Jabbour v Thomas
[2006] FMCA 1286
•27 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
JABBOUR v THOMAS [2006] FMCA 1286
CONTROL ORDERS – Criminal Code – application for interim control order – preventing terrorist act – training from terrorist organisation – obligations, prohibitions and restrictions – reasonably appropriate and adapted – refusal of certain restrictions – interim control order made.
Criminal Code Act 1995, s.3
Criminal Code, ss.100.1, 104.2, 104.3, 104.4, 104.5
Evidence Act 1995
Charter of the United Nations (Terrorism and Dealings with Assets)
Regulations 2002, Part 4
R v Thomas [2006] VSCA 165
Applicant: RAMZI JABBOUR
Respondent: JOSEPH TERRENCE THOMAS
File Number: CAG47 of 2006
Judgment of: Mowbray FM
Hearing date: 26 August 2006
Delivered at: Canberra
Delivered on: 27 August 2006 REPRESENTATION
Counsel for the Applicant: Mr H Burmester QC, Mr A Berger
Solicitors for the Applicant: Australian Government Solicitor ORDERS
(1)Pursuant to section 104.4 of the Criminal Code an interim control order be made in relation to Joseph Terrence Thomas in the terms at attachment 1.
(2)Service of the interim control order be affected by personally serving a copy of the sealed orders of the Court as soon as possible, provided that an original sealed set of orders is served within 48 hours.
(3)
Any confirmation hearing for the interim control order be listed for
1 September 2006 at 9.30am preceded by a directions hearing on
31 August 2006 at 9.30am.
Attachment 1
No.
Criminal Code (Cth), sub-section 104.4
INTERIM CONTROL ORDER
Name of Controlled Person: Joseph Terrence Thomas
Date of Birth: 19 May 1973
Under the powers conferred by sub-section 104.4 of the Criminal Code (Cth) this interim control order has been made against you because:
a.An AFP member holding the rank of Superintendent or above, namely Manager Counter Terrorism Domestic, has requested it in accordance with sub-section 104.3 of the Criminal Code; and
b.The Court has received and considered the information put before the Court by the applicant; and
c.The Court is satisfied on the balance of probabilities that:
a. making the order would substantially assist in preventing a terrorist act; and
b. 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.
A summary of the grounds on which this Order is made is set out in Schedule 2 to this Order – see attached.
You are required to meet the obligations set out in the Schedule to the interim 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.
You may attend the Federal Magistrates Court which is located at Nigel Bowen Commonwealth Law Courts Building, Canberra, on Friday 1 September 2006 at 9.30 am, preceded by a directions hearing on 31 August 2006 at 9.30 am at that same location, for the court to:
(ii)confirm (with or without the variation) this interim control order;
(iii)declare this interim control order to be void; or
(iv)revoke the interim control order.
This interim control order does not begin to be in force until it has been personally served on you.
If confirmed, the confirmed control order is to be in force for 12 months after the day on which this interim control order is made.
Your lawyer may attend AFP Melbourne Office, 383 LaTrobe Street Melbourne Victoria in order to obtain a copy of this interim control order.
Date of interim control order: 27 August 2006
…………………………
Federal Magistrate Mowbray
Affix Court Seal
(Criminal Code (Cwlth), sub-section 104.5(3))
SCHEDULE 1
This schedule sets out the obligations imposed on Joseph Terrence Thomas pursuant to sub-section 104.5(3) of the Criminal Code:
OBLIGATIONS
The following obligations form part of the interim control order and are imposed on you by virtue of sub-section 104.5(3) of the Criminal Code:
Upon personal service of the interim control order and thereafter for the duration of this interim control order:-
You are required to remain at your current place of residence in Williamstown, Victoria, between midnight and 5.00am each day, unless you notify the Coordinator of the Australian Federal Police Counter Terrorist Team, Melbourne Office, 383 Latrobe Street, Melbourne (the AFP CT Coordinator) in writing of another address that you will be residing at between these times.
and
You are required to report to the following specified persons at the following specified times and places:
a.a member of Victoria Police;
b.every Monday, Wednesday and Saturday, at any time between the hours of 9am and 9pm;
c.at any of the following Victoria Police premises (the ‘specified premises’):
(i)Werribee Police Station;
(ii)Footscray Police Station; or
(iii)Sunshine Police Station
d.or any other person, time and/or place agreed in writing by the AFP CT Coordinator.
