Jabbour v Hicks - [2008] FMCA 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JABBOUR v HICKS

[2008] FMCA 178

ADMINISTRATIVE LAW – CONTROL ORDER – Criminal Code – application for confirmation of interim control order – preventing terrorist act – training from terrorist organisation – obligations, prohibitions and restrictions – reasonably appropriate and adapted – variation of interim control order – confirmation of interim control order made.

Criminal Code Act 1995, s.3
Criminal Code, ss.104.12, 104.13, 104.14, 104.15, 104.16

Applicant:

RAMZI JABBOUR

Respondent:

DAVID MATTHEW HICKS

File Number:

ADG 347 of 2007

Judgment of:

Donald FM

Hearing date:

18 February 2008

Date of Last Submission:

18 February 2008

Delivered at:

Adelaide

Delivered on:

19 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Berger

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Ms Detmold

Solicitors for the Respondent:

Mr McLeod

ORDERS

Pursuant to section 104.14 of the Criminal Code the interim control order made 21 December 2007 is confirmed in relation to DAVID MATTHEW HICKS in the terms at attachment 1.
That service of the confirmed control order be affected by a member of the Australian Federal Police by personally serving a copy of the sealed orders of the Court on the Respondent as soon as practicable.

Attachment 1

No. ADG 347 of 2007

Criminal Code (Cth), sub-section 104.14

CONTROL ORDER

Name of Controlled Person: David Mathew Hicks

Date of Birth: 7 August 1975

Under the powers conferred by sub‑section 104.14 of the Criminal Code (Cth) this confirmed control order has been made against you because:

a)The AFP member holding the rank of Superintendent or above, namely Manager Counter Terrorism Domestic, who requested the Interim Control Order made on 21 December 2007, elected to confirm the Order in accordance with sub‑section 104.14 of the Criminal Code; and
b)The Court has received and considered the information put before the Court; and
c)The Court is satisfied on the balance of probabilities that:
i)making the order would substantially assist in preventing a terrorist act; and
ii)you have received training from a listed terrorist organisation; and

d)The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on you by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

The obligations imposed on you under sub‑section 104.5(3) of the Criminal Code are set out in Schedule 1 to this Order – see attached.

You are required to meet the obligations set out in Schedule 1 of the control order.

By virtue of sub‑section 104.27 (read with sub‑section 100(1) of the Criminal Code) the penalty for contravening any of these obligations is imprisonment for 5 years.

The confirmed control order is to be in force until 21 December 2008.

Your lawyer may attend the Australian Federal Police Adelaide office, 8th floor, 55 Currie Street, Adelaide, in order to obtain a copy of this control order.

Date of this control order: 19 February 2008

………………………………………….

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jabbour v Hicks

Details

AGLC: Jabbour v Hicks [2008] FMCA 178
Case: [2008] FMCA 178
Decision Date: 19 February 2008

CaseChat Overview and Summary

In the case of Jabbour v Hicks, the primary concern was the confirmation of an interim control order issued under the Criminal Code against David Mathew Hicks. The Federal Magistrate, Donald Affix, was tasked with reviewing and confirming the interim control order, which had been initially made on 21 December 2007. The key issue before the court was whether the continued application of the control order was necessary and appropriate to prevent a terrorist act. This involved examining the balance of probabilities regarding Hicks' involvement with a listed terrorist organisation, his potential threat to public safety, and the necessity of the imposed obligations, prohibitions, and restrictions.

The Federal Magistrate considered the evidence presented, including the information that led to the initial interim control order. The court was satisfied on the balance of probabilities that the control order was essential for preventing a terrorist act and that the restrictions imposed were reasonably necessary and appropriate. The court found that Hicks had received training from a listed terrorist organisation, which supported the conclusion that he posed a potential threat. Additionally, the court determined that each of the obligations, prohibitions, and restrictions set out in the control order was necessary for protecting the public. These included specific requirements for Hicks to reside at designated premises, report to authorities, and restrictions on his communications and access to various forms of technology and explosive materials.

As a result, the Federal Magistrate confirmed the interim control order, which included stringent obligations and prohibitions designed to mitigate the risk posed by Hicks. The confirmed control order was to remain in effect until 21 December 2008, with provisions for personal service and compliance monitoring by the Australian Federal Police. The orders also outlined the severe penalties for contravening the control order, including imprisonment for up to five years. The court's decision was aimed at balancing the need to protect public safety with the rights and freedoms of the individual subject to the control order.

Orders

Orders of the court

Pursuant to section 104.14 of the Criminal Code the interim control order made 21 December 2007 is confirmed in relation to DAVID MATTHEW HICKS in the terms at attachment 1.

That service of the confirmed control order be affected by a member of the Australian Federal Police by personally serving a copy of the sealed orders of the Court on the Respondent as soon as practicable.

Attachment 1

No. ADG 347 of 2007

Criminal Code (Cth), sub-section 104.14

CONTROL ORDER

Name of Controlled Person: David Mathew Hicks

Date of Birth: 7 August 1975

Under the powers conferred by sub‑section 104.14 of the Criminal Code (Cth) this confirmed control order has been made against you because:

a) The AFP member holding the rank of Superintendent or above, namely Manager Counter Terrorism Domestic, who requested the Interim Control Order made on 21 December 2007, elected to confirm the Order in accordance with sub‑section 104.14 of the Criminal Code; and

b) The Court has received and considered the information put before the Court; and

c) The Court is satisfied on the balance of probabilities that:

i) making the order would substantially assist in preventing a terrorist act; and

ii) you have received training from a listed terrorist organisation; and

d) The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on you by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

The obligations imposed on you under sub‑section 104.5(3) of the Criminal Code are set out in Schedule 1 to this Order – see attached.

