Can permission be qualified or conditional?
36 The first issue for determination is whether the respondent as a competent authority was authorised to give conditional or qualified permission to the applicant to leave Australia.
37 The respondent submitted that s 271A.1(3) of the Criminal Code impliedly vests a competent authority with a discretion as to whether or not to "give permission (however described)" to a registered sex offender to "leave Australia". The respondent submitted that, properly construed, and in light of the clear purpose of the legislation, that implied power includes the power to refuse to give permission entirely and, therefore, the "lesser power" to condition any permission granted by, for example, specifying that an offender be allowed to "leave Australia", but only if he or she travels to a particular destination for a specified period. It was submitted that viewed in this way, the power to impose conditions is a necessary component of the implied power itself. The respondent submitted that, properly construed, the implied power pursuant to s 271A.1(3)(a) of the Criminal Code to give permission to leave Australia necessarily includes a power to give permission to leave Australia on particular conditions including as to destination and period of travel. Alternatively, it was submitted that if the respondent did not have power to give permission on conditions, then the whole of the fourth determination was affected by legal error, and should be set aside.
38 In support of the respondent's primary argument, the respondent relied on the decision of the Queensland Court of Appeal in Commissioner of the Australian Federal Police v Hart (2016) 336 ALR 492. In Hart the Queensland Court of Appeal (P Lyons J, Douglas J agreeing, and Morrison JA dissenting in relation to one of the appeals, but agreeing on this point) had held that the power to make declaratory orders under s 102(1) of the Proceeds of Crime Act 2002 (Cth) included a power to make orders that were subject to conditions. The respondent relied on passages from the reasons of Morrison JA at [210]-[211], and on the following passages from the reasons of P Lyons J at [925]-[932] -
[925] I also agree with [Morrison JA's] conclusion that the power to make orders in s 102(1) includes a power to make orders which are subject to conditions.
[926] Bennion identified Attorney-General v Great Eastern Railway Co [(1880) 5 App Cas 473] as the source of a rule that an express statutory power carries implied ancillary power where needed. The learned author cited two passages from the judgments in that case. The first was from that of Lord Blackburn [at 481], with respect to whether the conferral of a discretion carries with it the implied conferral of an incidental power,
"... those things which are incident to, and may reasonably and properly be done under the main purpose (of an enactment), though they may not be literally within it, would not be prohibited."
[927] The second is from the judgment of Lord Selborne [at 478], who, in a similar context, said,
"... whatever may fairly be regarded as incident to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
[928] The latter passage was referred to by Brennan J in Johns v Australian Securities Commission [(1993) 178 CLR 408 at 429] (Johns) as authority for the conclusion that the Commission had the implied power to impose a condition of confidentiality, available information obtained under its coercive powers, for the assistance of a State Royal Commission. In the same case McHugh J said [at CLR 469] of s 127(4) of the Australian Securities Commission Act 1989 (Cth), which authorised the Commission to make the information available to the State Royal Commission,
"Unlike s 25(3), s 127(4) contains no express power to impose conditions. But it is a discretionary power, and the discretion can be exercised by requiring the recipient of the information to comply with specified conditions. The scope of a statutory power is ascertained 'by the character of the statute and the nature of the provisions it contains' [Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, 410]. When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation. Consequently, the repository of the power may impose conditions on those affected by the exercise of the power as long as the conditions are not inconsistent with the purpose for which the power is granted."
[929] In North Sydney Council v Standley & Associates Pty Ltd (Michael Standley) [(1998) 43 NSWLR 468 at 476] Mason P appeared to recognise that this was a general principle concerning the conditional exercise of discretionary powers. His Honour referred to the judgments of Brennan and McHugh JJ in Johns, as well as the United States decision of Southern Pacific Co v Olympian Dredging Co [260 US 205 (1922) at 208]. There, Sutherland J, for the Supreme Court of the United States, said "The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval".