and
You are required to allow impressions of your fingerprints to be taken by the Victoria Police via the ‘Fingerprint Live Scan’ unit for the purposes of ensuring compliance with paragraph 2 of this interim control order:
a.within 24 hours following the issuing of this interim control order; and
b.where required by a member of Victoria Police, on any occasion you report at the specified premises.
and
You are prohibited from leaving Australia except with the prior written permission of the AFP CT Coordinator.
and
You are prohibited from carrying out the following specified activities:
a.acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form) regarding:
a. the manufacture or detonation of explosives;
b. weapons; and/or
c. combat skills;
b.manufacturing, acquiring, taking possession of or using or attempting to manufacture, acquire, possess or use 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, communicating to any person, whether directly or indirectly (including via internet chat rooms, websites, media interviews, publications and group gatherings) in relation to:
– methodology, tactics and other knowledge connected with, or likely to facilitate, terrorist acts, including explosives, weapons and/or combat skills
– names or contact details of persons you know to be associated with a listed terrorist organisation (see Schedule 3).
and
You are prohibited from communicating or associating with:
a.up to 50 individuals listed by the Department of Foreign Affairs and Trade pursuant to Part 4 of the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth), as notified to you in writing by the AFP CT Coordinator, with such prohibition to take effect from notification; and
b.any individual that you know to be a member of a listed / specified terrorist organisation (see Schedule 3).
and
Following the expiration of 48 hours after this control order is served upon you, 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;
b.a telephone service 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 Voice Over Internet Protocol (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 electronic mail (e-mail) account is nominated in total and sufficient details to identify the account to be used are provided.
and
You are prohibited from having in your possession, custody or control or using any firearm or ammunition except during the 48 hours after this control order is served upon you during which you must arrange for the surrender to police of any firearm or ammunition in your possession, custody or control.
…………………………
Federal Magistrate Mowbray
Affix Court Seal
SCHEDULE 2:
SUMMARY OF THE GROUNDS ON WHICH THIS ORDER IS MADE
Mr Thomas has admitted that he trained with Al Qa’ida in 2001. Al Qa’ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995. Mr Thomas also admitted that while at the Al Qa’ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.
There are good reasons to believe that given Mr Thomas has received training with Al Qa’ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa’ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.
Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas’s links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas’s vulnerabilities.
Furthermore, the mere fact that Mr Thomas has trained in Al Qai’da training camps, and associated with senior Al Qai’da figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.
The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas’s knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.
SCHEDULE 3:
LISTED TERRORIST ORGANISATIONS
4ATerrorist organisations – Al Qa’ida
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Al Qa’ida/Islamic Army is specified.
(2)For subregulation (1), Al Qa’ida/Islamic Army is also known by the following names:
(a)‘The Base’;
(b)Al Qaida;
(c)Al Qaeda;
(d)International Front for Fighting Jews and Crusaders;
(e)Islamic Army for the Liberation of Holy Sites;
(f)Islamic Salvation Foundation;
(g)The Group for the Preservation of the Holy Sites;
(h)The Islamic Army for the Liberation of the Holy Places;
(i)The World Islamic Front for Jihad Against Jews and Crusaders;
(j)Usama Bin Laden Network;
(k)Usama Bin Laden Organization;
(l)International Islamic Front Against Jews and Christians;
(m)Qa’idat Al-Jihad.
4BTerrorist organisation – Jemaah Islamiyah
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jemaah Islamiyah (the network in southeast Asia, founded by the late Abdullah Sungkar) is specified.
(2)For subregulation (1), Jemaah Islamiyah is also known by the following names:
(a)Jema’ah Islamiyah;
(b)Jemaah Islamiya;
(c)Jemaah Islamiah;
(d)Jamaah Islamiyah;
(e)Jama’ah Islamiyah.
4CTerrorist organisations – Abu Sayyaf Group
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Abu Sayyaf Group is specified.
(2)For subregulation (1), Abu Sayyaf Group is also known by the following names:
(a)Abu Sayyaf Group (ASG);
(b)Al Harakat Al Islamiyya (AHAI);
(c)Al Harakat-ul Al Islamiyya;
(d)Al-Harakatul-Islamia;
(e)Al Harakat Al Aslamiya;
(f)Abou Sayaf Armed Band (ASAB);
(g)Abu Sayaff Group;
(h)Abou Sayyef Group and Mujahideen Commando Freedom Fighters (MCFF).
