House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, the Hon Julie Bishop MP)

OUTLINE

The purpose of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Bill) is to prevent Australians listed on a State or Territory child sex offender register with reporting obligations (a reportable offender) 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.

Global studies such as the 2016 Sexual Exploitation of Children in Travel and Tourism have found that 'the sexual exploitation of children in travel and tourism has expanded across the globe and has outpaced every attempt to respond at the international and national level'.

Existing measures in Australia have proven insufficient to address the risk of overseas offending by Australian registered child sex offenders. In 2016, more than 770 reportable offenders travelled overseas, often without complying with obligations to notify police of their travel.

Commonwealth legislation currently provides that a child sex offender's passport may be refused, cancelled or surrendered on the basis of a competent authority's assessment of the offender's likelihood to cause harm. This process is resource intensive, being done on a case-by-case basis, and is subject to review by the Administrative Appeals Tribunal. As a result, States and Territories do not use these provisions at all. The measures in the Bill address these constraints to protect vulnerable overseas children.

The Bill will amend the Australian Passports Act 2005 (Passports Act), the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) and the Criminal Code Act 1995 (Criminal Code) to:

•

require the Minister for Foreign Affairs to deny a passport to a reportable offender when requested by a competent authority

-

all passport decisions by the Minister for Foreign Affairs will be mandatory and not subject to merits review.

•

create a new Commonwealth offence for reportable offenders to travel overseas, or attempt to travel overseas, without permission from a competent authority.

To deny a passport includes: refusing to issue a passport, cancelling a passport and ordering the surrender of a passport.

Financial impact statement

The measures in the Bill have been costed at $4.0m over four years, and have been provided for in the 2017-18 Budget. Ongoing funding of $0.13m from 2021-22 will be absorbed by the Department of Foreign Affairs and Trade.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Human rights implications

2. The human rights and freedoms which may be engaged by the measures in this Bill fall under the Convention on the Rights of the Child [1991] ATS 4 (CRC) and the International Covenant on Civil and Political Rights [1976] ATS 5 (ICCPR). Australia is a States Party to both the CRC and ICCPR. The measures in the Bill support and advance the Optional Protocol to the Convention on the Rights of the Child (OPSCSC) on the sale of children, child prostitution and child pornography, to which Australia is also a States Party.

3. The measures in the Bill promote the principles underpinning, and the fundamental rights and freedoms protected by, the CRC including:

•

the best interests of the child as a primary consideration (Article 3, CRC)

•

the right of the child to be protected from all forms of sexual exploitation and sexual abuse (Article 34, CRC)

•

the importance of international cooperation for improving the living conditions of children in development countries (Preamble to the CRC).

4. The measures in the Bill may engage the following ICCPR rights:

•

the right to freedom of movement (Article 12)

•

the right to a fair hearing in a suit of law (Article 14(1))

•

the right to a presumption of innocence (Article 14(2))

•

protection against double punishment (Article 14(7))

•

protection against retrospective punishment (Article 15(1))

•

protection against interference with the family (Article 17(1)).

The best interests of the child

5. Article 3 of the CRC provides that States Parties shall make the best interests of the child a primary consideration in all actions concerning children, including by courts of law, administrative authorities and legislative bodies. States Parties must ensure the child has such protection and care as is necessary for his or her well-being.

6. Consistent with the CRC, this Bill gives priority to the best interests of the child through amendments to the domestic legal framework applicable to reportable offenders. The legislation is intended specifically to protect vulnerable children overseas from sexual exploitation or sexual abuse by reportable offenders due to their ongoing risk to children.

7. While reportable offenders are in Australia they are monitored and subject to the robust legal framework Australia has for child sex offences. If allowed to travel overseas these offenders may evade their reporting obligations and supervision. There is a high risk of reportable offenders re-offending in countries where the legal framework is weaker, their activities are not monitored and child sexual exploitation is rampant.

Right of children to be protected from sexual exploitation and sexual abuse

8. Article 34 of the CRC provides that States Parties undertake to protect children from all forms of sexual exploitation and sexual abuse. In particular, States must take all appropriate national, bilateral and multilateral measures to prevent a child from engaging in any unlawful sexual activity. States are also required to protect children from exploitation, from prostitution or other unlawful sexual practices, and from their use in pornographic performances and materials.

9. The measures in the Bill will provide an effective means to sharply reduce the opportunity for reportable offenders to engage in the sexual exploitation and sexual abuse of children overseas.

