McCartney v Abdirahman-Khalif (No 2)

Case [2020] FCA 1002

FEDERAL COURT OF AUSTRALIA

McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002

File number: SAD 245 of 2019
Judge: CHARLESWORTH J
Date of judgment: 17 July 2020
Catchwords: POLICE – where interim control order made pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) on application by the Australian Federal Police – application for conformation of control order pursuant to s 104.14 of the Code – whether preconditions for confirmation of the control order are met – whether the obligations, prohibitions and restrictions imposed by the orders are reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a terrorist act – interim control order varied and confirmed
Legislation:

Acts Interpretation Act 1901 (Cth) s 33

Australian Federal Police Act 1979 (Cth)

Criminal Code Act 1995 (Cth) ss 100.1, 102.3, 104, 104.1, 104.2, 104.4, 104.5, 104.12A, 104.14, 104.27, 104.28A, Div 104

Evidence Act 1995 (Cth) s 191

Summary Offences Regulation 2016 (SA) s 6

Police Act 1998 (SA)

Cases cited:

Abdirahman-Khalif v The Queen [2019] SASCFC 133

Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554

Jones v Dunkel (1959) 101 CLR 298

McCartney v Abdirahman-Khalif [2019] FCA 2218

Thomas v Mowbray (2007) 233 CLR 307

Date of hearing: 9 and 10 July 2020
Registry: South Australia
Division: General Division
National Practice Area: Federal Crime and Related Proceedings
Category: Catchwords
Number of paragraphs: 211
Counsel for the Applicant: Mr Berger with Mr Melican
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr Henchliffe QC
Solicitor for the Respondent: Caldicott Lawyers

ORDERS

SAD 245 of 2019
BETWEEN:

IAN MCCARTNEY

Applicant
AND:

ZAINAB ABDIRAHMAN-KHALIF

Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

17 JULY 2020

THE COURT ORDERS THAT:

1.Pursuant to s 104.14(7)(b) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the Interim Control Order made in relation to the respondent on 22 November 2019 (as varied on 16 December 2019, 5 February 2020 and 30 March 2020) is varied and confirmed. The terms of the Control Order, as varied and confirmed, are set out in the Annexure to these Orders.

2.The confirmed Control Order relates to the respondent, Zainab Abdirahman-Khalif.

3.The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(i) and s 104.4(1)(c)(vi) of the Criminal Code, confirming the order would substantially assist in preventing:

(a)a terrorist act; or

(b)the provision of support for or the facilitation of a terrorist act.

4.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 confirmed and varied Control Order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i) and (ii) of the Criminal Code.

5.The confirmed Control Order remains in force until and including 21 November 2020.

6.The respondent’s lawyer may attend the…

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McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002
Case
[2020] FCA 1002
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Federal Police (AFP) applied for the confirmation of an Interim Control Order (ICO) made in relation to Zainab Abdirahman-Khalif, an Australian citizen born in Kenya. The application was brought pursuant to s 104.14 of the Criminal Code Act 1995 (Cth) (Code), and the court had to determine whether the preconditions for the confirmation of the ICO were met. Specifically, the court had to consider whether the control measures were reasonably necessary, and reasonably appropriate and adapted to the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a terrorist act.

The court considered the evidence provided by the AFP and found that the preconditions for the confirmation of the ICO were met. The court found that the control measures imposed by the ICO were reasonably necessary, and reasonably appropriate and adapted to the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a terrorist act. The court also found that the requirements of s 104.4(1)(d) of the Code were satisfied, including the requirement that the respondent give consideration in good faith to participating in an appropriate program. The court varied the ICO to the extent identified in the reasons and confirmed the ICO, with some modifications to the language and reordering of events. The confirmed ICO will remain in force until 21 November 2020.

The court's decision was based on the evidence provided by the AFP, which was largely un-contradicted. The court found that the primary facts asserted by the AFP were either agreed or proven to the requisite standard by the un-contradicted affidavit evidence. The court also found that the inferences that may permissibly be drawn from those primary facts supported the AFP's case. The court held that Division 104 of the Code reflects a precautionary policy, and that the civil liberties of a person can and should be curtailed as a precaution against criminal offending that may occur in the future. The court also held that the statute is not cast in mandatory terms, and that the Court retains a discretion, to be exercised judicially, as to whether or not the Controls should be imposed and then confirmed. The court was satisfied that the controls set out in the ICO should be varied and confirmed as identified in the reasons.