4DTerrorist organisations – Jamiat ul-Ansar (JuA)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jamiat ul-Ansar (JuA) is specified.
(2)For subregulation (1), Jamiat ul-Ansar (JuA) is also known by the following names:
(a)Harakat ul-Mujahideen;
(b)HuM;
(c)Al-Faran;
(d)Al-Hadid;
(e)Al-Hadith;
(f)Harakat-ul-Ansar;
(g)HuA;
(h)Harakat ul-Mujahidin/HuM.
4ETerrorist organisations – Armed Islamic Group
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Armed Islamic Group is specified.
(2)For subregulation (1), Armed Islamic Group is also known by the following names:
(a)Al Jamm’ah Al-Islamiah Al-Musallah;
(b)GIA;
(c)Groupement Islamique Armé;
(d)Groupe Islamique Armé.
4FTerrorist organisations – Salafist Group for Call and Combat/GSPC
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Salafist Group for Call and Combat/GSPC is specified.
(2)For subregulation (1), the Salafist Group for Call and Combat/ GSPC is also known as Le Groupe Salafiste Pour La Prediction et le Combat.
4GTerrorist organisations – Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn is specified.
(2)For subregulation (1), Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn is also known by the following names:
(a)Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn (TQJBR);
(b)TQJBR;
(c)the al-Zarqawi network;
(d)al-Tawhid;
(e)Jama’at al-Tawhid wa’al-Jihad;
(f)Al-Tawhid and al-Jihad;
(g)The Monotheism and Jihad Group;
(h)Qaida of the Jihad in the Land of the Two Rivers;
(i)Al-Qa’ida of Jihad in the Land of the Two Rivers;
(j)Al-Qa’ida of Jihad Organization in the Land of the Two Rivers;
(k)The Organisation of Jihad’s Base in the Country of the Two Rivers;
(l)The Organisation Base of Jihad/Country of the Two Rivers;
(m)The Organisation Base of Jihad/Mesopotamia;
(n)Tanzeem Qa’ida al-Jihad/Bilad al Raafidaini;
(o)Kateab al-Tawhid;
(p)Brigades of Tawhid;
(q)Unity and Jihad Group;
(r)Unity and Holy Struggle;
(s)Unity and Holy War.
4HTerrorist organisations – Ansar al-Islam
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Ansar al-Islam is specified.
(2)For subregulation (1), Ansar al-Islam is also known by the following names:
(a)Partisans of Islam;
(b)Supporters of Islam;
(c)Devotees of Islam;
(d)Ansar al Sunna;
(e)Jaish Ansar al-Sunna;
(f)Ansar al-Sunna Army;
(g)Army of Ansar al-Sunn.
4ITerrorist organisations – Asbat al-Ansar
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Asbat al-Ansar is specified.
(2)For subregulation (1), Asbat al-Ansar is also known by the following names:
(a)Usbat al-Ansar;
(b)Osbat al-Ansar.
4JTerrorist organisations – Islamic Movement of Uzbekistan
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Islamic Movement of Uzbekistan is specified.
(2)For subregulation (1), Islamic Movement of Uzbekistan is also known by the following names:
(a)IMU;
(b)Islamic Party of Turkestan;
(c)Islamic Movement of Turkestan.
4KTerrorist organisations – Jaish-e-Mohammad
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jaish-e-Mohammad is specified.
(2)For subregulation (1), Jaish-e-Mohammad is also known by the following names:
(a)Jaish-i-Mohammad;
(b)Jesh-e-Mohammadi;
(c)Jaish-e-Mohammad-e-Tanzeem;
(d)Tehrik-al-Furgan;
(e)Tehrik-al-Furqaan;
(f)Khuddam-ul-Islam;
(g)Army of Mohammad.
4LTerrorist organisations – Lashkar-e Jhangvi (LeJ)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Lashkar-e Jhangvi (LeJ) is specified.
(2)For subregulation (1), Lashkar-e Jhangvi (LeJ) is also known by the following names:
(a)Lashkar-e Jhangvi;
(b)Lashkar e Jhangvi;
(c)Laskar-e-Jhangvi;
(d)Lashkar-e-Jhangvie;
(e)Lashkar-e-Jhangwi;
(f)Lashkar-e-Jhanvi;
(g)Laskar e Jahangvi;
(h)Lashkar-i-Jangvi;
(i)Lashkar-i-Jhangvi;
(j)Lashkar-i-Jhangwi;
(k)Lashkar Jangvi;
(l)Lashkar Jhangvi;
(m)Lashkare Jhangvi;
(n)Jhangvi Army.
