Attorney-General v Temssah
[2024] VSC 172
•12 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2024 00807
| ATTORNEY-GENERAL OF THE COMMONWEALTH | Plaintiff |
| v | |
| KHALED TEMSSAH | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 & 19 March 2024 |
DATE OF JUDGMENT: | 12 April 2024 |
CASE MAY BE CITED AS: | Attorney-General v Temssah |
MEDIUM NEUTRAL CITATION: | [2024] VSC 172* |
*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 an interim supervision order (ISO) under the Criminal Code Act 1995 (Cth) – Defendant sentenced to imprisonment for terrorism offences in 2021 – Sentence completed – Whether Court has jurisdiction to make an ISO after defendant released from custody – Whether there are reasonable grounds for considering that an extended supervision order will be made – Whether there are reasonable grounds for considering that each of the conditions to be imposed are reasonably necessary, and reasonably appropriate and adapted for the statutory purpose - Interim supervision order granted – Criminal Code Act 1995 (Cth), ss 105A.3A, 105A.5, 105A.6B, 105A.7A, 105A.9A, 105A.18 – New South Wales v BP (No 2) [2019] NSWSC 806; Attorney-General v Hadashah Sa’Adat Khan [2022] VSC 507; Minister for Home Affairs v Benbrika (First review) [2022] VSC 169; Attorney-General of the Commonwealth of Australia v Amin [2023] NSWSC 1586.
PRACTICE AND PROCEDURE – Judgments and orders – Suppression and pseudonym orders – Application to suppress various materials – Certain documents to be made confidential – Certain persons to be referred to by pseudonym – Regina v Lodhi [2006] NSWSC 596; R v Lodhi (2006) NSWLR 573; R v Benbrika & Ors (Ruling 1) [2007] VSC 141; ABC v D1; ex parte Herald & Weekly Times Ltd [2007] VSC 480.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Coghlan KC and Mr Tran with Mr Minson | Australian Government Solicitor |
| For the Defendant | Mr Nathwani SC with Ms Clark and Ms Grant | Robinson Gill Lawyers |
TABLE OF CONTENTS
Introduction............................................................................................................................ 1
Confidentiality and suppression........................................................................................ 5
Corrections Victoria 5
Chief Commissioner of Victoria Police 12
Jurisdictional objection...................................................................................................... 16
The offending....................................................................................................................... 23
Interim supervision orders - statutory requirements................................................... 26
‘Reasonable grounds for considering that an extended supervision order will be made in relation to the offender’...................................................................................................... 27
Unacceptable risk 29
Mr Temssah’s submissions 37
Consideration 41
‘Reasonable grounds for considering that each of the conditions to be imposed … is reasonably necessary, and reasonably appropriate and adapted …’......................... 43
Principles 43
The conditions 45
ANNEXURE A...................................................................................................................... 49
HIS HONOUR:
Introduction
On 15 September 2021, Khaled Temssah, an Australian citizen of Lebanese heritage, pleaded guilty to one charge of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity (the offence) contrary to s 119.4(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Code). In summary, between 3 June 2019 and 20 June 2019, Mr Temssah prepared to travel to a province in the Kashmir region of India declared by Islamic State to be ‘Wilayah Al-Hind’ (translated from Arabic as ‘Islamic State Province in India’), for the purpose of hostile activity.
The nature of the offence to which Mr Temssah pleaded guilty renders him a ‘terrorist offender’ within the meaning of Division 105A of the Code. He was sentenced to 4 years and 9 months’ imprisonment.[1] Mr Temssah completed his sentence and was released from custody on 18 March 2024.
[1]See R v Temssah [2021] VCC 1353.
In anticipation of Mr Temssah’s release from custody, on 26 February 2024 the Attorney-General for the Commonwealth commenced this proceeding seeking an order under s 105A.9A(4) of the Code that, upon his release from custody and for a period of 28 days, Mr Temssah be subject to an ‘interim supervision order’ (ISO). The order sought by the Attorney-General would require Mr Temssah to comply with some 21 conditions which, individually and collectively, would restrict his liberty in various ways.[2]
[2]Contravention of a condition imposed by an ISO may be an offence: s 105A.9A(6) of the Code.
One requirement to be met for the Attorney-General to seek an ISO in relation to a terrorist offender is that application also be made for an ‘extended supervision order’ (ESO) in relation to the offender.[3] The rationale for this requirement is apparent in light of two features of the statutory context established by the Code: (a) an ISO may be enforced for a period of no more than 28 days;[4] and (b) absent exceptional circumstances, the total period of all ISOs made in relation to an offender before the Court makes a decision on the application for an ESO, must not be more than 3 months. Self-evidently, an ISO is an order which may be made in respect of a terrorist offender for an interim period pending the determination in respect of them of an application for an ESO. The Attorney-General has sought that the Court make an ESO in respect of Mr Temssah for a period of 2 years. The hearing of that application is fixed to commence on 30 April 2024.
[3]Section 105A.9A.
[4]Section 105A.9A(7)(c) of the Code.
The hearing of the Attorney-General’s application for an ISO in respect of Mr Temssah was listed to proceed on 14 March 2024, two business days before his scheduled release from prison. At the commencement of the hearing on 14 March 2024, I granted Mr Temssah’s application for an adjournment and adjourned the hearing to 19 March 2024. My reasons for doing so, which I delivered ex tempore, concerned the serious prejudice to Mr Temssah caused by the service on his legal representatives on the afternoon and evening before the hearing of some 60 exculpatory documents extending over about 300 pages.[5]
[5]The circumstances of the extraordinarily late provision of these documents has subsequently been addressed in an affidavit affirmed by Anthony Giugni, Senior Executive Lawyer at Australian Government Solicitor, on 15 March 2024.
The prejudice to Mr Temssah caused by the extraordinarily late provision of these documents by the Attorney-General’s legal representatives was exacerbated by the unacceptable delay in the commencement of the proceeding. The Attorney-General’s application for an ISO and ESO was commenced only three weeks before Mr Temssah’s scheduled release from custody, notwithstanding that consultations between and within relevant agencies and departments of government about the possibility of seeking a post sentence order in respect of Mr Temssah commenced more than 12 months ago.[6]
[6]An apology for this delay, and a detailed explanation of its causes, has subsequently been provided in an affidavit affirmed by Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division in the Commonwealth Attorney-General’s Department, on 15 March 2024.
As a result of these matters, the hearing of the Attorney-General’s application for an ISO did not occur until 19 March 2024, the day after Mr Temssah’s release from prison.
In support of his application for an ISO, the Attorney-General relied upon the following affidavits and documents:
(a) affidavit of Dr Andrew Kenneth Ellis, consultant forensic psychiatrist, affirmed 22 February 2024, exhibiting an expert report of his dated 3 December 2023 and two supplementary reports dated 25 January 2024 and 16 February 2024;
(b) affidavit of Dr Rodger Damian Shanahan, research consultant, sworn 15 February 2024, exhibiting three expert reports of his dated 29 November 2023, 30 November 2023 and 1 December 2023;
(c) affidavit of Nicholas Andrew Read, a Commander of the Australian Federal Police in charge of Counter Terrorism South, sworn 26 February 2024;
(d) affidavits of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division in the Commonwealth Attorney-General’s Department, affirmed 26 February 2024 and 15 March 2024;
(e) affidavits of Inspector Sarah Carmichael, Unit Manager of the Countering Violent Extremism Unit at Victoria Police, sworn 26 February 2024 and 8 March 2024;
(f) affidavits of Anthony Desmond Giugni, Senior Executive Lawyer at Australian Government Solicitor, affirmed 23 February 2024, 8 March 2024 and 15 March 2024;
(g) affidavit of Jennifer Ann Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 11 March 2024 (the Hosking affidavit);
(h) affidavit of Frank Dumic, Assistant Commissioner, Security and Intelligence Division at Corrections Victoria, sworn 11 March 2024 (the Dumic affidavit);
(i) Expert Risk Assessment Report authored by Peta Lowe, social worker, dated 2 June 2021; and
(j) psychological report authored by Guy Coffey, clinical psychologist, dated 6 June 2021.
None of the authors of these affidavits and reports were required for cross examination.
Although Mr Temssah opposed the making of an ISO, he did not adduce any evidence at the hearing for an ISO. This was a product, at least in part, of the exigencies created by the very late stage at which the proceeding was commenced by the Attorney-General. I was informed that, in the period of about three weeks after the proceeding was commenced, it was practically impossible for Mr Temssah to obtain expert evidence on the critical issue of ‘unacceptable risk’ addressed later in these reasons, even though it is his intention to do so at the hearing of the ESO. It is of great concern that the unacceptable delay in the commencement of the proceeding has prejudiced Mr Temssah’s capacity to oppose the making of an ISO.
Due to the volume of material relied upon in support of the making of an ISO,[7] the Court was not in a position to rule upon the application at the conclusion of the hearing on 19 March 2024. However, on 21 March 2024, the Court granted the application and made various orders including that:
Pursuant to s 105A.9A of the [Code], the defendant, Khaled Temssah, is subject to an interim supervision order with the conditions and exemptions set out in Annexure A to this order.
