Lee v Benbrika
[2020] FCA 1723
•1 December 2020
FEDERAL COURT OF AUSTRALIA
Lee v Benbrika [2020] FCA 1723
File number: VID 670 of 2020 Judgment of: BESANKO J Date of judgment: 1 December 2020 Catchwords: CRIMINAL LAW — application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) — where respondent has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act — consideration of individual controls in dispute between the parties — whether proposed orders reasonably necessary — whether proposed orders reasonably appropriate and adapted — application granted Legislation: Crimes Act 1914 (Cth) s 3
Criminal Code Act 1995 (Cth) ss 100.1, 104.1, 104.2, 104.3, 104.4, 104.5, 104.14, 104.27, 105A.7
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Cases cited: Benbrika v R [2010] VSCA 281; (2010) 29 VR 583
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
Division: General Division Registry: Victoria National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 60 Date of last submissions: 19 November 2020 Date of hearing: 17 November 2020 Counsel for the Applicant: Mr R Maidment QC with Ms C Fitzgerald Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr S Moglia with Ms R Khan Solicitor for the Respondent: Isabelle Skaburskis ORDERS
VID 670 of 2020 BETWEEN: SCOTT LEE
Applicant
AND: ABDUL NACER BENBRIKA
Respondent
order made by:
BESANKO J
DATE OF ORDER:
1 December 2020
THE COURT ORDERS THAT:
Interim control order
1.The Court makes an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders.
Suppression order
2.There is to be no disclosure, by publication or otherwise, of:
(a)the name of the police station and address of that station in control order 1.10.;
(b)the address in control order 2.2.a.;
(c)the name of the mosque in control order 5.1.a. of Annexure A to the Short Minutes of Order filed by the applicant on 18 November 2020;
(d)the name of the respondent’s wife and location of her family in control order 11.1.e.;
(e)the names and dates of birth of the persons listed at control order 11.1.f.ii.-v. and 11.1.f.xiii.-xxvi.
(the Information).
3.The Information identified in Order 2 is to be redacted from any publicly available Court documents, including Orders.
4.Orders 2 and 3 are made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(a) and (c) of that Act).
5.Orders 2 and 3 operate until further order.
6.Orders 2 and 3 do not prevent disclosure of the 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)the respondent and his legal representatives;
(d)Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).
7.Orders 2 and 3 do not prohibit the disclosure of the Information to the following persons for the purposes of Supreme Court of Victoria proceeding S ECI 2020 03527, and any subsequent appeals:
(a)the Minister for Home Affairs;
(b)officers of the Department of Home Affairs;
(c)the legal representatives of the Minister for Home Affairs;
(d)the respondent and his legal representatives;
(e)the presiding judge(s);
(f)necessary court staff and transcribers.
Confirmation hearing
8.The matter be listed for hearing at 10:00 am (Adelaide time) on Thursday, 10 December 2020.
Endorsement pursuant to Rule 41.06
To: Abdul Nacer Benbrika
You will be liable to imprisonment, sequestration of property or punishment for contempt if:(a)for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or
(b) for an order that requires you not to do an act or thing - you disobey the order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Schedule
1.This interim control order relates to the Respondent, Abdul Nacer Benbrika.
2.The Court is satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code Act 1995 (Cth) (the Code)).
3.Further, the Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
3.1.protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Code);
3.2.preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Code); and
3.3.preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Code).
4.The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Annexure A to this Schedule.
5.A summary of the grounds on which the order is made is set out in Annexure B to this Schedule.
6.This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody.
7.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.
8.The Respondent may attend the Federal Court of Australia which is located at Commonwealth Law Courts at 305 William Street, Melbourne, Victoria, on Thursday, 10 December 2020 at 10:00 am (Adelaide time) for the Court to:
8.1.confirm (with or without variation) this Interim Control Order,
8.2.declare this Interim Control Order to be void, or
8.3.revoke this Interim Control Order.
9.The Respondent’s lawyer may attend the AFP Melbourne office at 383 La Trobe Street, Melbourne, Victoria between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order.
ANNEXURE A
INTERIM CONTROL ORDER
Criminal Code Act 1995 (Cth), s 104.2(3)(a)If the interim control order is confirmed, the confirmed control order is to be in force
for a period of 12 months from the date on which the interim control order is made.
Control 1
1.1.You are required to wear a tracking device at all times for the duration of this interim control order once provided or fitted in accordance with Control 1.2.
1.2. The tracking device you are required to wear pursuant to Control 1.1 is:
a.the tracking device which is provided and/or fitted to you by an AFP member within 24 hours of this interim control order coming into force; or
b.if an AFP member provides and/or fits to you a different tracking device for the purposes of this control during the period in which this interim control order is in force – that tracking device, as the case may be.
1.3.For the purposes of Control 1.2.a you are required to permit AFP members entry to the specified premises and access to your person within 24 hours of nominating the specified premises under Control 2 at a time agreed with the AFP Superintendent, for the purposes of permitting officers to provide and/or fit you with a tracking device.
1.4.For the avoidance of doubt, if an AFP member provides and/or fits to you a tracking device pursuant to Control 1.2.1.2.b, you are no longer required to wear any other tracking device previously provided and/or fitted to you pursuant to this interim control order.
1.5. You are required to do all of the following:
a.permit an AFP member to provide and / or fit to you a tracking device for the purposes of this interim control order;
b.permit an AFP member to provide you with instructions on using and maintaining the tracking device;
c.ensure that the tracking device you are required to wear, and any equipment necessary for the operation of that tracking device, are or remain in good working order;
d.report to the AFP Superintendent, or another AFP member specified in writing by the AFP Superintendent, at the specified premises or a location nominated by the AFP as may be required, at such times as are from time to time nominated by the AFP Superintendent for the purpose of permitting the AFP Superintendent or an AFP member to inspect, service, modify, replace or repair the tracking device you are required to wear or its charging unit;
e.if you become aware that the tracking device you are required to wear, or any equipment necessary for the operation of that tracking device, is not in good working order—notify an AFP member as soon as practicable, but no later than 4 hours, after becoming so aware;
f.charge the device on a daily basis to ensure that the battery is charged at all times.
1.6. You must not:
a.remove, tamper with, damage or destroy any component of the tracking device you are required to wear or any equipment necessary for the operation of that tracking device;
b.attempt to do any of the things referred to in Control 1.6.a;
c.allow any other person to do, or attempt to do, any of the things referred to in Control 1.6.a;
d.wear the device whilst swimming without prior approval of the AFP Superintendent.
1.7. Control 1.6 does not apply:
a.to the extent the AFP Superintendent has authorised any of the things referred to in Control 1.6.a to be done;
b.if you are required to undergo an emergency medical procedure that necessitates removal of the tracking device;
c.in an emergency, if it is necessary to remove the tracking device to avoid serious injury or death to yourself;
d.if you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities and they require the tracking device to be removed;
1.8.One or more AFP members who are authorised by the AFP Superintendent for the purposes of this Control may:
a.enter the specified premises for the purpose of installing any equipment necessary for the operation of the tracking device you are required to wear;
b.contact you on the permitted mobile phone to ensure the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order.
1.9.You are required to have your permitted mobile phone with you at all times to facilitate 1.8(b) above.
REPORTING IN THE ALTERNATIVE TO CONTROLS 1.1 TO 1.9 ABOVE
1.10.You are required to report to a police officer daily (Monday to Sunday) between 7:00 am and 7:00 pm (the reporting period), at [REDACTED] Police Station, or such other Police Station as notified to you in writing by an AFP Superintendent.
Control 2
2.1.You are required to remain at the specified premises between the hours of 10:00 pm and 6:00 am (the curfew period) each day from the day on which this interim control order comes into force until the day that it ceases to be in force.
2.2.The specified premises is:
a.[REDACTED] or
b.an alternative premises
i. nominated by you within 24 hours from the time that this interim control order comes into force; and
ii. approved in writing by an AFP Superintendent.
