Attorney-General v Temssah (No 2)

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
DATES OF HEARING:	30 April – 3 May 2024 and written submissions filed on 8 May 2024 and 11 June 2024
DATE OF JUDGMENT:	19 June 2024
CASE MAY BE CITED AS:	Attorney-General v Temssah (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 328*

*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 extended supervision order (ESO) under the Criminal Code Act 1995 (Cth) – Defendant sentenced to imprisonment for terrorism offences in 2021 – Sentence completed – Whether unacceptable risk of committing serious pt 5.3 offence if released into community unsupervised – Whether the Court is satisfied that each of the conditions to be imposed on the offender by the ESO is reasonably necessary, and reasonably appropriate and adapted for the statutory purpose – ESO granted – Criminal Code Act 1995 (Cth), ss 105A.3, 105A.5, 105A.6B, 105A.7A, 105A.13, 105A.18D – Nigro v Secretary to the Department of Justice [2013] VSCA 213; New South Wales v BP (No 2) [2019] NSWSC 806; R v Ali [2020] VSC 316; Minister for Home Affairs v Benbrika (First review) [2022] VSC 169; Attorney-General v Hadashah Sa’Adat Khan [2022] VSC 507; Attorney-General v Hadashah Sa’adat Khan (No 2) [2022] VSC 687; Benbrika v A-G (Cth) [2024] VSC 265.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Bennett SC with Mr Minson and Ms O’Neil for the plaintiff	Australian Government Solicitor
For the Defendant	Mr Nathwani SC with Ms Clark and Ms Grant	Robinson Gill Lawyers

TABLE OF CONTENTS

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

The offending..................................................................................................................................... 4

Legislative scheme: an overview..................................................................................................... 8

Unacceptable risk............................................................................................................................. 10

Legal principles........................................................................................................................... 10
Object of Division 105A: s 105A.6B(1)(a)................................................................................. 13
Assessment by relevant experts: s 105A.6B(1)(b)-(c)............................................................. 18
Dr Andrew Ellis................................................................................................................. 19
Dr Michael Davis............................................................................................................... 27
Discussion........................................................................................................................... 33

Management in the community: s 105A.6B(1)(d)................................................................... 39
Treatment and rehabilitation programs: s 105A.6B(1)(e)...................................................... 41
Community Integration Support Program (CISP)........................................................ 42
Other treatment and rehabilitation programs............................................................... 45

Compliance with ISOs: s 105A.6B(1)(f).................................................................................... 46
Prior convictions and the views of the sentencing court: s 105A.6B(1)(g)-(h)................... 47
Any other information as to risk: s 105A.6B(1)(i)................................................................... 47
Family support................................................................................................................... 47
Alleged counterproductive effects of an ESO............................................................... 48
Perceived grievances......................................................................................................... 51
Mr Temssah’s communication and relationships with other prisoners.................... 52
Content, tone and attitudes expressed by Mr Temssah in prison.............................. 55

Determination: unacceptable risk............................................................................................. 57

Proposed conditions: reasonably necessary, and reasonably appropriate and adapted.... 58

Principles...................................................................................................................................... 58
Proposed conditions................................................................................................................... 61
Duration........................................................................................................................................ 69

ANNEXURE A.................................................................................................................................. 73

HIS HONOUR:

Introduction

On 15 September 2021, Khaled Temssah 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)[1] 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.
[1]The offence to which Mr Temssah pleaded guilty was particularised as follows: between about the 3^rd day of June 2019 and the 20^th day of June 2019 at Melbourne and elsewhere in Victoria, KHALED TEMSSAH, while being an Australian citizen, did intentionally engage in conduct, intending that the conduct was preparatory to the commission of an offence against section 119.4(1) of the Criminal Code (Cth), being the entry into a foreign country, namely India, with the intention of engaging in hostile activity in a foreign country.

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.[2] Mr Temssah completed his sentence and was released from custody on 18 March 2024.
[2]See R v Temssah [2021] VCC 1353 (‘R v Temssah’).

On 21 March 2024, three days after his release from prison, the Court made an order under s 105A.9A of the Code imposing on Mr Temssah an ‘interim supervision order’ (ISO) for a period of 28 days ending on 19 April 2024.[3] The order was made in this proceeding in which the Attorney-General for the Commonwealth also seeks that Mr Temssah be subject to an ‘extended supervision order’ (ESO) for two years. An ESO is a type of ‘post-sentence order’ the Court may make under s 105A.7A(1) of the Code. The Court may make an ISO in relation to a terrorist offender, where an application has been made to impose an ESO on them.
[3]See the reasons for judgment: Attorney-General v Temssah [2024] VSC 172 (the ISO reasons). The conditions imposed on Mr Temssah by the ISO are annexed to the ISO reasons.

An ISO may be in force in relation to an offender for no more than 28 days.[4] However, the Court may make more than one ISO in relation to an offender, subject to the constraint specified in s 105A.9A(8) of the Code that the total period of all interim supervision orders made in relation to an offender before the Court makes a decision on an application for an ESO must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.
[4]Section 105A.9A(7).

On 16 April 2024, the Court made a further ISO in relation to Mr Temssah which imposed conditions in the same terms as were imposed by the order made on 21 March 2024 (as varied with the agreement of the parties on 25 March 2024).[5] The order was expressed to operate until the earlier of 17 May 2024 or the determination of the Attorney-General’s application for an ESO.
[5]The ISO was varied to allow Mr Temssah to have access to certain materials.

The hearing of the Attorney-General’s application for an ESO, which was opposed by Mr Temssah, proceeded over four days concluding on 3 May 2024. The Attorney-General relied upon the following evidence:

(a) affidavits of Anthony Desmond Giugni, Senior Executive Lawyer at Australian Government Solicitor, affirmed 23 February 2024 and 8 March 2024;

(b) affidavits of Magda Ziadeh, interpreter and translator, sworn 14 February 2024 and 12 April 2024;

(c) affidavits of Inspector Sarah Carmichael, Unit Manager of the Countering Violent Extremism Unit at Victoria Police, sworn 26 February 2024, 8 March 2024 and 10 April 2024;

(d) affidavit of Brooke Hartigan, First Assistant Secretary of the Security and Counter-Terrorism Division in the Commonwealth Attorney-General’s Department, affirmed 26 February 2024;

(e) Expert Risk Assessment Report authored by Peta Lowe, social worker, dated 2 June 2021;

(f) psychological report authored by Guy Coffey, clinical psychologist, dated 6 June 2021;

(g) affidavits of Jennifer Ann Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 11 March 2024 and 3 May 2024;

(h) affidavits of Frank Dumic, Assistant Commissioner, Security and Intelligence Division at Corrections Victoria, sworn 11 March 2024 and 17 April 2024;

(i) affidavits of Nicholas Andrew Read, a Commander of the Australian Federal Police (AFP) in charge of Counter Terrorism South, sworn 26 February 2024, 12 April 2024 and 26 April 2024;

(j) affidavits of Dr Andrew Kenneth Ellis, consultant forensic psychiatrist, affirmed:

(i) 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;

(ii) 12 April 2024, exhibiting a supplementary report dated 12 April 2024; and

(iii) 26 April 2024, exhibiting a supplementary report dated 26 April 2024; and

(k) an email to the defendant from Shane Edgerton of the AFP dated 18 April 2024.

