Attorney-General v Hadashah Sa'adat Khan (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2023 05158

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
HADASHAH SA’ADAT KHAN	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January – 1 February 2024
DATE OF JUDGMENT:	26 February 2024
CASE MAY BE CITED AS:	Attorney-General v Hadashah Sa’adat Khan (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 58*

*This is a redacted version of the judgment that was published to the parties on a confidential basis.

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PUBLIC LAW – Application for review of Extended Supervision Order under Criminal Code Act 1995 (Cth), s 105A.10 – Defendant on 18 month Extended Supervision Order – Order affirmed with variations to conditions – Criminal Code Act 1995 (Cth) ss 105A, 105A.6B, 105A.7A, 105A.10, 105A.12 – Attorney-General v Hadashah Sa’adat Khan (No 2) [2022] VSC 687 – Attorney-General v Khan [2022] VSC 507 – Benbrika v Minister of Home Affairs [2021] VSCA 303 – DPP v Sa’Adat Khan [2022] VCC 959 – Minister for Home Affairs v Benbrika (First Review) [2022] VSC 169.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr Berger KC with Mr Yuile and
Ms Addams

Australian Government Solicitor

For the Defendant

Mr Nathwani SC with

Ms Thies and Ms Hart

Massi Ahmadzay & Associates

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The Defendant’s background.......................................................................................................... 3

The Offences....................................................................................................................................... 3

The Criminal Code............................................................................................................................. 7

The Extended Supervision Order................................................................................................. 13

The Periodic Review........................................................................................................................ 18

Unacceptable risk........................................................................................................................ 20
The s 105A.6B matters....................................................................................................... 22
Protection of the community: s 105A.6B(1)(a).................................................. 22
Assessment by relevant experts: paragraphs (b) and (c) of s 105A.6B(1).... 24
Dr Dewson’s report dated 10 October 2023...................................................... 26
Dr Dewson’s report dated 2 November 2023................................................... 28
Dr Dewson’s report dated 22 December 2023.................................................. 28
Dr Dewson’s report dated 29 January 2024...................................................... 29
Management in the community: s 105A.6B(1)(d)............................................ 31
Participation in rehabilitation programs: s 105A.6B(1)(e).............................. 31
Ms Sa’adat Khan’s level of compliance with the ESO: s 105A.6B(1)(f)(ii).... 32
Ms Sa’adat Khan’s history of prior terrorism offending: s 105A.6B(1)(g)... 32
Views of the sentencing court: s 105A.6B(1)(h)................................................ 33
Consideration of other orders: s 105A.6B(1)(ha).............................................. 34

Other matters...................................................................................................................... 34
Conclusion: unacceptable risk......................................................................................... 37

Proportionality of conditions.................................................................................................... 38
The residency condition................................................................................................... 40

Conclusion......................................................................................................................................... 46

ANNEXURE A.................................................................................................................................. 47

HIS HONOUR:

Introduction

On 10 June 2022, following a guilty plea, the defendant, Ms Sa’adat Khan, was convicted of providing support or resources to a terrorist organisation, Islamic State, contrary to s 102.7(1) of the Criminal Code (Cth)[1] (the Code). She was sentenced to a total effective sentence of 2 years and 6 months’ imprisonment, with a non-parole period of 1 year and 11 months. Ms Sa’adat Khan was released from custody upon the expiry of her sentence on 26 August 2022.
[1]Schedule 1 to the Criminal Code 1995 (Cth).

Upon the application of the Attorney-General in proceeding S ECI 2022 03216 (the previous proceeding), on 25 August 2022, the Court made an ‘interim supervision order’ (ISO) under the Code which commenced operation upon Ms Sa’adat Khan’s release from custody. After the ISO was extended on two occasions, on 8 November 2022, the Court made an ‘extended supervision order’ which imposed 17 conditions on Ms Sa’adat Khan for its period of operation of 18 months (the ESO).

The Code requires the Attorney-General to apply for a review of a ‘post-sentence order’, which includes an extended supervision order, before the end of 12 months after the order begins to be in force (the periodic review). Consistent with this requirement, on 1 November 2023, the Attorney-General filed an originating motion and summons initiating a review pursuant to s 105A.10 of the Code.

In support of his application, the Attorney-General tendered the following affidavits into evidence:

(a) affidavits of Dr Chelsey Elizabeth Dewson, Consultant Forensic Psychologist, affirmed 9 November 2023, 18 January 2024 and 30 January 2024;

(b) an affidavit of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division of the Attorney-General’s Department, affirmed 12 December 2023;

(c) affidavits of Simone O’Mahony, Detective Superintendent, NSW Joint Counter Terrorism Team of the Australian Federal Police (AFP), affirmed 21 August 2022,[2] 17 October 2022,[3] and 13 December 2023; and

(d) an affidavit of Anthony Desmond Giugni, Senior Executive Lawyer at Australian Government Solicitor, affirmed 1 November 2023.

None of the deponents of these affidavits were required for cross examination.

[2]Originally filed in the previous proceeding.

[3]Originally filed in the previous proceeding.

Ms Sa’adat Khan did not tender any evidence. The parties did, however, file an extensive statement of agreed facts made pursuant to s 191 of the Evidence Act 2008.

The Attorney-General submitted in the periodic review that the Court should vary the conditions imposed on Ms Sa’adat Khan and otherwise affirm the ESO. Most of the variations sought by the Attorney-General either involve a diminution in the obligations imposed on Ms Sa’adat Khan, or are minor variations which largely update practical arrangements concerning the mechanics of Ms Sa’adat Khan’s supervision and case management under the ESO.

Although senior counsel for Ms Sa’adat Khan responded to a number of the matters raised by the Attorney-General in submissions, with one exception, Ms Sa’adat Khan did not make submissions in opposition to the proposed affirmation of the ESO in varied form as proposed by the Attorney-General. In acquiescing to the course proposed by the Attorney-General, Ms Sa’adat Khan in substance adopted a pragmatic approach in acknowledging that she requires the remaining few months of operation of the ESO to transition away from its operation in relation to a number of particular matters, including her engagement with her case worker, her psychologist and her participation in the ‘Community Integration Support Program’ (CISP), a terrorist disengagement program run by the Countering Violent Extremism unit within Victoria Police.

Notwithstanding the position adopted by Ms Sa’adat Khan, the provisions of the Code examined in detail below require that the Court itself be satisfied of certain matters before enlivening its discretion to affirm an extended supervision order, whether in original or varied form.

For the following reasons, I have determined to vary the conditions in the ESO in terms as proposed by the Attorney-General, other than in respect of one matter, and to otherwise affirm the order. The ESO as varied will accordingly continue to apply to Ms Sa’adat Khan until its expiry on 7 May 2024.

The Defendant’s background

Ms Sa’adat Khan was born in Afghanistan, the third eldest of six children. She is a practising Muslim and is now 26 years of age.

Ms Sa’adat Khan’s father moved to Australia in about 2001. In 2003, Ms Sa’adat Khan’s mother took her and her siblings to Pakistan. In 2007, they were granted humanitarian visas and moved to Australia to reunite with Ms Sa’adat Khan’s father. Ms Sa’adat Khan became an Australian citizen on 14 October 2010.

Ms Sa’adat Khan’s first language is Dari, although she considers that she speaks English ‘pretty well’. She attended an Islamic primary and secondary college and left school after completing year 10.

During her offending and until her incarceration in 2020, Ms Sa’adat Khan lived [redacted] (the residence).

The Offences

It was agreed that the facts concerning Ms Sa’adat Khan’s offending were accurately set out in the prosecution opening dated 2 February 2022 filed in a plea hearing in the County Court of Victoria.

Ms Sa’adat Khan pleaded guilty to two offences:

(a) providing support to an organisation knowing it is a terrorist organisation, contrary to s 102.7(1) of the Code, being an offence which has a maximum penalty of 25 years’ imprisonment (the Index Offence); and

(b) contravening a requirement of an order, made under s 3LA(2) of the Crimes Act 1914 (Cth), to facilitate the investigation of a serious terrorism offence. The order in question required Ms Sa’adat Khan to provide information or assistance to police to access data on a computer or data storage device. Contravention of the requirement was an offence, pursuant to s 3LA(6) of the Crimes Act 1914, with a maximum penalty of 10 years’ imprisonment, a fine of 600 penalty units, or both (the other offence).

The sentencing judge imposed a total effective sentence in respect of both offences of 2 years and 6 months, with a non-parole period of 1 year and 11 months.

The Index Offence arose from Ms Sa’adat Khan’s online communications between 15 June 2016 and 20 June 2016 with, and in relation to, Paul Jensen,[4] a man from the United States who wanted to travel to Syria and engage in military combat in support of Islamic State which was then fighting a civil war against the Syrian government. Mr Jensen and Ms Sa’adat Khan were both then about 18 years of age. Ms Sa’adat Khan communicated online with Mr Jensen and other persons with the intention of facilitating Mr Jensen’s entry into Syria where it was intended that he would join Islamic State.
[4]A pseudonym. I was informed by counsel that an order made in other proceedings prohibits the publication of the man’s identity.

The following is a more detailed summary of Ms Sa’adat Khan’s offending and the circumstances in which it occurred:

(a) By October 2014, Ms Sa’adat Khan had become interested in Islamic State and the ideology of violent jihad. Her radicalization had its origins in a period of relative isolation from her peers after she left school when she was 16 years of age. Between 2014 and 2016, she found solace in relationships she formed with Muslims of a similar age with whom she was in contact online. One such connection made by Ms Sa’adat Khan was with Mr Jensen who she met online in 2015 through a friend.

(b) In her communications with Mr Jensen, Ms Sa’adat Khan used a number of aliases. It was then common for Muslim extremists to use aliases to attempt to avoid detection.

(c) Ms Sa’adat Khan told Mr Jensen that she was ‘pro-dawla’, meaning that she was a supporter of Islamic State.

