commissioner erred in considering and relying upon foreign Acts which have no bearing to the applicant's personal circumstances. 71 At [7(b)] of his reasons for the second decision, the Chief Commissioner stated that the risk that the applicant might re-offend was exacerbated in countries where the child protection framework was substantially weaker than that of Australia. The Chief Commissioner stated that the child protection framework in three of the countries that the applicant proposed to visit afforded less protection than that in Australia, and stated that those countries were classified as "Tier 2" countries within the meaning of the Trafficking Victims Protection Act of 2000 (US) (Trafficking Act). The Chief Commissioner accepted that one of the countries was a "Tier 1" country, and that another place was not classified. 72 The Trafficking Act is within Division A of the Victims of Trafficking and Violence Protection Act of 2000, which is an Act of the US Congress. Section 102(a) of the Act provides - (a) PURPOSES. - The purposes of this division are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims. 73 There is a lengthy preamble which includes the following - (b) FINDINGS. - Congress finds that: (1) As the 21st century begins, the degrading institution of slavery continues throughout the world. Trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today. At least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year. (2) Many of these persons are trafficked into the international sex trade, often by force, fraud, or coercion. The sex industry has rapidly expanded over the past several decades. It involves sexual exploitation of persons, predominantly women and girls, involving activities related to prostitution, pornography, sex tourism, and other commercial sexual services. The low status of women in many parts of the world has contributed to a burgeoning of the trafficking industry. … (6) Victims are often forced through physical violence to engage in sex acts or perform slavery-like labor. Such force includes rape and other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological abuse, and coercion. … (24) Trafficking in persons is a transnational crime with national implications. To deter international trafficking and to bring its perpetrators to justice, nations including the United States must recognize that trafficking is a serious offense. This is done by prescribing appropriate punishment, giving priority to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses. The United States must work bilaterally and multilaterally to abolish the trafficking industry by taking steps to promote cooperation among countries linked together by international trafficking routes. The United States must also urge the international community to take strong action in multilateral fora to engage recalcitrant countries in serious and sustained efforts to eliminate trafficking and protect trafficking victims. 74 The term "sex trafficking" is defined in the Trafficking Act as - SEX TRAFFICKING. - The term ''sex trafficking'' means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act. 75 The scheme of the Trafficking Act is multifaceted. One of its elements is a legislative command to the executive to treat foreign countries differentially in relation to foreign assistance according to whether, and the extent to which, countries comply with minimum standards for the elimination of trafficking. For those purposes, s 110 of the Act requires the Secretary of State to submit an annual report to the appropriate congressional committees that includes - (A) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments fully comply with such standards; (B) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not yet fully comply with such standards but are making significant efforts to bring themselves into compliance; and (C) a list of those countries, if any, to which the minimum standards for the elimination of trafficking are applicable and whose governments do not fully comply with such standards and are not ma ant efforts to bring themselves into compliance. 76 The applicant submitted that the tier ranking system adopted by the United States under the Trafficking Act was irrelevant to his circumstances. He submitted that the offences to which he pleaded guilty were unrelated to sex trafficking, and that the tier ranking system should not have been used as a basis to refuse his request for permission to leave Australia. 77 I do not accept the applicant's submissions. The question before this Court essentially is whether the reference to three countries as being "Tier 2" countries was extraneous to a legally reasonable evaluation of risk. By the second decision, the Chief Commissioner employed the ranking of three countries as "Tier 2" as an indicator, or proxy, that the child protection frameworks in those countries were substantially weaker than that in Australia. I regard that as a rational process of reasoning for the purposes of evaluating risk. In Kaufman at [30] Anastassiou J held that it was quite proper and reasonable for the Chief Commissioner to have regard to a ranking of a country as "Tier 2" as being relevant to various social or risk factors in the country concerned, and I am of the same view. The applicant was on notice by the Chief Commissioner's reasons for the first decision that the Chief Commissioner regarded the ranking of some of the countries as "Tier 2" as being material. It was open to the applicant to take issue with the relevance of this consideration when the Commissioner was evaluating the merits of the applicant's application on the second occasion. (c) A proper exercise of the Chief Commissioner's power on whether or not to grant permission to travel overseas requires a more specific form of risk assessment. 