Orders

Orders of the court

1. Pursuant to s 104.14(7)(b) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the Interim Control Order made in relation to the respondent on 22 November 2019 (as varied on 16 December 2019, 5 February 2020 and 30 March 2020) is varied and confirmed. The terms of the Control Order, as varied and confirmed, are set out in the Annexure to these Orders.

2. The confirmed Control Order relates to the respondent, Zainab Abdirahman-Khalif.

3. The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(i) and s 104.4(1)(c)(vi) of the Criminal Code, confirming the order would substantially assist in preventing:

(a) a terrorist act; or

(b) the provision of support for or the facilitation of a terrorist act.

4. 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 confirmed and varied Control Order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i) and (ii) of the Criminal Code.

5. The confirmed Control Order remains in force until and including 21 November 2020.

6. The respondent’s lawyer may attend the Adelaide office of the Australian Federal Police at 55 Currie Street, Adelaide SA between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE

1. CONTROL 1

(a) You are required to remain at premises:

(i) nominated by you within 24 hours from the time that this Confirmed Control Order comes into force; and

(ii) approved in writing by the Australian Federal Police (AFP) Superintendent (the specified premises),

between the hours of 12:00 am and 6:00 am (the curfew period) each day from the day on which this Confirmed Control Order comes into force until the day that it ceases to be in force.

(b) You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.

2. CONTROL 2

(a) You are prohibited from being at any of the following areas:

(i) inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;

(ii) at the residence of any person with whom, by reason of Control 9, you are prohibited from communicating or associating;

(iii) any place in Australia outside the State of South Australia.

3. CONTROL 3

(a) You are prohibited from leaving Australia for any period of time while this Confirmed Control Order is in force.

4. CONTROL 4

(a) You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, which relate to any of the following:

(i) explosives, explosive devices, initiation systems or firing devices;

(ii) firearms, ammunition or knives;

(iii) anti-surveillance or counter surveillance.

unless that material is:

(iv) published by a “constituent body” of the Australian Press Council;

(v) broadcast on Australian free to air television;

(vi) broadcast on Australian pay television;

(vii) shown in a commercial movie cinema;

(viii) broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand.; or

(ix) contained in material that is served on you or your legal representatives by or on behalf of the Applicant in Federal Court of Australia proceeding McCartney v Abdirahman-Khalif (SAD 245 of 2019), including any appeal from that proceeding.

5. CONTROL 5

(a) You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, depicting or describing any:

(i) execution;

(ii) beheading;

(iii) suicide attack;

(iv) bombing;

(v) terrorist attack;

(vi) propaganda and promotional material for a terrorist organisation including the al-Hayat Media Centre; or

(vii) 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:

(viii) published by a “constituent body” of the Australian Press Council;

(ix) broadcast on Australian free to air television;

(x) broadcast on Australian pay television;

(xi) shown in a commercial movie cinema;

(xii) broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand.; or

(xiii) contained in material that is served on you or your legal representatives by or on behalf of the Applicant in Federal Court of Australia proceeding McCartney v Abdirahman-Khalif (SAD 245 of 2019), including any appeal from that proceeding.

6. CONTROL 6

(a) You are prohibited from the following specified activities (including in respect of your work or occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to:

(i) explosives, explosive devices, initiation systems or firing devices;

(ii) firearms, ammunition or knives;

(iii) anti-surveillance or counter surveillance;

(iv) executions;

(v) beheading;

(vi) suicide attacks;

(vii) bombings;

(viii) terrorist attacks;

(ix) propaganda and promotional material for a terrorist organisation including the al-Hayat Media Centre;

(xi) activities of, or associated with, any organisation that is specified as a “terrorist organisation” for the purposes of s 102.1 of the Schedule to the Criminal Code Act 1995 (Cth).

7. CONTROL 7

(a) You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.