Mr Temssah adduced the following evidence:

(a) affidavits of Gemma Ross-McGlynn, solicitor at Robinson Gill Lawyers, affirmed 24 April 2024, 29 April 2024 and 1 May 2024;

(b) affidavits of Dr Michael Davis, consultant forensic clinical psychologist, affirmed:

(iv) 22 April 2024, exhibiting an expert report of his dated 22 April 2024; and

(v) 26 April 2024, exhibiting documents referred to in his expert report dated 22 April 2024;

(c) affidavit of Dr Adrian Gully, interpreter and translator, sworn 19 April 2024, exhibiting an expert report of his dated 19 April 2024; and

(d) affidavit of Jennifer Ann Hosking, Assistant Commissioner (Sentence Management) at Corrections Victoria, sworn 2 May 2024.

On 13 June 2024, the Court ordered that Mr Temssah be subject to an ESO imposing the conditions and exemptions set out in Annexure A[6] for a period of 18 months. These are the Court’s reasons for making that order.

The offending[7]

[6]In redacted form consistent with the order of the Court.

[7]This summary of Mr Temssah’s offending is taken from [49]-[56] of the ISO reasons, augmented by the contents of statement of agreed facts relied upon by the parties in the hearing of the application for an ESO.

Mr Temssah was 30 years old at the time of the offending in 2019. With his wife who he married in 2013, he has two children born in 2015 and 2017. 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 Islamic State 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 Islamic State, 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 Islamic State 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 Islamic State. 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 Islamic State.

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. He indicated to the operative that his family were unaware of his plans.

Mr Temssah was arrested on 20 June 2019.

During his plea hearing on 10 June 2021, Mr Temssah renounced any support for Islamic State and their extremist ideology.

On 15 September 2021, the sentencing Judge made the following observations in relation to the nature and circumstances of the offence:[8]
[8]R v Temssah (n 2), [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:[9]

… 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.

[9]Ibid [80].

Mr Temssah was sentenced to a total effective sentence of four years and nine months imprisonment, with a non-parole period of three years and nine months. He was in custody from 21 June 2019, until his release on 18 March 2024.[10]
[10]Mr Temssah applied for release on parole in December 2022; the request was refused on 14 March 2023.

Legislative scheme: an overview

Division 105A of the Code establishes a regime for the making of ‘post-sentence orders’ of which there are two types: a continuing detention order (CDO) and an ESO. Justice Hollingworth recently made the following important statement of principle in relation to the nature post-sentence orders:[11]

Post-sentence orders, such as CDOs and ESOs, are exceptional. As a general rule, our legal system punishes people by sentencing them for crimes they have committed. Its purpose is not to detain people to prevent a crime that they may or may not commit in the future. However, parliaments have introduced preventative detention regimes for certain types of very serious offenders, including terrorism offenders. Such regimes are the exception, not the norm. Courts have repeatedly said that the fundamental liberty of a person should not be constrained to any greater extent than is strictly warranted by the particular preventative detention legislation.

[11]Benbrika v A-G (Cth) [2024] VSC 265, [23] (‘Benbrika v A-G’).

The object of Division 105A of the Code is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to a CDO or an ESO.[12] Serious Part 5.3 offences are offences against Part 5.3 of the Code which carry a maximum penalty of 7 or more years imprisonment.[13]
[12]Section 105A.1
[13]Section 105A.2(1).

Subdivision C of Division 105A deals with the making of post-sentence orders. Section 105A.5 provides that the ‘AFP Minister’, or their legal representative, may apply to a Supreme Court of a State or Territory for either a CDO or an ESO in relation to the offender. The Attorney-General is the AFP Minister for the purposes of Division 105A of the Code.[14]
[14]See s 100.1(1) of the Code.

The Court may determine an application for an ESO either by making an ESO under s 105A.7A, or by dismissing the application.[15] An ESO may be in force for no more than three years ‘that the Court is satisfied is reasonably necessary to prevent the unacceptable risk’.[16]
[15]Section 105A.6A(2).
[16]Section 105A.7A(4)(d).

Section 105A.7A(1) relevantly provides as follows:

(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.

It was uncontroversial that the requirement in s 105A.7A(1)(a) was met in relation to the application for an ESO to be imposed on Mr Temssah.[17] The controversies for determination are therefore the substantive requirements identified in s 105A.7A(1)(b) and (c): whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, and whether the conditions sought to be imposed upon him are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk. The Attorney-General bears the onus of satisfying the Court of these requirements[18] which are considered separately below. They are to be determined in accordance with the rules of evidence and procedure for civil matters.[19]
[17]The preconditions for a valid application prescribed by s 105A.5 were met in that: the Attorney-General, as the AFP Minister, had made the application not more than 12 months before the end of Mr Temssah’s sentence of imprisonment; the application included the material and contents specified in s 105A.5(3); and Mr Temssah is a ‘terrorist offender’ within the meaning of s 105A.3(1).
[18]See s 105A.7A(3).
[19]See s 105A.13(1) of the Code which applies to a ‘post-sentence order proceeding’, defined in s 105A.2 to include a proceeding under subdivision C relating to the making of post-sentence orders such as an ESO.

Unacceptable risk
Legal principles

Section 105A.7A(1)(b) requires that, in considering whether Mr Temssah poses an unacceptable risk of committing a serious Part 5.3 offence, the Court must have regard to the matters set out in s 105A.6B(1) of the Code. As is applicable to this proceeding, those matters are as follows:

(a)       the object of this Division;
(b)any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under:
(i)        section 105A.6; or
(ii) section 105A.18D;
(c)the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment;
(d)any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i)        the relevant State or Territory corrective services; or
(ii)any other person or body who is competent to assess that extent;

(e)any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs;
(f)the level of the offender's compliance with any obligations to which the offender is or has been subject while:
(i)…
(ii)subject to a post-sentence order, interim post-sentence order or control order;

(g)the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);
(h)the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;
(ha)…;
(i)any other information as to the risk of the offender committing a serious Part 5.3 offence.

Importantly, s 105A.6B(2) makes clear that the above provision does not prevent the Court from having regard to any other matter the Court considers relevant in deciding whether the Court is satisfied that an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[20]
[20]See s 105A.6B(2).

In having regard to mandatory and other relevant matters, the evidence as a whole must be examined, rather than being considered in a piecemeal way.[21] It is the effect of the evidence as a whole which is important in determining whether an offender poses an unacceptable risk of committing a serious Part 5.3 offence.[22]
[21]Minister for Home Affairs v Benbrika (First review) [2022] VSC 169, [54].
[22]Ibid.

The meaning and approach to be adopted in considering ‘unacceptable risk’ was considered by Hollingworth J in Minister for Home Affairs v Benbrika (First review) (‘Minister for Home Affairs v Benbrika’) as follows:[23]
[23]Ibid [48] – [51].

In Nigro v Secretary to the Department of Justice (‘Nigro’),[24] 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.[25]
[24][2013] VSCA 213; (2013) 41 VR 359. The legislation under consideration in Nigro was the Serious Sex
Offenders (Detention and Supervision) Act 2009 (Vic).
[25]Ibid [165].
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.[26] 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.[27]
[26]Ibid [6], [167].
[27]Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 at [47] (Kiefel CJ, Bell, Keane and Steward JJ).
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.[28]

In NSW v Naaman (No 2) (‘Naaman’),[29] 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.[30]

Implicit in these observations, and in the statutory language directed at considering whether the risk of an offender committing a serious Part 5.3 offence is ‘unacceptable’, is a recognition, identified by the Court of Appeal in a different statutory context directed at the existence of ‘unacceptable risk’, [31] that the Code contemplates that some level of risk is acceptable in a democratic society which values the rights of an individual to freedom and privacy.[32]

[28]Nigro (n 24), [130].

