DKG v Commissioner of Police

[2019] NSWSC 523

Supreme Court

New South Wales

Medium Neutral Citation:	DKG v Commissioner of Police [2019] NSWSC 523
Hearing dates:	24 April 2019
Date of orders:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	(1) Pursuant to s7 of the Court Suppression and Non-publication Orders Act 2010 publication is prohibited of the name of the plaintiff in these proceedings and of any information that might tend to reveal his identity as the plaintiff. (2) The plaintiff’s notice of motion filed 7 December 2018, in its amended form as relied upon by the plaintiff at the hearing on 24 April 2019, is dismissed. (3) The plaintiff’s amended summons filed 24 September 2018 is dismissed.
Catchwords:	CRIME — appeals — appeal against conviction and sentence in Local Court — application for leave to appeal – where application made following out of time appeal to District Court – appeal of decision of Local Court incompetent – appeal dismissed – registration, reporting and like matters — child protection register — application for permission for registered person to leave Australia — competent authority to permit person to leave Australia — definition of “competent authority” ADMINISTRATIVE LAW — Judicial review — Reviewable decisions — Decisions to which judicial review legislation applies — decisions under an enactment — application for permission for a person on a child protection offender register to leave Australia — whether Supreme Court has jurisdiction to hear proceedings for judicial review of decision relating to permission — Criminal Code (Cth), s 271A.1(3) WORDS AND PHRASES – “competent authority” – Australian Passports Act 2005 (Cth) s 12 and Criminal Code Act 1995 (Cth) s 271A.1(3)(a) – competent authority in NSW is NSW Commissioner for Police
Legislation Cited:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Passports Act 2005 (Cth) Child Protection (Registration of Offenders) Act 2000 Child Sex Offenders Registration Act 2006 (SA) Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code Act 1995 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Supreme Court Rules 1970
Cases Cited:	Ammouche v Chief Commissioner of Police [2018] FCA 1703 Devitt v Ross [2018] NSWSC 1675 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 Mentink v Commissioner for Queensland Police [2018] QSC 151 Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 R v LAL [2018] QCA 179 Wishart v Fraser (1941) 64 CLR 470; HCA 8 Zaharis v The Commissioner of Police [2018] SASC 143
Category:	Principal judgment
Parties:	DKG (plaintiff) Commissioner of Police (first defendant) The Childrens Guardian (second defendant)
Representation:	Counsel: N/A (plaintiff) P Singleton (first and second defendants) H Langley (Director of Public Prosecutions) Solicitors: DKG (plaintiff in person) Crown Solicitors Office (first and second defendants) Solicitor for the Director of Public Prosecutions
File Number(s):	2018/275293
Publication restriction:	No

Judgment

1. HIS HONOUR: On 28 April 2016 the Local Court at Manly found the plaintiff guilty of a charge of assault with act of indecency contrary to s 61L of the Crimes Act 1900 (NSW) (as then in force). The offence was committed late on the evening of 12 September 2015. The plaintiff was at that time a taxi driver aged 42 years and the complainant was a 17-year-old female passenger. On 7 June 2016 the conviction was recorded and the plaintiff was released under bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 18 months to be of good behaviour and “accept the supervision and management [of] parole for as long as they deem it necessary”.

2. On 7 September 2018 the plaintiff filed in this Court a summons naming the “NSW Police” and the “Australian Federal Police” as defendants and seeking “review of convictions and sentences – Part 7; Division 3; Section 78; under [Crimes (Appeal and Review) Act 2001 (NSW)]”. Section 78 provides that this Court may order an inquiry into a conviction. The plaintiff had counsel in the Local Court but is self-represented in these proceedings. On 24 September 2018 he filed an amended summons against the NSW Police and the Office of the Children’s Guardian claiming orders that his conviction be quashed and that his name be removed from the Child Protection Register. That is the currently operative document on which his substantive claims for relief are to be litigated.

The plaintiff’s notice of motion to substitute defendants and to amend

3. On 7 December 2018 the plaintiff filed a notice of motion seeking orders that the Office of Children’s Guardian be removed as a defendant and that the Director of Public Prosecutions (NSW) (“DPP”) and the Department of Foreign Affairs and Trade of the Commonwealth (“DFAT”) be joined. The notice of motion also seeks leave to file a further amended summons in a form that he attempted to file on 7 December 2018. Upon the plaintiff’s motion being called on for hearing on 24 April 2019 he was granted leave to move on an amended notice of motion, which he has confusingly dated 7 December 2018 (found at Tab 2 of the plaintiff’s court book). The plaintiff now seeks that both of the present defendants, the NSW Police and the Office of Children’s Guardian, be removed from the proceedings, so that relief would be claimed only against the proposed new parties, the DPP and DFAT.