10. Child sexual exploitation and abuse are predatory crimes, in which offenders prey on the most vulnerable in society. Through these measures Australia will take a leading role internationally to advance the rights of the child enshrined in the CRC and OPSCSC. These measures are a signal to Australians as well as to other countries that Australia is committed to protecting children around the world from sexual exploitation and abuse.

Right to freedom of movement

11. Article 12 of the ICCPR protects the right to freedom of movement. It provides that anyone lawfully in a State shall have the right to liberty of movement and that everyone shall be free to leave any country, including their own. According to General Comment 27 on Article 12 at [9], this right also includes the right to obtain the necessary travel documents, such as a passport. Under Article 12(3) this right may be limited where the limitation is provided by law and is necessary to protect, among other things, the rights and freedom of others.

12. According to General Comment 27 at [14], 'it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them'. Further, the measures must 'conform to the principle of proportionality; they must be appropriate to achieve their protective function ... and the least intrusive instrument amongst those which might achieve the desired result'.

13. The Bill provides for a new circumstance in which a person may be denied a passport: on the grounds that the person is a reportable offender. The denial of a passport includes: refusal to issue a passport; cancellation of an existing travel document; and the demand for surrender of a foreign travel document belonging to an Australian with dual citizenship. These provisions may engage the right to freedom of movement.

14. The ability to deny a person a passport in these circumstances is lawful and necessary to protect vulnerable children overseas.

15. The measure is proportionate and reasonable because it only captures those who have been convicted in a court of law for child sex offences and/or who have been placed by a court on a register with reporting obligations due to the seriousness of their offences and/or risk of reoffending. The passport measures will be legislated, are not arbitrary and will cease to take effect once the person's reporting obligations end. Further, if there are good reasons for making an exception, a competent authority will be able to permit a reportable offender to travel on a case by case basis.

16. Any limitation of the right to freedom of movement is no more than necessary to achieve a legitimate, lawful objective; to protect vulnerable children overseas from reportable offenders.

Right to a fair hearing in a suit of law

17. To the extent that an individual's right to seek administrative review of a decision might be seen to constitute a 'suit at law' such that it would be covered by Article 14 of the ICCPR, the amendment in subparagraph 48(c) may engage the right to a fair hearing in a suit at law.

18. The decision to cancel an Australian passport following a competent authority request on the grounds that a person is a reportable offender should not be subject to administrative review as the Minister's decision will be a mandatory decision. The Minister is required to deny a passport following a request by a competent authority, which has appropriate expertise and full understanding of the circumstances of the offender. Further the reportable offender may seek permission from the relevant competent authority to travel overseas.

19. The decision is still subject to judicial review.

20. In the unlikely event that a person has their passport refused or cancelled in error (e.g. they have the same name, date of birth and very similar facial features to a reportable offender) the person's cancelled passport would be reissued for the same validity free of charge or their refused passport application would be processed as normal.

21. Any limitation to the right to a fair hearing, to the extent that it applies to a right to seek administrative review of a decision, is reasonable and necessary to protect children overseas from sexual exploitation and sexual abuse from reportable offenders.

Right to a presumption of innocence

22. Article 14(2) of the ICCPR enshrines the right to be presumed innocent until proven guilty according to law. While no amendments in the Bill propose to reverse the presumption of innocence, the new offence for reportable offenders who travel overseas, or attempt to travel overseas, without permission imposes an evidential burden on a defendant who wishes to engage available defences including, permission to travel or suspension of reporting requirements, in order to deny criminal responsibility (subsection 13.3(3) and Part 2.3 of the Criminal Code refer).

23. To the extent that this evidential burden limits a person's right to be presumed innocent, the limitation is justified as the circumstances that must be proven are particularly within the knowledge of the person concerned and easily evidenced by a reportable offender. As a reportable offender must apply for, and be granted, permission to travel it is reasonable that the burden of proving that they had permission to travel overseas falls to the defendant. Similarly, as a reportable offender must apply to a relevant authority to have their reporting requirement suspended it is reasonable that the burden of proving that their reporting requirements have been suspended falls to the defendant.

24. The rights of the defendant are otherwise not affected by these amendments and it is clearly more practical for the defendant to prove that they satisfy the requirements of the defences.