2.3.You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.
Control 3
3.1.You are prohibited from being at any of the following areas:
a.within the exclusion zone set out in Annexure 1 at Melbourne International Airport (Tullamarine);
b.within the exclusion zone set out in Annexure 2 at Avalon Airport;
c.within the exclusion zone set out in Annexure 3 at Moorabbin Airport;
d.within the exclusion zone set out in Annexure 4 at Essendon Fields Airport;
e.within the exclusion zone set out in Annexure 5 at Port Melbourne;
f.within 1 km of any Australian airport (besides Melbourne Tullamarine Airport, Avalon Airport, Moorabbin Airport, and Essendon Fields Airport which are addressed in Controls 3.1.a, 3.1.b, 3.1.c and 3.1.d) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
g.within 1 km of any Australian port (besides Port Melbourne, which is addressed in Control 3.1.e) that has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
h.inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
i.at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating;
j.any place in Australia outside the state of Victoria, unless:
i.you contact an AFP Superintendent in writing requesting approval to travel in Australia 14 days prior to the intended departure date, outside the state of Victoria, for a specific period of time; and
ii.an AFP Superintendent consents to the proposed travel in writing.
Control 4
4.1.You are prohibited from leaving Australia.
Control 5
5.1 You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:
Groups
a.Forming, joining or affiliating with any group, club or organisation, including any internet based social networking service, without written permission from an AFP Superintendent.
b.Forming any corporation, partnership, incorporated association, registering any business names, or operating a business without first notifying an AFP Superintendent in writing.
c.Forming prayer groups in or out of a Mosque, leading prayers, instructing others on leading prayers, influencing any other person in relation to religion in any group.
Financial
d.Transferring money or money’s worth to another person equal to or exceeding the value of $500 whether by cash, cheque or electronic transfer without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
e.Making any gift, donation, or financial contribution to any organisation, association, entity or charity, howsoever described without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
Public Appearances, Education and Counselling Services
f.Presenting at, or appearing as a presenter or speaker at, or appearing on stage at, or providing public endorsement of any other presenter or speaker at, any public gathering that is publicly or privately broadcast via the internet or any telecommunications network, and/or attended by 5 or more people.
g.Publish or authorise or approve to be published, collected or produced, any material for publication in any form (eg. written, audio, visual).
h.Make any public appearances or statement for publication in any form to any person, or cause any statement to be published by any person on your behalf, in relation to any of the following matters:
i.Carrying out, authorising or permitting violence;
ii.Activities of any terrorist organisation;
iii.The ideology of or any material published, produced or endorsed by any terrorist organisation;
iv.Use of weapons, firearms, ammunition or explosives;
v.Any of the matters set out in Control 6.1.a;
vi.Adherence to any fatwa, decree, ruling or statement of the following persons:
i. Ayman al-Zawahiri;
ii. Osama bin Laden;
iii. Abu Muhammad al Maqdisi;
iv. Abu Bakr Al-Baghdadi;
v. Abu Qatada al-Filistini;
vi. Said Mansour
vii. Abu Ibrahim al-Hahimi al-Qurashi, aka Amir Mohammed Abdul Rahman al-Mawli al-Salbi
i.Providing counselling, teaching, mentoring or marriage services, whether privately or in exchange for a fee, which involves you or any person on your behalf, making any statement in relation to any of the matters set out in Control 5.1.h.
Activities Pertaining to Travel
j.Applying for travel documents for any country.
Activities Pertaining to Weapons and Firearms
k.Possessing, purchasing or using any firearms or ammunition.
l.Permitting storage or use of any firearms or ammunition at your place of residence.
m.Hunting or trapping any animal or game, or using any weapon in connection with hunting or related activities. This includes spear fishing but does not include fishing with a net or line.
Activities involving Mailing or Couriering Correspondence
n.Sending mail or parcels to any person except by registered or express post, via Australia Post.
o.Sending mail under any other name or alias other than your own name.
p.Causing any other person to send mail on your behalf.
q.Engaging any private company or courier to convey any mail or parcels on your behalf, without first providing the following details to an AFP Superintendent in writing:
i.name and address of the recipient(s);
ii.final destination of all parts of the contents (if different from recipient / comprises correspondence or items to be on-forwarded);
iii.carrier details; and
iv.a summary/description of the contents of the mail or parcel.
Control 6
6.1.You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:
a.Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:
i.explosives, explosive devices, initiation systems or firing devices;
ii.firearms, ammunition or knives;
iii.anti-surveillance or counter surveillance;
iv.execution;
v.beheading;
vi.suicide attack;
vii.bombing;
viii.terrorist attack;
ix.assassination;
x.torture;
xi.genocide;
xii.violent jihad;
xiii.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
b.Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media relating to:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv. activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
Control 7
7.1.You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:
a.Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:
i.explosives, explosive devices, initiation systems or firing devices;
ii.firearms, ammunition or knives;
iii.anti-surveillance or counter surveillance;
iv.execution;
v.beheading;
vi.suicide attack;
vii.bombing;
viii.terrorist attack;
ix.assassination;
x.torture;
xi.genocide;
xii.violent jihad;
xiii.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),
unless that material is:
i.published by a ‘constituent body’ of the Australian Press Council;
ii.published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;
iii.broadcast on Australian free to air television;
iv.broadcast on Australian pay television;
v.shown in a commercial movie cinema; or
vi.broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; ABC iView; or SBS On Demand.
Control 8
8.1.You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.
Control 9
9.1.You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: undertaking paid work without first notifying the AFP Superintendent in writing.
9.2.In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, including details of the person for whom you will be undertaking the work (eg 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.‘firearm’ or ‘cartridge ammunition’ within the meaning of s 3(1) of the Firearms Act 1996 (Vic);
b.a 'prohibited weapon' within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);
c.any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1;
d.any quantity of any chemical which is not consistent with reasonable domestic use;
e.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;
except for reasonable domestic use;
f.a detonator;
g.a fuse capable of use with an explosive or a detonator;
h.a knife, in a public place, without reasonable excuse;
i.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, or attempting to communicate or associate with, directly or indirectly through a third party:
a.any person incarcerated in any correctional facility;
b.any person on parole or on bail, or in the community subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth) or a supervision order made under the Serious Offenders Act 2018 (Vic);
c.any person convicted of, or currently charged with a ‘terrorism offence’ within the meaning of section 3(1) of the Crimes Act 1914 (Cth);
d.any person convicted of an offence under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); and
e.The following persons, either directly or indirectly using a third party:
i.any person located in Lebanon, Jordan, The West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia, Egypt, Philippines or Indonesia,
[REDACTION]
f.The following persons, either directly or indirectly using a third party:
i.Shayden THORNE (DOB 03/02/1988)
ii.[REDACTED]
iii.[REDACTED]
iv.[REDACTED]
v.[REDACTED]
vi.Belal Saadallay KHAZAAL (DOB 19/01/1970)
vii.Amer HADDARA (DOB 22/08/1979)
viii.Aiman JOUD (DOB 15/10/1984)
ix.Shane KENT (DOB 23/11/1976)
x.Abdullah MERHI (DOB 06/06/1985)
xi.Ahmed RAAD (DOB 21/03/1983)
xii.Fadl SAYADI (DOB 12/01/1980)
xiii.[REDACTED]
xiv.[REDACTED]
xv.[REDACTED]
xvi.[REDACTED]
xvii.[REDACTED]
xviii.[REDACTED]
xix.[REDACTED]
xx.[REDACTED]
xxi.[REDACTED]
xxii.[REDACTED]
xxiii.[REDACTED]
xxiv.[REDACTED]
xxv.[REDACTED]
xxvi.[REDACTED]
xxvii.Nayef ELSAYED (DOB 02/02/1987)
Control 12
12.1.You are prohibited from accessing or using, any mobile telephone device other than the one mobile telephone device provided to you by the AFP (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions:
a.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
b.if you set a password for the permitted mobile phone, or change the password for the permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent’s direction.