8. CONTROL 8

(a) 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:

(i) firearms or ammunition;

(ii) a “prohibited weapon” within the meaning of s 6 of the Summary Offences Regulation 2016 (SA);

(iii) any quantity of petrol exceeding four litres;

(iv) any quantity of any chemical which is not consistent with reasonable domestic use.

(b) However, Control 8(iii) does not apply to petrol in the petrol tank of a vehicle.

9. CONTROL 9

(a) You are prohibited from communicating or associating with:

(i) any person incarcerated in any correctional facility;

(ii) any person located in Turkey, Iraq or Syria;

(iii) any of the following specified individuals:

1 Daniel John CLAVELL (Date of birth: 07/07/1987);

2 Nathan John CLAVELL (Date of birth: 27/04/1998);

3 Samia HUSSAIN (Date of birth: 12/02/1998);

4 Joel Edward James CLAVELL (Date of birth: 20/02/2000); and

5 Joshua John CLAVELL (Date of Birth: 25/01/1989).

10. CONTROL 10

(a) You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device at any one time (a permitted mobile phone), and your use of a permitted mobile phone is subject to the following conditions:

(i) before using a permitted mobile phone, you must present it to the AFP Superintendent (or a police officer specified in writing by the AFP Superintendent) for inspection;

(ii) before using a permitted mobile phone, you must advise the AFP Superintendent, in writing, of the following information: the International Mobile Equipment Identity number for a permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with a permitted mobile phone, the telecommunication service provider which you will use with a permitted mobile phone, and the phone number to which a permitted mobile phone will be connected;

(iii) once you have advised the AFP Superintendent of the information required by paragraph 10(a)(ii) above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to a permitted mobile phone.

(b) You are prohibited from causing or permitting another person to use or access a permitted mobile phone.

(c) You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.

11. CONTROL 11

(a) You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the AFP Superintendent for you to access or use.

(b) To seek approval, you must:

(i) submit a written request to the AFP Superintendent which nominates the fixed or landline telephone service; and

(ii) provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone service.

(c) You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf.

12. CONTROL 12

(a) 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:

(i) 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

(ii) you explain the nature of the emergency which required you to access or use that public telephone.

13. CONTROL 13

(a) You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.

14. CONTROL 14

(a) You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be:

(i) FaceTime

(ii) WhatsApp

(iii) Viber

(iv) Telegram

(v) Skype

(vi) Instagram

(vii) Snapchat

(viii) KIK

(ix) iCall

(x) WeTalk

(xi) Lync2013

(xii) Nimbuzz Messenger

(xiii) Whistle Phone

(xiv) Talkatone

(xv) Discord

(xvi) Google Duo

(xvii) MagicApp

(xviii) Signal Private Messenger

(xix) Zoiper IAX SIP VOIP Softphone

(xx) Beejive

(xxi) Fring

(xxii) JaJah

(xxiii) Line2

(xxiv) Truphone

(xxv) Twitter

(xxvi) Yahoo

(xxvii) ICQ

(xxiii) Google Talk

(xxix) MSN Messenger

(xxx) AIM

(xxxi) Yahoo Messenger

(xxxii) Packet8

(xxxiii) Google Hangouts.

(b) In addition to the platforms listed in Control 14(a), you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service.

(c) In addition to the platforms listed in Control 14(a), you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service.

(d) However, Controls 14(b) and 14(c) do not prohibit access to or the use of:

(i) Facebook and Facebook Messenger; or

(ii) a website which includes an “instant chat” function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service.

15. CONTROL 15

(a) You are prohibited from accessing or using any internet service other than the one service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted internet service).

(b) To seek approval:

(i) you must submit a written request to the AFP Superintendent which:

1 nominates the internet service provider account; and

2 nominates the devices you will connect to the internet service (including but not limited to computers and televisions);

(ii) provide any other information requested by, or on behalf of, the AFP Superintendent, in relation to, or for the purpose of identifying, the nominated account and devices.

(c) You are prohibited from causing or permitting another person to access or use the permitted internet service.

(d) You are prohibited from causing any other person to access or use on your behalf any internet service.