4MTerrorist organisations – Egyptian Islamic Jihad
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Egyptian Islamic Jihad is specified.
(2)For subregulation (1), Egyptian Islamic Jihad is also known by the following names:
(a)al-Jihad;
(b)Jihad Group;
(c)Islamic Jihad;
(d)Al-Jihad al-Islami;
(e)New Jihad Group;
(f)Qaeda al-Jihad;
(g)Talaa’al al-Fateh;
(h)Vanguards of Conquest;
(i)al-Takfir;
(j)World Justice Group;
(k)International Justice Group;
(l)Islamic Group.
4NTerrorist organisations – Islamic Army of Aden (IAA)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Islamic Army of Aden (IAA) is specified.
(2)For subregulation (1), Islamic Army of Aden (IAA) is also known by the following names:
(a)Aden Abyan Islamic Army (AAIA);
(b)Islamic Army of Aden Abayan.
4QTerrorist organisations – Hizballah’s External Security Organisation (ESO)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Hizballah’s External Security Organisation (ESO) is specified.
(2)For subregulation (1), Hizballah’s External Security Organisation (ESO) is also known as Islamic Jihad Organisation.
4TTerrorist organisations – Palestinian Islamic Jihad (PIJ)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Palestinian Islamic Jihad (PIJ) is specified.
(2)For subregulation (1), Palestinian Islamic Jihad (PIJ) is also known by the following names:
(a)Islamic Jihad Palestine (IJP);
(b)Islamic Jihad – Palestine Faction;
(c)Islamic Holy War.
4UTerrorist organisations – HAMAS’ Izz al-Din al‑Qassam Brigades
For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as HAMAS’ Izz al-Din al-Qassam Brigades is specified.
4VTerrorist organisations – Lashkar-e-Tayyiba (LeT)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Lashkar-e-Tayyiba (LeT) is specified.
(2)For subregulation (1), Lashkar-e-Tayyiba (LeT) is also known by the following names:
(a)Lashkar-e-Toiba;
(b)Lashkar-e-Taiba;
(c)Army of the Pure and Righteous;
(d)Paasban-e-Kashmir;
(e)Paasban-i-Ahle-Hadith;
(f)Jamaat-ud-Dawa.
4WTerrorist organisations – Kurdistan Workers Party (PKK)
(1)For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Kurdistan Workers Party (PKK) is specified.
(2)For subregulation (1), Kurdistan Workers Party (PKK) is also known by the following names:
(a)Peoples Congress of Kurdistan;
(b)Kongra Gel;
(c)Kongra Gele Kurdistan;
(d)Partiya Karkeren Kurdistan;
(e)New PKK;
(f)Freedom and Democratic Congress of Kurdistan;
(g)Kurdistan Freedom and Democracy Congress;
(h)KADEK;
(i)Kurdistan Halk Kongresi;
(j)KHK;
(k)Kurdistan Labor Party;
(l)Kurdistan Peoples Congress;
(m)Kurdish Freedom Falcons;
(n)Kurdish Liberation Hawks;
(o)Kurdistan Ozgurluk Sahinleri;
(p)Teyrbazên Azadiya Kurdistan;
(q)TAK.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRACAG47 of 2006
RAMZI JABBOUR Applicant
And
JOSEPH TERRENCE THOMAS Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an ex tempore judgment which has been revised and edited from the transcript.
2.I have an application before me under Subdivision B of Division 104 of the Criminal Code for the issue of an interim control order on the respondent, Joseph Terrence Thomas. The Criminal Code forms the Schedule to the Criminal Code Act 1995 and by virtue of section 3 of the Act has effect as a law of the Commonwealth. The scheme set out in Division 104 makes it clear that an application for an interim control order is to be dealt with ex parte.
3.In his submission to the Attorney-General the applicant, Ramzi Jabbour, said at [7]:
… I consider on reasonable grounds that the interim control order in the terms requested in this affidavit would substantially assist in preventing a terrorist act and, in addition, I suspect on reasonable grounds that the person has received training from a listed terrorist organisation, namely Al Qa’ida. Al Qa’ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002 made under the Criminal Code Act 1995.
