Booth v Naizmand
[2020] FCA 244
•27 February 2020
FEDERAL COURT OF AUSTRALIA
Booth v Naizmand [2020] FCA 244
File number:
NSD 169 of 2020
Judge:
BROMWICH J
Date of judgment:
27 February 2020
Catchwords:
CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code (Cth) – orders mostly consented to – independent assessment of whether state of satisfaction reached on the balance of probabilities, including whether controls are reasonably necessary, appropriate and adapted for the statutory purpose – application granted
Legislation:
Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth), ss 104.1, 104.3, 104.3(f), 104.4(1), 104.4(1)(a), 104.4(1)(c)(iv)
Cases cited:
McCartney v EB [2019] FCA 183; 263 FCR 170
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Date of hearing:
27 February 2020
Registry:
New South Wales
Division:
General Division
National Practice Area:
Federal Crime and Related Proceedings
Category:
Catchwords
Number of paragraphs:
14
Counsel for the Applicant:
Mr A Berger
Solicitor for the Applicant:
Australian Government Solicitor
Solicitor for the Respondent:
Mr M Chahine
ORDERS
NSD 169 of 2020
BETWEEN:
MS SANDRA BOOTH
Applicant
AND:
MR AHMAD SAIYER NAIZMAND
Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
27 FEBRUARY 2020
THE COURT ORDERS THAT:
Interim control order
1. An interim control order be made pursuant to s 104.4 of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), in the terms set out in the Schedule to these orders.
Case management of confirmation hearing
2. The confirmation hearing referred to at paragraph 8 of the Schedule to these orders be listed for a case management hearing at 9.00 am on 20 March 2020, or such other date as the Court may fix.
Non-publication order
3. There is to be no publication of the form of these orders that might identify the person listed in Control 11.1(c)(xiv) in the Schedule to these orders, including his name and date of birth.
4. Order 3 is made on the ground that it is necessary to prevent prejudice to the proper administration of justice, in accordance with s 37AG(1)(a) of the Federal Court of Australia Act 1976.
5. Order 3 operates until 27 February 2021, unless the Court otherwise orders prior to then.
6. Order 3 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:
(a) the presiding judge and necessary staff of this Court;
(b) officers and employees of agencies that are members of the Joint Counter Terrorism Team, and legal representatives of those agencies;
(c) Mr Naizmand and his legal representatives;
(d) Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).
7. The parties have liberty to apply on 3 days’ notice.
SCHEDULE
1. This Interim Control Order relates to Mr Naizmand, Ahmad Saiyer Naizmand (Mr Naizmand).
2. The Court is satisfied on the balance of probabilities that Mr Naizmand has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code).
3. The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on Mr Naizmand by this Interim Control Order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
a. protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code);
b. preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and
c. preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code).
4. The obligations, prohibitions and restrictions imposed on Mr Naizmand by this Interim Control Order are those set out in Annexure A to this Schedule.
5. This Interim Control Order does not begin to be in force until it is served personally on Mr Naizmand and Mr Naizmand is released from custody.
6. If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made.
7. Mr Naizmand may attend the Federal Court of Australia, which is located at Level 17, Law Courts Building, 184 Phillip Street, Queens Square, Sydney NSW
on 20 April 2020 at 10:15am for the Court to:a. confirm (with or without variation) this Interim Control Order;
b. declare this Interim Control Order to be void; or
c. revoke this Interim Control Order.
8. Mr Naizmand’s lawyer may attend the Australian Federal Police Sydney office at 110 Goulburn Street, Sydney, NSW between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order.
ANNEXURE A – TERMS OF THE INTERIM CONTROL ORDER MADE AGAINST AHMAD SAIYER NAIZMAND
Control 1
1.1. You are required to remain at premises:
a. nominated by you within 6 hours from the time that this Interim Control Order comes into force; and
b. approved in writing by the AFP Superintendent
(the specified premises),
between [redacted] (the curfew period) [redacted] from the day on which this Interim Control Order comes into force until the day that it ceases to be in force.