12.2.You are prohibited from causing or permitting another person to use or access the permitted mobile phone.
12.3.You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.
12.4.Control 12.1 does not apply if the use of another mobile telephone device is solely for the purposes of notifying the AFP Superintendent of a fault or damage to the permitted mobile phone.
12.5.You are prohibited from altering or deleting any data, software or hardware stored on or utilised on the permitted mobile phone
Control 13
13.1.You are prohibited from accessing or using any fixed or landline telephone or facsimile 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 nominating the fixed or landline telephone or facsimile service you wish to use; 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 or facsimile service.
13.3.You are prohibited from causing another person to use or access any fixed or landline telephone or facsimile 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 or UHF/VHF radio.
Control 16
16.1.You are prohibited from accessing or using, or causing any person to access or use on your behalf, any applications, computer programs, social media services, websites (other than those permitted by control 7.1.a.i-vii above, following the words ‘unless the material is’), internet based messaging service, email service, cloud or remote storage service, file sharing service, virtualisation software or encrypted storage services designed to, or which purports to, disguise or conceal any function of any application, and any audiovisual, voice and/or multimedia sessions over internet protocol networks, also called IP telephony, internet telephony, broadband telephony and broadband phone service (collectively, platforms) without first obtaining the written permission of an AFP Superintendent to use that platform. Permission may be granted, subject to conditions and may be amended or revoked by the AFP Superintendent. Any conditions, amended conditions or revocation must be in writing.
16.2.You are prohibited from deleting any platforms, programs, software or data (including, but not limited to, software programs, messages, call logs, emails, and internet history) stored on or accessible from any device, or partitioning any drive.
Control 17
17.1.You are prohibited from accessing or using any internet service other than the one internet service provided to you by the AFP through your permitted mobile phone for you to access and use (the permitted internet service).
17.2.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 an AFP Superintendent, specifically a Gmail account, for you to access and use (the permitted email account).
18.2.To seek a permitted email account:
a.you must submit a written request to the AFP Superintendent; and
b.provide any other information requested by, or on behalf of, the AFP Superintendent.
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 or tablet device other than a computer or tablet device that has been approved in writing by an AFP Superintendent for you to access or use (the permitted computer or tablet device) and your use of the permitted computer or tablet device is subject to the following conditions:
a. before using the permitted computer or tablet device, you must provide the password for the permitted computer or tablet device to the AFP Superintendent; and
b. if you change the password for the permitted computer or tablet device, 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.You are prohibited from causing or permitting another person to access or use any computer or tablet device, including any computer or tablet device approved under Control 19.1.
19.3.To request approval under Control 19.1 you must:
a. submit a written request to the AFP Superintendent which nominates the computer or tablet device; 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 or tablet device.
Control 20
20.1.You are required to consider, in good faith, participating in counselling or education relating to your psychological and physical wellbeing, with a suitably qualified professional, for at least 60 minutes per week.
20.2.If you agree to participate in such counselling or education you must advise the AFP Superintendent in writing that you have commenced the counselling or education and provide the AFP Superintendent the name and qualifications of the professional you have engaged.
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 2.1, Control 3.1.j, Control 8 and Control 11.1.e.
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 2.1 ¾ 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 3.1.j ¾ the time and date at which you wish to depart Victoria; and
iii. in relation to a request for an exemption to the requirement in Control 11.1.e¾ the time and date at which you wish to communicate with a person located in Lebanon, Jordan, The West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia, Egypt, Philippines or Indonesia.
b. Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.
c.AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism portfolio, and includes any AFP member or special member authorised to perform duties or functions or otherwise act on behalf of a Superintendent within the Counter Terrorism portfolio in connection with this control order.
d.Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
e.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 Victoria Police Act 2013 (Vic).
ANNEXURE B
The Application for an Interim Control Order was made in this Court on 12 October 2020, namely, 25 days before Mr Benbrika was due to be released at the conclusion of his sentence.
At the time of making the Application in this Court, the Minister for Home Affairs had already applied for a Continuing Detention Order (CDO) in the Supreme Court of Victoria, which was contested and scheduled for hearing commencing 23 November 2020 for an estimated 5–7 days.
The Applicant in this Court relies on substantially the same material in this application and in the matter before the Supreme Court of Victoria.
In those circumstances, Mr Benbrika indicated that he did not seek to cross-examine any witness, call any evidence or oppose the making of the Interim Control Order.
History of offending
On 15 September 2008, following a trial before the Supreme Court of Victoria, a jury found Mr Benbrika guilty of:
a.intentionally being a member of a terrorist organisation, knowing it was a terrorist organisation, contrary to s 102.3(1) of the Code (Count 1);
b.intentionally directing activities of a terrorist organisation, knowing that it was a terrorist organisation, contrary to s 102.2(1) of the Code (Count 2); and
c.possession of a thing connected with preparation for a terrorist act, knowing of that connection, contrary to s 101.4(1) of the Code (Count 12).[1]
[1]See SOF at Part III.
These offences are each an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1).
Justice Bongiorno of the Supreme Court of Victoria sentenced Mr Benbrika to 15 years’ imprisonment in respect of the offences with a non-parole period of 12 years.
Mr Benbrika appealed the conviction to the Victorian Court of Appeal. On 25 October 2010, in Benbrika & Ors v The Queen [2010] VSCA 281, the Court of Appeal allowed Mr Benbrika’s appeal against count 12 (the charge under s 101.4(1)), but did not allow leave to appeal counts 1 and 2.
The quashing of the conviction under count 12 meant that Mr Benbrika was re-sentenced. Mr Benbrika’s sentence for the conviction under s 102.3(1) was reduced from seven to five years’ imprisonment. However, there was no change to his sentence for directing the organisation, so that his total effective sentence and non-parole period did not change.[2]
[2]See SOF at Part I
Mr Benbrika’s period of imprisonment expired on 5 November 2020.
Mr Benbrika is currently detained pursuant to an Interim Detention Order while an application for a Continuing Detention Order under Division 105A of the Criminal Code (Cth) is ongoing. The Interim Detention Order is due to expire on 2 December 2020.
Benbrika poses an ongoing risk
Having regard to all of the matters outlined in the ‘Statement of facts relating to why the order should be made’ (SOF) and the ‘Statement of facts relating to why the order should not be made’ (SOFN), Mr Benbrika presents an ongoing risk of:
a.committing, supporting or facilitating a terrorist act in Australia or overseas; or
b.committing, supporting or facilitating engagement in a hostile activity in a foreign country.
This risk is demonstrated by:
a.The nature and circumstances of, and background to, Mr Benbrika’s offending;
b.Mr Benbrika’s ongoing commitment to an extremist Islamic ideology supportive of religiously motivated violence; and
c.Mr Benbrika’s demonstrated influence over others with extremist views, and his continued association with persons of national security concern and persons who are vulnerable to his influence.
Nature and circumstances of Mr Benbrika’s offending
The nature and circumstances of Mr Benbrika’s terrorism offending was especially serious. In particular:
a.Mr Benbrika played a crucial role in forming and directing the activities of the ‘Jemaah’, which was a terrorist organisation based in Victoria committed to carrying out acts of lethal domestic terrorism in Australia;[3]
[3]See SOF at [26] to [31].
b.in his role as leader of the Jemaah, Mr Benbrika exercised influence over other people to hate non-Muslims and Muslim's who did not support violent jihad, thereby creating a significant risk that a terrorist act would be committed in Australia;[4]
[4]See SOF at [32] to [36].
c.Mr Benbrika’s participation in discussions within the Jemaah about, and the Jemaah’s preparation for, terrorist acts posed a serious risk to community safety - this risk is underscored by the organised nature of the Jemaah and its possession of extremist material;[5] and
[5]See SOF at [39] to [59].
d.at the time of sentencing, Mr Benbrika had in no way renounced his commitment to violent jihad or expressed contrition for the offences.[6]
[6]See SOF at [73.6].
