Zaharis v The Commissioner of Police - [2018] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
ZAHARIS v THE COMMISSIONER OF POLICE
[2018] SASC 143
Judgment of The Honourable Justice Doyle
13 September 2018
CRIMINAL LAW - PROCEDURE - JURISDICTION
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - GENERALLY
The plaintiff wishes to travel to Greece for period of about five weeks for reasons that include attending his stepdaughter’s wedding. However, as his name is on the child sex offender register it would be a criminal offence for him to do so without permission from a competent authority.
The plaintiff applied to the defendant for permission to undertake this travel. Permission to travel at all was first declined, although the plaintiff was subsequently given permission to travel to Greece for a 48 hour period including the date of the wedding.
In these proceedings, the plaintiff’s primary claim is that this Court is a competent authority for the purposes of s 271A.1 of the Criminal Code, and hence can and should grant the permission sought. In the alternative, the plaintiff seeks judicial review of the defendant’s decision declining him the permission to travel that he sought.
Held, per Doyle J, dismissing the plaintiff’s claim:
1. This Court is not a competent authority for the purposes of s 271A.1 of the Criminal Code, and hence cannot grant the permission sought.
2. The decision of the defendant was a decision made under a Commonwealth enactment, and hence the jurisdiction of this Court to entertain the plaintiff’s claim for judicial review is prima facie ousted by s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
3. However, by reason of the matter being a special federal matter under the Jurisdiction (Cross-Vesting) Act 1987 (Cth), this Court may nevertheless determine the claim if there are special reasons for doing so.
4. It is not appropriate to reach a final decision in relation to the existence of special reasons without having afforded the State and Commonwealth Attorneys-General a reasonable opportunity to make submissions on that issue.
5. Nevertheless, having heard full argument on the grounds for judicial review, and having reached the view that none has been made out, and hence that the proceedings would fail in any event, there would be no utility in adjourning the proceedings for further consideration of the issue of whether special reasons exist.
Child Sex Offenders Registration Act 2006 (SA) ss 6, 9, 10, 17, 38, 60; Criminal Code (Cth) s 271A.1; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9; Jurisdiction (Cross-Vesting) Act 1987 (Cth) s 6; Australian Passports Act 2005 (Cth) s 12; Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 13, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; Mentink v Commissioner for Queensland Police [2018] QSC 151; Griffith University v Tang (2005) 221 CLR 99; Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; Hopkins v Governor-General of Australia (2013) 280 FLR 49; P1 v Australian Crime Commission [2012] SASC 229; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, considered.

ZAHARIS v THE COMMISSIONER OF POLICE
[2018] SASC 143
Civil

DOYLE J: The plaintiff wishes to attend the wedding of his stepdaughter in Athens on 23 September 2018. He also wishes to attend the christening of his stepdaughter’s child, which is to occur on the same day. He is booked to fly to Athens with his wife, departing from Adelaide tomorrow (14 September 2018). He plans to stay in Greece for a period of about five weeks until his return on 21 October 2018.
The difficulty is that as a result of his criminal offending, his name is on the child sex offender register (the Register) maintained under the Child Sex Offenders Registration Act 2006 (SA) (the CSO Registration Act). It follows that unless he obtains permission from a competent authority to do so, he will commit an offence under s 271A.1 of the Criminal Code (Cth) if he leaves Australia.
The plaintiff applied for permission to the Commissioner of Police (the Commissioner). A delegate of the Commissioner, Detective Senior Sergeant Dayman, declined the application. There was then a second determination by Mr Dayman to the same effect. Finally, on 12 September 2018, Mr Dayman made a third determination, this time giving the plaintiff permission to travel directly to Athens, and to remain there for a period of up to 48 hours including 23 September 2018. But the permission requires him to then return directly to Adelaide. The plaintiff has thus been denied permission to undertake the five week trip to Greece that he had planned.
In these proceedings, the plaintiff’s primary claim is that this Court is a competent authority for the purposes s 271A.1 of the Criminal Code, and hence that it can and should grant the plaintiff the permission to travel that he seeks. In the alternative, the plaintiff seeks judicial review of the Commissioner’s determination of 12 September 2018 declining him the permission to travel that he sought.
As to this Court’s power to entertain judicial review of this determination, the plaintiff contends that the determination was not a decision “under” the Criminal Code, with the result that this Court’s jurisdiction is not ousted by s 9(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Alternatively, the plaintiff contends that even if the determination was a decision “under” the Criminal Code, with the result that this Court’s jurisdiction is ousted by the ADJR Act, nevertheless this Court has jurisdiction by reason of the Jurisdiction (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act).
These proceedings were issued on 3 September 2018, and were put on a very short timetable to ensure that all of the matters in issue could be argued on 12 September 2018. In order for the proceedings to have the desired utility, it was then necessary that they be determined by the following day. In the circumstances it has not been possible to consider some matters in as much detail as I would have liked. Nevertheless, for the reasons which follow, I have decided that it is not appropriate to order the relief sought by the plaintiff.
Background
The plaintiff is a 53 year old man. He is a dual citizen of Greece and Australia. He has been married to his wife for about two years, but they have known each other for close to 30 years.
The plaintiff’s wife has a daughter from a previous partner. His stepdaughter’s father passed away about 15 years ago. The plaintiff has known his stepdaughter since she was born and regards himself as a father figure to her. She is to be married on 23 September 2018 in Athens, and the plaintiff has been asked to walk her down the aisle. His stepdaughter’s child will also have her christening on that day.
The plaintiff has a number of family members who live in Greece or will otherwise be attending the wedding and christening. He wishes to attend those family celebrations. He also wishes to spend some additional time in Greece visiting various family members and travelling to various locations around Greece of significance to him or his family.
However, as mentioned, the difficulty with the plaintiff’s travel plans is that his name is on the Register maintained under the CSO Registration Act. This occurred as a result of the plaintiff being convicted and sentenced in 2009 for some offences committed by him in 2007; namely, inciting an indecent act by a child, four counts of unlawful sexual intercourse, possessing a controlled substance for sale, and threatening a person in judicial proceedings to influence the outcome. The victim of the unlawful sexual intercourse offending was a 14 year old girl, and the offending occurred at a time when the plaintiff was 43 years of age. For this 2007 offending, the plaintiff was sentenced to four years imprisonment, with a non-parole period of two years and six months. The sentence was backdated to commence from 20 September 2007.
The plaintiff had earlier been convicted of some other sex offences. These convictions were recorded in 1991, and related to conduct that occurred in 1989. The offending included multiple counts of unlawful sexual intercourse, and aiding and abetting unlawful sexual intercourse. I am informed that the victims of this offending were aged between about 14 and 16 years of age. The plaintiff’s antecedents also include several other offences involving driving, firearms and drug matters.