4. If leave should be granted the plaintiff would claim by his further amended summons (at Tab 1 of his court book) the following relief:

1. An extension of time within which to appeal his conviction and sentence under s 53 of the Crimes (Appeal and Review) Act; leave to appeal; an order that the appeal be allowed and an order that his sentence be set aside (alternatively that the Court not proceed to conviction, pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act).

2. An order that the plaintiff’s name be removed from the Child Protection Register maintained under the Child Protection (Offenders Registration) Act 2000 (NSW).

3. An order that his Australian Passport be reissued.

4. Damages allegedly caused as a result of the plaintiff having been refused permission to travel overseas.

5. There is an ancillary claim for an order that he be provided with pro bono legal assistance. On 11 October 2018 Davies J directed the proceedings to the Registrar for referral of the plaintiff to a barrister or solicitor on the pro bono panel for advice about his prospects of success in the present proceedings. His Honour left it open to the plaintiff to make a further application for pro bono assistance, depending upon the terms of the advice. The plaintiff was duly referred to counsel and received advice but he deposed in an affidavit sworn 14 February 2019 that “the current barrister … is not willing to represent me for unspecified reasons”. He further deposed that the Bar Association was endeavouring to find other counsel. That has evidently come to nothing after two months. In the absence of any further or more specific information and having regard to the view I have formed about the lack of merit in the plaintiff’s substantive claims I will not make any further order for pro bono referral in connection with the proceedings in this Court. As explained below he appears to have reasonable prospects of obtaining in the Federal Court relief under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the Commissioner of Police refusing him permission to travel overseas. It is not for this Court to order pro bono referral in relation to possible future proceeding in the Commonwealth jurisdiction.

6. The plaintiff’s draft further amended summons includes a further ancillary claim for an order that the plaintiff’s name be suppressed. I consider a non-publication order more appropriate to the circumstances. Such an order can only be made, under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), if one of the grounds prescribed in s 8 should be established. The plaintiff points to the embarrassment to himself, particularly in seeking employment, that has resulted from his conviction and the consequent inclusion of his name on the Child Protection Register. Section 21E of the Child Protection (Registration of Offenders) Act restricts disclosure of information relating to a registrable person. I accept the plaintiff’s submission that his social embarrassment will be exacerbated by him being named in connection with the present proceedings. Publication of his name would potentially defeat the restriction in s 21E. That is sufficient justification, within s 8(1)(e) of the Court Suppression and Non-publication Orders Act, for making a nonpublication order.

7. The grounds for relief set out in the plaintiff’s proposed further amended summons are all directed to alleged errors in the summary determination of the charge by the learned Magistrate. The grounds may be paraphrased as follows:

1. Failure to state that the complainant’s lack of consent and the plaintiff’s awareness of non-consent, or recklessness in that regard, are elements of the offence.

2. Making no findings about lack of consent or about the plaintiff’s awareness or recklessness.

3. Failing to identify an act of an indecent character.

4. Failing to make any finding as to whether the plaintiff attempted to kiss the complainant or whether any such attempt was indecent.

5. Making an erroneous finding as to why the complainant allowed the plaintiff to enter his contact number on her phone.

6. The finding of guilt was unreasonable and could not be supported by the evidence.

7. The plaintiff’s counsel did not cross-examine the complainant appropriately and different counsel who appeared on sentence did not make appropriate submissions.

8. These grounds are all directed to the appeal against conviction and sentence, being the relief referred to at [4(1)] above. No grounds are stated to support the claims for the plaintiff’s name to be removed from the Child Protection Register or for a passport to be issued to him. No grounds for the claim in damages are provided.

Defendants’ notice of motion for summary dismissal

9. On 11 October 2018 the current defendants, the NSW Police and the Office of the Children’s Guardian, filed a notice of motion seeking summary dismissal of the plaintiff’s amended summons filed 24 September 2018, pursuant to r 13.4 of the Uniform Civil Procedure Rules. As the plaintiff is applying to substitute different defendants and to proceed on a further amended summons it is logical to determine his notice of motion first. The plaintiff has demonstrated a poor grasp of civil procedure. He evidently does not appreciate that if the Court should make the order he seeks for the present defendants to be removed from the proceedings but leave to file his proposed further amended summons is refused, he will be left with no proceeding against anyone. Therefore, rather than leave the plaintiff in that position, I will in due course consider whether his current amended summons discloses any viable claim for relief against the NSW Police or the Office of the Children’s Guardian.

Leave with respect to an appeal from the Local Court

10. The provisions for a defendant’s appeal to this Court from conviction or sentence in the Local Court are ss 52 and 53 of the Crimes (Appeal and Review) Act, extracted as follows so far as relevant:

52 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court, … may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

(2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

53 Appeals requiring leave

(1) Any person who has been convicted or sentenced by the Local Court, … may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a) a question of fact, or

(b) a question of mixed law and fact,

but only by leave of the Supreme Court.

(4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.

