Lang and Minister for Foreign Affairs [2011] AATA 279 (29 April 2011)

Last Updated: 29 April 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 279

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3192

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KENNETH LANG

Applicant

And

MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 29 April 2011

Place Brisbane (Heard in Darwin & Brisbane)

Decision

The decision under review is set aside and a decision substituted that the applicant not be refused a passport.

.....................[Sgd].........................
Deputy President

CATCHWORDS

CITIZENSHIP & MIGRATION – passports – power to refuse to issue - decision set aside

WORDS AND PHRASES – “likely”

Australian Passports Act 2005 (Cth) ss 3, 7, 14, 22

Human Rights (Sexual Conduct) Act 1994 (Cth) s 4

International Covenant on Civil and Political Rights, Article 17

Butera v Director of Public Prosecutions for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180

Habib v Director–General of Security [2009] FCAFC 48; (2009) 175 FCR 411

McDermott v The King (1948) 76 CLR 501

R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159

Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244; (2007) 45 AAR 149

REASONS FOR DECISION

29 April 2011

Deputy President P E Hack SC

INTRODUCTION

1. Mr Kenneth Lang is an Australian citizen. On 2 June 2009 the Minister for Foreign Affairs made a decision, under s 14(2) of the Australian Passports Act 2005 (Cth), to refuse to issue Mr Lang an Australian passport.
2. In these proceedings Mr Lang seeks a review of that decision.

BACKGROUND

3. I propose to first set out some uncontroversial background. Mr Lang is now aged 72. In July 1992 he pleaded guilty in the County Court at Melbourne to three offences described as sexual penetration of a female child aged between 10 years and 16 years. He was sentenced to imprisonment for an aggregate term of 2½ years. The sentence was reduced on appeal to one of 18 months, of which 12 months were suspended. The offences were committed in October 1991 when Mr Lang was aged 53. The victim was the ten year old daughter of Mr Lang’s de facto spouse. There is controversy, dealt with below, about the facts constituting the offences.
4. In November 2006 Mr Lang was living in Port Douglas aboard his yacht the MV Screemer. He was single. He says that he read, and responded to, an advertisement in a local newspaper seeking sexual partners and met a woman (who I will call Shannon) and her boyfriend “Mick” in a hotel in Cairns. There was discussion about sexual experimentation and, according to Mr Lang, Shannon told him that her sexual fantasy was to have sex with a 15 year old boy. Mr Lang returned to Port Douglas.
5. Some days later Shannon contacted Mr Lang to tell him that she had split up with Mick. Mr Lang was about to go to Thailand where he planned to take part, as a crew member, in yacht racing, including the King’s Cup Regatta in Phuket. Within a day or two of his arrival there Shannon again contacted him and said, according to Mr Lang, something along the lines of “I guess you’re knee deep in young stuff up there”. Mr Lang says that he regarded this as a continuation of Shannon’s earlier conversation about her sexual fantasy. Discussions between Mr Lang and Shannon of explicit sexual matters continued by way of text messages exchanged between their mobile telephones. Over the next few days from 6 December 2006 to 13 December 2006 Mr Lang sent at least five text messages. It is unnecessary to set out their content; it will suffice to say that they contain explicit and lurid descriptions of Mr Lang having engaged in sexual relations with both male and female children.
6. One of the contested issues in the case is whether, as some members of the Australian Federal Police (the AFP) believe, the events described in the text messages took place or whether, as Mr Lang says, these messages were simply fantasies concocted by him for the sexual gratification of Shannon and in response to her messages to him. In any event it would seem that Shannon reported the text messages to the Queensland Police who, in turn, made contact with officers of the AFP. An operation, code-named “PONTIA” was set up to investigate the matter and, in particular, to ascertain whether, as appeared from the text messages, Mr Lang had engaged in the acts described. Initially, Federal Agent Donna Hofmeier who was, at that time, a team leader in the AFP’s Transnational Sexual Exploitation & Trafficking Team based in Canberra, was put in charge of Operation PONTIA.
7. Mr Lang returned to Australia in late December 2006 and continued living in Port Douglas. Unbeknown to him the AFP had commenced an undercover operation to investigate what appeared to be serious breaches of the statute law of the Commonwealth. An undercover operative, described only as “Anthony”[1] for the purposes of these proceedings, went to Port Douglas. For the purposes of Operation PONTIA Anthony adopted the persona of a professional man who had been in unsuccessful relationships because he had underlying urges to have sex with boys under the age of consent. One of the objectives of the undercover operation is said to have been to ascertain whether contact with Mr Lang would lead to an invitation to travel to Thailand and an introduction to relevant contacts in Thailand. Anthony initially made contact with Mr Lang when Mr Lang, in the course of his employment, came to clean the room in which Anthony was staying at a backpacker’s resort in Port Douglas. There were eight meetings between Mr Lang and Anthony between 24 June 2007 and 9 July 2007. I have digital recordings of each of these meetings together with transcripts. Mr Lang’s case was put on the footing that I ought not admit the evidence of Anthony nor the recordings but that if I did, the matters relied on by the Minister in those recordings were, again, examples of Mr Lang playing up to the sexual fantasies of another, in this case Anthony.
8. Mr Lang was arrested in Cairns in July 2007 as he was on his way to Thailand. The text messages he had sent to Shannon led to his being charged with five offences of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Criminal Code 1995 (Cth) and two of using a carriage service to transmit child abuse material contrary to s 474.22(1)(a)(iii) of the Code. He pleaded guilty to these offences before Bradley DCJ in the District Court at Cairns on 9 July 2008. As her Honour’s sentencing remarks make clear, Mr Lang was sentenced on the basis that the messages were “pure fantasy and pure fiction”[2] because that was the basis of the prosecution case against him. Her Honour accepted that Shannon initiated the messages and that Mr Lang was responding to her. Her Honour described Shannon as having “been equally as culpable”.[3] Mr Lang was sentenced to imprisonment for 12 months but released after having served 129 days, that being the period he had been in custody prior to release on bail, together with a good behaviour bond for a period of three years.
9. In the meantime, on 19 September 2007, the AFP made a request of the then Minister for Foreign Affairs to cancel Mr Lang’s passport and to refuse to issue a passport to him. On 2 October 2007 the Minister acceded to that request and cancelled Mr Lang’s passport under s 22 of the Australian Passports Act. The Minister is recorded as having “noted” the request to refuse to issue a subsequent passport to Mr Lang.
10. On or about 1 May 2009 Mr Lang lodged an application for the issue of an Australian passport. That application was refused by the Minister on 2 June 2009 on the basis that a competent authority (the AFP) had made a refusal request in accordance with s 14 of the Act. The present application was then made.