As a result of his 2007 offending, the plaintiff’s name was entered on the Register. Since his release from custody in 2011 he has been subject to reporting obligations to the Commissioner. In practical terms this has involved him reporting to the South Australian Police (SAPOL) branch of the Australian National Child Sex Offender Registry (ANCOR). The plaintiff was reported and fined for one breach of his reporting obligations, which related to the failure to report the purchase of a vehicle. He has otherwise complied with his reporting obligations.
The operation of the Register
The operation of the Register in South Australia is governed by the CSO Registration Act. Under s 60 of the CSO Registration Act, the Commissioner is required to establish and maintain the Register. That section goes on to specify the information to be contained within the Register.
Under s 6 of the CSO Registration Act, a person who has been sentenced to a class 1 or class 2 offence, or who is subject to a child sex offender registration order is a “registrable offender”.
For reasons which will become apparent later in these reasons, it is relevant to note that under s 9 of the CSO Registration Act, a court may make an order that a person comply with the reporting obligations under that Act when sentencing a person for offending that is not a class 1 or class 2 offence, or when making a restraining order. Further, under s 10, an appeal lies against the making of such an order to a single judge of the Supreme Court in the case of an order made in the Magistrates Court, or in any other case in the same way as an appeal against a sentence imposed by that court.
In the case of the plaintiff, I understand that by reason of the nature and timing of the plaintiff’s 2007 offending, which involved class 2 offences, he is subject to the reporting conditions under the CSO Registration Act for the rest of his life. However, after 15 years from his release (that is, in 2026) the plaintiff will become eligible to apply to the Supreme Court for an order under s 38 of the CSO Registration Act “suspending” his reporting obligations.
Travel by the plaintiff while the subject of reporting obligations
Under s 17 of the CSO Registration Act, if a registrable offender intends to leave South Australia to travel interstate for a period of seven days or more, or to travel outside of Australia, then they must report (and provide details of) the intended travel to the Commissioner at least seven days before leaving South Australia.
However, prior to the 2017 amendments to the Criminal Code mentioned below, there was no obligation to do more than report intended travel to the Commissioner. There was no provision or requirement in the CSO Registration Act for the registrable offender to seek, or for the Commissioner (or anyone else) to give or decline, permission to travel.
During 2012 and 2013, and while he was subject to reporting obligations under the CSO Registration Act, the plaintiff undertook various overseas trips. This included travel to Greece to visit family, and to Hong Kong, China and Indonesia. Consistently with his obligations under the CSO Registration Act, the plaintiff informed the Commissioner of his travel plans but was not required to, and did not, seek or obtain permission to travel.
The 2017 amendments to the Criminal Code
In 2017 the Commonwealth Parliament passed the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) (the Amending Act). The Amending Act commenced operation on 13 December 2017. One of the amendments effected by the Amending Act was the insertion into the Criminal Code of s 271A.1:
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).
It is agreed that the effect of this section would be to render it an offence for the plaintiff to travel to Athens as he had planned unless “a competent authority … has given permission” for that travel.
As for who is a “competent authority”, s 271A picks up the meaning of those words in s 12 of the Australian Passports Act 2005 (Cth) or s 13 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth).
Section 12 of the Australian Passports Act relevantly provides:
12    Reasons relating to Australian law enforcement matters
(1)     If a competent authority believes on reasonable grounds that:
(a)     a person is the subject of an arrest warrant issued in Australia in respect of an indictable offence against a law of the Commonwealth, a State or Territory; or
(b)     a person (including a person who is in prison) is prevented from travelling internationally by force of:
(i)      an order of a court of the Commonwealth, a State or Territory; or
(ii)a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of the Commonwealth, a State or Territory; or
(iii)a law of the Commonwealth, or an order or other direction (however described) under a law of the Commonwealth;
the competent authority may make a refusal/cancellation request in relation to the person.
Note:           See also Subdivision D.
(1A)A competent authority may make a refusal/cancellation request in relation to the person if the person is:
(a)     an Australia citizen; and
(b)     a reportable offender.
(2)If a competent authority makes a request under subsection (1), 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 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.
…
Section 13 of the Foreign Passports (Law Enforcement and Security) Act is in relevantly identical terms.
I observe that the Amending Act also effected some amendments to the Australian Passports Act and the Foreign Passports (Law Enforcement and Security) Act. These included the insertions of s 12(1A) and the cross-reference to s 12(1A)(b) in the definition of “competent authority” within the Australian Passports Act; and equivalent insertions within the Foreign Passports (Law Enforcement and Security) Act.
While there was no obligation on the part of the Commissioner to notify persons presently subject to reporting obligations of the above change in the law in relation to their travel arrangements (that is, from a regime requiring notification of travel, to a regime requiring permission to travel), there was some evidence adduced before me to the effect that the Commissioner took steps to do so. There was also some evidence to the effect that this included notification to the plaintiff, or at least an attempt to do so by email.
The plaintiff accepts that he was aware there had been some change in the procedures in relation to travel, but says that he did not appreciate the nature of the changes – and in particular, did not appreciate that he required permission before he was able to travel. I accept his unchallenged evidence to this effect, although ultimately the only relevance of this is by way of explanation for the late timing of his application for permission to travel.
Applications for permission to travel
The plaintiff was advised of the date of his stepdaughter’s wedding in early 2018. He and his wife booked and paid for their return flights to Athens through Flight Centre on 14 June 2018.
Labouring under the misapprehension that it was sufficient for him to notify the Commissioner of his travel plans under s 17 of the CSO Registration Act, the plaintiff did so by email to SAPOL dated 7 August 2018. He was notified of the need to seek permission by return email the following day. After some further correspondence with SAPOL, he lodged an application for permission on 13 August 2018, which he subsequently supplemented with some further information. His application included a form entitled ‘Appendix to National Guidelines – Registered Offender Overseas Travel Assessment’ (the application form), which contained both a Section A (for completion by applicant) and a Section B (for completion by the competent authority). I shall return to the significance of the application form later in these reasons.
By letter dated 23 August 2018 from Detective Senior Sergeant Dayman, the plaintiff was informed that his application had been assessed and a decision had been made to refuse his overseas travel request (the first determination). The first determination made reference to the application and information provided by the plaintiff, the intention of Amending Act, the plaintiff’s history of offending, previous allegations against him of criminal offending and his status as a registrable offender. But it did not otherwise contain any reasoning.
By email dated 28 August 2018 to SAPOL, the plaintiff complained about the first determination. He provided some further information in relation to the “previous allegations” relied upon in the first determination, including that they related to charges that had been withdrawn. He stressed the importance to him of attending the wedding and being able to meet and hold his stepdaughter’s child (whom he regarded as a grandchild). He sought an opportunity for him and his wife to meet with Mr Dayman for his “final answer”.
In a letter dated 31 August 2018 from the plaintiff’s solicitors to SAPOL foreshadowing these proceedings, the plaintiff invited Mr Dayman to revisit his decision.
The plaintiff issued these proceedings on 3 September 2018, seeking an order by this Court as a competent authority for the purposes of granting permission to travel, or in the alternative judicial review of the first determination.