1.2. You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.
Control 2
2.1. You are required to report to a police officer [redacted] (the reporting period), at [redacted].
Control 3
3.1. You are prohibited from being at any of the following areas:
a. within the exclusion zone at Sydney Airport, as identified by yellow shading in Annexure 1;
b. within the exclusion zone at Circular Quay, as identified by yellow shading in Annexure 2;
c. within the exclusion zone at White Bay, as identified in Annexure 3;
d. within 1 km of any Australian airport (besides Sydney Airport, which is addressed in Control 3.1.a) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
e. within 1 km of any Australian port (besides Circular Quay and White Bay, which are addressed in Controls 3.1.a and 3.1.c) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
f. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
g. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or associating; and
h. any place in Australia outside the state of New South Wales.
Control 4
4.1. You are prohibited from leaving Australia.
Control 5
5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, which relate to any of the following:
a. explosives, explosive devices, initiation systems or firing devices;
b. firearms, ammunition or knives;
c. anti-surveillance or counter surveillance,
unless that material is:
d. published by a ‘constituent body’ of the Australian Press Council;
e. broadcast on Australian free to air television;
f. broadcast on Australian pay television;
g. shown in a commercial movie cinema;
h. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand; or
i. contained in material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 6
6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, depicting or describing any:
a. execution;
b. beheading;
c. suicide attack;
d. bombing;
e. terrorist attack;
f. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth); or
g. activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of Criminal Code 1995 (Cth),
h. anti-surveillance or counter-surveillance techniques;
unless that material is:
i. published by a ‘constituent body’ of the Australian Press Council;
j. broadcast on Australian free to air television;
k. broadcast on Australian pay television;
l. shown in a commercial movie cinema;
m. broadcast on one of the following streaming services: Netflix, STAN, ABC iView, SBS on demand; or
n. contained in material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 7
7.1. You are prohibited from the following specified activities (including in respect of your work or occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to:
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. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth);
j. activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth);
k. material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 8
8.1. You are prohibited from renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonnes, unless
a. you are required to drive said vehicle for the purpose of undertaking paid employment; and
b. you first notify the AFP Superintendent, by telephone or in writing, that you are required to drive such a vehicle for the purposes of that employment.
8.2. In notifying the AFP Superintendent, you must provide information about the requirement that you drive a vehicle exceeding a gross vehicle mass of 4.5 tonnes, including a description of the vehicle (if known) and the nature of the work you are required to do with the vehicle.
Control 9
9.1. You are prohibited from undertaking paid employment without first notifying the AFP Superintendent (by telephone or in writing) and providing information about the proposed employment, including details of the employer (including their name and place of business) and the nature of the work that will be undertaken.
Control 10
10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
a. firearms, firearm part of or ammunition within the meaning of s. 4 of the Firearms Act 1996 (NSW);
b. a ‘prohibited weapon’ within the meaning of the Weapons Prohibition Act 1998 (NSW) legislation;
c. any quantity of any chemical which is not consistent with reasonable domestic use;
d. an article or device, not being a firearm, capable of discharging by any means:
i. any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or
ii. any substance capable of causing bodily harm;
e. a detonator;
f. a fuse capable of use with an explosive or a detonator;
g. a knife, in a public place, without reasonable excuse;
h. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
Control 11
11.1. You are prohibited from communicating or associating with:
a. any person incarcerated in any correctional facility; and
b. any person you know, or reasonably believe, to be located in Turkey, Iraq or Syria;
c. any of the following specified individuals:
i. Milad Al-Ahmadzai (DOB: 3 April 1990)
ii. Jibryl Almaouie (DOB: 9 October 1993)
iii. Mohamed Rashad Almaouie (DOB: 30 October 1995)
iv. Hozan Alou (DOB: 3 October 1999)
v. Kawa Alou (DOB: 19 March 1993)
vi. Raban Alou (DOB: 3 August 1997)
vii. Hamdi Alqudsi (DOB: 21 August 1974)
viii. Ali Al-Talebi (DOB: 9 September 1989)
ix. Masood Atai (DOB: 3 February 1991)
x. Milad Atai (DOB: 3 January 1996)
xi. Mohammed Atai (DOB: 21 February 1992)
xii. Omarjan Azari (DOB: 7 May 1992)
xiii. Samimjan Azari (DOB: 2 October 1998)
xiv. [redacted]
xv. Mehmet Biber (DOB: 15 August 1992)
xvi. Mustafa Dirani (DOB: 5 August 1993)
xvii. Jacob Elzamatr (DOB: 25 November 2002)
xviii. Wassim Fayad (DOB: 15 November 1967)
xix. Ibrahim Ghazzawy (DOB: 13 October 1995)
xx. [deleted]
xxi. Tamim Khaja (DOB: 8 September 1997)
xxii. Sulayman Khalid (DOB: 11 November 2014)
xxiii. Shahin Norozian (DOB: 16 September 1987)
xxiv. Maywand Osman (DOB: 10 December 1993)
xxv. Ahmad Rahmany (DOB: 13 March 1990)
xxvi. Jalal Suleman (DOB: 24 October 1996)
xxvii. Abdul-Rahman Tayba (DOB: 21 May 1996)
Control 12
12.1. You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions:
a. before using the permitted mobile phone, you must present it to the AFP Superintendent (or a police officer specified in writing by the AFP Superintendent) for inspection;
b. before using the permitted mobile phone, you must advise the AFP Superintendent, in writing, of the following information:
i. the International Mobile Equipment Identity number for the permitted mobile phone;
ii. the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone;
iii. the telecommunication service provider which you will use with the permitted mobile phone; and
iv. the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected.