THE AUSTRALIAN PASSPORTS ACT

11. The principal object of the Act is set out in s 3 of the Act in these terms,

“The principal object of this Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.”

By virtue of s 7 of the Act an Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister, however that right is subject to the right of the Minister, set out in Division 2 of Part 2 of the Act, to refuse to issue an Australian passport.

12. It is necessary only to notice s 14 of the Act. It provides, so far as is presently material,

“(1) If a competent authority suspects on reasonable grounds that:
(a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
(ii) might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii) might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv) might constitute an indictable offence against this Act; or
(v) might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and
(b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.
(2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.”

It is accepted that the AFP answers the description of a “competent authority” in s 14(3) of the Act.

THE ISSUES

13. Logically, the first issue to be determined is whether I ought to have regard to the evidence of the undercover agent and the evidence sought to be admitted through him, the digital recordings and what are said to be transcripts of those recordings.
14. The question then arises whether the text messages sent by Mr Lang to Shannon were, as he said, merely part of a lurid sexual fantasy or whether those messages evidenced events – sexual crimes against children – that had, in fact, occurred. In that regard I note that it is not at all clear from the Minister’s submissions whether the Minister’s case is put on the basis that the events portrayed actually occurred. Certainly the submissions are not put in such explicit terms; however reference is made in the submissions to the opinion of one of the AFP officers, Mr Matejic, “that there were victims of [Mr Lang’s] sexual activity in Thailand”.[4] Despite the equivocal nature of the Minister’s submissions it seems to me that it is necessary and desirable to make appropriate findings about the matter.
15. And, if the undercover material is admitted, it will be necessary to consider what that material demonstrates.
16. Ultimately, I am required to consider, by reference to the facts as found, whether reasonable grounds exist to suspect that Mr Lang, if issued with a passport, would be likely to engage in conduct that might endanger the health or physical safety of other persons whether in Australia or a foreign country. In reality, the case for the Minister is that reasonable grounds exist to suspect that Mr Lang would be likely to engage in sexual offences against children were an Australian passport to be issued to him.