By letter dated 3 September 2018 from Mr Dayman to the plaintiff’s solicitors, Mr Dayman notified that he had considered the matter further in light of the email of 28 August 2018, but had determined not to vary his original decision to refuse permission for the plaintiff to leave Australia (the second determination). By way of explanation, Mr Dayman wrote that in his view he was entitled to rely upon the behaviour the subject of the withdrawn charges (which related to three incidents which, according to the three apprehension reports, involved allegations of aggravated indecent assault; engaging in sexual intercourse without consent (2 counts); attempting to engage in sexual intercourse without consent; and indecent behaviour). However, he added that “even leaving that aside, I do not believe that my decision is unreasonable and I am not prepared to grant permission for him to leave Australia.”
By way of reasoning in support of the second determination, Mr Dayman wrote:
Your client committed serious offences against a child as set out in Her Honour Judge Shaw’s sentencing remarks (a copy of which is attached to this letter). He meets the definition of a Serious Registrable Offender. At the time of the offending, the child was 14 and your client was 43. In particular, I draw your attention to page 2 of Her Honour’s remarks, where she notes that “Although B initiated the sexual contact, the age gap and her particular vulnerability, because of her age and emotional fragility, means that your offending is of a particularly serious kind …”.
Her Honour also refers to your client’s responsibility (as an adult) to protect the victim and “Not to take advantage of her younger years and her emotional fragility”. Her Honour also refers to your client’s convictions for offences of a similar kind. These factors raise serious concerns in my mind about your client’s attitude towards children and the ability to ensure that children are safe in his company.
I am also aware that in 2012 your client was convicted of failing to comply with reporting obligations under the Child Sex Offender Registration Act 2006. This raises further concerns about your client’s attitude towards the gravity and importance of reporting obligations imposed upon Registrable Sex Offenders and demonstrates a disregard for the framework placed around Registrable Sex Offenders.
I have concerns that your client would not be supervised or subject to a sufficient level of controls upon his departure from Australia. In my role, I am responsible for promoting the safety and protection of children. In doing this, I am supporting the Commissioner of Police in carrying out the purpose of Police, namely to reassure and protect the community. In this situation, I consider the community to be children and young people both in, and outside, Australia.
Although I have had regard for your client’s explanation for his travel, in making my decision, I unashamedly place greater importance upon my functions in protecting children than I do upon your client’s personal circumstances in this case. It is unfortunate for your client that his past impedes his current activities but that is the consequence of the decisions he made previously, as an adult.
It, therefore, remains my view that I am not prepared to grant permission for your client to leave Australia.
I trust that this information clarifies my decision.
At the first directions hearing in these proceedings on 7 September 2018, I listed the matter for hearing on 12 September 2018.
It would seem that in the interim there were discussions between the parties, resulting in a further application for permission by the plaintiff dated 11 September 2018. That application was made using the same application form as the earlier application. In addition to various formal details, the plaintiff set out 8 paragraphs as to his reasons for travel. Paragraphs 1 to 3 related to the wedding and christening in Athens on 23 September 2018. The balance of the reasons were as follows:
4.Aside from attending the wedding and christening on 23 September 2018 in Athens, I intend to visit other family members throughout Greece. Both my wife and I own properties in Greece, which we intend to visit. My property was left to me by my grandfather in his will and is located in the village of Trikala. The other property is owned by [my wife] and is located in Athens. We will primarily reside at that premises whilst in Greece.
5.[My wife] needs to attend two medical appointments whilst in Athens. I will also be attending upon a dentist whilst in Greece to hopefully have dental implants inserted as the procedure is far more cost-effective in Greece.
6.We are both yet to book any appointments but will book them upon our arrival in Athens. The dates of these appointments will determine when and where we travel within Greece.
7.     We plan to visit all or some of the following locations:
a.     The island of Kea which is [my wife’s] birthplace and family home;
b.     The town of Mellisi to visit my relatives;
c.     The town of Velo to visit my relatives;
d.     The town of Xulokasto to visit my relatives and friends;
e.     The village of Riza to visit my relatives;
f.     The village of Trikala to visit my relatives and attend to a property that I own which is currently being renovated.
8.[My wife] will be travelling with me to each and every location within Greece and is willing to accompany me at all times.
Consistently with the final paragraph of these reasons for travel, the plaintiff’s wife has sworn an affidavit filed in these proceedings to the effect that she is aware of the plaintiff’s history of offending, intends to travel with him to Greece, will travel with him to each location they attend within Greece, and is willing to accompany him at all times.
The third determination
At the commencement of the hearing on 12 September 2018, I was provided with a copy of a further determination by Mr Dayman by letter of that same date (the third determination). The determination was expressed as a response to the application dated 11 September 2018. In this determination, Mr Dayman granted the plaintiff permission to travel from Australia to Greece on the following terms:
1. That he travel from Australia directly to Athens, Greece;
2.That he remain in Athens, Greece for up to 48 hours, which shall include 23 September 2018, the date of the family wedding to which he has been invited;
3. That he then return directly from Athens, Greece to Adelaide.
Mr Dayman then set out his reasons for granting this permission. They were as follows:
In considering whether to grant permission to Mr Zaharis to travel overseas, I have taken into account the following matters:
· The purpose for which pursuant to s 271A.1(3) of the Criminal Code was enacted, to prevent certain person from committing sexual offences against children while travelling outside of Australia;
·    His convictions for offences of Unlawful Sexual Intercourse with a Child, then aged 14 years, and the facts in relation to that offending as they are found in the sentencing remarks of her Honour Judge Shaw dated 23 December 2009, including Mr Zaharis’ expression of remorse;
·    The allegations of sexual offending against Mr Zaharis contained in apprehension reports 15/S12055, 16/S32485, and 18/D57539, and Mr Zaharis’ account in relation to those matters;
·    His conviction for failing to comply with reporting conditions under the Child Sex Offender Registration Act 2006;
·    Greece’s status as a “Tier 2” country for the purposes of the Trafficking Victim’s Protection Act ranking system;
·    That Zaharis has booked and paid for flights to and from Greece on a non-refundable basis;
·    His marriage to [his wife];
·    His relationship with [his wife’s] daughter … whom Zaharis has known since she was born; [his stepdaughter’s] father passed away approximately fifteen years ago and he regards himself as her father figure to her;
·    [His stepdaughter’s] forthcoming marriage in Athens on 23 September 2018 in Athens Greece;
·    [His stepdaughter] has asked Mr Zaharis to walk her down the aisle and give her away at her wedding;
·    [His stepdaughter’s] baby daughter, whom Zaharis considers as his grand-daughter, will have her christening on 23 September 2018. Zaharis hopes to be able to also attend that family celebration;
·    Zaharis’ intentions to travel elsewhere in Greece for various purposes:
o   Zaharis intends to visit other family members throughout Greece;
o   Both Zaharis and his wife own properties in Greece which they intent to visit; Zasharis’ property was left to him by his grandfather in his will and is located in the village of Trikala;
o   The other property is owned by his wife and is located in Athens; They intend to primarily reside at that premises whilst in Greece;
o   His wife intends to attend two medical appointments whilst in Athens;
o   He intends to attend a dentist whilst in Greece to hopefully have dental implants inserted as Zaharis states the procedure is far more cost effective in Greece;
o   They plan to visit all or some of the following locations:
§The island of Kea which is Zaharis’ wife’s birthplace and family home
§The towns of Mellisi and Velo to visit Zaharis’ relatives
§The town of Xulokasto to visit Zaharis’ relatives and friends
§The town of Riza to visit Zaharis’ relatives
§The village of Trikala to visit Zaharis’ relatives and attend to a property that he owns which is currently being renovated
·    Zaharis’ wife has sworn that she will be travelling with him to each and every location within Greece and that she is willing to accompany him at all times; She has sworn that she is aware of Zaharis’ child sex convictions.