c. once you have advised the AFP Superintendent of the information required by paragraph 12.1.b above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone; and
d. if you change the password for the permitted mobile phone, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
12.2. If the permitted mobile phone is one that the AFP has provided to you, controls 12.1(a) and (b)(i)-(iii) do not apply.
12.3. You are prohibited from causing or permitting another person to use or access the permitted mobile phone, unless it is being used in an emergency, provided you contact the AFP Superintendent as soon as possible after accessing or using the permitted mobile phone during the emergency and provide:
a. the name of the person who used the permitted mobile phone;
b. the date, time and phone number called by that person; and
c. an explanation of the nature of the emergency which required you to cause or permit another person to use or access the permitted mobile phone.
12.4. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.
Control 13
13.1. You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the AFP Superintendent for you to access or use.
13.2. To seek approval, you must:
a. submit a written request to the AFP Superintendent which nominates the fixed or landline telephone service; and
b. provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone service.
13.3. You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf.
Control 14
14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any public telephone except in the case of an emergency, provided that you contact the AFP Superintendent as soon as possible after accessing or using such a public telephone and:
a. provide sufficient detail to the AFP Superintendent to identify the public telephone that you accessed or used, the date, time and phone number called; and
b. you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.
Control 15
15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.
Control 16
16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be:
a. Facebook
b. Facebook Messenger
c. FaceTime
d. Google Duo
e. Google Hangouts.
f. Google Talk
g. Instagram
h. KIK
Signal Private Messenger
j. Skype
k. Snapchat
l. Telegram
m. Twitter
n. Viber
o. WhatsApp
p. Youtube
16.2. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service.
16.3. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service.
16.4. However, Controls 16.2 and 16.3 do not prohibit access to or the use of:
a. 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.
Control 17
17.1. You are prohibited from accessing or using any internet service other than a service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted internet service).
17.2. To seek approval:
a. you must submit a written request to the AFP Superintendent which:
i. nominates the internet service provider account; and
ii. nominates the devices you will connect to the internet service (including but not limited to computers and televisions);
b. provide any other information requested by, or on behalf of, the AFP Superintendent, in relation to, or for the purpose of identifying, the nominated account and devices.
17.3. You are prohibited from causing any other person to access or use on your behalf any other internet service.
Control 18
18.1. You are prohibited from accessing or using any electronic mail (email) account other than an account that has been approved in writing by the AFP Superintendent for you to access or use (the permitted email account).
18.2. To seek approval:
a. you must submit a written request to the AFP Superintendent which nominates the email account; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using.
18.3. You are prohibited from causing or permitting another person to use or access the permitted email account.
18.4. You are prohibited from causing any other person to access or use on your behalf any email account.
Control 19
19.1. You are prohibited from accessing or using any computer other than a computer that has been approved in writing by the AFP Superintendent for you to access or use (the permitted computer) and your use of the permitted computer is subject to the following conditions:
a. before using the permitted computer, you must provide the password for the permitted computer to the AFP Superintendent; and
b. if you change the password for the permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
19.2. To request approval under Control 19.1 you must:
a. submit a written request to the AFP Superintendent which nominates the computer; and
b. provide any information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of identifying and accessing, the nominated computer.
Control 20
20.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab.