16. CONTROL 16

(a) You are prohibited from accessing or using any electronic mail (email) account other than one account that has been approved in writing by the AFP Superintendent for you to access or use (the permitted email account).

(b) To seek approval:

(i) you must submit a written request to the AFP Superintendent which nominates the email account; and

(ii) provide any other information requested by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using.

(c) You are prohibited from causing or permitting another person to use or access the permitted email account.

(d) You are prohibited from causing any other person to access or use on your behalf any email account.

17. CONTROL 17

(a) You are prohibited from accessing or using any computer other than one computer that has been approved in writing by the AFP Superintendent for you to access or use (the permitted computer).

(b) To request approval you must:

(i) submit a written request to the AFP Superintendent which nominates the computer; and

(ii) 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.

(c) If the approval is granted, you must provide the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, the password for the permitted computer if you are requested to do so by the AFP Superintendent or the police officer.

18. CONTROL 18

(a) You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab.

19. CONTROL 19

(a) 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.

(b) 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.

20. EXEMPTIONS

(a) You may request the AFP Superintendent to approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1(a), 2(a)(iii), and 9(a)(ii).

(b) To request an exemption, you must:

(i) submit a written request to the AFP Superintendent which:

1 identifies the Control in respect of which you seek an exemption;

2 explains the extent to which you seek to be exempted from the Control; and

3 explains your reason(s) for seeking the exemption; and

(ii) provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.

(c) The AFP Superintendent may grant an exemption subject to conditions specified in writing.

(d) 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.

(e) A request for an exemption must be made before the material time and date.

(f) If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.

21. INTERPRETATION

(a) In this Confirmed Control Order:

(i) Material time and date means:

1 in relation to a request for an exemption to the requirement in Control 1(a) ⎯ 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);

2 in relation to a request for an exemption to the requirement in Control 2(a)(iii) ⎯ the time and date at which you wish to depart South Australia; and

3 in relation to a request for an exemption to the requirement in Control 9(a)(ii) ⎯ the time and date at which you wish to communicate with a person located in Turkey, Iraq or Syria.

(ii) AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism portfolio.

(iii) Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device, account, application, service, software or hardware.

(iv) Police officer means a “member” or “special member” of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a “police officer” within the meaning of the Police Act 1998 (SA).

Background

Background to the litigation

The inferences that may be drawn from the primary facts dealt with separately at [131] – [161] below.Primary factsIslamic State Between 29 June 2014 and 26 October 2019, Abu Bakr Al-Baghdadi (Al-Baghdadi) was the self-proclaimed “leader” of a group which calls itself Islamic State. Persons purporting to represent and speak for Islamic State follow an extreme interpretation of Islam which is anti-Western and promotes sectarian violence. They sought to establish a presence in the traditional Islamic lands of Iraq and Syria and encouraged Muslims to travel to territory now formerly held by Islamic State to defend it and to develop and populate an Islamic society. Persons purporting to speak on behalf of Islamic State have exhorted their followers to carry out violent attacks against persons they perceive to be its enemies. In September 2014, Abu Muhammad al-Adani, purporting to speak on behalf of Islamic State, publicly stated:So O muwahhid, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the tawaghft (tyrannical, oppressive rulers). Strike their police, security, and intelligence members, as well as their treacherous agents ... If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way however it may be.Do not ask for anyone’s advice and do not seek anyone’s verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers ... If you are not able to find an JED or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him. In recent years a number of attacks have been carried out where persons purporting to speak for Islamic State have publicly claimed responsibility. Islamic groups (including, but not limited to, persons purporting to speak for and/or represent Islamic State) have used a musical form of Arabic poetry, essentially chants, known as nasheeds. The al-Hayat Media Centre publishes and disseminates propaganda on behalf of Islamic State, including material which praises terrorist attacks, including in Australia, and seeks to recruit people to join Islamic State.The respondent The respondent was born in 1995 in the Benadir refugee camp near Mombasa Kenya, to parents of Somali origin. She lived in that and another refugee camp until she was 13 years of age. In 2009, the respondent immigrated to Australia as a refugee, along with her mother and two brothers. She acquired Australian citizenship on 6 May 2015. Between 1 May 2016 and 23 May 2017, the respondent resided at an address in an inner Adelaide suburb. She studied Arabic at the Islamic College of South Australia in 2011 and 2012 where she achieved “A” and “B” grades.