(d) In 2016, Mr Jensen wanted to travel to Syria to engage in military combat in support of Islamic State. At that time it was difficult to gain acceptance by Islamic State into areas of Syria which it controlled, and it was dangerous to attempt to do so.

(e) Ms Sa’adat Khan told Mr Jensen that she could help him gain entry into Islamic State controlled Syria. She communicated with Mr Jensen’s ‘tazkiya’, being a sponsor or referee which Islamic State required before they would permit someone to join them. Ms Sa’adat Khan also facilitated Mr Jensen’s contact with another person who she told Mr Jensen would meet him in Turkey and then deliver him to Islamic State in Syria.

(f) By facilitating Mr Jensen’s entry into Syria to join Islamic State in military combat against the Syrian Government, Ms Sa’adat Khan provided support to Islamic State to help it engage in terrorist acts by: (1) advising Mr Jensen about what he needed to do to enter Syria and join Islamic State; and (2) communicating with third parties to facilitate this to occur.

(g) In Ms Sa’adat Khan’s communications with Mr Jensen (through an online messaging platform):

(i) When he expressed frustration about his circumstances, in one of her responses, Ms Sa’adat Khan said that he should ‘concentrate on going there and returning to Allah as a green bird, nothing else should matter’. Ms Sa’adat Khan’s reference to ‘returning to Allah as a green bird’ was understood by both she and Mr Jensen to be a reference to Mr Jensen achieving martyrdom by being killed while engaged in a violent jihad.

(ii) When asked by Mr Jensen what she did, Ms Sa’adat Khan replied, ‘help people who wanna make hij [“hijra” – migration in the cause of Allah] and gain ajr [divine reward] and be a irhabi [terrorist]’.

(h) When Mr Jensen asked Ms Sa’adat Khan on 20 June 2016 how long it would take for him to get to Syria, Ms Sa’adat Khan said that she did not know and to simply obey a named third party’s instructions after they met in Turkey.

(i) The following day, 21 June 2016, Mr Jensen purchased a bus ticket from Indianapolis to New York with the intention of boarding a flight to Morocco on a one-way ticket which he had already purchased. Mr Jensen was arrested by FBI agents when he presented his ticket to board the bus.

(j) Mr Jensen later agreed to co-operate with police and made a written statement about his communications Ms Sa’adat Khan.

(k) Police arrested Ms Sa’adat Khan some 18 months later on 23 January 2018 and executed a search warrant at the residence during which they seized three digital devices. Data extracted from these devices contained evidence of Ms Sa’adat Khan’s interest in Islamic State and her adherence to the ideology of violent jihad. It also revealed Ms Sa’adat Khan’s use of aliases.

(l) On the day of her arrest, Ms Sa’adat Khan was interviewed but not charged; she returned to live at the residence. At that time, the information which police had obtained from the FBI about Mr Jensen was not available to be used as evidence.

The circumstances relating to the other offence concerns the execution of a further search warrant at the residence about two years later on 25 February 2020. On that day, the police again arrested Ms Sa’adat Khan and executed a search warrant at the residence. They had with them an order obtained under s 3LA(2) of the Crimes Act 1914 which required Ms Sa’adat Khan to provide them with any information or assistance that she was able to provide to access data on any device which they located in her possession or control. Ms Sa’adat Khan was told about the order.

During the search of the residence on 25 February 2020, the police seized an iPhone X from a handbag which was in her bedroom. Ms Sa’adat Khan told the police that it was her mother’s phone. Data extracted from the device included evidence that it was in fact owned and operated by Ms Sa’adat Khan and that she had communicated with Mr Jensen. This included Ms Sa’adat Khan’s use of various aliases and videos and images which were supportive of Islamic State and the ideology of violent jihad.

Later on 25 February 2020, during a recorded conversation, the police asked Ms Sa’adat Khan to provide the password to the iPhone X. Ms Sa’adat Khan refused and said that she did not know the password. She repeated the assertion that it belonged to her mother.

The Criminal Code

Division 105A of the Code is entitled ‘Post-sentence orders’. There are two types of post-sentence orders: ‘continuing detention orders’ and extended supervision orders. A continuing detention order commits a person to detention in a prison[5] and an extended supervision order imposes conditions on a person, contravention of which is an offence.[6] Both types of orders may be imposed for a period no longer than three years.[7] The object of Division 105A is:[8]

… to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to:
(a) a continuing detention order; or

(b) an extended supervision order.

[5]Sections 105A.3(2).

[6]Section 105A.3(3).

[7]Section 105A.7(5) and 105A.7A(4)(d).

[8]Section 105A.1.

A post-sentence order may be made in relation to a person if, amongst other things, they are a ‘terrorist offender’, being a person who has been convicted of one of the offences referred to in s 105A.3(1)(a). The conditions that a court may impose on a terrorist offender by an extended supervision order are:[9]

(a) any conditions that the Court is satisfied; and
(b) those conditions whose combined effect the Court is satisfied;
on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

[9]Section 105A.7B(1).

Subdivision D of Division 105A deals with the review of post-sentence orders. Two methods of review are provided for by the subdivision: a review of the type brought in this case which is required to be brought before the end of 12 months after the post-sentence order began to be in force (which I describe as a ‘periodic review’);[10] and a review brought on application by the ‘AFP Minister’[11] or a terrorist offender.
[10]Section 105A.10(1A)-(1B). It may be noted that, pursuant to section 105A.10(1), on receiving the application, the Court must begin the review of the order before the end of the period of 12 months. This condition was satisfied in this case with the Court listing the proceeding for directions on 3 November 2023, the Attorney-General having filed the originating motion commencing the review on 1 November 2023.
[11]‘AFP Minister’ is defined in s 100.1 of the Code as meaning ‘the Minister administering the Australian Federal Police Act 1979’, being the Attorney-General.

The process for reviewing a post-sentence order, whether a periodic review or on application, is prescribed by s 105A.12 which includes the following provisions:

…
Affirming or revoking the order
(4)The Court may affirm the order (including affirm the order with variations made under section 105A.12A) if, after having regard to the matters in section 105A.6B, the Court is satisfied that the Court:
(a)for a continuing detention order--could have made the order under section 105A.7; or
(b)for an extended supervision order--could have made the order under section 105A.7A, or could have made the order disregarding paragraph 105A.7A(1)(c).

…
(5AA)If the Court does not affirm an extended supervision order under subsection (4), the Court must revoke the order.

Onus of satisfying Court
(5A)The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(6)The AFP Minister bears the onus of satisfying the Court of the matters referred to in section 105A.7 or 105A.7A.
(6A)The AFP Minister, or the legal representative of the AFP Minister, must present to the Court:
(a)a copy of any material in the possession of the AFP Minister or legal representative; and
(b)a statement of any facts that the AFP Minister or legal representative is aware of;

that would reasonably be regarded as supporting a finding that:
(c)the order should not be affirmed, or should not be affirmed in the terms in which the order is made; or
(d)if the court is considering making an extended supervision order under subsection (5) an extended supervision order should not be made.

It is apparent from the terms of s 105A.12(4) that a court’s discretion to affirm an extended supervision order is predicated upon the court, having regard to the matters in s 105A.6B, being satisfied that it ‘could have made the order under s 105A.7A, or could have made the order disregarding paragraph 105A.7A(1)(c)’.

Section 105A.6B, which contains the matters to which the Court must have regard to under s 105A.12, provides as follows:

Matters a Court must have regard to in making a post-sentence order
(1)In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:
(a)       the object of this Division;
(b)any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under:
(i)        section 105A.6; or
(ii)       section 105A.18D;
(c)the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment;
(d)any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i)        the relevant State or Territory corrective services; or
(ii)any other person or body who is competent to assess that extent;

(e)any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs;
(f)the level of the offender's compliance with any obligations to which the offender is or has been subject while:
(i)on release on parole for any offence referred to in paragraph 105A.3(1)(a); or
(ii)subject to a post-sentence order, interim post-sentence order or control order;

(g)the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);
(h)the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;
(ha)whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order;
(i)any other information as to the risk of the offender committing a serious Part 5.3 offence.

(2)Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3)To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to post-sentence order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.

Section 105A.7A relevantly provides as follows:

Making an extended supervision order
(1)A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:
(a) any of the following applies:
(i)an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;

…
(iii)the Court has reviewed under section 105A.12 a continuing detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.12(4)(a); and

(b)after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and

(c)       the Court is satisfied on the balance of probabilities that:
(i)        each of the conditions; and
(ii)       the combined effect of all of the conditions;
to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.

Determining whether conditions are reasonably necessary, appropriate and adapted
(2)For the purposes of paragraph (1)(c), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).

Onus of satisfying Court
(3)The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

Content of order
(4) The order must:
(a)state that the Court is satisfied of the matters mentioned in paragraphs (1)(b) and (c); and

(b) specify the name of the offender to whom the order relates; and
(c)specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 105A.7B or 105A.7C on the offender by the order; and
(d)specify the period during which the order is to be in force, which must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk; and

(e) state that the offender's lawyer may request a copy of the order.

Court may make successive extended supervision orders
(5)To avoid doubt, paragraph (4)(d) does not prevent a Supreme Court of a State or Territory making an extended supervision order in relation to a terrorist offender that begins to be in force immediately after a previous extended supervision order, or continuing detention order, in relation to the offender ceases to be in force.
…

The Court’s power to vary a post-sentence order after a review is dealt with in s 105A.12A which provides as follows:

Varying post-sentence orders after review
Varying the period specified by a post-sentence order
(1)A Supreme Court of a State or Territory must vary a post-sentence order in relation to a terrorist offender to specify a shorter period for which the order will be in force if:
(a) the Court affirms the order under subsection 105A.12(4); and
(b)the Court is not satisfied that the period currently specified is reasonably necessary to prevent the unacceptable risk of the offender committing a serious Part 5.3 offence.