20.2. However, Control 20 does not prohibit you from accessing or using a computer with tablet device functionalities that is approved for use as the ‘permitted computer’ pursuant to Control 19.
Exemption
21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 1.1, Control 2.1, Control 3.1.h and Control 11.1.b.
21.2. To request an exemption, you must:
a. submit a written request to the AFP Superintendent which:
(i) identifies the Control in respect of which you seek an exemption;
(ii) explains the extent to which you seek to be exempted from the Control; and
(iii) explains your reason(s) for seeking the exemption; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.
21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing.
21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
21.5. A request for an exemption must be made before the material time and date.
21.6. If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
Interpretation
22.1. In this Interim Control Order:
a. Material time and date means:
i. in relation to a request for an exemption to the requirement in Control 1.1 the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods);
ii. in relation to a request for an exemption to the requirement in Control 2.1 before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);
iii. in relation to a request for an exemption to the requirement in Control 3.1.h the time and date at which you wish to depart New South Wales; and
iv. in relation to a request for an exemption to the requirement in Control 11.1.b the time and date at which you wish to communicate with a person located in Turkey, Iraq or Syria.
b. AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism portfolio.
c. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
d. Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ within the meaning of the Police Act 1990 (NSW).
ANNEXURE B – SUMMARY OF GROUNDS ON WHICH THE INTERIM CONTROL ORDER IS MADE
Islamic State (IS) had:
1.1. since its inception, directly and indirectly engaged in preparing, planning, assisting or fostering the doing of various terrorist attacks, globally; and
1.2. as one of its main goals, to engage in terrorist attacks (violent jihad) throughout the world, including killing Westerners; and
1.3. by its leaders and propaganda materials, exhorted its followers to take action to achieve those goals.
On 1 July 2013 Mr Naizmand’s passport was cancelled after the Director-General of Security issued an adverse security assessment having been satisfied Mr Naizmand adhered to an extreme and violent Islamist ideology, was likely to travel to engage in militant jihad and would, if permitted to travel overseas, likely engage in conduct that might prejudice the security of Australia or a foreign country.
Notwithstanding his passport cancellation, Mr Naizmand departed Australia on 6 August 2014. He used his brother’s passport to travel from Australia to Kuala Lumpur, then to Dubai where he was apprehended by authorities for passport irregularities and returned to Australia. He was subsequently convicted and sentenced for using an Australian document that was not issued to him contrary to s 32(2) of the Australian Passports Act 2005 and placed on a 12 months good behaviour bond.
The:
4.1. criminality of the travel itself;
4.2. content of material accessed by Mr Naizmand immediately prior to his departure;
4.3. fact that he took steps to conceal the travel from his family; and
4.4. the nature of intercepted phone calls that took place between known IS extremists shortly after his departure
strongly suggests his purpose in leaving Australia on 6 August 2014 was to attempt to enter either Syria or Iraq to participate in the conflict with those countries in support of IS.
On 8 August 2016, Mr Naizmand was found guilty and subsequently convicted of 5 offences of contravening a control order contrary to s 104.27 of the Criminal Code (Cth) (the CO contravention offences). The offences involved Mr Naizmand either:
5.1. accessing electronic media depicting or describing propaganda or promotional material for a terrorist organisation or any activities of or associated with Islamic state; or
5.2. accessing electronic media depicting or describing explosives, suicide attacks, bombings or terrorist attacks
on 5 separate occasions in January and February 2016.
The offences for which Mr Naizmand was convicted related to terrorism.
Mr Naizmand was sentenced to 4 years imprisonment, with a minimum non-parole period of 3 years expiring on 28 February 2019. On 15 February 2019 and 7 August 2019 Mr Naizmand was refused release on parole. He is due to be released from custody on 28 February 2020
Prior to his incarceration for the CO Contravention Offences Mr Naizmand:
8.1. frequently accessed IS and other extremist and material supportive of violent jihad on the internet, including when subject to a control order prohibiting him from doing so;
8.2. was a member of close-knit group of individuals, known as the Appleby Group, who supported the ideology and activities of IS, and were involved in the commission of terrorism offences; and
8.3. associated or communicated with others who, although not members of the Appleby Group, adhered to the same ideology.