For reasons set out below, it is also of particular significance that Mr Benbrika’s offending involved other persons who remain associates of Mr Benbrika.
Ongoing commitment to an extremist Islamic ideology supportive of religiously motivated violence
Mr Benbrika remains committed to an extremist Islamic ideology supportive of religiously motivated violence. This is apparent from the following matters:
a.at the time of his conviction, Mr Benbrika maintained an extremist Islamic ideology supportive of religiously motivated violence to such an extent that he was willing to commit the terrorism offences for which he was convicted;
b.there is no cogent evidence to support the view that Mr Benbrika’s beliefs have truly changed whilst in custody;
c.to the contrary, the following matters support an inference that Mr Benbrika’s extremist ideology has not changed:
– the manner of Mr Benbrika’s engagement with the Community Integration Support Program (CISP);[7]
[7]See SOF at [79] to [81].
– the content of Mr Benbrika’s communication with persons inside and outside of the prison environment;[8]
[8]See SOF at [83] to [133].
– Mr Benbrika’s involvement in various incidents whilst in custody (including incidents involving violence) arising in connection with ideological matters;[9]
[9]See SOF at [134].
– Mr Benbrika’s continued association with persons who have been convicted of terrorism-related offences or who are of national security concern, as outlined further below.
Mr Benbrika’s commitment to an extremist ideology supportive of religiously motivated violence is of even greater concern in view of his identification as a religious authority figure or a ‘sheik’.[10] This is because of the potential for him to radicalise others, as described above and below.
[10]See SOF, generally.
It is apparent that Mr Benbrika’s commitment to Islamic extremism is long standing and enduring. Statements by him to the contrary must be treated with a high degree of caution having regard to the matters outlined above, and:
a.The statements having come at a time at which it served Mr Benbrika’s interests to distance himself from his previously held views, namely a time when his suitability for parole was being assessed;
b.His previously made assertions to the effect that he does not hold extremist views in circumstances where other evidence strongly suggested otherwise and he was doing so to disguise his true intentions and divert the attention of the authorities from his activities[11];
[11]See SOF at [40] and [60-62]
c.The assertions have not been tested outside a custodial setting.
Significant influence over others
Mr Benbrika has a demonstrated capacity and apparent willingness to exert significant ideological influence over others.
Mr Benbrika’s capacity to exert significant ideological influence over others is apparent from the following matters:
a.Mr Benbrika’s role as leader of the Jemaah;
b.Mr Benbrika’s identification as a religious authority figure or a ‘sheik’;[12] and
[12]See SOF, generally.
c.the nature of Mr Benbrika’s communications with persons outside of the prison environment whilst in custody.[13]
[13]See SOF at [83] to [133].
Mr Benbrika’s willingness to exert significant ideological influence over others is apparent from the following matters:
a.Mr Benbrika’s role as leader of the Jemaah;
b.the frequency and content of Mr Benbrika’s communication with persons inside and outside of the prison environment about ideological matters;[14] and
[14]See SOF at [83] to [133].
c.Mr Benbrika’s involvement in various incidents whilst in custody (including incidents involving violence) arising in connection with ideological matters within the custodial environment.[15]
[15]See SOF at [134].
It can also be inferred that Mr Benbrika encouraged, counselled or was otherwise involved in persons travelling overseas to fight with or in connection with Islamic State in Iraq and Syria. That inference arises from the following matters:
a.Mr Benbrika’s commitment to an extremist Islamic ideology supportive of religiously motivated violence, as described above;
b.Mr Benbrika’s influence over others as evident from other matters and, in particular, his status as a religious leader or ‘sheik’, as described above; and
c.the fact that Mr Benbrika met with 14 persons shortly before they travelled overseas in a manner consistent with travelling to a foreign conflict zone to engage in hostile activities.[16]
[16]See SOF at [147], [148], [156] to [211].
Association with persons who hold similar extremist views
Mr Benbrika has a number of associates who hold similar extremist views, including:[17]
[17]See SOF at Part VI.
a.his co-offenders;
b.other persons in Australia posing national security risks;
c.associates who have travelled to foreign conflict zones (other than those who are now deceased); and
d.family members.
Mr Benbrika’s very large network of associates who hold similar extremist views increases his means and opportunity to:
a.commit, support and facilitate terrorist acts in Australia or overseas; and
b.commit, support and facilitate engagement in a hostile activity in a foreign country.
For reasons explained in the reports of Dr Kelly Michel and Ms Chelsey Dewson, that network of associates also has negative consequences for Mr Benbrika’s risk of desiring to engage in that type of behaviour.[18]
[18]See SOF at [240] to [250].
Expert opinions
Mr Benbrika has been assessed by two psychologists as being at a high risk of committing a serious Part 5.3 offence. Two other expert opinions otherwise contextualise and support the above matters.[19]
[19]See SOF at [251] to [276].
Appropriateness of controls
The nature of the risk posed by Mr Benbrika is complex and multifaceted. Having regard to the various matters outlined above, each of the controls in the draft interim control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
a.protecting the public from a terrorist act;
b.preventing the provision of support for or the facilitation of a terrorist act; or
c.preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
In addition, the controls will ensure Mr Benbrika:
a.is provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education);
b.is capable of being monitored by police during his re-engagement with the community;
c.is prohibited from engaging in behaviours, and being exposed to influences, which may lead him to provide support for or facilitate a terrorist act in Australia or abroad or the engagement in a hostile activity in a foreign country.
In view of the matters outlined above, there is a high risk that in the absence of appropriate controls, Mr Benbrika may:
a.commit, support and facilitate terrorist acts in Australia or overseas; and
b.commit, support and facilitate engagement in a hostile activity in a foreign country.
ANNEXURE 1
ANNEXURE 2
ANNEXURE 3
ANNEXURE 4
ANNEXURE 5
REASONS FOR JUDGMENT
BESANKO J:
Introduction
The applicant in this proceeding is Mr Scott Lee, the Assistant Commissioner of the Australian Federal Police (AFP). He makes an application for an interim control order pursuant to s 104.3 of the Criminal Code Act 1995 (Cth) (the Code) in relation to the respondent, Abdul Nacer Benbrika. The interim control order (ICO) sought by the applicant is an order which imposes the obligations, prohibitions and restrictions set out in Annexure SL–02 to the affidavit of the applicant sworn in support of the application. There are 20 obligations, prohibitions and restrictions in the proposed ICO (controls) and an exemption clause and an interpretation clause.
The background to the application is as follows. After a trial in the Supreme Court of Victoria which began in early February 2008 and lasted almost eight months, the respondent and others were convicted of terrorism offences on various dates between 1 July 2004 and 8 November 2005. There was an appeal and in the result, the offences of which the respondent was convicted were as follows: (1) intentionally being a member of a terrorist organisation, knowing it was a terrorist organisation, contrary to s 102.3(1) of the Code; and (2) intentionally directing the activities of a terrorist organisation, knowing that it was a terrorist organisation, contrary to s 102.2(1) of the Code. The total sentence imposed on the respondent was fixed as a period of 15 years’ imprisonment commencing on 3 February 2009 with a non-parole period of 12 years.
I note the following observations of the Court of Appeal of Victoria in considering the appeal against sentence brought by the respondent (Benbrika v R [2010] VSCA 281; (2010) 29 VR 593 at [5], [6], [561]–[567]):
5The Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief – taught by Benbrika and accepted by members of the organisation – that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).
