Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

I rise to speak on the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017. This bill amends the Australian Passports Act, the Criminal Code Act 1995 and the Foreign Passports (Law Enforcement and Security) Act 2005. The intention of this bill is to prevent Australians—that is, all Australian passport holders, including those who hold more than one nationality—who are listed with reporting obligations on a state or territory child sex offender register from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where, in many such cases, the law enforcement framework is weaker and the activities of these people will not be monitored. It is important to note that that is the purpose of this bill. It is a very worthy purpose. It is one which Labor entirely supports.

The legislation goes further than some existing provisions that already provide for a child sex offender's passport to be refused, cancelled or surrendered on the basis of a state authority's assessment of the likelihood of the offender causing harm.

Labor does recognise that this bill provides a means to reduce the opportunity for reportable offenders to engage in the sexual exploitation and sexual abuse of children overseas, and Labor supports the bill on that basis. It is a worthy purpose. It is a bill that is designed to get at an undoubted evil. If there are measures that can reduce Australian passport holders who are sex offenders from travelling overseas to engage in the exploitation or abuse of children in overseas countries, that is something that we should, of course, attempt to achieve.

Under this legislation, a state 'competent authority'—that is the term that is used in the bill—which is going to be a state or territory police force, a state or territory court, or the authority which operates the state or territory sex offenders register, will be able to request the Commonwealth minister responsible for passports, currently the Minister for Foreign Affairs, to cancel or not issue a passport in order to prevent a reportable offender from travelling overseas.

I should pause for a moment to say that the concept of a reportable offender is based on the already existing eight state and territory sex offenders registers. A reportable offender is someone who has been convicted of a sex offence, is on the register as a consequence of the conviction being recorded, and has continuing reporting obligations under the state or territory legislation which establishes the particular register. There are differences between states and territories—some states have simply a sex offenders register; other states have a particularly named child sex offenders register—but in all Australian jurisdictions there are registers on which the names of convicted sex offenders are recorded. Those registers carry with them the obligation to report, in a range of ways, to the authorities. The length of the reporting requirements differs between states and territories and differs to some extent depending on what offence the offender has been convicted for. But, generally speaking, for more serious sex offences, the reporting requirement will be for 15 years; for less-serious sex offences, the reporting requirement will be for eight years; and, in the case of multiple offences, the reporting requirement will be for life.

The bill provides that the Minister for Foreign Affairs will be required to act on a request coming to her from the state or territory authority. In other words, it will be a mandatory decision. Further, as a result of it being a mandatory decision, the bill provides that the minister's cancellation of a passport or other action to prevent a reportable offender from travelling overseas will not be subject to merits review. As I understand the way in which the bill has been drafted, it is because the decision to demand the surrender of a travel document or to cancel a passport is a procedural decision and not discretionary in nature that the decision will not be subject to merits review. I will return to that later.

The other part of the bill introduces a new offence into the Criminal Code. It will make it an offence for a reportable offender to leave Australia unless the relevant state or territory competent authority has given that person permission—however that permission is described—to leave the country, or unless their reporting obligations have been suspended. It is made a serious offence by the provision in the bill of a maximum penalty of five years imprisonment or 300 penalty units. However, there are safeguards in the bill where a reportable offender has to travel overseas for a particular reason, such as to visit a dying family member. The safeguard is, in essence, that if there is a good reason for making an exception, the state or territory competent authority can give the person permission to travel on a case-by-case basis.

There is a definition of 'competent authority' in this bill. It is a person who has responsibility for or powers, functions, or duties in relation to the way in which this will arise and be brought before the Commonwealth minister. Generally speaking, it will be clear from the state or territory legislation who the competent authority is, but, in addition, there is a power in this bill for the minister to specify by determination a state or territory competent authority in relation to the particular instance that has arisen.

A competent authority can request that the minister issue a travel-related document to a person who has been denied a passport—for example, if the person was overseas at the time that their passport was cancelled—to enable them to return to Australia. That is of course a familiar scenario. It is one which has arisen in recent times in relation to so-called foreign fighters who have had their passports cancelled. There is a need for them to be able to be issued with documents to return to Australia, and there is provision made for that. The bill will ensure that a competent authority can also withdraw or amend the cancellation request in relation to a reportable offender to enable the issue of a travel document if, for example, a reportable offender wanted to travel overseas to visit a dying family member or for another acceptable reason. The framework of the bill ensures that a person would be able to seek permission from a state or territory competent authority to travel and, if that permission were granted, the person, if they did in fact travel, would not be engaging in an offence under the new offence that will be introduced to the Criminal Code.

When we are examining what is quite a sweeping measure, such as that found in this bill, it is necessary to acknowledge that there will be a very large number of Australians who, potentially, will be affected by these measures and will be banned from travelling overseas. As I have said, the measures are drafted so as to capture offenders with current reporting obligations, and, because there is not a uniform national child sex offenders register or a uniform national sex offenders register, the number is not readily quantifiable.

The Minister for Foreign Affairs, in her second reading speech, has referred to a number of approximately 20,000 Australians who will be affected by these measures, and that is the number on which we should proceed, there being no other estimate that is readily available. As I have indicated, the offences that result in a person being listed on a sex offenders register and the corresponding period for the reporting obligations differ between the various states and territories. In the broad, we can say that the severity of the offences determines the length of the reporting requirement. That is why we see offences divided into class 1 and class 2 offences. Examples of class 1 offences would generally include sexual intercourse with a child, the murder of a child, sexual assault, maintaining a sexual relationship with a young person, child sex tourism, sexual intercourse with a child outside Australia and incest. Examples of class 2 offences would generally include—and there are differences between the state and territory registers—indecency, abduction, child pornography, using the internet to deprave a young person, prostitution, trafficking, grooming or procurement.