25. As a result, to the extent that the new offence in the Bill limits a person's right to a presumption of innocence those limitations are reasonable, necessary and proportionate.

Protection against double punishment and Protection against retrospective punishment

26. Article 14(7) of the ICCPR provides that no one shall be liable to be tried or punished again for an offence for which they have already been convicted. Article 15 of the ICCPR provides that a heavier penalty shall not be imposed than the one which was applicable at the time when the particular criminal offence was committed.

27. To the extent that the measures in the Bill impose a new restriction on reportable offenders-by preventing them from travelling overseas on the basis of their registration on a State or Territory child sex offender register with reporting obligations-these rights may be engaged.

28. The measures in the Bill are consistent with the reporting obligations as they are not penal in nature and support the existing requirement for reportable offenders to report their intention to travel overseas to a competent authority.

29. The measures attach a civil consequence (the loss of the ability to travel overseas) to individuals who have been proven to have engaged in particular criminal conduct. The civil consequences are necessary to protect vulnerable children overseas, because the existing requirements imposed on the individual are insufficient to effectively ensure the individual cannot cause further harm to children overseas.

30. The measures are proportionate and reasonable because they only capture those who have been convicted in a court of law for child sex offences and/or who have been placed by a court on a State or Territory child sex offender register with reporting obligations due to the seriousness of their offences and/or risk of reoffending. The measures will be legislated, are not arbitrary and will cease to take effect once the reporting obligations end. Further, if there are good reasons for making an exception, a competent authority will be able to permit a reportable offender to travel.

Protection against arbitrary interference with the family

31. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their family.

32. To the extent that a reportable offender may have other family members residing overseas, the measures in this Bill may engage this right. This right is accommodated by the ability of reportable offenders to seek the permission of the relevant competent authority to travel. In circumstances where they are not deemed a risk to those family members, a competent authority will be able to permit a reportable offender to travel overseas, providing the risks to children overseas can be appropriately addressed. As such, the measures are proportionate, reasonable and necessary to protect vulnerable children overseas.

Conclusion

33. This Bill is compatible with human rights as it promotes and advances human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to protect the most vulnerable in the world-children at risk of sexual exploitation or sexual abuse.

Notes on Clauses

Part 1 - Preliminary

Clause 1 - Short Title

1. Clause 1 is a formal provision specifying the short title of the Bill which, when enacted, is to be cited as the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Act).

Clause 2 - Commencement

2. Clause 2 provides that the provisions in Schedule 1 of the Bill will commence on a day or days to be fixed by Proclamation, within six months of the Act receiving the Royal Assent.

Clause 3 - Schedules

3. Clause 3 provides that legislation specified in a Schedule to the Act is to be amended or repealed as set out in the applicable items in the Schedule concerned, and stipulates that any other item in a Schedule to the Act has effect according to its terms.

Schedule 1 - Amendments

Australian Passports Act 2005

Item 1 - After Subsection 12(1)

1. Item 1 inserts a new law enforcement ground for a competent authority to request that the Minister refuse to issue a passport, or to cancel an Australian travel document, because the person is an Australian citizen and a 'reportable offender'. This will become new subsection 12(1A). A reportable offender is defined in subsection 12(3), item 4 refers.

2. This amendment is intended to prevent Australians registered on a State or Territory child sex offender register with reporting obligations (reportable offender) from travelling overseas to engage in child sex tourism by denying them an Australian travel document to facilitate their travel. For the purposes of the Passports Act, denying an Australian travel document includes: refusing to issue an Australian passport; or cancelling an existing Australian travel document.

3. According to data from the Australian Federal Police, more than 770 Australian registered child sex offenders travelled overseas in 2016. At least 50 per cent had been recorded by State or Territory police as being part of a cohort of medium-high risk offenders, based on offence type. For 37 per cent of those trips, the offender had violated an obligation under State or Territory laws to notify police of their intended travel.

4. Currently, under existing laws, a failure to report intended overseas travel or to comply with other obligations can result in up to two years' imprisonment. However, the penalties handed down by the courts are generally warnings or small fines which provide little incentive to comply.

5. An existing offence of preparing for or planning a child sex tourism offence contained in section 272.20 of the Criminal Code has proven ineffective. In part this is due to the fact that ascertaining evidence overseas of such crimes can be difficult, particularly in countries where the legal framework is not as robust as Australia, where offenders can easily avoid detection and arrest.