11. The period prescribed under ss 52(2) and 53(4) for the commencement of an appeal to this Court or for making an application for leave to appeal is 28 days: Supreme Court Rules 1970, Pt 51B, r 6(1). That period expired on 6 July 2016. The plaintiff’s original summons was filed two years and three months after its due date and the further amended summons for which leave is now sought would be two years and nine months out of time. Whether time would be extended will usually be influenced by the prospective merits of the appeal or application for leave, which I will therefore consider immediately.

12. I have reviewed the entire transcript of proceedings in the Local Court. The witnesses for the prosecution were the officer in charge, the complainant and her boyfriend. An electronic recording of a police interview of the plaintiff was tendered and a transcript was provided to the Magistrate as an aide memoire. The plaintiff was the only witness in the defence case.

13. The complainant’s evidence was that at about 10:00 pm on the night in question she engaged the plaintiff at the Manly cab rank to drive her to Avalon. On the way the plaintiff invited her to join him for a drink or for dinner. As he made those suggestions he briefly stroked her bare arm. She was wearing a short T-shirt beach dress. The plaintiff then brushed the top of the complainant’s right thigh with his hand. The complainant declined his invitations to have a drink or a meal with him.

14. When the taxi was close to the complainant’s destination the plaintiff said, “Can I have a hug and a kiss before you go”. The complainant replied, “No”. The plaintiff pulled over and stopped the taxi, short of the destination. He again touched the complainant on the upper right thigh and leant across in an attempt to kiss her. She said, “If you don’t keep driving I’ll just get out now”. The plaintiff desisted and continued the journey. On arrival he asked the complainant for her phone number. She did not give it but instead invited him to enter his number into her phone. Police later used this to identify the plaintiff. The complainant was met by her boyfriend when she alighted from the taxi but did not immediately tell him what had occurred. She explained this on the basis that her boyfriend had “had a few drinks and I was worried like I did not want to like start a fight or anything”. The learned Magistrate expressly accepted this explanation of the lack of immediate complaint, in a passage towards the end of his reasons. The explanation gained credibility from the fact that the boyfriend was a 32-year-old man whom his Honour found was “enraged” when the complainant told him next morning what had occurred.

15. The complaint was cross-examined to suggest that the plaintiff never touched her on the bare arm or on the upper thigh or leant across in an attempt to kiss her. The plaintiff gave evidence that he had not done any of those things. The learned Magistrate stated at the outset of his reasons for decision that the issue was whether it had been proved beyond reasonable doubt that the plaintiff touched the complainant as she alleged. His Honour said there had been no submission to the contrary of the proposition:

that if the version as given by [the complainant] is to be accepted that the actions of the accused by reason of the touching of the arm and leg and the consequent then attempt to kiss amount at law to an assault and accompanied by an act of indecency.

16. His Honour noted that “what is in issue of course is … whether it happened at all”. The submissions of the parties were not transcribed. However there is no reason to doubt that the case was conducted on the issues as summarised in the reasons for decision. It was therefore quite unnecessary for his Honour to state the law with respect to the elements of non-consent and the accused’s awareness thereof. There is no deficiency in the learned Magistrate’s reasons in this regard, nor any error of law. His Honour accepted the complainant’s evidence and rejected that of the plaintiff for reasons given in detail, disclosing no apparent error. It was open to his Honour to be satisfied beyond reasonable doubt that the events recounted by the complainant occurred. Once those facts were found it followed from the absence of contest about the indecent character of the touching as alleged or about lack of consent that there was no basis upon which the learned Magistrate ought to have felt a reasonable doubt concerning any element.

17. Of the plaintiff’s grounds summarised at [7] above, only (1)-(3) could arguably be characterised as involving “a question of law alone”, namely, the question of what are the elements of an offence against s 61L of the Crimes Act with regard to non-consent and awareness thereof. But those grounds are patently unsustainable because of the way the case was conducted and the terms in which his Honour’s reasons were given. It follows that there are no viable grounds that could support an appeal as of right.

18. Ground (4) concerns failure of the learned Magistrate to make a factual finding about the plaintiff’s alleged attempts to kiss the complainant. In my view, it was unnecessary for his Honour to make any such finding in order to determine the charge. Grounds (5) and (6) are pure questions of fact for which I would not grant leave because his Honour’s conclusions were well open to him on the evidence. Ground (7) is concerned with the manner in which the plaintiff’s counsel questioned the complainant and formulated submissions on sentence. The plaintiff is bound by that conduct and I do not see any arguable case that a miscarriage of justice resulted from it. All of grounds (4)-(7) would require leave pursuant to s 53 and none of them would merit a grant of leave.

19. As the plaintiff’s proposed appeal and application for leave to appeal pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act have no prospect of success I would not extend time for the plaintiff to prosecute his appeal under the proposed further amended summons.