[29][2018] NSWCA 328.

[30]Ibid [29].

[31]The legislation under consideration in Nigro was the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

[32]Nigro (n 24) [113], [69].

Further, as explained by John Dixon J in Attorney-General v Hadashah Sa’Adat Khan (‘Attorney-General v Khan’),[33] the concept of unacceptable risk of committing a serious Part 5.3 offence:[34]

… is a flexible concept calibrated to the nature and degree of the risk and adaptive to the circumstances of each particular case. The critical assessment is the combination of the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. The gravity of the consequences will ordinarily be the critical factor in the assessment.

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

[33][2022] VSC 507.

[34]Ibid [27].

In undertaking this task, it must also be steadily borne in mind that the relevant risk is the risk of a terrorist offender committing a ‘serious Part 5.3 offence’. That offence is defined to mean an offence against Part 5.3, the maximum penalty for which is 7 or more years’ imprisonment.[35] Various offences fall into this class and it includes preparatory offences, such as possessing things connected with terrorist acts,[36] and offences which do not involve the commission of actual acts of violence, for example, the provision of support to a terrorist organisation.[37] As was submitted on behalf of the Attorney-General, the fact that preparatory and non-violent conduct falls within the definition of a serious Part 5.3 offence, underscores that the unacceptable risk to the community which Division 105A is designed to prevent need not involve the actual commission of a terrorist act.
[35]Section 105A.2(1).
[36]Section 101.4.
[37]Section 102.7.

Object of Division 105A: s 105A.6B(1)(a)

The object of Division 105A is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to a CDO or an ESO. At a basic level, the object of protecting the community from serious Part 5.3 offences requires little elaboration when considering whether Mr Temssah poses an unacceptable risk of committing such an offence; the object informs in a general way what is meant by an ‘unacceptable’ risk.

Evidence as to the current threat of serious Part 5.3 offences to the Australian and international communities is also a relevant matter for the Court to have regard to when considering the statutory object as it provides the Court with a contemporary context in which to assess the risk associated with Mr Temssah. Evidence of this type was given by Commander Nicholas Read of the Australian Federal Police. Commander Read has had various roles with the AFP involving counterterrorism at different times over the last 20 years. From February 2023 he commenced in the position of Commander of Counter Terrorism Investigations,[38] in which role he was responsible for coordinating and administering the Joint Counter Terrorism Teams[39] and the AFP’s Enduring Risk Investigation Teams, which operate across five States or Territories. Commander Read is well placed to give an informed and accurate assessment of the current general threat of serious Part 5.3 offences, including both the threat of terrorism inspired or encouraged by Islamic State, and the risk posed by individuals like Mr Temssah who have been prevented from travelling to foreign conflict zones. I generally accept his evidence in relation to these matters which was largely unchallenged.
[38]From 9 April 2024 Commander Read commenced as Acting Assistant Commissioner of Counter Terrorism and Special Investigations.
[39]Comprised of members of the AFP, those from relevant State or Territory policing bodies and members from other security and law enforcement agencies including ASIO.

The topics about which Commander Read gave detailed evidence included an overview of the activities of Islamic State and its current status in some 20 countries and regions; the methods by which terrorist activities have been carried out; and the threat of terrorism in Australia. Commander Read’s evidence supports the findings set out below.

In November 2022, the ‘National Terrorism Threat Level’ prepared by the Australian Security Intelligence Organisation (ASIO) by reference to the security environment and intelligence was reduced from ‘probable’, which had been the identified the threat level since 2014, to ‘possible’, at which level it presently remains. This means that ASIO assesses that currently there is a 50/50 chance of a terrorist attack occurring in Australia. At present, the greatest risk of terrorism in Australia is religiously motivated violent extremism, including terrorism inspired or encouraged by Hamas, Hizballah, and/or as a result of the current Israel-Hamas conflict.

Islamic State has openly called for attacks against Australia and its interests and there have been terrorist attacks in Australia in which the perpetrators claimed to be inspired by Islamic State, or for which Islamic State claimed responsibility. Although Islamic State has become more fractured since the decline of the Caliphate[40] in 2019 with the consequence that the nature of the risk it presents has changed, its capacity to radicalise individuals into perpetrators of attacks at home (and to a lesser extent abroad) remains a very real threat. Islamic State and its supporters continue to:

(a) espouse and encourage politically and religiously motivated violence online, including through social media; and

(b) promote domestic terror attacks by lone offenders, including through the use of vehicles, knives and other methods that require little skill and no specialised equipment.

[40]On 29 June 2014, Islamic State declared itself a Caliphate with leader Abu Bakr Al-Baghdadi as its Caliph.

In considering the statutory object, these findings about the nature and level of the general risk of terrorism in Australia should be considered in the context of matters specific to Mr Temssah.

The starting point is to recognise and give weight to the fact that Mr Temssah has served a substantial term of imprisonment and that the recidivism rate for terrorism offences is extremely low.[41] I also accept that Mr Temssah’s period of incarceration and, in particular, his consequential separation from his family, is likely to have furthered the sentencing object of deterring him from engaging in serious Part 5.3 offences. The evidence establishes that Mr Temssah has felt the burden of separation from his wife and young children, with whom he has remained in close contact while in prison, and that he is highly motivated to re-establish positive and meaningful relations with them now that he has been released from custody.
[41]See [77(g)] below.

It is also clear that, at least for most of time in prison, Mr Temssah has genuinely engaged in rehabilitation. The question of rehabilitation is a matter of particular importance in this proceeding which I consider later in these reasons; it is sufficient for present purposes to acknowledge that there has been a substantial engagement by Mr Temssah with various rehabilitation programs which have positively influenced the process of deradicalisation which I am satisfied Mr Temssah has embarked upon.

Another feature of Mr Temssah’s circumstances which I was urged to take into account in considering the statutory object in its application to him is his public renunciation of support for Islamic State. Mr Temssah gave evidence at his plea hearing on 10 June 2021, which the sentencing Judge accepted was genuine, in which he publicly renounced any support he had previously had for Islamic State, and their extremist ideology. It was submitted on behalf of Mr Temssah that the risk he poses is intrinsically lower because of his renunciation; as an apostate, the prospect that he would again be enlisted by Islamic State was said to be ‘incredible’.

Evidence relevant to this issue was given by Dr Adrian Gully, an expert in Islamic studies, as well as being an interpreter and linguist. Dr Gully’s evidence was that the pledging of allegiance to the ‘Commander of the Faithful’ is obligatory for every Muslim. A person who abandons or disassociates themselves from their pledge of allegiance is a ‘murtadd’, that is, an apostate. He referred to the work of Ibn Hajar, a Muslim scholar and polymath who died in 1449AD who wrote on the topic of apostasy and identified that the penalty for apostasy was death. Dr Gully’s evidence was that that scholarship had been appropriated by Islamic State and that Mr Temssah’s expression of renunciation would mean that Islamic State would regard him as an apostate. Based on a literal consideration of the religious texts and his understanding of the experiences of people under Islamic State who are considered to be apostates, Dr Gully considered that Mr Temssah’s renunciation of his adherence to Islamic State placed him at risk of death. As he put it, it is:

… very dangerous for him and his family if he were to ever consider pledging his allegiance to Islamic State again, or showing any kind of support for the organisation. Islamic State’s way of dealing with ‘apostates’ is uncompromising. The same would apply to any attempt to show allegiance to any associated terrorist organisation.