4.On 24 August 2006 the Attorney-General gave his written consent to the request for an interim control order in accordance with the draft request presented to him.
The applicable law
5.The relevant statutory provisions are set out in the definition provisions in section 100.1 of the Criminal Code, where definitions of a listed terrorist organisation and a terrorist act can be found, and in sections 104.2 to 104.5.
6.The critical provision is section 104.4:
Making an interim control order
(1)The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, or 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 the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
(2)In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).
(3)The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.
Issues
7.It is beyond dispute that paragraphs (a) and (b) of subsection 104.4(1) have been met.
8.The issues then for the Court’s consideration arise from paragraphs (c) and (d):
·would making an interim control order substantially assist in preventing a terrorist act
·has the respondent received training from a listed terrorist organisation
·are the proposed obligations, prohibitions and restrictions reasonably necessary, and reasonably appropriate and adapted, for protecting the public from a terrorist act.
9.The Court must be satisfied on either of the first two bullet points. If it is it must then consider the last bullet point. The Court’s satisfaction must be on the balance of probabilities.
Consideration
The evidence
10.The evidence is provided in the affidavit of the applicant and in the annexures to the applicant’s statement of facts and to the affidavit. The applicant also gave some brief oral evidence.
11.The annexures include a record of interview between the Australian Federal Police and the respondent conducted in Pakistan on 8 March 2003. This record was recently held to be inadmissible in criminal proceedings by the Victorian Court of Appeal: R v Thomas [2006] VSCA 165. However, the matter before me is an interlocutory civil case. As I noted during the hearing this material is admissible in the current proceedings in accordance with the Evidence Act 1995.
12.I have carefully considered the evidence in the annexures, particularly in annexures C1 to C11. In my view the applicant's summary of the evidence in these documents is substantially correct. Much of this evidence involves admissions by the respondent. I adopt the applicant’s summary, edited as follows.
13.The respondent travelled to Islamabad, Pakistan, on 24 March 2001 and then shortly thereafter to Afghanistan because he wished to travel to an Islamic country.
14.On his arrival in Kandahar he undertook vetting for Jihad training which was conducted by a male person named Abu Qatada. As a result of his conversations with this person the respondent formed an opinion that Qatada had been involved in the United State Embassy bombings in Kenya in 1998 and was a member of Al Qa’ida.
15.On his arrival in Afghanistan he attended the Al Farouk training camp, which he later realised was Al Qa’ida operated. Here he undertook training which included weapons training and learning how to assemble and shoot various automatic weapons. He also received instruction on the use of explosives. The reason for him undertaking the training was to participate in a Jihad against the Northern Alliance.
16.Whilst at the Al Farouk training camp he saw Osama bin Laden on three separate occasions, Dr Ayman al Zawahiri and other senior Al Qa’ida members. Members of Al Qa’ida took him into their confidence.
17.After September 11, 2001 he hid out in various guest houses associated with Al Qa’ida members throughout Pakistan. He approached Saif al’ Adl, a person he later realised was a member of Al Qa’ida, and asked him for assistance in finding a house. That person gave him $US300 for accommodation expenses.
18.He approached a male he knew only as Ismail. He did not know if Ismail was associated with any particular organisation but was aware that he could facilitate travel for people wishing to leave Afghanistan. He requested Ismail arrange the removal of an Afghan visa from his Australian passport as he did not think it was a good idea to travel with the visa in his passport. He handed his passport to Ismail who later returned the passport once the requested alteration had been made.
19.Around January 2002 he again approached Ismail asking for some work. In return Ismail provided him with tickets to Male in the Maldives, a gesture that he described as a test to see what his abilities were. He was advised that while in Male he was to obtain information about different locations, determine who Male's allies were, as well as other information including what the country's exports were. In addition he was asked to look for passports. He later refused to travel and asked Ismail for $US700 so that he could purchase an airline ticket to Australia, which Ismail provided.
20.He also asked Abu Zubayda if there was any work he could do to help with the Afghanistan and United States conflict. He would have done anything to stop the attacks in Afghanistan. I understand that this gentleman was the Al Qa’ida operations manager in Afghanistan until he was captured. Zubayda interpreted "work" to mean that the respondent was prepared to undertake a terrorist mission, while the respondent claims that he meant "work" to be to facilitate Al Qa’ida missions by obtaining passports or checking locations.