20. Pursuant to s 11 of the Crimes (Appeal and Review) Act the plaintiff had available to him a right of appeal from his conviction and sentence to the District Court. Subsection (2) of s 11 prescribes that such an appeal “must be made within 28 days after sentence is imposed”. Pursuant to s 13 the District Court may grant leave to bring an appeal out of time but only if the application for leave is made within three months of the relevant conviction or sentence.

21. In this case the three months expired on 7 September 2016. On 3 November 2017 the plaintiff filed in the District Court at Sydney an application for leave to appeal, 14 months out of time. This application came before Baly DCJ on 5 February 2018. The outcome is recorded on Justice Link as:

Court has no jurisdiction to hear appeal.

There is no record of any order, in terms, that the application for leave be dismissed or that the conviction and sentence in the Local Court be confirmed.

22. Counsel for the presently-joined defendants and for the DPP submitted that in these circumstances, although Baly DCJ did not in so many words order dismissal of the plaintiff’s time-barred application, I should conclude that the effect of recording “no jurisdiction” and of leave not being granted under s 13(2) was to dispose of the plaintiff’s appeal to the District Court on a final basis. It was submitted that I should apply Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 (Adamson J) and hold that the operative order is now an order of the District Court dismissing an appeal against conviction, not the original order of the Local Court. See also Devitt v Ross [2018] NSWSC 1675. Applying Wishart v Fraser (1941) 64 CLR 470; HCA 8 it was submitted that an appeal from the Local Court to this Court pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act is now incompetent. It is not necessary for me to rule on these submissions as I would refuse the plaintiff leave to appeal to this Court out of time in any event.

Relief claimed concerning the Child Protection Register

23. In the draft further amended summons no grounds at all are stated for the order proposed to be sought by the plaintiff, as paraphrased at [4(2)] above, that his name be removed from the Child Protection Register. The offence of which the plaintiff was convicted of fell within par (a1) of the definition of a “Class 2 offence” in s 3 of the Child Protection (Offenders Registration) Act, namely:

(a1) an offence that involves sexual touching or a sexual act against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more.

24. The plaintiff became a “registrable person” upon being sentenced: s 3A of the Child Protection (Offenders Registration) Act. He became obliged under s 9 to report personal details concerning himself and concerning any child with whom he may have contact in a supervising or caring role. This report was required to be made to the Commissioner of Police within seven days of sentence: s 9A. Section 11 requires the plaintiff to report changes to his personal information within seven days. A change of address must be reported within 24 hours. Personal particulars must be reported to the Commissioner afresh on an annual basis: s 10.

25. For a registrable person such as the plaintiff who has been convicted of only a single Class 2 offence the reporting obligations continue for eight years: s 14A. Section 16 allows for application to the Civil and Administrative Tribunal (“NCAT”) for an order suspending reporting obligations, but only for a limited class of persons and in limited circumstances. The plaintiff and his circumstances do not fall within the narrow scope for an application to NCAT.

26. Section 19 requires the Commissioner of Police to establish and maintain a Child Protection Register that contains the name and other identifying particulars of each registrable person, details of relevant offences and numerous other particulars. Section 21E prohibits disclosure of information relating to a registrable person except in connection with the administration of the Act, or with the consent of the registrable person, or pursuant to court order, or with the consent of the Commissioner of Police or in other limited circumstances.

27. The Child Protection (Offenders Registration) Act makes no provision for review by NCAT or by any court of a registrable offender’s inclusion on the Child Protection Register maintained under s 19. There is no power in any administrative or judicial body to remove a name from the Register. The plaintiff’s claim for an order that his name be removed (see [4(2)] above) cannot succeed in this Court and he will not be permitted to file his further amended summons including that claim.

28. The plaintiff’s case demonstrates that automatic registration under the Act and the widely inclusive definition of offences for which a person may become registrable are features that may in combination have harsh, counter-productive and unwarranted consequences for less serious offenders, without apparently serving any purpose of the Act or achieving anything in terms of community protection. The reach of the Act to very low risk offenders, without adjudication or provision for review, has the potential to impede rehabilitation. Perpetuation of the embarrassment of his misconduct through registration and frustration associated with reporting appear to have prevented the plaintiff recovering from this minor criminal infringement.

29. The plaintiff arrived in Australia from India on a student visa in 2000 at age 27. He already held a Bachelor of Accounting degree from Osmania University in India. He graduated two years later from the Australian Catholic University with a Masters Degree in Information Systems. Over the next six years, until 2008, he worked in his professional field in Australia with successive employers and then on a freelance basis. In the meantime, the plaintiff married in India in 2003. The marriage was arranged. The plaintiff’s wife joined him in Australia and they now have two children, one in early teens and the other less than 10 years old. The plaintiff became an Australian citizen in 2007. He and his wife separated in 2008 and were divorced in 2012. The plaintiff worked in India and in the Middle East from the time of their separation until early 2015, with only brief periods in Australia. The plaintiff returned to this country in about April 2015.