This order commenced to operate on 22 March 2024 and is in force for a period of 28 days ending on 19 April 2024. Annexure A which stipulated the various conditions which applied to Mr Temssah by operation of this order is annexed to these reasons for judgment. [8]
[7]The evidence relied upon by the Attorney-General extended over about 3800 pages.
[8]Annexure A was varied on 25 March 2024 on the request of the parties. The variations, the terms of which are not presently relevant, were limited and confined to Conditions 12.3 and 19.4.
These are my reasons for judgment in making an ISO in these terms. However, it is first necessary to record my reasons for making orders to protect the confidentiality of certain information which would otherwise be disclosed in the proceeding, and my reason for dismissing a jurisdictional objection raised on behalf of Mr Temssah.
Confidentiality and suppression
In making the ISO, the Court also exercised its inherent jurisdiction and made a suppression order in respect of the names of Mr Temssah’s wife, their children and the address where Mr Temssah resides. The order was necessary to secure the proper administration of justice in the circumstances of the case by avoiding any prejudice to Mr Temssah’s family occasioned by the hearing and making of the ISO, and in furtherance of Mr Temssah’s rehabilitation by aiding his re-integration into the community upon his release from custody.
Before the hearing of the application for an ISO, summonses were filed by the Chief Commissioner of Victoria Police and by the Secretary to the Department of Justice and Community Safety for various orders in substance directed at protecting the confidentiality of information which would otherwise be disclosed in the course of the hearing. The applications were heard on 12 March 2024 and I ultimately made orders in respect of both applications as explained below.
Corrections Victoria
The application brought by the Secretary to the Department of Justice and Community Safety concerned information and documents held by Corrections Victoria, a business unit of the Department of Justice and Community Safety, being a department of state for the State of Victoria.
The Court made an order prohibiting the disclosure, by publication or otherwise, of specific pages of the exhibit bundles to the Hosking affidavit and the Dumic affidavit[9] (the Corrections suppression order). This suppression order, which was expressed to apply throughout the Commonwealth and to operate ‘until the determination of this proceeding or further order’, was expressed not to apply to the disclosure of information or documents to and between a number of identified classes of persons, including the parties to this proceeding. In broad terms, the Corrections suppression order applies to documents and information of the following types:
[9]As well as certain identified audio recordings.
(a)clinical records and correspondence in relation to Mr Temssah’s medical, drug and alcohol and mental health treatment;
(b)Violent extremism risk assessment reports;
(c)sentence management panel and case management review committee reports based on the internal reports of staff in relation to Mr Temssah’s behaviour;
(d)custodial records of Mr Temssah’s conduct and activities in custody on a daily basis, including his interactions with staff members, his mood and behaviour, his recreational activities and interactions with other prisoners, visitors and mental health professionals;
(e)reception and risk assessment documentation that record Mr Temssah’s disclosures about risk, mental health and other highly personal information;
(f)local plan agreements, reviews and local plan file notes which outline Mr Temssah’s case plan goals;
(g)parole documentation relating to Mr Temssah;
(h)[redacted];
(i)Community Integration Support Program meeting and referral documentation;
(j)documentation of Mr Temssah’s interactions with the Major Offender Unit and their oversight of him;
(k)audio recordings of telephone conversations between Mr Temssah and certain individuals;
(l)letters to and from Mr Temssah;
(m)incident reports relating to Mr Temssah’s behaviour whilst in prison; and
(n)photographs from Mr Temssah’s cell searches.
The application brought on behalf of Corrections Victoria was supported by an affidavit by Jennifer Hosking dated 11 March 2024.[10] Ms Hosking is the Assistant Commissioner (Sentence and Management) at Corrections Victoria and a member of the Corrections Victoria Executive Committee. She has held a variety of management positions in the Victorian prison system since June 1985. As Assistant Commissioner, she is responsible for the oversight of the management and placement of sentenced and remand prisoners within the Victorian prison system, and for the oversight of the management of offenders who are subject to detention orders under State and Commonwealth legislation.
[10]To be distinguished from the Hosking affidavit of the same date referred to in paragraph 8(g) above.
In her evidence, Ms Hosking referred separately to each document, or group of documents, which were ultimately subject to the Corrections suppression order, detailing the specific reason(s) advanced for suppression. Except in relation to two document considered separately below, the asserted reason for suppression related to Ms Hosking’s stated concern that, if the identified document or information was not supressed, Australia’s national security, and the State of Victoria’s interests in relation to national security, would be prejudiced.
Ms Hosking identified two ways in which Corrections Victoria, through its management of offenders, serves the national interest in preventing terrorism. First, by rehabilitating terrorism offenders to reduce the risk that they will commit further terrorism offences. Secondly, by gathering intelligence about potential terrorism offences and offenders from facilities which it operates. Ms Hosking’s evidence was that confidentiality is essential to all the psychological and behavioural intervention offered to prisoners and that, in her experience, offenders are unlikely to meaningfully engage in intervention processes, or to do so at all, if they were aware that information obtained from those processes could become public; this was particularly so in relation to terrorism offenders because of the significant media interest which often attaches to them. She gave the following evidence:
If the Corrections Victoria evidence were not supressed, then offenders convicted of terrorism offences are likely to become aware that all of their daily interactions and personal communications could be made public. In my experience, offenders are much more likely to be candid in their engagement with prison officers, professional staff employed in prisons and Community Integration Support Program (CISP) mentors when the can be assured that their communications and activities will not be made public. This has a consequence for both offender rehabilitation and intelligence gathering. If offenders are more candid with prison officers, then Corrections Victoria is able to gather intelligence about events that might jeopardise national security. It also means that we (and CISP mentors and professional staff) are better able to help offenders with strategies to address their offending behaviour, which in the case of terrorism offenders poses a threat to national security.
I have a real concern that if the information that I identify if the table below is not supressed, that will have a significant negative effect on whether offenders convicted of terrorism offences are willing to engage candidly with prison officers, CISP mentors and professional staff within the custodial environment.
The Community Integration Support Program (CISP) to which Ms Hosking referred in this evidence is a terrorist disengagement program.
Ms Hosking also recorded her concern that, if the information sought to be suppressed was disclosed, offenders and other persons would become aware of the methodologies used by Corrections Victoria to collect intelligence about offenders, which would enable those persons to seek to avoid the collection of relevant information which is used to manage national security threats in the ways described above. If the information sought to be suppressed was disclosed, the ongoing utility and the effectiveness of the intelligence methodologies used by Corrections Victoria would be jeopardised, thereby prejudicing Australia’s national security interests.
I accepted Ms Hosking’s evidence. It establishes a proper basis for the making of a suppression order in reliance on the power set out in s 93.2(2)(b) and (c) of the Code.
Section 93.2 relevantly provides as follows:
Hearing in camera etc.
(1)This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.
(2)At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interests of Australia’s national security:
(a)order that some or all of the members of the public be excluded during the whole or a part of the hearing; or
(b)order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or
(c)make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.
…
Section 93.2 of the Code applies to this proceeding as the Court is exercising federal jurisdiction under Division 105A of the Code.[11] Section 93.2 was considered and applied by Whealy J in Regina v Lodhi,[12] in the context of a trial of a person charged with terrorism offences. Whealy J made various orders including prohibiting the disclosure of information and evidence, and ordering that the Court be closed for certain times. The orders had been opposed by various media interests. His Honour summarised the approach to be adopted by the Court in the following way:[13]
In general terms, the present application requires the Court to conduct a balancing and weighing exercise in relation to a number of strongly competing considerations. These include the protection of national security; the right of the prosecutor to place before the jury evidence in support of its contention that the accused is guilty of the charges brought against him; the principles of open justice and, importantly, the accused’s right to be tried fairly. The Court’s ultimate task is to come to a discretionary decision in relation to the imposition of protective orders and, if so, the extent to which such orders should be made. The considerations I have identified, as might be expected, pull strongly in different directions.
Justice Whealy also observed that, although s 93.2 does not mention the principle of open justice, those principles were proper matters to be considered and weighed in the balance in the exercise of the Court’s discretion.[14]
[11]See Minister for Home Affairs v Benbrika (2021) 272 CLR 68, [1].
[12][2006] NSWSC 596.
[13]Ibid [6].
[14]Ibid [12].
The judgment was upheld by the Court of Criminal Appeal on appeal.[15] McClellan CJ at CL, with whom the others members of the Court agreed, stated that, although s 93.2 does not expressly acknowledge the principle of open justice:[16]
Neither the Crimes Act (Cth) or the Criminal Code Act (Cth) expressly acknowledges the principle of open justice or a fair trial. However, by the use of the word ‘may’ the Court is given a discretion as to whether to make an order. Accordingly, the Court must determine whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the objective of providing the accused with a fair trial, determine whether, balancing all of these matters, protective orders should be made.
[15]R v Lodhi (2006) NSWLR 573.
[16]Ibid [27].
In what would appear to be the only authority of this Court considering the operation of s 93.2, Bongiorno J in R v Benbrika & Ors (Ruling 1),[17] after referring to the judgments in Lodhi and noting that the judgment of the Court of Criminal Appeal was effectively binding on him,[18] observed that the exercise of the power: [19]
… compels a court to decide whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the object of a fair trial for the accused, determine whether, balancing all of these matters, protective orders ought to be made.
[17][2007] VSC 141 (‘R v Benbrika & Ors (Ruling 1)’.
[18]See Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.
