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.

Andrew Broad (Mallee, National Party) Share this | Link to this | Hansard source

Of course the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 is something that I am going to support and support very strongly. I commend the Minister for Foreign Affairs, Julie Bishop, and the Minister for Justice, Michael Keenan, for addressing this issue, because clearly what we have been doing in the past has not been working. It saddens me to read that in 2016 more than 770 registered child sex offenders travelled overseas from Australia, often without complying with their obligation to notify police of their travel to countries where the law enforcement framework is weaker than in Australia and their activities are not monitored.

One of the things that we take very seriously in Australia is the protection of Australian children. That is a view that is held is by both sides of this parliament and by Australian citizens. The innocence of youth must always be protected. It saddens me when we hear instances of that not happening in Australia, but we do have a very strong law enforcement regime to capture and prosecute people and ultimately to protect young Australians from the breakdown of innocence. But there are some people who seek to set step outside of Australia to access what they perceive as a more vulnerable target, and that is children in other parts of the world. It is imperative that we as a government hold the values that we hold for Australian children for other children in other parts of the world and say that we will not allow children in other parts of the world to be preyed on by people who seek to take away their innocence and exploit them for their own sexual gratification.

This is the chamber that tackles some of these big issues. This is the chamber that sends a signal to those sex offenders that not only will they not be allowed to abuse Australian children but they will not be given an opportunity to leave the country and partake in abuse of children in other parts of the world. The details of this bill are very sound. At any one time, there are up to 20,000 registered child sex offenders in Australia. The government is introducing legislation to prevent child sex offenders with reporting obligations from travelling overseas. There will be a new system in place, and I will run through some of the key points of that. Currently there is no legal authority to cancel or refuse to issue a passport solely on the basis that a person has been convicted of a child sexual offence. We intend to rectify that now.

Step 1 is that the state and territory registers record the details of child sex offenders with reporting responsibilities. When new offenders are convicted and entered into one of these registers, the state or territory will make a passport denial request to the Department of Foreign Affairs and Trade. If the offender has a passport, the Minister for Foreign Affairs will cancel any Australian passport that the person holds. The Department of Foreign Affairs and Trade will notify the offender. If the offender has no passport, the Department of Foreign Affairs and Trade will put an alert in its system which will flag if the offender applies for a passport, and the passport will be refused.

These measures will help to implement the obligation to protect the rights of vulnerable children. That is in line with our international obligations. It is really pleasing that I can speak on this legislation. In an ideal world, you would never have to think about something like this, but sadly this is not an ideal world; this is the real world. In the real world, governments—and I am pleased to see bipartisan support on this—need to take a strong stance to protect the innocence of youth, the innocence of children, both in Australia and overseas. I am happy to speak on this bill and to commend this bill.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

I firstly begin by acknowledging the efforts of the Minister for Foreign Affairs and the Minister for Justice on their work in the preparation of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017. I would also like to acknowledge the sensible bipartisan approach adopted by those opposite. We cannot protect children too much, not just Australian children but this problem of child sex exploitation knows no international boundaries. The exact figures on child sexual exploitation and child trafficking are almost impossible to accurately determine. UNICEF, interestingly, have identified that as many as two million children are exploited in the commercial sex trade around the world. There is a particular problem in relation to child exploitation in South-East Asia, where some of the world's most vulnerable and impoverished children are most at risk. For example, in Indonesia, though many young girls often overstate their age, it is estimated, once again by UNICEF, that some 30 per cent of female prostitutes are under the age of 18 years and some are as young as 10 years of age. An estimated 40,000 to 70,000 children in Indonesia are victims of sexual exploitation and an estimated 100,000 children are trafficked every year.

An International Labour Organization study in 2011 in Port Moresby was able to interview 175 child sex workers in less than eight weeks. Despite the hidden and illegal nature of that trade, they found children as young as 10 involved in commercial sex work. They found that all children consumed alcohol and that many had been raped or physically abused; 13 had been tested and found to be HIV positive and many had gone through pregnancies and abortions; 41 per cent had become sex workers before they were 15; and children were found to see as many as 10 clients a day. Many of those clients, sadly, come from this country and many of those clients are registered sex offenders.

Our current laws just simply are not keeping up to speed with the prevention of this vile, vile conduct. Who is this bill going to impact on? The bill will impact on registered offenders who have been convicted of a child sex offence and placed by a court on a state or territory register. Under state and territory laws, registered offenders have reporting obligations for between five and 15 years, depending on the seriousness of their offence. In the most egregious of cases, the obligations are for life. Their reporting obligations enable authorities to monitor and supervise these registered offenders. At any one time, there is up to 20,000 registered child sex offenders. Every year, some 2,500 new offenders are added to the registers, while slightly few than that complete their reporting obligations each year. This is a blight on our country that up until now these, mainly, men—it has to be said—travel overseas to take part in the exploitation of young children.