THE UNDERCOVER EVIDENCE

17. It must be said that it is not easy to discern the basis on which Mr Lang contends that the undercover evidence should be excluded. The case advanced[5] appears to be that the evidence ought be excluded because,

“...the activities of the AFP in is [sic] execution of operation PONTIA was illegal”.

A variety of reasons why that is so are put forward. First, it is said that the evidence in question was obtained in contravention of the Human Rights (Sexual Conduct) Act 1994 (Cth). Then it is contended[6] that “it was unauthorised for the purposes to which they are being applied.” Next there appears to be an appeal to an inherent discretion to reject evidence on the basis of unlawfulness and, finally, delay in disclosing the material to Mr Lang is said to warrant its rejection.

18. The first point may be quickly disposed of. The operative part of the Human Rights (Sexual Conduct) Act is s 4. It provides:

“(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”

That Article reads,

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such inference or attacks.”
   
19. It is contended[7] that the AFP, in setting up the undercover operation, “sought to take advantage of the fact that Mr Lang was bisexual and known to enjoy fantasizing.” Leaving aside the fact that this proposition was not put to either Ms Hofmeier or Mr Matejic, the two AFP officers concerned with the operation, on the material before me, the only evidence of Mr Lang’s preferences known to members of the AFP came from the text messages sent by Mr Lang in December 2006. Those messages suggested that Mr Lang may have committed offences against the statute law of the Commonwealth, namely the offences in Div 272 of the Criminal Code (Cth). Such matters are the proper concern of the AFP. An investigation established for that purpose cannot be categorised as Mr Lang suggests.
20. Under the same general heading comparison is made in Mr Lang’s submissions between the conduct of the undercover officer and “gay bashing”. The comparison is unattractive (and put unattractively) and unwarranted. I do not accept that it is an accurate comparison.
21. The next argument concerns the “unauthorised use of the undercover material” in these proceedings. The argument, as I understand it, is put this way. As a matter of policy, rather than legal obligation, the AFP requires a senior officer to approve an undercover operation such as was undertaken here. This undercover operation was authorised to investigate whether Mr Lang was part of a ring of persons engaging in criminal sexual activity overseas. The undercover operation was not authorised for the purpose of determining Mr Lang’s risk of future offending. Hence, it is said, the undercover material cannot be used for a purpose not authorised.
22. Further, it is said, relying on R v Swaffield[8] the evidence ought be excluded in the exercise of a discretion said to be exercisable where evidence is obtained illegally and/or improperly.
23. I do not accept either argument. There are, no doubt, sound policy reasons for the AFP to have in place a structure to approve, monitor and control undercover operations. But I know of no impediment, and none was suggested, to using evidence obtained in pursuit of a particular objective for the purposes of another objective.
24. Mr Lang’s reliance on Swaffield is misplaced. It is not at all clear to me how the principles of admissibility of confessional material in a criminal trial fit within the context of what is an administrative enquiry conducted within the executive branch of the government. However, I am prepared to assume without deciding that the principles may be applied analogously. What was decided in Swaffield is summarised in the head note in these terms:

“... the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic disadvantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards.”