The shorter period must be a period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Varying or removing conditions
(2)A Supreme Court of a State or Territory must vary, or remove, a condition imposed by an extended supervision order if:
(a) the Court affirms the order under subsection 105A.12(4); and
(b)the Court is not satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
(3)The Court must be satisfied that a condition that is varied under subsection (2) is (after the variation) reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

Varying to add conditions
(4)The Court may vary an extended supervision order to add one or more conditions if the Court is satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.

Object of this Division
(5)For the purposes of subsections (3) and (4), in determining whether a condition to be varied or imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).

Onus of satisfying court
(6)The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).

The Extended Supervision Order

The ESO provides as follows:

1.Hadashah Sa'adat Khan, the defendant, be and is subject to an extended supervision order pursuant to Division 105A of the Code, such supervision being conditioned by the conditions and exemption conditions imposed by this order and recorded in Annexure A to the order.
2. The extended supervision order be in force for a period of 18 months commencing on 8 November 2022 and ending on 7 May 2024.

3. The interim supervision order made on 17 October 2022 is revoked.
4. The plaintiff must advise the defendant of any changes to the identity or contact details of the case manager and the AFP Superintendent as set out in the order of this court dated 25 August 2022.

Annexure A to the ESO is annexed to this judgment.

In broad terms, the conditions imposed on Ms Sa'adat Khan by the ESO are that she:[12]
[12]The ESO also provides for the making of exemptions in relation to some of the above conditions.

(a) report to a case manager and participate in any assessment and review of a case plan;

(b) schedule an assessment with a psychologist or psychiatrist to determine whether she would benefit from psychological treatment and, if so, undergo the recommended treatment;

(c) provide information to her case manager in relation to her participation in a tailored violent extremism disengagement and rehabilitation program;

(d) is only permitted to use the mobile telephone device provided to her by the AFP, and is prohibited from deleting or altering any communication history or data from it;

(e) is only permitted to use a computer, tablet or other device that is capable of accessing the internet which has been provided to her or approved by the AFP, and is prohibited from deleting or modifying any platforms, programs, software or data in relation to it;

(f) is only permitted to use the internet service provided to her or approved by the AFP;

(g) is only permitted to use a fixed or landline telephone service that has been approved by the AFP;

(h) is only permitted to use and access applications on computer programs that have been approved by the AFP;

(i) is prohibited from possessing, accessing, producing or distributing documents which relate to terrorist offences;

(j) is prohibited from communicating or associating with any person:

(iii) incarcerated in a correctional facility;

(iv) subject to a control order;

(v) charged with or convicted of specified terrorism offences; or

(vi) located in any of 13 specified countries in the Middle East.

(k) is only permitted to access or use the Gmail electronic mail account that has been approved by the AFP; and

(l) is only permitted to reside at the residence and is prohibited from residing elsewhere without the prior permission of her case manager.

In the previous proceeding, counsel for Ms Sa’adat Khan did not make any submissions in opposition to the making of an extended supervision order. In granting the ESO, John Dixon J reasoned as follows:[13]
[13]See Attorney-General v Hadashah Sa’adat Khan (No 2) [2022] VSC 687 (‘Attorney-General v Hadashah Sa’adat Khan (No 2)’).

(a) He recorded his satisfaction that the preconditions for the making of an ESO were met: he was satisfied on the balance of probabilities that Ms Sa’adat Khan posed an unacceptable risk of committing a Part 5.3 offence, and that each of the conditions, and their combined effect, to be imposed on Ms Sa’adat Khan, were reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from that unacceptable risk.[14]
[14]Ibid [7]-[8], [11].

(b) The ‘critical question’ was whether the defendant posed an unacceptable risk of committing a serious Part 5.3 offence.[15] To answer this question: [16]
[15]Ibid [13].
[16]Ibid.

… the court must identify the nature of the serious Part 5.3 offence in contemplation and its possible consequences and the circumstances that permit an assessment of the degree of risk and whether that degree of risk is unacceptable.….

(c) He accepted the evidence of Dr Chelsey Dewson, a consulting forensic psychologist, who he considered had significant relevant experience.[17] Dr Dewson’s evidence was that a serious Part 5.3 offence that might in the future be committed by Ms Sa’adat Khan was offending of a similar nature to the Index Offence.[18] The risk of Ms Sa’adat Khan personally engaging in an act of violence was low; the most likely risk scenario, should she reoffend, was being ‘a supporting role for others wanting to engage in terrorism offences in a manner not dissimilar to her prior offending’,[19] with that re-offending conduct likely to fall towards the ‘low end’ of the scale.[20]
[17]Ibid [14].
[18]Ibid ]16].
[19]Ibid [25].
[20]Ibid [21].

(d) He was not persuaded by Dr Dewson’s evidence about the risk of Ms Sa’adat Khan re-reoffending in a more serious way, or in a manner that directly affected Australian citizens within Australia. Such a scenario was a remote one.[21] His Honour stated: [22]
[21]Ibid [17].
[22]Ibid [24].

…the evidence suggested that there had been material improvements in the home environment observed since the defendant’s release from custody, and the level of support that she will likely receive from her family would appear to be more positive than Dr Dewson has allowed. Further, the defendant has commenced “offence-specific intervention” and has advanced her treatment needs for her mental health and these developments are being encouraged and monitored by her case manager. …

(e) In recording his satisfaction that there was an unacceptable risk that Ms Sa’adat Khan might commit a serious Part 5.3 offence by conduct of a similar nature to the Index Offence, his Honour stated:[23]
[23]Ibid [31].

Even though an offence in the nature of the index offence does not immediately achieve the same severe consequences as other types of terrorist offences, it would nevertheless be a matter of serious concern to offer assistance to those who wish to perpetrate acts of terrorism in Australia or abroad and the consequences of such assistance may be grave. In addition, it is relevant that although the level of risk of committing a serious offence is unclear or characterised as low/moderate, there are particular psychosocial factors identified that, absent appropriate intervention, could contribute to that risk remaining operative or increasing to a higher level. The proposed ESO is aimed predominantly at removing or mitigating those factors. …

(f) He identified that the primary driver of the experts’ conclusions on risk assessment was Ms Sa’adat Khan’s ‘susceptibility to influence, control and indoctrination’, and that there were a number of aspects of her background and circumstances which contributed to that risk.[24]
[24]Ibid [33].

(g) He considered that the conditions in the ESO would permit Ms Sa’adat Khan to transition into the community with appropriate targeted support and that mitigation of what would be an unacceptable risk could be achieved over the period of the order through community supervision, support and participation in the CISP.[25]
[25]Ibid [35].

(h) He also identified that the circumstances of Ms Sa’adat Khan’s offending in 2015-2016 were different to November 2022, given that Ms Sa’adat Khan had affirmed an affidavit on 3 November 2022 in which she renounced her adherence to violent jihad.

(i) He recorded his satisfaction that each of the conditions to be imposed by the extended supervision order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk which he had identified.[26] The essence of this requirement focused on the issue of proportionality: ‘A condition will not be reasonably necessary if the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires’.[27]
[26]Ibid [41].
[27]Ibid.

(j) He categorised the conditions imposed by the extended supervision order as being ‘directed to therapeutic intervention and conditions directed to limiting the opportunities for the defendant to be influenced by extremists, and her ability to access or produce extremist materials’.[28] Further, his Honour referred approvingly to the expert evidence that:[29]
[28]Ibid [46].
[29]Ibid [47].

Both of the experts recognise that in the context of the defendant’s increasing maturity the targeted interventions achieved by the conditions of the order are designed to enable the defendant to transition to a state where it can confidently be accepted that she no longer presents an unacceptable risk of further offending. In this context it may be accepted that substantial improvements in the management of her mental health, counselling to address her past experiences, family therapy, religious support and education, vocational training and further general education and the development of skills and experience in relationships and social interactions are likely to achieve this goal. In this context, the continuation of unduly restrictive conditions into the future may be counterproductive, which is a risk that was identified by each of the experts in setting conditions of the ESO.

(k) His Honour concluded by stating that:[30]

I anticipate that the process of reintegration of Ms Sa’adat Khan into the Australian community with a mature identity and mitigated risk factors through the success of interventions that are now in place, may provide, in due course, the most effective way of achieving the object of the Division. Ongoing assessment of whether conditions remain reasonably necessary and proportionate will necessarily contribute to that goal.
[30]Ibid [50].

The Periodic Review

I was informed by the parties that this is the first periodic review of an extended supervision order. Such a review has, however, been undertaken in relation to a continuing detention order. In Minister for Home Affairs v Benbrika (First Review),[31] Hollingworth J made the following important observations about the approach to be adopted in undertaking the periodic review of a continuing detention order:

The task for the court on a review is to determine whether, at the time of its decision, on the basis of admissible evidence adduced on the review, the court is satisfied of the matters in s 105A.12(4)(a). If it is satisfied of those matters, it may affirm the CDO. …

The legislation has not been drafted so as to limit a reviewing court to a consideration of matters that have arisen since the CDO was made, or the matter was last reviewed. Rather, it has been drafted in a way that enables the parties to seek to revisit all the intermediate evidentiary findings of previous judges.
The parties agree that I am not bound by the intermediate findings of fact that led to Tinney J’s ultimate conclusions.[32] Accordingly, the correct approach is not to start by accepting all the intermediate findings and asking “What has changed about those facts since December 2020?” Rather, the court’s task on this review is to undertake the necessary risk assessment at the later point in time, unfettered by Tinney J’s intermediate fact findings.

[31][2022] VSC 169 (‘Minister for Home Affairs v Benbrika (First Review)’).

[32]Tinney J having made the continuing detention order the subject of the periodic review.

Given the common statutory foundation for the review of post-sentencing orders set out in Subdivision D of Division 105A of the Code, this analysis is equally apposite to a periodic review of an extended supervision order. The Court’s task in the present review is therefore to determine, at the time of its decision and on the basis of admissible evidence adduced on the review, whether it is satisfied of the matters referred to in s 105A.12(4) of the Code. If the Court is satisfied of those matters, noting that the rules of evidence in civil matters apply to the review,[33] the Court’s discretion to affirm the order is enlivened.
[33]Section 105A.13(1).