21.The respondent believed that Zubayda had been arrested and conveyed to the United States military detention facility at Guantanamo Bay, Cuba. In September 2002 the respondent had a conversation with Abu Osama, an associate of Zubayda. During that conversation the two men discussed plans about undertaking a breakout to help free Zubayda and others from the detention facility at Guantanamo Bay.
22.Between November and December 2002 the respondent recalled meeting on three occasions with Khaled bin Attash, an associate of bin Laden and a member of Al Qa’ida. During their first meeting bin Attash discussed the possibility of helping him and taking him to his family's home in Saudi Arabia.
23.During the second meeting bin Attash advised that bin Laden wanted an Australian to work for him and carry out operations in Australia. Bin Attash further advised that he thought that an attack like those in Nairobi would bring down the Australian Government.
24.At a third meeting bin Attash gave him $US3,500 and an airline ticket from Karachi to Sydney via Bangkok and Jakarta. Bin Attash then provided him with the following instructions:
·after his departure from Pakistan he was to contact the telephone number bin Attash supplied and advise if everything went well
·he was to memorise the number and not write it down. However he wrote it down in code because he intended to call it and did not want to forget it
·he was provided with an email account and instructions on how he could contact bin Attash in the future via the account in a way that would disguise the messages
·upon his return to Australia he was to look for suitable military installations within Australia
·around six to twelve months after his return to Australia he was to change his identity
·following this bin Attash would make arrangements for him to attend an unspecified meeting outside of Australia.
25.In an attempt to disguise his travel movements the respondent's Australian passport was once again altered at his request by a man known to him as Haji. This second alteration to his passport was undertaken shortly before his attempted departure from Pakistan as it had been mentioned in the media that he was a suspected terrorist. The alteration was to give the appearance that he had only spent a total of two weeks in Pakistan.
26.The respondent believed that Haji was an associate of bin Attash. However, he was not aware if he belonged to any terrorist organisation but conceded that Haji “had links”. He believed Haji was engaged in collecting money for people who were leaving Afghanistan.
27.Whilst in Pakistan and Afghanistan the respondent associated with a large number of people who were Al Qa’ida members, but he did not know who they were. He was provided with money, food and shelter by some of these people over a period of about two years from when he left the training camp in Afghanistan. He resided at various locations which he described as guest houses while in Pakistan where members of Al Qa’ida attended at different times.
28.The respondent denies being a member of Al Qa’ida, stating that he never pledged his allegiance to that organisation. He says that everyone got at least $US500 to $US700. He received $US3,500 while other people received up to $US10,000.
29.Prior to going to Afghanistan in 2001 the respondent admitted that he had participated in Jihad training in Australia which included paintballing, military drills and sometimes firing live weapons.
30.A number of confidential informants currently in detention overseas have provided statements to the Australian Federal Police. These too were annexed to the affidavit. They testify to the interaction of the informants with the respondent at training camps in Afghanistan. They are at annexures C7 to C11.
31.The evidence from these statements is:
·each of the informants attended the Al Farouk camp with the respondent
·they knew him as Abu Khair but later identified him as the respondent
·the Al Farouk camp was run by Al Qa’ida
·the respondent was considered to be outspoken and argumentative
·the respondent appeared to enjoy the training and take it seriously
·he was well respected at the training camps
·the respondent stated that he wanted to go to the frontline to fight against the Northern Alliance. In particular he stated that he wanted to be the person who killed the leader of the Northern Alliance.
32.Further evidence was provided in statements by Mr Jack Roche at annexures C12 and C15. They recount how Mr Roche was approached by senior Al Qa’ida members because of his Australian nationality to carry out terrorist acts in Australia. Mr Roche received training in Afghanistan and was asked to recruit two or three caucasian candidates for Jihad training in Afghanistan and possibly facilitate plans for an attack in Australia.
33.In retrospect Mr Roche said he believes that he was directly targeted and recruited because he was a caucasian Australian Muslim. The cultivation process was a drawn out, professional and seductive way of recruiting him while not raising his suspicions that it was anything other than the following of peaceful teachings of Islam.
34.Mr Roche was convinced that other caucasian Muslims in Australia had been cultivated in the same manner and they may later be used by groups such as Al Jamaa’ah Al Islaamiyah (JI) and Al Qa’ida.