78 The applicant submitted that it was not sufficient for the Chief Commissioner to proceed by reference to the inherent risk that exists in respect of any person whose name is on the Register without regard to the circumstances of the particular person in question, and the travel plans, citing Doyle J in Zaharis at [88] (see [47] above). But here there was no failure by the Chief Commissioner to undertake a specific form of risk assessment. The Chief Commissioner had regard to, and agreed with the assessment of the applicant's psychologist that he presented a low risk. As I have mentioned, that was the only expert opinion that was before the Chief Commissioner on the question of risk. The Chief Commissioner paid specific attention to the length of time since the applicant's offending, the fact that he would be travelling with his wife, and to the places through which the applicant would be travelling, including the vessel on the 10-day cruise. (d) The Chief Commissioner as decision maker failed to investigate matters upon which he sought to rely. 79 The applicant submitted that the Chief Commissioner did not call upon the applicant's case manager, Senior Constable Towner, to provide further relevant information. As I have mentioned at [63] above, and in [13] of his affidavit dated 9 December 2019 which was before the Chief Commissioner when making the second decision, the applicant deposed to the fact that Senior Constable Towner had written that he did not oppose the application. The Chief Commissioner took a different view. There was no obligation on the Chief Commissioner to communicate with the case manager in relation to his contrary opinion: see generally, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [18]-[27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). (e) The Chief Commissioner failed to have proper regard to all the evidence before him. 80 The applicant submitted that the Chief Commissioner failed properly to consider the affidavit of the applicant's wife in which she promised to monitor the applicant during the proposed trip. The applicant also submitted that the Chief Commissioner failed properly to consider all of the applicant's issues and the effect of his health when assessing the applicant's risk of committing a further offence. 81 Contrary to the applicant's submission, the Chief Commissioner did consider the affidavit of the applicant's wife. He referred to it in the list of materials which he stated he had read and considered, and he specifically referred to the applicant's wife's proposed presence on the tour at [7(a)(iii)] of his reasons (see [22] above). As to the other sundry matters, the Chief Commissioner stated that he had read and considered all the material that had been furnished and which he listed. While there may have been an obligation to accord procedural fairness by reading and considering that material, it does not follow that any, still less all of the features of the material and all the items of evidence were mandatory relevant considerations: cf, Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] (Robertson J), cited in Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(e)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Failure to take into account a relevant consideration can only be made out as a ground of review if the decision-maker was bound to take the matter into account. As the Full Court (Black CJ, Sackville and Emmett JJ) stated in Price v Elder [2000] FCA 133; 97 FCR 218 at [13] - … Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statutes some implied limitation on the factors to which the decision-maker may legitimately have regard. Where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 82 The applicant has not established that the Chief Commissioner was bound to take any of the sundry matters he identifies into account. (3) The Chief Commissioner exercised the power conferred on him by s 271A.1 of the Criminal Code improperly within the meaning of s 5(1)(e) of the ADJR Act. 83 The applicant relied upon six sub-grounds referable to s 5(2) of the ADJR Act to support the submission that the power impliedly conferred by s 271A.1 of the Criminal Code was improperly exercised. There was some overlap with the applicant's submissions made in support of the other grounds of review. (a) The Chief Commissioner considered irrelevant considerations within the meaning of s 5(2)(a) of the ADJR Act which influenced both the first and second decisions. 84 For a consideration to be irrelevant in the sense required by s 5(2)(a) of the ADJR Act, the statute must expressly or impliedly prohibit consideration of it: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 at [137] (Beaumont, Moore and Gyles JJ), citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40, and R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50. 85 In support of this ground, the applicant submitted that the Chief Commissioner's reliance on the US Trafficking Act, was to take account of an irrelevant consideration. I have rejected this submission at [77] above. (b) The Chief Commissioner considered irrelevant considerations within the meaning of s 5(2)(a) of the Act which influenced his second decision. 86 The applicant submitted that the Chief Commissioner framed his decision upon a misapprehension of the purpose of s 271A.1, and relied on his earlier submissions on that topic which I have rejected at [70] above. 