6. The amendment will not amount to a permanent travel ban for persons who are listed on a relevant child sex offender register. Child sex offenders who are listed on such a register will only be subject to passport restrictions for the period that they are subject to reporting obligations under the register. Further, if there are good reasons for making an exception, a competent authority will be able to permit a reportable offender to travel on a case by case basis.

Item 2 - Subsection 12(2)

7. Item 2 provides that subsection 12(2) also applies to a request made under new subsection 12(1A). Subsection 12(2) provides that the Minister must not issue an Australian passport but may issue a travel-related document to a person following a competent authority request.

8. The discretion to issue a travel-related document to a person who has been denied a passport under subsection 12(2) is used only if necessary, for example where the person is overseas at the time their passport is cancelled to enable them to return to Australia.

9. Further, if there are good reasons for making an exception, a competent authority will be able to withdraw or amend their competent authority request in relation to the reportable offender to enable the issue of an Australian travel document. An example of a good reason is where a reportable offender wishes to travel overseas to visit a dying family member. Any travel document issued in these circumstances would be issued in accordance with advice from the relevant competent authority.

10. It is appropriate that the competent authority makes these decisions as they have the expertise and background knowledge of the offender to best assess the offender's risk and circumstances for overseas travel.

Item 3 - Subsection 12(3) (definition of competent authority)

11. Item 3 provides that the definition of competent authority in subsection 12(3) also applies to new subsection 12(1A).

12. A competent authority is defined as a person who has responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister's determination as not being a competent authority in relation to the circumstance); or a person specified in a Minister's determination as a competent authority in relation to the circumstance.

13. In the context of new subsection 12(1A), a competent authority will generally be the relevant State or Territory authority, namely a State and/or Territory's court, sex offender registry, or police.

Item 4 - Subsection 12(3)

14. Item 4 defines 'reportable offender' for the purposes of new subsection 12(1A).

15. A 'reportable offender' is a person who is listed on a State or Territory child sex offender register and who has reporting obligations. The registers are provided for under State and Territory laws and can include various reporting obligations for registered offenders for a period of time ranging from five years to life (depending on the seriousness of the offending).

16. Registered offenders with reporting obligations are required to inform police of their whereabouts and other personal details, including any intended overseas travel. Offenders may remain on registers without reporting obligations, but the measures in this Bill are only intended to capture offenders with current reporting obligations.

17. Australians convicted of a child sex offence by a foreign country may be listed as a registered child sex offender under Commonwealth, State or Territory laws if they and their conviction become known to the relevant authorities.

18. As noted above, these measures will only apply for the period that an offender is subject to reporting obligations under the relevant register. Further, if a competent authority deems that a reportable offender's circumstances justify them to travel overseas, the competent authority can amend their competent authority request to permit the issue of an Australian travel document.

Item 5 - Subsection 18(1)

19. Item 5 provides that subsection 18(1) also applies to new subsection 12(1A).

20. Subsection 18(1) provides that a competent authority request made under subsection 12(1) includes a request that the Minister: refuse to issue an Australian travel document to a person; and/or cancel an Australian travel document, that has been issued to the person. These actions work together to ensure a person is denied a passport.

Item 6 - Paragraph 18(2)(c)

21. Item 6 amends paragraph 18(2)(c) to exclude a request made under new subsection 12(1A) because the intention is that the new passport measures will only apply to Australian citizens. This amendment is necessary because paragraph 18(2)(c) currently provides that a competent authority request shall apply to all persons whether or not they are an Australian citizen.

Item 7 - Subsection 22(1)

22. Item 7 amends subsection 22(1) to provide that the discretionary power to cancel travel documents is subject to the mandatory power to cancel passports following a competent authority request under subsection 12(1A) in new section 22AA (item 8 refers).

Item 8 - After section 22

23. Item 8 inserts a new section 22AA to provide that the Minister must cancel an Australian passport following a competent authority request under new subsection 12(1A), consistent with the decision to refuse to issue a passport under subsection 12(2).

24. As noted in item 2, subsection 12(2) provides the Minister with discretion to issue an Australian travel-related document to a person whose passport has been refused or cancelled following a competent authority request under subsection 12(1A). As such, a decision to cancel a travel-related document must remain discretionary under section 22.

Item 9 - Paragraph 48(c)

25. Item 9 amends paragraph 48(c) to provide that a decision to cancel a passport under new section 22AA is not reviewable. This is consistent with paragraph 48(b) which provides that a decision to refuse to issue a passport under subsection 12(2) is not reviewable.