35.Mr Roche was given $US3,750 by one Mukhtar who was the alleged mastermind of 11 September 2001, and $US4,250 by Hambali, a former senior member of JI and Al Qa’ida, following Al Qa’ida training for carrying out acts of terrorism in Australia. This was organised by a person called Adl who had also assisted the respondent.
Preventing a terrorist act
36.The applicant is a senior member of the Australian Federal Police, currently holding the position as Manager, Counter Terrorism Domestic. His experience also includes that of National Coordinator of Counter Terrorism. He is directly responsible for the management and command of AFP national counter terrorism operations. He has oversight of all national counter terrorism investigations involving the AFP, working collaboratively with his State and Territory counterparts and the Australian intelligence community. He has been involved in counter terrorism investigations since January 2002. He can be taken to be an expert in matters relating to terrorism and terrorist acts.
37.The applicant says in his statement at [10.2]:
·the respondent successfully passed “vetting” for Jihad training
·he completed training at the Al Farouk camp during a time that it was attended by Osama bin Laden on three separate occasions, Dr Ayman al Zawahiri and other senior Al Qa’ida members
·senior members of the camp took the respondent into their confidence
·the respondent was permitted to “hide out” in various guest houses associated with Al Qa’ida members throughout Pakistan after September 11, 2001
·he was approached a number of times by senior members of Al Qa’ida over a period of several months after his training regarding assisting Al Qa’ida
·Abu Osama, an associate of Zubayda, was prepared to discuss such things as plans to undertake a breakout to help Zubayda and others from the detention facility at Guantanamo Bay
·bin Attash, an associate of bin Laden and a member of Al Qa’ida, discussed with the respondent the matters that I have already set out at paragraphs 22 to 24 above in the evidence.
38.In the applicant's view this strongly suggests that the respondent was groomed by Al Qa’ida to become a resource - a person that can be trusted to carry out or assist with terrorism acts on behalf of terrorist cells. In his view, following such grooming senior Al Qa’ida members considered the respondent to be sufficiently committed, trustworthy and suitable to have a role in support of their terrorist activities from Australia. They considered him to be a resource to work from within Australia.
39.The applicant also asserts that Al Qa’ida has demonstrated that since 2000 it has sought to achieve a capability to seek out and develop converts to integrate into western countries including Australia. This particularly includes western converts who are likely to receive less scrutiny from security agencies. They could then be used as an Al Qa’ida resource to facilitate or carry out a terrorist attack at any time in the future.
40.The applicant's opinions are re-enforced by the similarities that are found in the experiences of Mr Jack Roche. For example, Mr Roche was given money and received specific instructions from senior Al Qa’ida members following Al Qa’ida training for carrying out acts of terrorism in Australia. Furthermore, the modus operandi of the arrangements with the respondent was similar to that made with Mr Roche.
41.In the applicant's view, the respondent has not revoked his sympathy for Al Qa’ida and affiliated terrorist groups. The applicant is of the view that there is a significant risk that he is currently prepared to be a resource for Al Qa’ida that could be utilised at any time in the future to assist in the execution of terrorist acts, whether in the form of providing intelligence, instructions or training to new recruits or actual planning or preparation of terrorist acts.
42.I accept substantially the views of the applicant on the untested evidence that has been presented to the Court. It seems to me that on this evidence there are good reasons to believe that the respondent having received training with Al Qa’ida is now an available resource that can be tapped to assist commit terrorist acts on behalf of Al Qa’ida or related terrorist cells. Training has provided him with a capability to execute or assist in the execution - directly or indirectly - of terrorist acts.
43.The respondent is vulnerable. He may be susceptible to the views and beliefs of persons who will nurture him during his re-integration into the community. The respondent’s vulnerabilities may be exposed and exploited due to his links with extremists such as Abu Bakar Bashir, some of which are through his wife.
44.Furthermore, the fact that he has trained in Al Qa’ida's training camps and associated with senior Al Qa’ida figures in Afghanistan is attractive to aspirant extremists who might seek out his skills and experience to guide them in achieving their potentially extremist objectives.
45.On this evidence therefore, I am satisfied on the balance of probabilities in the terms of paragraph 104.4(1)(c)(i) of the Criminal Code that a making of an interim control order would substantially assist in preventing a terrorist act.