As explained by Hollingworth J, in undertaking the periodic review, the Court is not limited to considering matters that have arisen since the ESO was made, and the parties are not bound by the findings made by John Dixon J in determining to make the ESO. In the periodic review, the task is not to commence by accepting all of the previous findings of fact and to ask what has changed since the ESO was made, but to instead undertake the necessary assessments at the time of the review, unfettered by the previous findings of fact.

This analysis is confirmed by the word ‘could’, twice appearing, in s 105A.12(4)(b).[34] Simplifying the rather cumbersome language of the section, in the case of an extended supervision order, the provision may be paraphrased as stating that the Court’s discretion to affirm an order is enlivened if, after having regard to the matters in s 105A.6B, the Court is satisfied that it could have made the order under s 105A.7A (or could have done so disregarding s 105A.7A(1)(c)). Section 105A.7A identifies the prerequisites to the making of an extended supervision order. Given that the existence of an extended supervision order is the essential context and subject of a periodic review, the word ‘could’ must be understood as directing the Court to consider whether, at the time of the review, the statutory requirements for the making of an extended supervision order are fulfilled.
[34]See above at [25].

Section 105A.7A[35] identifies three requirements to be met for a court to make an extended supervision order. The first, in paragraph (a) of s 105A.7A(1), relates to the formal conditions in relation to the making of the application.[36] It was uncontroversial that this was satisfied in the present review. The remaining two requirements are, in substance, that the Court is satisfied that:
[35]See above at [28].
[36]These conditions are set out in s 105A.5 and require the application to specify the proposed enforcement period and include any documents sought to be relied upon, information about the offender’s age and specific material in relation to the proposed conditions of the extended supervision order.

(a) the offender poses an unacceptable risk of committing a serious Part 5.3 offence (s 105A.7A(1)(b)); and

(b) each of the conditions, and the combined effect of all of the conditions to be imposed on the offender by the order, is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from that unacceptable risk (s 105A.7A(1)(c)).

I separately consider each of these elements below.

Unacceptable risk

In Minister for Home Affairs v Benbrika, Hollingworth J summarised the meaning and approach to ‘unacceptable risk’ in the context of a periodic review of a continuing detention order in which the concept arises by operation of paragraph (a) of s 105A.12(4) and the reference therein to s 105A.7. It is clear that the words ‘unacceptable risk’ in paragraphs (b) and (c) of s 105A.7(1) carry the same meaning where they appear in the equivalent provision dealing with extended supervision orders in s 105A.7A(1)(b) with which the Court is presently concerned. Referring to Court of Appeal authority, Hollingworth J stated as follows:[37]
[37]Minister for Home Affairs v Benbrika (First review) (n 34), [48]–[51] (citations omitted).

In Nigro v Secretary to the Department of Justice (‘Nigro’), the Court of Appeal described the concept of unacceptable risk as a flexible one, which is calibrated to the nature and degree of the risk, so it can be adapted to the particular case.
Whether a risk is unacceptable requires consideration of both the degree of likelihood of the risk eventuating, and the seriousness of the consequences if it does. The risk of offending must carry a threat of harm to members of the community that is sufficiently serious as to make the risk of the commission of the offence unacceptable to the court.
The Court of Appeal in Nigro stated:
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or sentences which are attracted by the relevant offence.

In NSW v Naaman (No 2) (‘Naaman’), the NSW Court of Appeal said of relevantly similar legislation that, even if there is a slim probability of the offender committing a terrorist act, the risk may be unacceptable having regard to the consequences of such an act.

Consistently with these principles, in his reasons for judgment for making the ISO in the previous proceeding, John Dixon J stated:[38]

The concept of unacceptable risk of committing a serious Part 5.3 offence is a flexible concept calibrated to the nature and degree of the risk and adaptive to the circumstances of each particular case. The critical assessment is the combination of the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. The gravity of the consequences will ordinarily be the critical factor in the assessment.
The statutory text, in speaking of ‘a serious Part 5.3 offence’, does not link the concept of unacceptable risk to any specific individual offence. It is sufficient to identify the risk as that of committing one or more serious Part 5.3 offences.[39]

[38]Attorney-General v Khan [2022] VSC 507, [27]-[28].

[39]Ibid [27]–[28] (citations omitted).

The assessment of whether there is an unacceptable risk of committing a serious Part 5.3 offence therefore calls for a joint focus on both the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.

In Benbrika v Minister of Home Affairs,[40] the Court of Appeal observed that, in some cases, perhaps many, it may not be possible to identify with precision a specific serious Part 5.3 offence that a terrorist offender might commit in the future.[41] In comments relating to s 105A.7(1)(b), which apply equally to s 105A.7A(1)(b), the Court stated that the provision:[42]

… permits a court to consider and identify the risk which the terrorist offender poses without necessarily linking that risk to a specific individual offence, as long as the risk which is ultimately identified is a risk of committing one or more serious Part 5.3 offences. Having identified any serious Part 5.3 offences which the terrorist offender poses a risk of committing, the court is then required to determine whether the threat of relevant harm is sufficiently serious to make the risk of the commission of those offences ‘unacceptable’.

[40][2021] VSCA 303.

[41]Ibid [73].

[42]Ibid [79].

In determining whether it is satisfied that Ms Sa’adat Khan poses an unacceptable risk of committing a serious Part 5.3 offence, pursuant to s 105A.7A(1)(b), the Court must have regard to the matters referred to in s 105A.6B. In doing so, it is necessary to examine all of the evidence as a whole, rather than taking a piecemeal approach.[43] It is the effect of the whole of the evidence which is important in determining whether Ms Sa’adat Khan poses an unacceptable risk of committing a serious Part 5.3 offence.[44]
[43]Ibid [99].
[44]Ibid [100].

The s 105A.6B matters

Each of the matters referred to in s 105A.6B to which the Court must have regard in determining whether Ms Sa’adat Khan poses an unacceptable risk of committing a serious Part 5.3 offence are considered below.

Protection of the community: s 105A.6B(1)(a)

The Court is required to have regard to the object of Division 105A, namely, to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to a continuing detention order or an extended supervision order.[45] The ‘community’ to which s 105A.6B(1)(a) refers is not limited to the Australian community; there is no basis to oppose any geographical limitation on the concept of ‘community’.[46]
[45]Section 105A.1 and see above at [22].
[46]Minister for Home Affairs v Benbrika (First review) (n 34), [63].

In relation to this consideration, the Attorney-General relied upon the evidence of Detective Superintendent Simone O’Mahony of the AFP. DS Simone O’Mahony is assigned to the New South Wales Joint Counter Terrorism Team which is responsible for preventing, disrupting and investigating terrorism activity, threats and incidents in New South Wales and is comprised of members from the AFP, New South Wales Police, New South Wales Crime Commission and the Australian Security Intelligence Organisation. DS O’Mahony is responsible for providing high-level operational oversight over highly sensitive terrorism investigations in New South Wales and the strategic management of domestic and international relationships with partner agencies involved in countering terrorism. She has overseen at least five significant AFP counter terrorism operations.

The Attorney-General relied upon DS O’Mahony’s evidence to inform the Court about the threats of domestic terrorism in Australia. In an affidavit made in August 2022 filed in the previous proceeding, DS O’Mahony expressed the view that the capacity of individuals to be radicalised into perpetrators of attacks at home and abroad by terrorist organisations, such as Islamic State, or influential people with extremist ideologies, remained a very real threat. In an affidavit affirmed in December 2023 as part of this review, DS O’Mahony expressed the view that the risk of domestic terrorism from Islamic State remained in Australia, but had become less relevant. The greater risk of domestic terrorism in Australia was now from that inspired or encouraged by Hamas, Hezbollah and from the current Israel-Hamas conflict. She considered that there was a real possibility that individuals with extremist views would exploit that conflict, and the community sentiment of perceived injustices towards Muslims and Palestinians, to incite violence.

In closing submissions, senior counsel for Ms Sa’adat Khan submitted that the Court should only have regard to the DS O’Mahony’s evidence so far as it was directed at the proportionality of the conditions of the ESO (considered later in these reasons), and that the Court should not find that DS O’Mahony was an expert in terrorism.

I reject this submission. Senior counsel for Ms Sa’adat Khan appeared to accept that DS O’Mahony had the relevant expertise in relation to terrorism to give the opinion evidence contained in her various affidavits. I am satisfied that she clearly has such expertise. Moreover, the submission made on behalf of Ms Sa’adat Khan is unsustainable given that no objection was taken to the affidavits affirmed by DS O’Mahony being received into evidence, in circumstances where the Attorney-General had articulated in written submissions the reliance he intended to place on that evidence, and where DS O’Mahony was not required for cross-examination.

I accept DS O’Mahony’s evidence in relation to the current state of the threat of domestic terrorism to which I have referred above. There is no other evidence before the Court on that topic.

Assessment by relevant experts: paragraphs (b) and (c) of s 105A.6B(1)

In broad terms, paragraphs (b) and (c) of s 105A.6B(1) require the Court to have regard to any assessment by a ‘relevant expert’ of the risk of an offender committing a serious Part 5.3 offence.

The only evidence from a relevant expert which the Court received in the periodic review was that tendered by the Attorney-General, being three affidavits affirmed by Dr Chelsey Dewson, a forensic psychologist, on 9 November 2023, 18 January 2024 and 30 January 2024. Dr Dewson annexed to her affidavits five reports which she prepared in relation to Ms Sa’adat Khan dated 17 March 2023, 10 October 2023, 2 November 2023, 22 December 2023 and 29 January 2024. Key aspects of the contents of the reports prepared are summarised in [58] – [76] below.

It is significant that Ms Sa’adat Khan did not challenge the receipt into evidence of any of the affidavits made by Dr Dewson, or the reports annexed thereto, and did not require her for cross-examination. Neither did Ms Sa’adat Khan seek to adduce any evidence from a psychologist (or other relevant expert).