87 The applicant submitted that the Chief Commissioner's reliance on the absence of a passenger list for the 10-day cruise was to rely upon an irrelevant consideration in circumstances where the Chief Commissioner had not sought that information, and did not allow the applicant an opportunity to respond. I do not accept this submission. The Chief Commissioner did not in terms refer to the absence of a passenger list, but referred to the absence of evidence that there would be no children on board the cruise vessel. The potential for the applicant to have contact with children was an obvious issue to be addressed, particularly having regard to the reasons for the first decision which referred to the applicant having an appreciable risk of re-offending. The Chief Commissioner relied on the absence of evidence that no children would be on the cruise ship in his reasons for the second decision, and I consider that this was a matter to which the Chief Commissioner could rationally have regard. The applicant's submission that information in the nature of a passenger list was never and could never have been available does not assail the Chief Commissioner's reasoning, but tends to support it. 88 The applicant made the following submission - The Respondent considered the registration of the Applicant on the relevant register was as a result of his conviction in circumstances where such registration was not as a result of the sentencing of the Magistrate but such registration was automatic by way of operation of the Sex Offenders Registration Act 2004 (Vic). 89 I reject this submission as being without foundation. At [7(a)(v)] of his reasons for the second decision (see [22] above) the Chief Commissioner referred to the fact that Parliament had determined that the offences of which the applicant was convicted were sufficiently serious that he was placed on the Register. The reasons reveal no misunderstanding of the basis on which the applicant was placed on the Register. To the extent that the applicant also submitted that the Commissioner's reliance on the fact that the applicant was a registrable offender meant that there had not been a form of specific evaluation of the risk presented by the applicant, I have rejected that submission at [78] above. (c) The Chief Commissioner failed to consider or give sufficient weight to relevant considerations within the meaning of s 5(2)(b) of the Act which influenced his second decision. 90 Under this sub-ground, the applicant submitted that the Chief Commissioner failed to consider appropriately, or give adequate weight to 16 matters - (1) The sworn evidence of the applicant's wife that she is aware of the applicant's offending history and would be present during the entire trip to monitor the applicant. (2) The organised nature of the tours, transfers and the limited amount of rest days during the intended trip. The applicant submitted that the constant tours was relevant to an evaluation of whether the applicant would be monitored whilst travelling. (3) The current age of the applicant, and his current age as compared to his age at the time of the offending. (4) The deteriorating health of the applicant, which the applicant submitted mitigated his risk of sexually offending overseas. (5) The claim that the applicant had travelled overseas with his wife previously both before and after his convictions, and before and after he revealed the circumstances of the 1973 offences, and that he had travelled without incident. (6) The applicant had not breached his reporting obligations. (7) The specific sentence imposed upon the applicant in 2012, namely that he received a 12-month good behaviour bond and was required to pay $2000 into the Court fund. The applicant submitted that this weighed against the punishment imposed upon the applicant by his inability to recover the monies paid for the intended trip which was clearly disproportionate to the punishment initially imposed. (8) The applicant pleaded guilty to the charges, and informed his wife of the offences prior to him being charged. The applicant submitted that this showed the remorse of the applicant at the time of his admissions and therefore went to significantly mitigate the risk of him re-offending in future. (9) The applicant submitted that the Chief Commissioner failed appropriately to consider the length of time taken by his delegate to issue the First Decision and how this impacted upon the Applicant's ability to recover the costs of the intended trip. (10) The applicant submitted that the Chief Commissioner failed appropriately to consider that applicant was required to pay a non-refundable deposit of $8,502.90, and that the loss of this amount would be disproportionate to the sentence initially imposed upon the applicant. The applicant submitted that the requirements for the applicant to seek permission to travel required the applicant to purchase his tickets in circumstances where even if an applicant does not know whether he will obtain permission to travel in the hope of his application succeeding and run the risk of losing the fare paid if his application is unsuccessful, citing DKG v Commissioner of Police [2019] NSWSC 523 at [46]. (11) The applicant submitted that the Chief Commissioner failed to give any or any adequate weight to the comments from his case manager, Senior Constable Towner, and his assessment of the application. (12) The Respondent failed to give any or any adequate weight to the fact