I consider that Zaharis’ criminal antecedents mean that there is an appreciable risk that he may offend against a child or children whilst he travels in Greece.
I consider that his wife’s knowledge of his offending and her willingness to accompany him at all times while in Greece goes some way to reducing that risk. I do not consider that her knowledge and willingness removes the risk entirely, especially in relation to longer potential periods of time in Greece.
I consider that Zaharis’ desire to travel to Greece for his wife’s daughter’s wedding and his wife’s grandchild’s Christening should be given some weight. I acknowledge that Zaharis’ attendance at the wedding and Christening is important to Zaharis and his family.
In my view the other reasons given for travelling to and spending time in Greece carry substantially less weight. Medical and dental treatment is available in South Australia. Zaharis’ property interest in Greece may be taken care of by others. Cultural and social ties can be maintained through other means.
I am conscious that re-booking flights will involve some expense for Zaharis. I do not disregard that, although I consider that he should have requested permission to travel before making this financial commitment.
I consider that the risk of offending by Zaharis is greater if he is overseas in Greece and not subject to reporting requirements for a longer period of time. A longer period of time, such as the proposed five week period, means that there is a greater risk that Zaharis may meet, groom and offend against a vulnerable child or vulnerable children.
In my view the risks in this matter and the matters personal to Zasharis are properly balanced by permitting Zaharis to travel to Greece for the shorter period of time that I have specified, to coincide with the day of the family wedding and Christening.
Grounds for judicial review
The plaintiff accepted that in respect of his claim for judicial review, it should now be treated as a challenge to the third determination. In the absence of any objection, I permitted the plaintiff’s counsel to reformulate orally the grounds of review relied upon. The reformulated grounds are as follows:
1.   The defendant erred in law in failing to take into account a relevant consideration, namely the likelihood or risk of the plaintiff committing an offence during the period of intended travel;
2.   The defendant erred by taking into account an irrelevant consideration, namely the allegations of offending which related to charges that had been withdrawn;
3.   The defendant erred in law by erroneously proceeding on the basis that:
a.   the intent of the legislation introduced under the Amending Act was that travel for holiday or recreational purposes should not be approved;
b.   the plaintiff was required to provide exceptional circumstances to justify his request to travel overseas; and
c.   there was a presumption against permission being granted to the plaintiff to travel overseas;
4.   The defendant erred by making a decision that was so unreasonable that no reasonable decision-maker could have made it.
As the plaintiff’s primary argument was that this Court is a “competent authority” for the purposes of s 271A, and so should reach its own decision on the merits, rather than being confined to judicial review, it is appropriate that I commence by considering that argument before returning in due course to the application for judicial review.
Competent authority for the purposes of s 271A.1 of the Criminal Code
Section 271A.1(3) requires permission to leave Australia from a “competent authority”. The terms of that subsection expressly pick up the meaning of “competent authority” from s 12 of the Australian Passports Act or s 13 of the Foreign Passports (Law Enforcement and Security) Act. I have earlier set out the terms of the former, and noted that the terms of the latter are relevantly identical.
The plaintiff contends that the definition of “competent authority” in s 12 of the Australian Passports Act is very broad; that it identifies or permits multiple competent authorities; and that this Court is one such competent authority. He contends that the definition of competent authority expressly includes reference to the circumstances in ss 12(1)(a), 12(1)(b) and 12(1A)(b), and that the role of the Court as a competent authority is recognised by, or inherent in, the references in these subsections to, for example, orders of a court and bail bonds.
The defendant rejects this construction. He contends that s 271A.1 of the Criminal Code is only intended to pick up the definition of competent authority in s 12(3), as opposed to its application in the context of ss 12(1) and (2); that the reference in that definition to “a person” is not apt to describe a court; that the definition in any event requires a focus upon the person responsible for “that circumstance”, which in the present context is the register and reporting obligations referred to in s 271A.1(1); and that under the CSO Registration Act the person with that responsibility is the Commissioner.
I deal first with the defendant’s contention that the reference in the definition of a competent authority to “a person” is not apt to apply to a court; or at least is more apt to describe an administrative decision-maker in executive government than a repository of judicial power. I acknowledge that there is authority for the proposition that where reference is made to “a person” in legislation it is ordinarily understood as including natural persons and corporate entities, but not a court.[1] While I consider this general proposition to be a relevant consideration, its significance in the context of the present legislation is dampened by the express contemplation in the Explanatory Memorandum to the Amending Act that a competent authority might be a court. In particular, after referring to the insertion of s 12(1A) into the Australian Passports Act, the Explanatory Memorandum stated:
[1] See, for example, Kizon v Palmer (1997) 72 FCR 409 at 430-431.
In the context of new subsection 12(1A), a competent authority will generally be the relevant State or Territory authority, namely a State and/or Territory’s court, sex offender registry, or police.
While this reference makes it plain that the legislature contemplated that a competent authority for the purposes of s 12(1A) might be a court, at the same time it stops short of statement that this Court (or indeed any other court) is a competent authority in the context of s 12(1A), let alone in the context of s 271A.1(3) of the Criminal Code.
In any event, and regardless of the Explanatory Memorandum, the primary focus of the construction task must remain the text of the legislation.[2]
[2] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47].
Here, the text of the definition of a competent authority relevantly provides that it means “a person who has responsibility for, or powers, functions or duties in relation to, that circumstance”. As the defendant correctly identifies, this requires attention to the “circumstance” under consideration.
In my view, the “circumstance” in question must be ascertained from a consideration of s 271A; that is, from the context in which statutory reference has been made to the relevant competent authority. I do not think that it is relevant in the present context to consider who might be a competent authority for some other purpose, such as for the purposes of ss 12(1) or (2) of the Australian Passports Act. While the definition of competent authority in s 12(3) of that Act includes cross-reference to those subsections, I consider those cross-references to be incidents of the application of that definition for the purposes of those earlier subsections. I do not think that, by picking up the s 12 definition of competent authority in s 271A.1(3) of the Criminal Code, the legislature intended to pick up those cross-references, let alone the application or identification of a competent authority for the purposes of ss 12(1) or (2) of the Australian Passports Act.