30. The plaintiff has been unable to regain employment in his profession in Australia returning in 2015. He has been out of any kind of work since December 2017. He claims that most prospective employers in his field require a police clearance and that his job applications do not pass this stage. He does not apply for positions that involve working with children or to which the indecent assault or his registration under the Child Protection (Offenders Registration) Act would have any relevance. The Court has not received sufficient evidence to permit any finding to be made about whether his registration in fact comes to the attention of prospective employers. If he is asked about his record he would be bound to disclose that he is on the Register and it would not be surprising that competing job applicants would receive preference. Registration carries the stigma of being a “child sex offender”, a concept that in common usage would not be applied to the facts of the plaintiff’s case. At the age of 46 years the plaintiff has no record of any kind of sexual misconduct apart from this one isolated instance.

31. The assault with act of indecency was prosecuted in the Local Court rather than on indictment, evidently in recognition by the police that it was a relatively slight offence of its type. The penalty imposed by the Magistrate reflects an assessment by his Honour of a low level of seriousness. The prosecution did not appeal the 18 month bond. It is notable that on the complainant’s evidence the plaintiff did not persist with his physical advances when she told him that she would get out of the car unless he drove on immediately. It was appropriate for the plaintiff to be prosecuted on the complaint, particularly as proof of the charge could have a bearing on his fitness to work as a taxi driver. However, a sense of proportion must be kept.

32. This Court is accustomed to making orders under the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to which restrictions upon liberty of some classes of sex offenders are extended well beyond the terms of imprisonment that sentencing judges have determined appropriate as punishment. The express objects of the legislation are to protect the community and to foster rehabilitation through extended supervision. However, orders are made under that Act only in relation to serious offenders, whose crimes have warranted full-time custody, and only on the basis of expert and other evidence sufficient to satisfy the Court “to a high degree of probability that the person poses an unacceptable risk of committing another serious offence” if not kept under extended supervision or detention: ss 5B(d) and 5C(d).

33. Here, the plaintiff completed his bond to the satisfaction of his Probation and Parole officer, who did not require him to continue reporting after the first 12 months. From the material before the Court it appears that there has never been a psychological or other assessment of the plaintiff to suggest that he has a propensity for further sexual offending. On the basis of his record, which does not include anything of significance apart from this conviction, and considering his general antecedents, I would assess his risk of sexual reoffending as very low. Yet by automatic operation of the Child Protection (Offenders Registration) Act and without any scope for administrative or judicial review the plaintiff is subject to the ongoing significant impediments that result from registration, to which references has been made above.

Relief claimed with respect to obtaining an Australian passport

34. By force of s 11A the plaintiff is required to report to the Commissioner of Police at least seven days before leaving New South Wales if he intends to travel out of Australia. This report must include details of each country to which he intends to travel; the approximate dates during which he intends to be in each country; the addresses at which he intends to reside, to the extent that they are known, “and the approximate dates during which [he] intends to reside at those addresses”. Section 11E requires that as soon as practicable after receiving a report from a registrable person of his intention to travel out of Australia, the Commissioner of Police must provide a copy of the report to the Commissioner of the Australian Federal Police (“AFP”). The registrable person’s reporting obligations are suspended while he is outside New South Wales but the eight-year duration of reporting is in that event correspondingly increased: s 15.

35. Although the Child Protection (Offenders Registration) Act does not restrict or prohibit overseas travel by registrable persons, s 271A.1 of the Criminal Code (Cth) has that effect:

271A.1 Restrictions on overseas travel by certain registered offenders

(1) A person commits an offence if:

(a) the person is an Australian citizen; and

(b) the person's name is entered on a child protection offender register (however described) of a State or Territory; and

(c) the person has reporting obligations (however described) in connection with that entry on the register; and

(d) the person leaves Australia.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2.

(3) Subsection (1) does not apply if:

(a) a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or

(b) the reporting obligations of the person are suspended at the time the person leaves Australia.

Note: The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).

36. I construe subss (3)(b) of s 271A.1 of the Criminal Code as being engaged only where the reporting obligations are suspended independently of the person’s departure. In other words, although s 15 of the Child Protection (Offenders Registration) Act has the effect that reporting obligations are suspended upon a registrable person departing overseas, such statutory suspension would not satisfy sub-s (3)(b) of s 271A.1. That construction seems to be necessary in order to give effect to the evident purpose of s 274A.1. It is supported by the second reading speeches upon the passage of the Bill by which this section was inserted into the Criminal Code, particularly the speech of Mr Dreyfus on 20 June 2017.