During his incarceration, Mr Naizmand has:
9.1. maintained frequent contact with associates, including family members, who hold extremist views, have been convicted of terrorism offences or have links to other extremists;
9.2. asserted that Sharia law should be the law of Australia, and considers Islam superior to other ways of life; and
9.3. shown an inconsistent approach to engaging with the PRISM program offered by NSW Department of Corrective Services which designed to redirect offenders away from extremism and help them transition out of custody. After expressly indicating an unwillingness to engage, Mr Naizmand was discharged from the service on 21 August 2019, having not completed the program.
In view of Mr Naizmand’s impending release from custody, there is a real risk that in the absence of appropriate controls he will take steps to:
10.1. support the ideology of IS, which may possibly include terrorist attacks being carried out by its members;
10.2. access and view IS propaganda, promotional material and other material supportive of violent jihad more broadly;
10.3. engage with members of the Appleby Group, either directly or through their families and associates, and engage with others who hold the same extremist ideology.
The obligations, prohibitions and restrictions set out in the proposed interim control orders will ensure Mr Naizmand:
11.1. is provided with an opportunity to engage positively with the community (through employment, religious observation, counselling and education)
11.2. is capable of being monitored by police during his reengagement with the community and
11.3. is prohibited from engaging in those behaviours, and being exposed to associates and influences, which may lead him to commit, provide support for or facilitate a terrorist act or support or facilitate the engagement in a hostile activity in a foreign country
and thereby reduce the risks outlined above.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.REASONS FOR JUDGMENT
(Revised from transcript)
BROMWICH J:
This is an application by Commander Sandra Booth of the Australian Federal Police (AFP), for an interim control order over the respondent, Mr Ahmad Saiyer Naizmand, pursuant to s 104.4(1) of the Criminal Code (Cth). Mr Naizmand is to be released from prison tomorrow, 28 February 2020, upon the completion of his full 4-year sentence for five offences under s 104.27 of the Criminal Code for contravening prior control orders made in 2015 by a judge of the Federal Circuit Court of Australia. He pleaded guilty to and was sentenced on those offences by a judge of the District Court of New South Wales. He was granted leave to appeal from that sentence by the New South Wales Court of Criminal Appeal, but the appeal was dismissed.
Chapter 5 of the Criminal Code deals with the security of the Commonwealth. Part 5.3 within Chapter 5 deals with terrorism. Division 104 of Pt 5.3 deals with control orders. Section 104.1 succinctly states the objects of Div 104:
104.1 Objects of this Division
The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes:
(a) protecting the public from a terrorist act;
(b) preventing the provision of support for or the facilitation of a terrorist act;
(c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
There is a two stage process of a senior officer of the AFP first seeking and obtaining an interim control order (with the consent of the “AFP Minister”, currently the Minister for Home Affairs); and secondly electing to have that order confirmed for up to 12 months.
Mr Naizmand does not oppose a control order being made, taking issue only with a small number of the controls sought to be imposed. All but one of those issues have been resolved by agreement. I have decided to resolve the one objection he maintained, and which Commander Booth pressed so as to require adjudication, in his favour. That issue may be simply be stated. Commander Booth sought to prevent Mr Naizmand from having contact with a friend he made in prison. I was not satisfied that this restriction was reasonably necessary, appropriate and adapted for the statutory purposes to which it was directed: see s 104.4(1)(d), considered in more detail below. Given Mr Naizmand’s consent to the substance of the terms of the rest of the draft interim control order as finally proposed, all that remained was for me to be independently satisfied that the requirements for making that order, otherwise agreed to, had been met.
There are four preconditions for the making of an interim control order pursuant to s 104.4(1) of the Criminal Code as set out in paragraphs (a) to (d).
The first precondition in s 104.4(1)(a) is that a “senior AFP member”, as defined in s 100.1, has requested an interim control order in accordance with s 104.3. Commander Booth is such an officer, being an AFP officer above the rank of Superintendent, and has requested an interim control order in accordance with s 104.3 by way of an originating application and supporting affidavit sworn by her. There was a small number of redactions to that affidavit. That affidavit, in redacted form, was read with annexures and an exhibit without objection or cross-examination. I only needed to see a small portion of the redacted material, which went to the protection of the identity of a person who was an associate of Mr Naizmand, and who was a minor when sentenced on certain offences. Commander Booth’s affidavit otherwise established that each of the requirements in s 104.3 had been satisfied. They relevantly include the provision of an explanation as to why each of the proposed obligations, prohibitions or restrictions should be imposed, and the provision of a copy of the “AFP Minister’s consent” under s 104.2 as required by s 104.3(f).