6The Crown advanced a largely circumstantial case, the key elements of which were as follows:
(1)members of the organisation referred to themselves collectively as the jema’ah, an Arabic word meaning ‘group’ or ‘association’, and took an oath of allegiance to Benbrika called a bayat;
(2)some members of the organisation undertook specific roles and responsibilities;
(3)members received religious instruction from Benbrika in the pursuit of violent jihad as a religious obligation;
(4)in order to instil the motivation and knowledge necessary to commit terrorist acts, the organisation collected extremist Islamic doctrinal and operational material and circulated it among members;
(5)money was collected from the members to fund the organisation’s activities and some members undertook illegal activities, including illicit car re-birthing and credit card fraud, in attempts to raise additional funds for the organisation;
(6)the organisation spent money from the fund on group activities and other outlays as approved by Benbrika; and
(7)members also undertook team building/bonding activities, including trips away to training days and camps, sometimes with other terrorist organisations.
…
561…Certainly, he was a member of the organisation for the whole of its existence, and the objective seriousness of his membership and his moral culpability in relation to it were greater than for any other offender. However, in relative terms, this organisation was towards the lower end of the scale of seriousness. Therefore, the sentence to be imposed on Benbrika for being a member of it should accord to that relativity.
562So to say is not to overlook that he was the founder and principal of the organisation. It is also not to overlook that his actions were more far reaching than in the case of any other offender.
563Those matters, however, go to the sentence to be imposed for the offence of directing the organisation. To avoid double punishment, Benbrika’s leadership of the organisation must be excluded from consideration when sentencing for the offence of being a member of the organisation. Approaching the matter in that way, we conclude that a sentence of five years’ imprisonment (representing 50 per cent of the maximum penalty) should be imposed.
564We take the same view as the trial judge, however, as to the sentence to be imposed on the count of directing the activities of a terrorist organisation. On any rational analysis, the objective seriousness of Benbrika’s actions in convincing impressionable prospective members of the organisation to the way of violent jihad, and his moral culpability in fomenting the misconceptions and hatred which sustained their interest in the organisation and its activities, were at the high end of the scale of seriousness.
565Ironically, despite the vehemence of Benbrika’s commitment to violent jihad, the evidence suggests that he was a procrastinator. Fortunately for all concerned, that meant that the organisation never got to the point of committing a terrorist act before it was shut down. However, as the evidence also showed, it would surely have done so had it not been shut down. Benbrika was pivotal as to when and what that act would be, and it is on that basis that he stood to be sentenced. For his acts in developing and sustaining the organisational capability to commit a terrorist act when he determined, the sentence of 15 years’ imprisonment was appropriate.
566All individual sentences are to commence on 3 February 2009. This makes a total effective sentence of 15 years’ imprisonment.
567We also see nothing questionable about the non-parole period of 12 years. In the face of Benbrika’s intractable adherence to the cause of violent jihad, and the consequent need for denunciation, general deterrence, specific deterrence and community protection, a non-parole period of that order was unavoidable.
The respondent’s sentence of imprisonment for these offences expired on 5 November 2020. I was told by counsel for the applicant that a continuing detention order under Division 105A of the Code is sought against the respondent and that he is presently the subject of a 28 day preventive detention order made under Division 105A.
The Requirements of the Criminal Code Act 1995 (Cth)
“Terrorism” is the heading to Part 5.3 of the Code and control orders are dealt with in Division 104 of the Part. The objects of the Division are set out in s 104.1 and are as follows:
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.
The applicant is a senior AFP member. A senior AFP member must not request an ICO in relation to a person without the AFP’s Minister’s consent (s 104.2(1)). The applicant has obtained the AFP’s Minister’s consent in this case (Annexure SL–03). References to annexures are references to annexures to the applicant’s affidavit.
Section 104.3 sets out the information the senior AFP member must give to the Court as part of a request for an ICO. There is no dispute that the applicant has complied with the obligations in this section. I will indicate the paragraphs in the applicant’s affidavit which satisfy each of the requirements in the paragraphs in the section:
(a)the applicant’s affidavit;
(b)the applicant’s affidavit paras 105–106 and Annexure SL–02; paras 19–21 and Annexure SL–04; paras 23 and 27 and Annexure SL–05; para 28 and Annexure SL–06; and para 29 and Annexure SL–07;
(c)(i) the applicant’s affidavit paras 105–178
(ii) the applicant’s affidavit para 27 and Annexure SL–04;
(d)the applicant’s affidavit para 7;
(e)the applicant’s affidavit para 18 and Annexure SL–03.
The key section for present purposes is s 104.4(1), (2) and (3) which is in the following terms:
(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, received training from or participated in training with a listed terrorist organisation; or
(iii)that the person has engaged in a hostile activity in a foreign country; or
(iv)that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v)that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi)that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(vii)that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; 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:
(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.
(2)For the purposes of paragraph (1)(d), 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:
(a)as a paramount consideration in all cases—the objects of this Division (see section 104.1); and
(b)as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and
(c)as an additional consideration in all cases—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.
Subsection (1)(a) is satisfied. The Court has not requested any further information that requires consideration pursuant to subsection (1)(b).
In this case, the requirement in subsection 104.4(1)(c)(iv) is satisfied. The offences of which the respondent was convicted relate to terrorism or a terrorist act. Terrorism is not defined in the Code, but a terrorist act is defined in s 100.1(1)(a), (b) and (c) as follows:
…
terrorist act means an action or threat of action where:
(a)the action falls within subsection (2) and does not fall within subsection (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
…
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d)endangers a person’s life, other than the life of the person taking the action; or
(e)creates a serious risk to the health or safety of the public or a section of the public; or
(f)seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv)a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.
It may also be noted, as the applicant pointed out, that a “terrorism offence” is defined in s 3 of the Crimes Act 1914 (Cth) to include “an offence against … Part 5.3 of the [Code]”.
Section 104.4(4) should also be noted. It is in the following terms:
(4) In paragraphs (1)(c) and (d), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
I turn now to s 104.4(1)(d). This paragraph addresses the matters which must be satisfied in relation to each of the controls to be imposed on a person who is to be subject to an ICO. The type of controls which may be imposed are identified in s 104.5(3) of the Code. I do not need to set out that subsection. There is no suggestion in this case that the type of controls proposed by the applicant do not fall within the terms of s 104.5(3).
The exercise required by s 104.4(1)(d) in relation to individual controls was the subject of the following observations in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307. Gleeson CJ said (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.
(Citation omitted.)
Gummow and Crennan JJ said (at [99] and [103]):
Judicial techniques must then be applied to each proposed obligation, prohibition and restriction. 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)).
This notion of sufficient connection between the desired end and the means proposed for its attainment may have its origins in constitutional law, but it is capable of judicial application elsewhere. Section 104.4(1) is an example. So also is the use made of notions of reasonable necessity and “reasonably appropriate and adapted” in the balancing exercise required of the issuing court by s 104.4(2).
The following control orders are not in dispute: Controls 1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20. I have read the applicant’s affidavit and other material before the Court and I am satisfied on the balance of probabilities that each of these control orders is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act; preventing the provision of support for or the facilitation of a terrorist act; and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country within s 104.1(d) of the Code. I have taken into account the objects of Division 104 as a paramount consideration and, as an additional consideration, the impact of the obligations, prohibitions or restrictions on the respondent’s circumstances, including the respondent’s financial and personal circumstances, to the extent they are known at this stage.
The dispute concerning proposed Controls 5, 6, 7 and 11 does not relate to the whole of the control, but rather to quite particular aspects of the control.
The way in which this application proceeded was that the application was accompanied by a lengthy affidavit of the applicant in which he addressed a number of matters, including the need for each proposed control order. No affidavit evidence was filed by the respondent. The respondent advised the applicant of those aspects of Controls 5, 6, 7 and 11 in respect of which he took issue. Both parties made submissions as to those matters with the applicant relying on the lengthy affidavit he put forward with the application.
The following matters should be noted before I proceed to consider the particular matters in dispute.
First, the Code provides that a contravention of a control order is an offence punishable by imprisonment for up to five years (s 104.27).