I am unconvinced by this analysis in light of two related limitations on Dr Gully’s analysis which emerged from his evidence. First, in referring to the pledge of allegiance to the ‘Commander of the Faithful’, Dr Gully was referring to a general proposition rooted in the history of Islam which he has then ‘extrapolated’ to Islamic State. Secondly, Dr Gully acknowledged that there was no precedent as to the consequences for a person who renounced their allegiance to Islamic State; his opinion was based on a consideration of the relevant source materials and principles, not on any examples of the consequences which have occurred for those who have renounced their allegiance to Islamic State. This last point reveals that the ultimate conclusion reached by Dr Gully – that Mr Temssah’s renunciation of Islamic State places him at risk of death – has an essentially speculative element. In the absence of some evidence which would ground Dr Gully’s analysis in the reality of Islamic State’s actions, it would be unsound for the Court to make assumptions about the position and actions which a now fractured extremist group and its followers are likely to adopt or pursue in relation to apostates.

Nevertheless, putting to one side this submission based on Mr Temssah’s status as an apostate, his genuine and public renunciation of Islamic State and its extremist ideology is, in and of itself, a proper basis to moderate the statutory object in its application to him. In a sentencing context, a terrorist offender’s genuine renunciation and denunciation of Islamic State philosophy and the holding of extremist beliefs is recognised as a significant mitigating circumstance which moderates to some extent the need for the community to be protected for the offender.[42] The public renunciation of Islamic State and an acceptance of criminal responsibility has been regarded by sentencing judges as a ‘very significant step’.[43]
[42]R v Ali [2020] VSC 316 [173], [201] (‘R v Ali’). Although an appeal on sentence was successful, the Court of Appeal appeared to endorse the above observations, referring to the defendant’s public renunciation of ISIS as an important mitigating factor: see Director of Public Prosecutions (Cth) v Ali [2020] VSCA 330 at [89], [90], [107].
[43]R v Ali (n 42), [171], approving observations of Beale J in R v Abbas, Chaarani & Mohamed [2019] VSC 775.

For the these reasons, when considering the statutory object in relation to the application for an ESO in respect of Mr Temssah, I consider that there are significant factors which moderate the general risk of terrorism in Australia as set out in Commander Read’s evidence.

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

As the Court of Appeal stated in Nigro in a different, but equally apposite,[44] statutory context:[45]

Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

[44]In relation to the Serious Sex Offenders (Detention and Supervision) Act 2009. See Minister for Home Affairs v Benbrika (n 21), [272].

[45]Nigro (n 24), [124], citations omitted.

The Court received evidence from two experts which will be considered in detail below: Dr Andrew Ellis, a consultant forensic psychiatrist who provided an assessment pursuant to s 105A.18D of the Code; and Dr Michael Davis, consultant forensic clinical psychologist, who was engaged on behalf of Mr Temssah’s legal representatives to provide and assessment of him conducting a serious Part 5.3 offence.

Despite their different qualifications, Dr Ellis and Dr Davis are suitably qualified and experienced to give evidence in relation to the issue of unacceptable risk. Dr Ellis has had extensive experience across different areas of criminal forensic psychiatry. He is the Clinical Director and Medical Superintendent of The Forensic Hospital in Sydney and a Consulting Psychiatrist to the New South Wales Countering Violence Extremism Unit, State Protection Group, Police Negotiator Unit, and Fixated Threat Centre. As a forensic and clinical psychologist working in private practice, Dr Davis has published extensively on the topic of risk assessment, which was the subject matter of his doctoral thesis. He was involved in the development of several risk assessment tools, including those to measure the risk of terrorism offenders. He is an Instructor to the Behavioural Analysis Unit of the Federal Bureau of Investigation in the United States of America and is also a member of the of the Risk Management Working Group at BAU-1 (Counterterrorism) of the FBI.

Counsel for Mr Temssah also relied upon the following previous risk assessments undertaken in respect of Mr Temssah:

(a) an assessment in June 2021 by Peta Lowe, a social worker, in which she concluded that Mr Temssah was [redacted];

(b) an assessment in June 2021 by Guy Coffey, clinical psychologist, in which he stated that Mr Temssah was in a position which should preclude recidivism, although he had limited insight into his offending and the speed of his radicalisation suggested instability and capriciousness in his doctrinal views;

(c) a ‘Level of Service Inventory Summary Report’ prepared by Corrections Victoria in September 2021 which assessed Mr Temssah as [redacted]; and

(d) an assessment by Corrections Victoria Forensic Intervention Services in February 2022 that Mr Temssah was low risk.

Although these assessments provide useful context in relation to the risk posed by Mr Temssah and demonstrate that his risk has consistently been assessed as being at a low level, their utility is necessarily limited by various considerations including their lack of contemporaneity and by with the present task to be undertaken by the Court.

Dr Andrew Ellis

The following summary of Dr Ellis’ principal report dated 3 December 2023, prepared after he interviewed Mr Temssah on 4 November 2023, is taken from the ISO reasons:[46]
[46]The ISO reasons (n 3), [69].

(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 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. …

(e) Dr Ellis continued (apparently in relation to the indicia and considerations raised by TRAP-18):

He does not currently share the following features with persons who have completed terrorist attacks. There is no novel or recent violence. He has not had a sudden increase in energy, nor leaked to third parties an intent to cause an attack. He shows no last resort or time imperative to act on his previously expressed plan of Jihad and foreign incursion. He has had no sudden changes in his thinking and emotion, and has viable occupational goals. He has not shown creative or innovative tactical thinking. He has not shown recent research or planning to implement an attack. He has formed an intimate sexual relationship. He does not have an ongoing mental disorder. He has not previously engaged in other criminal activity. He does not identify with a warrior mentality.

(f) In relation to VERA-2R and CISP, Dr Ellis made the following observations:

According to the VERA-2R scheme in terms of belief, attitudes and ideology he voices a non-violent religious ideological goal that is personal only at present. He reports that his views are consistent with a mainstream Sheik in the employ of Corrections Victoria, [redacted]. While his religion remains important, he has other goals (employment and family) which are also important to him. He does not endorse violence at present. This stance is congruent with his communications and interactions with professional staff. He voiced antipathy to violent groups such as ISIS to me, and treating staff at CISP. He has held dismissive views about Australian justice agencies, previously seeing his arrest and treatment as unfair, however this has moderated over time with current positive regard for his supervisors. He reports no antipathy to democratic values. He accepts multiculturalism and voices no antipathy to a diverse society. He accepts the need for supervision given his offence type.

(g) Dr Ellis next addressed Mr Temssah’s social context and intentions. He noted that Mr Temssah does not currently express a personal intention to act upon his prior grievances and no longer sees it as his role to solve international problems or to seek glory in that regard. He also noted that Mr Temssah’s current contact with violent extremists relates to his placement in custody, and that there was no evidence that he is currently interacting with them about planning violence, and that their contact was partly cultural or friendship based, rather than based on ideology. Dr Ellis recorded that Mr Temssah indicated that he would not seek out extremists in the community. However, Dr Ellis also referred to Mr Temssah’s ‘unstable personality’ as being ‘potentially influenced’. He continued:

It is possible he could be easily swayed by charismatic or influential figures who present him with an exciting and seemingly purposeful and heroic mission. He would be more susceptible to this if he were not engaged with family, work, study and pro-social community activity, feeling marginalised and without meaning in his life. He has previously been proven to seek out group activity for terrorism at a time when he did not have professional support and supervision, but correspondingly did not report any major stress and was working and ostensibly in a good relationship. He has not expressed any formed plans for extremist action. While he had previously accepted death as a possibility of acting on extremist beliefs, he is more engaged with his family now and does not report this as a motive, being more worried that he thought this way in the past.