[19]R v Benbrika & Ors (Ruling 1) (n 17), [15].
Applying these principles, as a threshold matter, I was satisfied that Australia’s national security interests were engaged by prohibiting the disclosure of the documents and information the subject of the Corrections suppression order. Measures directed at the rehabilitation of terrorist offenders are clearly in the national interest; self-evidently, the security of Australian citizens, and the nation’s interests more generally, will be better served if offenders do not reoffend upon release, or plan or facilitate terrorism offences from prison. Rehabilitation in turn requires genuine engagement and participation by offenders in programs such as CISP. It would be unsurprising if offenders did not engage in this way, or were reluctant to candidly do so, if they considered that their private communications could be disclosed.
Ms Hosking deposed that the information the subject of the Corrections suppression order was highly sensitive and private for offenders and is ordinarily dealt with in a strictly confidential way by Corrections Victoria. Based on her experience, she considered that offenders were more likely to be candid in their engagement with prison officers and professional staff when they can be assured that their communications will not be made public. I accept that the promotion of candour by offenders is important in facilitating their genuine engagement with staff and prison officers involved in programs and activities directed at the goal of rehabilitation.
I also generally accept the proposition that the promotion of offender candour and engagement enables Corrections Victoria to better predict and manage issues and events which might directly prejudice Victoria’s interests in relation to national security through the collection of intelligence. I was satisfied that some of the information and documents the subject of the suppression orders would, if disclosed, reveal the nature and extent of the collection of intelligence by prison officers, thereby creating a risk that offenders may act in ways which might prejudice the collection of intelligence, such as by censoring themselves in their dealings with staff. The collection of intelligence from offenders who have committed terrorism offences is an activity which mitigates threats to national security within Victoria.
Having found that the interests of Australia’s national security were properly engaged, it remained necessary to weigh that interest against the principle of open justice and the objective of providing an accused with a fair trial. In my assessment, the circumstances of this proceeding and the nature of the orders proposed clearly weighed the balance in favour of Australia’s national security interests. The proceeding did not raise any issue about an accused’s right to a fair trial. Mr Temssah and his legal representatives are permitted to have access to the documents in question. The orders would not interfere with the conduct of the hearing in public. The extent of the proposed suppression was confined and specific; it is no more than is necessary to ensure the due administration of justice while protecting the interests of Australia’s national security.
As noted earlier, there were two documents which Corrections Victoria sought to be suppressed which did not raise any national security concerns. It is unnecessary and inappropriate to outline the nature of these documents, but sufficient to record my satisfaction, on the basis of the information deposed to by Ms Hosking, that it was necessary to prohibit the disclosure of these documents to protect the safety of a person so as to engage s 18(1)(c) of the Open Courts Act 2013. Although notice of the application was not given in accordance with s 10(1) of that Act, I considered that Mr Temssah’s imminent release from custody and the importance of hearing the Attorney-General’s application for an ISO as soon as possible meant that the interests of justice warranted the Court proceeding to hear the application in respect of these documents without the requisite notice having been given.[20]
[20]As permitted by s 10(3)(b) of the Open Courts Act 2013.
Chief Commissioner of Victoria Police
The Chief Commissioner’s application for various orders protecting the confidentiality of certain information was advanced on the basis of evidence contained in an affidavit of Assistant Commissioner Hermans of Victoria Police filed on 8 March 2024, and a further confidential affidavit made by Assistant Commissioner Hermans of the same date.
Assistant Commissioner Hermans is in charge of Counter Terrorism Command, the entity within Victoria Police which is responsible for counterterrorism activities including intelligence, prevention of terrorist events and security emergencies, and responding to such events when they occur. Assistant Commissioner Hermans is responsible for the development and maintenance of overall counterterrorism capability across Victoria Police. He has various units under his command including the Countering Violent Extremism (CVE) Unit, the body responsible for CISP delivered in partnership with religious leaders from the Board of Imams Victoria.
On 12 March 2024 I made the following orders in relation to the Chief Commissioner’s application:
1. The following shall be referred to in Court only by the pseudonyms assigned to them in the confidential annexure to these orders (the confidential annexure):
a. Present and former members of the Victoria Police Countering Violent Extremism (CVE) Unit, other than sworn members of Victoria Police.
b. Other persons who are (or have previously been) involved in the Community Integration Support Program (CISP), including but not limited to mentors, psychologists and program coordinators.
c. Texts (other than the Q’uran) utilised by CISP.
2. Until further order or the determination of this proceeding, there shall be no disclosure (by publication or otherwise) of the following matters in connection with this proceeding:
a. the confidential annexure; and
b. anything tending to identify the persons and texts protected under paragraph 1 of this order, including but not limited to the name, address, contact details or physical appearance of any person referred to in sub-paragraphs (a) and (b).
3. Until further order or the determination of this proceeding, there shall be no disclosure (by publication or otherwise) of information contained in the following documents exhibited to the affidavit of Sarah Carmichael sworn 26 February 2024 (the Carmichael affidavit):
a. CISP preliminary POI assessment report;
b. CISP participant intake and consent form;
c. CISP weekly reports;
d. Monthly CISP Participant Progress reports;
e. CISP Participant Review Panel Progress reports;
f. CVE Case Management Transition documents;
g. CVE Management Case Notes;
h. CVE Intervention Plan.
4. Orders 2 and 3 do not prevent disclosures to and amongst:
a. the Court (including necessary court staff and transcription service providers);
b. the Parties, their experts and legal representatives;
c. the Chief Commissioner of Victoria Police, members of Victoria Police and their legal representatives;
d. the Commissioner of the Australian Federal Police (AFP), members of AFP and AFP employees;
e. persons who have been or are involved in CISP in relation to the Defendant;
f. employees of the Attorney-General's Department; and
g. Corrections Victoria and its legal representatives.
5. The following documents are confidential as between the Court, the parties and other persons referred to in Order 4 above and shall not be accessible pursuant to Rule 28.05 of the Supreme Court (General Civil Procedure Rules) 2015:
a. the confidential annexure; and
b. until further order or the determination of this proceeding, all documents filed in this proceeding.
6. The defendant shall be permitted to view, but not retain copies of, the confidential annexure.
My reasons for making these orders are set out below.
The pseudonym order in paragraph 1 was made in exercise of the Court’s inherent jurisdiction.[21] The principles which guide the exercise of that jurisdiction are those stated by J Forrest J in ABC v D1; ex parte Herald & Weekly Times Ltd:[22]
[21]Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, [3].
[22][2007] VSC 480, [65]-[71]; affirmed by the Court of Appeal in Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19 at [4] and MSB v Chief Commissioner of Police (2018) 57 VR 360, [49].
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.
I was satisfied on the basis of the evidence of Assistant Commissioner Hermans that the pseudonym order was necessary not to prejudice the administration of justice. The order is confined in its scope to members of the CVE Unit, those involved in CISP and texts used by CISP. For the reasons explained by Assistant Commissioner Hermans, it is necessary to anonymise this information to ensure the integrity of CISP, being the CVE Unit’s primary intervention program. I accept the proposition that the integrity of CISP depends on, amongst other things, the safety and security of all involved, as well as the maintenance of confidentiality, without which participants cannot reasonably be expected to fully engage. I was fortified in making the pseudonym order in circumstances where no restrictions were proposed for the hearing for an ISO to be held in open court, and because the scope of the suppression order in paragraph 3 is limited in scope. Paragraph 2 is a suppression order which is necessary to protect the confidentiality of the information the subject to of the pseudonym order.
The suppression order in paragraph 3 applies to specific information contained in the affidavit of Sarah Carmichael sworn 26 February 2024 which concerns Mr Temssah’s participation in CISP. For the reasons explained above in relation to the summons brought on behalf of Corrections Victoria, I considered that the suppression of this information is in the interests of Australia’s national security so as to engage s 93.2 of the Code and that, in the circumstances of this case, those interests were not outweighed by principles of open justice.
The remaining substantive order in paragraph 5 prohibits all documents filed in this proceeding being accessible for inspection pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015.[23] This order is an interim measure to ensure that confidential documents are not inadvertently made available for inspection on the Court file in circumstances where it was proposed that a large volume of material was to be formally read at the hearing of the application for an ISO (which was imminent) and where, due to the lateness of the application and the volume of material, the Chief Commissioner had not had sufficient opportunity to review all of the documents. The order is accordingly expressed to operate until further order or the determination of this proceeding and establishes an interim arrangement to permit the hearing of the ISO to proceed without prejudicing any claims to confidentiality. It is anticipated that the blanket nature of the prohibition will be removed once the Chief Commissioner has had an opportunity to identify any further particular documents in respect of which claims of confidentiality are asserted.
[23]And the confidential annexure.
Jurisdictional objection
At the commencement of the hearing of the application for an ISO, senior counsel for Mr Temssah raised a jurisdictional objection. It was contended that, by operation of certain provisions of Division 105A of the Code (which deals with ‘post-sentence orders’), the Court lacked jurisdiction and power to make an ISO in respect of Mr Temssah because he had completed his sentence of imprisonment and was no longer in custody. This conclusion was said to follow from two provisions in Division 105A of the Code.