Secondly, the Code provides that there will be a confirmation hearing at which the Court may make one of the orders set out in s 104.14(6) and (7) below:
(6)The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order.
(7) Otherwise, the court may:
(a)revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b)confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c)confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).
The applicant made the point that whilst controls may be varied by removing one or more of them, they could not be varied by adding controls. That would appear to be correct, having regard to the terms of s 104.14(7), although the determination of the issue is not decisive for present purposes.
Thirdly, one of the matters which must be set out in an ICO is a summary of the grounds upon which the order is made (s 104.5(1)(h)).
In this case, that summary appears in Annexure B to the proposed ICO. The summary is, in turn, based on the information in the applicant’s affidavit and annexures, including the statement of facts. The respondent did not make any submissions about Annexure B. In any event, I find that the statements and assessments therein are amply supported by the evidence. The information in Annexure B is important. It indicates that the respondent is at a high risk of committing a serious offence under Part 5.3 of the Code, has the ability to influence others and is committed to an extremist Islamic ideology supportive of religiously motivated violence.
I turn to the particular issues in dispute.
Control 5
Control 5 prohibits the respondent from carrying out specified activities, including in respect of his work or occupation. The relevant prohibitions for present purposes are as follows:
Groups
a.Forming, joining or affiliating with any group, club or organisation, including any internet based social networking service, without written permission from an AFP Superintendent.
b.Forming any corporation, partnership, incorporated association, registering any business names, or operating a business without first notifying an AFP Superintendent in writing.
c.Forming prayer groups in or out of a Mosque, leading prayers, instructing others on leading prayers, influencing any other person in relation to religion in any group
Financial
d.Transferring money or money’s worth to another person equal to or exceeding the value of $500 whether by cash, cheque or electronic transfer without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
e.Making any gift, donation, or financial contribution to any organisation, association, entity or charity howsoever described without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
…
Activities involving Mailing or Couriering Correspondence
n.Sending mail or parcels to any person except by registered or express post, via Australia Post.
o.Sending mail under any other name or alias other than your own name.
p.Causing any other person to send mail on your behalf.
q.Engaging any private company or courier to convey any mail or parcels on your behalf, without first providing the following details to an AFP Superintendent in writing:
i. name and address of the recipient(s);
ii.final destination of all parts of the contents (if different from recipient/comprises correspondence or items to be on-forwarded);
iii. carrier details; and
iv. a summary/description of the contents of the mail or parcel.
The dispute relates to paragraphs 5.1.a., 5.1.c. and 5.1.e. and 5.1.p. and the respondent seeks the following changes to these proposed orders:
a.Forming, joining or affiliating with any group, club or organisation, including any internet based social networking service, other than [name of mosque], without written permission from an AFP Superintendent.
c. Forming prayer groups in or out of a Mosque, leading prayers, instructing others on leading prayers, influencing any other person in relation to religion in any group, other than with other immediate family members in the family home.
e.Making any gift, donation, or financial contribution to any organisation, association, entity or charity other than to a mosque in an amount not exceeding $500 per month, howsoever described without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
p.Causing any other person to send mail otherwise prohibited by this control on your behalf.
With respect to the amendment to 5.1.a sought by the respondent, he makes the following submissions:
(1)The act of joining or attending a local mosque is a normal activity for persons of the Muslim faith and attending Friday prayers at the mosque is regarded as an essential part of religious practice;
(2)Other controls restrict the respondent’s activities in the community, including at the mosque, and thereby provide appropriate and adapted limitations on him relating to the relevant risk;
(3)There is no suggestion in the evidence that the relevant community poses or fosters a relevant risk; and
(4)The respondent’s past offending did not feature the mere regular attendance at a mosque as being a risk factor; rather the opposite in that it was the covert meetings where the offending conduct occurred.
As I have said, the applicant relies on his evidence to the effect that Control 5 is designed with a view to protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act, or the engagement in a hostile activity in a foreign country. In particular, the control is designed to prevent the respondent from engaging in activities, or influencing, directing or using others to engage in activities, which could provide the knowledge or skills for, or otherwise inspire, motivate, direct, support or facilitate a terrorist act or hostile activity in a foreign country. The applicant states that these are the very things that formed the basis of the respondent’s offending. The applicant relies on his evidence to the effect that Controls 5.1.a. and 5.1.b. are designed to enable the police to effectively monitor the respondent’s re-integration into the community and his associations with the community, limit the opportunities for the respondent to influence or radicalise others and convey his extremist views and take steps, if necessary, to prevent the respondent from associating with persons in the community who may hold extremist views or ideologies, or creating opportunities to share or propagate extremist views and material, or creating opportunities to represent himself as a leader or a person of ideological authority. The applicant also points to the fact that the prohibitions in 5.1.a. and 5.1.b. are not absolute prohibitions. The respondent was convicted of forming a terrorist organisation and in the course of that offending he exerted influence and radicalised other members of his organisation towards an interpretation of Islam that encouraged violent Jihad against non-believers. The applicant points to the fact that a significant number of persons whom the respondent has associated with in gaol were convicted of terrorism offences and that the respondent has continued whilst in gaol to hold himself out as a religious or morale authority by virtue of identifying as a “Sheikh”. The applicant expresses his concern that the respondent continues to hold himself out as a person of ideological and religious authority within the community, and that he is accepted as such. The applicant relies on his evidence that the respondent’s risk relates to his potential influence over countless others who may seek out his teachings, including not only family members and current known associates, but also followers who are unknown to the AFP. The applicant expresses the view that a non-association control by itself is unlikely to be effective in preventing the respondent from influencing others and further, it would not be possible to list all of the prospective individuals who may seek him out and be susceptible to his influence.
The applicant points out that the respondent’s offending occurred in the course of covert meetings with members of the terrorist organisation he established, and the applicant is concerned that the respondent will seek to establish another such group on release, establishing himself as a person who can give religious or ideological guidance to others and use this as a means of recruiting people to participate in terrorist acts. The applicant expresses the view that Controls 5.1.a. to 5.1.c. seek to mitigate the risk and extent to which the respondent could exercise influence over other persons within the community by allowing the police a degree of oversight over associations the respondent might make in the community. The applicant acknowledges that it is self-evidently difficult to control the respondent’s contact with people when he attends mosques, including people of concern from a national security perspective and it is also likely to be extremely difficult to prove that any association between the respondent and a person he was prohibited from associating with at a mosque did not take place “in the course of practising a religion”. This control, the applicant says, narrows the circumstances under which the respondent might be able to exercise influence.
The applicant submits that the requirement that the respondent obtain the written permission from an AFP Superintendent enables the applicant to retain oversight over the process and to withdraw written consent if public safety considerations change. It is submitted that it is possible that the AFP’s assessment of a mosque will change over time and it is important that it retain the ability to withdraw consent in relation to a mosque if and when legitimate public safety concerns arise.
In this context, the applicant submits that if the respondent’s proposal is accepted, it will not be possible to change the control at the confirmation hearing even if public safety considerations justified such a course at that time.
In my opinion, the amendment to 5.1.a. sought by the respondent should not be made. Three matters are significant in this respect. First, there is a high risk of the respondent committing a serious offence against Part 5.3A of the Code. Secondly, there is the respondent’s sphere of influence over others which is the result of his position as a leader. Thirdly, there is the respondent’s continued commitment to an extremist Islamic ideology supportive of religiously motivated violence.
With respect to the amendment to 5.1.c. sought by the respondent, he makes the following submissions:
(1)The act of leading prayers in the family home consists of the most senior member of the household reading passages of the Quran as those who are present pray and it does not connote preaching or discussing matters;
(2)“Influencing” any family member in the family home in relation to religion is such a broad concept as to encompass not only risky topics, but also entirely benign or thoroughly beneficial topics;
(3)A control preventing the respondent from promoting violence or terrorism or religious teachings that promote violence or terrorism would be more appropriately adapted to the intended purpose of the order; and
(4)In any case, the term “influencing” is not a sufficiently precise description of conduct such that its prohibition adequately delineates what the respondent must not do.