There have been more than 770 registered child sex offenders who have travelled from Australia overseas in 2016 alone, many of whom had violated an obligation under state or territory laws to notify police of their intended travel, many of whom had been recorded by police as being of a medium, high or very high risk of reoffending and who had been convicted of offences against children under 13 years of age. There is currently no legal authority to cancel or refuse to issue a passport solely on the basis that a person has been convicted of a child sex offence. Child sex offenders can be denied a passport while they are on parole, under section 12 of the Australian Passports Act. Since 1 January 2011 the Minister for Foreign Affairs has only received 63 requests to deny passports to child sex offenders. Clearly, the laws that we have in this country to date are simply not working. They are not protecting children overseas from this vile child sex trafficking and sex tourism.

The state and territory registers under the new system of passport denial will record the details of child sex offenders with reporting responsibilities. When new offenders are convicted and entered into one of these registers, the state or territory will make a passport denial request to DFAT. If the offender has a passport, the Minister for Foreign Affairs will cancel any Australian passport that the person holds and DFAT will notify the offender. But, if the offender has no passport, DFAT will put an alert in its system which will flag if the offender applies for a passport and the passport will be refused. Consistent with how the relevant section of the Australian Passports Act already operates, offenders will be unable to seek administrative review of these decisions. If and when the offender no longer has reporting responsibilities, the offender will be able to hold a passport in the usual way.

These are important reforms. They will protect children overseas from this sort of conduct, and I am very pleased there is a bipartisan approach to this bill. I congratulate the Minister of Justice and the Foreign Minister on their great work. I commend the bill to the House.

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

I thank all honourable members who have contributed to the debate on this Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017, which is a very important bill that will protect vulnerable children, particularly within our region, from being preyed upon by Australian paedophiles.

I would like to thank the members for Mallee and Fisher and the shadow Attorney-General who contributed to the debate. The bill reflects the seriousness with which this parliament needs to take offences against children, particularly the seriousness with which we need to take child sex tourism. They are tough measures. No country anywhere in the world will ever have done more to crack down on child sex tourism, as far as we are aware, once this bill passes the parliament. It will send the strongest possible message that the parliament will not tolerate children being abused. We will not tolerate such abhorrent crimes.

The risk posed to vulnerable children overseas by Australian child sex offenders is unacceptable. Currently, we do not have effective mechanisms to stop registered child sex offenders—offenders who appear on the national register that we have—from travelling overseas to prey on children who are often in countries that do not have the same robust approach to these offences as we do here in Australia. The reality is we are in a region where law enforcement agencies have different capabilities, where cultural practices are different and where, in some cases, the sorts of things that we would consider to be abhorrent crimes are not even criminalised. It is up to us to take the appropriate action to make sure that Australians are not participating as child sex tourists. Unless these tough new laws are passed, I think it is very clear that Australians will continue to travel overseas to commit such offences. This will make Australia a world leader in protecting vulnerable children overseas from child sex tourism. I do urge all members to support this legislation as a matter of urgency.

I just want to address some of the points that the shadow Attorney-General made. I appreciate that he made it clear that the opposition will be supporting this bill, and I thank him for that. I think that is very important. He did make some suggestions about the sorts of things that should be looked at in the Senate as possible avenues for amendment. If any of the suggestions that he has made are taken up, I can assure him that the effect of this bill will not work. If the suggestions that he made for amendments were to become reality in the Senate, we will not achieve what we are trying to achieve here. All of the things that he has suggested have been very extensively explored by the government when we crafted this legislation. With things such as a merits review, there was a specific reason why we did not include a merits review within this legislation. Of the five passport cancellations that the foreign minister made of convicted paedophiles in Australia, three of them were overturned through merits review. So 60 per cent of them were overturned through merits review. It is our expectation that if merits review were to be in this legislation, this legislation will not work.

Secondly, the shadow Attorney-General talked about scalability and dealing with less serious offenders. You only appear on the child offender register if you have committed serious offences. You only appear on that register if you have had a custodial sentence imposed on you of over one year. And you could appreciate in Australia that, if you have had a custodial sentence imposed on you for only one year for your crimes, you have done something pretty horrendous. So there is no such thing as someone who appears on the ANCOR who has only done something that is not serious. Everything that they have done is serious. That is why we have this register. The idea that maybe you only abused one child and that that is not particularly serious is not something that the government would remotely entertain. So I would urge members in the other place to take account of this if they were to look at making amendments to this. If they do make amendments, I fear that the whole intent of the legislation will be destroyed.

Finally, the shadow Attorney-General talked about ministerial discretion. Again, there were very specific reasons why the government chose not to go down this path when we crafted that legislation. There are 20,000 offenders that currently appear on the child offender register, and 2½ thousand are added every year. If we were to require the foreign minister to individually review all of those cases, it would literally be impossible for that minister to make a sensible judgement on all of these cases, and that workload would be completely impossible for DFAT to administer. Of the three suggestions the shadow Attorney-General has made, I urge the Labor Party to completely ignore the idea of amending this legislation based on any of those suggestions. I am not suggesting ill will on his part. But if he and the Labor Party were to go down this road, this legislation will not work. We will not be stopping the two Australian child sex offenders travelling overseas every single day.

Question agreed to.

Bill read a second time.