that the applicant has not re-offended since and that the offending occurred over 46 years ago. (13) The Respondent failed to give any or any adequate weight to the fact that the applicant has not had any other allegations made against him. (14) The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the assessment by psychologist Ross Wall dated 9 August 2012 that the applicant had a low risk of sexually re-offending. The applicant submitted that this opinion, paired with the fact that the Applicant has not committed any other offences goes to significantly mitigate any risk that he might re-offend in future. (15) The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the length of time the applicant has remained married to his wife, and submitted that the significant length of the marriage went to mitigate any risk that he might re-offend in future. (16) The applicant submitted that the Chief Commissioner failed to give any or adequate weight to the cost of the trip and the inability of the Applicant to recover those costs. The applicant submitted that the significant loss of monies paid when compared to the sentence initially imposed was disproportionate, and could be observed as an additional punishment. 91 The weight to be given to the matters the subject of the above submissions was for the Chief Commissioner to evaluate: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40-1 (Mason J). Each of the above submissions, which relies on an alleged failure to consider appropriately, or to accord weight to various factors, seeks to engage with the merits of the Chief Commissioner's decision. Furthermore, many of the submissions are factually incorrect. For instance, the Chief Commissioner accepted the opinion of the applicant's psychologist, and acted on it. The Chief Commissioner did consider the evidence of the applicant's wife. The submission that he failed appropriately to consider that evidence invites a merits review. The Chief Commissioner did consider the reasons for the applicant's trip, and did consider the potential loss of the monies that had been paid, but determined to place little weight on those factors having regard to the protective purposes of the legislation. The submission that the Chief Commissioner's decision amounts to further punishment of the applicant misses the point having regard to those protective purposes. Other submissions necessarily proceed on a premise that the Court should accept that the matters relied on are indicative of low risk. For the reasons given by Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice at [16]-[17] (see [48] above), I am not prepared to make that assumption. (d) The Chief Commissioner exercised the power provided under s 271A.1 of the Criminal Code for an improper purpose within the meaning of s 5(2)(c) of the ADJR Act. 92 The applicant submitted that the Chief Commissioner would not permit him to travel internationally without a reason that was considered compelling enough, and that the Chief Commissioner treated the effect of s 271A.1 as a blanket ban against recreational travel. The applicant cited the reasons of Doyle J in Zaharis where, after citing Mullins J in Mentink at [15]-[36] Doyle J stated at [95] - I agree with her Honour's conclusion in that case that there is nothing in s 271A.1 of the Criminal Code to warrant a decision-maker starting with a presumption against permission, or indeed to require satisfaction "by acceptable and cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight" to justify permission. Analogously with those conclusions, I do not think it is accurate to say that permission requires "exceptional circumstances", or indeed to say (without qualification) that travel solely for holiday or recreational purposes should not be approved. 93 Doyle J then continued - While the fact that travel is solely for holiday or recreational purposes will be a relevant consideration, ultimately the issue of whether permission is appropriate requires a case by case assessment, taking account of the particular risk presented by the person wishing to travel and the nature and circumstances of their travel. 94 The error that was identified by Mullins J in Mentink was that the decision-maker had framed the consideration by reference to a requirement that the decision-maker "must be satisfied by acceptable and cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to justify the decision". Mullins J demonstrated that this language had been lifted from s 13(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and had been impermissibly applied to the exercise of the discretion under s 271A.1 of the Criminal Code when there was nothing in s 271A.1 that warranted the imposition of that threshold. 95 In Mentink, the competent authority had stated that an onus was on the applicant to displace the presumption which restricts international travel. In relation to that aspect of the reasons, Mullins J stated at [31] - … the reference to a "presumption" against travel overseas by the reportable offenders should not be construed as the imposition of a fixed starting point for the decision making that there was a presumption against overseas travel. It is a shorthand reference to the position that now applies after the enactment of s 271A.1 of the Code that makes it an offence for a reportable offender to travel overseas without the permission of a competent authority. 96 In my view while it may not be correct to speak of an onus resting on an applicant, it is the case that a competent authority must be persuaded to give permission which, as Doyle J was careful to explain in Zaharis at [94], [95], [98], and [108], is to be evaluated on a case-by-case basis. 