First, reliance was placed on the terms of paragraph (b) of s 105A.9A(4) of the Code. It is convenient to set out the terms of s 105A.9A in full (emphasis added):
Interim supervision orders
(1)The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim supervision order in relation to a terrorist offender if an application has been made to the Court for an extended supervision order in relation to the offender.
(2)On receiving the application for the interim supervision order, the Court must hold a hearing to determine whether to make the order.
Determining the application
(3) The Court may determine the application by:
(a) making an interim supervision order under subsection (4); or
(b) dismissing the application.
Making an interim supervision order
(4)The Court may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if:
(a) either:
(i)an application is made in accordance with subsection (1) for an interim supervision order in relation to a terrorist offender; or
(ii)an application is made in accordance with section 105A.9 for an interim detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.9(2)(b); and
(b)the Court is satisfied that any of the following relating to the offender will end before the application for the continuing detention order or extended supervision order has been determined:
(i)a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a);
(ii)the period for which a post-sentence order or interim post-sentence order is in force;
(iii)the period for which the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) is in force; and
(c)the Court is satisfied that there are reasonable grounds for considering that an extended supervision order will be made in relation to the offender; and
(d)the Court is satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order under this subsection is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.
Note:A series of interim supervision orders can be made in relation to a person (see subsection (8)).
(5)For the purposes of paragraph (4)(d), 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).
Effect of an interim supervision order
(6)The effect of an interim supervision order is to impose on the offender, for the period the order is in force, conditions contravention of which may be an offence.
Content of order
(7) The order must specify:
(a)that the Court is satisfied of the matters mentioned in paragraphs (4)(b) to (d); and
(b)the matters mentioned in paragraphs 105A.7A(4)(b), (c) and (e); and
(c)the period during which the order is in force, which must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order or extended supervision order.
Note:The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).
(8)The total period of all interim supervision orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order or extended supervision order must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.
It is apparent that paragraph (b) of s 105A.9A(4) prescribes one of the conditions to be met for the Court to make an ISO. In the context of this proceeding, the Court must be satisfied, in the terms of subparagraph (i), that Mr Temssah’s sentence of imprisonment[24] ‘will end before the application for the … extended supervision order has been determined’. It was submitted that, in their ordinary meaning, the words ‘will end’ are directed to something (i.e. the ending of a sentence of imprisonment) in the future, as distinct from something that has already occurred (i.e. that a sentence of imprisonment had ended). Because Mr Temssah’s sentence of imprisonment had already ended by the time of the hearing of the application for an ISO, the Court could not be satisfied of the matter prescribed by paragraph (b) of s 105A.9A(4) and accordingly the power to grant an ISO was not enlivened.
[24]It was uncontroversial that Mr Temssah’s sentence of imprisonment was of the type described in subparagraph (b)(i) of s 105A.9A(4).
The second set of provisions of the Code on which senior counsel for Mr Temssah relied in support of the jurisdictional objection were ss 105A.3A(1) and 105A.18(1)-(2) which provide as follows (emphasis added):
105A.3A Preconditions for post‑sentence orders
Post‑sentence orders—person imprisoned for paragraph 105A.3(1)(a) offence
(1)A post‑sentence order may be made in relation to a person if the person is detained in custody in a prison serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a).
…
105A.18 Consequences of sentences ending or orders ceasing to be in force
(1)This section applies in relation to a post‑sentence order proceeding if:
(a) the proceeding is any of the following:
(i)a proceeding on an application for a post‑sentence order in relation to a terrorist offender;
(ii)an appeal against a decision to dismiss such an application;
(iii)an appeal against a decision to revoke a post‑sentence order in relation to a terrorist offender;
(iv)an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;
(v)an appeal against a decision under section 105A.15A to stay a post‑sentence order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and
(b)before the application or appeal is determined (whether before or after the appeal is made) one of the following events occurs:
(i)a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a) ends;
(ii)a post‑sentence order or interim post‑sentence order in relation to the offender ceases to be in force;
(iia)the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) in relation to the offender ceases to be in force;
(iii)a post‑sentence order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.
(2)For the purposes of the post‑sentence order proceeding, the offender is taken to remain a terrorist offender:
(a)who is detained in custody in a prison serving a sentence of imprisonment; or
(b)in relation to whom a post‑sentence order, interim post‑sentence order or control order is in force;
despite the event in subsection (1) occurring.
Senior counsel for Mr Temssah submitted that s 105A.3A(1) establishes a general precondition for the making of ‘post sentence orders’ (defined as either an ESO or a ‘continuing detention order’):[25] that a person is detained in custody and ‘serving’ a sentence of imprisonment. Subsection (2) of s 105A.18 then establishes a ‘carve-out’ from this general provision by, in effect, deeming a person to be detained in custody and serving a sentence of imprisonment in any of the circumstances specified in subsection (1). The central point of the submission made on behalf of Mr Temssah was that that subsection does not expressly include an ISO, and the definition of a ‘post sentence order’ in paragraph (a)(i) also does not include an ISO.
[25]Section 105A.2(1) of the Code.
Construed in light of the purpose of Division 105A of the Code, the text of the provisions on which senior counsel for Mr Temssah relied do not lead to the conclusion that the Court lacks jurisdiction or power to make an ISO in relation to Mr Temssah because he is not in custody having already been released from prison.
This proceeding is of the type described in subparagraph (a)(i) of s 105A.18(1) so as to engage the deeming operation of s 105A.18(2). Notably, s 105A.18(1)(a) specifies different types of proceedings. This ‘proceeding’ is ‘a proceeding on an application for a post-sentence order’ as described in subparagraph (a)(i) because the Attorney-General seeks an ESO, being one of the two types of ‘post-sentence orders’ as defined by the Code.[26]
[26]Ibid.
This analysis is unaffected by the fact that the present controversy concerns an application for an ISO. This is because the opening words of s 105A.18(1) state that the section applies ‘in relation to a post-sentence order proceeding’. The expression ‘post-sentence order proceeding’ is defined more expansively than ‘post-sentence order’ to include a number of proceedings, including those under Subdivision CA dealing with the making of interim post-sentence orders including ISOs.[27] Section s 105A.18(1) is expressed to apply ‘in relation to‘ such proceedings. The expression ‘in relation to‘ is of wide and general import and should not be read down, absent compelling reason.[28] No submission was advanced before me as to why the expression as it appears in s 105A.18(1) should be read down and not given its wide and general meaning.[29]
[27]Ibid.
[28]As stated by Kiefel J (as she then was) in Kennon v Spry (2008) 238 CLR 366 at [217] and the authorities there cited.
[29]See further Mason J in Fountain v Alexander (1982) 150 CLR 615 at 629.
A conclusion based on the text of s 105A.18 that the deeming operation of subsection (2) was intended to apply in relation to applications for ISOs is supported by a consideration of the relevant extrinsic material. The Explanatory Memorandum to the amending legislation which resulted in s 105A.18 records that the making of certain amendments to the section ‘means s 105A.18 applies to all IPSO proceedings’;[30] the latter acronym is defined to include an ISO.[31]
[30]Revised Explanatory Memorandum, Counter-terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, [352].
[31]Section 105A.2(1) of the Code.
In relation to the submission directed at the words ‘will end’ in s 105A.9A(4)(b), it may be acknowledged that that expression, in its ordinary usage, most readily connotes a prospective view of an event occurring in the future. However, it is not apparent why its meaning is to be limited in this way. Relevantly, the question posed by the section is whether the Court is satisfied that Mr Temssah’s sentence of imprisonment will end before the determination of the Attorney-General’s application for an ESO in respect of him. Considered literally, this question is capable of being answered affirmatively in circumstances where Mr Temssah’s sentence of imprisonment has already ended. It is generally not appropriate to construe provisions like s 105A.9A(4) which vest powers in a court ‘by making implications or imposing limitations which are not found in the express words’ of the legislation.[32] No cogent reasons were advanced as to why the condition in paragraph (b) of s 105A.9A(4) should be read down and given the limited meaning contended on behalf of Mr Temssah.
[32]Owners of the Ship, ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
A construction of the words ‘will end’ appearing in s 105A.9A(4)(b) as being confined only to future events would also create an anomalous situation in that a court would clearly have power to grant final relief in the nature of an ESO in respect of an offender who had been released from prison, but the power to grant interim relief in the nature of an ISO would be limited to the period before the offender’s released from prison. A gap in the power to grant interim relief in the form of an ISO in respect of an offender who had been released from prison has no apparent rational connection with any feature of the statutory regime for post-sentence orders established by Division 105A, and would not be consonant with the stated object of the division to protect the community from serious Part 5.3 offences.[33]
[33]Section 105A.1 of the Code.
The jurisdictional objection raised on behalf of Mr Temssah was accordingly dismissed.
The offending
Mr Temssah was 30 years old at the time of the offending in 2019. [redacted]. He was, and remains, a devout practising Sunni Muslim.
Mr Temssah first developed an interest in extremist Islamic material in about December 2018. It would appear that he was first exposed to such material as a result of various charitable activities in which he was involved which were concerned with providing support to members of the Islamic community. Some of these activities were online, and ISIS propaganda and related links began coming through his social media feed as his online charitable activities increased. Mr Temssah began viewing videos from many sources, including ISIS, in relation to foreign conflicts. A later forensic investigation of Mr Temssah’s mobile phone revealed more than 100 image files, video files and documents concerning extremist Islamic ideology and ISIS propaganda, including violent and graphic imagery. The video imagery he consumed evoked in Mr Temssah a sense of grievance, as well as a strong sense of duty to assist the victims of wrongdoing.