(h) Dr Ellis next addressed matters of ‘commitment and motivation’ and observed that Mr Temssah ‘may engage in responsive actions if he is not able to manage stress or life dissatisfaction and channels this toward grievance about treatment of Muslim people’. Dr Ellis stated that Mr Temssah’s capacity to act on this type of response in the nature of a Part 5.3 offence would depend on the involvement with, or influence of, others, including online.

(i) Dr Ellis summarised his views and reached the following conclusion as to Mr Temssah’s risk of engaging in extremist related violence:

In considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence Mr Temssah has made a number of significant changes in his life to reduce the factors that were present when he committed the preparation offence. Some factors are historical, and therefore remain even if he makes changes (such as having been associated with a group, made plans, committed an offence). The progress with reducing the modifiable risk factors has been gradual and there remains uncertainty around some of them as they rely on his self-report (for example that he has given up any excitement about engaging in jihad and has adopted moderate Islamic beliefs). Some require evidence of consolidation in community settings (such as more sustained insight into his motivations and prior minimisation of his conduct). Some rely on him continuing clinical care and not relapsing to past patterns of behaviour (such as continued good stress management techniques and consistent adoption of critical thinking skills). Some rely on him not coming into contact with others in person or online who may influence him. Some rely on him adapting well to community life and the frustrations that may arise (economic or employment problems, problems with maintaining his relationship with his wife and children, having sustained meaningful interactions with his family). How he manages these potential stressors is yet to be tested, hence there is a level of uncertainty around establishing that these risk factors are in sustained remission and could remain that way without formal supervision and supports provided. On this basis there remains some risk factors that would benefit from clinical intervention, and some risk factors that are uncertain which would benefit from supervision to give greater confidence they were stably managed without intervention.

In the ISO reasons, I also addressed Dr Ellis’ reports dated 25 January 2024 and 16 February 2024 in relation to Mr Temssah:[47]

Senior counsel for Mr Temssah also relied on the supplementary report prepared by Dr Ellis dated 25 January 2024 and his observation that Mr Temssah showed good communication and reasonable insight into his past offending which had improved from his time earlier in custody. Dr Ellis also stated that, because of limitations on the prediction of rare or low frequency events, he could not give a categorical assessment of whether the risk of Mr Temssah committing a non-violent serious Part 5.3 offence was higher or lower than the risk usually presented by a prisoner released from custody.
In his second supplementary report dated 16 February 2024, Dr Ellis stated that his opinion in relation to Mr Temssah as expressed in the abovementioned reports remained unchanged. However, he also made the following positive observations in relation to certain documents and information about which he was invited to comment:
The recent entries from Corrections Victoria indicate positive engagement with the CISP team. They indicate no recent behaviours of concern or institutional infractions. He has positive interactions with his wife and children observed. The notes indicate that while he has associated with others who have had similar convictions, this is not unexpected being housed in prison, and that these associations are not of concern to the prison authority. The notes indicate that his wife actively participates with the CISP team.

[47]The ISO reasons (n 3), [70] – [71].

More recently, and after the ISO in respect of Mr Temssah was made, Dr Ellis prepared a further report dated 12 April 2024 in which he expressed the following opinions:

(a) As to whether Mr Temssah’s compliance with the ISO is relevant to assessing his ongoing risk of committing a serious Part 5.3 offence, Dr Ellis stated that ‘[c]ompliance at this early point is not likely to be relevant to longer term risk, owing to the nature of this long term risk requiring sustained observed …change to modify the level of concern’.

(b) Dr Ellis was asked to elaborate upon his previously expressed opinion that the risk posed by Mr Temssah should be managed over a period of two years. Describing this as his ‘professional estimate’, Dr Ellis continued:

There is little empirical guidance to make firm estimates of time of supervisions orders. In general, the highest risk time in the community for reoffending is the first two years. The main modifiable risk factor present is personality traits, which could be expected to improve within two years of psychotherapy. Other risk factors, such as stable employment, accommodation, attitudes and personal supports could be better assessed as stable and sustained after two years.

In Dr Ellis’ view, if Mr Temssah was compliant for less than two years, there would be less certainty that risk factors had been mitigated in a sustained way, as compared to compliance having been demonstrated for two years. Likewise, therapy for a period of less than two years would be less likely to be effective in modifying long term personality characteristics.

(c) As to the range of critiques which existed about risk assessment, Dr Ellis considered that, although there was a healthy debate, the general consensus was that ‘use of structured professional judgment, aided by clinical tools reduces error and assists with individual and group patient management’. Purely actuarial or statistical methods of risk assessment had a more narrow application in assisting with the prediction of behaviour in groups; they were now rarely used alone in risk assessment for an individual. Dr Ellis did not consider that risk assessment can predict individual events, or meaningfully translate group statistics to an individual case. Rather, risk assessment was useful in ‘ identifying relevant risk factors in order to put in place effective and targeted individualised risk management’.

(d) In relation to the previous risk assessments which had been undertaken, although the methodology employed by Ms Lowe was similar to that which he used in relation to Mr Temssah, Dr Ellis did not consider that a categorisation of Mr Temssah’s risk as ‘low’ was ‘scientifically justified or useful’. Dr Ellis described Mr Coffey’s risk assessment as being less structured, the conclusion more definite and that the approach used had less support from the general literature.

(e) Dr Ellis made the important point that the purpose of the above earlier assessments were different to the current assessment, and that much less information was available to both authors. Nevertheless, he accepted that they provided background information and were part of the information which he considered in forming his opinion.

(f) Dr Ellis was asked to comment on certain recordings of telephone calls involving Mr Temssah, written letters and clinical notes which he was provided. The various written letters and clinical notes did not alter his previously expressed opinions. The telephone calls also did not alter his previous opinions, but he observed that they were consistent with the view that ‘personality factors … remain a concern, and that areas of uncertain risk (such as attitude to authority) require further monitoring’.

In his final report dated 26 April 2024, Dr Ellis explained that the report of Dr Adrian Gully with which he had been provided, did not alter his previously expressed opinions. Dr Ellis also responded to aspects of Dr Michael Davis’ report dated 22 April 2024.

Dr Michael Davis

Dr Michael Davis prepared a report in respect of Mr Temssah dated 22 April 2024 following an interview and psychological testing session he conducted with Mr Temssah for over 380 minutes on 11 April 2024.[48] The substance of Dr Davis’ opinions in respect of the issue of unacceptable risk is summarised below.
[48]The report was annexed to Dr Davis’s affidavit dated 22 April 2024. Dr Davis swore a further affidavit dated 26 April 2024 in which he exhibited various documents to which he referred in his report dated 22 April 2024.

In the first part of his report, Dr Davis detailed background information relating to Mr Temssah from the information provided to him as well as that provided by Mr Temssah in their interviews, including in relation to CISP. Dr Davis recorded that it appeared that Mr Temssah ‘was radicalised very quickly, and became at least somewhat de-radicalised rather quickly as well’. Mr Temssah described CISP as ‘life changing’ and that his mentor was very important to him. Dr Davis observed that the narrative articulated by Mr Temssah indicated that he had gone from having a ‘very black-and-white view of the world to one with shades of grey’. However, Dr Davis also noted that the materials he had been provided suggested that Mr Temssah continued to ‘have some at least concerning views inspired by his Islamic beliefs, particularly during 2021’. [redacted]

Dr Davis administered three psychological tests to Mr Temssah.

