FEDERAL COURT OF AUSTRALIA
Booth v Abdirahman-Khalif [2021] FCA 1651
File number: SAD 50 of 2021 Judgment of: BESANKO J Date of judgment: 22 December 2021 Date of publication of reasons: 19 January 2022 Catchwords: CRIMINAL LAW — election pursuant to s 104.12A of Schedule to Criminal Code Act 1995 (Cth) (Code) to confirm interim control order (ICO) made against respondent under s 104.4 of Code — where respondent convicted in 2017 of offence of being member of terrorist organisation, namely Islamic State (IS) contrary to s 102.3 of Code — where particulars of offending included attempted travel to Turkey on one-way ticket in order to engage with IS, accessing and engaging with IS material and communicating with members of IS — where respondent has served custodial sentence — where Court made ICO prior to respondent’s release from custody — where in support of confirmation of ICO applicant submitted respondent has at no time made full and sensible admissions as to circumstances of offending and is vulnerable person susceptible to influence — where respondent submitted conviction now some time ago and respondent has taken a number of voluntary steps towards rehabilitation — consideration of whether controls in ICO and each of them reasonably necessary and reasonably appropriate and adapted for purpose of protecting public from terrorist act and for purpose of preventing provision of support for or facilitation of terrorist act — consideration of relevance of and weight to be given to ss 3ZZOA and 3ZZOB of Crimes Act 1914 (Cth) as alleged alternative means of monitoring and controlling risk — ICO confirmed without variation Legislation: Counter-Terrorism Legislation Amendment Act (No 1) 2016 (Cth)
Crimes Act 1914 (Cth) ss 3ZZOA, 3ZZOB
Criminal Code Act 1995 (Cth) Sch, ss 100.1, 102.1, 102.3, 104.1, 104.4, 104.12, 104.12A, 104.14, 104.16
Evidence Act 1995 (Cth) ss 55, 140
Cases cited: Booth v Khazaal [2020] FCA 1241
McCartney v Abdirahman-Khalif [2019] FCA 2218
McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002
McCartney v EB [2019] FCA 183; (2019) 263 FCR 170
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 388 ALR 1
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Division: General Division Registry: South Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 81 Dates of hearing: 6,7 December 2021 Counsel for the Applicant: Mr J Emmett SC with Mr T Glover Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D Agresta with Ms V Rajaramanan Solicitor for the Respondent: Iles Selley Lawyers ORDERS
SAD 50 of 2021 BETWEEN: SANDRA BOOTH
Applicant
AND: ZAINAB ABDIRAHMAN-KHALIF
Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
Control Order
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- Booth v Abdirahman-Khalif [2021] FCA 1651
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- [2021] FCA 1651
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CaseChat Overview and Summary
The case of Booth v Abdirahman-Khalif involves Commander Sandra Booth, an Australian police officer, who applied for an Intervention Order under the Criminal Code (Cth). The application was made in relation to Abdirahman-Khalif, who had been convicted of terrorism-related offences. The primary dispute in this case concerns the confirmation of an Intervention Order (ICO) that was issued against Abdirahman-Khalif, restricting her activities and communications to prevent any potential terrorist activities. The Federal Circuit and Family Court of Australia was tasked with deciding whether to confirm the ICO in its entirety, given the evidence presented by both parties.
The key legal issues before the court were whether Abdirahman-Khalif posed a significant risk of engaging in or facilitating terrorist activities and whether the restrictions imposed by the ICO were justified and proportionate. The court needed to assess the evidence presented, including expert psychological assessments, statements from various witnesses, and the nature of Abdirahman-Khalif’s association with individuals involved in criminal activities. Furthermore, the court had to consider the degree of intrusiveness of the controls imposed by the ICO, particularly those related to communication devices, and whether these were necessary to protect the public from potential terrorist acts.
In its decision, the court accepted the evidence presented by Commander Booth, which indicated that Abdirahman-Khalif remained susceptible to adverse and destructive influences, despite her ceasing correspondence with individuals with criminal backgrounds. The court noted that Abdirahman-Khalif had not fully acknowledged her role in her previous offending and was vulnerable to being influenced by others. The court concluded that the restrictions imposed by the ICO were reasonably necessary and appropriate to protect the public from potential terrorist activities and to prevent Abdirahman-Khalif from supporting or facilitating such activities. The court found that all the controls within the ICO were justified, including those related to communication devices, which were deemed necessary for monitoring Abdirahman-Khalif’s activities and communications.
