Lang and Minister for Foreign Affairs - [2011] AATA 279

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3192

GENERAL ADMINISTRATIVE DIVISION )

Re KENNETH LANG

Applicant

And

MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date29 April 2011
PlaceBrisbane (Heard in Darwin & Brisbane)

Decision The decision under review is set aside and a decision substituted that the applicant not be refused a passport.
.....................[Sgd].........................

Deputy President

Mr Kenneth Lang is an Australian citizen. On 2 June 2009 the Minister for Foreign Affairs made a decision, under s 14(2) of the Australian Passports Act 2005 (Cth), to refuse to issue Mr Lang an Australian passport.
In these proceedings Mr Lang seeks a review of that decision.
Background
I propose to first set out some uncontroversial background. Mr Lang is now aged 72. In July 1992 he pleaded guilty in the County Court at Melbourne to three offences described as sexual penetration of a female child aged between 10 years and 16 years. He was sentenced to imprisonment for an aggregate term of 2½ years. The sentence was reduced on appeal to one of 18 months, of which 12 months were suspended. The offences were committed in October 1991 when Mr Lang was aged 53. The victim was the ten year old daughter of Mr Lang’s de facto spouse. There is controversy, dealt with below, about the facts constituting the offences.
In November 2006 Mr Lang was living in Port Douglas aboard his yacht the MV Screemer. He was single. He says that he read, and responded to, an advertisement in a local newspaper seeking sexual partners and met a woman (who I will call Shannon) and her boyfriend “Mick” in a hotel in Cairns. There was discussion about sexual experimentation and, according to Mr Lang, Shannon told him that her sexual fantasy was to have sex with a 15 year old boy. Mr Lang returned to Port Douglas.
Some days later Shannon contacted Mr Lang to tell him that she had split up with Mick. Mr Lang was about to go to Thailand where he planned to take part, as a crew member, in yacht racing, including the King’s Cup Regatta in Phuket. Within a day or two of his arrival there Shannon again contacted him and said, according to Mr Lang, something along the lines of “I guess you’re knee deep in young stuff up there”. Mr Lang says that he regarded this as a continuation of Shannon’s earlier conversation about her sexual fantasy. Discussions between Mr Lang and Shannon of explicit sexual matters continued by way of text messages exchanged between their mobile telephones. Over the next few days from 6 December 2006 to 13 December 2006 Mr Lang sent at least five text messages. It is unnecessary to set out their content; it will suffice to say that they contain explicit and lurid descriptions of Mr Lang having engaged in sexual relations with both male and female children.
One…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] AATA 279
Decision Date: 29 April 2011

CaseChat Overview and Summary

Mr Lang sought judicial review of a decision by the Minister for Foreign Affairs to refuse him a passport on the ground that he was likely to engage in conduct that might endanger the health or physical safety of other persons. The central issue before the court was whether the Minister's decision was lawful, particularly whether the decision was based on reasonable grounds to suspect that Mr Lang would engage in further sexual offences against children if granted a passport. The court considered the legality of the Australian Federal Police's (AFP) undercover operation, Operation PONTIA, which was used to gather evidence of Mr Lang's potential future offending. Mr Lang argued that the evidence obtained during the operation should be excluded on various grounds, including that it was obtained illegally and was not authorised for the purpose of assessing his risk of future offending.

The court found that the AFP's operation was lawful and properly authorised for the purpose of investigating potential criminal activity. The court rejected Mr Lang's arguments that the evidence should be excluded due to alleged illegality or unauthorised use. The court held that the evidence was relevant and admissible in assessing the risk posed by Mr Lang. The court concluded that the Minister's decision was based on reasonable grounds and was thus lawful. However, the court set aside the Minister's decision and substituted a decision that Mr Lang should not be refused a passport.

Orders

Orders of the court

The decision under review is set aside and a decision substituted that the applicant not be refused a passport.