You are required to meet the obligations set out in Schedule 1 of the control order.

By virtue of sub‑section 104.27 (read with sub‑section 100(1) of the Criminal Code) the penalty for contravening any of these obligations is imprisonment for 5 years.

The confirmed control order is to be in force until 21 December 2008.

Your lawyer may attend the Australian Federal Police Adelaide office, 8th floor, 55 Currie Street, Adelaide, in order to obtain a copy of this control order.

Date of this control order: 19 February 2008

………………………………………….

Federal Magistrate Donald Affix Court

Seal

Criminal Code Act 1995, Sub-section 104.5(3)

SCHEDULE 1

This schedule sets out the obligations imposed on David Matthew Hicks pursuant to sub-section 104.5(3) and 104.16(1)(c) of the Criminal Code Act 1995 (Criminal Code).

OBLIGATIONS

The following obligations form part of the control order and are imposed on you by virtue of sub-section 104.5(3) of the Criminal Code Act 1995 (Cth).

This control order will be in force when personally served on you:

You are required to remain at specified premises between specified times each day, or on specified days, namely you are to remain at a premises within Australia which is agreed in writing between yourself and the Coordinator of the Australian Federal Police (AFP) Joint Counter Terrorism Team AFP Adelaide Office (the AFP CT Coordinator) ('the specified premises') between 1.00am and 5.00am, unless:

a) You notify the AFP CT Coordinator, AFP Adelaide Office, Level 8, 55 Currie Street, Adelaide, South Australia in writing[1] of another address that you will be residing at between these times or you request an amendment to the above times for specified reasons; and

b) The AFP CT Coordinator consents to the amendment in writing.

You are required to report to the following specified persons at the following specified times and places:

a) A member of the AFP, or State or Territory Police, every Wednesday and Saturday, between 5.15am and midnight, at a police station in a location as directed by the Australian Federal Police CT Coordinator[2]; unless:

i) You contact the AFP CT Coordinator in writing, requesting an amendment to the obligations set out in section 2a; and

ii) The AFP CT Coordinator consents to the amendment in writing.

You are required to allow impressions of your fingerprints to be taken by a member of the AFP, or State or Territory Police, for the purposes of ensuring compliance with this control order, where required by a member of the AFP, or State or Territory Police, on any occasion you report at the place specified in paragraph 2.

You are prohibited from leaving Australia except with the prior written permission of the AFP CT Coordinator.

You are prohibited or restricted from carrying out the following specified activities (including in respect of your work or occupation), namely:

a) You are prohibited from acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form) or attempting to acquire, take possession of, produce, access or supply documentation (including in electronic form) regarding:

i) explosives; and/or,

ii) weapons; and/or,

iii) combat skills; and/or,

iv) military tactics.

b) You are prohibited from manufacturing, acquiring, taking possession of or attempting to manufacture, acquire, or take possession of any commercial, military or home made and/or improvised explosives or explosive accessories, initiation systems or firing devices;

c) Subject to section 104.5(5) of the Criminal Code Act 1995 (Cth), you are prohibited from communicating to any person, whether directly or indirectly (including via internet chat rooms, websites, media interviews, publications and group gatherings) in relation to:

i) methodology, tactics or other knowledge connected with, or likely to facilitate, terrorist acts, including explosives, weapons and/or combat skills; or

ii) names or contact details of persons you know to be associated with a terrorist organisation;

You are prohibited from communicating or associating with specified individuals, namely:

a) Any individual that you know to be a member of a terrorist organisation.

You are prohibited from accessing or using the following specified forms of telecommunications or other technology:

a) Any mobile telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one mobile telephone service is nominated in total and sufficient details to identify the service to be used are provided[3];

b) A telephone service card, subscriber identification module card (SIM card) or account, incorporating a credit or ‘top up’ facility that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one telephone service card, SIM card or account, incorporating a credit or ‘top up’ facility is nominated in total and sufficient details to identify the service to be used are provided;

c) Any fixed or landline telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one fixed or landline telephone service is nominated in total and sufficient details to identify the service to be used are provided or is required in the case of an emergency;

d) Any public telephone except in the case of an emergency;

e) Any satellite telephone service;

f) Any Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one VOIP service including any software or hardware that will facilitate a VOIP service is nominated in total and sufficient details to identify the service to be used are provided;

g) Any internet service provider account that has not been approved in writing by the AFP CT Coordinator, with such approval to be given provided only one internet service provider account is nominated, in total and sufficient details to identify the account to be used are provided;

h) Any electronic mail (e-mail) account that has not been approved in writing by the AFP CT Coordinator, with such approval to be given provided only one e-mail account is nominated in total and sufficient details to identify the account to be used are provided.

You are prohibited or restricted from possessing or using specified articles or substances, namely:

a) You are prohibited from possessing or using any firearm or ammunition (you must immediately surrender any such items in your possession to police); and

b) You are prohibited from possessing or using commercial, military, home made and/or improvised explosive or explosive accessories, initiation systems or firing devices (you must immediately surrender any such items in your possession to police).

………………………………………….

Federal Magistrate Donald Affix Court

Seal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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