Stanley and Minister for Foreign Affairs
[2018] AATA 982
•20 April 2018
Stanley and Minister for Foreign Affairs [2018] AATA 982 (20 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5445
Re:Peter Stanley
APPLICANT
AndMinister for Foreign Affairs
RESPONDENT
DECISION
Tribunal: Senior Member Dr M Evans
Date:20 April 2018
Place:Perth
The Tribunal dismisses the Applicant's application for review of two decisions of the Respondent dated 8 September 2017 under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Senior Member Dr M Evans
CATCHWORDS
PRACTICE AND PROCEDURE − application for dismissal of application for review – whether Tribunal satisfied that application is frivolous, vexatious – whether no legitimate purpose can be achieved by continuing application – whether outcome of proceedings would be futile and/or have no practical effect – application for review dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A, s 25(1), s 37, s 42B(1)(a), s 42B(1)(c), s 42B(2)
Australian Passports Act 2005 (Cth) – superseded - s 22(2)(d), s 48(c), s 50(1)
Australian Passports Act 2005 (Cth) – commencement date 13 December 2017- s 12(1A), s 12(2), s 12(3), s 13(2), s 14(1), s 14(2), s 22AA, s 22(2)(d), s 48(c)
Criminal Code Act 1995 (Cth), s 271A.1
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) – superseded - s 5, s 16, s 23(1)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) – commencement date 13 December 2017 - s 13(1A), s 13(2), s 15(1), s 16(1A), s 23(1)
Passport Legislation Amendments (Overseas Travel by Child Sex Offenders) Act 2017 (Cth)
Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Commencement Proclamation 2017
CASES
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
McCarthy and Building Practitioners Board [2016] AATA 1029
Mills and Secretary, Department of Employment [2016] AATA 121
Re Currey and Others and Australian Community Pharmacy Authority (2007) 99 ALD 106
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Transurban City Link Ltd v Allan (1999) 95 FCR 553
Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
Senior Member Dr M Evans
20 April 2018
BACKGROUND TO THE APPLICATION
Since October 2006, the Applicant has been registered as a high risk offender under the National Child Offender System (NCOS), and is subject to reporting conditions for life. He is a dual citizen of Australia and New Zealand (Exhibit R2).
On 11 September 2017 the Applicant lodged with the Administrative Appeals Tribunal (AAT) an application for review of two decisions of the Respondent, both dated 8 September 2017 (the Decisions). Specifically, the Decisions were a decision of the Respondent made under:
(a)s 22(2)(d) of the Australian Passports Act 2005 (Australian Passports Act) to cancel the Applicant’s Australian passport (number PA3625828) (Exhibit R1, T2, page 10); and
(b)s 16 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) that the Respondent’s foreign passport be surrendered (Exhibit R1, T2, page 12).
In his application (contained in Exhibit R1, T1, page 7), in response to the question, “why do you claim the decision is wrong?” the Applicant stated:
The decision to seize my passports is wrong because, It [sic] has not been taken into account that I am a reformed offender, having completed a program to address previous offending and now categorised as a low risk, and that only last month I travelled overseas without incident, and the United Nations Declaration of Human Rights says I have the right to marriage and family and this is being denied me because I can not [sic] visit my partner or my family overseas.
At the interlocutory hearing the Applicant stated that he had lodged an application for review of the Decisions because he had been travelling overseas since 2006 without incident. He expressed concerns about “due process” with respect to the Decisions. When asked by the Tribunal as to what he meant by this, he stated that he was not sure if the Minister knew that he had recently travelled overseas without incident before making the Decisions.
On 5 February 2018, the Respondent applied to the Tribunal for an order under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to dismiss the Applicant’s application for review of the Decisions on the basis that his application to the Tribunal is futile (Exhibit R2, at [1]). The Respondent seeks the dismissal under ss 42B(1)(a) or (c) of the AAT Act.
On 20 March 2018, the Western Australian Child Protection Registry made a request to the Respondent to refuse or cancel an Australian passport, and for the surrender of foreign travel documents with respect of the Applicant’s Australian and New Zealand passports (Exhibit R3, Attachment A).
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review of the Decisions under s 42B(1)(a) or (c) of the AAT Act.