25. I do not understand it to be suggested that the conversations relied upon by the Minister were not voluntary i.e. the statements relied on were made in the exercise of a “free choice to speak”[9]. Although not put in these terms in Mr Lang’s submissions, the argument for Mr Lang must rely upon exclusion on the basis of unreliability or on the basis of the third category: “overall discretion.” If there be a discretion capable of being exercised in the present circumstances (and I am not persuaded that there is) the present case is not one where the discretion ought be exercised to exclude the evidence of, and obtained through, the undercover officer.
26. Given that the undercover police officer was a party to the conversations, the recording of the conversations was authorised by s 38 of the Surveillance Devices Act 2004 (Cth). The case is not one, as Swaffield was, where the use of the undercover police officer was a device adopted after the object of the investigation had been formally interviewed and declined to answer questions. It was the subversion of a suspect’s right to choose whether or not to speak to police that satisfied the High Court that admissions elicited by the undercover police officer were rightly excluded. That aspect is absent here.
27. It is true that, with the benefit of hindsight, the scope of the undercover operation seems somewhat extreme. And, with the experience of listening to all of the tapes, I am left with the distinct impression that there was something quite distasteful about the way in which the undercover police officer went about attracting Mr Lang’s attention and then cultivating his friendship and winning his confidence. But there was nothing improper or unfair about the way in which the operation was undertaken such as would warrant refusing to allow the evidence to be used.
28. Mr Lang’s case hints at the proposition that the statements made by him are unreliable because he was seeking the affection of Anthony and because he was, as the submissions[10] put it, “plied with drink.” Having heard the tapes in their entirety I can detect no hint in Mr Lang’s speech or manner that he was ever affected by alcohol, however supplied, even though on occasions, and most notably on the last meeting, the undercover police officer paid for drinks. I do not accept that Mr Lang was plied with drink as suggested.
29. Finally, there is the issue of the delay by the AFP in disclosing the fact of the undercover evidence to the Minister’s solicitors, and hence to the Tribunal and Mr Lang, and the subsequent delay in making copies of that material available to Mr Lang. Importantly, Mr Lang does not point to any prejudice to him from these delays. That being so there is no unfairness to Mr Lang beyond the fact that the hearing of his application was delayed at a time when it ought to have proceeded had the AFP disclosed the undercover evidence much earlier than did occur. But that conduct on the part of the AFP does not warrant excluding the evidence where Mr Lang has had a full opportunity to deal with the evidence. I note however that the AFP’s delay in providing the material to the Minister’s solicitors and the delay thereafter in making copies available to Mr Lang suggests that some members of the AFP may lack a proper understanding of the independent role of this Tribunal.
30. There is then, in my view, no reason to reject the evidence of the conversations, bearing in mind that it is the recordings that are the primary source of the evidence; the transcripts produced are merely the opinions of the persons who had the misfortune to have to transcribe the recordings. The transcripts assist in the “perception and understanding of the evidence tendered by the playing of the tape[11].”

THE TEXT MESSAGES

31. Unsurprisingly, there is no direct evidence that Mr Lang engaged in the conduct described in the text messages. The Minister appears to suggest that I should infer from the text messages that Mr Lang, contrary to his denials, did do so. For the reasons that follow I am not prepared to draw that inference. On the contrary, I am affirmatively satisfied that he did not engage in that conduct.
32. There is, first, the fact of Mr Lang’s denials. My own view of Mr Lang, which is aided by the other evidence that tends to corroborate his denials, is that he was a truthful, and generally reliable, witness. There were aspects of his evidence when he can be shown to be mistaken in his recollection and he gave his evidence with a certain degree of animosity towards the AFP (perhaps understandable) and some truculence towards the Minister’s solicitor. But despite those matters, I had no reason to doubt his evidence. But there is, in any event, other evidence that tends to confirm the veracity of Mr Lang’s denials that he engaged in the conduct described in the text messages.
33. There is the evidence of Mr Cruse and Mr Saddington who attended the King’s Cup Regatta in Thailand, and the associated social functions, with Mr Lang. The evidence of these gentlemen impressed me. Necessarily, they could not say that they were with Mr Lang, or were able to observe him, at all times during the social functions, however I find it inconceivable that Mr Lang could engage in the activities described in the text messages during, or proximate to, the social events, without either Mr Cruse or Mr Saddington noticing his absence or something out of the usual. Mr Lang produced the tickets which physically demonstrated that he had attended the various social functions including functions when, according to his text messages, he was (or had been) engaged in conduct with minors.
34. The Minster submits[12] that the evidence of Mr Cruse and Mr Saddington is of limited assistance because neither was aware “of the nature of [Mr Lang’s] sexual desires or prior activities”. The submission, with respect, misses the point. The point that I take from their evidence is not that conduct of the type described in the text messages is out of character for Mr Lang but that Mr Lang did not have the opportunity to engage in that conduct given their contact with him during the regatta and the social events.
35. There is, as well, the reference to the text messages in the secretly recorded conversation on 9 July 2007, the occasion when Anthony took Mr Lang to dinner to thank him for his friendship. It needs to be borne in mind that Mr Lang was unaware that the conversation was being recorded and that he thought that he could trust, and confide in, Anthony. On that occasion[13] he spoke of having exchanged “really filthy text messages” with a woman in Cairns. The other parts of the conversation make it plain that Mr Lang was referring to Shannon. At one point[14] Mr Lang said to Anthony that “it hadn’t happened”. Having listened to the conversation and given the circumstances of the conversation, I am satisfied that Mr Lang was speaking truthfully when he told Anthony that “it hadn’t happened”.
36. Finally, I note that Mr Lang’s statement to Anthony on 9 July 2007[15], is inconsistent with, and thus puts the lie to, the content of the text message of 10 December 2006. I need not recite the detail of either the conversation or the text message.
37. I am, then, satisfied that Mr Lang did not participate in the events described in his text messages and that those text messages were, as he said, concocted to pander to Shannon’s fantasies.