(a) The ‘Paulhus Deception Scales’ measures the tendency of a person to give socially desirable responses. Dr Davis reported that Mr Temssah’s results indicated neither a deliberate attempt to manage the impression of him formed by Dr Davis, nor a ‘non-effortful positive distortion in the form of self-deception’, were particularly prominent. There was, however, a slight degree of effortful positive distortion. Dr Davis considered that some degree of impression management was not unexpected in the circumstances and that the magnitude identified in relation to Mr Temssah was not particularly elevated.

(b) The ‘Personality Assessment Inventory’ (PAI) measures personality function and the presence of psychiatric symptoms. The results of the PAI in relation to Mr Temssah ‘revealed no elevations that would indicate the presence of a major mental illness or a personality disorder’ and that his clinical profile was entirely within normal limits. Dr Davis concluded that the results of the PAI test:

… were not indicative of a major mental illness or a personality disorder. They did suggest some mildly maladaptive personality features, feelings of personal failure, feeling persecuted by others, and historical antisocial behaviour.

(c) The ‘Personality Inventory for DSM-5 Faceted Brief Form’ assesses maladaptive personality features. In relation to Mr Temssah, the results of the test were largely consistent with the PAI test and revealed no indications of a diagnosable personality disorder and no indications of any maladaptive personality features. Even allowing for a likely degree of positive distortion, the results suggested that any possible maladaptive personality features ‘would be far from the magnitude of a diagnosable personality disorder’.

Informed by the results of these tests, as well as background information and a mental status examination of Mr Temssah, Dr Davis concluded that:

… testing was not indicative of a major mental illness or a personality disorder; although testing did suggest some mildly maladaptive personality features, a sense of personal failure, feeling persecuted by others, and historical antisocial behaviour.
It is my opinion that Mr Temssah does not meet formal criteria for a major mental illness or a personality disorder.

Dr Davis elaborated on Mr Temssah’s maladaptive personality features, noting that Mr Temssah:

… struggled to some degree with a coherent sense of identity, at least in the past, and presents with some mild narcissistic personality features (i.e. some grandiosity and haughtiness). At a wider level, personality features of emotional lability, anxiousness, suspiciousness, grandiosity, impulsivity, and risk-taking have been aspects of Mr Temssah’s presentation to varying degrees over the years. It is my opinion that his personality functioning is currently at a slight or mild level of impairment.

Before considering the risk of Mr Temssah committing a serious Part 5.3 offence, Dr Davis assessed Mr Temssah’s general risk of offending. He stated that it is now clear that ‘traditional’ unstructured clinical opinions have little relationship with subsequent recidivism and that instead actuarial or structured risk assessment schemes are useful for identifying risk factors and indicating the category risk for general reoffending in which an individual falls. Noting that there were no validated instruments or approaches for the assessment of extremism offending, Dr Davis applied two assessment tools relative to assessing Mr Temssah’s risk for offending.

(a) The ‘Hare Psychopathy Checklist-Revised’, being a standardised ratings scale which identifies traits of psychopathy and which has been reliably associated with general, violent and sexual recidivism and is considered to be an important consideration in the assessment of risk. Mr Temssah scored in the very low range, indicating that he was not psychopathic and did not possess personality features associated with offending of a particularly callous or predatory nature.

(b) The ‘Level of Service/Risk, Need, Responsivity’ scale which is used to identify predictors of general criminal conduct across eight domains. Mr Temssah’s score on this scale was in the upper end of the low range, indicating that he had very few risk factors associated with general criminal conduct. On that basis, Dr Davis expressed the view that Mr Temssah was currently a low risk for general criminal recidivism.

Dr Davis commenced his consideration of the risk of Mr Temssah committing a serious Part 5.3 offence by outlining the difficulties inherent in assessing risk in relation to terrorism and extremism. He explained that there is no validated way of assessing the risk of recidivism for serious Part 5.3 offences because the ‘base rate’ of recidivism for terrorism offences is too low to enable such assessments to occur without an overwhelming number of false positives. Further, none of the extant risk of threat assessment tools had been validated in relation to their predictive validity. Dr Davis described the state of scholarship in relation to the risk factors for terrorism offences as being ‘embryonic’.

Dr Davis surveyed the scant scholarly literature in relation to recidivism rates for terrorism which demonstrated that the recidivism rate for extremist offending was in the range 1.6 - 2.9%. This was very low by absolute standards, and substantially lower than the base rate for violence or sexual offending, rendering the making of risk assessments ‘exceedingly difficult’ because, even if a risk assessment instrument could be developed, it would not be able to identify recidivists without also including an overwhelming number of false positives.

Dr Davis identified that the very low base rate of recidivism for terrorist offenders was analogous to that for female sexual offenders, in relation to which the recidivism rate was approximately 1.34%. He referred to the leading academic in that field as suggesting that:

If the evaluation question specifically concerns the risk for sexual recidivism … then the risk factors must be so blatant that they overcome the presumption of low risk for sexual recidivism implied by the observed base rates.[49]

Dr Davis considered that this approach may be a useful way of envisaging the risk for terrorism offending.

[49]Franca Cortoni et al, ‘The recidivism rates of female sexual offenders are low: A meta-analysis’ (2010) 22(4) Sexual Abuse: A Journal of Research and Treatment 387, 398.

Dr Davis advanced a sustained critique of the use of VERA-2R in assessing risk for extremism recidivism. Dr Davis identified a series of ‘insurmountable problems’ with the use of VERA-2R which meant that its results could only be viewed as ‘thoroughly misleading’. In addition to the underlying difficulty associated with the very low base rate of recidivism for terrorism offenders, he stated that VERA-2R had no published validation and no demonstrated predictive validity for any form of offending. He also referred to recent research which in fact showed that VERA-2R had poor predictive validity in relation to violent extremism.[50] Dr Davis stated that this research indicated that VERA-2R does not have an empirical relationship with violent extremism, even when the experimental design is manipulated to include a considerably higher base rate. Given this raft of difficulties, VERA-2R should be viewed, at best, as a ‘series of tentative hypotheses awaiting further research’. He rejected the validity of its use for the purposes of assessing the risk of long-term recidivism. He went further and was critical of those who acknowledged that it is not a predictive tool, but who maintained that it provided a structured professional judgment framework for assessing risk factors. ‘Choosing to use a risk assessment instrument that has been shown to have no predictive validity means that any opinions based on that instrument have no foundation whatsoever for answering questions related to long-term risk’. He considered the use of VERA-2R even as a framework to commence a risk assessment a ‘perversion’ of the structured professional judgment model.
[50]Emily Corner and Helen Taylor, ‘Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments’ (Centre for Social Research and Methods, The Australian National University, 2020) (the Corner report).

Given the very low base rate of recidivism for terrorism and extremist offending and the absence of any validated risk assessment tool for assessing the risk of such offending, Dr Davis posited as appropriate the adoption of a similar approach to assessing the risk associated with reoffending by female sexual offenders. In that category, as noted above, given the low base rate of recidivism, the task for assessing risk is to consider ‘if there is anything blatant to suggest that this individual is not one of the 97.1 to 98.4 percent of extremist offenders who do not reoffend’. Dr Davis considered that this ‘straightforward’ approach should be applied by adopting what he described as a ‘more person-centred formulation approach’, being one of the components of modern risk assessment based upon structured professional judgment. That approach focusses on the individual concerned and a determination of how their previous offending arose, and a consideration of whether there was anything to suggest that the individual was likely to repeat the behaviour.