26. Decisions made following a competent authority request under subsection 12(1A) are not reviewable because the Minister's decision is mandatory and is made in accordance with a request by a competent authority. The competent authority has the expertise and full understanding of the circumstances of the offender to make the request. Further the offender may still seek permission from the relevant competent authority to travel overseas.

27. In the unlikely event that a person has their passport refused or cancelled in error (e.g. they have the same name, date of birth and very similar facial features to a reportable offender) the person's cancelled passport would be reissued for the same validity free of charge or their refused passport application would be processed as normal.

28. The decision is still subject to judicial review.

Item 10 - Paragraph 48(e)

29. Item 10 amends paragraph 48(e) to exclude from merits review a decision to demand the surrender of a travel document cancelled following a cancellation request under new subsection 12(1A). This is consistent with all competent authority cancellation requests.

30. A decision to demand the surrender of an Australian travel document cancelled in response to a competent authority request is not reviewable because the decision to demand the surrender of the document is a procedural decision.

Item 11 - After paragraph 51(1)(c)

31. Item 11 inserts a new paragraph 51(1)(caa) to provide that a decision to refuse to issue an Australian passport under new subsection 12(1A) is a delegable decision.

32. Currently decisions under section 12 are not delegable. Around 1715 competent authority requests are made each year under section 12. Following the introduction of the new subsection 12(1A), this number will rise substantially to capture the existing 20,000 registered child sex offenders and additional 2,500 offenders added to the registers each year. It may be unworkable for the Minister to personally manage this volume of competent authority requests. As such, this provision provides scope for the Minister to delegate this mandatory decision. If delegated, the intention is that the delegation would be limited to senior officials.

Item 12 - After paragraph 51(1)(d)

33. Item 12 inserts a new paragraph 51(1)(da) to provide that a decision to cancel an Australian travel document under new subsection 12(1A) is a delegable decision.

34. For the same reasons given above in item 11, it may be unworkable for the Minister to personally manage the volume of competent authority requests anticipated under new subsection 12(1A). As such, this provision provides scope for the Minister to delegate this mandatory decision. Similarly, if delegated, the intention is that the delegation would be limited to senior officials.

Criminal Code Act 1995

Item 13 - After Division 271 of the Criminal Code

35. Item 13 inserts a new offence at subsection 271A.1(1) of the Criminal Code which applies to an Australian registered child sex offender with reporting obligations who travels overseas without prior permission from the relevant competent authority, as defined in section 12 of the Passports Act. This offence is punishable by imprisonment for 5 years and/or 300 penalty units (see subsection 4B(2) of the Crimes Act 1914).

36. Absolute liability has been specifically applied to paragraph 271A.1(1)(a) (see subsection 271A.1(2)). This means that it will not be necessary for the prosecution to prove a fault element in relation to that particular physical element, and that the defence of mistake of fact will not be available to the defence.

37. Absolute liability is appropriate as the state of mind of the defendant is not relevant to whether or not they are an Australian citizen and does not have any bearing on the gravity of the offence. Rather, paragraph 271A.1(1)(a) acts as a jurisdictional element of the offence-the offence only applies to Australian citizens-which is an element that does not relate to the substance of the offence. This is consistent with Commonwealth criminal law policy which is detailed in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

38. A reportable offender will not have committed an offence if they have permission to travel from a competent authority or if their reporting requirements have been suspended.

39. Reportable offenders are made aware of their reporting requirements at the time of sentencing, when their name is placed on the register, and again when they are released and required to report to police. Reportable offenders are aware of their reporting requirements, including in relation to international travel and hence would be aware that travelling without permission would be an offence.

40. Part 2.4 of the Criminal Code outlines extensions of criminal responsibility which apply generally to all Commonwealth offences unless otherwise specified, including Division 11 which criminalises attempts to commit Commonwealth offences. Subsection 11.1(1) of the Criminal Code applies to this offence so that an offender who attempts to travel overseas without permission is punishable as if they had actually committed the offence of travelling overseas under subsection 271A.1(1).

41. It should be noted that, under paragraph 11.1(4)(a) a person may be found guilty of attempting to travel overseas even if travelling overseas is impossible, meaning that a person may attract the application of the offence even if they do not have a valid passport or a ticket in their known identity in their possession.