Background

Background to the litigation

In these proceedings Mr Lang seeks a review of that decision.Background I propose to first set out some uncontroversial background. Mr Lang is now aged 72. In July 1992 he pleaded guilty in the County Court at Melbourne to three offences described as sexual penetration of a female child aged between 10 years and 16 years. He was sentenced to imprisonment for an aggregate term of 2½ years. The sentence was reduced on appeal to one of 18 months, of which 12 months were suspended. The offences were committed in October 1991 when Mr Lang was aged 53. The victim was the ten year old daughter of Mr Lang’s de facto spouse. There is controversy, dealt with below, about the facts constituting the offences. In November 2006 Mr Lang was living in Port Douglas aboard his yacht the MV Screemer. He was single. He says that he read, and responded to, an advertisement in a local newspaper seeking sexual partners and met a woman (who I will call Shannon) and her boyfriend “Mick” in a hotel in Cairns. There was discussion about sexual experimentation and, according to Mr Lang, Shannon told him that her sexual fantasy was to have sex with a 15 year old boy. Mr Lang returned to Port Douglas. Some days later Shannon contacted Mr Lang to tell him that she had split up with Mick. Mr Lang was about to go to Thailand where he planned to take part, as a crew member, in yacht racing, including the King’s Cup Regatta in Phuket. Within a day or two of his arrival there Shannon again contacted him and said, according to Mr Lang, something along the lines of “I guess you’re knee deep in young stuff up there”. Mr Lang says that he regarded this as a continuation of Shannon’s earlier conversation about her sexual fantasy. Discussions between Mr Lang and Shannon of explicit sexual matters continued by way of text messages exchanged between their mobile telephones. Over the next few days from 6 December 2006 to 13 December 2006 Mr Lang sent at least five text messages. It is unnecessary to set out their content; it will suffice to say that they contain explicit and lurid descriptions of Mr Lang having engaged in sexual relations with both male and female children. One of the contested issues in the case is whether, as some members of the Australian Federal Police (the AFP) believe, the events described in the text messages took place or whether, as Mr Lang says, these messages were simply fantasies concocted by him for the sexual gratification of Shannon and in response to her messages to him. In any event it would seem that Shannon reported the text messages to the Queensland Police who, in turn, made contact with officers of the AFP. An operation, code-named “PONTIA” was set up to investigate the matter and, in particular, to ascertain whether, as appeared from the text messages, Mr Lang had engaged in the acts described. Initially, Federal Agent Donna Hofmeier who was, at that time, a team leader in the AFP’s Transnational Sexual Exploitation & Trafficking Team based in Canberra, was put in charge of Operation PONTIA.

Evidence

Evidence Before The Court

Ultimately, I am required to consider, by reference to the facts as found, whether reasonable grounds exist to suspect that Mr Lang, if issued with a passport, would be likely to engage in conduct that might endanger the health or physical safety of other persons whether in Australia or a foreign country. In reality, the case for the Minister is that reasonable grounds exist to suspect that Mr Lang would be likely to engage in sexual offences against children were an Australian passport to be issued to him.The undercover evidence It must be said that it is not easy to discern the basis on which Mr Lang contends that the undercover evidence should be excluded. The case advanced[5] appears to be that the evidence ought be excluded because,“…the activities of the AFP in is [sic] execution of operation PONTIA was illegal”.A variety of reasons why that is so are put forward. First, it is said that the evidence in question was obtained in contravention of the Human Rights (Sexual Conduct) Act 1994 (Cth). Then it is contended[6] that “it was unauthorised for the purposes to which they are being applied.” Next there appears to be an appeal to an inherent discretion to reject evidence on the basis of unlawfulness and, finally, delay in disclosing the material to Mr Lang is said to warrant its rejection.[5] Applicant’s written submissions, paragraph 3.4.3.[6] Ibid, paragraph 3.4.5. The first point may be quickly disposed of. The operative part of the Human Rights (Sexual Conduct) Act is s 4. It provides:“(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.” It is contended[7] that the AFP, in setting up the undercover operation, “sought to take advantage of the fact that Mr Lang was bisexual and known to enjoy fantasizing.” Leaving aside the fact that this proposition was not put to either Ms Hofmeier or Mr Matejic, the two AFP officers concerned with the operation, on the material before me, the only evidence of Mr Lang’s preferences known to members of the AFP came from the text messages sent by Mr Lang in December 2006. Those messages suggested that Mr Lang may have committed offences against the statute law of the Commonwealth, namely the offences in Div 272 of the Criminal Code (Cth). Such matters are the proper concern of the AFP. An investigation established for that purpose cannot be categorised as Mr Lang suggests.[7] Ibid, paragraph 3.4.4.1. Under the same general heading comparison is made in Mr Lang’s submissions between the conduct of the undercover officer and “gay bashing”. The comparison is unattractive (and put unattractively) and unwarranted. I do not accept that it is an accurate comparison. The next argument concerns the “unauthorised use of the undercover material” in these proceedings. The argument, as I understand it, is put this way. As a matter of policy, rather than legal obligation, the AFP requires a senior officer to approve an undercover operation such as was undertaken here. This undercover operation was authorised to investigate whether Mr Lang was part of a ring of persons engaging in criminal sexual activity overseas. The undercover operation was not authorised for the purpose of determining Mr Lang’s risk of future offending. Hence, it is said, the undercover material cannot be used for a purpose not authorised.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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