Although it was uncontroversial that Dr Dewson was a relevant expert within the meaning of the Code,[47] the parties were in dispute about how I should characterise the overall import of her evidence and how much weight I should give to it. Senior counsel for Ms Sa’adat Khan sought to resist the submission advanced by senior counsel for the Attorney-General that, based principally on the manner in which Dr Dewson’s evidence had been positively characterised in various other cases, I should regard her as a highly qualified, experienced and professional expert and attach considerable weight to her opinions.
[47]A ‘relevant expert’ includes a registered psychologist: s 105A.2.

The kernel of this dispute concerns the veracity and reliability of one of the two assessment instruments used by Dr Dewson to assess the risk posed by Ms Sa’adat Khan: the ‘Violent Extremism Risk Assessment – Version 2 Revised’ (VERA-2R). The VERA-2R tool has been the subject of a number of criticisms in the academic and research literature. As a consequence, the Attorney-General acknowledged that Hollingworth J may make adverse comments about the VERA-2R tool in other proceedings currently before the Court in which the controversy in relation to VERA-2R has been ventilated and examined. Senior counsel for Ms Sa’adat Khan submitted that, in the event that adverse comment is made about the VERA-2R tool and/or Dr Dewson’s evidence in other proceedings presently before the Court, this may affect the view which might now be taken of the various favourable comments made by judges about Dr Dewson’s evidence in other proceedings which, it would appear, was based at least in part upon her use of the VERA-2R tool.

In the circumstances of this periodic review, it is unnecessary to further engage with this controversy and it would be inappropriate to do so. First, Dr Dewson’s assessment of the risk posed by Ms Sa’adat Khan was not based solely upon the VERA-2R tool. It was also based upon another assessment tool,[48] other information which Dr Dewson was provided, two interviews with Ms Sa’adat Khan, and from Dr Dewson’s substantial experience in working with terrorist offenders. Secondly, Ms Sa’adat Khan has not sought to challenge Dr Dewson’s evidence in this review and has not adduced her own expert evidence. This proceeding is therefore not an appropriate vehicle to engage with controversies raised in other proceedings in relation to the VERA-2R tool.
[48]Known as the ‘Level of service/Case management inventory’.

Dr Dewson is a relevant expert with substantial experience in assessing the risk posed by terrorist offenders. Having carefully read each of the reports she prepared for use in this review and in the absence of any cross examination of their contents, I found their contents to be cogent, measured and well-reasoned. In the absence of any challenge made to Dr Dewson’s evidence, I have no difficulty in accepting her evidence as to the risk posed by Ms Sa’adat Khan.

It is helpful to consider the reports[49] prepared by Dr Dewson in chronological order.

Dr Dewson’s report dated 10 October 2023

[49]Given my observations about the VERA-2R tool, I do not address Dr Dewson’s report dated 17 March 2023 because it pertains specifically to her use of that tool and her consideration of its reliability.

Dr Dewson’s report dated 10 October 2023 was prepared after she interviewed Ms Sa’adat Khan on 7 September 2023. On the basis of that interview and by reference to a large number of documents provided to her by the solicitors for the Attorney-General, Dr Dewson produced an updated[50] risk assessment in relation to Ms Sa’adat Khan.
[50]Dr Dewson had previously prepared reports in relation to Ms Sa’adat Khan which were not in evidence before me.

In considering ‘risk factors’, Dr Dewson recorded that, according to Ms Sa’adat Khan, she no longer held a commitment to any ideology that justified the use of violence. She denied supporting terrorist organisations or holding any current grievances. Dr Dewson expressed the view that Ms Sa’adat Khan’s disavowal of any current grievances might reflect an element of ‘positive impression management’. Although Dr Dewson confirmed that there were no overt indications that Ms Sa’adat Khan had rejected democratic society and its values, she noted that she had developed few new social relationships in the community. Dr Dewson stated that Ms Sa’adat Khan did not appear to be planning to commit a terrorism offence and noted that she strongly denied any intent or motivation for such action. There was also no evidence that Ms Sa’adat Khan had accessed extremist material since her release from custody.

Dr Dewson remained of the opinion, which she expressed in an earlier report, that Ms Sa’adat Khan was highly susceptible to influence, control and indoctrination, being one of her primary risk factors. Dr Dewson remained concerned about Ms Sa’adat Khan’s social interactions, in that she remains ‘socially isolated in the physical realm and continues to seek out (at times through unsolicited messages) online relationships’. Dr Dewson did not consider that Ms Sa’adat Khan had yet adequately demonstrated the capacity to form meaningful relationships with ‘pro-social’ people.

Turning to ‘protective factors’, Dr Dewson identified a number of positive changes which affected Ms Sa’adat Khan’s risk profile. She noted that Ms Sa’adat Khan continued to state that she had reinterpreted her ideology, and no longer held a commitment to religious ideologies which justified the use of violence. Since her release, Ms Sa’adat Khan had engaged with CISP and her participation in that program had been discussed in positive terms. Ms Sa’adat Khan had engaged positively with [redacted] and there had been improvements in [redacted]. Ms Sa’adat Khan had been generally compliant with her supervision and had demonstrated a willingness and capacity to follow rules. Dr Dewson noted however that Ms Sa’adat Khan’s [redacted], she continued to have little in the way of other positive community-based interactions or social support networks.

Although Ms Sa’adat Khan had made progress which was likely to reduce her overall risk profile, Dr Dewson considered that she remained at a ‘low-moderate risk of committing a terrorism offence’. Her most prominent risk factors were a susceptibility to influence and her motivation for social connectedness and group belonging. Dr Dewson considered that this required ongoing skill development and risk mitigation.

Dr Dewson identified Ms Sa’adat Khan’s most likely risk scenario as one involving her committing a similar offence to the Index Offence, that is, supporting or assisting others to engage in violent acts abroad. It was possible that Ms Sa’adat Khan might assist or support others to engage in acts of violence in Australia, but this was less likely. The possibility that Ms Sa’adat Khan might personally engage in an act of religious inspired violence in Australia was a low risk.

Overall, Dr Dewson considered that Ms Sa’adat Khan had made positive progress in the community and demonstrated her willingness to comply with the ESO. The main concerns related to her ongoing social isolation and her tendency to form connections with people online. Although Ms Sa’adat Khan’s risk profile had likely reduced, she remained a low-moderate risk of committing a terrorist offence.

Dr Dewson’s report dated 2 November 2023

Dr Dewson reinterviewed Ms Sa’adat Khan on 13 October 2023, having also been provided with further material by the Attorney-General’s solicitors. She produced an updated risk assessment in her report dated 2 November 2023.

Dr Dewson expressed the view that Ms Sa’adat Khan’s online behaviour, including seeking contact with unknown people, remained of concern, but that it appeared that she was becoming more engaged socially in the physical realm. Dr Dewson remained of the opinion that Ms Sa’adat Khan presented a low-moderate risk of committing a terrorist offence. She also cautiously advanced an apparently more finely calibrated assessment: that Ms Sa’adat Khan was ‘more towards the low end’ of that range.

Dr Dewson’s report dated 22 December 2023

After being provided with further information by the Attorney-General’s solicitors, Dr Dewson provided a further update of Ms Sa’adat Khan’s risk assessment in a report dated 22 December 2023.

Dr Dewson noted that the new information provided to her suggested that Ms Sa’adat Khan was taking more of an interest in political events unfolding in the Middle East. She noted that the holding of grievances was a risk factor for terrorist offending and that, although it was unclear if Ms Sa’adat Khan held any specific grievances (and had denied that she did in the recent interview), it was possible that they could develop as a result of her ongoing exposure to posts which depict weapons, death, and which make clear the demarcation between Muslims and non-Muslims.

Dr Dewson also noted that Ms Sa’adat Khan had viewed posts which delegitimised democratic processes (such as the 2023 referendum), and that she had investigated how to remove herself from the electoral roll, in circumstances where she had been fined due to her failure to vote. Ms Sa’adat Khan did not vote in the November 2022 Victorian State Election or in the 2023 federal referendum. This was said to be at odds with her previous statements that she supported democratic processes and planned to vote in upcoming elections. Dr Dewson considered that it was more likely that Ms Sa’adat Khan had engaged in ‘impression management’ in the previous interview. Dr Dewson referred to the rejection of democratic processes as being a risk factor for terrorist offending.

Despite this new information, Dr Dewson considered that there was no change in Ms Sa’adat Khan’s risk rating and that she remained a low-moderate risk of committing a serious Part 5.3 offence.

Dr Dewson’s report dated 29 January 2024

Dr Dewson’s final report dated 29 January 2024 was prepared shortly before the hearing of the periodic review and provided a further reassessment of Ms Sa’adat Khan’s risk of committing a serious Part 5.3 offence in light of additional further information provided to Dr Dewson by the Attorney-General’s solicitors.

Dr Dewson narrated the following positive changes in Ms Sa’adat Khan’s circumstances (since her release from custody):

Ms Sa’adat Khan has made progress in various areas of her life since her release from custody and she generally appears to have transitioned into the community without any significant difficulties. [redacted]. Ms Sa’adat Khan has been largely compliant with the ESO conditions, noting a recent verbal warning for a breach of her conditions, which was not considered to have constituted a threat to national security. She has maintained engagement with her psychologist, [redacted]. Ms Sa’adat Khan has continued to work with her CISP mentors and has positive [redacted]. She largely appears engaged and motivated to benefit from the ESO and no significant compliance issues are noted.

Despite these positive developments, Dr Dewson nevertheless considered that Ms Sa’adat Khan continued to present with some vulnerabilities which were associated with a risk of recidivistic behaviour. These risks related to her social disconnection and her online activity, some of which was similar to that which occurred at the time of her offending. She had also encountered barriers to forming pro-social friendships, although some progress had been made. According to Dr Dewson, Ms Sa’adat Khan ‘continues to spend periods alone in her bedroom, where her use of social media is her primary source of social connection. This is not dissimilar to her circumstances at the time of her offending’.