The final orders confirmed the ICO in its entirety, upholding the restrictions on Abdirahman-Khalif's activities and communications as reasonably necessary to protect the public from the risk of terrorist activities. The court determined that the measures were proportionate to the risk posed and were essential to prevent any potential support or facilitation of terrorism.
The key legal issues before the court were whether Abdirahman-Khalif posed a significant risk of engaging in or facilitating terrorist activities and whether the restrictions imposed by the ICO were justified and proportionate. The court needed to assess the evidence presented, including expert psychological assessments, statements from various witnesses, and the nature of Abdirahman-Khalif’s association with individuals involved in criminal activities. Furthermore, the court had to consider the degree of intrusiveness of the controls imposed by the ICO, particularly those related to communication devices, and whether these were necessary to protect the public from potential terrorist acts.
In its decision, the court accepted the evidence presented by Commander Booth, which indicated that Abdirahman-Khalif remained susceptible to adverse and destructive influences, despite her ceasing correspondence with individuals with criminal backgrounds. The court noted that Abdirahman-Khalif had not fully acknowledged her role in her previous offending and was vulnerable to being influenced by others. The court concluded that the restrictions imposed by the ICO were reasonably necessary and appropriate to protect the public from potential terrorist activities and to prevent Abdirahman-Khalif from supporting or facilitating such activities. The court found that all the controls within the ICO were justified, including those related to communication devices, which were deemed necessary for monitoring Abdirahman-Khalif’s activities and communications.
The final orders confirmed the ICO in its entirety, upholding the restrictions on Abdirahman-Khalif's activities and communications as reasonably necessary to protect the public from the risk of terrorist activities. The court determined that the measures were proportionate to the risk posed and were essential to prevent any potential support or facilitation of terrorism.
Orders
Orders of the court
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Background
Background to the litigation
With respect to the balance of the relevance objections upon which I reserved my ruling, I rule as follows:(1)Affidavit of Commander Booth sworn on 9 April 2021:(a)Paragraphs 36.1 to 36.9 inclusive, 41 to 43 inclusive, 48 to 51 inclusive, 54 (2nd and 3rd sentences), 55, 56 and 58 received because they are relevant to Commander Booth’s knowledge and experience and albeit sometimes marginal, to her overall expertise;(b)Paragraphs 45 to 47 inclusive, 60 to 62 inclusive, 64, 81 and 83 received because they are relevant to the background of the applicant’s case; and(c)Paragraph 103 received as part of the ruling relating to the association between the respondent and the Clavells.(2)Affidavit of Commander Booth sworn on 23 September 2021: Paragraphs 13, 17, 19, 28 and 33 received following the rulings in relation to Commander Booth’s first affidavit.General Background In McCartney v Abdirahman-Khalif (No 2), Charlesworth J provided the following summary of Islamic State:33Between 29 June 2014 and 26 October 2019, Abu Bakr Al-Baghdadi (Al-Baghdadi) was the self-proclaimed “leader” of a group which calls itself Islamic State.34Persons purporting to represent and speak for Islamic State follow an extreme interpretation of Islam which is anti-Western and promotes sectarian violence. They sought to establish a presence in the traditional Islamic lands of Iraq and Syria and encouraged Muslims to travel to territory now formerly held by Islamic State to defend it and to develop and populate an Islamic society. Persons purporting to speak on behalf of Islamic State have exhorted their followers to carry out violent attacks against persons they perceive to be its enemies. In September 2014, Abu Muhammad al-Adani, purporting to speak on behalf of Islamic State, publicly stated:So O muwahhid, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the tawaghft (tyrannical, oppressive rulers). Strike their police, security, and intelligence members, as well as their treacherous agents … If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way however it may be.Do not ask for anyone’s advice and do not seek anyone’s verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers … If you are not able to find an JED or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him. 35In recent years a number of attacks have been carried out where persons purporting to speak for Islamic State have publicly claimed responsibility.36Islamic groups (including, but not limited to, persons purporting to speak for and/or represent Islamic State) have used a musical form of Arabic poetry, essentially chants, known as nasheeds.37The al-Hayat Media Centre publishes and disseminates propaganda on behalf of Islamic State, including material which praises terrorist attacks, including in Australia, and seeks to recruit people to join Islamic State.