THE SECRET RECORDINGS

38. It now becomes necessary to consider some of the matters that the Minister contends are revealed by the recorded conversations. In particular, it is said that Mr Lang, in the course of his discussions with Anthony, revealed three instances of sexual conduct with minors. Mr Lang’s statements to Anthony, if true, would indicate that he maintained a sexual relationship with a 15 year old girl for a period of some months, albeit that he initially believed the girl to be 18 years old; that on one occasion he had sexual activity with a boy “about fourteen” in a public toilet in Gladstone; and that on another occasion, at Noosa, he engaged in sexual activity with another 14 year old boy over a period of about one month. The Minister’s submissions identify a further occasion which it is submitted reveals an instance of sexual activity with a boy in Adelaide. In fact, and contrary to the Minister’s submissions, Mr Lang identified this person as a “young guy” not a boy. There is nothing that I can discern from listening to the recording that would suggest that Mr Lang was speaking of an underage male.
39. Mr Lang said of these conversations,

“I thought that if I spoke about what he appeared to be interested in he might be interested in me”.

It is apparent to me, having had the experience of listening to the entirety of the recordings, that Mr Lang was at pains to impress Anthony. It is, as well, quite apparent that, in some instances at least, he lied in the account he gave Anthony of his past life. I infer that he did so in order to impress Anthony and that he wanted to impress Anthony because he regarded him as a potential sexual conquest. A particularly good example of Mr Lang’s untruthful account of his past occurs on 27 June 2007[16] when Mr Lang spoke of having been gaoled for assaulting police. It is not possible to say whether any of the detailed account given by Mr Lang, a tale involving Mr Lang intervening heroically to shield his then partner from the attention of a former partner of hers, a corrupt policeman, is true. But it is possible to say that he certainly did not go to gaol for assaulting police and that, had he assaulted police in the manner he described, it is almost certain that he would have been gaoled. Thus, in my view, this tale is demonstrably false in major part. There are other examples.

40. Human experience suggests that it is not uncommon for exaggeration or even fabrication to play a part in seduction, the task that Mr Lang was self evidently engaged in, albeit unsuccessfully, with Anthony. The tenor of the conversations between Mr Lang and Anthony, his description of events that can be demonstrated to be untrue as well as the manner in which he participated in Shannon’s fantasies lead me to accept Mr Lang’s evidence that his conversations with Anthony were largely fantasy, designed to raise Anthony’s interest in getting together with Mr Lang. I am not then satisfied that Mr Lang was describing events that in fact occurred in relation to the matters relied upon by the Minister.

REASONABLE GROUNDS TO SUSPECT

41. Both parties referred to the decision in Thompson and Minister for Foreign Affairs and Trade[17]. In that case I concluded that,[18]:

“What is required is the existence of facts which are sufficient to induce in a reasonable person the requisite state of mind ...”

