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Proposed travel restrictions for registered child sex offenders

In November 2016, the Minister for Foreign Affairs, Julie Bishop and the Minister for Justice, Michael Keenan announced that the Government would develop measures to stop child sex offenders from travelling overseas to commit acts against vulnerable children. The Ministers noted that they would work with Senator Hinch in developing the legislation. Australia would be the first country in the world to restrict the movement of child sex offenders by withholding their passports.

The Government introduced the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 on 14 June 2017 and the Bill is expected to pass both Houses of Parliament by the end of the Winter sittings.

In introducing the Bill, Minister Bishop said that the concern about Australian child sex offenders travelling overseas to sexually abuse vulnerable children in countries is justified, particularly where the law enforcement framework is weaker and the person’s activities are not monitored.

The Bill will prevent registered child sex offenders with reporting obligations from travelling overseas by denying offenders a passport; and making it an offence for offenders to travel, or attempt to travel, without permission from authorities. The maximum penalty for the new offence will be five years imprisonment.

The legislation will allow exceptions, for some business or family travel. Minister Bishop said offenders with time-limited reporting obligations could apply to a state or territory authority if they had a legitimate reason to travel overseas, and that the relevant state or territory authority could provide advice about whether the travel should proceed.

Each jurisdiction has its own sex offender register requiring, by legislation, certain sexual offenders to keep police informed of their whereabouts and other personal details for a period of time, to reduce the likelihood of reoffending and facilitate the investigation of future offences they may commit. Other purposes of the registers are to prohibit certain offenders from working in child-related employment and to enable courts to make orders prohibiting certain offenders from engaging in specified conduct. The Australian National Child Offender Register (ANCOR) is an application used by all Australian police to record and share child offender information. It directly enables police in each state and territory to register, case manage and share information about registered persons.

The number of offenders on the register is not publicly available and it is difficult to estimate how many offenders will be affected by this legislation.  Some figures from jurisdictions’ police authorities are recorded in annual reports. For example, reported figures from ACT Policing show at June 2017, there are more than 150 people in the ACT on the register.

Senator Hinch has stated that the measures in the Bill are said to apply to approximately 20,000 registered child sex offenders with reporting obligations in Australia. Registered offenders with reporting obligations are required to inform police of their whereabouts and other personal details, including any overseas travel. Once their reporting obligations have concluded the offender will be able to apply for a passport. That is, this is not a permanent travel ban for a person who is listed on a relevant child sex offender register.

The Bill will amend the Australian Passports Act 2005 with the insertion of proposed subsection 12(1A) which will allow a ‘competent authority’ (defined in section 12 of the Act,  including the courts and police) to make a passport refusal/cancellation request in relation to a person who is an Australian citizen and a reportable offender. A new definition of reportable offender will be inserted into subsection 12(3) by item 4 of the Bill and will cover a person whose name is entered on a child protection offender register of a state or territory; and who has reporting obligations in connection with that entry on the register.

The Bill will create a new offence in the Criminal Code Act 1995 under new Division 271A – Overseas travel by certain registered offenders. The offence will apply to a person who leaves Australia, and is an Australian citizen whose name is entered on a child protection register of a state or territory and that person has associated reporting obligations. Section 11.1(1) of the Criminal Code applies to this offence so that an offender who attempts to travel overseas is punishable as if they had actually committed the offence of travelling overseas under proposed subsection 271A.1(1).  Proposed subsection 271A.1(3) explains that the offence does not apply if the person has been given permission by a competent authority to leave Australia or the reporting obligations of the person are suspended at the time they leave Australia.

The Bill has attracted attention overseas, with one American civil rights advocate calling the Bill (and existing United States law) unfair, ill-informed and ineffective. The United States requires the government to notify countries of international travel by registered sex offenders and adds unique identifiers to their passports.