Evidence

Evidence Before The Court

The onus is on the applicant to show that the conditions for confirming the ICO are satisfied and that the Court should confirm the ICO in the exercise of its discretion. Facts are to be proven on the balance of probabilities. In deciding whether it is satisfied that the applicant’s case is proved, the Court must take into account the nature of the cause of action and the defence, the subject matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth).Evidence Section 191 of the Evidence Act provides that evidence is not required to prove the existence of an agreed fact, being a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. The parties, by their legal representatives, have signed three statements of agreed facts dated 20 November 2019, 13 March 2020 and 4 June 2020. The respondent otherwise adduced no evidence. It is common ground that the respondent has an explanation for not giving evidence in opposition to the Confirmation Order such that the principle in Jones v Dunkel (1959) 101 CLR 298 does not apply. With the exception of those parts of the evidence not ultimately pressed by the applicant, the following affidavits on substantive issues were read, subject to my rulings on admissibility and use: affidavit of Aaron Cole affirmed 18 March 2020; first affidavit of Jarrod Cook sworn 18 March 2020; affidavit of Darren Edwards sworn 6 March 2020; affidavit of Keith Fell sworn 12 March 2020; affidavit of Tracey Kajer affirmed 6 March 2020; affidavit of Mykola Koschelew sworn 12 March 2020; affidavit of Anton Lamnek sworn 11 March 2020; affidavit of Steven Napper affirmed 12 March 2020; affidavit of Aaron Prior affirmed 6 March 2020; affidavit of Andrew Rogers affirmed 12 March 2020; affidavit of Michael Saliba affirmed 12 March 2020; affidavit of Sean Francis Sherlock affirmed 13 March 2020; affidavit of Saad Tlaa affirmed 11 March 2020; first affidavit of Simon Musgrove Warwick sworn 18 March 2020; affidavit of Michael Zschorn affirmed 12 March 2020; affidavit of Ian McCartney sworn 14 May 2020; second affidavit of Jarrod Cook sworn 18 March 2020; and the second affidavit of Simon Warwick sworn 18 March 2020. In the circumstances I have described, the primary facts asserted by the applicant are either agreed or are proven to the requisite standard by the un-contradicted affidavit evidence. The factual dispute largely centres upon the inferences that may permissibly be drawn from those primary facts. With some exceptions, Counsel for the respondent did not take issue with a long narrative of facts included in the applicant’s written submissions. The evidence supporting that narrative is drawn both from the three statements of agreed facts and from the affidavits, read together. It is convenient to record the Court’s findings by substantially reproducing the narrative as it is expressed in the applicant’s written submissions with some minor modifications to the language and reordering of events. Additional facts referred to in the respondent’s written submissions will be included.

Decision

Reasons for decision

The requirements that the respondent give consideration in good faith to participating in an appropriate program does not represent any significant incursion on her civil liberties. I am satisfied that the condition in s 104.4(1)(d) is met in respect of this Control.CONCLUSION Division 104 of the Code reflects a precautionary policy: the civil liberties of a person can and should be curtailed, not as punishment for offending that has occurred in the past, but as a precaution against criminal offending that may occur in the future. The expectation of the legislature is that the Court may lend its assistance to efforts of the Executive Government to control the activities of persons who present an identified risk to the community of the particular kind to which the statute is directed. However, as has been mentioned, the statute is not cast in mandatory terms. In a case where the pre-conditions for the exercise of the Court’s powers exist, the Court retains a discretion, to be exercised judicially, as to whether or not the Controls should be imposed and then confirmed. Neither party has drawn the Court’s attention to any circumstance that would warrant its refusal to make the orders sought at the confirmation hearing should the preconditions for confirming the ICO be met. I am satisfied that the controls set out in the ICO should be varied to the extent identified in these reasons and that the ICO should otherwise be confirmed. Upon the removal of Control 2 it will be necessary to renumber the remaining controls and alter some cross-references. Those changes will be reflected in the final order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.