At its most simple or literal level, when determining who is a competent authority for the purposes of s 271A.1(3), it might be said that the relevant circumstance is the permission to leave Australia mentioned in that subsection, and hence that the competent authority is the person who has responsibility for (or powers, functions or duties in relation to) the giving of that permission. However, this construction would be circular or self-defeating because, as I will explain later, there is no such person under the CSO Registration Act. Rather, the grant of power to give permission is implicit in s 271A.1(3) itself.
In my view, the “circumstance” in question must be considered more broadly, albeit still within the context of s 271A.1. In this respect, I note the references in s 271A.1(1)(b), (c) and (d) to the entry of a person’s name on the relevant child protection offender register (which under the CSO Registration Act is the Register), the reporting obligations of that person, and that person leaving Australia. Given these references, and the context of s 271A.1, I consider that the relevant “circumstance” for the purposes of the definition of a competent authority is the Register and reporting obligations of persons named on the Register (particularly in respect of travel outside of Australia). A competent authority for the purposes of s 271A.1(3) is thus a person who has responsibility for (or powers, functions or duties in relation to) the Register and reporting obligations of persons named on that register, particularly in respect of travel outside of Australia.
Adopting this approach, the Commissioner is a competent authority. He is so by reason of his responsibility under s 60(1) of the CSO Registration Act for establishing and maintaining the Register; and his function under that Act as the person to whom persons on the Register must report, both generally (for example, under s 11 in relation to the initial reporting obligation, and ss 15-17 in relation to ongoing reporting obligations) and in the particular context of proposed travel outside of Australia (s 17).

However, the plaintiff contends that despite the Commissioner’s status as a competent authority, this does not preclude this Court also being a competent authority for the purposes of s 271A.1(3) of the Criminal Code. Further, he contends that while the Commissioner has responsibility for the Register and reporting obligations, this Court nevertheless has some “powers” and “functions” in relation to those matters under the CSO Registration Act. The plaintiff points in this regard to the Court’s powers under that Act to order that a person be subject to reporting obligations (s 9); to entertain appeals from other courts making such an order (s 10); and to suspend a person’s reporting obligations after a certain period of time (in this case, 15 years) (s 38).
I accept that the legislation does not expressly foreclose the existence of more than one competent authority. Section 271A.1(3) refers to “a competent authority” rather than “the competent authority”; and the definition of competent authority in s 12(3) refers to “a person” rather than “the person”. However, I am not satisfied that the legislature intended that there be more than one competent authority in the present context.
There is no legislative mechanism for dealing with the possibility of multiple (and potentially conflicting) decisions of different competent authorities. The plaintiff says that this contingency could be dealt with either by a competent authority exercising a discretion not to entertain an application for permission where it has already been determined by another competent authority; or by recognising that there is no need for a hierarchy of competent authorities because as long as the person travelling has permission from one competent authority it matters not for the purposes of s 271A.1 of the Criminal Code that he or she might also have been declined permission to travel by some other competent authority.
The plaintiff’s construction would also create the possibility of a large volume of applications which are relatively routine or mundane in nature being made to this Court. The nature and extent of such applications is likely to be wide-ranging given the various contexts in which the definition of competent authority appears. While the plaintiff accepted that this was possible, he contended that this contingency could adequately be addressed by this Court exercising its discretion to decline to entertain applications more appropriately dealt with by the Commissioner.
While the matters advanced by the plaintiff perhaps provide a workable solution to the contingencies mentioned, nevertheless I consider it unlikely that the legislature would have intended that the matter of permission to travel be dealt with in the manner contemplated by the plaintiff’s construction. In my view, the form of the statutory language is more likely to be a reflection of the fact that there will be multiple competent authorities in the various States and Territories, and across the various contexts in which the definition applies. And while it is true that this Court has some powers or functions in relation to the operation of the Register and the reporting obligations of people on that Register, its role is an incidental one relative to the Commissioner’s role in respect of the same. Certainly the Court does not have any power or function under the CSO Registration Act in relation to the reporting obligations of persons wishing to travel outside of Australia.
I note in passing the decision of Mullins J in Mentink v Commissioner for Queensland Police.[3] In that case the delegate of the Commissioner for Queensland Police had refused the plaintiff permission to leave Australia under s 271A.1(3) of the Criminal Code. In the course of determining the judicial review proceedings brought by the plaintiff, her Honour referred to the Commissioner being “the competent authority in Queensland”.[4] While this is consistent with the approach I have taken, I acknowledge that her Honour’s reference to a single competent authority was merely in the course of her summary of the background. It does not appear from her Honour’s reasons that there was any submission to the effect that the Court itself might also have been a competent authority.
[3] Mentink v Commissioner for Queensland Police [2018] QSC 151.
[4] Mentink v Commissioner for Queensland Police [2018] QSC 151 at [3] (emphasis added).
For all of the above reasons, I am not satisfied that this Court is a competent authority for the purposes of s 271A.1(3) of the Criminal Code. I am thus not satisfied that I have power to grant the plaintiff permission to undertake his planned travel.
I add that even if I had been satisfied that I was a competent authority for the purposes of s 271A.1(3) of the Criminal Code, I would have been inclined to exercise the discretion (that the plaintiff concedes I would have under his construction of the definition of a competent authority) to decline to make a determination. The plaintiff contends that by reason of s 271A.1(3) being a new provision, and the fact that these proceedings were accompanied by bona fide judicial review proceedings and so did not involve an attempt to bypass the Commissioner, there would be good reason for me to make a determination as a competent authority. However, if I were a competent authority, I would have been inclined to take a different view. In circumstances where multiple applications have already been made to the Commissioner (whom it is conceded is a competent authority), and where those applications have been dealt with in an apparently bona fide manner, I would have been inclined to exercise my discretion to decline to determine the plaintiff’s application for permission.
Jurisdiction to entertain judicial review of the third determination
The defendant contests this Court’s jurisdiction to entertain the plaintiff’s claim for judicial review of the third determination.
I commence by noting that in Mentink v Commissioner for Queensland Police, mentioned above, Mullins J entertained the plaintiff’s claim for judicial review of the Commissioner for Queensland Police’s decision to refuse him permission to travel outside Australia. Indeed, her Honour upheld the claim and granted the relief sought. That said, her Honour appears to have proceeded upon an assumption of jurisdiction, rather than any express consideration of the issue.
In considering this Court’s jurisdiction to entertain the plaintiff’s alternative claim seeking judicial review of the third determination, the first issue that arises is whether the Court’s jurisdiction is ousted by s 9(1)(a) of the AD(JR) Act. That subsection provides that a court of a State does not have jurisdiction to review “a decision to which this section applies”. Under s 9(2)(a), a “decision to which this section applies” includes a “decision to which this Act applies”. And under s 3, a “decision to which this Act applies” includes a decision of an administrative character made “under an enactment”. There is no dispute that the Criminal Code is an enactment for these purposes. The issue is whether the third determination is a decision made “under” that enactment.