Applying this approach (which I will refer to as ‘Dr Davis’ analysis’) to Mr Temssah, in Dr Davis’ opinion, there was nothing blatant to suggest that he was not one of the 97.1%–98.4% of extremist offenders who do not reoffend. In giving effect to a ‘person-centred formulated approach’, Dr Davis continued:

In addition, if one compares [Mr Temssah’s] current circumstances with those at the time of his previous extremism offending, Mr Temssah is still clearly very devout in his Islamic faith. However, at the time of his previous offending, he was documented as having little foundational knowledge of Islam and was heavily influenced by radical and extremist Islamic lectures on-line. [redacted] …[Mr Temssah]… no longer views Islamic rules in the strict dichotomous ways that he did in the past, is very open to asking for advice from his Sheikh mentor, and views many rules and teachings as being products of their time that have been abrogated by other knowledge. Furthermore, Mr Temssah is openly and vocally negative about ISIS and the radical speakers he previously followed. … Moreover, while it is very soon after his release from prison, Mr Temssah is not currently living a life where he is focused on assisting other Muslims and neglecting his own wife and family. Indeed, there would appear to have arguably been some degree of personality maturation, including a more integrated sense of self, in recent years.

Having regard to these ‘basic’ considerations, Dr Davis considered that there was nothing blatant to suggest that Mr Temssah was not one of the 97.1%–98.4% of extremist offenders who do not reoffend.

In his report, Dr Davis also responded to specific questions posed by Mr Temssah’s solicitors. In his responses, Dr Davis restated many of his opinions and analyses outlined above, but the following additional observations may be noted:

(a) Dr Davis summarised Mr Temssah’s progression to his offending as follows:

… it would appear that Mr Temssah had a less than coherent and integrated sense of self and was searching for some further meaning in his life when he became radicalised. He embraced Islam with his wife and found some meaning in charitable works. However, he began to neglect his wife and family and was unsatisfied with the answers to religious questions that he received at mosque. With very little true understanding of his own religion, Mr Temssah found himself quickly enamoured with the simplistic black-and-white interpretations of Islam provided by extremists on-line. His narrative indicated that he became focused on a particular reward for martyrdom, whereby family members that found themselves in hellfire could be taken to paradise.

(b) As to the nature of any likely future behaviour by Mr Temssah in relation to serious Part 5.3 offences, Dr Davis considered that, in the unlikely event that Mr Temssah reoffended, his previous episode of offending meant that a repeat scenario was most likely. Should future offending occur, it would be in the context of Mr Temssah becoming entrenched in extremist Islamic beliefs and a desire to travel overseas to fight and assist Muslims.

(c) In relation to the mild or slight degree of impairment which Dr Davis identified in Mr Temssah’s personality functioning, he observed that it can be problematic to overstate the importance of mildly maladaptive personality features when explaining serious criminal behaviour. In particular, he noted that Mr Temssah’s impulsivity and risk taking had not been all encompassing. Further, although he noted that personality features ‘do not change very rapidly’, Dr Davis considered [redacted] was associated with some degree of personal maturation and having a more coherent sense of self as he had embraced a more mainstream and less ‘black and white’ approach to Islam. As Dr Davis stated:

The Court may not make an ESO which operates for any period beyond that which is reasonably necessary to prevent the unacceptable risk posed by an offender. The evidence of both experts supports a finding that that period is at least 12 months. Dr Ellis has identified a number of general considerations which might reasonably suggest that the period is two years. However, those considerations need to be weighed against the possibility that a lesser period may be sufficient as explained by Dr Ellis in his evidence referred to above. In my view, this is a probability, rather than a mere possibility, given the progress Mr Temssah has made to date pursuing a path of deradicalisation and the factors which provide a degree of confidence that that process will eventually be successful. On all the evidence, I consider that the likelihood is that an ESO with a duration of two years would be beyond that which is reasonably necessary to prevent the unacceptable risk posed by Mr Temssah. The Court accordingly ordered that the ESO imposing the conditions and exemptions set out in Annexure A operate for a period of 18 months, being the period which I consider is reasonably necessary for the order to operate to prevent the unacceptable risk Mr Temssah presents of committing a serious Part 5.3 offence.

ANNEXURE A

Condition Type	Conditions
A. Accommodation	Condition 1 – Residence
B. Supervision, treatment and intervention programs	Condition 2 – Case management Condition 3 – Psychological assessment and treatment Condition 4 – Disengagement
C. Information sharing	Condition 5 – Information sharing requirements
D. Associations	Condition 6 – Prohibited associations
E. Activities	Condition 7 – Employment and education Condition 8 – Prohibited activities Condition 9 – Financial transactions
F. Travel	Condition 10 – Prohibited areas and places Condition 11 – Travel
G. Accessing or possessing prohibited documents	Condition 12 – Producing, distributing, accessing or possessing prohibited documents
H. Communication, internet use and electronic devices	Condition 13 – Mail correspondence Condition 14 – Mobile phone Condition 15 – Fixed or landline telephone services and public telephones and other communication devices Condition 16 – Internet services Condition 17 – Email Condition 18 – Computers, tablets and other devices Condition 19 – Computer programs and platforms
I. Items	Condition 20 – Prohibited items
J. Name and identification	Condition 21 – Name and identification
K. Exemptions and approval	Condition 22 – Exemptions Condition 23 – Exemption granted by the AFP without a request from you Condition 24 – Approval from the AFP Superintendent

Accommodation

1. Condition 1 (residence)
1.1 You must reside each night at [redacted] (the specified premises) and must not begin to reside at any premises other than the specified premises without giving prior written notification to the AFP Superintendent (as defined in Interpretation below).

Supervision, Treatment and Intervention Programs

2. Condition 2 (case management)
2.1 You must report to the Branch Manager (as defined in Interpretation below) as reasonably directed by the Branch Manager:

(a) in person at a specified location (including your residence);

(b) by telephone; or

(c) by audio visual link.

2.2 You must participate in the preparation and any assessment and review of your case plan by the Branch Manager.
3. Condition 3 (psychological assessment and treatment)
3.1 If directed by the Branch Manager, you must schedule an assessment with a psychologist registered with the Australian Health Practitioner Regulation Agency, to take place as soon as possible to determine whether you would benefit from psychological treatment.
3.2 You must:
(a)undergo an assessment scheduled in accordance with Condition 3.1 at the date, time and location that you have booked; and
(b)if assessed as suitable for psychological treatment in accordance with Condition 3.1 (or an equivalent assessment undertaken prior to the commencement of this order), you must undergo any recommended treatment, and attend all psychological appointments at the date, time and location that you have booked,

unless you:

(vi) notify the psychologist in advance if you are unable to attend an appointment and reschedule a replacement appointment at the earliest practicable alternative time, and

(vii) notify the Branch Manager of your non-attendance and provide a reasonable excuse.

Note: Reasonable excuse may include, but is not limited to, illness, carer obligations, conflicts with another scheduled appointment, employment commitments, or unforeseen transportation issues with no viable alternative means of travel.