42. Whether a person is attempting to leave Australia will be determined on a case by case basis, however examples of evidence sufficient to evidence an attempt to travel overseas include (but are not limited to) where a reportable offender:

•

buys a ticket or organises accommodation for themselves at an international destination; or

•

attends a place of international departure with a ticket or travel documents to an international destination (whether or not they have a valid passport in their possession and whether or not the ticket is in their known identity).

43. The new offence places an evidential burden on a defendant who wishes to deny criminal responsibility on the grounds of particular circumstances (subsection 13.3(3) and Part 2.3 of the Criminal Code refer). For example, if a reportable offender is at an international airport with a ticket to an overseas destination, it is reasonable that the burden of proving that set of circumstances falls to the defendant, such as:

•

they have permission to travel; or

•

their reporting requirements have been suspended.

44. This information will be within the knowledge of, and easily evidenced by, a registered child sex offender. As such, it is appropriate that the evidential burden of proof is placed on the defendant as the circumstances that must be proven are particularly within the knowledge of the person concerned.

Foreign Passports (Law Enforcement and Security) Act 2005

Item 14 - After Subsection 13(1)

45. Item 14 inserts a new law enforcement ground for a competent authority to request the Minister to order the surrender of a foreign travel document because the person is an Australian citizen and a 'reportable offender'. This will become new subsection 13(1A). A 'reportable offender' is defined in subsection 13(2), item 16 refers.

46. This amendment is intended to prevent Australian dual nationals from travelling overseas using a foreign travel document to sexually exploit or sexually abuse vulnerable children in overseas countries.

47. As noted above, these measures will only apply for the period that an offender is subject to reporting obligations under the relevant register and discretion exists to issue a travel-related document to the offender in the circumstances set out in item 2.

48. The amendment will not apply to foreign nationals because under the Migration Act 1958 any non-citizen who has had a charge proven for, or has been found guilty of, a sex crime against a child is subject to mandatory or discretionary visa cancellation and will be liable for removal from Australia.

Item 15 - Subsection 13(2) (definition of competent authority)

49. Item 15 provides that the definition of competent authority in subsection 13(2) also applies to new subsection 13(1A).

50. The definition of a competent authority is the same as the definition provided in subsection 12(3) of the Passports Act (item 3 refers).

51. Similarly, in the context of new subsection 13(1A), a competent authority will generally be the relevant State or Territory authority, namely a State and Territory court, sex offender registry, or police.

Item 16 - Subsection 13(2)

52. Item 16 defines 'reportable offender' for the purposes of new subsection 13(1A) consistent with the definition in the Passports Act (item 4 refers).

Item 17 - Subsection 16(1)

53. Item 17 excludes a request made under new subsection 13(1A) from the Minister's discretionary power to order the surrender of a person's foreign travel documents following a competent authority request as the power will be made mandatory under item 18.

Item 18 - After subsection 16(1)

54. Item 18 inserts new subsection 16(1A) to provide that the Minister must order the surrender of a foreign travel document following a competent authority request made under new subsection 13(1A), instead of the discretionary provision in subsection 16(1). This is consistent with the mandatory decisions to refuse or cancel an Australian passport in the Passports Act following a competent authority request in relation to a reportable offender.

55. Discretion exists under the Passports Act to issue a travel-related document to a reportable offender who has been denied a passport under subsection 13(1A) of the Foreign Passports Act in the circumstances set out in item 2.

Item 19 - Subsection 16(2)

56. Item 19 amends subsection 16(2) so that it also applies to an order made under new subsection 16(1A).

57. Subsection 16(2) provides that an enforcement officer may demand that a person surrender their foreign travel documents following an order made by the Minister under subsections 16(1) and 16(1A).

Item 20 - Subsection 23(1)

58. Item 20 excludes from merits review a decision made under new subsection 16(1A). This is consistent with decisions to refuse or cancel an Australian passport under new subsection 12(1A) in the Passports Act.

Item 21 - Subsection 23A(1)

59. Item 21 provides that the Minister's ability to delegate to an SES employee her power to make an order under subsection 16(1) also applies to her power to make an order under new subsection 16(1A).

Item 22 - Application of amendments

60. Item 22 provides that the provisions in this Bill apply: to a reportable offender whether the person became a reportable offender before or after the provisions commence; and to a travel document whether it was issued before or after the provisions commence.