[930] In Jaimee Pty Ltd v Council of the City of Sydney [[2010] NSWLEC 245 at [34]-[37] Craig J, after citing the passage referred to in the judgment of Mason P in Michael Standley, and before referring to the passages from Johns, with reference to the judgment of Mason P, said
"Those observations of the President were taken up by McClellan J, when Chief Judge of this Court, in 1643 Pittwater Rd Pty Ltd v Pittwater Council [[2004] NSWLEC 685]. For reasons then given by his Honour, he decided that an application under s 96 of (The Environmental Planning and Assessment Act 1979 (NSW)) could be determined by the grant of a conditional consent or approval, notwithstanding the absence of any specific power in the Act or Regulation so to do and notwithstanding the provisions of the Act expressly providing for conditions to be imposed upon the grant of development consent: see for example, ss 80 and 80A. The correctness of the decision in 1643 Pittwater Road has not since been questioned in this Court."
[931] As McHugh J pointed out, the power to impose conditions is constrained by the scope and purpose of the legislation. Nor, it seems to me, could a condition be imposed which is inconsistent with a provision of the Act.
[932] Bennion points out that in Ward v Metropolitan Police Commissioner [2006] 1 AC 23 Baroness Hale qualified the rule by stating [at [24]], "(t)he implication has to be necessary in order to make the statutory power effective to achieve its purpose". The author submits that Baroness Hale went too far, relying on the speech of Lord Rodger of Earlsferry [at [5]. His Lordship identified the test for determining whether a power to impose a condition was to be implied, as being whether that power could fairly be regarded as incidental to the power expressly conferred. It seems to me, in light of the authorities discussed, that in Australia, an incidental power may be implied to impose conditions when a discretion is exercised, even if it is not necessary to make the primary power effective.
39 As the respondent acknowledged though, on appeal to the High Court in Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76, Gordon J held at [264] that the Queensland Court of Appeal's conclusion that the power under s 102(1), Proceeds of Crime Act included a power to make conditional orders was "misplaced and may be put to one side". At [2], Kiefel CJ, Bell, Gageler and Edelman JJ expressed agreement with Gordon J's legal conclusions.
40 The respondent also relied upon the passage from the reasons of McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 429 (Johns), which was referred to by P Lyons J in Hart at [928] (set out under [38] above) as applying equally to implied powers such as that conferred on the respondent in the present case.
41 The respondent submitted that the presence of the words "however described" in s 271A.1 of the Criminal Code qualified the word "permission" such that the provision as a whole should be read to encompass "conditional" permission being granted. That is to say, the words are directed to encompassing permission that is "described" as conditional.
42 In response, the applicant submitted that the respondent's reliance upon the Queensland Court of Appeal's decision in Commissioner of the Australian Federal Police v Hart (2016) 336 ALR 492 was misplaced because the decision was reversed by the High Court in Commissioner of the Australian Federal Police v Hart, and that it was in any event distinguishable because, amongst other things, it concerned the implied power of a court rather than an administrative decision-maker.
43 The applicant submitted that s 271A.1(3) of the Criminal Code did not confer a statutory discretion on the respondent to grant permission to depart Australia with conditions or limitations which impose restrictions on travel that occur subsequent to the act of actual departure. It was submitted that once an individual has been granted approval and has departed Australia, there is no longer an offence for which the individual may be prosecuted under s 271A.1. The applicant submitted that by seeking to impose conditions on the grant of permission to travel involved misconstruing the provisions, and was an error of law.
44 The applicant also submitted that if Parliament had intended that the respondent have the power to impose conditions, Parliament would have legislated with a specific reference to approval being granted on "terms as the authority thinks fit". Additionally, it was submitted that the provision would necessarily have to contemplate an enforcement mechanism for such conditions, and with no capacity to supervise once the applicant is outside the jurisdictional limits of a competent authority, Parliament may well have deemed granting powers to limit the freedoms of an individual in question a practical irrelevance.
45 In relation to the term, "permission (however described)" in s 271A.1(3) of the Criminal Code, the applicant submitted that the phrase "however described" is a common Commonwealth legislative and regulatory drafting term, and that a study of the use of the phrase in other contexts, for instance the Fair Work Act 2009 (Cth) or the Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2015 (Cth), reveals that the phrase has its literal meaning; viz, an alternative descriptor may be used rather than the word of the statute. The applicant submitted that in the context of s 271A.l, it merely empowers the competent authority to grant approval, consent, authorisation, leave, etc, rather than requiring the authority to refer specifically to the word "permission". It was submitted that the phrase provides latitude as to the description of the permission, not the substance of the permission granted.