In determining whether a decision was made under an enactment for the purposes of s 3 of the AD(JR) Act, the following passage from the reasons of Gummow, Callinan and Heydon JJ in Griffith University v Tang is pertinent:[5]
[5] Griffith University v Tang (2005) 221 CLR 99 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.
It is true that s 271A.1(3) of the Criminal Code is not couched in language involving an express conferral of power upon a competent authority to give permission to leave Australia. However, as the above passage from Griffith University v Tang makes plain, it is sufficient that the enactment impliedly requires or authorises the relevant decision. Mason, Deane and Dawson JJ made observations to similar effect in Minister for Immigration and Ethnic Affairs v Mayer:[6]
[6] Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303.
A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists.
These observations are apposite in the circumstances of a determination to give (or to decline to give) permission for the purposes of s 271A.1(3) of the Criminal Code. That operation of that subsection is predicated upon the existence of a power in a competent authority to give permission to travel outside of Australia. Neither party suggests that there is any other potential source of such power. In particular, the CSO Registration Act does not contain any power to give such permission. In these circumstances, I am satisfied that s 271A.1(3) itself impliedly requires and authorises a competent authority to determine whether a person should be given permission to leave Australia.
It follows that a decision of a competent authority to give (or to decline to give) permission to leave Australia is a decision “under an enactment” for the purposes of s 3 of the AD(JR) Act. It also follows that this Court’s jurisdiction to entertain a claim for judicial review of such a decision has been ousted by s 9(1)(a) of that Act. As the third determination of Officer Dayman is a decision of a competent authority, this Court’s jurisdiction to entertain the plaintiff’s claim for judicial review of that determination has been ousted.
However, that is not the end of the matter. The reason for this is that while s 9(1)(a) of the AD(JR) Act operates to oust this Court’s jurisdiction, this Court has, through the operation of the Cross-Vesting Act, nevertheless been conferred (or has had restored or ‘handed back’ to it) jurisdiction in relation to some matters arising under the AD(JR) Act.[7] In particular, s 6 of the Cross-Vesting Act provides various rules governing the conduct of “special federal matters”. Under s 3(1)(c) of the Cross-Vesting Act, these matters include “a matter arising under the ADJR Act”. The plaintiff’s claim for judicial review of the third determination is thus a special federal matter for the purposes of s 6 of the Cross-Vesting Act.
[7] Hopkins v Governor-General of Australia (2013) 303 ALR 157 at [24], describing s 4 of the Cross-Vesting Act as having impliedly repealed s 9 of the AD(JR) Act.
In terms of the rules governing the conduct of special federal matters in this Court, s 6 of the Cross-Vesting Act relevantly provides:
Special federal matters: general rules
(1)     If—
(a)     a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter; and
(b)     the court does not make an order under subsection (3) in respect of the matter,
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2)(b).
…
(3)The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
(4)Before making an order under subsection (3), the court must be satisfied that—
(a)     a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State; and
(b)     a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding.
…
(6)In considering whether there are special reasons for the purposes of subsection (3), the court must—
(a)     have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in subsection (2)(b), whichever is appropriate in the particular case; and
(b)     take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).
…
The effect of the above subsections is to recognise a “general rule” that special federal matters should be heard by the Federal Court, but to allow for this Court to order that such matters be heard and determined in this Court. However, this Court may only do so after (i) the State and Commonwealth Attorneys-General have been given notice of the special federal matter pending in this Court, and a reasonable time to consider whether to make submissions; and (ii) being satisfied that there are special reasons for doing so in the particular circumstances of the proceeding, being reasons other than reasons relevant to the convenience of the parties.
During the course of the hearing, I was informed by counsel for the plaintiff that his instructors had that same day provided the South Australian and Commonwealth Attorneys-General with the notice required by s 6(4)(a) of the Cross-Vesting Act. While there had not yet been a response from either of the Attorneys-General, the plaintiff accepted they were entitled to a reasonable period of time to consider whether to make any submissions on the issue of whether there were “special reasons” justifying an order that the proceedings be determined by this Court. The plaintiff accepted that the Attorneys-General would be entitled to a period of at least some days before the Court could proceed to make such an order.
It follows that I am not presently in a position to decide in the plaintiff’s favour that there are special reasons warranting an order that these proceedings be determined by this Court. This presents a practical difficulty for the plaintiff given the tight time-frame to avoid the prejudice he seeks to avoid. As mentioned, he is currently booked on a flight departing Adelaide tomorrow.
Counsel for the plaintiff indicated that if I got to the position I have, then he expected that his instructions would be to seek an order listing the matter for further consideration next week in case the South Australian and Federal Attorneys-General were ready by that time to be heard on the issue of whether there were special reasons for determining the proceedings in this Court. Implicit in this was a recognition that it would be necessary for the plaintiff to cancel his current flight from Adelaide to Athens. I was informed that there was the possibility of an alternative flight late next week that would still have the plaintiff arrive just in time for the wedding and christening on 23 September 2018.
If I were inclined to the view that there were, or might be, special reasons justifying an order that the proceedings continue in this Court, and that the claim might ultimately succeed, then I would have adopted the course suggested by counsel for the plaintiff. Certainly, I would not be able to make an order that the proceedings continue in this Court without having given the Attorneys-General a reasonable opportunity to make submissions on this issue of whether special reasons exist.
However, in the unusual circumstances and urgency of this case, and having heard full argument from the parties in relation to both whether there are special reasons warranting these proceedings continuing in this Court, and whether there is in any event merit in the plaintiff’s proposed grounds of review, I have decided that there is no utility in me adopting this course. For the reasons that follow, I am inclined to the view that special reasons do not exist. But in any event, as I am satisfied that none of the proposed grounds for review are made out, I consider it appropriate that I express my reasons for so concluding. And having reached this view there would be no utility in me proceeding to hear further submissions as to whether special reasons exist, because the claim would ultimately fail in any event.
Special reasons for determining the proceedings in this Court
The Court has a discretion to order that proceedings continue in this Court under s 6(3) of the Cross-Vesting Act. However, that discretion is conditioned upon satisfaction that there are special reasons for doing so. That subsection also provides that the special reasons must be other than reasons relevant to the convenience of the parties. And s 6(6)(a) provides that in determining whether special reasons exist, the Court must have regard to the “general rule” that special federal matters should be heard by the Federal Court.
There is little utility in attempting any more detailed articulation of what is meant by “special reasons”. Essentially, it requires some circumstance or circumstances out of the ordinary; some circumstance or circumstances that does not, or do not, relate to the convenience of the parties, and that take this matter outside of what the legislature must have contemplated as the range of matters that would be subject to the “general rule” that such matters be heard in the Federal Court.