In relation to Ms Sa’adat Khan’s interest in events unfolding in the Middle East, Dr Dewson noted that Ms Sa’adat Khan continued to access material relating to the Palestine-Israel conflict which was heavily pro-Palestine. Although this was not necessarily problematic, given Ms Sa’adat Khan’s history, this was relevant to her risk of engaging in recidivistic behaviour. Further, although Ms Sa’adat Khan did not appear to be personally espousing any opinions about the conflict, the material which she accessed online supported the rhetoric of prejudice and genocide towards Muslims, projected a hatred towards Israel and the United States of America, and did so with undertones of violence. From a risk perspective, these matters were associated with perceived grievances/injustices and a strong demarcation between ‘us and them’. Furthermore, the accessing of graphic material depicting injured or deceased people including children, which Ms Sa’adat Khan had done, was likely to elicit emotional reactions. An emotional response to perceived grievances was a risk factor for terrorism offending.

Dr Dewson also referred to her previous statements about Ms Sa’adat Khan’s actions which could be seen to demonstrate a rejection of democratic society. The rejection of democratic processes was another risk factor for violent extremism.

In conclusion, Dr Dewson stated that her opinion about Ms Sa’adat Khan’s risk of engaging in a terrorist offence, as expressed in her report of 10 October 2023, remained unchanged. Ms Sa’adat Khan was a ‘low-moderate risk of committing a terrorist offence’, with the risk likely falling at the lower end of that spectrum. Although Ms Sa’adat Khan had made progress, Dr Dewson remained concerned about Ms Sa’adat Khan’s ‘social isolation, online activities and her increasing interest in the political events unfolding overseas, noting that these circumstances are not too dissimilar to the context in which the index offence unfolded’.

Management in the community: s 105A.6B(1)(d)

Pursuant to s 105A.6B(1)(d), the Court is required to have regard to any report relating to the extent to which Ms Sa’adat Khan can reasonably and practicably be managed in the community which has been prepared by corrective services, or any other person or body who is competent to make that assessment. The Court does not have before it any evidence of this type.

Participation in rehabilitation programs: s 105A.6B(1)(e)

In assessing whether Ms Sa’adat Khan poses an unacceptable of committing a serious Part 5.3 offence, the Court is required to have regard to any treatment or rehabilitation programs in which she has had an opportunity to participate and the level of her participation in any such programs. In having regard to Ms Sa’adat Khan’s ‘level of participation’ in treatment and rehabilitation programs, I accept that the Court should also consider the outcome or result of her participation in those programs.[51]
[51]Minister for Home Affairs v Benbrika (First Review) (n 34), [82].

Ms Sa’adat Khan attended appointments with a psychologist on about a weekly basis between October 2022 and April 2023 and subsequently (and continuing) on a fortnightly basis (on the psychologist’s suggestion). She has attended all scheduled sessions with her psychologist, except for a small number of occasions when she was unwell, or if the psychologist cancelled the session.

Ms Sa’adat Khan has given positive reports about her [redacted]. She has expressed a desire to continue to see the psychologist, irrespective of whether an extended supervision order is in place. [redacted].

As I have noted, the ‘Community Integration Support Program’ is a terrorist disengagement program. Ms Sa’adat Khan attended her first CISP session on 2 September 2022 and she has a dedicated mentor as part of her participation in the program. She has attended all scheduled sessions with her mentor unless sick, and has reported in advance when she has been unable to attend.

[redacted].

[redacted].

It is significant that Ms Sa’adat Khan’s engagement in the CISP is voluntary; she is not obliged by the ESO to participate in the program. Ms Sa’adat Khan has actively engaged with the program immediately after her release from custody. The voluntariness of her engagement with CISP supports the likelihood that she will continue to engage with the program until the expiry of the ESO.

Ms Sa’adat Khan’s level of compliance with the ESO: s 105A.6B(1)(f)(ii)

The Attorney-General accepted that, other than a small number of minor or inadvertent breaches, Ms Sa’adat Khan has complied with the ESO (and the previous ISOs).

In acknowledging that there had been substantial compliance with the conditions in the ESO, the Attorney-General also accepted that it appeared that Ms Sa’adat Khan has taken the conditions seriously, has sought to comply with them, has sought clarification when their operation was not clear to her, and has reported inadvertent breaches in a timely way.

Ms Sa’adat Khan’s history of prior terrorism offending: s 105A.6B(1)(g)

Ms Sa’adat Khan pleaded guilty to the Index Offence and a subsidiary offence related to her failure to provide a passcode for a mobile phone pursuant to a warrant relating to a serious terrorism offence. The facts relevant to the offending are summarised in [17]-[21] above. The Index Offence to which Ms Sa’adat Khan pleaded guilty carries a maximum penalty of 25 years’ imprisonment. It is an inherently serious offence.

Ms Sa’adat Khan had not offended prior to her conviction for the Index Offence.

Views of the sentencing court: s 105A.6B(1)(h)

In his reasons for sentence given on 10 June 2022,[52] Maidment J referred to the offence in s 102.7(1) of the Code for which Ms Sa’adat Khan was charged as being ‘a very serious offence’,[53] it always being ‘a very serious offence when anybody dabbles in terrorist activity’.[54] However, the judge considered that the circumstances of the Index Offence fell towards the low end of the scale.[55] With respect, I agree with all of these observations by the sentencing judge.
[52]DPP v Sa’Adat Khan [2022] VCC 959.
[53]Ibid [57].
[54]Ibid.
[55]Ibid [34]-[57].

I also have had regard to the judge’s observations that Ms Sa’adat Khan was a young person at the time of the offending which occurred in a context where she was socially isolated to a point that she was susceptible at a young age to online communications leading to her radicalisation.[56]
[56]Ibid [59].

In sentencing Ms Sa’adat Khan, the judge also had regard to the absence of any evidence from Ms Sa’adat Khan of general remorse or evidence that she had renounced her adherence to violent jihad and was on the path to deradicalisation.[57] He assessed that Ms Sa’adat Khan’s prospects of rehabilitation were ‘probably no more than guarded, but not hopeless’.[58]
[57]Ibid [50]-[58].
[58]Ibid [54].

The observations of the sentencing judge referred to in the previous paragraph have, in part, been overtaken by events over the intervening 18 months. Ms Sa’adat Khan has subsequently affirmed an affidavit filed in the previous proceeding in which she renounced her adherence to violent jihad and, as outlined in [78]-[84] above, she has demonstrated a consistent and sustained participation in rehabilitation programs which have had a positive effect.

Consideration of other orders: s 105A.6B(1)(ha)

Paragraph (ha) of s 105A.6B(1)(ha) requires the Court to consider whether Ms Sa’adat Khan is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order. There is no evidence that Ms Sa’adat Khan is subject to such an order. Neither party made any submissions in relation to this matter.

Other matters

In addition to the matters set out in s 105A.6B(1), in determining whether Ms Sa’adat Khan poses an unacceptable risk of committing a serious offence, the Court may have regard to any other matter it considers relevant.[59] The Attorney-General submitted that I should have regard to five additional matters.
[59]See s 105A.6B(2).

First, it was submitted that the details of Ms Sa’adat Khan’s present ideology were unclear. Reliance was placed on the fact that Ms Sa’adat Khan collected extremist material and communicated with fellow extremists from at least October 2014 until she was first arrested on 23 January 2018, and then continued to do so thereafter until her subsequent arrest on 25 February 2020. It was submitted that the position then becomes unclear. Letters written by Ms Sa’adat Khan until August 2020 show an adherence to some Islamic State views, but her diary entries between 30 March 2020 and 19 May 2020 do not indicate any an ongoing adherence to an extremist ideology.

The Attorney-General emphasised the sentencing judge’s observations in June 2022 that he was unable to conclude that Ms Sa’adat Khan had renounced adherence to violent jihad. Although Ms Sa’adat Khan subsequently gave evidence in the previous proceeding that she had renounced an extremist ideology, this had only occurred relatively recently, meaning that there had not been a sufficiently long period to properly assess her behaviours and actions. Further, there was no direct evidence about Ms Sa’adat Khan’s present ideology or the circumstances, if any, in which she might support violent action on behalf of Muslim people. There was likewise no evidence about her views concerning the content she has accessed online, whether she has heard any more extreme views or calls to action, and her response to such material. Further, Ms Sa’adat Khan’s statement to Dr Dewson that she no longer held any commitment to an ideology that justified the use of violence and denied supporting terrorist organisations, needed to be viewed in the context of Dr Dewson’s comment that this may have reflected an element of ‘positive impression management’ about this topic.

These submissions are unpersuasive. They give insufficient weight to the fact that Ms Sa’adat Khan has, in sworn evidence, renounced an extremist ideology. They also ignore her participation in CISP which has been effective and sustained over time. Ms Sa’adat Khan’s engagement with this program has been directed at, amongst other things, developing a healthy sense of self-identity as an Australian Muslim. She has reported that the program has been particularly helpful for her, giving her a new perspective of Islam which is ‘more balanced’.[60] This is consistent with and supported by the views of both Dr Dewson and Victoria Police.
[60]See above at [81]-[84].

Secondly, the Attorney-General drew attention to Dr Dewson’s observations and opinions that Ms Sa’adat Khan was not engaging in the democratic processes in Australia, including by viewing social media posts concerning the delegitimisation of democratic processes, investigating and removing herself from the electoral roll and failing to vote.

The bases on which this submission was advanced were not the subject of challenge; I accept the submission as being consistent with the evidence.

Thirdly, the Attorney-General focused on what was said to be the important role played by Ms Sa’adat Khan’s family in the circumstances of this case. [redacted]. On the one hand, she has supportive and strong relationships with her siblings, and in particular with her sister-in-law. [redacted].

I generally agree with this submission, save that the emphasis given to [redacted] is overstated. While it would appear that [redacted] her mother, have become more accepting of her independence, and that she has more freedom, principally from having obtained employment and her driver’s licence.