46 I have been assisted in the resolution of the question whether permission given under s 271A.1 of the Criminal Code might be expressed in a qualified or conditional way by the written submissions that were provided on behalf of the parties. On that question, I have come to the following conclusions.
47 The question in issue in this case is whether the fourth determination, in denying the applicant's request for permission to travel to Lebanon, and permitting travel to Dubai for a period of seven days provided that the applicant returned to Australia by 20 October 2018, was a lawful exercise of the implied power to give permission conferred by s 271A.1 of the Criminal Code. The resolution of this issue invites attention to the text of s 271A.1 together with its statutory purpose and legislative background. In relation to the identification of statutory purpose, in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592 [44] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated -
The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.
48 The common law and statutory rules of construction that are referred to in Lacey permit regard to be had to legislative history and extrinsic materials, in order to shed light on the statutory text.
49 Passages from the explanatory memorandum for the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 were referred to by Mullins J in Mentink v Commissioner for Queensland Police [2018] QSC 151 at [19]-[24], and a passage from the second reading speech of the Minister in the House of Representatives was set out at [25]. In relation to the purpose of s 271A.1 Mullins J concluded at [26]-[27] -
[26] Much of the extrinsic material relates specifically to the power conferred on the Minister automatically to cancel or refuse to issue a passport to an Australian citizen who is a reportable offender at the request of a competent authority. Where the extrinsic material does assist in relation to s 271A.1 of the Code is in the ascertainment of its purpose or object which is to prevent reportable offenders from travelling overseas to sexually exploit or sexually abuse vulnerable children in countries where the protection of those children from the activities of child sex offenders is less stringent than in Australia. This is facilitated by the creation of an offence under s 271A.1 of the Code, if a reportable offender leaves Australia without the permission of a competent authority.
[27] There is no ambiguity in the terms s 271A.1. Its connection with the underlying purpose of the 2017 Act to prevent child sex offenders from travelling overseas to sexually abuse vulnerable children is readily apparent from its terms. The purpose of the proposed travel by the reportable offender and the risk of the reportable offender sexually abusing vulnerable children overseas must be relevant considerations to the decision of the competent authority on whether to grant permission to the reportable offender to travel overseas. Counsel for both Mr Mentink and the respondent submitted that the discretion conferred on the competent authority to grant or refuse permission is broad. That must be correct in the context of the purpose of is enactment.
50 I note three points that arise from paragraph [27] of the reasons of Mullins J set out above. First, the purpose of the proposed travel by the reportable offender is a relevant consideration; second, the risk of the reportable offender sexually abusing vulnerable children overseas must be a relevant consideration; and third, the discretion conferred on a competent authority to refuse permission is broad.
51 It is by operation of the Victorian Sex Offenders Registration Act that the applicant engages s 271A.1(1) of the Criminal Code. The text of s 271A.1(1) of the Criminal Code and the definition of "competent authority" in s 12 of the Australian Passports Act link the Criminal Code to the State and Territory legislation that impose the reporting obligations referred to in s 271A.1(1)(c) of the Criminal Code, and under which the responsibilities, powers, functions or duties of the "competent authority" arise for the purposes of s 12(3) of the Australian Passports Act. In this case, that linkage invites attention to the Sex Offenders Registration Act.
52 The terms of the Sex Offenders Registration Act mandate that, by reference to the category of offence for which the applicant was sentenced, namely a "Class 1 offence", the applicant is a "registrable offender" for the purposes of that Act, and is subject to reporting obligations under that Act for a period of 15 years. The purposes of the reporting regime which is imposed by the Sex Offenders Registration Act include the express purposes that are identified in s 1(1) of that Act -
(a) to reduce the likelihood that they will re-offend; and
(b) to facilitate the investigation and prosecution of any future offences that they may commit.