97 In the present case, fairly read the Chief Commissioner's reasons for the second decision do not support the applicant's submission that the Chief Commissioner regarded s 271A.1 as imposing a blanket ban on international recreational travel, or that the applicant would not be permitted to travel without a reason deemed compelling enough. The reasons for travel are a permissible relevant consideration, and in this case the Chief Commissioner took them into account but gave them little weight in his evaluation against other considerations. 98 The applicant also cited the reasons of Fagan J in DKG v Commissioner of Police [2019] NSWSC 523. In that case, the plaintiff had been convicted of assault of a 17 year old female with an act of indecency in consequence of which he became a "registrable person" for the purposes of the corresponding New South Wales legislation relating to registration of sex offenders. Fagan J regarded the plaintiff as a less serious offender, as his Honour's comments at [28] of the reasons for judgment indicate. His Honour thought at [52] that on the material before him that there was no apparent or intelligible justification to refuse permission to the plaintiff to leave Australia for a proposed visit to his family in India, together with some travel to a neighbouring country. The passage of the reasons of Fagan J on which the applicant relied is - If such a visit to family, combined with a holiday in a neighbouring country, is not regarded as a legitimate purpose for a grant of permission, it is difficult to imagine what [the decision-maker] would regard as legitimate. 99 These comments were obiter, because Fagan J held that no application under the ADJR Act to review the relevant decision was before the Court. Furthermore, Fagan J's comments went to the merits of that case, where the offence in question was regarded by his Honour as less serious offending. Moreover, decisions on the facts of one case do not really aid in the determination of another. His Honour's views of the merits in DKG do not operate as any sort of proposition with universal application. Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law: see the observations of Windeyer J in Teubner v Humble (1963) 108 CLR 491 at 503. (e) The Chief Commissioner exercised the discretionary power provided under s 271A.1(3) of the Criminal Code in accordance with a rule or policy without regard to the merits of the applicant's case within the meaning of s 5(2)(f) of the ADJR Act. 100 The applicant submitted that the Chief Commissioner demonstrated a policy to deny registered offenders permission to travel internationally where reasons for such travel involved a holiday. The applicant submitted that the evaluation of whether to give permission requires a case-by-case analysis which was not adequately performed by the Chief Commissioner as demonstrated by the bias the Chief Commissioner held in relation to the reasons for travel provided by the applicant. I reject these submissions. I have already rejected at [78] the applicant's claim that there was no specific risk assessment, and at [66] I have rejected the allegation of bias. I do not accept that the Chief Commissioner's reasons for decision, or any surrounding documents, support an inference that the Chief Commissioner made the second decision by reference to any policy that denied the applicant permission to travel because he was undertaking a holiday. The reasons for the travel were matters of which the Chief Commissioner took account, but he gave them little weight when balanced against the other considerations that he thought were indicative of risk. That does not amount to a surrender of the Chief Commissioner's discretion to a policy. 101 The applicant submitted that the Chief Commissioner demonstrated a policy not to properly consider the applicant's case manager's comments. I reject this submission also. It is not supported by the evidence. I have addressed the position that the Chief Commissioner was reasonably entitled to take in relation to the case manager's opinions at [79] above. It is clear that the Chief Commissioner considered the case manager's opinions. He was not required to give them weight, still less agree with them. 102 The applicant submitted that the Chief Commissioner demonstrated a policy to require the applicant to perform guesswork as to what evidence the Chief Commissioner required to grant permission to travel. I reject these submissions. The application form gave a clear indication that the potential for contact with children was a key consideration. The form invited attachments should the space available on the form be insufficient. Furthermore, the Chief Commissioner's reasons for the first decision (see [16] above) gave a fairly clear indication of what the Chief Commissioner thought was relevant. It was only after the first decision that the applicant thought to provide the Chief Commissioner with more specific information concerning the circumstances of his past offending and the forensic evaluation of risk. 103 The applicant submitted that the Chief Commissioner demonstrated a policy by which an inherent risk that is applicable to every person whose name is on the Register was applied with the consequence that there was a blanket denial where permission is sought by registered offenders to travel internationally for recreational purposes. I reject this submission, and refer to my reasons at [78] above. (f) The Chief Commissioner exercised the power provided under s 271A.1 of the Criminal Code in a manner that was so unreasonable that no reasonable person could have so exercised the power within the meaning of s 5(2)(g) of the ADJR Act. 104 The statutory ground of review under s 5(2)(g) of the ADJR Act is that the making of the decision was an improper exercise of power for the purposes of s 5(1)(e) because, "the exercise of power is so unreasonable that no reasonable person could have so exercised the power". This ground substantially reflects the language of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234, who identified a decision having that characteristic as one made in excess of the statutory powers conferred on the decision-maker. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36, Brennan J described the implied limitations on the exercise of power recognised in Wednesbury as being "extremely confined", and stated that the limitations were "not calculated to secure judicial scrutiny of the merits of a particular case". See also, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [88]-[92] (Gageler J). 105 The implied decision-making power conferred by s 271A.1(3) of the Criminal Code is binary in nature: permission to leave Australia for the purposes of particular travel may be given, or refused. Where the claim is that a decision to refuse permission to leave Australia was legally unreasonable, an allegation that the outcome of the evaluative process was legally unreasonable is tantamount to claiming that the only reasonable decision that could have been made was to grant permission: Ammouche at [80]. 106 The statutory context here is important. The relevant Commonwealth and State legislation have protective purposes. In Kruger v The Commonwealth (1997) 190 CLR 1 at 36, Brennan CJ stated in relation to the exercise of a discretionary power that reasonableness "can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention". As I have mentioned earlier, the implied decision-making power under s 271A.1(3) is conferred upon a competent authority, such as the Chief Commissioner, as a person who is likely to have the knowledge and expertise to make the necessary evaluative judgment consistently with the purposes of the legislation. 107 The decision in this case to refuse permission to the applicant to leave Australia for the purposes of overseas travel is undoubtedly perceived by the applicant and his wife as involving hardship. But that does not lead to the characterisation of the decision as being unreasonable in the sense contemplated by s 5(2)(g) of the ADJR Act. Section 271A.1 of the Criminal Code contemplates that significant restrictions might be placed on the applicant's ability to travel: Zaharis at [108]. The decision made by the Chief Commissioner involved "evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred", and other factors: see, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [17] (Allsop CJ). And as the Chief Justice further observed in Stretton at [21] - The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. … 108 The Chief Justice then cited Minister for Immigration and Citizenship v Li. The subject-matter of Li was the refusal of the Migration Review Tribunal to adjourn a hearing, which the High Court held was legally unreasonable and involved jurisdictional error. An application for an adjournment of a hearing involves the evaluation of an issue with which judges are familiar, and with which they are equipped to deal. The subject-matter of the Chief Commissioner's decision in this case is not in that category, as the observations of Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice set out at [48] above demonstrate. 109 The applicant's submissions in support of the claim that the Chief Commissioner's decision was unreasonable so as to engage s 5(2)(g) of the ADJR Act did little more than invite a merits review by the Court of the Chief Commissioner's decision. The applicant submitted that the Chief Commissioner - (1) denied granting permission to the applicant to travel overseas despite the overwhelming evidence to the contrary that the applicant posed any risk of offending during the intended travels; (2) ignored relevant evidence that supported the claim by the applicant that he would not pose a risk of offending whilst overseas; (3) ignored relevant evidence that the applicant would be monitored whilst overseas by a capable person who is aware of the applicant's offending; and (4) based his decision on irrelevant foreign legislation. 110 The applicant otherwise picked up in an omnibus way all the submissions relied on under s 5 of the ADJR Act. 111 I reject the claim that the Chief Commissioner's decision was legally unreasonable. The Chief Commissioner acted on the only expert opinion directed to the risk of the applicant re-offending, namely the 2012 report of the applicant's psychologist. He weighed the low risk identified by the psychologist in that report, which he rationally quantified as an appreciable risk, against other rational considerations that are summarised at [57] above. There is no expert evidence before the Court that would support a finding that, on the material before the Chief Commissioner, his evaluation of risk was in error, still less unreasonable in the sense required by s 5(2)(g) of the ADJR Act. And for the reasons referred to by Maxwell P and Weinberg JA in RJE v Secretary to the Department of Justice, the Court is hardly in a position to make its own assessment. (4) The Chief Commissioner's decision involved an error of law - ADJR Act, s 5(1)(f). 