Training from a terrorist organisation
46.The respondent has admitted that he trained with Al Qa’ida in 2001. Al Qa’ida is a listed terrorist organisation specified by regulations under the Criminal Code. He has also conceded that while at the Al Qa’ida training camp he undertook weapons training including in the use of explosives and in the assembling and use of various automatic weapons.
47.It is therefore very clear that in the terms of paragraph 104.4(1)(c)(ii) of the Criminal Code the respondent has received training from a listed terrorist organisation.
Obligations, prohibitions and restrictions
48.Paragraph 104.4(1)(d) of the Criminal Code requires that I be satisfied on the balance of probabilities that each of the proposed obligations, prohibitions and restrictions be reasonably necessary and reasonably appropriate and adapted for protecting the public from a terrorist act. I am required to take into account the impact of any such obligation, prohibition or restriction on the respondent's circumstances, including his financial and personal circumstances: subsection 104.4(2).
49.I do not have much evidence about the respondent’s personal circumstances. I note that he is married and has three children. He apparently is not employed, having recently been released from prison. I understand that his commitment to his Islamic faith requires his participation in various religious observances.
50.The applicant seeks the imposition of obligations, prohibitions and restrictions on the respondent in nine broad areas. These would amount to significant limitations on the respondent’s freedom.
51.Subject to what I say below on two of these areas, I am satisfied, in the main for the reasons given by the applicant at attachments D, E and F to his request for the Attorney-General’s consent to request an interim control order, that the proposed obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.
52.However, on the evidence I do not accept that obligations 9(a) and (b) which would require specified religious and psychological/psychiatric counselling meet the test in paragraph 104.4(1)(d).
53.The evidence on the need for religious and psychological/psychiatric counselling is most unsatisfactory. Professor Alexander McFarlane, the psychiatrist from the University of Adelaide, upon whose opinion reliance is placed, has not examined the respondent. His views are based merely on an examination of the respondent’s file for the purpose of the criminal proceeding. They are not in any affidavit, but are conveyed in summary form in the applicant's statement.
54.I can understand the applicant’s concerns expressed in oral evidence about potential terrorist threats stemming from extreme religious views. Nevertheless, I have virtually no evidence justifying religious counselling, neither in general nor specifically with the named persons.
55.I will not impose proposed obligations 9(a) and 9(b).
56.My other concern is with proposed obligation 6(a). This would prohibit the respondent from communicating or associating with any individual listed by the Department of Foreign Affairs and Trade pursuant to Part 4 of the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002. This list was provided to me as schedule 4. The schedule is about 300 pages long. I haven't attempted to count the number of individuals who are listed in the schedule.
57.I do not accept that this restriction is reasonably appropriate and adapted in terms of paragraph 104.4(1)(d). I am prepared to hear further from the applicant about how this list might be reduced, or how this particular obligation might be otherwise altered, to make it appropriate and adapted. But I am not prepared to make an order in the form that has been handed up to me.
58.In reaching this view I am particularly conscious of the significant penalty that can be imposed for a breach of any of these obligations, prohibitions and restrictions.
Conclusions
59.The respondent has admitted that he trained with Al Qa’ida in 2001. Al Qa’ida is a listed terrorist organisation. Having received that training with Al Qa’ida, there are good reasons to believe he is now an available resource that can be tapped to assist commit terrorist acts on behalf of Al Qa’ida or related terrorist cells. The training has provided him with the capability to execute or assist in the execution directly or indirectly of terrorist acts.
60.The respondent is vulnerable. He may therefore be susceptible to the views and beliefs of persons who will nurture him during his re-integration into the community. The respondent’s vulnerabilities may be exposed and exploited due to his links with extremists.
61.The mere fact that he has trained with Al Qa’ida in their training camps and associated with senior Al Qa’ida figures is attractive to aspirant extremists. They may seek out his skills and experience to guide them in achieving their potentially extremist objectives.
62.The controls set out in the interim control orders which I propose to make will protect the public and substantially assist in preventing a terrorist act. Without these controls the respondent's knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.
63.I will now hear from the applicant how proposed obligation 6(a) might be modified so that any restriction is “reasonably appropriate and adapted” for protecting the public from a terrorist act: paragraph 104.4(1)(d).
I certify that the preceding sixty three paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Beau Wilson
Date: 6 September 2006
1