Absent a submission that some different test ought be applied I will adopt the test there stated. The Minister’s submissions also deal with the test of “likely”. Reference is made to Thompson where I concluded that “likely” meant “material risk” and Habib v Director–General of Security[19]. Habib was an appeal from a decision of the Tribunal to affirm a passport refusal decision where a request had been made under s 14(1)(a)(i) of the Australian Passports Act i.e. “the person would be likely to engage in conduct that ... might prejudice the security of Australia or a foreign country”. The Tribunal’s conclusion on the meaning of “likely” and the obiter observations of the Court appear in the following passage:

“11 The Tribunal went on to note in the same context:
‘The Explanatory Memorandum accompanying the bill for the Passports Act stated that ‘likely’ had the meaning ‘a real, and not remote, possibility’ rather than more likely than not. Although the Tribunal has earlier expressed doubt as to which of the two meanings are to be given to the word, the Explanatory Memorandum, understood as the basis upon which the Parliament voted on the bill, must be seen to have resolved this issue in favour of the real possibility test.’

12. We do not necessarily agree that the word ‘likely’ in s 14(1) of the Passports Act is to be interpreted in the way there suggested by the Tribunal. However, the point has not been raised by the grounds which have been pressed on the hearing of the application so we refrain from saying anything further about it.”
    
42. The Explanatory Memorandum to the Australian Passports Bill 2004, to which reference was made in the Tribunal’s decision in Habib, says this, under the heading “Interpretation – Likely to engage”:

“50. The term ‘likely to engage’ is based on the test in the 1938 Act (section 7E), and is retained to ensure existing law and practice is maintained. The expression is used to ensure that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct.”

43. Despite the apparent reservation of the Federal Court is does seem to me that I ought adopt a test that looks to whether there is a real, and not remote, possibility of Mr Lang engaging in the specified conduct.
44. The Minister’s submission is put in this way:

“25 As set out in detail below the Minister’s primary submission is that having regard to the following key evidence:
25.1 The discussions between Anthony and the applicant ...;
25.2 The record of interview conducted with the applicant on 17 July 2007 ...; and
25.3 The evidence of the applicant;
establishes the basis for the AFP’s reasonable suspicion that because of the applicant’s prior behaviour, his lack of remorse over that prior behaviour, his stated desires with respect to sexual activity with underage children and his detailed descriptions of a modus operandi with respect to not being caught undertaking such activities, the applicant would be likely, if allowed to go overseas, to engage in conduct which would endanger the health or physical safety of other people.”

45. As will appear, I do not consider that the evidence allows that conclusion to be reached. I propose to discuss my reasons for reaching that conclusion by reference to the Minister’s written submissions provided at the conclusion of the hearing.
46. It is not clear to me what the distinction is between the first group of matters - the discussions with Anthony, the record of interview and Mr Lang’s evidence – and the other matters that are identified in the submission. As it seems to me all of those matters need to be considered to determine whether requisite grounds exist.
47. At the outset I accept that the question is not, as Mr Lang’s submissions seem to suggest, whether Mr Lang would “re-offend”. I used the expression “re-offend” in Thompson, not to state a legal test, but because that was the practical application, on the facts of Thompson, of the test in the statute. It is, then, not to the point to say[20], as Mr Lang does that,

“... in the absence of any offence of the type specified no suspicion of the sort contemplated could be relevant.”

Nor is it of any particular significance that none of the matters relied upon, apart from the 1991 offence and the 2006 offences have been found as facts “by a proper tribunal of fact”. This Tribunal is both able, and required, to make findings of fact on the basis of the evidence presented.