In support of his contention that there are special reasons for ordering that these proceedings be determined in this Court, the plaintiff relies upon various matters. He points to the fact that the nature of the claim is relatively unique in that it even though it involves a review of a decision made under a Commonwealth enactment, it is nevertheless a review of a decision of a member of the State executive. That is, it is a claim for judicial review of a member of the State executive vested with power to make a decision under a Commonwealth enactment. Next the plaintiff relies upon the fact that his claim relates to a new legislative scheme, and raises some novel and complex issues and in respect of which a decision of this Court would be of assistance. He also relies upon the tight time-frame confronting the plaintiff.
The defendant contests the existence of special reasons. While accepting that it is perhaps unusual that a member of the State executive is invested with power under a Commonwealth enactment, the defendant contends that it is not only permissible under the Constitution but also not an entirely unique situation. He contends that this feature of the plaintiff’s claim is not sufficient to constitute special reasons for the purposes of s 6(3) of the Cross-Vesting Act. He contends that that the other matters relied upon by the plaintiff are also not sufficient for that purpose.
The only judicial consideration of “special reasons” in this context drawn to my attention is the obiter observations of Gray J in P1 v Australian Crime Commission.[8] While the list of considerations taken into account by his Honour in that case in concluding that special reasons did exist is of some relevance in the present context, the circumstances of the present case are materially different.
[8] P1 v Australian Crime Commission [2012] SASC 229 at [57]-[61].
While the decision-maker in this case (like in P1 v Australian Crime Commission) was a member of the State executive, the decision in question was one made under a Commonwealth enactment (s 171A.1(3) of the Criminal Code). Further, while the Register, and its equivalents around the States and Territories of Australia, are managed at a State or Territory level, the 2017 legislative changes effected through the Amending Act are plainly intended to reflect a Commonwealth response to a perceived problem, and to operate uniformly throughout Australia, albeit to be implemented and managed through the various State and Territory executive machinery already in place. The 2017 legislative changes also involved not only the insertion of s 271A.1 into the Criminal Code but also some related amendments to the Australian Passports Act and Foreign Passports (Law Enforcement and Security) Act, which involve decision making by members of the Commonwealth executive.

In my view, while the involvement of the Commissioner as the competent authority, and hence decision-maker, for the purposes of giving permission is a relevant consideration for the purposes of determining whether there are special reasons for the purposes of s 6(3) of the Cross-Vesting Act, I am not presently persuaded this would be sufficient.
As for the other matters relied upon by the plaintiff, while I have some sympathy for the timing and procedural predicament in which he finds himself, I am also not presently persuaded that this is of much weight in determining whether special reasons exist. I accept that the matters advanced by the plaintiff rise higher than the mere convenience of the parties referred to in s 6(3) of the Cross-Vesting Act, and are relevant in a general way, but I am not presently persuaded that they are of a nature and significance sufficient to constitute special reasons warranting a departure from the general rule that such claims be heard by the Federal Court.
While I am not presently persuaded that special reasons exist, I stop short of expressing a final view about this issue in circumstances where the relevant Attorneys-General have not yet had an opportunity to make any submissions they may wish to make on the topic.
Grounds for judicial review
I have earlier set out the four grounds of review advanced by the plaintiff in his challenge to the third determination. I will deal with each in turn.
First ground: failure to undertake an appropriately specific risk assessment
The plaintiff contends Mr Dayman failed to consider the likelihood of the plaintiff committing a sexual offence during the period of the intended travel. During the course of argument, counsel for the plaintiff developed this ground more in terms that acknowledged that Mr Dayman’s reasons did encompass a general consideration of the risk presented by the plaintiff, but complained that he did not descend to the more specific risk analysis required of the decision-maker; that is, an assessment of the risk presented by this particular plaintiff given his particular travel plans.
I accept that a proper exercise of the Commissioner’s power to grant permission to travel outside of Australia does require the more specific form of risk assessment contemplated by the plaintiff’s submission. It would not be sufficient for the Commissioner (or his delegate) to proceed by reference to the inherent risk that exists in respect of any person whose name is on the Register, without regard to the circumstances of the particular person in question and the nature of their travel plans.
However, the difficulty for the plaintiff is that on the face of the third determination, Mr Dayman has undertaken a risk assessment of an appropriately specific nature. While his reasons are not extensive, it must be remembered that they are the reasons of an administrative decision-maker exercising executive power, and not the reasons of a court exercising judicial power. In any event, Mr Dayman has made reference to the numerous considerations relevant to the appropriately specific risk assessment required of him. He did not rest his risk assessment merely upon the plaintiff’s name being on the Register and his desire to travel to Greece. He made reference to (and it must be assumed had regard to) the nature of the offending that led to the plaintiff’s name being entered on the Register, including the sentencing remarks of the relevant judge. He made reference to some other allegations concerning the plaintiff, and his non-compliance (on one occasion) with his reporting conditions. He made reference to the location of the proposed travel (Greece), and its status as a Tier 2 country for the purposes of the Trafficking Protection Act.[9] He also made reference to the circumstances of the travel, and in particular it being for largely family reasons and involving him being accompanied by his wife.
[9] The evidence before me establishes that this is a reference to Greece's classification or status under the Trafficking Victims Protection Act 2000 (US). It involves an assessment of the effectiveness of a country's legal framework for the protection of children. Tier 2 is the second to top tier, meaning that the government of Greece does not fully meet the minimum standards of that Act, but is making significant efforts to achieve compliance.
Importantly, in the operative section of his reasons (being the final seven paragraphs of those reasons), Mr Dayman mentioned the impact that each of these matters had had on his risk assessment. In the circumstances, I am satisfied that Mr Dayman did undertake a risk assessment with the requisite level of specificity. I do not consider that he failed to take into account any material aspect of that risk assessment.
It follows that the first ground of review is not made out.
Second ground: took an erroneous approach
The foundation for the plaintiff’s contention that Mr Dayman took into account irrelevant considerations, or adopted an erroneous approach, is the existence of two bullet point notations on the application forms that accompanied the applications leading to the first and third determinations. I have mentioned the fact of these applications forms earlier in my reasons. At the end of the Section B part of the application form (which was left blank for completion by the competent authority) there were some explanatory notes which included the following:
· Note: Based on the intent of the legislation applications to travel solely for holiday or recreational purposes should not be approved.
· Review and determine if the reportable offender has provided exceptional circumstances to justify their request to travel overseas.
The plaintiff contends that both of these propositions involve an erroneous approach to the Commissioner’s decision whether to give permission to travel, and that I should infer that they were matters taken into account by Mr Dayman.
I accept that both of these propositions involve a misstatement of the approach required of a competent authority under s 271A.1 of the Criminal Code. While the explanatory memorandum and second reading speech accompanying the Amending Act make it plain that the amendments were intended to operate as a restriction upon registered persons’ ability to travel, they acknowledge that the amendments are intended to focus upon child sex tourism and other forms of travel posing a real risk to vulnerable children. They acknowledge that the amendments were not intended to impose a permanent travel ban upon registered persons. They contemplate that travel might be permitted on a case by case basis if there are good reasons for giving permission.