Fourthly, the Attorney-General referred to John Dixon J’s assessment in the previous proceeding that Ms Sa’adat Khan’s greatest risk arises from her susceptibility to influence, control and indoctrination, which requires targeted interventions by way of mitigation. Although Ms Sa’adat Khan’s interactions with CISP and her psychologist demonstrate good progress, it was submitted that there had been little progress in relation to her broader social interactions. Particular weight should be given Dr Dewson’s considered view about Ms Sa’adat Khan’s lack of new social relationships which remained an ongoing risk factor for her.

Further, Ms Sa’adat Khan had had several interactions with persons online who had expressed conservative religious views and she had viewed social media profiles of persons holding more extreme views. Although conservative views were not problematic in and of themselves, there was a short step between such views and the more extreme views that Ms Sa’adat Khan has held. Ms Sa’adat Khan’s continued social isolation and limited social interactions and her associated vulnerability to manipulation or indoctrination remained an important risk factor.

I generally accept this submission. It must be recognised, as senior counsel for the Attorney-General acknowledged, that the situation is now different to that which was considered by John Dixon J more than 12 months ago and which resulted in the making of the ESO. However, despite the good progress Ms Sa’adat Khan has made with the CISP and her psychologist, and the important steps she has taken in developing her independence and engagement with the community, she remains socially isolated and vulnerable to manipulation or undue influence, particularly through her online activities. In that regard, it is relevant that, since the ESO was made, Ms Sa’adat Khan has made unsolicited contact with people on social media.

Fifthly, the Attorney-General emphasised the current overseas conflicts in the Middle East as representing a new feature of the factual landscape in assessing Ms Sa’adat Khan’s risk. DS O’Mahony had identified these conflicts as a source of terrorism risk in Australia. Ms Sa’adat Khan had engaged with material in relation to the current overseas conflicts. It was submitted that this was a situation ripe to inflame grievances and actions in response, which might include the provision of inappropriate support.

I accept that these developments are relevant and should be given weight given they engage with the risk factors identified by Dr Dewson in her evidence.

Condition 2 (psychological assessment and treatment)
(a)You must schedule an assessment with a psychologist or psychiatrist registered with the Australian Health Practitioner Regulation Agency, to be paid for by the Commonwealth, to take place as soon as possible, to determine whether you would benefit from psychological treatment.
(b)You must undergo the assessment at the date, time and location that you have booked, and if you are assessed as benefiting from treatment, you must undergo the recommended treatment, to be paid by the Commonwealth.
Condition 3 (disengagement)
(a)You must provide any information in relation to your participation in a tailored violent extremism disengagement and rehabilitation program, at no cost to you, that is requested by your case manager.
Condition 4 (permitted mobile phone)
(a)You must not access or use any mobile telephone device other than the mobile telephone device and SIM card provided to you by the AFP Superintendent (the permitted mobile phone), except in the case of an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone. Your use of the permitted mobile phone is subject to the following Conditions:
(i)You must have the permitted mobile phone in your possession at all times;
(ii)You must answer any call that you receive from the AFP Superintendent on the permitted mobile phone, or as soon as reasonably practicable, return such a call that you were unable to answer;
(iii)You must not tamper with, damage or destroy, any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone;
(iv)You must present the permitted mobile phone for inspection, repair, service or replacement at any time requested by the AFP Superintendent;
(v)You must not change, remove, modify or disconnect the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone;
(vi)You must not use encryption or obfuscation services to prevent examination of data and you must provide any account credentials or access data to facilitate the examination of the permitted mobile phone;
(vii)If you set account credentials for the permitted mobile phone, or change the account credentials for the permitted mobile phone, you must provide the new account credentials to the AFP Superintendent within 12 hours of doing so; and
(viii)If you become aware that a permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order, you must notify the AFP Superintendent as soon as practicable, but no later than 12 hours after becoming so aware.
(ix)You must present the permitted mobile phone and any mobile phone provided to you in accordance with Condition 4(g)(i) for inspection at any reasonable time as requested by the AFP Superintendent, and open any applications the AFP Superintendent directs you to open.
(b)You are prohibited from permitting or causing another person to use or access any mobile telephone device on your behalf except in the case of an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone.
(c)If you have used another mobile device, or permitted the use of another mobile device, in the case of an emergency or to notify the AFP Superintendent as soon as possible and provide any information requested by the AFP Superintendent.
(d)You must not deliberately delete or alter, or cause or permit any other person to delete or alter, any applications, emails, text message, electronic message, call history, any data, internet or application search history, any application chat or communication history stores on or accessible from the permitted mobile phone, permitted computer or tablet device, or any other electronic device that you have used (whether or not permitted by this Order), or partition any drive.
(i)This includes not using any platforms, applications, programs, services or software, including but not limited to those referred to in Condition 8, to alter, conceal, automatically delete or otherwise erase any of the above.
(e)Condition 4 does not prohibit you from allowing software updates to the permitted mobile phone
(f)You must comply with any reasonable direction given to you in writing by the AFP Superintendent in relation to this condition.
(g)Nothing in the above conditions prohibits you from:
(i)using another mobile phone provided to you by an employer for the purposes of your employment or legitimate business activities; provided that you seek a written approval of your use of any such mobile phone from the AFP Superintendent as soon as you are able to and within 12 hours of being provided with any such mobile phone. You may use such mobile phone unless and until your request for approval is denied by the AFP Superintendent;
(ii)using the mobile phones of members of your immediate family to speak to other members of your immediate family.
(h)If approval is granted for you to use a mobile phone under Condition 4(g)(i), you must provide the AFP Superintendent any account credentials for that mobile phone.
Condition 5 (computers, tablets and other devices)
(a)You must not access or use any computer, tablet or other device that is capable of accessing the internet other than the device that has been provided to you by the AFP Superintendent, or has otherwise been approved in writing by the AFP Superintendent (the permitted computer, tablet or other device), except in the case of an emergency.
(b)If you use or access any computer, tablet or other device in a time of emergency, you must notify the AFP Superintendent as soon as possible after the emergency and provide any information requested by the AFP Superintendent.
(c)However, Condition 5(a) does not prohibit access to or the use of:
(i)An Automated Teller Machine;
(ii)An EFTPOS terminal;
(iii)A computer or tablet device, gaming device or application or smart TV owned by a business or government agency, which is made for your use to facilitate contact tracing, telehealth services, the ordering or sale of food or consumer products or the provision of a service; or
(iv)A Smart TV, which is used by you only for the purposes of watching the services set out in Condition 9(c).
(d)If approval is granted for you to use a computer, tablet or other device under Condition 5(a) other than one provided to you by the AFP Superintendent, you must provide the AFP Superintendent the account credentials for that computer, tablet or other device.
(e)You must not tamper with, damage or destroy any component of the permitted computer tablet or other device or any equipment necessary for the operation of the permitted computer tablet or other device, or direct, cause or permit another person to do any of those things.
(f)You must not delete or modify, or permit or cause another person to delete or modify, any platforms, programs, software or data (including, but not limited to, software programs, emails, and internet history) stored on or accessible from the permitted computer, tablet or other device, or partitioning any drive. You also must not use encryption or obfuscation services to prevent examination of data and where applicable are required to provide any account credentials or access data to facilitate the examination of the permitted computer tablet or other device.
(g)Conditions 5(a) and (f) do not prohibit you from allowing software updates to the permitted computer, tablet or other device.
(h)You must present the permitted computer, tablet or other device and any device issued to you in accordance with condition 5(k) for inspection at any time requested by the AFP Superintendent, and open any applications the AFP Superintendent directs you to open.
(i)If you set account credentials for the permitted computer, tablet or other device, or change the account credentials for the permitted computer, tablet or other device, you must provide the new account credentials to the AFP Superintendent within 12 hours of doing so.
(j)You must comply with any reasonable direction that the AFP Superintendent gives to you in writing in relation to your use of the permitted computer, tablet or other device or device issued by an employer as specified in Condition 5(a) and 5(k), including any direction that your use of the permitted computer, tablet or other device is subject to certain conditions.
(k)Nothing in the above conditions prohibits you from using the approved device or another device provided to you by an employer for the purposes of your employment or legitimate business activities; provided that you seek a written acknowledgement and approval of your possession and use of any such device from the AFP Superintendent as soon as you are able to and within 12 hours of being provided with any such devices. You may use any such device unless and until your request for approval is denied by the AFP Superintendent

Condition 6 (internet services)

(a)You must not access or use any internet service other than:

(i)the internet service provided to you by the AFP Superintendent (the permitted internet service);
(ii)An Automated Teller Machine;
(iii)An EFTPOS terminal;

(iv)A computer or tablet device, connected to an internet, service owned by a business or government agency which is made available for you to facilitate contact tracing, the ordering or sale of food or consumer products or the provision of a service; or
(v)A smart TV, which is used by you only for the purposes of watching the services set out in Condition 9(c).

(b)You must not connect to, access or use any wireless (Wi-Fi) network or connection, including the Wi-Fi network or connection enabled from the residence at condition 12, except for the permitted internet service.
(c)You must not cause or permit another person to access or use any internet service on your behalf (including the permitted internet service), unless the person using or accessing the internet service (including the permitted internet service) is the AFP Superintendent.
(d)Condition 6 is an 'exemption condition'. Refer to 'Exemption' below to apply for a temporary exemption to this condition.
(e)Nothing in this condition prohibits you from engaging in the activities set out in conditions 4(g) or 5(k).