48. The Minister relies upon the evidence of Ms Hofmeier as establishing that Mr Lang displayed “no remorse” for his previous convictions in 1992 and 2008. Even assuming Ms Hofmeier, as “an experienced police officer with substantial experience in investigating child offences”[21], is capable of discerning, any more acutely than anyone else, the presence or absence of remorse, it is not clear to me why Ms Hofmeier’s opinion about the absence of remorse is of any particular assistance. The presence of remorse is generally regarded by sentencing courts as a matter that may mitigate sentence; however it is not clear to me why the absence of remorse could found a suspicion that Mr Lang, if granted a passport, would be likely to engage in conduct that might endanger the health or physical safety of other persons, all the more so when it is expressed in such bald terms. If the conclusion of an absence of remorse regarding the 1991 offences is based upon Mr Lang’s answers regarding those offences[22] I would not regard those answers as evidencing an absence of remorse. If anything, Mr Lang’s answer to Question 192 suggests evident remorse on his part.
49. In any event, it seems to me that I am in as good a position as Ms Hofmeier to reach a judgment on that issue. I propose to separately consider the issue of remorse, or its absence, given that it looms large in the Minister’s submissions.
50. Next, reference is made in the Minister’s submissions to the evidence of Mr Matejic whose opinion it is that there were victims of what was said to be Mr Lang’s “sexual activity” in Thailand. According to Mr Matejic, the AFP would not have commenced Operation PONTIA if there had not been a belief that there were victims. I would certainly expect that to be the case, however the belief does not, of itself, create the reality. I am satisfied that the events depicted in the text messages did not take place and that they were the product of Mr Lang’s desire to pander to Shannon’s fantasies. But this too, according to Mr Matejic, is of concern because Mr Matejic believes that Mr Lang, if issued with a passport, will live out those fantasies. Given that the fantasies were those of Shannon and not Mr Lang, I do not accept that that is so or, more fundamentally, that Mr Matejic is qualified to express an opinion of any weight whatsoever on the subject.
51. Reliance is placed in the Minister’s submissions on the opinion of Anthony that the various sexual events discussed with Mr Lang – the 14 year old boy at Noosa, the incident in the public toilet at Gladstone, the involvement with the 15 year old girl – did occur and that the only embellishment by Mr Lang was to the extent to which he considered that the children were pursuing him. In reality Anthony’s opinion is based on no more than his belief that Mr Lang was telling the truth. Such a judgment is commonly made in dealings between people in the casual setting in which Mr Lang and Anthony came to be. It was not suggested that Anthony had any special gift or qualifications for discerning its truth. Certainly there is no hint in his conversations with Mr Lang that suggests he doubted what he was told by Mr Lang; on the contrary he appears to have encouraged Mr Lang by repeatedly bringing the subject matter of conversation back to sexual activity with children.
52. Contrary to Anthony’s opinion there are instances during the conversation where Mr Lang exaggerated and fabricated events. I am not satisfied that his description of sexual activity with children was other than examples of that because Mr Lang was saying what he thought Anthony was interested in so as to attract Anthony’s interest in him.
53. Next the Minister relies upon Mr Lang’s prior convictions. The convictions from 1992, although serious, are now quite dated and there are no convictions between 1992 and 2008. The circumstances of the offences that lead to the 1992 convictions are set out in the judgment of the Court of Criminal Appeal of the Supreme Court of Victoria. I will act on what is there set out about the circumstances of the offences in preference to Mr Lang’s account of events. In what was effectively the judgment of the Court, Crockett J described the offences as ones “at the lower end of the scale” for the offence of sexual penetration of a child. Moreover the judgement refers to, and appears to give credence to, evidence before the sentencing judge from a psychologist,

“designed to show that the facts which give rise to the commission of the offences were not an indication of the applicant’s being a sexual deviant but rather were indicative of an aberration uncharacteristic of the applicant’s normal behaviour.”

That evidence, too, is somewhat dated and I would not regard the opinion as having any value beyond the 1991 offences.