53 The "competent authority" in this case is the Chief Commissioner of Police, who under the Sex Offenders Registration Act has powers, functions and duties in relation to the applicant's circumstances as a registered sex offender under that Act (see Zaharis at [52]). Material to the grant of permission to leave Australia for the purposes of s 271A.1(3) of the Criminal Code are ss 18 and 21A of the Sex Offenders Registration Act, which are set out under paragraphs [4] and [6] above. Those provisions require a registrable offender to provide details and supporting documents to the respondent relating to intended travel outside Australia, and s 47(1) of the Act, which is set out under paragraph [8] above, creates an offence for furnishing false or misleading information. There are corresponding provisions in the legislation of the other States and the Territories which were in place at the time s 271A.1 was inserted into the Criminal Code, namely: Child Protection (Offenders Registration) Act 2000 (NSW), ss 11A, 18; Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 20, 51; Child Sex Offenders Registration Act 2006 (SA), ss 17, 45; Community Protection (Offender Reporting) Act 2004 (WA), ss 30, 64; Community Protection (Offender Reporting) Act 2005 (Tas), ss 19, 34; Child Protection (Offender Reporting and Registration) Act (NT), ss 20, 49; Crimes (Child Sex Offenders) Act 2005 (ACT), ss 42. The existence of this legislation is material to the purpose and scope of s 271A.1.
54 In my view, information provided by a registrable offender in relation to proposed travel, either voluntarily or pursuant to ss 18 and 21A of the Sex Offenders Registration Act, is capable of being relevant to the decision of a competent authority whether to give permission to a registrable offender to leave Australia. Matters such as intended destination, duration of travel, and whether the proposed travel is supported by a travel itinerary or booking confirmation, are capable of being considered by a competent authority for the purposes of deciding whether to give permission. Indeed, the travel intentions disclosed by that information might fairly be regarded in many cases, as they were in this case, as being the subject of the registrable offender's request for permission to leave Australia. It follows that the giving or refusal of permission to leave Australia will often be responsive to, and may be expressed by reference to, an applicant's intentions as disclosed by the information that is furnished to the respondent.
55 In this case, by the fourth determination the respondent gave permission to the applicant to leave Australia on 11 October 2018 for the purposes of travel to Dubai, but on the proviso that the applicant would return to Australia by 20 October 2018. The respondent denied the applicant's request for permission to leave Australia for the purposes of the extended trip that had been booked, which included four weeks in Lebanon. In my view the fourth determination answered the description of "permission howsoever described" (cf, Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126 at 135-6). To the extent that the respondent gave permission on the proviso that the applicant should return to Australia by 20 October 2018, I do not consider that this amounted to an attempt to impose a condition that is enforceable under s 271A.1 of the Criminal Code. Rather, the limitations on the travel contemplated by the terms of the permission confined the terms of the permission, in that the permission given was to leave Australia on 11 October 2018 for the purpose of travel to Dubai. Implicit in the permission given in this case was that the applicant's intended travel would then conform to the terms of that permission. In my opinion, it would be open to the respondent to request a registrable offender to confirm expressly for the purposes of ss 18 and 21A of the Sex Offenders Registration Act that the intended travel is within the scope of the permission given or proposed, before the permission becomes effective.
56 To the extent that the respondent gave any permission to the applicant to leave Australia, that permission related specifically to departure on 11 October 2018 to travel to Dubai. That permission has now lapsed by reason of the effluxion of time, and changed circumstances. On the evidence before me, the respondent has not given permission to the applicant to leave Australia at any later time, or under any other circumstances. Specifically, the respondent has not given permission to the applicant to leave Australia for the purposes of the proposed visit to Lebanon.
57 For the above reasons, to the extent that the fourth determination gave qualified permission to the applicant to leave Australia from 11 October 2018, I consider that such permission was not, for that reason, outside power. The purposes of s 271A.1 of the Criminal Code permit that regard may be had to the details and purpose of a registrable offender's proposal to leave Australia, and in my view it is permissible for such matters to inform, and to shape the terms of any permission which is given to leave Australia.