37. It follows that the plaintiff can only depart from Australia lawfully if he first obtains permission from the relevant “competent authority”, as provided for in s 271A.1(3)(a). For the meaning of that term, subs (3)(a) redirects to s 12 of the Australian Passports Act 2005 (Cth). The parts of s 12 that are presently relevant are as follows:

12 Reasons relating to Australian law enforcement matters

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

…

(b) a person … is prevented from travelling internationally by force of:

…

(iii) a law of the Commonwealth … ;

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

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

…

(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 … a State … ; 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

…

"reportable offender" means a person:

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

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

38. A “refusal/cancellation request” as referred to in subss (1) and (1A) of s 12 is explained in s 18 of the Australian Passports Act as a request to issue or cancel a passport. The plaintiff clearly falls within the definition of “reportable offender” in s 12(3). In New South Wales the Commissioner of Police is the “person who has responsibility for, or powers, functions or duties in relation to” circumstances referred to in s 12(1A), under a law of this State. The Commissioner has responsibility for and powers, functions and duties under the Child Protection (Offenders Registration) Act, being the law of this State pursuant to which the plaintiff is a “reportable offender”. Hence, the Commissioner is a “competent authority” for the purposes of the Australian Passports Act and s 271A.1(3)(a) of the Criminal Code.

39. I respectfully agree with the conclusion of Doyle J in Zaharis v The Commissioner of Police [2018] SASC 143 at [55]-[58] that s 271A.1 is properly to be construed as providing for only one competent authority for each state. His Honour’s reasoning at [55]-[58] is compelling and I adopt it. Consideration of the Child Protection (Offenders Registration) Act shows that neither this Court nor any other New South Wales court or tribunal has “responsibility for, or powers, functions or duties in relation to” reportable offenders in New South Wales. The Child Sex Offenders Registration Act 2006 (SA) contains provisions broadly comparable with the New South Wales Act and establishes a very similar scheme of registration and reporting. My conclusions that the Commissioner of Police is the “competent authority” in New South Wales for the purposes of s 271A.1 of the Criminal Code and that no court or tribunal of this state is a competent authority are consistent with the decision in Zaharis v The Commissioner of Police: at [46]-[53]. See also R v LAL [2018] QCA 179 at [104] (Ryan J, Sofronoff P and Crow J agreeing).

40. Doyle J held that a decision of a competent authority to give or refuse permission for a reportable offender to travel overseas is a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) applies (at [64]-[68]). In s 3 of the ADJR Act the expression “decision to which this Act applies” is defined in terms that include “a decision of an administrative character made … under” a Commonwealth Act. At [65] Doyle J cited the following passage from the judgment of Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [89]:

The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met.

41. I respectfully agree with Doyle J that these criteria are met in relation to a determination by a competent authority to grant or refuse permission to travel overseas, notwithstanding that s 271A.1(3)(a) of the Criminal Code does not expressly confer decision-making power. Neither the Child Sex Offenders Registration Act 2006 (SA) nor the Child Protection (Offenders Registration) Act 2000 (NSW) contains any provision purporting to empower a competent authority to give or withhold permission for the purposes of s 271A.1(3)(a). Necessarily, any such decision of a competent authority is made “under” s 271A.1(3)(a) and is, by force of s 3 of the ADJR Act, a “decision to which this Act applies”.

42. Section 8 of the ADJR Act confers jurisdiction to review administrative decisions to which the Act applies upon the Federal Court of Australia and the Federal Circuit Court of Australia. Section 9(1) of the ADJR Act denies such jurisdiction to State courts. The relevant parts of s 9 are as follows:

9 Limitation of jurisdiction of State courts

(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:

(a) a decision to which this section applies that is made after the commencement of this Act;

…

Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001 .

(2) In this section:

"decision to which this section applies" means:

(a) a decision that is a decision to which this Act applies; or

...

"review" means review by way of:

(a) the grant of an injunction;

(b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus ) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c) the making of a declaratory order.

43. In Ammouche v Chief Commissioner of Police (Vic) [2018] FCA 1703 the parties did not question the correctness of Zaharis v The Commissioner of Police so far as that case decided that a determination of a competent authority under s 271A.1(3)(a) of the Criminal Code is reviewable under the ADJR Act: at [31]-[33]. In both judgments reference was made to Mentink v Commissioner for Queensland Police [2018] QSC 151 where Mullins J undertook judicial review of such a decision. It appears no argument was advanced before her Honour that the Federal Court and the Federal Circuit Court have exclusive jurisdiction with respect to such a decision under the ADJR Act. Her Honour assumed rather than decided that the Queensland Supreme Court had jurisdiction.

44. I do not need to consider the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) referred to in the note to s 9(1) of the ADJR Act. Cross-vesting legislation would only be relevant if the plaintiff had already commenced in this court a judicial review proceeding against the Commissioner of Police with respect to his decision under s 271A.1. But he has not, at this stage commenced any such proceedings.

