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Australia: Legislation Enacted Preventing Child Sex Offenders from Traveling Overseas

(June 29, 2017) On June 26, 2017, the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) received royal assent, following its passage by the Australian Parliament on June 20, 2017. (Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth), Federal Register of Legislation website; Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited June 28, 2017).)

The amendments in the Act allow a competent government authority to request that the Minister of Foreign Affairs and Trade refuse to issue, cancel, or order the surrender of a person’s Australian passport if that person’s name is entered on a child protection offender register of an Australian state or territory and has reporting obligations in connection with that entry; these persons are referred to as  “reportable offenders.” (Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) sch 1 items 1-12, amending Australian Passports Act 2005 (Cth) & items 14-21, amending Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), both Federal Register of Legislation website).) In addition, such reportable offenders who leave Australia without permission from a competent authority can now be charged with a federal offense entailing a term of imprisonment of five years. (Id. sch 1 item 13, amending Criminal Code Act 1995 (Cth), Federal Register of Legislation website.) ”Competent authority” includes state and territory law enforcement agencies. (Australian Passports Act 2005 (Cth) s 12(3) & Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 13(2).)

The Explanatory Memorandum that accompanied the bill states that the purpose of the amendments is to prevent reportable offenders ”from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where the law enforcement framework is weaker and their activities are not monitored.” (Explanatory Memorandum, Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Cth) 2, Parliament of Australia website.) It further states that existing measures have “proven insufficient to address the risk of overseas offending by Australian registered child sex offenders” and that, in 2016, “more than 770 reportable offenders travelled overseas, often without complying with obligations to notify police of their travel.” (Id.)

Under the previous provisions, a government authority could only recommend that a child sex offender’s passport be refused, cancelled, or surrendered if he or she was assessed as being likely to cause harm, and such a finding was subject to review by the Administrative Appeals Tribunal. (Id.) The new provisions in the Act require that the Minister deny a passport to a reportable offender when requested by a competent authority, and such denials are mandatory and not subject to merits review. (Id.)

In announcing the introduction of the bill in May 2017, the Minister for Justice, Michael Keenan, said that

this is the strongest crackdown on child sex tourism ever. No country has ever taken such decisive and strong action to stop its citizens from going overseas, often to vulnerable countries, to abuse kids, so this is absolutely a world first. We know that we’ll be denying passports to around 20,000 people who currently have reporting obligations under the ANCOR [Australian National Child Offender Register] and about 2500 people will be added every year and we will continue to deny them passports whilst they have those reporting obligations. (Transcript, Joint Press Conference, Julie Bishop & Michael Keenan, Parliament House, Canberra (May 30, 2017), Minister for Foreign Affairs website.)

The Australian child protection offender reporting scheme was established by legislation enacted in each state and territory. It “requires child sex offenders, and other defined categories of serious offenders against children, to keep police informed of their whereabouts and other personal details for a period of time after they are released into the community.” (National Child Offender System, AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION (last updated June 5, 2017).) The ANCOR “allows authorised police officers to register, case manage and share information about registered persons.” (Id.) The individual state and territory legislation sets out the registrable offenses and the reporting obligations of registered offenders in each jurisdiction. (Offender Registration Legislation in Each Australian State and Territory, AUSTRALIAN INSTITUTE OF FAMILY STUDIES (last updated June 2013).)