Between January and April 2019, Mr Temssah made numerous Google searches in relation to jihad and ISIS. On 29 April 2019, he accessed an online document which contained stories of jihad martyrdom and detailed instructions for Muslims from around the world on how to travel to Syria to join ISIS.
On 3 June 2019, an online covert operative initiated contact with Mr Temssah via an online platform. Over the next few days, Mr Temssah disclosed to the operative his desire to ‘make hijrah’ to India, which translates to migration from the ‘lands of disbelief’ to ‘the lands of Islam’. He also discussed travel plans with the operative and, on 7 June 2019, he purchased a ticket in his own name on an international flight from Melbourne to New Delhi for 28 June 2019, with a return flight booked for 10 July 2019. On 13 June 2019, Mr Temssah and the operative arranged for Mr Temssah to pay $880 to cover the costs associated with entering Kashmir and to purchase an AK-47 which he would collect upon arrival. The next day Mr Temssah attended a travel agency and paid $620 to book a hotel in New Delhi (in his own name), under the guise of going on a holiday.
On 15 June 2019, the online covert operative and Mr Temssah continued to speak about sending money to cover the cost of his entry into Kashmir and acquiring an AK-47. Mr Temssah was told to contact another person and was provided the person’s phone number. That person was in fact an undercover police operative. On 17 June 2019, Mr Temssah and the undercover police operative made arrangements to meet. That evening, Mr Temssah and the undercover police operative met at a service station; Mr Temssah provided the operative with $880 in cash.
Mr Temssah was arrested on 20 June 2019. He was in custody from 21 June 2019, until his release on 18 March 2024.[34]
[34]Mr Temssah applied for release on parole in December 2022; the request was refused on 14 March 2023.
Notably, on 15 September 2021, the sentencing Judge made the following observations in relation to the nature and circumstances of the offence:[35]
[35][2021] VCC 1353, [49]-[60], citations omitted.
The acts you engaged in were all functional in nature and not in and of themselves violent or threatening. However, in relation to the charges before the court, it is the intention behind inherently unremarkable acts that I must assess. Measured by that criteria, there is no doubt about the gravity of your intention.
The actions you took over those 17 days represented a persistent commitment to get to Kashmir and fight on the front line with the Mujahadeen. It is evident from the sentiments you consistently expressed to the OCO that it was your sincere wish to engage in hostile activity of the nature outlined in the Code, and to die as a martyr if necessary.
That you took steps to pay to ensure that you were armed with an AK-47 upon arrival in the Kashmir leaves no scope for doubt about the nature and gravity of your intentions. Based on all the available material, I reject your initial contention made in evidence that you simply wished to act as a guard, or that your motivations were purely humanitarian in nature. I note that your counsel did not seek to pursue that submission and that you ultimately did give evidence consistent with the allegations at the core of the charge.
Your intentions were motivated by an interest in and an adherence to an extremist religious ideology. You had accessed and stored a substantial amount of graphic and disturbing material, including material specifically referring to Islamic State. Whilst it is not suggested that you were a member of Islamic State, you did tell the online covert operative that you had already given a pledge of allegiance in your heart, and that if you had to kill some people, that this would be justified according to the Islamic State doctrine.
Your intentions and your preparatory actions to fulfil those intentions reveal that your commitment to these extremist beliefs was at the time, absolute. You were prepared to kill and to give your own life in adherence to an extremist philosophy. Your actions were not those of someone with just an interest in or a loose commitment to radical beliefs. You were prepared to deceive and then to leave your family to give your life for those beliefs.
The entirety of your conduct was engaged in whilst in direct contact with an undercover operative purporting to be an Islamic State sympathiser. At no stage in this matter was there any actual prospect that you could achieve your desired aims. That is to be regarded as the absence of a matter that would otherwise have been aggravating.
The fact you were engaging with an online covert operative has undoubtedly influenced the specific nature of the preparatory acts you engaged in. It is reasonable to conclude that the suggestions by the online covert operative has directed your conduct to the extent that the prospect of booking flights was first raised by him, not you. In a more general sense, had you not encountered the online covert operative and engaged with him over those 17 days it is unclear that at that time you would have taken any of the specific steps that are the subject of the charge.
When the entirety of your contact with the online covert operative is considered, however, the extent to which your offending is mitigated by any kind of entrapment is very limited indeed.
The online covert operative has not initiated or encouraged any interest you had in religious extremism or in the pursuit of hijrah that you did not already have. The online covert operative provided an outlet and a direction for your pre-existing and deeply held desires. He provided a means for which you could purchase an AK-47 but did not introduce a desire in you to possess and use one. You were not in any way exploited in order to foster intentions you did not otherwise have. You were not, as was the case in Taleb a vulnerable individual who was actively encouraged to do something you may not have otherwise contemplated.
You did not encourage any other person nor engage anyone else to participate in this conduct with you. I also note that the offending conduct is constrained to the 17 day period of the charge and that the period of your interest in extremist propaganda material goes back only as far as December 2018.
Your intention was not specific. Whilst your desire may have been strong, this was not reflected in well-established or realistic plans as to precisely how you were to achieve your goal to fight on the frontline. There was no clear and defined intention to commit any individually identified act of violence.
Overall, I accept the proposition that your offending is a low to middle range example of an inherently serious offence.
Later in his reasons, the sentencing Judge referred to the rapidity with which Mr Temssah appeared to have been radicalised:[36]
… Some caution must be expressed simply because you appear to have become radicalised within a relatively short time. From the time you first commenced to access extremist material online to the time you were seeking to arrange your departure from the country and separation from your family to potentially martyr yourself in a foreign war zone was a matter of months. The speed of your conversion to become a person prepared to give your life in service of a religious ideology is concerning.
[36]Ibid [80].
Interim supervision orders - statutory requirements
The statutory preconditions to the Court’s power to make an ISO are those prescribed by s 105A.9A(4) set out in [38] above. In the context of this proceeding, it is apparent that the Court may make an ISO if the following four requirements are satisfied:
(a) an application is made in accordance with s 105.9A(1) in relation to a terrorist offender;[37]
[37]Section 105A.9A(4)(a)(i) of the Code.
(b) the Court is satisfied that a sentence of imprisonment referred to in s 105A.3A(1) relating to the offender will end before the application for the ESO has been determined;[38]
(c) the Court is satisfied that there are reasonable grounds for considering that an ESO will be made in relation to the offender;[39] and
(d) the Court is satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.[40]
[38]Section 105A.9A(4)(b)(i) of the Code.
[39]Section 105A.9A(4)(c) of the Code.
[40]Section 105A.9A(4)(d) of the Code.
In the circumstances of this case, the first of these requirements raises three matters which are satisfied. First, that the application is made by the ‘AFP Minister’ or their legal representative. The Attorney-General is the AFP Minister for the purposes of Division 105A of the Code.[41] Secondly, that an ISO is sought in relation to a ‘terrorist offender’. It was uncontroversial that Mr Temssah meets that description.[42] Thirdly, as I have noted, the Attorney-General has made application for an ESO in relation to Mr Temssah and included the content specified in s 105A.5(3).
[41]See s 100.1(1) of the Code.
[42]See the requirements in s 105A.3(1) of the Code.
The second requirement is also satisfied given my determination of the jurisdictional objection raised on behalf of Mr Temssah.
The third and fourth requirements in relation to the making of an ISO are considered separately below.
‘Reasonable grounds for considering that an extended supervision order will be made in relation to the offender’
In Attorney-General v Hadashah Sa’Adat Khan,[43] John Dixon J explained the approach to be adopted in determining whether, in the terms of s 105A.9A(4)(c) of the Code, the Court is ‘satisfied that there are reasonable grounds for considering that an [ESO] will be made’ in relation to a terrorist offender:[44]
The first requirement is the court must be ‘satisfied’. This requires that the applicant affirmatively persuade the court of the existence of reasonable grounds. The court is acting judicially, not administratively. A discretion is not being exercised. Rather, a state of affairs must exist, or preconditions be satisfied, to enliven the statutory jurisdiction to make an ESO. The court will be persuaded if it is more probable than not that the necessary state of affairs exists.
‘Reasonable grounds’ requires that the applicant prove sufficient facts to permit the court, on objective assessment, to ‘consider’ that something will happen. The court must be satisfied that there are reasonable grounds for that state of mind. The test is wholly objective. The court must evaluate the evidence to determine whether the known facts, circumstances and considerations that may bear rationally on the issue in question permit the court to be of that state of mind.
What then is the state of mind of ‘considering’? To consider is to think carefully about something, usually before making a decision. It connotes the notion of taking something into account, usually referring to particular facts or circumstances relevant to the decision. Here it is used in the sense of having formed a view that a consequence (a decision) will follow on thinking carefully about the reasonable grounds. This state of mind can be likened to a belief. It is a state of mind that need not be shown to be certain. What the High Court of Australia said in George v Rockett in a related context is apposite. It is ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition.’ That state of mind may involve an element of ‘surmise or conjecture’.