MATERIAL BEFORE THE TRIBUNAL
An interlocutory hearing was held at the Tribunal on 22 March 2018. The Applicant appeared in person and was self-represented. The Respondent was represented by Clayton Utz by telephone. Both parties made verbal submissions to the Tribunal at the interlocutory hearing, and the Tribunal is satisfied that the parties had adequate opportunity to be heard by the Tribunal.
The following material was before the Tribunal:
(a)The Respondent’s s 37 documents (Exhibit R1);
(b)The “Respondent’s Submissions seeking dismissal under s 42B” dated 5 February 2018 (Exhibit R2);
(c)The “Respondent’s Further Submissions seeking dismissal under s 42B” dated 21 March 2018 (Exhibit R3);
(d)The “Applicant’s submission on non-dismissal under section 42B” dated 14 February 2018 (Exhibit A1).
The Tribunal has reviewed and considered all of the material before it, including the submissions, both verbal and written, of the parties.
JURISDICTION
The jurisdiction of the Administrative Appeals Tribunal (the Tribunal) is established by s 25(1) AAT Act, which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
At the date of the Decisions, being 8 September 2017, the Decisions were reviewable by the AAT. Specifically the decision made under:
(a)s 22(2)(d) of the Australian Passports Act to cancel the Applicant’s Australian travel document (passport) was a “reviewable decision” under s 48(c). Section 50(1) of the Australian Passports Act provided that an application could be made to the AAT for review of a reviewable decision; and
(b)s 16 of the Foreign Passports Act that the Respondent’s foreign travel document be surrendered was reviewable under s 23(1) of the Foreign Passports Act. Section 23(1) provided that an application could be made to the AAT for review of a decision by the Minister made under s 16 of the Foreign Passports Act to order the surrender of a person’s foreign travel documents. A “foreign travel document” includes a foreign passport (s 5 of the Foreign Passports Act).
On 26 June 2017, the Passport Legislation Amendments (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) (Amendment Act) received royal assent. The Amendment Act made amendments to the Australian Passports Act, Foreign Passports Act and the Criminal Code Act 1995 (Cth) (Criminal Code). These amendments relevantly commenced on 13 December 2017 (Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Commencement Proclamation 2017).
The Decisions remain reviewable by the AAT because they relate to decisions of the Respondent, made following a request by a competent authority, before the commencement of the Amendment Act on 13 December 2017. If the request and Decisions under the Australian Passports Act and Foreign Passports Act were made on or after 13 December 2017, they would not be reviewable by the AAT. This is discussed in more detail below because it is relevant to the s 42B(1) dismissal application - specifically whether the application, whilst valid at the time of lodgement with the AAT, subsequently became futile (and therefore frivolous and/or vexatious).
APPLICABLE LEGISLATION AND LEGAL PRINCIPLES
Section 42B dismissal
Section 42B(1) of the AAT Act provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Section 42B(2) further provides:
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
As noted by Deputy President Kendall in Mills and Secretary, Department of Employment [2016] AATA 121 (Mills) at [16], s 42B of the AAT Act was amended, with effect from 1 July 2015, by the Tribunals Amalgamation Act 2015 (Cth). Prior to these amendments, s 42B(1) read as follows:
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a
party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction…
In Mills, Deputy President Kendall explained at [17]:
The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 states that the amendments were intended to modernise the language of section 42B and clarify the policy surrounding the grounds for dismissal. The proposed new grounds were considered to be similar to dismissal powers available to other bodies, and “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”
The scope of the power under s 42B(1)(a) to (c) was discussed by Deputy President Forgie in McCarthy and Building Practitioners Board [2016] AATA 1029 (McCarthy). Deputy President Forgie stated at [14] that:
The power given to the Tribunal is not dependent upon a party’s having made an application or request to it. It may exercise the power at any stage of the proceeding if it is satisfied that the application meets one of the descriptions set out in s 42B(1)(a) to (c). That means that the Tribunal must engage in a two-step process. Is it satisfied that it meets one or more of those descriptions? If so, should it exercise the power? The second question must be asked because the power is expressed in discretionary terms. The Tribunal “may” dismiss the application and there is nothing in the context of s 42B or in the AAT Act generally that dispels the use of that word to signify a discretion.