There is a useful discussion of the intention behind, and approach to, the s 271A.1(3) discretion to grant permission to travel outside of Australia in the reasons of Mullins J in Mentink v Commissioner for Queensland Police.[10] I agree with her Honour’s conclusion in that case that there is nothing in s 247A.1 of the Criminal Code to warrant a decision-maker starting with a presumption against permission, or indeed to require satisfaction “by acceptable and cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight” to justify permission. Analogously with those conclusions, I do not think it is accurate to say that permission requires “exceptional circumstances”, or indeed to say (without qualification) that travel solely for holiday or recreational purposes should not be approved. While the fact that travel is solely for holiday or recreational purposes will be a relevant consideration, ultimately the issue of whether permission is appropriate requires a case by case assessment, taking account of the particular risk presented by the person wishing to travel and the nature and circumstances of their travel.
[10] Mentink v Commissioner for Queensland Police [2018] QSC 151 at [15]-[36].
However, even accepting, as I do, that the notations involved a misstatement or over-simplification of the proper approach, it remains necessary for the plaintiff to establish that these notations infected the decision-making process.
In this regard, the location of the notations is relevant. They were on the pro-forma application. They were not notations inserted during the course of consideration of the plaintiff’s applications. While they were in the section of the form left blank for completion by the competent authority, they did not form part of the reasons expressed by the competent authority.
It is not necessary for me to decide whether there might have been room for an inference as to the use that might have been made of the propositions in these notations in the context of the first and second determinations (given the relatively sparse nature of the reasons given). As events have transpired, the parties accept that the focus must be on the third determination. Given the articulation of the reasoning process of Mr Dayman in support of that third determination, I am not satisfied there is any room for an inference that he approached his decision-making by reference to either of the impugned notations on the application form, or by reference to some presumption against permission. He did not make reference to any general prohibition against travel for holiday or recreational purposes; he did not make reference to any requirement that the plaintiff establish exceptional circumstances; and he did not make reference to any presumption. To the contrary, I consider that Mr Dayman’s reasons demonstrate an approach consistent with the case-by-case risk assessment of the nature required by the legislation.
For these reasons, I consider that the second ground of review has not been made out.
Third ground: taking into account irrelevant allegations
The plaintiff complains about the use made by Mr Dayman of the allegations against the plaintiff in relation to the charges against him that were withdrawn.
In his second determination, Mr Dayman made reference to these allegations, but said that he did not have regard to them (or at least did not need to have regard to them) in concluding that it was not appropriate that the plaintiff have permission to travel. However, in his third determination, Mr Dayman referred again to the allegations, and did not disavow reliance upon them. His reasons leave it open for me to infer, and I do infer, that he placed at least some reliance upon these allegations in reaching the decision he did in the third determination.
The defendant did not resist an inference to this effect. Rather, the defendant’s response to this ground of review was that the allegations were relevant, even if of limited weight. He contended that the mere fact that allegations have not been proven to the requisite criminal standard of proof does not mean that they must be put to one side as irrelevant. He relies in this respect on a passage from the reasons of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd.[11]
[11] Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [32]-[34].
I accept the defendant’s submission. Of course, when taking into account allegations of criminal offences, it will be necessary to ensure that they are not treated in the same way as proven criminal offences. It will also be necessary to have regard to the particular circumstances of the allegations, and the evidence in support of them. In the present context it would be necessary to take into account the fact that the charges based upon the allegations had been withdrawn, and the explanations for the allegations proffered by the plaintiff. However, it does not follow that the allegations will be irrelevant to the risk assessment required by the decision-maker. Further, the weight ultimately afforded to the allegations will be a matter for the decision-maker, subject only to the use of allegations contributing to an ultimate decision that is unreasonable in relevant sense.
In this case there is nothing to suggest that Mr Dayman lost sight of the fact that the matters in question were mere allegations, and related to charges that had been withdrawn. To the contrary, his reasons described them as “allegations” in the relevant apprehension reports. This may be contrasted with his reference to the plaintiff’s “convictions” for the 2007 offending. While I infer that Mr Dayman attached some weight to conduct the subject of the allegations the allegations, I do not accept that there is a basis for concluding that he did so in any impermissible way.
It follows that the third ground of review has not been made out.
Fourth ground: unreasonableness of the third determination
The plaintiff contends that even if no error can be identified in Mr Dayman’s reasoning, his decision was nevertheless unreasonable in the relevant sense. It was a decision that no reasonable decision make could have made in the circumstances.
I accept that the decision is a relatively harsh one from the plaintiff’s perspective. However, I am not satisfied that it is unreasonably so.
I refer in this respect to my earlier consideration above of the general approach required of a competent authority when considering whether to grant permission to travel overseas, and the discussion of Mullins J of the same in Mentink v Commissioner for Queensland Police. While it is true that the legislation is not intended to foreclose the possibility of travel by registered persons even for purely holiday or recreational purposes, it is also true that the legislation contemplates the potential for significant restrictions in this regard. While this might operate punitively in respect of some registered persons, that was the intention of the legislature. Again, it all depends on a case-by-case assessment of the risk presented by the particular person seeking permission and the location and circumstances of their proposed travel.
Here, the plaintiff’s criminal antecedents provided grounds to conclude, as Mr Dayman did, that he presented an appreciable risk of offending against a child or children while travelling in Greece. The Tier 2 status of Greece, and the length of the intended travel, were relevant considerations in relation to the extent of this risk.
On the other hand, there were certainly some factors that weighed in favour of some form of permission.
The presence of the plaintiff’s wife – and her preparedness to accompany him at all times – would operate to mitigate the risk that he presented. However, I do not think that this factor required a conclusion that the risk that remained was immaterial, or incapable of reasonably requiring a refusal of the permission sought.
There were also the strong personal considerations arising out of the fact of the wedding and christening, and the plaintiff’s desire to spend time with his family more generally.
In my view, these considerations, in conjunction with the presence of the plaintiff’s wife, were probably sufficient to require at least some form of permission. However, that is ultimately the conclusion that was reached by Mr Dayman. The issue is whether the combination of these matters meant that it was unreasonable to confine that permission to a period of 48 hours including the day of the wedding and christening.
In my view it was appropriate, and not unreasonable, to confine the duration of the permission to focus on the timing of the wedding and christening. It was appropriate, and not unreasonable, to take the view that a balancing of the relevant considerations warranted permission to travel to Athens for the wedding and christening, but not for an extended holiday involving various locations throughout Greece. The personal reasons for the latter carried less weight, and the longer time period involved added to the risk presented by the plaintiff.
While I would have been inclined to permit a longer period of travel if I were the decision-maker, that is not the test. The test is whether the confinement of the permission to a period of 48 hours was unreasonable. I am not satisfied it was unreasonable.
It follows that the fourth ground of review has not been made out.
Conclusion
For the reasons I have set out, I am not satisfied that it is appropriate to order any of the relief sought by the plaintiff.