Overseas Travel as a Reportable Offender

 

Overview

 

‘Registered’ or ‘reportable offenders’ in Australia cannot travel overseas without first obtaining permission from a competent authority.[1] Failure to do so will result in a penalty of five years imprisonment.[2]

 

It is important, then, for those deemed registered or reportable offenders to understand the process for which permission to travel overseas may be obtained.

 

Unfortunately whilst the legislation is clear in requiring permission, it is silent on what factors will be relevant to obtaining it.

 

Applicants are thus required to turn to the common law for guidance on this crucial aspect of their application.

 

Legislation

 

Section 271A.1 of the Criminal Code (Cth) was intended by Parliament to prevent reportable offenders from travelling overseas to sexually exploit or abuse vulnerable children.[3]

 

Under Section 271A.1, a reportable offender faces imprisonment for five years if he or she leaves Australia without permission from a competent authority.

 

A ‘reportable offender’ under section 271A.1 is a person whose name is entered on a child protection offender register (however described) of a State or Territory, who has reporting obligations in connection with that entry on the register.[4]

 

The relevant legislation in Queensland is the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). Generally speaking, under section 5 of that Act a person sentenced for sexual offences involving children or child exploitation material will be deemed a reportable offender in Queensland.[5] For more detailed information on who is deemed a ‘reportable offender’ in Queensland, see Reportable Offender Legislation in Queensland.

 

‘Competent authority’ under section 271A.1 will be the relevant unit of the police service for the state or territory in which the reportable offender resides. In Queensland this is the Queensland Police Service’s ‘Child Protection Offender Registry’, which is supported at a local level by police officers in the community.[6]

 

Obtaining permission

 

The practical steps to obtaining permission to leave Australia will differ as between each state and territory.

 

In Queensland, permission for a reportable offender to travel overseas may be obtained by way of written application to the relevant unit of the Queensland Police Service.

 

What will be considered by the competent authority when determining an application by a reportable offender to leave Australia?

 

As stated, the legislation is silent on what must be taken into account when determining an application by a reportable offender to travel overseas.

 

Guidance must be gleaned from the common law.

 

In Mentink v Commissioner for the Police[7] Mullins J (as her Honour then was) remarked:

 

“There is no ‘presumption” expressed or implied under s 271A.1 of the Code against international travel that applies as the starting point when a reportable offender requests the component authority for permission to leave Australia”. [8]

 

Her Honour continued:

 

“There will be a number of risks of the same or similar nature that may have to be considered for any reportable offender who requests permission from a competent authority to travel overseas, but the weight to be given to a particular risk in any one case may vary according to the circumstances pertaining to that reportable offender which is a matter for the decision maker.”[9]

 

Having regard to the obiter in Mentink two things are clear.

 

First, section 271A.1 does not operate to prevent, at the outset, a reportable offender from travelling overseas. Rather it operates to ensure that international travel by reportable offenders is controlled.

 

Second, the weight to be given to risk factors associated with reportable offenders travelling overseas will be case specific.

 

For potential applicants, these two points are important to bear in mind: whilst not automatically prevented from overseas travel, obtaining permission to do so is no linear task.

 

Conclusion

 

Reportable offenders may leave Australia with the permission of a competent authority.

 

There is no set legislative criteria for determining an application by a reportable offender to obtain permission to travel overseas.

 

In Queensland it has been held by the Court of Appeal that the weight to be given to a particular risk in any one case may vary according to the circumstances specific to that reportable offender.

 

Potential applicants in Queensland should be aware then that although they are able to travel overseas with permission, there is no pro-forma approach to obtaining that permission.

 

How ROG Can Help

 

The team at Robertson O’Gorman is experienced in this area of law, and understands the difficulties associated with its navigation.

 

If you are interested in making an application under this legislation, or require more information about the process, please contact our office on (07) 3034 0000.

 

[1] Criminal Code Act 1995 (Cth), s 271A.1.

[2] Ibid.

[3] See Explanatory Memorandum, Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Cth).

[4] Criminal Code Act 1995 (Cth), s 271A.1(b) and (c).

[5] Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 5, 9. See also Schedule 1.

[6] See Police Service Administration Act 1990 (Qld), section 4.9.

[7] [2018] QSC 151.

[8] Ibid, at [29].

[9] Ibid, at [36].