54. The 2006 offences must be viewed in the context in which Mr Lang was sentenced, that is, that Mr Lang was responding to encouragement by Shannon albeit in terms that involved what Bradley DCJ quite properly described as “...very disgusting and concerning content”. But, as I have said, I am satisfied that Mr Lang was referring to fantasies concocted by him and not any events of the type described. What I do discern on the part of Mr Lang is a sense of grievance that Shannon would appear not to have been prosecuted when he regarded her as equally culpable.
55. Next the Minister submits[23] that Mr Lang is an “opportunistic sex offender”. The submission appears to have its origin in a baldly stated opinion of Ms Hofmeier to like effect. But it is necessary to examine the basis on which this conclusion is founded.
56. I accept that the events of 1991 demonstrate that Mr Lang took advantage of an opportunity presented to him; however I do not accept that the various incidents of sexual contact with children described in the secret tapes were other than inventions by Mr Lang to impress Anthony. The more general conversations particularised in the Minister’s submissions take the matter no further.
57. The same is true of the matters relied on to suggest that Mr Lang was a “cautious and methodical sex offender”[24]. The matters identified might lead to that conclusion were I to be of the view that Mr Lang was speaking truthfully when he described sexual experiences with young children but that is not my view.
58. Much is made of the absence of remorse and Mr Lang’s belief, so it is said, that he has done nothing wrong, either with respect to his prior convictions or the nature of his sexual fantasies. It is true to say that Mr Lang sought to downplay the nature of the 1991 offending and that is of some concern. And Mr Lang’s description in the record of interview of the complainant[25], repeated in essence in his evidence, is also concerning. The supposed absence of remorse with respect to the text messages is in a somewhat different category. I do not have the impression that Mr Lang lacks remorse for this conduct. I consider that he is genuinely remorseful but has a sense of grievance regarding what he considers to be unequal treatment. Throughout the record of interview Mr Lang said repeatedly that the messages were fantasies only, yet Ms Hofmeier continued to ask him whether the various events took place. Ms Hofmeier’s conclusions regarding an absence of remorse may have been informed by Mr Lang’s protestations that the messages were “only fantasies”. But Mr Lang appeared not to be able to convince Ms Hofmeier that that was the case.
59. Mr Lang committed serious sexual offences against a ten year old child in 1991, he sent a series of lurid text messages depicting child sexual encounters to an adult female in 2006 at her invitation, he is shown to have a vivid sexual imagination and speaks in an appallingly vulgar manner (as did Anthony) in the various conversations secretly recorded. Moreover, Mr Lang has tried to downplay the seriousness of his conduct in 1991. As against this, there is no evidence, beyond that which I regard as being fantasy, that Mr Lang has committed any sexual offences against children since 1991 or that he is suspected of having done so since then. I am not of the view that there are reasonable grounds to suspect that Mr Lang would be likely to engage in conduct that might endanger the health or physical safety of other persons if issued with a passport.
60. I will then set aside the Minister’s decision and substitute a decision that the issue of a passport not be refused.
    

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

......................................[Sgd]...............................................

Alex Seagar, Associate

Dates of Hearing 28 September 2010 (Darwin) & 14 December 2010 (Brisbane)

Date of last written submissions 23 February 2011

Date of Decision 29 April 2011

Solicitor for the Applicant Anthony D Buckland

Solicitors for the Respondent Sparke Helmore

---

[1] The witnesses’ real name, position and work address were recorded on a confidential exhibit.

[2] Exhibit 9, page 2.

[3] Ibid, page 3.

[4] Respondent’s written submissions, paragraph 29.2

[5] Applicant’s written submissions, paragraph 3.4.3.

[6] Ibid, paragraph 3.4.5.

[7] Ibid, paragraph 3.4.4.1.

[8] [1998] HCA 1; (1998) 192 CLR 159.

[9] Cf. McDermott v The King (1948) 76 CLR 501, 512.

[10] At paragraph 3.4.6.2.

[11] Butera v Director of Public Prosecutions for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180, 187

[12] Respondent's written submissions, paragraph 45.

[13] Transcript, 9 July 2007 commencing at the foot of page 67.

[14] Ibid, page 68.

[15] Ibid, page 62.

[16] Transcript 27 June 2007 pages 28-34.

[17] [2007] AATA 1244; (2007) 45 AAR 149.

[18] At [71].

[19] [2009] FCAFC 48; (2009) 175 FCR 411.

[20] Applicant's written submissions, paragraph 1.5.

[21] Respondent's written submissions, paragraph 29.1.

[22] Exhibit 8, Q180 – Q192.

[23] Respondent's written submissions, paragraph 30.2.

[24] Ibid, paragraph 36.

[25] Exhibit 8, A 190.