In McCarthy, Deputy President Forgie applied this “two-step process” as follows. Deputy President Forgie first found that the application was an “abuse of process” under s 42B(1)(c) of the AAT Act, and then considered whether the Tribunal should exercise its discretion to dismiss the application. In doing so, Deputy President Forgie had regard to the objectives of the Tribunal, as stated in s 2A of the AAT Act. Section 2A provides that:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision‑making of the Tribunal.
In Rundle and Civil Aviation Safety Authority [2002] AATA 349, the Tribunal dismissed an application in accordance s 42B(1) on the basis “that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant” (at [22]).
Similarly, in Re Currey and Others and Australian Community Pharmacy Authority (2007) 99 ALD 106, Deputy President Hack dismissed an application under s 42B(1) on the ground that it was frivolous because the Tribunal was unable to make a decision that would have any practical benefit to the applicants.
In a joint judgment in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 (Fearnley), Finn and Sundberg JJ discussed Williams and Australian Electoral Commission (1995) 38 ALD 366 (Williams) and Transurban City Link Ltd v Allan (1999) 95 FCR 553 (Transurban) regarding dismissal under s 42B of the AAT Act on the basis that the application had become frivolous or vexatious. Fearnley, Williams and Transurban each concerned the standing of an Applicant to seek judicial review where an applicant had an interest affected by a decision at the time of lodging their application, which had subsequently ceased.
In Fearnley, Finn and Sundberg JJ (at [16]) cited the following passage from Williams at [39]:
In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect …. The interest which gave the applicant standing to commence the proceedings has long ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious.
Fearnley, Williams and Transurban illustrate that it is possible for an application that was not frivolous or vexatious at the time it was lodged with the Tribunal, to become frivolous or vexatious sometime after it was lodged due to a change or cessation of interests.
Refusal/cancellation of an Australian travel document (passport)
The Amendment Act inserted a new s 12(1A) into the Australian Passports Act as follows:
(1A)A competent authority may make a refusal/cancellation request in relation to the person if the person is:
(a) an Australian citizen; and
(b) a reportable offender.
Section 12(2) further provides:
(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.
Section 12(3) contains relevant definitions as follows:
(3) In this section:
competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b) or (1A)(b), means:
(a)a person who has responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or
(b)a person specified in a Minister’s determination as a competent authority in relation to the circumstance.
prevented from travelling internationally includes:
(a)required to remain in Australia; and
(b)required to surrender an Australian travel document; and
(c)not permitted to apply for an Australian travel document; and
(d)not permitted to obtain an Australian travel document.
reportable offender means a person:
(a)whose name is entered on a child protection offender register (however described) of a State or Territory; and
(b)who has reporting obligations (however described) in connection with that entry on the register.
Section 14(1) and (2) of the Australian Passports Act provides that:
(1) If a competent authority suspects on reasonable grounds that:
(a)if an Australian travel document were issued to a person, the person would be likely to engage in conduct that:
i.might prejudice the security of Australia or a foreign country; or
ii.might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
iii.might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
iv.might constitute an indictable offence against this Act; or
v.might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and
(b)the person should be refused an Australian travel document in order to prevent the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.
(2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian travel document.
Section 22AA(1) of the Australian Passports Act provides that:
(1) The Minister must cancel an Australian passport that has been issued to a person if a competent authority makes a refusal/cancellation request in relation to the person under subsection 12(1A).
Section 48(c) of the Australian Passports Act provides that:
For the purposes of this Division, the following decisions under this Act are reviewable decisions:…
(c)a decision to cancel an Australian travel document (other than under section 22AA);…
The effect of s 48(c) is that the cancellation of an Australian passport by the Minister (following a request from a competent authority made after the commencement of the Amendment Act) is no longer reviewable by the AAT.
Surrender of the Applicant’s foreign passport
The Amendment Act also inserted a new s 13(1A) into the Foreign Passports Act as follows:
(1A) A competent authority may request the Minister to make an order under section 16 in relation to the person’s foreign travel documents if the person is:
(a)an Australian citizen; and
(b) a reportable offender.
Section 13(2) of the Foreign Passports Act contains the following relevant definitions:
(2) In this section:
competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b) or (1A)(b), means:
(a)a person who has responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or
(b)a person specified in a Minister’s determination as a competent authority in relation to the circumstance.
prevented from travelling internationally includes:
(a)required to remain in Australia; and
(b)required to surrender a passport or document issued for the purposes of travel; and
(c)not permitted to apply for a passport or document issued for the purposes of travel; and
(d)not permitted to obtain a passport or document issued for the purposes of travel.
reportable offender means a person:
(a)whose name is entered on a child protection offender register (however described) of a State or Territory; and
(b)who has reporting obligations (however described) in connection with that entry on the register.