The court does not need to conclude that a decision can now be made effectively determining the application. It is sufficient that the court is satisfied that, on the material before it, if remaining uncontradicted at trial, the court considers that the decision will be made. This is akin to forming a reasonable belief, after due consideration of the material, that the application can succeed.
The decision under consideration is whether an ESO will be made. This requires that the court be satisfied that the facts and circumstances established on the evidence presently before the court are sufficient for a reasonable person to be inclined to accept, rather than reject, the proposition that an ESO will be made in relation to the defendant, notwithstanding that such evidence may later be challenged, contradicted, or otherwise contested. This question involves consideration of the statutory requirements for an ESO to be made.
[43][2022] VSC 507 (‘Attorney-General v Khan’).
[44]Ibid [18]-[22], citations omitted.
The statutory requirements for an ESO to which John Dixon J referred are those set out in s 105A.7A(1) which, as is presently relevant, provide 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;
…
(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).
…
Unacceptable risk
Central to the Court’s power to make an ESO is the Court’s satisfaction, as expressed in s 105A.7A(1)(b) of the Code set out above, that an offender poses an ‘unacceptable risk’ of committing a serious Part 5.3 offence. The meaning and approach to be adopted in considering ‘unacceptable risk’ was explained by Hollingworth J in Minister for Home Affairs v Benbrika as follows:[45]
[45]Minister for Home Affairs v Benbrika (First review) [2022] VSC 169, [48]–[51] (citations omitted) (‘Minister for Home Affairs v Benbrika:’).
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.
In Attorney-General v Khan, in the context of an application for an ISO, John Dixon J observed that the concept of unacceptable risk of committing a serious Part 5.3 offence:[46]
… 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.
[46]Attorney-General v Khan (n 43), [27]-[28].
It is therefore apparent from the above statements of principle that the assessment of whether there is an unacceptable risk of committing a serious Part 5.3 offence calls for a joint focus on both the degree of likelihood of offending, and the seriousness of the consequences if the risk eventuates.
As is relevant in this proceeding, the matters identified in s 105A.6B(1) to which the Court must[47] have regard to in determining whether it is satisfied that an offender poses an unacceptable risk of committing a serious Part 5.3 offence are as follows:
[47]See s 105A.7A(1)(b) in [62] above.
(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;
…
(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.
In having regard to these matters, it is necessary to examine all of the evidence as a whole, rather than adopting a piecemeal approach;[48] it is the effect of the whole of the evidence which is important in determining whether an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[49]
[48]Minister for Home Affairs v Benbrika (n 45), [54].
[49]Ibid.
To date, the only assessment of Mr Temssah carried out by a ‘relevant expert’ for the purposes of s 105A.6B(1)(b)-(c) is that undertaken by Dr Andrew Ellis, a consultant forensic psychiatrist, who was engaged by the Attorney-General’s solicitor to provide expert opinions in this proceeding. As the only relevant expert whose opinion was in evidence, the three reports prepared by Dr Ellis, which were prepared after he interviewed Mr Temssah on 4 November 2023, featured prominently in the parties’ submissions.
The following aspects of Dr Ellis’ principal report dated 3 December 2023 are significant in understanding his evidence on the issue of ‘unacceptable risk’.
(a) Dr Ellis summarised Mr Temssah’s self-reported current attitudes about various matters as follows:
He said that he considers himself a moderate Islamic person now, but in the past before and during the offence that he was radical. He said that he now believes that Islam must be considered in context, particularly in relation to history and the specific scholars that have contributed to the development of the religion. He said that he has learned a lot since his participation in programs in custody. He said that he can now debate the radical beliefs. He believes that he now has the tools to help radicalised youth change their ways.
He said that he is against all forms of violence including against the Australian and Indian States. He said that he is happy to live in Australia. He said that Muslims should co-exist with people in other countries. He said that [it] is important for people in democratic to countries to choose their leaders and have a right of protest. He gave historical examples from Islam that supported people living peaceably together in non-Islamic countries. He had no problems with people of different sexual expression or women’s rights.
He said he had no animosity towards Hindus, Christians, Atheists or Jews. He said that no person should be harmed. He thought that radical Islamic groups such as ISIS and Hamas were wrong.
(b) Dr Ellis considered that Mr Temssah did not present with a diagnosable psychiatric disorder. However, he also stated that:
He still shows some exaggerated self-importance (thinking that he may be a suitable person to mentor extremist impacted youth, and in his description of his past work achievements). His overeating in response to stress without being able to articulate what that stress is indicates impulse and emotional control problems, which is now improving. The pattern of personality function tends to narcissistic (self-important advice giving, unrealistic ideals of romantic love and religious purpose and over confidence). It does appear that the core areas of personality function have been improving during his time in custody, potentially related to ordinary maturation or psycho-social interventions which have been implemented. Even though a diagnosis of personality disorder is not warranted this is not strictly material, the problems he displays are a matter of clinical concern regardless.
(c) Dr Ellis considered the risk of Mr Temssah committing acts of general personal violence and made the following points:
(i)There was a limited history of problems with violence such that there was ‘a low loading of historical risk factors associated with violence in the longer term, lower than the general prison population of violent offenders or psychiatric patients’. Dr Ellis continued:
He shows reasonable insight into his potential for violence and what is required to moderate it. While this is not sophisticated, it is the intent around insight rather than detail that is important. He shows at this review a more realistic assessment of his motives and actions than earlier truncated accounts of only brief two month interest in extremism. He shows no evidence of current instability in his mental state with his emotional and impulsive responses moderated in the past 12 months. He engages with rehabilitation to address violence. There is no evidence he currently expresses attitudes supportive of violence. This indicates a low loading of modifiable clinical risk factors, which indicate potential for violence is currently well contained.
He did display a longstanding distrust of authority, noted in his early prison letters, and earlier occasional disengagement from psychology appointments. This appears improved, and his correctional reports of engagement are all positive. This would likely lead to cooperative [sic] with professional services and plans in the community.
(ii)Nevertheless, Mr Temssah’s stress management remained of partial concern. Dr Ellis stated:
… He shows little ability to articulate what he might find stressful (such as witnessing media reports of harm to Muslim people, witnessing racism in the community, failing to live up to personal expectations of success or difficulty adjusting to the community). He has little personal articulation of how he might cope, but would be willing to seek professional support for managing stress. His personal supports appear to be positive, and have been assessed by supervising authorities. His proposed living circumstances would be with family and there is likely support with providing him employment through family connections. This factor would likely be satisfactorily addressed. He would likely benefit from continued interventions (psycho-social, and vocational placement) in managing future risk. This indicates that ongoing professional support would likely provide effective management of the latent and historical potential for violence.
(iii)Dr Ellis addressed the type of possible violent offence Mr Temssah might commit. Although Dr Ellis noted that Mr Temssah reported that he does not now hold ‘ideologically based grievances’, he also made the following observations:
His personality style is one that is easily influenced as his self-concept is fluctuant. Violence would likely take the form of aggression or protest if exhorted by others. This might rise to serious violence if he were to use a weapon. This may be of a type associated with a serious Part 5.3 offence, if he were to be influenced by others and adopted group grievances.
In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Temssah would fall into a group of persons with a risk for violent offending that is lower in frequency to most prisoners released from custody however with potential for serious consequence in his specific case owing to his preparedness to seek out a weapon when engaged with a person he believed held extremist views. This scenario would be specific to him associating with others (either in person or online), and being encouraged or facilitated by them. Specific supervision would likely reduce this risk.
(d) As to the risk of Mr Temssah engaging in acts of extremist-terrorist related violence, Dr Ellis referred to two protocols or tools used for the purpose of evaluating such risks: the ‘Terrorist Radicalization Assessment Protocol’ (TRAP-18) and VERA-2R. By reference to TRAP-18, Dr Ellis stated:
According to the TRAP scheme Mr Temssah has not directly communicated threats. He has historically reported personal grievance to the Western governmental and justice system in general, and cited past experiences where he feels Muslims have been treated unjustly. He shows fixation, identification and preoccupation on the topic of Islamic religion, but does not extend this to violent expression of the religion since conviction and participation in programs. The preoccupation has not limited his improvement in social and vocational function in the prison environment. He frames his life now by religious ideology, but also general pro-social views and does not endorse violence. …
iv.an order of parole, or bail in relation to a serious offence (as defined in Interpretation below);
c.To your knowledge has been convicted of, or is currently charged with:
i.an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); or
ii.a “terrorism offence” within the meaning of section 3(1) of the Crimes Act 1914 (Cth)(as in force from time to time);
d.To your knowledge is located in Afghanistan, Democratic Republic of Congo, Egypt, Gaza and the West Bank, India, Indonesia, Iran, Iraq, Israel, Jordan, Lebanon, Malaysia, Mozambique, Pakistan, the Philippines, Saudi Arabia, Somalia, Sudan, Syria, Turkey or Yemen, other than any person who is a close family member of yours (as defined in Interpretation below) or a close family member of [redacted]; or
e. Is listed below:
i. Mr Majed El-Ali (DOB 4 June 1991)
ii. Mohammed Junaid Thorne (DOB 10 June 1989)
iii. Wissam Haddad (DOB 9 May 1980)
Note: Condition 6.1 is an exemption condition. Refer to Condition 22 (Exemptions) to apply for a temporary exemption to these conditions.