45. On 30 April 2018 the plaintiff made a written application to the Commissioner of Police for permission to travel to India to visit his family with a side trip to Sri Lanka for a holiday, totalling about four weeks. He completed a form as required by the police, apparently derived from National Guidelines, the legal basis for which I have not been able to ascertain. This document required that the plaintiff provide details of his itinerary and documentation of the purpose of his travel. Some of the requirements would be extremely onerous to comply with.

46. The form calls for “documents provided as proof of travel reason”. It provides a list of examples of such documents, none of which would cover the case of somebody wishing to return to his country of origin to visit elderly parents. The form also requires that the applicant “must attach your itinerary, tickets, receipts or any other documentation to confirm your intended travel arrangements”. In circumstances where the applicant does not know whether he will obtain permission, this appears to require him to purchase a ticket in the hope that his application will succeed and run the risk of losing the fare if he does not.

47. The plaintiff’s application was considered by Detective Superintendent Kerlatec, the Commander of the Child Abuse and Sex Crimes Squad, as agent of the Commissioner. On 2 May 2018 Mr Kerlatec wrote to the plaintiff to advise that his application to travel to India was refused. On 7 June 2018 a second letter was sent advising that permission to travel to Sri Lanka was refused. Neither of these letters gave any reasons and both contained the following passage:

While there is no duty to provide you with reasons for refusing to give you permission, I advise that ordinarily, the matters that are taken into consideration when determining an application include: the proposed travel destination, the reasons for the proposed travel, the seriousness of your registrable offences, the seriousness of your overall history, your compliance with reporting obligations under the Child Protection (Offenders Registration) Act 2000 and any other relevant information the NSW Police Force have in relation to you.

48. Despite receiving these notifications the plaintiff purchased a return air ticket to Colombo, departing Sydney on 11 June 2018 and returning on 13 July 2018. He was stopped at the airport and refused permission to board. His passport was confiscated. On 12 June 2018 Mr Kerlatec notified the plaintiff in writing that the Commissioner of Police would make a request to the Minister for Foreign Affairs pursuant to s 12(1) of the Australian Passports Act 2005 (see [37] above) for cancellation of his passport. By force of s 22A of that Act the Minister is bound to give effect to such a request. The plaintiff was notified of cancellation by a letter from the Minister dated 15 August 2018.

49. On 16 July 2018 the plaintiff applied to NCAT for review of (1) Mr Kerlatec’s decision refusing him permission to travel overseas; (2) the Minister’s decision to cancel his passport and (3) the inclusion of his name on the Child Protection register. In a determination made on 30 August 2018 by Senior Member Lucy it was held that:

1. the refusal of permission to travel overseas was made under, Commonwealth legislation, namely, s 271A.1(3)(a) of the Criminal Code, and as such was not reviewable by NCAT;

2. the decision to cancel the plaintiff’s passport was not made by the only respondent to the application, the Commissioner of Police, and therefore could not be reviewed and

3. inclusion of the plaintiff’s name on the Register does not result from any decision, reviewable or otherwise, but from the operation of the Child Protection (Offenders Registration) Act, in respect of which no relief could be granted.

50. On those grounds the Senior Member dismissed the application, correctly as it seems to me. The plaintiff’s application to NCAT was misconceived. I have stated above my conclusion that he has no avenue for review of the inclusion of his name on the Register. Nor is the cancellation of his passport by the Minister for Foreign Affairs, when requested by the Commissioner of Police, amenable to review in any tribunal. It is a step that the Minister is statutorily bound to take upon receipt of the request. However, the decisions of Mr Kerlatec to refuse the plaintiff permission to travel overseas and to request the Minister to cancel his passport are in my opinion reviewable under the ADJR Act. The plaintiff is a person aggrieved by each of those decisions within the meaning of s 5(1) of that Act and may apply to the Federal Court.

51. In the event of the plaintiff commencing proceedings under the ADJR Act he would be entitled to request, pursuant to s 13, that Mr Kerlatec provide reasons. In the absence of reasons it is at present not possible to foresee whether the plaintiff may be able to establish that Mr Kerlatec exercised his decision-making power improperly in any of the respects enumerated in s 5(2) of the ADJR Act, such as taking into account irrelevant considerations, failing to take into account relevant matters or exercising the power in a manifestly unreasonable way.

52. I can only say that on the information before me there is no apparent or intelligible justification for Mr Kerlatec’s refusal of permission for the plaintiff to travel in accordance with his application of 30 April 2018. With respect to the several considerations said to be usually taken into account (see the passage quoted at [47] above) I make these observations:

• “The proposed travel destination”: I am not aware of any basis upon which either India or Sri Lanka could be regarded as a travel destination that would raise any suspicion or concern with respect to a registrable offender, especially as India is his country of origin and is the place of residence of a large number of family members.