Evidence
Evidence Before The Court
On 22 December 2021, I made an order confirming the ICO under s 104.14(7)(c) of the Code, which is in force up to and including 4 May 2022 (s 104.16(1)(d) of the Code). I said that I would deliver reasons for the decision and these are the reasons.The Evidence on the Application to Confirm the ICO The applicant relied on the evidence of nine witnesses, a Statement of Agreed Facts and Annexures (SOAF) and a Proposed Tender Bundle of documents. Each of the nine witnesses had sworn an affidavit or affidavits and those affidavits were tendered without the respondent requiring the deponent for cross-examination at the confirmation hearing. The respondent objected to various pieces of evidence in the affidavits and I ruled on some of those objections and reserved my ruling on other objections, which were primarily relevance objections. The respondent also relied on the SOAF, but otherwise did not adduce any evidence. The principal witness for the applicant was the applicant herself, Commander Sandra Booth. Her substantive rank is Commander, Counter Terrorism Enduring Risk Investigations. She swore two affidavits, the first of which was a substantial affidavit which she also relied on to obtain the ICO. Ms Megan Grech is a senior psychologist who is employed by the Government of South Australia, Department for Correctional Services (Correctional Services) within the Sentence Management Unit. Ms Grech interviewed the respondent twice in February 2021 and prepared and produced to the Court a Personality Assessment Summary dated 12 March 2021 relating to the respondent. Dr Henry Howard Pharo is employed by Correctional Services in the position of the Director, Offender Rehabilitation Services. Dr Pharo has qualifications in psychology. He supervised Ms Kimberley Chapple who was a senior clinician within the Rehabilitation Programs Branch. Ms Chapple provided psychological treatment to the respondent between approximately February 2019 and July 2019 while the respondent was held in custody in the Adelaide Women’s Prison. Dr Pharo produced a Rehabilitation Summary Report prepared by Ms Chapple with respect to the respondent dated 5 August 2019. Ms Emma Louise Roesch is employed by Correctional Services in the position of Manager, Assessment and Sentence Planning, Sentence Management Unit. She interviewed the respondent on the following dates: 30 April 2019, 14 June 2019 and 4 December 2020, and prepared and produced to the Court two Individual Development Plans and details of a VERA-2R (Violent Extremist Risk Assessment – 2 Revised tool) with respect to the respondent. Ms Lauren Frances Sommer is employed by Correctional Services in the position of Manager, Offender Development at the Adelaide Women’s Prison and Adelaide Pre-Release Centre. She has a qualification in social work. On 5 June 2019, she interviewed the respondent by telephone and then prepared a parole report dated 9 July 2019 which she produced to the Court. On 20 October 2020, she interviewed the respondent and then prepared a second parole report dated 21 October 2020 which she produced to the Court.
Decision
Reasons for decision
It is necessary then, to consider the evidence of the respondent’s association with the Clavell family. Although it was the respondent who ceased the correspondence and she did so after becoming aware of the criminal history of the Clavell family, I accept the applicant’s submission that there remains a concern that the respondent through her conviction for a terrorism-related offence, has come to the attention of persons such as the Clavell family who may, and in this case did, seek to make contact with her. That is significant when considered alongside the findings I make as to the respondent’s personality profile and traits, namely that she is a vulnerable person susceptible to destructive influence. I note that Charlesworth J put the matter thus in McCartney v Abdirahman-Khalif (No 2) (at [147]):By replying affectionately to the correspondence, the respondent made it known that she was amenable to further communications. The latter correspondence and money orders from the Clavell family must be viewed in that light. It is not correct to say that they were unsolicited. I agree with that observation. It is unnecessary to decide precisely when the respondent became aware of the criminal history of the Clavell family.Conclusions I reached the view that confirmation of the ICO was justified in the circumstances. Even if the respondent is not herself likely to carry out a terrorist attack, there is a not an insubstantial risk that absent the controls, she will support or facilitate the commission of a terrorist act. The respondent has not fully acknowledged her role in her offending. Furthermore, she is a vulnerable person, susceptible to adverse and destructive influences. The continuation of the controls is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act and preventing the provision of support for, or the facilitation of, a terrorist act. I have considered whether this conclusion should be reached in relation to all of the controls in the ICO or whether it should only be reached with respect to the Controls 1 to 6 and 12 to 15. In other words, I have considered the respondent’s alternative submission that Controls 7 to 11 inclusive should not be made. These controls relate to communication devices and represent an intrusion in terms of the respondent’s privacy, in particular in relation to a mobile phone (Control 7.6) and a computer (Control 11.6). Nevertheless, these controls are important checks on the respondent’s behaviour and, weighing the matters I have identified in the balance, I considered that these controls fell within the terms of s 104.4(1)(d) of the Code. Based on the evidence given by Commander Booth in her second affidavit and the other evidence identified in these reasons, I considered that each of the controls fell within the terms of s 104.4(1)(d) of the Code.
Ratio Decidendi
Legal Principle Established
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