3.3 Any assessment and treatment under Condition 3 is to be paid for by the Commonwealth.

4. Condition 4 (disengagement)
4.1 You must undergo an assessment to determine whether you are suitable for participation in a community based violent extremism disengagement and rehabilitation program, at no cost to you.
4.2 You must comply with any reasonable direction from the Branch Manager relating to, and for the purpose of, the completion of that assessment.

Information Sharing

5. Condition 5 (information sharing requirements)
5.1 You must provide any information in relation to your whereabouts, activities or associations, and any information relating to Conditions 1, 7, 9, 11, 14, 15, 18 and 21, that is reasonably requested (as defined in Interpretation below) by the AFP Superintendent.

5.2 You must provide any information in relation to your case management that is reasonably requested by the Branch Manager. This includes, but is not limited to, information relating to Conditions 2, 3 and 4. However, you are not required to provide information about the substance of treatment that you undergo under Condition 3.
5.3 You must agree:
(a)to any information being shared between any persons and agencies that are involved in your supervision including but not limited to the Attorney-General’s Department, the Australian Federal Police and Victoria Police, and any person who has assessed or treated you under Condition 4 (but not any person referred to in Condition 3).
(b)the following information being shared between persons involved in psychological assessment and/or treatment and any persons or agencies that are involved in your supervision including but not limited to the Attorney-General’s Department, the Australian Federal Police, Victoria Police and any person who has assessed or treated you in accordance with Condition 3:
(i)information regarding the dates and duration of sessions you have attended, and the general themes and topics of the sessions;
(ii)information regarding your level of engagement with treatment;
(iii)information regarding any deterioration in your mental state that may impede your ability to interact in supervision, participate in offence-specific treatment or comply with the conditions of this ESO; and
(iv)should the treating psychiatrist or psychologist have concerns for your safety or the safety of others, information in relation to those concerns.

5.4 You must not provide false or misleading information when providing the information referred to in Condition 5.1 and 5.2 to the AFP Superintendent or the Branch Manager.

Associations

6. Condition 6 (Prohibited Associations)
6.1 You must not knowingly communicate or associate, or cause another person to communicate or associate on your behalf, with any person who:
(a) to your knowledge is incarcerated in a correctional facility;
(b) to your knowledge is subject to:
(i)an interim or confirmed control order made under Division 104 of the Criminal Code (the Code) contained in the Schedule to the Criminal Code Act 1995 (Cth);
(ii)an interim or extended supervision order made under Division 105A of the Code;

(iii) a supervision order made under the law of a State or Territory; or
(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.
(f) Condition 6.1 (b)(iv) does not apply to Ibrahim Baradi.

Activities

7. Condition 7 (employment, sporting, volunteering and education)
7.1 You must, within 24 hours, give written notification to the AFP Superintendent of any of the following:
(a) commencing employment;
(b) participating in vocational training or education programs; or
(c)joining or affiliating with any group, club or organisation, including any sporting or fitness club, organisation or body, such as any gymnasium or fitness centre.

8. Condition 8 (prohibited activities)
8.1 You 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 internet-based social networking service;
(b)volunteering (except in association with your children’s school);

(c)     forming any corporation, partnership or incorporated association;
(d)     registering any business names; or
(e)     operating any business.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
8.2 You 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 12.3;
(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 $500, 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 $500, 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 9.1(a) or 9.1(b) 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.
9.2 You 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.
9.3 Condition 9.1(a) 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 9.1(b) 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 condition. 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.

10.2 Condition 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)
11.1 You 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.

11.2 You 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.
11.3 You must not leave Victoria without giving prior written notification to the AFP Superintendent.

Accessing or possessing prohibited documents

Condition 12 (producing, distributing, accessing or possessing prohibited documents)

12.1 You 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;

12.2 Which relate to or depict in any manner, including by animation or computer generation, the matters listed in Condition 12.3 (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.
12.3 The 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 12.3 (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.
12.4 Condition 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.

(j)contained in any material provided to you by CISP or Corrections Victoria, or in material approved by CISP or Corrections Victoria;
(k)contained in any material taught at an Australian primary or secondary school; or
(l)depicted in any PlayStation or computer game.

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.

13.2 Condition 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)

14.1 You 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.

14.2 Your 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).

15. Condition 15 (fixed or landline telephone services and public telephones and other communication devices)

15.1 You must not access or use any fixed or landline telephone service, including any public telephone, or facsimile service, other than a service that has been approved in writing by the AFP Superintendent, except in the case of an emergency or to notify the AFP Superintendent of a fault or damage to the permitted mobile phone.
Note: Refer to Condition 24 (Approval from the AFP Superintendent) for the process for seeking approval.
15.2 You 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.
15.3 You must not access or use any satellite telephone service or UHF/VHF radio.

16. Condition 16 (internet services)

16.1 You 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.
16.2 You must not cause or permit another person to access or use any internet service on your behalf (including the permitted internet service), unless the person using or accessing the internet service (including the permitted internet service) is the AFP Superintendent.
16.3 Conditions 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 12.4.

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)

17.1 You 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)

18.1 You must not access or use any computer, tablet or other device that is capable of accessing the internet other than the device that has been provided to you by the AFP Superintendent, or has otherwise been approved in writing 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.
18.2 You 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.
18.3 You 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.
18.4 Condition 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 12.4;
(e)a gaming device or application (subject to Condition 19.2(e)); or
(f)a computer, tablet or other device used at home and solely used for the purpose of assisting your children with their homework or school related activities, and subject to the device being connected to the internet service provided to you by the AFP Superintendent.

18.5 You must not tamper with, damage or destroy any component of the permitted computer, tablet or other device or any equipment necessary for the operation of permitted devices, or direct, cause or permit another person to do any of those things.
18.6 You must not alter, tamper with or change the appearance of the permitted computer, tablet or other device.

19. Condition 19 (computer programs and platforms)

19.1 You 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.
19.2 Other 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.

19.3 You 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.

19.4 Conditions 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;
(d)accessing or using telehealth services; or
(e)accessing, using and possessing a USB or hard drive provided by your legal representatives containing material in relation to proceeding S ECI 2024 00807 as well as notes made by you in relation to those materials, where prior written notification of the serial number of the USB or hard drive has been provided to the Branch Manager.

Items

20. Condition 20 (prohibited items)

20.1 You 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.

20.2 You must not obtain, or apply to obtain, any licence to possess or use a weapon.
20.3 You must not use, store or permit the storage of any firearms or ammunition at your place of residence.
20.4 You 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)

21.1 You 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.
21.2 You must not use any electronic account registered in a name other than your own.
21.3 If you change the details of any current form of identification or obtain further forms of identification, you must notify the AFP Superintendent.
21.4 You 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)

22.1 You may request an exemption from the AFP Superintendent from any of Conditions 6.1, 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.
22.2 The AFP Superintendent may grant or refuse an exemption, subject to any reasonable directions specified in writing.
22.3 You 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.
22.4 You 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)

23.1 The 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.
23.2 The 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.
23.3 You 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)

24.1 You may obtain approval from the AFP Superintendent for the purposes of Conditions 8.1, 11.2, 15.1, 17.1, 18.1, 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.
24.2 The AFP Superintendent may grant approval subject to conditions specified in writing.
24.3 The 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:

Account credentials 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.
Close family member means a close family member within the meaning of s 102.1(1) of the Code (as in force from time to time).
Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a 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.
Reasonable direction (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
Tablet device includes but is not limited to an iPad or a Samsung Galaxy Tab.
Terrorist organisation 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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19 June 2024