112 Under this ground, the applicant made the following submissions - (1) the Chief Commissioner erred in law by applying a misinterpretation or incorrect judgment of the purpose of s 271A.1 of the Criminal Code; (2) the Chief Commissioner erred in law by considering and relying upon irrelevant foreign legislation; (3) the Chief Commissioner's vague application of the weight he provided to certain factors is inconsistent with his decision to deny permission to travel internationally; (4) the Chief Commissioner erred in law by improperly considering the applicant's conviction for offences, which took place over 46 years ago, as determinative of the ongoing risk the applicant poses to commit further offences in the future despite conceding that he has not re-offended since; (5) the Chief Commissioner erred in law by failing to provide how he determined the child protection framework in the intended countries is weaker than in Australia; (6) the Chief Commissioner erred in law by not considering or providing any or any adequate weight to the financial loss to be suffered by the applicant should he not be granted permission to travel and comparing that with the sentence actually imposed on the applicant in 2012; and (7) the Chief Commissioner erred in law by considering the reasons for travel inadequate and that a demonstrated need or imperative aspect was required before permission to travel would be required. 113 Each of these submissions should be rejected. They reflect arguments that I have already rejected, and I will not repeat my reasons for doing so. Furthermore, the submissions at (3) to (5) do no more than cavil with the merits of the Chief Commissioner's decision. (5) The Chief Commissioner did not have any or any adequate evidence to justify its denial to grant permission to travel within the meaning of s 5(1)(h) of the ADJR Act. 114 By this ground, the applicant has misstated the terms of s 5(1)(h) of the ADJR Act, which is engaged if there is no evidence or other material to justify making the decision. Further, s 5(1)(h) of the ADJR Act is qualified by s 5(3), which provides - (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 115 The applicant did not address any submissions to these requirements, which have been considered in cases such as Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [576]-[581] (Weinberg J), and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224 (Black CJ, Spender J and Gummow J agreeing). Moreover, the no evidence ground in s 5(1)(h) of the ADJR Act is confined to findings of fact, and does not extend to expressions of opinion or value judgments: Telstra Corp Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 at [139] (Beaumont, Moore and Gyles JJ). The applicant did not identify any finding of fact that he sought to impugn by reference to s 5(1)(h) of the ADJR Act. By the terms in which the applicant's submission was framed the applicant sought to impugn the value judgment that the Chief Commissioner made. I therefore reject this ground. (6) The Chief Commissioner's decision was otherwise contrary to law, within the meaning of s 5(1)(j) of the ADJR Act. 116 In support of this ground, the applicant relevantly made the following submissions in relation to the second decision - (1) the Chief Commissioner failed to consider all of the evidence and material before him; (2) the Chief Commissioner determined the financial loss by the applicant as not relevant despite the significant amount, the delay by the Chief Commissioner in making the first decision, the initial refusal by the Chief Commissioner to reconsider the first decision, the disproportionate punishment the applicant would suffer by the financial loss when considered with the sentence imposed; (3) the Chief Commissioner had no legal basis upon which he could justify his reliance upon an irrelevant, foreign Act; and (4) the Chief Commissioner had no legal basis upon which he could justify his failure to consider relevant considerations such as the applicant's health, the sworn evidence, and the tours the applicant is scheduled to be on. 117 I reject all of these submissions, which are largely further attempts by the applicant to cavil with the merits of the Chief Commissioner's decision, and which are not directed to any legal error. The Chief Commissioner stated expressly at [6] of the reasons for the second decision that he had read and considered all the material which had been furnished, and which he listed in the body of the reasons. There is no reason to surmise that this did not occur. The Chief Commissioner was not required to regard any particular feature of that material as a relevant consideration unless the statute expressly or impliedly required that it be considered: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1 (Mason J). I have held that there was no error by the Chief Commissioner in having regard to the US Trafficking Act in the way in which he did by identifying three of the countries that the applicant proposed to visit as "Tier 2" countries (see [77] above). That consideration was not extraneous to the exercise of the power to make the decision. Otherwise, as I have held, the weight to be given to various factors was a matter for the Chief Commissioner to evaluate, and the outcome was not legally unreasonable.

AB v Chief Commissioner of Police

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Judgment (11 paragraphs)

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Cases Cited (38)

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