Section 15(1) of the Foreign Passports Act provides:
(1) If a competent authority suspects on reasonable grounds that:
(a)unless a person’s foreign travel documents are surrendered, the person would be likely to engage in conduct that:
i.might prejudice the security of Australia or a foreign country; or
ii.might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
iii.might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
iv.might constitute an indictable offence against this Act; or
v.might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and
(b)the person should be required to surrender the person’s foreign travel documents in order to prevent the person from engaging in the conduct;
the competent authority may request the Minister to make an order under section 16 in relation to the person’s foreign travel documents.
Section 16(1A) of the Foreign Passports Act provides that:
(1A)If a competent authority makes a request under subsection 13(1A) in relation to a person, the Minister must order the surrender of the person’s foreign travel documents.
Section 23(1) provides:
(1) Application may be made to the Administrative Appeals Tribunal for review of a decision by the Minister under section 16 (other than subsection 16(1A)) to order the surrender of a person’s foreign travel documents.
The effect of s 23(1) is that a decision by the Minister that a foreign passport should be surrendered (following a request from a competent authority made after the commencement of the Amendment Act) is no longer reviewable by the AAT.
Restrictions on overseas travel under the Criminal Code
The Amendment Act also inserted a new s 271A.1 into the Criminal Code as follows:
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).
(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.
The effect of this provision is that it is an offence for an Australian citizen who is on a child protection offender register and who has reporting obligations to leave Australia without permission from a competent authority. This is regardless of whether the person holds a valid Australian or Foreign passport.
CONSIDERATION
The Applicant is a “reportable offender” as defined by s 12(3) of the Australian Passports Act and s 13(2) of the Foreign Passports Act.
As noted above, on 20 March 2018, the Western Australian Child Protection Registry, being a competent authority, made a request to the Respondent to refuse or cancel an Australian passport, and for the surrender of foreign travel documents with respect to the Applicant’s Australian and New Zealand passports (Exhibit R3).
Even if the Applicant was successful at a substantive hearing of his application, following this request from the Western Australian Child Protection Registry, the Minister must refuse to re-issue the Applicant with an Australian passport (s 12(2) Australian Passports Act), and must order the surrender of the Applicant’s foreign travel documents (s 16(1A) Foreign Passports Act). This would have the practical effect that the Applicant’s already surrendered New Zealand passport would not be returned to him. Further, the AAT would not have jurisdiction to review either decision (s 48(c) Australian Passports Act and s 23(1) Foreign Passports Act).
Also, if the Applicant were to leave Australia without the permission of a competent authority, he would commit an offence under s 271A.1(1) to (3) of the Criminal Code.
The Tribunal concludes that the application is frivolous because, even if the Tribunal were to make a decision favourable to the Applicant at a substantive hearing of the application, it would be of no practical benefit to the Applicant. He would not be able to obtain an Australian or New Zealand passport, nor would he be able to travel without the permission of a competent authority without committing a criminal offence.
The Tribunal also notes that, applying Fearnley, Williams and Transurban, although the Application for review by the Applicant was not frivolous or vexatious at the time it was lodged with the Tribunal, it became frivolous or vexatious due to the enactment of the Amendment Act and the subsequent request from the competent authority in March 2018. This had the effect of rendering any future decision by the Tribunal in the Applicant’s favour at a hearing of the substantive matter futile and of no practical benefit to him.
The Tribunal has taken into account the objectives of the Tribunal under s 2A of the AAT Act, including those relating to economy and proportionality, and agrees with the Respondent’s submission that it would be an inappropriate use of the time and resources of the Tribunal to proceed to a substantive hearing of the Applicant’s application when a decision in his favour would be futile and of no practical benefit to him.
DECISION
For the reasons set out above, the Tribunal considers it appropriate to exercise its discretion to dismiss the Applicant's application for review of the two decisions of the Respondent dated 8 September 2017 under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
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Associate
Dated: 20 April 2018
Date of hearing: 28 February 2018 Applicant: In person Solicitors for the Respondent: Eleanor Cannon, Clayton Utz
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