FEDERAL COURT OF AUSTRALIA
Booth v Granata [2020] FCA 768
File number: VID 299 of 2020 Judge: WHITE J Date of judgment: 29 May 2020 Catchwords: CRIMINAL LAW – application for the making of an Interim Control Order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether the obligations are reasonably necessary and reasonably appropriate and adapted – whether the Respondent should be subject to twice weekly reporting requirements – whether requirement to notify Australian Federal Police with respect to employment was unreasonably onerous – whether prohibiting association with certain individual was reasonable – consideration of the use of technology platforms and internet service – application granted. Legislation: Criminal Code Act 1995 (Cth) ss 11.2A, 100.1, 104.1, 104.3, 104.4, 104.5, 104.11A, 104.14, 119.4(1) Cases cited: Date of hearing: 29 May 2020 Registry: Victoria Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: Ms C Fitzgerald Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr C Terry Solicitor for the Respondent: Patrick W Dwyer Barristers & Solicitors ORDERS
VID 299 of 2020 BETWEEN: SANDRA BOOTH
Applicant
AND: ANTONINO ALFIO GRANATA
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
29 MAY 2020
THE COURT NOTES THAT the parties are to confer and to provide to my Chambers by 12 pm (SA Time) on Monday 1 June 2020 an agreed set of minutes giving effect to the Court’s judgment today and, in the event of disagreement about the order, to each provide their respective minutes on the matters in dispute, noting that the Court will resolve any remaining issue concerning the terms of the orders on the papers and will make orders in Chambers.
THE COURT ORDERS THAT:
1.The matter is adjourned to a Case Management Hearing at 11:30 (AEST) on Tuesday 16 June 2020 for consideration of the orders reasonably necessary and reasonably appropriate and adapted for the confirmation hearing.
2.There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
I am dealing with an application for an Interim Control Order (ICO) in respect of the respondent, Antonino Granata, under s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).
Between 22 October 2015 and 10 May 2016, Mr Granata, with five others, committed the offence of engaging in conduct in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to ss 11.2A and 119.4(1) of the Criminal Code. The prosecution case, in brief, was that Mr Granata and his co-offenders had, between 22 October 2015 and 10 May 2016, agreed with each other to engage, and had engaged, in conduct with a view…
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- Booth v Granata [2020] FCA 768
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- [2020] FCA 768
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CaseChat Overview and Summary
The court had to determine the reasonableness of these obligations, considering their necessity and appropriateness for public protection from a terrorist act, balanced against their impact on Granata. The court referenced Gummow and Crennan JJ's statement that each proposed obligation, prohibition, and restriction must be assessed for reasonableness under section 104.4(1)(d). The court noted that Granata's acceptance of the ICO facilitated the court's task of determining the necessary conditions for such an order. The court found that the elements required under sections 104.4(1)(a), (b), and (c) were satisfied, primarily due to Granata's previous convictions related to terrorism and his ongoing association with individuals of concern.
The court concluded that the proposed obligations, including the twice weekly reporting requirement, the employment notification obligation, and the association restriction, were reasonably necessary and appropriately adapted to the purposes of the act. The court considered the extensive history of Granata's involvement in extremist activities, the potential risks he posed, and the need for measures that could effectively mitigate these risks. It found that the requirements, while burdensome, were justified given the circumstances.
The court granted the application, ordering that the ICO be made against Granata, subject to the proposed obligations. These included the requirement for Granata to report to the police twice weekly, to notify the Australian Federal Police of any changes in employment, and to refrain from associating with certain individuals. The court balanced these obligations against the need for public protection, finding them necessary and proportionate to the risks presented.
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Ratio Decidendi
Legal Principle Established
Gummow and Crennan JJ also said at [99]:… Section 104.4(1) requires in para (d) that each [proposed obligation, prohibition and restriction] be measured against what is “reasonably necessary” and also against what is “reasonably appropriate and adapted” for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)).Consideration – general Mr Granata does not oppose the making of an ICO in his case, but he does contend that not all of the particular controls sought by Ms Booth are reasonably necessary or reasonably appropriate and adapted for any of the s 104.4(1)(d) purposes. This means that particular attention will have to be given to the matters raised by Mr Granata. Although Mr Granata’s attitude to the making of the ICO does not relieve the Court from its statutory responsibility before making an ICO, it does facilitate the Court reaching the state of satisfaction on the balance of probabilities that the requirements for an ICO are established. Before turning to the matters raised by Mr Granata, I mention the first three elements in s 104.4(1) about which the Court must be satisfied. The matters specified in s 104.4(1)(a) are of a formal kind. I am satisfied that Ms Booth has the standing to make the application, that she has made the request in the appropriate form and that she has provided the Court with the information and documents required by s 104.3. In relation to s 104.4(1)(b), the Court has considered the further information provided by counsel for Ms Booth during the course of the submissions this morning. In seeking the ICO in relation to Mr Granata, Ms Booth relies upon s 104.4(1)(c)(iv) or, s 104.4(1)(c)(vii). The question of whether the offence of which Mr Granata was convicted is an offence relating to terrorism for the purposes of subs (1)(c)(iv), was considered by Anastassiou J in Booth v Murat Kaya [2020] FCA 25 and confirmed implicitly by his Honour in Booth v Thorne [2020] FCA 445. Mr Murat Kaya and Mr Thorne were each one of Mr Granata’s co‑accused. I respectfully agree with the reasons of Anastassiou J and am, therefore satisfied that the third matter about which the Court must be satisfied is established. That being so, it is not necessary to consider Ms Booth’s reliance in the alternative on s 104.4(1)(c)(vii), although it appears that that element is also established on the evidence. Given that Mr Granata accepts that an ICO is appropriate in his case, it is not necessary to dwell in detail on the matters which indicate that the making of an ICO is both reasonably necessary and reasonably appropriate and adapted to achieve the purposes specified in s 104.4(1)(d). I indicate, however, that those matters include Mr Granata’s offending conduct; the long period of time during which he engaged in that conduct, being from October 2015 to May 2016; the long period of time, dating back to 2013, during which he indicated significant interest in and apparent commitment to an extremist ideology; and his continued associations with some persons with respect to whom there are, on reasonable grounds, some security concerns.