Condition 7 (fixed or landline telephone services and public telephones and other communication devices)
(a)You must not access or use any fixed or landline telephone service, including any public telephone, or facsimile service, other than a service that has been approved in writing by the AFP Superintendent, except in the case of an emergency or to notify the AFP Superintendent of a fault to the permitted mobile phone.
(b)If you have used a fixed or landline telephone service in such circumstances, you must notify the AFP Superintendent as soon as possible and provide any information requested by the AFP Superintendent.
(c)You must not access or use any satellite telephone service or UHF/VHF radio.
(d)This condition does not prohibit you from using a fixed or landline telephone for the purposes of employment or legitimate business activities; provided that you seek a written approval of your use of any such fixed or landline telephone from the AFP Superintendent as soon as you are able to and within 12 hours of beginning to use any such fixed or landline telephone. You may use any such fixed or landline telephone unless and until your request for approval is denied by the AFP Superintendent
(e)You must comply with any reasonable direction that the AFP Superintendent gives to you in writing in relation to your use of any fixed or landline telephone for the purposes of employment or legitimate business activities as specified in Condition 7(d).
Condition 8 (computer programs and platforms)
(a)You must not use or access applications or computer programs (collectively, platforms), save for WhatsApp, TikTok, or Instagram, unless:
(i)The platform has been installed to your permitted mobile, permitted computer, tablet or any other permitted device from which you can access applications or computer programs, at the time it is first provided to you, and you use the platform on the permitted devices; or
(ii)You first obtain written approval from the AFP Superintendent to use the platform. Permission may be granted, subject to conditions and may be amended or revoked by the AFP Superintendent. Any conditions, amended conditions or revocation must be in writing.
(b)In addition to the platforms referred to in Condition 8(a), you must not access or use, or cause or permit any person to access or use on your behalf:
(i)Any Voice Over Internet Protocol (VOIP) service;
(ii)Any internet-based messaging service (excluding short-message-service (SMS) and/ or multimedia-messaging-service (MMS);
(iii)Any applications, programs or websites that can be used for communication, including social media services, applications and email services (other than the service permitted by Condition 11, WhatsApp, TikTok, or Instagram);
(iv)Any internet based messaging service, including any software, mobile application, or hardware;
(v)Any gaming applications or software that connects to other users or servers, via the internet or Local Area Network (LAN).
(c)Condition 8(b) does not prohibit access to or the use of:
(i)A website which includes an 'instant chat' function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service.
(ii)Any platform, VOIP or website for the purpose of participating in any proceeding in an Australian Court to which you are a party or witness.
(iii)WhatsApp, TikTok, or Instagram.
(d)You must comply with any reasonable direction that the AFP Superintendent gives to you in writing in relation to your use of any platform, program or application, installed on your mobile device or approved device, or that you otherwise use as allowed by these conditions, including any direction that your use of the platform is subject to certain conditions.
(e)Condition 8 is an 'exemption condition'. Refer to 'Exemption' below to apply for a temporary exemption to this condition.
(f)Subject to obtaining written acknowledgement from the AFP Superintendent of your intention to do so in respect of each application, you may download and use on either your permitted mobile phone or any other approved device, the following social media applications: WhatsApp, TikTok, or Instagram, provided account credentials are communicated in writing to the AFP Superintendent within 12 hours of download and setup of the application. You shall not use more than one account/username/alias and use of any of these platforms is to be strictly in accordance with the terms of this condition and conditions 4, 5, 6, and 7. Your use of any of these platforms will be subject to express regular inspection and review by your case manager and the AFP Superintendent or their delegates at such times and on such conditions as they may reasonably direct.

Condition 9 (producing, distributing, accessing or possessing prohibited documents)
(a)You must not carry out, or attempt to carry out, any of the following activities:
(i)Recording, copying, storing, collating, editing, producing or distributing documents (including documents in electronic form) or electronic media;
(ii)Directing any person to record, copy, store, collate, edit, produce or distribute documents (including documents in electronic form) or electronic media on your behalf;
(iii)Possessing, accessing or viewing documents (including documents in electronic form) or electronic media;
which relate to or depict in any manner, including by animation or computer generation, the prohibited matters.
(b)The prohibited matters for the purposes of Condition 9(a) are:
(i)Explosives, explosive devices, initiation systems or firing devices;
(ii)Firearms, ammunition or knives;
(iii)Anti-surveillance or counter surveillance;
(iv)Execution;
(v)Beheading;
(vi)Suicide attack;
(vii)Bombing;
(viii)Terrorist attack;
(ix)Assassination;
(x)Torture;
(xi)Genocide;
(xii)Martyrdom;
(xiii)Violent jihad;
(xiv)Any method of assault or murder by any means;
(xv)Material that provides instruction, demonstrates, describes, promotes or encourages any of the matters listed above at 9(b)(i) to 9(b)(iv);
(xvi)Propaganda and promotional material relating to any 'terrorist organisation'.
(c)Condition 9(a) does not apply to material:
(i)Published by a 'constituent body' of the Australian Press Council;
(ii)Published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;
(iii)Broadcast on Australian free to air television;
(iv)Broadcast on Australian pay television;
(v)Broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; Binge; ABC iView; 10play, 9Now, 7plus, SBS on Demand, Kayo Sports; Apple TV+, Paramount Plus or any other streaming service notified to you in writing by the AFP Superintendent;
(vi)Contained in material that is served on you or your legal representatives in any criminal prosecution or any proceedings in respect of Division 104 or Division 105A of the Code, including any appeal from, or application for leave or special leave to appeal from, such proceedings.
Condition 10 (associations)
(a)
You must not communicate or associate with, or attempt to communicate or associate with, directly or indirectly through a third party, any person who:
(i)
To your knowledge is incarcerated in a correctional facility, unless approved in writing by the AFP Superintendent;
(ii)To your knowledge is subject to a control order made under Division 104 of the Code;
(iii)To your knowledge has been convicted of, or is currently charged with, an offence against:
(1)      Subdivision A of Division 72, Part 5.3 or 5.5 of the Code;
(2)      the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth);
(iv)To your knowledge is located in Lebanon, Jordan, the West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia and Egypt, except for any person or classes of persons approved in writing by the AFP Superintendent;
(v)Is listed below:
(1)      AL-AHMADZAI, Milad, born 3 April 1990
(2)      ALLOUCHE, Mohammed, born 12 May 1999
(3)      ATAI, Masood, born 3 Feb 1991
(4)      ATAI, Milad, born 3 Jan 1996
(5)      BROOKMAN, Adam; born 16 March 1976
(6)      CAUSEVIC, Harun, born 29 January 1997
(7)      HALIS, Hanifi, born 3 September 1997
(8)      MUSLEH, Akram Ismail, born 28 October 1997
(9)      SHAFIQ, Maraym Bint, born 9 December 1998
(10)    SHOMA, Momena, born 14 April 1993
Condition 11 (email)
(a)
You must not access or use any electronic mail (email) account other than a Gmail account that has been approved by the AFP Superintendent for you to access or use (a permitted email account).
(b)You must not cause or permit any other person to use or access a permitted email account, unless the person using or accessing the specified permitted email account is the AFP Superintendent.
(c)You must not cause or permit any other person to access or use on your behalf any email account.
(d)Condition 11 is an ‘exemption condition’. Refer to ‘Exemption’ below to apply for a temporary exemption to this condition.
(e)
This condition does not prohibit you from using any email address supplied by your employer for the purposes of your employment, or for legitimate business reasons; provided that you seek a written acknowledgement and approval of your use of any email address from the AFP Superintendent as soon as you are able to and within 12 hours of being supplied any such email address, and that you provide the account credentials to the AFP Superintendent. You may use any such email address unless and until your request for approval is denied by the AFP Superintendent.
(f)
You must comply with any reasonable direction that the AFP Superintendent gives to you in writing in relation to your use of the email address supplied by your employer as specified in Condition 11(e).

Residence
(a)You must reside at [redacted] and not begin to reside at any other premises without the prior permission of your case manager.

Exemption
(a)
To request an exemption from the AFP Superintendent to the requirements and prohibitions (as the case may be) as specified in Conditions 6, 8 and 11 you must submit a written request to the AFP Superintendent which:
(i)

identifies the Condition in respect of which you seek an exemption;
(ii)explains the extent to which you seek to be exempted from the Condition; and
(iii)explains your reason(s) for seeking the exemption; and
(iv)provide any other information requested by the AFP Superintendent for the purposes of determining whether to approve the exemption.
(b)The AFP Superintendent may grant or refuse an exemption subject to Conditions specified in writing.
(c)You must comply with all of the Conditions specified in writing by the AFP Superintendent. If you do not comply with a Condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
(d)A request for an exemption must be made before the material time and date.
(e)If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
Exemption granted by the AFP without a request from you
(a)The AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Conditions with your consent.
(b)The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.
(c)You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a Condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
Approval from the AFP Superintendent
(a)To obtain permission or approval from the AFP Superintendent for the purposes of conditions 4(g)(i), 5(a), 5(k), 7(a), 7(d), 8(a)(ii), 10(a)(i), 10(a)(iv), 11(a) and 11(e) you must:

(i)Submit a written request to the AFP Superintendent; and
(ii)Provide any information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the request.
Offences
(a)
Section 105A.18A of the Code makes it an offence to contravene the Conditions of an extended supervision order.
(b)For the avoidance of doubt, you may commit an offence if you cause or permit any other person to do any of the actions prohibited by these conditions (as per Part 2.4 of the Code).
Interpretation
(a)In this Extended Supervision Order:
(i)Account Credentials means account credentials within the meaning of s 3ZZUK of the Crimes Act 1914 (Cth). It means information that a user of an online account, electronic device, or any electronic equipment, requires in order to access or operate the account, electronic device, or electronic equipment, and includes, for example, each of the following:
(1)A username;
(2)A password;
(3)A Personal Identification Number (PIN);
(4)Swipe pattern;
(5)A security question or answer;
(6)A biometric form of identification.
(ii)AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism and Special Investigations Command, and whose contact details are provided to you at the time of this Order coming into force, and any other member of the Australian Federal Police acting under the direction of or on behalf of the AFP
(iii)Case Manager means an employee of the Attorney-General’s Department whose contact details are provided to you at the time of this Order coming into force, and any other employee of the Attorney-General’s Department notified to you in writing for the purposes of this order.
(iv)Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.
(v)Terrorist organisation means a terrorist organisation within the meaning of s 102.1(1) of the Code.
(vi)Reasonable direction means a direction that is reasonable in all the circumstances to give effect to:
(1) the condition; or
(2) the object of this Division.

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[2024] VSC 58

26 February 2024