Activities
7 Condition 7 (employment, sporting, volunteering and education)
7.1You must not, without giving prior written notification to the AFP Superintendent:
a. Commence employment;
b. Participate in volunteering, vocational training or education programs; or
c.Join or affiliate with any sporting or fitness club, organization or body, including any gymnasium or fitness centre.
8 Condition 8 (prohibited activities)
8.1You must not carry out any of the following activities (including in respect of your work or employment) without the prior written approval of the AFP Superintendent:
a.Forming, joining or affiliating with any group, club or organization (other than those referred to in Condition 7.1(c)), including any internet- based social networking service; and
b.Forming any corporation, partnership or incorporated association;
c. Registering any business names; or
d. Operating any business.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
8.2You must not provide counselling, teaching or mentoring services that relate to any of the below matters:
a. Carrying out, authorising or permitting violence;
b.Activities of any terrorist organisation (as defined in Interpretation below);
c.The ideology of or any material published, produced or endorsed by any terrorist organisation;
d. Use of weapons, firearms, ammunitions or explosives;
e. Any of the matters listed at Condition 12.2;
f.Adherence to any fatwa, decree, ruling or statement of the following persons:
i. Sheikh Abu Mohammad AL-ADNANI AL-SHAMI
ii. Ayman al-Zawahiri;
iii. Osama bin Laden;
iv. Abu Muhammad al Maqdisi;
v. Abu Bakr Al-Baghdadi;
vi. Abu Qatada al-Filistini;
vii. Said Mansour;
viii.Abu Ibrahim al-Hahimi al-Qurashi, aka Amir Mohammed Abdul Rahman al-Mawli al- Salbi;
ix. Anwar al-Awlaki;
x. Ibn Taymiyya;
xi. Sayyid Qutb;
xii. Hassan Al Banna; and
xiii. Ahmad al Hazimi.
Note: Condition 8.2 is an exemption condition. Refer to Condition 22 (Exemptions) to apply for a temporary exemption to this condition.
9 Condition 9 (financial transactions)
9.1 You must notify the AFP Superintendent within 24 hours if you:
a.transfer money or money’s worth, including cryptocurrency, to another person, organisation, association or entity, however described of an amount equal to or exceeding the value of $200, whether in one or multiple transactions within any 24-hour period (but see Condition 9.3 below);
b.have received money or money’s worth, including cryptocurrency, from another person, organisation, association or entity, however described, of an amount equal to or exceeding the value of $200, whether in one transaction or multiple transactions within any 24-hour period, and provide a receipt of the payment thereafter (but see Condition 9.4 below); or
c.cause or instruct any other person to undertake the activities outlined in 9.1a or 9.1b on your behalf.
Note: Transfer money or money’s worth includes, but is not limited to, providing money in person, by way of electronic transfer, by way of a transfer of an interest in shares, property or assets and the provision of cheques or money orders of any kind.
9.2You must not knowingly collect money or money’s worth, or cause or instruct any other person to do so on your behalf, from any person who falls within Condition 6.1 or 6.2.
9.3Condition 9.1a does not apply to the transfer of funds by you for the payment of invoices relating to your own, or your close family members’, reasonable personal expenses in the nature of household goods or services or utilities, medical expenses, transport, children’s school fees, insurance, housing and the like.
9.4 Condition 9.1b does not apply to any:
a.funds received from an Australian Government or State Government department or agency; or
b.payment of salary or wages received from your employer in respect of employment undertaken in accordance with Condition 7.
Note: Condition 9.2 is an exemption conditions. Refer to Condition 23 (Exemptions) to apply for a temporary exemption to this condition.
Travel
10 Condition 10 (prohibited areas and places)
10.1 You must not knowingly be present:
a.Inside, or in the grounds of, any prison or correctional facility, unless you are incarcerated or detained there;
b.At the residence of any person with whom, by reason of Condition 6, you are prohibited from communicating or associating; or
c.Subject to Condition 10.2, at any premises of any person, organisation, business or entity (not being premises occupied by an Australian police service or a member of an Australian police service, or a place of detention), knowing that firearms or ammunition are, or are likely to be, located at those premises.
10.2Condition 10.1(c) does not apply to any airport at which you are present for the sole purpose of undertaking travel which is approved pursuant to Condition 11.2, or in respect of which notice has been given pursuant to Condition 11.3.
Note: Condition 10.1 is an exemption condition. Refer to Condition 23 (Exemptions) to apply for a temporary exemption to this condition.
11 Condition 11 (travel)
11.1You must not apply for any international or interstate travel document without the written approval of the AFP Superintendent. For the purposes of this Condition, a “travel document” includes but is not limited to:
a. Any passport;
b. A visa obtained for the purposes of travel outside Australia;
c. An airline ticket for domestic or international travel; and
d.Any permit required to lawfully leave the State of Victoria or enter any other State or Territory in Australia.
11.2You must not leave Australia without the prior written approval of the AFP Superintendent.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
11.3You must not leave Victoria without giving prior written notification to the AFP Superintendent.
Accessing or possessing prohibited documents
12 Condition 12 (producing, distributing, accessing or possessing prohibited documents)
12.1You must not intentionally carry out any of the following activities (including in respect of any work, volunteering or education), namely:
a.Recording, copying, storing, possessing, collating, editing, producing or distributing documents (including documents in electronic form) or electronic media;
b.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 matters listed in Condition 12.2 (the prohibited matters).
Note: Distributing documents (including documents in electronic form) or electronic media includes, but is not limited to, the distribution of documents (including documents in electronic form) or electronic media via an electronic link to that material.
12.2The prohibited matters for the purposes of Condition 12.1 are:
a.Explosives, explosive devices, initiation systems or firing devices;
b. Firearms, ammunition or knives;
c. Anti-surveillance or counter surveillance;
d. Execution;
e. Beheading;
f. Suicide attack;
g. Bombing;
h. Terrorist attack;
i. Assassination;
j. Torture;
k. Genocide;
l. Martyrdom;
m. Violent jihad;
n.Material that provides instruction, demonstrates, describes, promotes or encourages any of the matters listed above at Condition 12.2 (a) to (m);
o.Propaganda and promotional material relating to any “terrorist organisation”; including the activities of, or associated with, any “terrorist organisation” (as defined in Interpretation below); and
p.Any content from websites created or hosted by a terrorist organisation.
12.3Condition 12.1 does not apply where a prohibited matter is:
a.Published by a “constituent body” of the Australian Press Council;
b.Published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;
c. Broadcast on Australian free to air television;
d. Broadcast on Australian pay television;
e. Shown in a commercial movie cinema;
f.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, Disney+ (or any other streaming service notified to you in writing by the AFP Superintendent);
g.Unless the AFP Superintendent notifies you in writing otherwise in relation to a specific book, material published in a book that you purchase from an Australian retailer of books, provided that you:
i.notify the AFP Superintendent of the title and author of the book within 24 hours of purchasing the book; and
ii.include in that notification a reference to any chapters and/or page numbers containing the prohibited matters.
Note: The AFP Superintendent may notify you in writing that a specific book is no longer excepted from the prohibition in 12.1.
h.Contained in the Bible, the Qur’an, the Gita, the Torah, the Guru Granth Sahib and the Tripitaka.
i.Contained in material that is served on you or your legal representatives in any
i. criminal prosecution; or
ii.any legal proceedings, including in respect of Division 104 or Division 105A of the Code, to which you are party, including any appeal from, or application for leave or special leave to appeal from, such proceedings.
Note: Condition 12 is an exemption condition. Refer to Condition 22, (Exemptions) to apply for a temporary exemption to this condition.
Communication, Internet Use & Electronic Devices
13 Condition 13 (mail correspondence)
13.1 You must not:
a.Send mail, parcels or any other form of package to any person except by registered or express post, via Australia Post; or
b.Send mail, parcels or any other form of package under any other name other than your own name.
13.2Condition 13.1 does not prohibit you from ordering, or receiving delivery of, ordinary consumer or household items, including food and groceries.
14 Condition 14 (mobile phone)
14.1You must not:
a.access or use any mobile phone other than the mobile phone and SIM card provided to you by the AFP Superintendent (the permitted mobile phone); or
b.cause or permit any other person to access or use any mobile phone on your behalf except:
c. in the case of an emergency; or
d.to notify the AFP Superintendent of a fault or damage to the permitted mobile phone.
14.2Your use of the permitted mobile phone is subject to the following conditions:
a. You must carry at all times the permitted mobile phone.
b.You must be available to answer any call from the AFP Superintendent or the Branch Manager on the permitted mobile phone, or return such a call that you were unable to answer as soon as reasonably practicable.
c.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.
d.You must not alter, tamper with or change the appearance of the permitted mobile phone.
e.You must not change, remove, modify or disconnect the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone.
f.You must present the permitted mobile phone for inspection, repair, service or replacement at any time reasonably requested by the AFP Superintendent.
g. You must notify the AFP Superintendent as soon as possible if:
i.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; or
ii.you have used another mobile device (including using another mobile device in an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone).
15Condition 15 (fixed or landline telephone services and public telephones and other communication devices)
15.1You 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 or damage to the permitted mobile phone.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
15.2You must notify the AFP Superintendent as soon as possible if you have used a fixed or landline telephone service, including a public telephone, or facsimile service.