In some states, a wider range of offences are made registrable, such as the offence of loitering near schools, which is on the statute book in some states, and, depending on what offence has been committed and whether multiple offences were committed, a registered offender will be subject to different reporting obligations. The consequence of this, because of the fact that there is no nationally consistent register and no nationally consistent reporting requirement or provisions relating to a register, depending on which state or territory the offender has been convicted in, the measures that are to be found in this bill will apply differentially to offenders from different states. The reporting periods, generally consistent across the states and territories, as I have said, are 15 years for the more serious offences and eight years for the less serious offences, and there is a reporting period of life if multiple offences have been committed.

There is an issue arising from the fact that, in some states and territories, sex offenders have committed sexual offences, so defined, that are not what are generally thought of as child sex offences—I think that most Australians, if asked, would think that we were talking about offences involving paedophiles—and a range of other offences are caught by the registers. An example would be something which has been referred to in some recent law reform reports in New South Wales. All sexual contact with a child under 16, even where that contact is said to be consensual, is an offence, and that is so even where both parties involved are under 16. An offence involving two young people is automatically aggravated because it is designated as a child sex offence, which places the offence in a more serious category attracting higher penalties and, in addition, certainly in New South Wales, child sex offences attract the provisions of the Child Protection Register set up under the Child Protection (Offenders Registration) Act 2000, even where both the offender and the victim are children. Also, in Victorian criminal law, you could point to consent being potentially a defence to the offence of sexual penetration or an indecent act where the victim is aged 12 years and over and the accused is not more than two years older than the victim. But, where the accused is more than two years older—so we are talking about the situation of sexual conduct between two young people, perhaps a male of 17 and a female of 15—the offender will go on the sex offenders register.

I mention these two examples because, potentially, one could have someone convicted of a sex offence whose name appears on the sex offenders register in a particular state or territory and the offender is a young person. It has been recently mentioned as well that the offence of so-called sexting—the sending of sexual images using digital means—has also resulted in the conviction of some young people of those offences. They too will go on the sex offenders register. I mention these examples because what we have here is a bill that casts a very wide net and it will apply on a blanket basis to some 20,000 or so Australians. Some of whom will undoubtedly have committed serious child sex offences, and they are really the target of this legislation, but others will have committed much lesser offences but nevertheless find themselves on the register.

It might be thought appropriate to ensure that we have legislation that makes it possible for that group of people—the people in the lesser category—to escape from the quite harsh effects of what is proposed in this bill. Of course, it may be that that there is further consideration by the government and also by Senator Hinch when this bill goes to the Senate, because, as I have said, the legislation is supported by Labor and is going to pass in this House. One way in which it might be possible to do that is for consideration to be given to some means of ensuring at the federal level, without merely using whatever discretions are available at the state and territory level, some discretion is available to the minister for foreign affairs to relieve particular people from the otherwise harsh effect of this legislation applying to those, who much earlier in their lives committed an offence, but who have not in any sense reoffended and are now embarked on adult life, may have a perfectly legitimate reason for travelling and, importantly, not be thought by anyone to pose the slightest risk of committing some child sex offence. There needs to be some possibility that the bill not act in a completely automatic fashion. It may be that there is sufficient discretion at the state and territory level, but, if not, we would think some consideration should be given to making sure that the legislation does not operate harshly or so as to cause injustice to any people.

I have indicated that one means by which some level of flexibility might be introduced into this legislation would be to make the minister's decision a discretionary one. Another means that might be worth considering is to introduce some level of merits review by the Administrative Appeals Tribunal in respect of a decision to cancel a passport or a decision to remove travel documents. It is along those lines that some thought might be given to relieving the harshness of the legislation as it presently stands. I say again: Labor entirely supports the intention of this legislation because it is clearly designed to get at the recognised evil of convicted Australian sex offenders travelling overseas to engage in further reprehensible offending against children.

Despite the strength of the bill as it is presently drafted, it is possible to see the amendments to the Criminal Code, the Australian Passports Act and the Foreign Passports (Law Enforcement and Security) Act are not going to amount to a permanent set-in-stone type travel ban for persons who are listed on the register. Those sex offenders who are listed on registers are only subject passport restrictions for the period that they are subject to reporting obligations under the relevant state or territory register. There is provision for a reportable offender to seek permission from the relevant state or territory competent authority to travel overseas, and it should not be thought that the bill operates in a completely rigid way even now. The comments I have previously made are directed at making sure, and it may be that this is something that will need to be done by keeping the operation of this legislation if it becomes law under review, that it is not working an injustice on people who have committed offences at the lower end of the spectrum—people who have committed offences that are not traditionally thought of as paedophile-type offences, which is very much the intended primary focus of this legislation. But be in no doubt, Deputy Speaker, sexual abuse and exploitation of children is a dreadful scourge and an evil, in Australia and abroad. Labor supports legislative action that aims to limit the capacity of registered child sex offenders to travel overseas, for the very direct reason that, in many overseas countries, reporting and investigation practices are not nearly as robust as they are here in Australia. I commend the bill to the House.