The second precondition in s 104.4(1)(b) is that this Court has received and considered such further information (if any) as it requires. No such information has been required, such that this precondition is not operative.
The third precondition in s 104.4(1)(c) is that the Court be satisfied, on the balance of probabilities, that any one or more of the conditions in subparagraphs (i) to (vii) has been established, each of which pertain to terrorism issues. Commander Booth relied upon s 104.4(1)(c)(iv), and in the alternative s 104.4(1)(c)(i) and (vi). It is only necessary to consider part of (iv), namely that Mr Naizmand has been convicted in Australia of an offence relating to terrorism. There is no doubt as to his convictions. I am comfortably satisfied that the offences under s 104.27 of contravening a control order are offences relating to terrorism, because, as Commander Booth submits:
(1) s 3(1)(b) of the Crimes Act 1914 (Cth) defines “terrorism offence” to mean “an offence against Part 5.3 or 5.5 of the Criminal Code”;
(2) an offence against s 104.27 of the Criminal Code, which falls within Part 5.3, therefore is, and at all relevant times was, a “terrorism offence” within the meaning of s 3(1) of the Crimes Act;
(3) the control order that was made in 2015 and breached by Mr Naizmand in January and February 2016 had been made on the basis that it would substantially assist in preventing a terrorist act and that the controls were reasonably necessary and reasonably appropriate and adapted to protect the public from a terrorist act;
(4) the conduct by which Mr Naizmand breached that control order involved him accessing material relating to terrorist organisations and which advocated terrorist attacks.
I am fortified in that conclusion by the reasoning of Wigney J in McCartney v EB [2019] FCA 183; 263 FCR 170 at [24]-[39], especially at [33].
The fourth precondition in s 104.4(1)(d) is that:
the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a terrorist act; or
(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
Section 104.4(2) relevantly provides that for the purposes of s 104.4(1)(d), the court must take into account as a paramount consideration the objects of Div 104 reproduced at [2] above. Section 104.4(2) also relevantly provides as an additional (and thus subordinate) consideration, the impact of the control order obligations, prohibitions or restrictions on, here, Mr Naizmand’s circumstances, including financial and personal. Those circumstances are to be gleaned, to the extent possible, from Commander Booth’s affidavit, as Mr Naizmand did not adduce any evidence.
Section 104.4(1)(d)(i) was considered in Thomas v Mowbray [2007] HCA 33; 233 CLR 307. As is apparent from the reproduction of s 104.4(1)(d) above, subparagraph (i) is directed to the purpose of protecting the public from a terrorist act. However, the observations of the High Court apply equally to subparagraphs (ii) and (iii) directed to preventing the provision of support to, or facilitation of, a terrorist act, or engagement in hostile activities overseas. Gleeson CJ explained the exercise involved in s 104.4(1)(d) as one involving proportionality (at [19]):
The requirement that a Court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.
Also in Thomas v Mowbray, Gummow and Crennan JJ considered that the pre-condition in s 104.4(1)(d) involved a balancing exercise (at [99]):
Section 104.4(1) requires in para (d) that each of these 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)).
With the one exception resolved in Mr Naizmand’s favour, described above at [4], concerning not prohibiting contact with one friend, there was no dispute that the obligations, prohibitions and restrictions in the proposed interim control order were reasonably necessary, appropriate and adapted for the purposes set out in each of the subparagraphs of s 104.4(1)(d). In light of that effective consent, there is no need to address each specific control in detail in these reasons. It is sufficient to state that I have carefully considered the terms of each and every specific proposed control, Commander Booth’s detailed written submissions and her detailed explanation of each control and her opinion as to why they meet the statutory test. I accept that evidence and those arguments. I am satisfied that the precondition in s 104.4(1)(d) has been satisfied.
It follows that I am satisfied on the balance of probabilities that each of the three operative preconditions for the making of the interim control order have been satisfied and that it is appropriate to make the interim control order in substantially the terms proposed and agreed to, with the adjustment for the adjudication in Mr Naizmand’s favour. Orders will be made that are otherwise in substance the same as to those provided in draft to the Court and to Mr Naizmand.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.
Associate:
Dated: 27 February 2020
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