15.3You must not access or use any satellite telephone service or UHF/VHF radio.
16 Condition 16 (internet services)
16.1You must not access or use any internet service, including any wireless (Wi-Fi) network or connection, other than the internet service provided to you by the AFP Superintendent.
16.2You 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.
16.3Conditions 16.1 and 16.2 do not prohibit the access to or use of:
a. An Automated Teller Machine;
b.A computer or tablet device (as defined in Interpretation below), connected to an internet service, owned by a business or government agency which is made available for your use to facilitate contact tracing, the ordering or sale of food or consumer products or the provision of a service; or
c.A smart TV, which is used by you only for the purposes of watching the services set out in Conditions 12.3.
Note: Condition 16 is an exemption condition. Refer to Condition 22 (Exemption) to apply for a temporary exemption to this condition.
17 Condition 17 (email)
17.1You must not access or use any electronic mail (email) account other than the Gmail account that has been approved by the AFP Superintendent for you to access or use (the permitted email account).
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
Note: Condition 17 is an exemption condition. Refer to Condition 22 (Exemption) to apply for a temporary exemption to this condition.
18 Condition 18 (computers, tablets and other devices)
18.1You 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 for you to access and use by the AFP Superintendent (the permitted computer, tablet or other permitted device), except in the case of an emergency.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
18.2You must not cause or permit any other person to access or use on your behalf any computer, tablet or any other device (including the permitted computer tablet or other permitted device), except in the case of an emergency.
18.3You must notify the AFP Superintendent if you have, or any other person on your behalf has, used or accessed any computer, tablet or other device in an emergency, as soon as possible after the emergency.
18.4Condition 18.1 does not prohibit access to or the use of:
a. An Automated Teller Machine;
b. An EFTPOS terminal;
c.A computer or tablet device 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;
d.A Smart TV, which is used by you only for the purposes of watching the services set out in Condition 12.3; or
e. A gaming device or application (subject to Condition 19.2(e)).
18.5You 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 permitted devices, or direct, cause or permit another person to do any of those things.
18.6You must not alter, tamper with or change the appearance of the permitted computer, tablet or other device.
19 Condition 19 (computer programs and platforms)
19.1You must not use, download, or access applications or computer programs (collectively, platforms), unless:
a.The platform was installed on your permitted mobile phone, or your permitted computer, tablet or any other permitted device, at the time it is first provided to you; and you use the platform on the permitted mobile phone, permitted computer, tablet or other permitted device; or
b. You obtain prior written approval from the AFP Superintendent.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
19.2Other than the platforms referred to in Condition 19.1, you must not access, download or use:
a. Any Voice Over Internet Protocol (VOIP) service;
b. Any internet-based messaging service;
c.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 17.1);
d.Any internet-based messaging service, including any software, mobile application, or hardware;
e.Any gaming applications or software that connects to other users or servers, via the internet or Local Area Network; or
f.Any cloud or remote storage service, removable data storage device (e.g. a USB or SD Card), file sharing service, virtualisation software or encrypted storage service.
Note: For the purposes of condition 19.2(c) applications, programs or websites that can be used for communication include (by way of example), but are not limited to, the following: AIM, Beejive, Discord, Facebook, Facebook Messenger, FaceTime, Fring, Google Duo, Google Hangouts, Google Talk, iCall, ICQ, Instagram, Jajah, KIK, Line 2, Lync 2013, MagicApp, MSN Messenger, Nimbuzz Messenger, Packet8, Signal Private Messenger, Skype, Slack, Snapchat, Talkatone, Telegram, Tik Tok, Truphone, Twitter, Viber, Wechat, WeTalk, WhatsApp, Whistle Phone, Wickr, Yahoo Messenger, YouTube, Zoiper IAX SIP VOIP Softphone.
19.3You must not use any applications, programs, services or software, or any settings or modes of any applications, programs, services or software, that are designed to, or which purport to, disguise or conceal any function or use of the application, program, service or software. This includes, but is not limited to, the use of a private browser or incognito or hidden mode, and the use of a Virtual Private Network.
19.4Conditions 19.2 and 19.3 do not prohibit:
a.Access to or the use of 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;
b.Access to or the use of 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;
c.Ordering ordinary consumer or household items, including food and groceries; or
d. Accessing or using telehealth services.
Items
20 Condition 20 (prohibited items)
20.1You must not purchase, possess or use any of the following specified articles or substances:
a.A “firearm” or “cartridge ammunition” within the meaning of s 3(1) of the Firearms Act 1996 (Vic);
b.A “prohibited weapon” within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);
c.An article or device, not being a firearm, capable of discharging by any means;
d. A knife, in a public place, without reasonable excuse; or
e.A digital blueprint for the manufacture of a firearm or prohibited weapon on a 3D printer or electronic milling machine.
20.2You must not obtain, or apply to obtain, any licence to possess or use a weapon.
20.3You must not use, store or permit the storage of any firearms or ammunition at your place of residence.
20.4You are prohibited from hunting or trapping any animal or game, or using any weapon in connection with hunting or related activities. This includes spear fishing but does not include fishing with a net or line.
Name and Identification
21 Condition 21 (name and identification)
21.1You must not change your name or use any name other than “Khaled” and “Karl” or “Temssah” (individually or in combination), without the prior written approval of the AFP Superintendent.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
21.2You must not use any electronic account registered in a name other than your own.
21.3If you change the details of any current form of identification or obtain further forms of identification, you must notify the AFP Superintendent.
21.4You must allow the AFP Superintendent to take your photograph and impressions of your fingerprints, and you must attend at times and places specified by the AFP Superintendent for that purpose.
Exemptions and approval
22 Condition 22 (exemptions)
22.1You may request an exemption from the AFP Superintendent from any of Conditions 6.1, 6.2, 8.2, 9.2, 10.1, 12, 16 and 17 above. To request an exemption, you must submit a written request to the AFP Superintendent which:
a.identifies the condition in respect of which you seek an exemption;
b.explains the extent to which you seek to be exempted from the condition;
c. explains your reason(s) for seeking the exemption; and
provide any other information requested by the AFP Superintendent for the purposes of determining whether to approve the exemption.
22.2The AFP Superintendent may grant or refuse an exemption, subject to any reasonable directions specified in writing.
22.3You must comply with all of the reasonable directions specified in writing by the AFP Superintendent. If you do not comply with a reasonable direction in relation to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
22.4You must request an exemption before the material time and date (as defined in Interpretation below). If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
23 Condition 23 (exemption granted by the AFP without a request from you)
23.1The AFP Superintendent may grant an exemption to any of Conditions 1-21 above without a request from you. The AFP Superintendent must obtain your consent, if he or she is considering granting an exemption without a request from you.
23.2The AFP Superintendent may grant an exemption subject to reasonable directions specified in writing provided on reasonable notice to you and to which you consent in writing.
23.3You must comply with all of the reasonable directions 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.
24 Condition 24 (approval from the AFP Superintendent)
24.1You may obtain approval from the AFP Superintendent for the purposes of Conditions 8.1, 11.2, 15.1, 17.1, 18.10, 19.1 and 21.1. To obtain approval you must submit a written request to the AFP Superintendent which identifies the condition in respect of which you seek approval; and provide any information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the request.
24.2The AFP Superintendent may grant approval subject to conditions specified in writing.
24.3The AFP Superintendent may revoke approval that has previously been provided.
Offences
Section 105A.18A of the Code makes it an offence to contravene the conditions of an extended supervision order.
See also Part 2.4 of the Code, which provides for extensions to criminal responsibility where (for example) you attempt to commit an offence, cause or permit any other person to do any of the actions prohibited by these conditions or conspire with other people to commit an offence.
Interpretation
In this Extended Supervision Order:
Accountcredentials means information that a user of a device or on online account requires in order to access or operate the device or account, and includes, for example, each of the following:
a. A username;
b. A password;
c. A Personal Identification Number (PIN);
d. A security question or answer;
e. A biometric form of identification.
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 Superintendent.
Branch Manager means an employee of the Attorney-General’s Department performing the duties of Assistant Secretary with responsibility for high risk terrorist offender casework, and 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 acting under the direction of or on behalf of the Branch Manager.
Closefamily member means a close family member within the meaning of s 102.1(1) of the Code (as in force from time to time).
Emergencymeans 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 close family member, or threatens to destroy or damage the specified premises.
Material time and date means:
a.In relation to a condition that requires you to do an act – the time and date that you are required to do that act;
b.In relation to a condition to that prohibits you from doing an act – the time and date that you propose to do that act;
c.In relation to a condition that requires to you be present at an area or place – the time and date that you are required to be present at that area or place; or
d.In relation to a condition that prohibits you from being present at an area or place – the time and date that you propose to be present at that area or place.
Reasonabledirection (and reasonably directed) has the meaning given in s 105A.7B(4) of the Code, being a direction that is reasonable in all the circumstances to give effect to:
a. The condition; or
b. The object of Division 105A of the Criminal Code.
Serious offence means an offence against a law of a State or Territory of Australia or the Commonwealth of Australia that is punishable by a maximum penalty of 2 or more years of imprisonment
Tabletdevice includes but is not limited to an iPad or a Samsung Galaxy Tab.
Terroristorganisation means a terrorist organisation within the meaning of s 102.1(1) of the Code (as in force from time to time).
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