• “The reasons for the proposed travel”: The plaintiff gave his reasons as visiting relatives in India and having a holiday in Sri Lanka. He nominated a specific family celebration that he wished to attend on 24 June 2019. There is a body of material before me in these proceedings to substantiate that the plaintiff’s elderly parents reside in India and that numerous other family members are there. This material includes affidavits apparently sworn and filed in matrimonial proceedings in the Federal Circuit Court. 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 Mr Kerlatec would regard as legitimate.

• “The seriousness of your registrable offences”: The plaintiff has committed only one registrable offence. I have expressed the view above that it was of a very low order of seriousness.

• “The seriousness of your overall history”: So far as the Court has been informed on this application the plaintiff has no other criminal history relevant to the subject of overseas travel. I was informed, without dispute from counsel for the present defendants or the solicitor for the DPP, that he has one conviction for breach of an Apprehended Violence Order in connection with an acrimonious phase of his separation from his wife and one conviction for common assault arising out of a conflict with his landlady. These matters could not rationally be regarded as contributing to any degree of “seriousness of [his] overall history”.

• “Your compliance with reporting obligations under the Child Protection (Offenders Registration) Act”: I have not been made aware of any default with respect to reporting obligations. In order to have any rational bearing upon a grant of permission for a visit to family overseas, past reporting defaults would have to be serious and persistent and have some connection to perceived risk factors with respect to the plaintiff being out of the country.

• “Any other relevant information the NSW Police Force have in relation to you”: The Commissioner has not referred in these proceedings to any “other relevant information” that could have a bearing upon the plaintiff’s proposed visit to his family in India.

53. If the plaintiff proceeds in the Federal Court under the ADJR Act it would appear, that he has at least reasonable prospects of obtaining relief under s 16 of that Act. Such relief may take the form of an order quashing Mr Kerlatec’s refusal of permission to travel and a consequential order quashing his decision to request the Minister for Foreign Affairs to cancel the plaintiff’s passport. At the least the plaintiff may be able to obtain under s 13 reasons for the decision made against him. If intelligible reasons are capable of being articulated then that, at least, would be a significant benefit to the plaintiff. As matters appear at present he has been denied what seems on the face of it a reasonable request for permission to travel for a legitimate purpose in circumstances where, if there is justification for this refusal, it certainly is not self-evident and the plaintiff has not been informed of it.

54. With respect to the matters of permission to travel and obtaining a passport, although an application to the Federal Court appears to be open as a matter of jurisdiction and to have significant prospects of success, the plaintiff’s claims in his proposed further amended summons for relief in relation to these matters are not maintainable in this Court. He cannot be permitted to file the further amended summons seeking that relief.

The current amended summons

55. All of the claims for relief and grounds that the plaintiff wishes to pursue in the further amended summons have now been considered and, for the reasons given above, none of them are supportable. Leave to file the further amended summons will be refused. The current amended summons, filed 24 September 2019, also seeks to advance an appeal from the conviction and sentence on the indecent assault charge, together with claims for removal of the plaintiff’s name from the Child Protection Register, permission to travel overseas and issuance of an Australian passport. All of this relief is sought only against defendants named as “NSW Police Force” and the “Office of the Children’s Guardian”. The reasons already given in relation to the proposed further amended summons sufficiently explain why none of these claims for relief in the current summons can proceed, with the additional consideration that the named defendants are not appropriate parties having regard to the issues intended to be raised. The amended summons filed 24 September 2018 must be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

Conclusion and orders

56. The timing of the plaintiff’s commencement of these proceedings and the contents of his affidavits show that he has felt driven to challenge his original conviction and have his name removed from the Register by the Commissioner’s refusal of travel permission and the Minister’s cancellation of his passport. Faced with the Commissioner’s unreasoned refusal the plaintiff has perceived that he cannot obtain fair consideration of a legitimate family visit and that he must try to remove the Commissioner’s power of decision over him. The affidavits show that he is also distressed about not being permitted to see his children and about an ongoing access dispute in the Federal Circuit Court. He is depressed about being unable to resume a useful working life. He tends to attribute all his difficulties to the conviction and registration whereas other factors may have contributed to his present dysfunction.

57. The plaintiff’s perceived solution of overturning his conviction is not available because the appeal is long out of time and evidently lacks arguable merit. An alternative avenue is open, by application to the Federal Court under the ADJR Act, through which the plaintiff may at least be able to redress the frustration concerning overseas travel that has been the catalyst of his proceedings in this Court.

58. For the above reasons orders will be made to the following effect:

1. Pursuant to s7 of the Court Suppression and Non-publication Orders Act 2010 publication is prohibited of the name of the plaintiff in these proceedings and of any information that might tend to reveal his identity as the plaintiff.

2. The plaintiff’s notice of motion filed 7 December 2018, in its amended form as relied upon by the plaintiff at the hearing on 24 April 2019, is dismissed.

3. The plaintiff’s amended summons filed 24 September 2018 is dismissed.

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Decision last updated: 10 May 2019