The applicant relies on the same evidence the he relied on in relation to Control 5.1.a. and, in addition, he points to the following evidence. The respondent will be returning to the same home environment which existed when he committed his original offences. The respondent remains the dominant family member and by reference to transcripts the applicant produces, he states that in his opinion, upon the respondent’s release, he will seek to exert significant control over his family to ensure that they are behaving consistently with his ideologies. The transcripts also reveal that whilst incarcerated, the respondent has exerted influence and control over his family and, in particular, his two sons and his wife. The influence and control has included organising them to pass messages onto other persons convicted of terrorism or of national security concern in the community, to receive messages by text from others on his behalf, and to gather information so that the respondent could monitor matters of interest to him in the community, including leadership at certain mosques. Furthermore, the transcripts of conversations and the reports of psychologists, Dr Kelly Mischel and Ms Chelsea Dewson, reveal that the respondent’s wife either tolerates, or sympathises with, or shares the same extremist views as the respondent. It is clear that whilst in prison, the respondent’s wife has been in contact with the respondent’s co-offenders and other persons of national security concern. The respondent’s sons have had their passports cancelled on the basis that ASIO suspects, on reasonable grounds, that if passports were issued to them, they would likely engage in conduct that might prejudice the security of Australia or a foreign country. The respondent’s daughter is married to a man who is convicted with one “MC” and four others of engaging in conduct in preparation for incursions into a foreign country for the purposes of engaging in hostile activities, an offence relating to terrorism. The respondent’s son-in-law is the subject of a confirmed control order and one of the control orders is that he is not to associate with the respondent. The respondent’s daughter and son-in-law are divorced, but they have a son who, together with his mother, reside and will reside with the respondent. The controls imposed on the respondent’s son-in-law permit him to travel to Melbourne for the purposes of visiting his child, and they also permit him to associate with the respondent’s sons for the purposes of discussing or facilitating contact with his child.
The applicant expresses the belief that if the respondent is released and returns to his family environment, then some of his family members will continue to follow his directions and, therefore, could serve as a conduit between the respondent and other extremists or undertake other actions of concern at his direction. The applicant believes that the respondent will, with his family acting as a conduit, circumvent any control which prohibits him from associating with persons known to present a national security concern. The applicant seeks a control which prohibits the respondent from having others, including his family, communicate or associate on his behalf. Nevertheless, he is very concerned as to whether the respondent or his family will comply with such a control and the AFP’s ability to effectively monitor compliance with such a control. The respondent expresses the opinion that it is very important to take such steps as can be taken to ensure that the control exerted over the respondent’s activities in prison are replicated upon his release.
The applicant submits that the act of leading a prayer group, even family members in the family home, would validate the respondent’s own view that he is a religious leader and further expose members of his family to his radical thinking.
In my opinion, the amendment to 5.1.c. sought by the respondent should not be made. I accept the applicant’s submissions. In this respect, there are the three matters I referred to in relation to 5.1.a. In addition, there are the matters identified above relating to the respondent’s family referred to above and the influence he appears to exercise over his family and the risk that they will do his bidding.
With respect to the respondent’s proposed exclusion from 5.1.e., he makes the following submissions:
(1)The act of making regular contributions to mosque funds is a regular obligation for members of the Muslim faith;
(2)There is no suggestion arising from past offending that the respondent has used mosque funds in a manner aligned to relevant offending;
(3)Any charitable donation made to a mosque will be made in circumstances where the respondent does not have any leadership role at that mosque, nor any involvement in the collection or distribution of its funds;
(4)A limit on the amount that may be donated over a period of time will provide a reasonable limit to any risk of money being used in an improper way; and
(5)The requirement to notify an AFP Superintendent in writing and to provide a receipt for every payment is unduly burdensome.
The applicant relies on the evidence previously identified and, in addition, the following evidence. This control is designed to enable the police to monitor the respondent’s financial transactions in order to ensure that he is not providing financial support to any terrorist organisation or terrorist actor or facilitating any terrorist act or hostile activity in a foreign country or to any third party for the purposes of attempting to disguise a transaction made for the above purposes. The applicant notes that terrorist organisations are known to obtain their funding through donations, the exploitation of charities and through their affiliates. The applicant points to the fact that the controls are not absolute and they are not intended to prevent the respondent from making a legitimate gift, donation or financial contribution to any organisation, association, entity or charity. The control is intended to provide oversight to ensure the respondent does not transfer funds or make donations which support or facilitate terrorist acts or hostile activities in a foreign country. The applicant further submits that there may be important public safety considerations which makes it necessary for the AFP to know to which mosque the respondent is donating money.
An order prohibiting the respondent from making a gift, donation, or financial contribution to any organisation, association, entity or charity howsoever described without first notifying the AFP Superintendent in writing of his intention to do so and, providing a receipt of payment thereafter, is justified having regard to the evidence previously referred to, including the respondent’s leadership position and the applicant’s evidence that terrorist organisations are known to obtain their funding through donations, the exploitation of charities and their affiliates. The respondent is not prohibited from making gifts, donations, or financial contributions to organisations, associations, entities or charities; rather he must notify the AFP Superintendent of his intention to do so and he must provide a receipt of payment thereafter. There is no evidence from the respondent of the impact of this control on his circumstances (s 104.4(2)(c)). I do not consider an exception should be made in the case of gifts, donations or financial contributions to any mosque, albeit limited in an amount not exceeding $500 per month.
With respect to the amendment to 5.1.p. sought by the respondent, he submits that this proposed control is not reasonably necessary or reasonably appropriate and adapted because as presently drafted, it would mean that the respondent could not cause any other person to send mail on his behalf even if the respondent is permitted to send a given piece of mail himself. The submission is that there can be no greater risk if another person sends the same mail in the same manner and that the prohibition is likely to catch innocuous conduct. In those circumstances, the respondent submits, the limitation proposed by him should be included.
The applicant relies on evidence previously identified and, in addition, the following evidence. This control is designed to enable the police to monitor the respondent’s communications and associations to ensure that Control 11 (set out below) is being complied with. The prohibitions are not absolute as they permit the respondent to use mail and courier services. The prohibitions seek to balance the respondent’s privacy against the public interest in preventing the respondent from using this as a means to support or facilitate a terrorist act or hostile activity in a foreign country. The applicant makes the observation that the respondent has been communicating with family and inmates via post for the duration of his incarceration and that this is a form of communication he is accustomed to using. The applicant considers there is a likelihood that he may continue to use this method of communication when he is released from prison. Further, the applicant expresses the view that without this control, it would be significantly more difficult for police to monitor the respondent’s use of postal or courier services as a potential avenue of the respondent supporting or facilitating a terrorist act or hostile activity in a foreign country.
The applicant submits that if the control order was made in the terms sought by the respondent, it would be impracticable to monitor the control. Furthermore, there is no evidence from the respondent that it is necessary that he be able to cause any other person to send mail. In those circumstances, there is no appreciable impact of the obligation, prohibition or restriction on the respondent’s circumstances, including his financial and personal circumstances.
I do not consider that this amendment should be made. It “opens up” arguments as to whether the respondent has caused another person to send mail on his behalf and there is no evidence, and nor is it obvious, that the prohibition as framed by the applicant would impact on his circumstances (s 104.4(2)(c)).
Controls 6 and 7
Control 6 prohibits the respondent from carrying out various activities, including in respect of his work or occupation. It is in the following terms:
a.Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
b.Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media relating to:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
The respondent seeks the following amendment to paragraph a.:
a.Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, not including any religious text approved in writing by an Imam who is a member of the CISP program which relate to any of the following: [list of violent activities or terrorism related material].
