Travel Permissions on the Sex Offender Register

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Ella TrickeyKate Da CostaThe article Travel Permissions on the Sex Offender Register is written by Kate Da Costa and Ella Trickey of Doogue + George Defence Lawyers.

Kate is a Partner at Doogue + George and is based in the western suburbs at our Sunshine office. She is currently the President of the Western Suburbs Law Association and is also a member of the Criminal Law Section of the Law Institute of Victoria. Kate is particularly experienced in helping clients with applications to suspend reporting obligations under the Sex Offender Registration Act.

Ella is also one of our lawyers based at our Sunshine office. She was previously a Judge’s associate in the Criminal Division of the Supreme Court of Victoria and has also completed a professional placement at the Coroners Court of Victoria. Ella regularly appears at the Sunshine Magistrates’ Court as well as other courts across Melbourne to represent clients, helping them navigate the criminal justice system with practical, sound legal advice.

Person Who has Obtained Travel Permissions on the Sex Offender RegisterDivision 271A.1 of the Criminal Code Act 1995 (Cth) makes it a criminal offence for an Australian Citizen with reporting obligations in connection to any State or Territory Sex Offender Register to leave Australia without the permission of a ‘competent authority’ (i.e. the Chief Commissioner of Police).

This offence is punishable by 5 years imprisonment. Our firm has extensive experience in assisting registrable offenders to apply for permission to travel.

Applications Process and Considerations

You can submit an application for travel permission to the Chief Commissioner of Police, and our legal team can help you to put together a thorough application to maximize your chances of success. When preparing your application, we ensure that it addresses all relevant considerations specific to your circumstances.

In deciding whether or not to grant the approval for travel, the Chief Commissioner has a broad discretion. The legislation does not specify any expressed criteria on the power to permit a person to travel. Courts have found that ‘the issue of whether permission is appropriate requires a case-by-case assessment, taking account of the particular risk presented by the person wishing to travel and the nature and circumstances of their travel.’1

Relevant Factors for Decision-Making

Relevant factors typically include:

  • the applicant’s past offending
  • reporting history whilst on the Register
  • current level of risk of reoffending
  • the level of legal protection afforded to children in the destination country
  • the reason for travel
  • the applicant’s ties to Australia and any other matters bearing on their risk of flight

Options if Application is Refused

If your application for travel permissions on the Sex Offender Register is refused, the decision-maker must provide written reasons for their decision upon request. Our lawyers can review these reasons and advise you on available options. You may first seek an internal review from the Chief Commissioner of Police before pursuing judicial review.

Internal Review Process

Following an internal review, the decision may be upheld, modified, or overturned based on its merits. Our legal team can assist in preparing submissions and compiling relevant material to enhance your chances during the internal review process.

Judicial Review Proceedings

If dissatisfied with the outcome of an internal review, you may seek judicial review from the Federal Court. This involves demonstrating serious errors in the decision-making process, such as considering irrelevant material or failing to address relevant considerations.

It is important to note that even if you are successful on the application for judicial review, the court does not make the travel decision itself. Instead, the court assesses the legality and procedural fairness of the administrative decision-making process.

If the court identifies serious legal errors or procedural irregularities, it may set aside the original decision or remit the matter back to the decision-maker for reconsideration, sometimes providing specific directions or guidance on how the decision should be made.

Our firm recently applied for judicial review of a decision to reject an application for permission to travel on the basis that the decision-maker cited in his reasons for the refusal that the applicant was required to show a ‘compelling reason’ for travel. We argued against this requirement, highlighting its absence in the statute and the inconsistency with legislative intent.

Ultimately, through the judicial review process, we were able to ensure that the ‘compelling reasons’ test is no longer applied to travel applications.

Alternatives to Travel Permission

Suspending reporting obligations

An alternative to seeking permission to travel is applying to suspend your reporting obligations. If granted, this means you won’t be required police permission for travel purposes.

Eligibility for suspending reporting obligations varies depending on specific circumstances. Our firm can provide tailored advice to determine if you qualify for this option.

We have a proven track record of securing temporary and lifelong suspensions of reporting obligations for our clients.

Will Obtaining Permission Automatically Guarantee Overseas Travel?

It’s important to understand that obtaining travel permissions on the Sex Offender Register doesn’t guarantee a smooth experience overseas. While individuals listed on the SOR may receive travel permission from Australian authorities, they could still face challenges upon arrival if foreign officials choose to deny entry.

Even if your reporting obligations are suspended, in our experience destination countries are notified of impending arrivals and your criminal history could be flagged, potentially leading to denial at the border.

While our firm has successfully assisted clients with obtaining travel permissions and suspending reporting obligations, it’s essential to recognise that this process involves hard work and carries no guarantees. We pride ourselves on offering realistic and honest advice to help you achieve your desired outcome.

[1] Zaharis v Commissioner of Police (SA) 2018 SASR 576 at [95]
Date Published: 13 March 2024

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