Control 7 prohibits the respondent from carrying out identified activities, including in respect of his work or occupation. It is in the following terms:
a.Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),
unless that material is:
i.published by a ‘constituent body’ of the Australian Press Council;
ii.published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;
iii.broadcast on Australian free to air television;
iv.broadcast on Australian pay television;
v.shown in a commercial movie cinema; or
vi.broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; ABC iView; or SBS On Demand.
The respondent seeks the following amendment to this proposed order:
a. Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following: [list of violent activities or terrorism related material],
unless that material is:
i.a religious text approved in writing by an Imam who is a member of the CISP program;
ii.published by a ‘constituent body’ of the Australian Press Council;
iii.[list of other publishers or broadcasters]
With respect to Controls 6 and 7, the respondent submits the following: (1) the respondent engaged in the community integration service programme (CISP) which involved mentoring with members of the Board of Imams, Victoria and as part of that programme, he read and discussed documents that touched on the topics listed in Controls 6 and 7; (2) the prohibitions in Controls 6 and 7, if imposed without the suggested amendment, will prevent the respondent from engaging in that way with the relevant Imams and it will represent a greater restriction on his engagement in the community than that to which he was entitled to have whilst he has been in custody; and (3) the respondent should be given neither greater nor lesser ability to engage with such material than he has had, at least since 2018.
The applicant relies on his evidence to the effect that Controls 6 and 7 are for the purposes of preventing the respondent from being exposed to, and producing or disseminating, material which could be used to support or facilitate a terrorist act or which could have a radicalising effect on him or others. These prohibitions are particularly important in circumstances where the respondent’s previous conduct involved the collection and circulation of various publications containing extremist, including ideological justifications for violent Jihad and instructions on how to prepare for and carry out terrorist acts. The applicant expresses the view that the respondent has the intelligence, motivation and skills to self-educate in the area of bomb-making, combat and extremism which make it highly likely in the applicant’s view that he would find means to access these resources in the community even with a control order in place. The applicant expresses the view that he knows from his own knowledge of the respondent’s offending, that the respondent has a proven history for seeking to acquire knowledge of making bombs in pursuit of violent Jihad. The respondent’s incarceration has prevented him from having access to similar material. The applicant expresses the view that whilst the AFP can seek to have in place specific controls restricting his access to technology, the sheer breadth of his extremist links, his religious commitment to Jihad and his capacity to access materials through other people is likely to make it difficult to detect attempts by the respondent to procure or access such information. It is in light of those circumstances that Control 6 is framed broadly. Control 7 includes an exception where the material is published or broadcast by mainstream media outlets operating in Australia. This exception is included to ensure that the respondent does not inadvertently breach those controls by, for example, simply watching the news which refers to firearms or knives, or of a suicide bombing or other terrorist attack. The applicant observes that nevertheless, the respondent is prohibited from storing, copying, producing or distributing such content, whether or not published by mainstream media outlets in order to ensure the respondent does not use such material even from legitimate mainstream sources to promote, support or encourage acts of terrorism, or to support or facilitate hostile activities in foreign countries.
The applicant submits that the amendment to the control sought by the respondent implies that there are religious texts that contain material that relates to the items at subparagraphs i. to xiv. This is not agreed by the applicant. The CISP programme is a programme conducted by Victorian Police and the AFP has no control over that programme. The exclusion sought by the respondent is potentially a broad approval and if relevant information of concern became available to the AFP, it would not have any control over the approval process concerning the particular text or an ability to assess prospective public safety concerns arising from the content of the text in question. The applicant submits that the respondent has led no evidence that this amendment is necessary and there is no appreciable impact of the obligation, prohibition or restriction on the applicant’s circumstances, including his financial and personal circumstances. The applicant makes the same submissions with respect to the amendment sought in relation to Control 7.
I agree with the applicant’s submissions. There is no evidence before the Court about the CISP programme. There is no evidence of the impact, if any, on the respondent’s circumstances by reason of him being prohibited from carrying out the activities in Controls 6 and 7 with respect to any religious text which might be approved in writing by an Imam who is a member of the CISP programme, but which nevertheless contains prohibited material.
Control 11
Control 11 prohibits the respondent from communicating or associating with, or attempting to communicate or associate with, directly or indirectly through a third party as follows:
a. any person incarcerated in any correctional facility;
b.any person on parole or on bail, or in the community subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth) or a supervision order made under the Serious Offenders Act 2018 (Vic);
c.any person convicted of, or currently charged with a ‘terrorism offence’ within the meaning of section 3(1) of the Crimes Act 1914 (Cth);
d.any person convicted of an offence under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); and
e. The following persons, either directly or indirectly using a third party:
i.any person located in Lebanon, Jordan, The West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia, Egypt, Philippines or Indonesia,
f. The following persons, either directly or indirectly using a third party:
i. Shayden THORNE (DOB 03/02/1988)
ii. [REDACTED]
iii.[REDACTED]
iv.[REDACTED]
v.[REDACTED]
vi. Belal Saadallay KHAZAAL (DOB 19/01/1970)
vii. Amer HADDARA (DOB 22/08/1979)
viii. Aiman JOUD (DOB 15/10/1984)
ix. Shane KENT (DOB 23/11/1976)
x. Abdullah MERHI (DOB 06/06/1985)
xi. Ahmed RAAD (DOB 21/03/1983)
xii. Fadl SAYADI (DOB 12/01/1980)
xiii. [REDACTED]
xiv. [REDACTED]
xv. [REDACTED]
xvi. [REDACTED]
xvii. [REDACTED]
xviii. [REDACTED]
xix. [REDACTED]
xx. [REDACTED]
xxi. [REDACTED]
xxii. [REDACTED]
xxiii. [REDACTED]
xxiv. [REDACTED]
xxv. [REDACTED]
xxvi. [REDACTED]
xxvii. Nayef ELSAYED (DOB 02/02/1987)
The respondent seeks an exemption from paragraph e. in relation to his wife’s immediate family in one of the places identified. His wife’s name and the place will be the subject of a suppression order and I will not mention them in these reasons.
The applicant does not oppose the exemption, but seeks to have the following added:
whose names and addresses have been provided to the AFP at least 48 hours in advance of any communication or association and have been approved in writing by the AFP Superintendent.
As I understand it, the respondent does not oppose the first part of this qualification, but he does not agree to the second part.
The applicant contends that the countries named in Control 11.e. are places where terrorist organisations, including Islamic State and Islamic State affiliates, are known to operate and that the purpose of this aspect of Control 11 is to prevent the respondent contacting persons who may be operatives, members or agents of terrorist organisations or affiliated organisations operating in or out of these countries and/or supporters of sympathisers of terrorist organisations or affiliated organisations operating in or out of those countries.
I accept that the exemption proposed by the respondent is appropriate, but I also consider that the entire qualification proposed by the applicant is also appropriate, having regard to the evidence.
Conclusions
I will make an interim control order pursuant to s 104.4 of the Code in the terms set out in the orders section at the beginning of these reasons. I will hear the parties as to the date to be fixed for the hearing envisaged by s 104.5(1)(e) of the Code.
The applicant seeks a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting until further order disclosure, by publication or otherwise, including redaction in any publicly available Court documents (including orders) of the following:
(1)the name and address of the police station referred to in Control 1.10.;
(2)the address in Control 2.2.a.;
(3)the name of the mosque referred to in Control 5.1.a. of the draft proposed control orders forwarded to the Court on 18 November 2020;
(4)the name of the respondent’s wife and the location of her family in Control 11.1.e; and
(5) the names and dates of birth of the persons listed in Control 11.1.f..ii.–v. and xiii.–xxvi. There are exceptions to this order which it is not necessary to detail. They are appropriate.
These orders are appropriate and I will make them relying on the grounds in s 37AG(1)(a) and (c) of the Federal Court of Australia Act.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 1 December 2020
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